Filed 9/9/24 P. v. Covarrubias CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY COVARRUBIAS,

Defendant and Appellant.

B331599

(Los Angeles County

Super. Ct. No. SA053867)

APPEAL from an order of the Superior Court of 

Los Angeles County, Joseph J. Burghardt, Judge. Affirmed.

William L. Heyman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill and Steven E. Mercer, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

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Defendant and appellant Anthony Covarrubias appeals 

from an order denying his motion for a Franklin/Cook hearing 

under Penal Code section 1203.01.1 Covarrubias is serving two 

sentences of life without the possibility of parole (LWOP), plus 50 

years to life, for two special circumstance murders he committed 

when he was 20 years old. He argues a provision of the youth 

offender parole statute, section 3051, subdivision (h), violates the 

guarantees of equal protection under the United States and 

California Constitutions by excluding from parole consideration 

individuals sentenced to life without parole for offenses they 

committed between the ages of 18 and 25. Covarrubias also 

contends the section 3051, subdivision (h) exclusion causes his 

sentence to violate the California Constitution’s prohibition 

against cruel or unusual punishment. We reject Covarrubias’s 

contentions and affirm the trial court order.

FACTUAL AND PROCEDURAL BACKGROUND2

In September 2003, Covarrubias shot and killed Michael 

Bosh, and shot and mortally wounded Timothy Bosh, in a gangrelated confrontation. In January 2008, a jury found Covarrubias 

1 People v. Franklin (2016) 63 Cal.4th 261 (Franklin); In re 

Cook (2019) 7 Cal.5th 439 (Cook).

All further undesignated statutory references are to the 

Penal Code.

2 The facts underlying Covarrubias’s conviction are derived 

from the Court of Appeal opinion affirming his judgment of 

conviction, People v. Covarrubias (Feb. 5, 2010, B206164) 

[nonpub. opn.]. We previously granted Covarrubias’s request for 

judicial notice of three pages of the opinion.
3

guilty of two counts of special circumstance first degree murder 

(§§ 187, subd. (a), 190.2, subd. (a)(3) [multiple murder special 

circumstance]), and found that Covarrubias personally and 

intentionally used a firearm causing great bodily injury and 

death (§ 12022.53, subds. (c) & (d)). The jury also found that each 

of the offenses was committed for the benefit of a criminal street 

gang (§ 186.22, subd. (b)(1)(A)). In February 2008, Covarrubias 

was sentenced to two terms of life in prison without the 

possibility of parole, plus 50 years to life for the section 12022.53, 

subdivision (d) enhancements.

This court affirmed the judgment on direct appeal in 

February 2010.

In December 2022, Covarrubias, in propria persona, filed a 

motion for a Franklin/Cook hearing and for appointment of 

counsel. He argued that section 3051’s exclusion of 18 to 25-yearold defendants sentenced to life without parole violated equal 

protection guarantees. In May 2023, the court denied

Covarrubias’s motion, concluding he was not eligible for a youth 

offender parole hearing under section 3051 because he was 20 

years old when he committed the offenses for which he was 

serving life without parole.

Covarrubias timely appealed.

DISCUSSION

I. Section 3051

The California Legislature enacted section 3051 in light of 

United States Supreme Court decisions that recognized the 

lessened culpability and greater prospects for reform that 

distinguish juveniles from adult offenders. (See Stats. 2013, 

ch. 312, § 1; Graham v. Florida (2010) 560 U.S. 48 (Graham); 

Miller v. Alabama (2012) 567 U.S. 460 (Miller).) Section 3051 
4

requires the Board of Parole Hearings to conduct a “youth 

offender parole hearing” at specified times during the 

incarceration of certain youthful offenders. (See § 3051, 

subds. (a)(1) & (b); Franklin, supra, 63 Cal.4th at p. 277.)

Section 3051 has been amended since it was enacted. 

“When it was first enacted in 2013, the statute applied only to 

individuals who committed their crimes before the age of 18; the 

purpose of the statute was to align California law with thenrecent court decisions identifying Eighth Amendment limitations 

on life without parole sentences for juvenile offenders. In more 

recent years, however, the Legislature has expanded the statute 

to include certain young adult offenders as well. Under the 

current version of the statute, most persons incarcerated for a 

crime committed between ages 18 and 25 are entitled to a parole 

hearing during the 15th, 20th, or 25th year of their incarceration. 

(Pen. Code, § 3051, subd. (b).)” (People v. Hardin (2024) 15 

Cal.5th 834, 838 (Hardin).)

