California Cases June 22, 2021: People v. Jones

Case Description

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No. FSB18003148 Ronald M. Christianson, Judge. Affirmed.

David W. Beaudreau, under appointment of the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS J.

I. INTRODUCTION

Defendant and appellant David Pierre Jones was convicted of committing three one strike offenses (Pen. Code, § 667.61), and other crimes, when he was 19 years old in 2018. He was sentenced to 105 years to life for his one strike offenses and enhancements, plus a determinate term of 32 years four months for his other crimes and enhancements.

Jones does not challenge his convictions or his sentence. Rather, he claims that section 3051, subdivision (h) (section 3051(h)) is facially unconstitutional because it violates the state and federal equal protection rights of all young adult one strike offenders. The statute categorically excludes all one strike offenders from eligibility for youth offender parole consideration under section 3051, while young adults convicted of first degree murder and sentenced to 25 years to life are eligible for youth offender parole consideration during their 25th year of incarceration. (§ 3051, subds. (b)(3), (h).)

In People v. Williams (2020) 47 Cal.App.5th 475, review granted July 22, 2020, S262191 ( Williams ), our Supreme Court is reviewing whether section 3051(h) violates the equal protection clause of the Fourteenth Amendment “by excluding young adults convicted and sentenced for serious sex crimes under the one strike law (Pen. Code, § 667.61) from youth offender parole consideration, while young adults convicted of first degree murder are entitled to such consideration.” (July 22, 2020, S262229 [2020 Cal.Lexis 5000] [order granting review and limiting scope of review].)

The Court of Appeal is split on the question of whether section 3051(h) violates the equal protection rights of one strike offenders, and is thus unconstitutional on its face. To date, three courts have concluded that section 3051(h) does not violate the equal protection rights of one strike offenders ( Williams , supra , 47 Cal.App.5th 475; People v. Moseley (2021) 59 Cal.App.5th 1160 ( Moseley ); People v. Miranda (2021) 62 Cal.App.5th 162 ( Miranda )), while two other courts have reached the contrary conclusion. ( People v. Edwards (2019) 34 Cal.App.5th 183 ( Edwards ); In re Woods (2021) 62 Cal.App.5th 740 ( Woods ).)

Following Williams , Moseley , and this court's recent decision in Miranda , we conclude that section 3051 does not violate the equal protection rights of one strike offenders and is not unconstitutional on its face or as applied to all one strike offenders. There is a rational basis for excluding one strike offenders from youth offender parole eligibility under section 3051: the especially high risk that one strike offenders will recidivate if released on parole. Thus, we affirm the judgment and do not remand the matter to the sentencing court to make a record of information relevant to a future youth offender parole hearing for Jones. ( People v. Franklin (2016) 63 Cal.4th 261.)

II. FACTS AND PROCEDURE

A. Prosecution Evidence

In August 6, 2018, Jones went into a check cashing business in Ontario and robbed two of its employees of around $1, 200, while pointing a gun at them. Later that day, Jones went into a massage parlor in Colton. After he was taken into a massage room, Jones demanded money, at gunpoint, from two of the massage parlor's employees, Doe 1 and Doe 2. The three of them then went to the employee waiting room, where Doe 1 and Doe 2 gave Jones several hundred dollars. Jones dropped a bullet from a semiautomatic firearm on the floor of the employee waiting room.

Then, in the hallway next to the massage rooms, Jones attempted to rape Doe 2, then he forced Doe 2 to orally copulate him. Next, he forced Doe 2 into one of the massage rooms, where he raped Doe 2, then raped Doe 1. He was holding the gun the entire time.

B. Defense Evidence

Jonestestified that he committed the four robberies, but he claimed that he used a toy airsoft pistol in the robberies. He also claimed that his sex acts with Doe 1 and Doe 2 were consensual. He testified that Doe 2 offered him “two free dates” or “two free sexual intercourses”-with herself and Doe 1-in exchange for his agreeing not to take any more money from Doe 1 and Doe 2, and he accepted the offer.

