Filed 9/20/22

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK ELI HEARD,

Defendant and Appellant.

 D079237

 (Super. Ct. No. SCD193832)

APPEAL from an order of the Superior Court of San Diego County, 

John M. Thompson, Judge. Reversed and remanded with instructions.

Eric R. Larson under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Steve Oetting Assistant Attorney General, Melissa Mandel 

and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.

INTRODUCTION

Frank Eli Heard is serving a sentence of 23 years plus 80 years to life

for two counts of attempted willful, deliberate and premeditated murder for a 

drive-by shooting he committed at age 15, and one count of voluntary 
2

manslaughter for a homicide he committed just after he turned 16. After 15 

years of incarceration, he petitioned the trial court to recall his sentence and 

resentence him to a lesser sentence under Penal Code1 section 1170, former 

subdivision (d)(2) (now subdivision (d)(1)). Under this provision, a juvenile 

offender who “was sentenced to imprisonment for life without the possibility 

of parole” and has been incarcerated for at least 15 years “may submit to the 

sentencing court a petition for recall and resentencing.” (§ 1170, former 

subd. (d)(2)(A)(i), now subd. (d)(1)(A).) The trial court denied Heard’s 

petition, finding him ineligible for relief because he was not sentenced to an 

explicitly designated term of life without the possibility of parole.2

Heard appeals, presenting two issues of first impression. First, he

asserts the resentencing provision should be interpreted to apply not only to 

juvenile offenders sentenced to explicitly designated terms of life without 

parole, but also to a juvenile offender, like him, who have been sentenced to 

multiple terms that are the functional equivalent of life without parole. 

Second and alternatively, Heard asserts a contrary interpretation of the 

resentencing provision would violate his constitutional right to equal 

protection of the laws. We reject his first contention. Instead, we interpret 

section 1170, subdivision (d)(1)(A), to limit eligibility to petition for recall and 

resentencing to juvenile offenders sentenced to explicitly designated life 

without parole terms. But we conclude denying juvenile offenders, who were 

sentenced to the functional equivalent of life without parole, the opportunity 

1 Further unspecified statutory references are to the Penal Code.

2 For brevity, we subsequently refer to life without the possibility of 

parole as “life without parole.”
3

to petition for resentencing violates the guarantee of equal protection. We 

therefore reverse the trial court’s order and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

I.

Heard’s Convictions and Sentence3

In January 2005, when Heard was 15 years old, he and three fellow 

members of the West Coast Crips gang were riding in a car when the front 

passenger shot at a group of rival Blood gang members on the street. In the 

volley of bullets, two persons were injured, but not killed. Heard admitted to 

the police he was in possession of a gun at the time of the shooting. When the 

gun was recovered, it had Heard’s fingerprints on it and was determined to 

have fired shell casings recovered from the crime scene. The evening of the 

shooting, Heard bragged to a friend that he “got a slob,” which is a derogatory 

term for a Blood. In a videotape of a party, made a few days before the 

3 Our summary of the underlying factual and procedural background is 

taken in part from two prior decisions of this court. (People v. Heard (Feb. 24, 

2009, D052492) [nonpub. opn.]; In re Heard (2014) 223 Cal.App.4th 115, 

review granted April 30, 2014, S216772, matter transferred Aug. 17, 2016, 

judg. vacated and cause remanded Sept. 12, 2016, D063181.) Although 

People v. Heard is an unpublished opinion, and our published opinion in In re 

Heard was subsequently vacated, we may appropriately rely on them for 

information about the background of this case. Both opinions were submitted 

to the trial court as exhibits to Heard’s recall and resentencing petition, and 

on January 13, 2022, this court granted Heard’s unopposed request for 

judicial notice of both opinions as well as the docket in case number D063181 

pursuant to California Rules of Court, rule 8.252(a), and Evidence Code 

sections 452, subdivision (d), and 459. (See, e.g., Pacific Gas & Electric Co. v. 

City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10 

[observing it was appropriate for the appellate court to cite an unpublished 

decision “to explain the factual background of the case and not as legal 

authority”]; accord, Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443, 

fn. 2.) 
4

shooting, Heard was holding what appeared to be the same gun used in the 

shooting and performing a rap song that glorified a prior killing of Bloods. 

