People v. Powell CA1/5

• Court: California Court of Appeal
• Decided: February 23, 2024
• Docket: A167066
• Status: Unpublished

Opinion

Filed 2/23/24 P. v. Powell CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A167066

v. (Alameda County Super. Ct. DIANTAY POWELL, No. 171602A) Defendant and Appellant.

Defendant Diantay Powell appeals from the trial court’s denial of his postjudgment motion under Penal Code1 section 1203.01. In that motion, he requested a Franklin/Cook2 proceeding to preserve evidence for a future youth parole hearing. The court denied the motion on the ground that Powell was statutorily ineligible for a parole hearing because he was 18 years old at the time of his offenses and was sentenced to life without the possibility of parole (LWOP). Powell contends that his exclusion from youth offender parole consideration violates his right to equal protection under the state and

1 All further statutory references are to the Penal Code.

2 (People v. Franklin (2016) 63 Cal.4th 261, 269 (Franklin) [youth

offender parole hearings require record of mitigating evidence tied to the defendant’s youth]; In re Cook (2019) 7 Cal.5th 439, 452 (Cook) [same].)

1 federal Constitutions and constitutes cruel or unusual punishment under the state Constitution and the Racial Justice Act (RJA). We disagree and affirm. I. BACKGROUND In 2016, a jury convicted Powell of first degree murder with a multiple murder special circumstance as to one victim and second degree murder as to another victim. The jury also found true allegations that Powell personally discharged a firearm during the commission of each offense, causing death or great bodily injury. Powell was 18 years old at the time he committed the murders, and the victims he shot were teenage girls. (People v. Powell (Dec. 15, 2017, A149038) [nonpub. opn.].) Powell was sentenced to LWOP plus 65 years to life. In Powell’s appeal from that judgment, this court remanded the matter for the trial court to exercise its newfound discretion to strike the firearm enhancement but otherwise affirmed. (Id. at pp. 6–7.) On remand, the trial court struck the firearm enhancement and resentenced Powell to LWOP plus 40 years to life. In 2022, Powell filed a section 1203.01 motion seeking a Franklin/Cook proceeding so he could preserve mitigating evidence for a future youth offender parole hearing. The motion argued that the exclusion of 18- to 25-year-old offenders sentenced to LWOP from youth offender parole consideration violated Powell’s right to equal protection as well as the state Constitution’s ban on cruel or unusual punishment. The trial court denied the motion on the ground that section 3051 expressly excludes from youth offender parole consideration offenders who were 18 years or older at the time of their offense and sentenced to LWOP. In doing so, the court rejected Powell’s arguments that section 3051 violated equal protection or the ban against cruel or unusual punishment. Powell timely appealed.

2 II. DISCUSSION A. Denying a Youth Offender Parole Hearing to Young Adult Offenders Like Powell Does Not Violate Equal Protection. Under section 3051, juveniles sentenced to LWOP are eligible for a youth offender parole hearing after 25 years of incarceration. (§ 3051, subd. (b)(4).) Likewise, young adults between the ages of 18 and 25 who are sentenced to 25 years to life are eligible for a youth offender parole hearing after 25 years. (Id., subd. (b)(3).) But young adults sentenced to LWOP like Powell are ineligible for such a hearing. (Id., subd. (h).) Powell contends section 3051, subdivision (h) violates equal protection because there is no rational basis for distinguishing between young adult offenders with respect to their eligibility for a youth offender parole hearing based solely on their sentence. After independently reviewing Powell’s equal protection argument, we disagree. (People v. Sands (2021) 70 Cal.App.5th 193, 202 (Sands).) The federal and state Constitutions “ ‘guarantee all persons the equal protection of the laws.’ ” (People v. Acosta (2021) 60 Cal.App.5th 769, 778 (Acosta).) This means persons who are similarly situated for the purposes of the law challenged must receive like treatment unless there is a rational reason for different treatment. (Ibid.) The equal protection analysis has two steps: “First, we consider whether ‘ “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” ’ [Citation.] The groups need not be similar in all respects but must be similarly situated for the purposes of the challenged law. [Citation.] Second, if two similarly situated groups have been identified and no suspect class or fundamental rights are at issue, we must decide whether there is any