C. Jones ' s Convictions and Sentence

A jury convicted Jones of four counts of second degree robbery (§ 211, counts 1-4), attempted forcible rape (§§ 664, subd. (a), 261, subd. (a)(2); count 5), forcible oral copulation (§ 287, subd. (c) (2)(A); count 6), and two counts of forcible rape (§ 261, subd. (a)(2); counts 7 & 8). The jury found that Jones personally used a firearm in each count. (§ 12022.53, subd. (b).)

In counts 6, 7, and 8, the jury found four one strike allegations true: (1) Jones kidnapped the victims, causing movement that substantially increased the risk of harm to the victims over and above the risk inherent in the offense (§ 667.61, subd. (d)(2)); (2) Jones kidnapped the victims (§ 667.61, subd. (e)(1)); (3) Jones personally used a firearm in each count (§ 667.61, subd. (e)(3)); and (4) Jones committed the offenses against more than one victim (§ 667.61, subd. (e)(4)).

Jones was sentenced to a determinate term of 32 years four months on his convictions and firearm enhancements in counts 1 through 5, plus an indeterminate term of 105 years to life on his one strike convictions and firearm enhancements in counts 6, 7 and 8 (three consecutive 25-year-to-life terms, plus three consecutive 10-year terms for the firearm enhancements).

III. DISCUSSION

A. Standard of Review

The Fourteenth Amendment to the United States Constitution and article I, section 7, of the California Constitution guarantee to all persons the equal protection of the law. Equal protection claims are reviewed de novo when, as here, they involve pure questions of law. ( People v. McKee (2012) 207 Cal.App.4th 1325, 1338.) In addition, facial constitutional challenges presenting pure questions of law may be raised, as here, for the first time on appeal. ( In re Shenna K. (2007) 40 Cal.4th 875, 885-886, 889.) Thus, here, although Jones did not raise a facial equal protection challenge to section 3052(h) in the trial court, including at sentencing, he has not forfeited the claim on appeal.

B. Section 3051 , Relevant Provisions

In its current form, section 3051 allows an imprisoned offender to seek early release on parole at a “youth offender parole hearing” if the offender was 25 years of age or younger on the date of the offender's “controlling offense.” (§ 3051, subds. (a), (b).) A controlling offense “means the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).)

As originally enacted in 2013, section 3051 applied only to juvenile offenders-those who committed their controlling offense while under 18 years of age. (Stats. 2013, ch. 312, § 4, eff. Jan. 1, 2014.) In enacting section 3051, the Legislature found and declared, “that, as stated by the United States Supreme Court in Miller v. Alabama (2012) 183 L.Ed.2d 407, ‘only a relatively small proportion of adolescents' who engage in illegal activity ‘develop entrenched patterns of problem behavior,' and that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,' including ‘parts of the brain involved in behavior control.' The Legislature recognizes that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.” (Stats. 2013, ch. 312, § 1, eff. Jan. 1, 2014.) The Legislature stated its intent “to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established.” ( Ibid .)

The Legislature further stated that its purpose in enacting the statute was, “to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions of the United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48 [( Graham )] and Miller v. Alabama (2012) [567 U.S. 460] [( Miller )].” (Stats. 2013, ch. 312, § 1.)

Since its 2013 enactment, section 3051 has twice been amended to extend the availability of youth offender parole consideration to offenders who committed a controlling offense while young adults. (See Williams , supra , 47 Cal.App.5th at p. 488.) In 2015, the statute was amended to apply to offenders who committed their controlling offense while under age 23 (Stats. 2015, ch. 471, § 1, eff. Jan. 1, 2016.) In 2017, the statute was again amended to extend youth offender parole consideration to offenders who committed their controlling offense while under age 26 (Stats. 2017, ch. 675, § 1, eff. Jan 1, 2018). The Legislature made these changes in light of scientific evidence that “certain areas of the brain, particularly those affecting judg[]ment and decision-making, do not develop until the early to mid-20s.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2.) The 2017 version of the statute was in effect when Jones committed his one strike offenses at age 19 in 2018.