In July 2005, less than two weeks after Heard turned 16, witnesses saw 

him and others walk up to a young man standing on a street corner. After 

exchanging words with the man, Heard pulled out a handgun and shot him in 

the head, killing him. It was later determined that Heard believed the victim 

was on the street corner selling drugs in his gang’s territory.4

Heard was charged with two counts of attempted willful, deliberate and 

premeditated murder (§§ 664, 187, subd. (a); counts 1 and 2), and one count of 

murder (§ 187, subd. (a); count 3). Each offense was alleged to have been 

committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) and 

with the personal use of a firearm (§ 12022.53, subds. (c), (d), & (e)(1)). Count 

3 was severed and Heard went to a jury trial on counts 1 and 2. The jury 

found him guilty of both counts of attempted murder as charged and found 

true the firearm use and gang allegations. Heard then entered a plea 

agreement on count 3, in which he pled guilty to the lesser included offense of 

voluntary manslaughter (§ 192, subd. (a)) and admitted a gang enhancement 

allegation (§ 186.22, subd. (b)(1)), as well as a firearm enhancement 

(§ 12022.5, subd. (a)). 

Heard’s sentencing hearing took place in January 2008. In a 

sentencing memorandum filed before the hearing, Heard argued the 

imposition of a life sentence would be cruel and unusual punishment in 

violation of the Eighth Amendment. He urged the court to consider his youth 

and capacity to mature and change, limited intelligence, and that he was 

4 Our description of this homicide is taken from the probation report, 

which was included in the clerk’s transcript for this appeal.
5

introduced to criminal street gangs as a toddler, when making its sentencing 

decision. At the sentencing hearing, Heard’s trial counsel continued to 

maintain that it would be unconstitutional to sentence Heard to prison for 

life. 

The trial court disagreed. It found there was “no constitutional 

infirmity for the imposing of a life sentence for an attempted premeditated 

murder,” and that the Legislature had approved prosecuting juveniles as 

adults in response to an increase in acts of gang violence by juvenile gang 

members. The court stated Heard was the “poster child for the legislative 

intervention with regard to gangs.” It concluded there was “no constitutional 

infirmity in the application of either a life sentence as to the counts or . . . life 

sentences as to the enhancements.” The court then sentenced Heard to a

total prison term of 23 years plus 80 years to life.5 

Heard appealed his attempted murder convictions, and this court 

affirmed the judgment in 2009. (People v. Heard, supra, D052492, review 

denied May 20, 2009, S171378.) Heard filed a petition for a writ of habeas 

corpus with the superior court, claiming his prison sentence was excessive 

because he would not be eligible for parole during his lifetime. The superior 

court denied the petition. Heard then filed a petition for a writ of habeas 

corpus with this court in 2012, raising again the argument that his sentence 

5 On counts 1 and 2, Heard was sentenced to 15 years to life on each

attempted premeditated murder and a consecutive 25 years to life for the 

firearm under section 12022.53, subdivision (d), on each offense. The total 

term on both counts was 80 years to life. On count 3, Heard was sentenced to 

nine years for the voluntary manslaughter, plus four years for the firearm 

under section 12022.5, subdivision (a), another 10 years for the gang 

enhancement under section 186.22, for a total determinate term of 23 years. 

The court elected to run the sentences for counts 1, 2, and 3 consecutively. 
6

was excessive. As we later discuss in further detail, in January 2014, we 

granted the petition and remanded the case for resentencing. (In re Heard, 

supra, D063181.) In the intervening years since Heard was sentenced in 

2008, a sea change in juvenile sentencing law had occurred, beginning with 

the United States Supreme Court’s decision in Roper v. Simmons (2005) 543 

U.S. 551 (Roper). We discuss those changes in juvenile sentencing law next, 

before returning to the procedural history of Heard’s case.

II.

Changes in Juvenile Sentencing Law

A. Decisional Law

Beginning with Roper in 2005, the United States Supreme Court held 

the Eighth Amendment categorically bars imposition of the death penalty on 

offenders who were under 18 when their crimes were committed. (Roper, 

supra, 543 U.S. at pp. 578–579.) In a series of decisions that followed, the 

United States Supreme Court and California Supreme Court placed further

limits on the punishment that may constitutionally be imposed on juvenile 

offenders. These decisions arose in large part from advances in research on 

adolescent brain development, and the related, growing recognition that 

juveniles “have diminished culpability and greater prospects for reform” and 

are therefore “constitutionally different from adults for purposes of 

sentencing.” (Miller v. Alabama (2012) 567 U.S. 460, 471 (Miller), discussing 

Roper, supra, 543 U.S. 551 and Graham v. Florida (2010) 560 U.S. 48 

(Graham).) 