Further, “[i]n expanding section 3051 beyond the 

constitutional minimum age of 18 set out in Graham and Miller, 

the Legislature considered scientific evidence that neurological 

development, particularly in areas of the brain relevant to 

judgment and decisionmaking, continues beyond adolescence and 

into the mid-20’s. [Citation.] In 2017, motivated by these same 

considerations, the Legislature once again raised the age cut-off 

for section 3051 parole hearings, this time to age 25.” (Hardin, 

supra, 15 Cal.5th at p. 846.)

However, as the Hardin court explained, “not all youthful 

offenders are eligible for parole hearings. The statute excludes 

. . . offenders who are serving sentences of life in prison without 
5

the possibility of parole for a crime committed after the age of 

18.” (Hardin, supra, 15 Cal.5th at pp. 838–839.)

II. Section 3051, Subdivision (h), Does Not Violate 

Covarrubias’s Constitutional Right to Equal 

Protection

Covarrubias argues that section 3051 violates the equal 

protection guarantees of the United States and California 

Constitutions by (1) treating young adult offenders with LWOP 

sentences for special circumstances murder differently than 

young adult offenders serving non-LWOP sentences, and by 

(2) excluding young adult offenders sentenced to LWOP while 

including juvenile offenders sentenced to LWOP.

The California Supreme Court rejected Covarrubias’s first

argument in Hardin, supra, 15 Cal.5th at page 839, on the same 

day that Covarrubias filed his opening brief. In his reply brief, 

Covarrubias appears to concede that Hardin forecloses his first 

equal protection claim, however, he continues to assert the 

argument to preserve any potential federal remedies.

3 We agree

that Hardin is controlling and forecloses the argument.

In Hardin, our Supreme Court resolved a division among 

the Courts of Appeal as to whether section 3051, subdivision (h), 

violates the Fourteenth Amendment’s equal protection guarantee 

by irrationally discriminating against young adult offenders 

3 Although Hardin considered an equal protection claim 

under the United States Constitution and Covarrubias’s claim 

invokes the state and federal constitutions, our Supreme Court 

saw “ ‘ “no reason to suppose” that federal equal protection 

analysis would yield a result different from what would emerge 

from analysis of the state Constitution.’ [Citation.]” (Hardin, 

supra, 15 Cal.5th at p. 847, fn. 2.) Covarrubias does not argue 

otherwise.
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sentenced to LWOP for special circumstance murder. (Hardin, 

supra, 15 Cal.5th at p. 839.) In Hardin, as in this case, the 

appellant (Hardin) was serving an LWOP sentence for a special 

circumstance murder he committed between the ages of 18 and 

25. (Ibid.) The trial court denied Hardin’s motion for a 

Franklin/Cook hearing on the ground that he was ineligible for a 

youth offender parole hearing under section 3051. (Id. at p. 840.) 

Hardin argued the section 3051, subdivision (h) LWOP exclusion 

violates equal protection principles. (Ibid.)

Our high court concluded the section 3051, subdivision (h) 

LWOP exclusion of offenders whose crimes were committed after 

the age of 18 is not irrational or constitutionally invalid. 

(Hardin, supra, 15 Cal.5th at pp. 863–864.) The court reasoned 

the statute reflects the Legislature’s permissible balancing of 

“multiple considerations, including both concerns about 

increasing opportunities for release for young adults able to show 

growth and maturity and concerns about calibrating the level of 

punishment appropriate for certain serious criminal offenses.” 

(Id. at p. 857.) The court further rejected Hardin’s argument that 

“the Legislature could not rationally conclude that a conviction 

for special circumstance murder is a reliable indication of the 

seriousness of an offense or the culpability of the offender, such 

that it could rationally decide to exclude the offender from 

receiving the youth offender parole consideration to which other 

young adults are statutorily entitled.” (Id. at p. 859.)

The court referenced the many decisions holding that 

special circumstance murder is “sufficiently serious and morally 

culpable as to justify imposing the most severe sanctions 

available under the law, up to and including death,” and 

determined it could not say “that the decision to deny a parole 
7

hearing to an offender convicted of special circumstance murder 

is irrational, even if it is possible that in certain cases some might 

consider an individual offender convicted of multiple violent 

crimes more culpable, in a holistic sense, than an individual 

convicted of special circumstance murder.” (Hardin, supra, 15 

Cal.5th at pp. 859, 863.) The court thus concluded Hardin did

not demonstrate “that Penal Code section 3051’s exclusion of 

young adult offenders sentenced to life without parole is 

constitutionally invalid under a rational basis standard, either on 

its face or as applied to Hardin and other individuals who are 

serving life without parole sentences for special circumstance 

murder.” (Id. at p. 839.)