Section 3051(h) excludes several categories of offenders from eligibility for youth offender parole consideration under section 3051: (1) one strike offenders, (2) third strike offenders, (3) offenders sentenced to life without the possibility of parole for a crime committed while over age 18, and (4) offenders who would otherwise be eligible for youth offender parole consideration under section 3051 but who, when age 26 or older, either committed an offense requiring malice aforethought or were sentenced to a life term. Thus, while the Legislature has twice amended section 3051 to expand eligibility of youth offender parole consideration to young adults through age 23, then to young adults through age 25, the Legislature has not seen fit to amend the statute to expand eligibility to young adult one strike offenders.

C. Analysis

1. All Young Adult Offenders Are Similarly Situated to Section 3051

To have success on an equal protection claim, a defendant is first required to show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. ( People v. Wilkinson (2004) 33 Cal.4th 821, 836.) Jones argues that one strike offenders and young adult first degree murderers serving sentences of 25 years to life are similarly situated to section 3051 for purposes of an equal protection challenge. The People disagree, arguing that the two groups are not similarly situated.

“At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification.” ( People v. Chatman (2018) 4 Cal.5th 277, 288 ( Chatman ); People v. McKee (2010) 47 Cal.4th 1172, 1207 [“[E]qual protection safeguards against the arbitrary denial of benefits to a certain defined class of individuals....”], superseded by statute as stated in People v. McCloud (2021) 63 Cal.App.5th 1.) Edwards concluded that young adult one strike offenders and young adult first degree murderers serving a 25-year-to-life sentence are similarly situated for purposes of section 3051. ( Edwards , supra , 34 Cal.App.5th at p. 195.)

Moseley reached the opposite conclusion, based on the general rule that offenders who commit different crimes are not similarly situated for purposes of challenging a law on equal protection grounds. ( Moseley , supra , 59 Cal.App.5th at p. 1169; People v. Macias (1982) 137 Cal.App.3d 465, 472-473.) Miranda and Woods agreed with Edwards and declined to follow Moseley on this point. ( Miranda , supra , 62 Cal.App.5th at pp. 182-183, fn. 13; Woods , supra , 62 Cal.App.5th at pp. 751-753.) Williams assumed that the two groups are similarly situated, for purposes of its analysis of whether the Legislature could have had a rational basis for excluding young adult one strike offenders from eligibility for youth offender parole consideration under section 3051, while extending that benefit to young adult first degree murderers sentenced to 25 years to life. ( Williams , supra , 47 Cal.App.5th at p. 489.)

On this point, we agree with Edwards , Miranda , and Woods : young adult one strike offenders and young adult first degree murderers sentenced to 25 years to life are similarly situated for purposes of section 3051. Our Supreme Court has rejected the claim that individuals convicted of different crimes are never similarly situated for purposes of a challenged law. ( Miranda , supra , 62 Cal.App.5th at pp. 182-183, citing People v. Hofsheier (2006) 37 Cal.4th 1185, 1199-1200 ( Hofsheier ), overruled on another ground in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 875 ( Johnson ).) “[T]here is and cannot be an absolute rule to this effect, because the decision of the Legislature to distinguish between similar criminal acts is itself a decision subject to equal protection scrutiny.” ( Hofsheier , at p. 1199, fn. omitted.)

For purposes of an equal protection challenge, the question is not whether two groups are similarly situated for all purposes but “ ‘ “whether they are similarly situated for purposesof the law challenged.”' ” ( Hofsheier , supra , 37 Cal.4th at pp. 1199-1200.) “In other words, we ask at the threshold whether two classes [or groups] that are different in some respects are sufficiently similar with respect to the laws in question challenged to require the government to justify its differential treatment of these classes under those laws.” ( People v. McKee , supra , 47 Cal.4th at p. 1202.)

Given the purpose of section 3051, young adult one strike offenders and young adult first degree murderers are sufficiently similar to require the government to justify its exclusion of young adult one strike offenders from the reach of section 3051. As explained, the purpose of section 3051 was “to establish a parole eligibility mechanism” for juvenile offenders [later extended to young adult offenders, with exceptions] that affords them “an opportunity to obtain release” on parole after they have shown that they have “rehabilitated and gained maturity....” (Stats. 2013, ch. 312, § 1.)