Five years after Roper, the United States Supreme Court held in 

Graham the Eighth Amendment categorically bars the imposition of a

sentence of life without parole on a juvenile offender who did not commit 

homicide. (Graham, supra, 560 U.S. at p. 82.) The Graham court observed: 
7

“As compared to adults, juveniles have a ‘ “lack of maturity and an 

underdeveloped sense of responsibility” ’; they ‘are more vulnerable or 

susceptible to negative influences and outside pressures, including peer 

pressure’; and their characters are ‘not as well formed.’ [Citation.] These 

salient characteristics mean that ‘[i]t is difficult even for expert psychologists 

to differentiate between the juvenile offender whose crime reflects 

unfortunate yet transient immaturity, and the rare juvenile offender whose 

crime reflects irreparable corruption.’ [Citation.] Accordingly, ‘juvenile 

offenders cannot with reliability be classified among the worst offenders.’ ” 

(Id. at p. 68.) 

The Graham court further observed that life without parole is “ ‘the 

second most severe penalty permitted by law’ ” and it is “an especially harsh 

punishment for a juvenile [offender],” who “will on average serve more years 

and a greater percentage of his life in prison than an adult offender.” 

(Graham, supra, 560 U.S. at pp. 69, 70.) It “likened a life without parole 

sentence for nonhomicide [juvenile] offenders to the death penalty itself, 

given their youth and the prospect that, as the years progress, juveniles can 

reform their deficiencies and become contributing members of society.” 

(People v. Caballero (2012) 55 Cal.4th 262, 266 (Cabellero), citing Graham, at 

pp. 69−70.) To avoid violating the Eighth Amendment, the high court held 

that states “need not guarantee the [nonhomicide] offender eventual release” 

but must provide “some realistic opportunity to obtain release.” (Graham, at 

p. 82.)

In Miller, the United States Supreme Court extended Graham’s

reasoning to homicide cases and held the Eighth Amendment forbids 

sentencing schemes that make life without parole the mandatory punishment 

for a juvenile convicted of homicide. (Miller, supra, 567 U.S. at p. 489.) The 
8

Court reaffirmed that “the distinctive attributes of youth diminish the 

penological justifications for imposing the harshest sentences on juvenile 

offenders, even when they commit terrible crimes.” (Id. at p. 472.) It

explained that “mandatory penalty schemes . . . remov[e] youth from the 

balance” and “prohibit a sentencing authority from assessing whether the 

law’s harshest term of imprisonment proportionately punishes a juvenile 

offender. That contravenes Graham’s (and also Roper’s) foundational 

principle: that imposition of a State’s most severe penalties on juvenile 

offenders cannot proceed as though they were not children.” (Id. at p. 474.) 

The Miller court did not extend Graham’s categorical ban to homicide 

cases and foreclose life without parole terms for juvenile homicide offenders, 

but it held the sentencing court must have discretion to impose a lesser 

sentence. (Miller, supra, 567 U.S. at p. 480.) The Court outlined mitigating 

factors relating to youth that must be considered by the sentencing court 

before committing a juvenile to prison for life without parole,6 and cautioned 

6 These factors are: “(1) ‘a juvenile offender’s “chronological age and its 

hallmark features—among them, immaturity, impetuosity, and failure to 

appreciate risks and consequences” ’; (2) ‘ “the family and home environment 

that surrounds [the juvenile]—and from which he cannot usually extricate 

himself—no matter how brutal or dysfunctional” ’; (3) ‘ “the circumstances of 

the homicide offense, including the extent of [the juvenile defendant’s] 

participation in the conduct and the way familial and peer pressures may 

have affected him” ’; (4) ‘whether the offender “might have been charged and 

convicted of a lesser offense if not for incompetencies associated with youth—

for example, his inability to deal with police officers or prosecutors (including 

on a plea agreement) or his incapacity to assist his own attorneys” ’; and (5) 

‘ “the possibility of rehabilitation.” ’ ” (In re Kirchner (2017) 2 Cal.5th 1040, 

1054 (Kirchner).)
9

that the “appropriate occasions for sentencing juveniles to this harshest 

possible penalty will be uncommon.”7 (Id. at pp. 477–479.) 