3 rational basis to support treating the groups differently.” (Sands, supra, 70 Cal.App.5th at p. 202.) “[E]qual protection of the law is denied only where there is no ‘rational relationship between the disparity of treatment and some legitimate governmental purpose.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74.) “We must accept any plausible rational basis without questioning its wisdom, logic, persuasiveness, or fairness, and regardless of whether the Legislature ever articulated it.” (Sands, supra, 70 Cal.App.5th at p. 204.) As explained below, we reject Powell’s equal protection challenge because there is a rational basis for treating young adults like Powell who have been sentenced to LWOP differently than other young adult offenders. 1. We Assume, Without Deciding, That Young Adult LWOP Offenders Are Similarly Situated to Other Young Adult Offenders. Powell contends that for purposes of section 3051, young adult offenders sentenced to LWOP are similarly situated to young adult offenders not sentenced to LWOP. Powell relies on People v. Hardin (2022) 84 Cal.App.5th 273, 285 (Hardin), which reasoned that both young adult groups are similarly situated because they committed their crimes before their brains were fully developed and before they reached emotional or cognitive maturity in their judgment and decision-making. But other appellate districts have reached a contrary conclusion. (See, e.g., People v. Jackson (2021) 61 Cal.App.5th 189, 199 (Jackson) [finding the two groups not similarly situated for purposes of section 3051]; but see Acosta, supra, 60 Cal.App.5th at p. 779 [finding the two groups similarly situated for purposes of section 3051].) We, however, need not wade into this disagreement because we find a rational basis for differential treatment.

4 2. A Rational Basis Exists for Treating Young Adult LWOP Offenders and Young Adult Non-LWOP Offenders Differently. Powell acknowledges that most courts of appeal, including this division, have found a rational basis for distinguishing between young adult LWOP offenders and young adult non-LWOP offenders. (See, e.g., Sands, supra, 70 Cal.App.5th 193; People v. Morales (2021) 67 Cal.App.5th 326; Jackson, supra, 61 Cal.App.5th 189; Acosta, supra 60 Cal.App.5th 769; In re Williams (2020) 57 Cal.App.5th 427.) Nonetheless, Powell argues that based on section 3051’s goal—to provide young adults a meaningful opportunity for parole based on youth-related mitigating factors—“there is no plausible basis for distinguishing between same-age offenders based solely on the crime they committed.” Relying heavily on Hardin—the one court of appeal that has found section 3051’s distinction between young adults with LWOP and non-LWOP sentences violative of equal protection—Powell argues that the relative culpability tied to crimes like special-circumstances murder that result in a mandatory LWOP sentence and crimes like murder without a special-circumstances finding, do not establish a rational basis for differential treatment. (Hardin, supra, 84 Cal.App.5th at p. 288.) We, however, join with People v. Ngo (2023) 89 Cal.App.5th 116 (Ngo) in rejecting Hardin and reaffirm our holding in Sands finding a rational basis for treating young adult offenders sentenced to LWOP differently than those who are not under section 3051.3 As an initial matter, we agree with Ngo that “cutting off the most culpable youthful offenders from parole entirely” does not appear to be “inconsistent with the goals of section of section 3051.” (Ngo, supra, 89

3 The California Supreme Court has granted review in Hardin and Ngo.

5 Cal.App.5th at p. 125.) As Ngo explained, section 3051 “is, in part, a sentencing statute” because it “does not make all youth offenders eligible for parole at the same point in their incarceration” even though they “have been simultaneously maturing and outgrowing their youthful impulses.” (Ngo, at p. 125, italics in original.) For example, section 3051 distinguishes between young adult offenders sentenced to a determinate term, an indeterminate term of less than 25 years, and an indeterminate term of 25 years to life. (Ngo, at p. 125.) Under section 3051, each of these three groups is eligible for a parole hearing at a different time. (Ngo, at p. 125.) Thus, section 3051 provides young adults with a meaningful opportunity for parole based on youth-related mitigating factors notwithstanding its exclusion of young adults sentenced to LWOP (“the most culpable youth offenders”). (Ngo, at p. 125.) In any event, we are not persuaded by Hardin that relative culpability is not a rational basis for treating young adults sentenced to LWOP differently under section 3051. According to Hardin, relative culpability cannot serve as a rational basis for differential treatment because section 3051 allows young adults “who have committed multiple violent crimes (albeit not special-circumstance murder) and were sentenced to a technically parole-eligible indeterminate state prison term that is the functional equivalent of life without parole” to obtain a parole hearing. (Hardin, supra, 84 Cal.App.5th at p. 289.) According to Hardin, “[w]hile we must accept any gross generalizations the Legislature may seem to have made when conducting rational basis review [citation], the exclusion of young adult offenders sentenced to life without parole was a deliberate and focused choice, not an inadvertent consequence of broadly worded legislation.” (Id. at p. 290.) But as we explained in Sands, “the Legislature may rationally treat