As Woods observed, “[t]his opportunity not only establishes a mechanism for ‘calibrat[ing] sentences in accordance with youthful offenders' diminished culpability' [citation], but also provides motivation for youthful offenders to focus on rehabilitation while serving their sentences.” ( Woods , supra , 62 Cal.App.5th at p. 752.) As the Legislature observed in amending section 3051 in 2017, “ ‘ “ ‘[a]n offender is more likely to enroll in school, drop out of a gang, or participate in positive programs if they can sit before a parole board sooner, if at all, and have a chance of being released.' ”' ” ( Ibid ., quoting Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, p. 3.)

Indeed, the goals and principles of section 3051 apply to all juvenile offenders and young adult offenders, regardless of their crimes. ( Miranda , supra , 62 Cal.App.5th at p. 183 [one strike offenders “are similarly situated with those who, through the commission of other crimes, are eligible for youth offender parole hearings.”].) “The legal and scientific foundations supporting the rationale that youths have diminished culpability, such as a youth's ‘ “lack of maturity and an underdeveloped sense of responsibility”' [citation ], and the goal of calibrating punishment to apply to both the youthful murderer and the youthful sex offender. The corollary principle that the increased maturity that comes with age will reduce the likelihood of repeat offenses also applies to both groups of offenders. The related goal of motivating imprisoned youthful offenders to rehabilitate also applies equally to both categories of youthful offenders.” ( Woods , supra , 62 Cal.App.5th at pp. 752-753.)

In expanding youth offender parole eligibility to young adults up to age 25, our Legislature recognized that Miller 's observations about juveniles apply to young adults up to age 25. (Stats. 2017, ch. 675, § 1; Miller , supra , 567 U.S. at p. 473 [“[N]one of what [ Graham ] said about children... is crime specific.”].) Thus, all young adult offenders are “sufficiently similar” with respect to section 3051 “to require the government to justify its differential treatment” of young adult one strike offenders under section 3051. ( People v. McKee , supra , 47 Cal.4th at p. 1202.)

The People argue that one strike offenders and first degree murderers are not similarly situated to section 3051 because, unlike first degree murderers, one strike offenders “must commit more than one criminal act.” Jones disagrees, arguing that not all of the circumstances that trigger a one strike sentence under section 667.61 involve the commission of multiple criminal acts. It is unnecessary to resolve this question. Even if one strike offenders necessarily commit more than one criminal act, and first degree murderers do not, this distinction would not sufficiently differentiate young adult one strike offenders from young adult first degree murderers sentenced to 25 years to life, for purposes of youth offender parole eligibility under section 3051.

In light of the stated purpose of section 3051, and the principles underlying its enactment, all young adult offenders are sufficiently similar with respect to the statute to require the government to justify its exclusion of young adult one strike offenders from the benefits of the statute, while extending those benefits to other young adult offenders, including young adult first degree murderers sentenced to 25 years to life.

2. Rational Basis Review

To prove that a statute violates equal protection, it is not enough for a defendant to simply show that the statute treats one or more similarly situated groups or classes of people differently. “Where, as here, the disputed statutory disparity implicates no suspect class or fundament right, ‘equal protection of the law is denied only when there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.”' [Citation.] ‘This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in “ ‘rational speculation' ” as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review “whether or not” any such speculation has “a foundation in the record.”' [Citation.] To mount a successful rational basis challenge, a party must ‘ “negative every conceivable basis”' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ‘ “wisdom, fairness, or logic.”' ” ( Johnson , supra , 60 Cal.4th at p. 881.) “When conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made. A classification is not arbitrary or irrational simply because there is an ‘imperfect fit between means and ends' ” ( People v. Turnage (2012) 55 Cal.4th 62, 77, quoting Heller v. Doe (1993) 509 U.S. 312, 321 ( Heller )) or “ ‘because it may be “to some extent both underinclusive and overinclusive.”' ” ( Johnson , supra , 60 Cal.4th at p. 887.)

“A classification in a statute is deemed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable.” ( Chatman , supra , 4 Cal.5th at p. 289.) The rational relationship test “sets a high bar before a law is deemed to lack even the minimal rationality necessary for it to survive constitutional scrutiny. Coupled with a rebuttable presumption that legislation is constitutional, this high bar helps ensure that democratically enacted laws are not invalidated merely based on a court's cursory conclusion that a statute's tradeoffs seem unwise or unfair.” ( Ibid .) As noted in Heller , rational basis review does not “authorize ‘the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.' ” ( Heller , supra , 509 U.S. at p. 319.)