In Caballero, the California Supreme Court held that an aggregate 110-

year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses 

contravenes Graham’s mandate against cruel and unusual punishment under 

the Eighth Amendment. (Caballero, supra, 55 Cal.4th at pp. 265, 268–269.) 

In so holding, our high court rejected the People’s claim that “a cumulative 

sentence for distinct crimes does not present a cognizable Eighth Amendment 

claim” because each individual sentence included the possibility of parole 

within the juvenile offender’s lifetime. (Id. at p. 267.) The juvenile offender 

in Caballero was convicted of three counts of attempted murder, committed 

for the benefit of a criminal street gang and with the personal use of a 

firearm. (Id. at p. 265.) The Court observed the juvenile “will become parole 

eligible over 100 years from now.” (Id. at p. 268 [explaining that under 

section 3046, subdivision (b), the defendant would be required to serve a 

minimum of 110 years before becoming parole eligible].) The Court called 

this a “term-of-years sentence that amounts to the functional equivalent of a 

life without parole sentence.” (Caballero, at p. 268.) It then concluded that 

under Graham, “sentencing a juvenile offender for a nonhomicide offense to a 

term of years with a parole eligibility date that falls outside the juvenile 

7 In Montgomery v. Louisiana (2016) 577 U.S. 190, 212 (Montgomery), 

the Court held the holding of Miller was retroactive because it announced a 

substantive rule of constitutional law. The Montgomery court also held that 

states could remedy Miller error⎯that is, sentencing a juvenile to life 

without parole without considering the youth-related mitigating factors 

outlined in Miller (see footnote 6, ante)⎯by giving juvenile homicide 

offenders parole hearings, rather than resentencing them. (Montgomery, at 

p. 212.)
10

offender’s natural life expectancy constitutes cruel and unusual punishment 

in violation of the Eighth Amendment.” (Caballero, at p. 268.)

B. Statutory Law

As decisional law on the punishment of juvenile offenders was 

developing, the Legislature enacted two provisions that are relevant to this 

case. 

1. Senate Bill No. 9 (2011–2012 Reg. Sess.) (Senate Bill 9) Adds 

Former Subdivision (d)(2), Now Subdivision (d)(1), to Section 

1170

Effective January 1, 2013, Senate Bill 9 added former subdivision (d)(2) 

to section 1170. (See Stats. 2012, ch. 828, § 1.) Senate Bill 9 “was introduced 

in the Legislature after Graham, but before Miller” and “was inspired by 

concerns regarding sentences of life without parole for juvenile offenders.” 

(Kirchner, supra, 2 Cal.5th at p. 1049.) It created “a procedural mechanism 

for resentencing of defendants who were under the age of 18 at the time of 

the commission of their offenses and who were given [life without parole] 

sentences.” (People v. Willover (2016) 248 Cal.App.4th 302, 310.) Under this 

provision, “[w]hen a defendant who was under 18 years of age at the time of 

the commission of the offense for which the defendant was sentenced to 

imprisonment for life without the possibility of parole has been incarcerated 

for at least 15 years, the defendant may submit to the sentencing court a 

petition for recall and resentencing.” (§ 1170, former subd. (d)(2)(A)(i), now 

subd. (d)(1)(A).) 

In the petition, “the defendant must describe his or her remorse, relate 

his or her work toward rehabilitation, and state that a qualifying 

circumstance is true.” (Kirchner, supra, 2 Cal.5th at pp. 1049–1050.) The 

qualifying circumstances are (1) the defendant “was convicted pursuant to

felony murder or aiding and abetting murder provisions of law”; (2) the 
11

defendant does not have juvenile felony adjudications for assault or other 

violent felonies prior to the offense that resulted in the sentence being 

considered for recall; (3) the defendant committed the offense with at least 

one adult codefendant; or (4) the defendant has performed acts that tend to 

indicate rehabilitation or the potential for rehabilitation. (§ 1170, former 

subd. (d)(2)(B)(i)–(iv), now subd. (d)(1)(A)–(D).) “If the court finds by a 

preponderance of the evidence that one or more of the qualifying 

circumstances in the petition are true, the court must recall the defendant’s 

sentence and hold a hearing to resentence the defendant.” (Kirchner, at 

p. 1050.) 