6 [non-LWOP] offenders . . . less harshly because it deems their underlying crimes, such as first-degree murder, less grave than special circumstance murder.” (Sands, supra, 70 Cal.App.5th at p. 204.) Indeed, “special circumstance multiple murder ‘carries a mandatory sentence of LWOP or death (§ 190.2, subd. (a)), which are the harshest penalties available under our penal system and are reserved for crimes of the most heinous nature.’ ” (Acosta, supra, 60 Cal.App.5th at p. 780.) Because “ ‘[t]he Legislature rationally judged this crime to be more severe and more deserving of lifetime punishment than nonspecial circumstance first degree murder,’ ” it could also rationally conclude that young adults convicted of that crime to be undeserving of parole. (Ibid.) Hardin’s claim that “a technically parole-eligible indeterminate state prison term” may be “the functional equivalent of life without parole” does not support a contrary conclusion. (Hardin, supra, 84 Cal.App.5th at p. 289.) As Ngo correctly noted, “the Legislature could rationally distinguish between [youthful] offenders with de jure and de facto LWOP sentences” because a “de jure LWOP sentence provides a bright-line test.” (Ngo, supra, 89 Cal.App.5th at pp. 126–127.) Indeed, “using a special circumstance as a bright-line test of culpability is well-established.” (Ibid.) Thus, “[t]he Legislature’s distinction is not irrational simply because some offenders sentenced to life without the possibility of parole are arguably less culpable than some offenders receiving lesser sentences.” (Sands, supra, 70 Cal.App.5th at pp. 204–205.) Finally, Hardin ignores that equal protection “allows not only incremental regulation, but also incomplete regulation.” (Ngo, supra, 89 Cal.App.5th at p. 126, italics in original.) “ ‘A classification is not arbitrary or irrational simply because there is an “imperfect fit between means and ends” ’ [citations], or ‘because it may be “to some extent both underinclusive

7 and overinclusive” ’ [citations]. Consequently, any plausible reason for distinguishing between [two classes] need not exist in every scenario in which the statutes might apply.” (Johnson v. Dept. of Justice (2015) 60 Cal.4th 871, 887.) Thus, the Legislature could choose to exclude young adults sentenced to LWOP from the relief otherwise available to other young adult offenders under section 3051 without jeopardizing the entire remedial scheme. (Ngo, at p. 126.) We therefore decline to follow Hardin and reaffirm our conclusion in Sands that there is a rational basis for treating young adults sentenced to LWOP and other young adult offenders under section 3051 differently. B. Denying a Parole Hearing to Young Adult LWOP Offenders is Not Cruel or Unusual Punishment. Powell next argues that section 3051 constitutes cruel or unusual punishment because a LWOP sentence is disproportionately severe for young adults in comparison to older adults. Powell further contends that a mandatory LWOP sentence is too severe because it does not allow the trial court to consider youth-related mitigating circumstances. Again, we disagree and hold, consistent with other courts of appeal, that the denial of a youth offender parole hearing to young adults sentenced to LWOP does not constitute cruel or unusual punishment. Article I, section 17 of the California Constitution prohibits the “inflict[ion]” of “[c]ruel or unusual punishment.” In doing so, it “ ‘ “independently lays down the same prohibition” ’ as the Eighth Amendment.” (People v. Edwards (2019) 34 Cal.App.5th 183, 191 (Edwards).) Thus, a punishment violates this prohibition only if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch

8 (1972) 8 Cal.3d 410, 424.) “[I]n making this determination,” courts “assess . . . (1) the nature of the offense and the offender, and the degree of danger posed to society; (2) a comparison with sentences for more serious offenses under California law; and (3) a comparison with sentences imposed by other states for the same offense.” (Edwards, at p. 191.) In arguing that depriving young adults sentenced to LWOP of the opportunity for a parole hearing violates the ban on cruel or unusual punishment, Powell urges us to apply the reasoning of Miller v. Alabama (2012) 567 U.S. 460 (Miller). There, the high court held that a mandatory LWOP sentence constitutes cruel and unusual punishment when imposed on juveniles. (Id. at pp. 474–477.) Claiming that young adults “share key characteristics with those under the age of 18,” Powell contends that he should have the same opportunity for a parole hearing as juveniles under section 3051. Those shared characteristics include a heightened vulnerability to outside influences, the lack of a fully developed brain, and a greater likelihood of exhibiting extreme recklessness, impulsivity, and risk- taking. We, however, decline to extend Miller to young adults like Powell. As the United States Supreme Court has acknowledged, “[w]hile drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood” and is for example, “the age at which the line for death eligibility ought to rest.” (Roper v. Simmons (2005) 543 U.S. 551, 554 (Roper).) Miller did not change this. Indeed, following Miller, our own high court reaffirmed the age of 18 as the bright line that our society uses to separate childhood from adulthood for many purposes, including the propriety of certain criminal punishments like the death penalty. (People v.

9 Tran (2022) 13 Cal.5th 1169, 1234 (Tran).) Because Powell was already 18 at the time he committed the murders, Miller does not apply to him. Next, Powell argues that imposing a mandatory LWOP sentence on young adults like himself is “too severe” because “it does not allow a sentencing court to consider a young adult’s individual circumstances.” Once again, Powell urges this court to apply the reasoning in Miller, where the high court encouraged consideration of a juvenile offender’s individual circumstances before imposing LWOP. (Miller, supra, 567 U.S. at pp. 476–477.) And once again, we decline to reject the bright line established by the United States Supreme Court in Roper, supra, 543 U.S. at page 547, and the California Supreme Court in Tran, supra, 13 Cal.5th at page 1234. As explained in People v. Argeta (2012) 210 Cal.App.4th 1478, 1482, “[m]aking an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point.” Accordingly, we conclude that the imposition of a mandatory LWOP sentence on individuals 18 and older does not constitute cruel or unusual punishment in violation of the California Constitution.4

4 Because we are bound by our high court’s holding that the most

extreme punishment—death—is constitutional for 18-year-olds (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we cannot rely on the decisions of other state courts extending the reasoning of Miller to young adults to reach a contrary conclusion. Absent a change of opinion by our high court, only the Legislature may extend the right to a parole hearing to young adults sentenced to LWOP.

10 C. Powell Cannot Assert a Claim Under the Racial Justice Act in this Appeal. Lastly, Powell argues for the first time on appeal that the imposition of LWOP on African Americans like himself constitutes cruel or unusual punishment “because it is disproportionate under the Racial Justice Act [(RJA)].” We need not reach the merits of this argument because Powell cannot make a RJA claim in this appeal. The RJA became effective on January 1, 2021. (§ 745, added by Stats. 2020, ch. 317, § 3.5.) It was enacted “to eliminate racial bias from California’s criminal justice system” and “to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317, § 2(i).) To this end, the RJA states that “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (§ 745, subd. (a).) In its current form, the RJA applies retroactively (§ 745, subd. (j)) and provides that “[a] defendant may file a motion pursuant to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7, in a court of competent jurisdiction, alleging a violation of subdivision (a). For claims based on the trial record, a defendant may raise a claim alleging a violation of subdivision (a) on direct appeal from the conviction or sentence.” (§ 745, subd. (b)). As this is not a direct appeal from a conviction or sentence, Powell cannot raise a RJA claim in this appeal from the denial of a motion under section 1203.01. (See § 745, subd. (b).) Powell is not, however, precluded from raising his RJA claim through any other procedural mechanism allowed under section 745, subdivision (b). III. DISPOSITION The December 29, 2022, order is affirmed.

11 CHOU, J.

We concur.

JACKSON, P. J.

BURNS, J.

People v. Powell / A167066