(a) Summary of Existing Case Law

Edwards and Woods found no rational basis for excluding young adult one strike offenders from eligibility under section 3051 and, accordingly, held that section 3051(h) violates the equal protection rights of young adult one strike offenders. ( Edwards , supra , 34 Cal.App.5th at pp. 196-199; Woods , supra , 62 Cal.App.5th at pp. 753-760.) But the courts in Williams , Moseley , and Miranda found at least one rational basis for excluding young adult one strike offenders from the reach of section 3051 and rejected the defendants' equal protection challenges to the statute. ( Williams , supra , 47 Cal.App.5th at pp. 492-493; Moseley , supra , 59 Cal.App.5th at pp. 1169-1170; Miranda , supra , 62 Cal.App.5th at pp. 183-187.)

Edwards relied on People v. Contreras (2018) 4 Cal.5th 349, where our Supreme Court held that the 50-year-to-life and 58-year-to-life sentences of two juvenile nonhomicide offenders convicted of one strike offenses were functionally equivalent to LWOP sentences and, as such, violated the Eighth Amendment's prohibition on cruel or unusual punishment. ( Edwards , supra , 34 Cal.App.5th at p. 196-197; Contreras , at pp. 357-358, 368-369, 382.) Contreras relied on Graham, whichheld that the Eighth Amendment prohibits juvenile nonhomicide offenders from being sentenced to LWOP. ( Contreras , at p. 359; Graham , supra , 560 U.S. at p. 76.)

Although acknowledging that Contreras had no occasion to determine and did not determine whether the juvenile defendants' one strike sentences violated their equal protection rights, Edwards reasoned that “[d]icta” in Contreras “highlight[ed]” “a consistent theme in constitutional jurisprudence” that did resolve the two 19-year-old one strike offenders' equal protection challenge to section 3051(h). ( Edwards , supra , 34 Cal.App.5th at pp. 196-197.) That consistent theme in our state and federal high court jurisprudence is that nonhomicide offenders are “ ‘ “categorically less deserving of the most serious forms of punishment than are murderers.”' ” ( Edwards , at p. 196-197, quoting Contreras , supra , 4 Cal.5th at p. 366; Graham , supra , 560 U.S. at p. 69.) On this basis, Edwards found no rational basis for excluding one strike offenders from youth offender parole consideration under section 3051, while allowing such consideration for young adult first degree murders sentenced to 25 years to life. ( Edwards , supra , 34 Cal.App.5th at p. 197; see § 3051(h).)

Williams disagreed with Edwards 's reliance on Contreras , noting that Contreras (1) did not involve an equal protection claim, and (2) only addressed the Eighth Amendment “implications of juvenile offenders sentenced to LWOP.” ( Williams , supra , 47 Cal.App.5th at pp. 492-493.) Williams reasoned that the especially high risk of recidivism posed by one strike offenders, or “violent sexual offenders, ” was a rational basis for treating one strike offenders less favorably than some young adult murderers or others who commit serious crimes. ( Id . at p. 493.) As Williams noted, the Legislature had enacted “several comprehensive statutory schemes to curb recidivism” by violent sex offenders. ( Ibid. )

Moseley followed Williams inemphasizing that “significant public safety concerns” provide a rational basis for excluding one strike offenders from section 3051. ( Moseley , supra , 59 Cal.App.5th at pp. 1168-1170.) Moseley noted that the United States Supreme Court has recognized that, “ ‘[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.' ” ( Id . at p. 1170, citing McKune v. Lile (2002) 536 U.S. 24, 33.) Moseley also noted that “[o]ur Legislature has long expressed special concern for recidivism among sex offenders, ” and that “the ‘One Strike' law was enacted precisely to ensure that violent sex offenders ‘be separated from society to prevent reoffense.' ” ( Moseley , at p. 1170.)