At the resentencing hearing, the court is permitted to consider factors 

enumerated in the statute, along with “ ‘any other criteria that the court 

deems relevant to its decision.’ ” (Kirchner, supra, 2 Cal.5th at p. 1050.) 

“Upon conducting this assessment, ‘[t]he court shall have the discretion to 

resentence the defendant in the same manner as if the defendant had not 

previously been sentenced, provided that the new sentence, if any, is not 

greater than the initial sentence.’ ” (Ibid.) If the sentence is not recalled or 

the defendant is resentenced to imprisonment for life without the possibility 

of parole, the defendant may submit another petition for recall and 

resentencing after 20 and 24 years of incarceration. (§ 1170, former subd. 

(d)(2)(H), now subd. (d)(10).) 

In Kirchner, the California Supreme Court held this statutory 

resentencing procedure is not adequate to cure Miller error. (Kirchner, 

supra, 2 Cal.5th at pp. 1043, 1052–1056.) The Court explained the procedure

was “originally . . . developed prior to the decision in Miller, . . . was not 

designed to provide a remedy for this type of error, and . . . is not well suited 

to serve this purpose.” (Id. at p. 1052.) It further explained the procedure 
12

“provides only a selective and qualified remedy, the application of which is 

ultimately premised on an inquiry that may, but does not necessarily, overlap 

with the one demanded under Miller.” (Id. at pp. 1054–1055.)

Since its original enactment, former subdivision (d)(2) of section 1170 

has been modified, but the modifications are relatively minor. Relevant to 

this appeal, the provision that specifies which defendants are eligible to file a 

petition for recall and resentencing (§ 1170, former subd. (d)(2)(A)(i), now 

subd. (d)(1)(A)) has not been changed. Effective January 1, 2022, subdivision 

(d)(2) of section 1170 was redesignated as subdivision (d)(1) of section 1170. 

(Stats. 2021, ch. 731, § 1.3.) 

2. Senate Bill No. 260 (2013-2014 Reg. Sess.) (Senate Bill 260)

Effective January 1, 2014, Senate Bill 260 added sections 3051, 3046, 

subdivision (c), and 4801, subdivision (c), to the Penal Code. (Stats. 2013, 

ch. 312, §§ 3, 4 & 5; see People v. Franklin (2016) 63 Cal.4th 261, 276–277 

(Franklin) [discussing this history].) Senate Bill 260 was passed “explicitly to 

bring juvenile sentencing into conformity with Graham, Miller, and 

Caballero.” (Franklin, at p. 277.) 

“At the heart of [Senate Bill 260] was the addition of section 3051, 

which requires the Board [of Parole Hearings (Board)] to conduct a ‘youth 

offender parole hearing’ during the 15th, 20th, or 25th year of a juvenile 

offender’s incarceration. [Citation.] The date of the hearing depends on the 

offender’s ‘ “[c]ontrolling offense,” ’ which is defined as ‘the offense or 

enhancement for which any sentencing court imposed the longest term of 

imprisonment.’ ” (Franklin, supra, 63 Cal.4th at p. 277.) As originally 

enacted, section 3051 created a schedule of youth offender parole hearings for 

juvenile offenders sentenced to a determinate term, a life term of less than 25 
13

years to life, or a life term of 25 years to life.8 (Stats. 2013, ch. 312, § 4; 

§ 3051, subd. (b)(1)‒(3).) 

In Franklin, the California Supreme Court considered the effect of 

Senate Bill 260 on a juvenile’s claim of Miller error. The defendant in 

Franklin was 16 years old when he shot and killed another teenager. 