Hardin is binding authority we must follow. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 

Accordingly, we reject Covarrubias’s equal protection argument 

based on section 3051’s different treatment of young adult LWOP 

and non-LWOP offenders.

Covarrubias also argues that the section 3051, 

subdivision (h) LWOP exclusion violates state and federal equal 

protection guarantees because there is no rational basis to 

differentiate between young adults and juveniles who committed 

LWOP offenses.

As Covarrubias asserts, Hardin did not address this issue. 

(Hardin, supra, 15 Cal.5th at p. 841.) However, numerous

Courts of Appeal have addressed and rejected this argument and

determined there is a rational basis to treat juvenile and youth 

LWOP offenders differently in the context of section 3051, 

subdivision (h). (See, e.g., People v. Bolanos (2023) 87 

Cal.App.5th 1069, 1079, review granted Apr. 12, 2023, S278803;

People v. Hardin (2022) 84 Cal.App.5th 273, reversed on other 
8

grounds by Hardin, supra, 15 Cal.5th 834; People v. Acosta (2021) 

60 Cal.App.5th 769, 780–781 (Acosta); People v. Morales (2021) 67 

Cal.App.5th 326, 347–349; In re Murray (2021) 68 Cal.App.5th 

456, 463; People v. Sands (2021) 70 Cal.App.5th 193, 204

(Sands).)

As the court in Sands explained after noting that the 

rational basis test “sets a very high bar,” the “Legislature had a 

rational basis to distinguish between offenders with the same 

sentence (life without parole) based on their age. For juvenile 

offenders, such a sentence may violate the Eighth Amendment. 

[Citations.] But the same sentence does not violate the Eighth 

Amendment when imposed on an adult, even an adult under the 

age of 26. . . . [T]he Legislature could rationally decide to remedy 

unconstitutional sentences but go no further.” (Sands, supra, 70 

Cal.App.5th at p. 204.)

Further, as explained in Acosta, supra, 60 Cal.App.5th at 

pages 779 through 780, when discussing the amendment to 

section 3051 to include juvenile LWOP offenders, “Section 3051 

now affords a youth offender parole hearing to juvenile LWOP 

offenders to comply with Montgomery [v. Louisiana (2016) 577 

U.S. 190] without resorting to costly resentencing hearings. 

[Citation.] The Legislature declined to include young adult 

LWOP offenders in this amendment, presumably because 

Montgomery did not compel such treatment for young adults. 

The Legislature thus had a constitutionally sufficient basis for 

distinguishing juvenile LWOP offenders from young adult LWOP 

offenders.”

We agree with these courts. We reject Covarrubias’s equal 

protection argument based on the differing treatment of young 

adult and juvenile offenders under section 3051, subdivision (h).
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III. Section 3051, Subdivision (h), Does Not Subject

Covarrubias to Cruel or Unusual Punishment

Covarrubias next contends the Legislature’s denial of youth 

offender parole hearings to offenders who committed their crimes 

between the ages of 18 and 25 and are sentenced to LWOP 

renders his sentence cruel or unusual punishment under the 

California Constitution. As Covarrubias concedes, he did not 

raise this argument in the trial court. He therefore forfeited it. 

(People v. Baker (2018) 20 Cal.App.5th 711, 720 (Baker).) We 

nonetheless exercise our discretion to address the merits of his 

claim. (People v. Avila (2020) 57 Cal.App.5th 1134, 1145, fn. 12.)

Covarrubias acknowledges his LWOP sentences were

constitutionally valid when they were imposed. However, he

asserts that his sentences have since become cruel or unusual

because of “the Legislature’s . . . recognition of the reduced 

culpability of offenders who commit their offenses in question 

before they become 26 years old and the above . . . provisions for 

giving some such offenders youth offender parole hearings at 

some point.” Covarrubias appears to be referring to the 

amendments to section 3051, described in Hardin above. He 

asserts that while his LWOP sentences might not meet the test 

for disproportionate punishment standing alone (In re Lynch 

(1972) 8 Cal.3d 410, 424 (Lynch)), the sentences have been 

rendered cruel or unusual by the Legislature’s recognition that 

young adult offenders are less culpable than other adults.