After Moseley was decided, Miranda found two “closely related” rational bases for excluding young adult one strike offenders from section 3051: (1) the Legislature may have thought that extending youth offender parole eligibility to one strike offenders was “too large an additional reform for the current moment, ” and (2) the Legislature may have selectively extended section 3051's benefits “to some but not all as a means of testing whether youth offender parole hearings will benefit or harm society as a whole.” ( Miranda , supra , 62 Cal.App.5th at pp. 184-185.)

Miranda further reasonedthat section 3051(h) appeared “to have drawn the line at recidivism risk, ” and that this line was not “arbitrary or irrational.” ( Miranda , supra , 62 Cal.App.5th at p. 186.) “The One Strike law, for instance, reached only serious sex crimes, and the electorate, in passing an initiative amending the One Strike law, has found that sex offenders ‘have very high recidivism rates,' ‘are the least likely to be cured[, ] and [are] the most likely to reoffend.' (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, subd. (b), p. 127.) Similarly, the Three Strikes law has an ‘unambiguous purpose' of ‘provid[ing] greater punishment for recidivists.' ( People v. Davis (1997) 15 Cal.4th 1096, 1099.)” ( Miranda , at p. 186.)

Miranda also noted that Edwards “relied on the fact that the People had ‘cite[d] no evidence that violent rapists recidivate more than other felons,' ” ( Miranda , supra , 62 Cal.App.5th at p. 186, quoting Edwards , supra , 34 Cal.App.5th at p. 199), but the electorate's 2006's findings “reflect[ed] a contrary understanding, and their adoption may have additionally given the Legislature pause when considering whether to extend a benefit to one strike sex offenders.” ( Miranda , at p. 186.) Lastly, Miranda noted that Edwards did not “cite or rely on the United States Supreme Court's repeated admonition that ‘the legislature must be allowed leeway to approach a perceived problem incrementally.' ” ( Miranda , at p. 186.)

Woods , like Edwards , found no rational basis for excluding one strike offenders from eligibility under section 3051. ( Woods , supra , 62 Cal.App.5th at pp. 756-760.) Woods offered three reasons for its conclusion: (1) denying section 3051 parole eligibility to one strike offenders is “contrary to” the United States Supreme Court's and the California Supreme Court's “evaluations” that nonhomicide crimes are less deserving of the most serious forms of punishment than first degree murder; (2) one strike offenders and first degree murderers both recidivate and, “where similarly situated classes of offenders both recidivate, recidivism alone offers no rational basis for unequal treatment”; and (3) the recidivism risk rationale for excluding one strike offenders from eligibility under section 3051 is “inconsistent with the right of so-called ‘Two Strike' sex offenders to such hearings.” ( Woods , at pp. 757-759.)

Woods also pointed out that denying section 3051 eligibility to one strike offenders, while extending such eligibility to “youthful murder[ers], ” “creates an incentive for the rapist to kill the victim, ” and that the Legislature could not have intended to create “such a perverse incentive.” ( Woods , supra , 62 Cal.App.5th at p. 759.) Woods expressly declined to follow Miranda for two reasons: (1) “[t]he incrementalism or ‘testing' rationales... are not sufficient by themselves to sustain laws against an equal protection challenge, ” and (2) Woods rejected the “recidivism rationale”of Williams , for the reasons it explained. ( Woods , at pp. 758-760.)

(b) Analysis

We agree with Williams , Moseley , and Miranda: the long-acknowledged risk that one strike offenders will recidivate more often than any other type of offender is a rational basis for excluding them from youth offender parole eligibility under section 3051. Although the United States Supreme Court and the California Supreme Court have each proclaimed that nonhomicide offenders “ ‘are categorically less deserving of the most serious forms of punishment than are murderers' ” ( Contreras , supra , 4 Cal.5th at p. 366, quoting Graham , supra , 560 U.S. at p. 69), this does not mean that our Legislature had no conceivable rational basis for excluding one strike offenders from eligibility under section 3051, while extending such eligibility to young adult first degree murderers sentenced to 25 years to life. (Cf. Edwards , supra , 34 Cal.App.5th at p. 197; Johnson , supra , 60 Cal.4th at p. 881.)