(Franklin, supra, 63 Cal.4th at p. 269.) He was convicted of first degree 

murder with a corresponding firearm enhancement, for which he received 

two consecutive 25-year-to-life terms. (Id. at p. 271.) Our high court held 

“just as Graham applies to sentences that are the ‘functional equivalent of a 

life without parole sentence’ [citation], so too does Miller apply to such 

functionally equivalent sentences.” (Id. at p. 276.) The Court went on to 

find, however, that Senate Bill 260 mooted the defendant’s Eighth

Amendment challenge to his sentence under Miller. It explained that 

although the defendant remained bound by his original sentence, by 

operation of Senate Bill 260, the defendant “is now serving a life sentence 

that includes a meaningful opportunity for release during his 25th year of 

incarceration. Such a sentence is neither [life without parole] nor its 

functional equivalent. Because [the defendant] is not serving [a life without 

parole] sentence or its functional equivalent, no Miller claim arises here.” 

(Franklin, at pp. 279–280.) 

8 Section 3051 originally excluded juvenile offenders sentenced to life 

without parole from receiving youth offender parole hearings. (See Franklin, 

supra, 63 Cal.4th at p. 278.) After the California Supreme Court held in 

Kirchner, supra, 2 Cal.5th 1040 that section 1170, former subdivision (d)(2),

was inadequate to cure Miller error, the Legislature amended section 3051 to 

provide youth offender parole hearings to juvenile offenders sentenced to life 

without parole. (See § 3051, subd. (b)(4), added by Stats. 2017, ch. 684, § 1.5.) 
14

At the same time, our high court recognized the defendant’s sentencing 

hearing may have resulted in a record that was “incomplete or missing 

mitigation information [relating to his youth]” because such information was 

not considered relevant at the time he was sentenced. (Franklin, supra, 63 

Cal.4th at pp. 282–283.) Accordingly, it remanded the matter for the trial 

court to determine “whether [the defendant] was afforded sufficient 

opportunity to make a record of information relevant to his eventual youth 

offender parole hearing,” and, if not, to hold a hearing at which the parties 

could present evidence bearing on “youth-related factors” for later 

consideration by the Board. (Id. at p. 284.) This hearing is now commonly 

referred to as a Franklin proceeding. (See In re Cook (2019) 7 Cal.5th 439, 

450.) 

Against this backdrop of changes in juvenile sentencing law, we return 

to Heard’s petition for writ of habeas corpus.

III.

Heard’s Petition for Writ of Habeas Corpus

As noted, in December 2012, Heard filed a petition for writ of habeas 

corpus with this court in which he argued his sentence was excessive under 

the Eighth Amendment. In January 2014, we granted the petition and 

remanded the case for resentencing. (In re Heard, supra, D063181.) Relying 

on Graham, Miller, and Caballero, we held Heard’s sentence was “a de facto 

life [without parole] sentence,” the majority of which was attributable to 

nonhomicide offenses, and it therefore violated the Eighth Amendment. 

(Ibid.) Lacking the benefit of Montgomery and Franklin, we rejected the 

People’s contention that Heard’s eligibility for a parole hearing under section 

3051 negated the need for resentencing. 
15

The People petitioned for review with the California Supreme Court. 

In April 2014, the Court granted the petition and deferred action pending the 

resolution of two other cases (In re Alatriste, S214652, and In re Bonilla, 

S214960). In May 2016, while Heard’s case was still pending, the California

Supreme Court decided Franklin, supra, 63 Cal.4th 261. In August, our high

court transferred Heard’s case to this court with directions to vacate our 

January 2014 disposition and to issue an order to show cause to the secretary 

of the California Department of Corrections and Rehabilitation (Department 

of Corrections), returnable to the superior court, why Heard was not entitled 

to make a record of “ ‘mitigating evidence tied to his youth.’ ([Franklin, 

supra, 63 Cal.4th at pp. 268–269, 283–284].)” In September 2016, we vacated 

our opinion in case number D063181 and issued an order to show cause as 

directed.9 

Heard received his Franklin proceeding in August 2017. After 

reviewing documents submitted by Heard and the People, the trial court 

determined it had not received all relevant mitigating evidence at the 

sentencing hearing.10 The court ordered the parties’ documents to be filed 

with the court under seal and submitted to the Department of Corrections.

9 Because this opinion was vacated, it has no effect as law of the case. 

(See Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 

Cal.App.5th 757, 773.)

10 On our own motion, we take judicial notice of the trial court’s order, 

which appears on the docket in case number D063181 and is part of our file 

in that case. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); see Forbes v. 

County of San Bernardino (2002) 101 Cal.App.4th 48, 50–51.)
16

IV.