4

4 In Lynch, the California Supreme Court identified a threepronged test for courts to use when reviewing disproportionality 

claims. (Lynch, supra, 8 Cal.3d at pp. 425–429.) “First, [it] 

examined the nature of the offense and the offender. [Citation.] 
10

We disagree. California courts have uniformly rejected the 

argument that the imposition of LWOP sentences on young 

adults violates state and federal protections against cruel and/or

unusual punishment for the same reasons such sentences are 

cruel and/or unusual when applied to juvenile offenders. 

Covarrubias acknowledges one such case, People v. Argeta (2012) 

210 Cal.App.4th 1478 (Argeta). In Argeta, a defendant who was 

18 years old when he committed his offenses argued that, given 

his youth, the United States and California Supreme Courts’ 

findings that such sentences are cruel and unusual when applied 

to juvenile offenders applied equally to him.5 The Argeta court 

rejected the argument, citing the United States Supreme Court’s 

Second, [it] compared the punishment with the penalty for more 

serious crimes in the same jurisdiction. [Citation.] Third, [it] 

compared the punishment to the penalty for the same offense in 

different jurisdictions.” (People v. Cartwright (1995) 39 

Cal.App.4th 1123, 1136 (Cartwright).)

5 Covarrubias argues that Argeta is inapposite because the 

length of Argeta’s sentence was not indicated in the opinion. 

While we do not dispute this point, it is not dispositive. The 

Court of Appeal in Argeta also considered whether Argeta’s 

codefendant’s sentence of 100 years, who was convicted of aiding 

and abetting Argeta in one count of murder and five counts of 

attempted murder, violated the state and federal constitutions. 

It appears that the Argeta court was also considering a similarly 

lengthy sentence for Argeta when it concluded that his sentence 

was not cruel and/or unusual under the California Constitution 

and Eighth Amendment. (Argeta, supra, 210 Cal.App.4th at 

p. 1482; see People v. Diaz (2023) 97 Cal.App.5th 1172, 1186 

[citing Argeta and describing it as holding that a “life sentence 

imposed on 18 year old for first degree murder not cruel and 

unusual under federal and state Constitutions”].)
11

reasoning that “while ‘[d]rawing the line at 18 years of age is 

subject . . . to the objections always raised against categorical 

rules . . .[, it] is the point where society draws the line for many 

purposes between childhood and adulthood.’ (Roper v. Simmons

(2005) 543 U.S. 551, 574 [ ]; [Citation.].)” (Argeta, at p. 1482.)

The Argeta court further noted “a line must be drawn at some 

point. We respect the line our society has drawn and which the 

United States Supreme Court has relied on for sentencing 

purposes, and conclude Argeta’s sentence is not cruel and/or 

unusual under Graham, Miller, or Caballero.”

6 (Argeta, at 

p. 1482.)

Covarrubias asserts Argeta is distinguishable because it 

was decided before the Legislature enacted section 3051, thus 

redrawing the “line referred to in Argeta . . . at 26 years of age, 

with respect to mental maturity . . . .” This argument is 

unavailing. The Legislature’s decision to extend parole 

consideration hearings to certain young adult offenders is not an 

indication that the underlying sentences those offenders face 

constitute cruel or unusual punishment in the absence of a parole 

hearing, or that they are otherwise constitutionally invalid.

Further, even after section 3051 was enacted and 

subsequently amended, numerous California courts have 

concluded LWOP sentences, or their functional equivalent, are 

not cruel and/or unusual punishment when imposed on young 

adult offenders. (E.g., Acosta, supra, 60 Cal.App.5th at pp. 781–

782 [rejecting Eighth Amendment challenge to LWOP sentence 

as applied to 21 year old with autism spectrum disorder]; People 

v. Montelongo (2020) 55 Cal.App.5th 1016, 1031–1032

6 Graham, supra, 560 U.S. 48; Miller, supra, 567 U.S. 460; 

People v. Caballero (2012) 55 Cal.4th 262.
12

(Montelongo) [rejecting Eighth Amendment challenge to LWOP 

sentence as applied to 18 year old and trial court’s failure to 

consider his youth]; People v. Abundio (2013) 221 Cal.App.4th 

1211, 1220–1221 [rejecting cruel or unusual punishment 

challenge under California Constitution to LWOP sentence as 

applied to 18 year old]; see also People v. Edwards (2019) 34 

Cal.App.5th 183, 190–192, reversed on other grounds by People v. 

Williams (Aug. 29, 2024, S262229) ___Cal.5th___ [2024 WL 

3978624, p. *3] [the functional equivalent of LWOP sentence is 

not cruel and/or unusual punishment for 19 year old under state 

and federal constitutions]; People v. Perez (2016) 3 Cal.App.5th 

612, 617–618 (Perez) [the functional equivalent of LWOP 

sentence is not cruel and unusual punishment for 20 year old].)