As noted in Miranda, the Legislature appears to have “drawn a line at recidivism risk” in excluding one strike offenders, third strike offenders, and other specified categories of offenders from eligibility under section 3051. ( Miranda , supra , 62 Cal.App.5th at p. 186; see § 3051(h).) It cannot be said that this line is “arbitrary or irrational, ” particularly as applied to one strike offenders, in view of the electorate's 2006 findings that one strike offenders “ ‘have very high recidivism rates,' ‘are the least likely to be cured[, ] and [are] the most likely to reoffend.' ” ( Miranda , at p. 186.)

In noting that one strike offenders and murderers both recidivate, Edwards and Woods assumed one strike offenders recidivate in equal measure. ( Edwards , supra , 34 Cal.App.5th at p. 199 [“[T]he Attorney General cites no evidence that violent rapists recidivate more than other felons.”]; Woods , supra , 62 Cal.App.5th at pp. 757-758.) But as Moseley indicated, this assumption is unfounded, given the United States Supreme Court's recognition that sex offenders recidivate more often than any other type of offender, and our Legislature's “long expressed special concern” for sex offender recidivism. ( Moseley , supra , 59 Cal.App.5th at p. 1170.)

In relying on the Contreras and Graham courts' recognition that nonhomicide offenders are categorically less deserving of the most serious forms of punishment than are murderers, Edwards and Woods effectively questioned the “ ‘ “wisdom, fairness, or logic”' ” of the Legislature's exclusion of one strike offenders from eligibility under section 3051-the comparatively high levels of recidivism by violent sex offenders, including one strike offenders. ( Johnson , supra , 60 Cal.4th at p. 881.) This is inconsistent with the deferential strictures of rational basis review. It is not for the courts to second guess the wisdom, fairness, or logic of section 3051(h)'s exclusion of young adult one strike offenders but to determine whether the Legislature had any plausible basis for the exclusion. ( Chatman , supra , 4 Cal.5th at p. 289.)

In sum, the Legislature reasonably could have excluded young adult one strike offenders from eligibility for youth offender parole consideration under section 3051, while extending such eligibility to young adult first degree murderers sentenced to 25 years to life, based on its concern for the comparatively high level of recidivism among one strike offenders, as compared to all other offenders, including first degree murderers. For this reason, Jones's equal protection challenge to section 3051 lacks merit.

IV. DISPOSITION

The judgment is affirmed.

We concur: CODRINGTON Acting P. J.SLOUGH J.

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Notes:

Undesignated statutory references are to the Penal Code.

We only briefly summarize the evidence underlying Jones's convictions, given that the evidence is immaterial to his facial constitutional challenge to section 3051(h).

In his facial equal protection challenge to section 3051(h), Jones does not claim that the analysis differs under the California and federal Constitutions. Thus, we address his state and federal claims concurrently. ( In re C.B. (2018) 6 Cal.5th 118, 133, fn. 11.)

Section 3051 was further amended in 2019 to establish a “youth parole eligible date, ” to advance the dates on which eligible offenders are entitled to a youth offender parole hearing, and to authorize the Secretary of the Department of Corrections and Rehabilitation to adopt regulations advancing the youth parole eligible dates of certain eligible offenders. (Stats. 2019, ch. 557, § 2, eff. Jan 1, 2020.)

Section 3051(h) provides: “This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61, or to cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 year of age. This section shall not apply to an individual to whom this section would otherwise apply, but who, subsequent to attaining 26 years of age, commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in prison.”

Although the rationale and purpose of section 3051 arguably applies to all young adult offenders, “[i]n the end... we cannot insert our own policy concerns into the analysis.” ( People v. Acosta (2021) 60 Cal.App.5th 769, 780-781 [rejecting equal protection challenge to § 3051(h) by young adult sentenced to LWOP for special circumstance first degree murder, while recognizing that the purpose of § 3051 arguably applies to all juvenile and young adult offenders, and calling on the Legislature to reconsider § 3051(h)'s exclusion for young adult LWOP offenders]; In re Williams (2020) 57 Cal.App.5th 427, 436 [“In excluding LWOP inmates from youth offender parole hearings, the Legislature reasonably could have decided that youthful offenders who have committed such crimes-even with diminished culpability and increased potential for rehabilitation-are nonetheless still sufficiently culpable and sufficiently dangerous to justify lifetime incarceration.”].)

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