Covarrubias attempts to distinguish several cases 

addressing the issue, including Acosta, Montelongo, Perez,

7 and

In re Williams (2020) 57 Cal.App.5th 427 (Williams), the latter of 

which rejected an argument similar to the one Covarrubias

makes here, on the ground that they concern a claim under the

Eighth Amendment and his claim is under the California 

Constitution.

This distinction is without consequence in this context. 

“While the federal proscription concerns ‘cruel and unusual’ 

punishments, article I, section 17 of the California Constitution 

states in pertinent part that ‘[c]ruel or unusual punishment may 

not be inflicted.’ No distinction need be attached this difference 

from an analytic perspective, however.” (People v. Mantanez

7 While the Perez court specifically referenced the Eighth 

Amendment several times in its analysis, it also cited both the 

state and federal constitutions. (Perez, supra, 3 Cal.App.5th at 

p. 616.)
13

(2002) 98 Cal.App.4th 354, 358, fn. 7.) Although “[w]e construe 

this provision separately from its counterpart in the federal 

Constitution” (Cartwright, supra, 39 Cal.App.4th at pp. 1135–

1136), “[t]here is considerable overlap in the state and federal 

approaches. ‘Although articulated slightly differently, both 

standards prohibit punishment that is “grossly disproportionate” 

to the crime or the individual culpability of the defendant.’ 

[Citation.] ‘The touchstone in each is gross disproportionality.’ 

[Citation.]” (Baker, supra, 20 Cal.App.5th at p. 733; see also 

People v. Marshall (1990) 50 Cal.3d 907, 938.)

Covarrubias argues that the distinction in wording between 

“cruel or unusual” in the California Constitution and “cruel and 

unusual” in the Eighth Amendment is “purposeful and 

substantive rather than merely semantic,” citing People v. 

Anderson (1972) 6 Cal.3d 628, 634–637, superseded on other 

grounds by the California Constitution, article I, section 27. Yet, 

Covarrubias fails to explain why the difference between the 

Eighth Amendment’s use of “and” and the California 

Constitution’s use of “or” has any significance in this case and 

thereby renders the analysis in the cases cited above, based on 

“gross disproportionality,” inapplicable. (Baker, supra, 20 

Cal.App.5th at p. 733.)

We thus agree with the court in Williams, supra, 57 

Cal.App.5th at pages 437 through 439. In addressing the 

appellant’s argument that an LWOP sentence imposed on any 21-

year-old defendant constitutes cruel and unusual punishment, 

the Williams court observed, “[O]ur Supreme Court has 

essentially rejected that very argument in the context of the 

death penalty. In People v. Flores (2020) 9 Cal.5th 371, 429 [ ],

the court acknowledged research that youths ages 18 to 21 share 
14

many of the same cognitive and developmental deficiencies as 

adolescents under age 18. Quoting from the court’s earlier 

opinion in People v. Powell (2018) 6 Cal.5th 136, 192 [ ], the court 

nonetheless held that 18 is ‘ “the age at which the line for death 

eligibility ought to rest.” ’ If the Eighth Amendment does not 

prohibit a sentence of death for 21 year olds, then most assuredly, 

it does not prohibit the lesser LWOP sentence. [Fn. omitted.]” 

(Williams, at p. 439; see also People v. Tran (2022) 13 Cal.5th 

1169, 1234–1235 [imposing the death penalty on 20 year old does 

not constitute cruel and unusual punishment even considering 

scientific research and expansion of § 3051].) As discussed, a 

punishment violates both the United States and California

Constitutions if it is “ ‘ “grossly disproportionate.” ’ ” (See Baker, 

supra, 20 Cal.App.5th at p. 733.) Covarrubias suggests no reason 

why the reasoning of Williams would not also apply to his claim 

under the California Constitution given the “considerable 

overlap” of the federal and state prohibitions against cruel and/or 

unusual punishment. (Ibid.)

Accordingly, we reject Covarrubias’s argument that the 

section 3051, subdivision (h) LWOP exclusion renders his 

sentence cruel or usual punishment in violation of the California 

Constitution. (See Williams, supra, 57 Cal.App.5th at p. 439; 

Argeta, supra, 210 Cal.App.4th at p. 1482.)
15

DISPOSITION

The order denying Covarrubias’s motion for a 

Franklin/Cook proceeding is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

ADAMS, J.

We concur:

EGERTON, Acting P. J.

BERSHON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.