Heard’s Petition for Recall and Resentencing

In March 2021, Heard filed in the trial court a petition for recall and 

resentencing under section 1170, former subdivision (d)(2)(A). He asserted he 

was eligible to petition for resentencing because his sentence was a de facto 

life without parole sentence. He claimed he also met the other statutory 

criteria for resentencing, including that he had been incarcerated for over 15 

years, was 15 years old when he committed the attempted murders, and his 

co-defendant was an adult at the time of these offenses.11 Citing exhibits 

attached to his petition, he also asserted that he was no longer an active gang 

member, had completed multiple self-help and educational programs in 

prison, and was working as a mentor to younger inmates.

On June 28, 2021, in a written order, the trial court denied Heard’s 

petition on the ground that he was statutorily ineligible to petition for 

resentencing. The court reasoned that resentencing under section 1170, 

former subdivision (d)(2)(A)(i), was specifically made available only to those 

defendants “sentenced to imprisonment for LWOP” (i.e., life without parole), 

and Heard “was not sentenced to imprisonment for LWOP.” Heard appealed 

the trial court’s order.12

11 Wade Thomas Mills III, an adult, was in the car with Heard during the 

drive-by-shooting. He was found in possession of a gun at the time of the 

shooting, and his gun was also determined to have fired shell cases recovered 

from the crime scene. He was charged and tried with Heard on the 

attempted murders in counts 1 and 2, but the jury deadlocked as to Mills on 

both charges, and the court declared a mistrial as to Mills’s case.

12 The People do not dispute that the trial court’s order is an appealable 

order. (See § 1237, subd. (b) [postconviction orders implicating a defendant’s 

“substantial rights” are appealable]; Gray v. Superior Court (2016) 247 
17

DISCUSSION

Heard challenges the trial court’s determination that he is ineligible to 

petition for recall and resentencing on two grounds that present matters of 

first impression. First, he contends section 1170, subdivision (d)(1),13 should 

be interpreted to apply to juvenile offenders sentenced to the functional 

equivalent of life without parole. Second, he contends that a contrary 

interpretation of section 1170, subdivision (d)(1), would violate his 

constitutional right to equal protection of the laws. Here, we reject Heard’s 

interpretation of section 1170, subdivision (d)(1), but we agree with him that 

denying juvenile offenders sentenced to the functional equivalent of life 

without parole the opportunity to petition for resentencing under this 

provision violates the constitutional guarantee of equal protection of the laws.

I.

Section 1170, Subdivision (d)(1), Limits Eligibility to Petition for 

Resentencing to Juvenile Offenders Sentenced to Actual Life Without Parole 

Heard’s first contention presents an issue of statutory interpretation 

that we consider de novo. (See People v. Prunty (2015) 62 Cal.4th 59, 71.) 

“[O]ur fundamental task . . . is to determine the Legislature’s intent so as to 

effectuate the law’s purpose.” (People v. Murphy (2001) 25 Cal.4th 136, 142.) 

Cal.App.4th 1159, 1164 [“It is plain that a defendant’s ‘substantial rights’ 

include personal liberty interests.”].)

13 As we have mentioned, former subdivision (d)(2) of section 1170 was 

recently redesignated as subdivision (d)(1) of section 1170. (Stats. 2021, 

ch. 731, § 1.3.) This change took effect on January 1, 2022, while this appeal 

was pending. (See ibid.) Although the parties’ appellate briefs refer to this 

provision by its former designation, we will generally refer to the provision 

(and the parties’ arguments about the provision) using its current 

designation.
18

“Statutory construction begins with the plain, commonsense meaning of the 

words in the statute, ‘ “because it is generally the most reliable indicator of 

legislative intent and purpose.” ’ ” (People v. Manzo (2012) 53 Cal.4th 880, 

885.) A statute is not to be read in isolation, but construed in context and 

“ ‘with reference to the whole system of law of which it is a part so that all 

may be harmonized and have effect.’ ” (Landrum v. Superior Court (1981) 30 

Cal.3d 1, 14.) “ ‘If there is no ambiguity or uncertainty in the language, the 

Legislature is presumed to have meant what it said, and we need not resort 

to legislative history to determine the statute’s true meaning.’ ” (People v. 

Skiles (2011) 51 Cal.4th 1178, 1185.) 

In ruling that Heard was ineligible to petition for recall and 

resentencing, the trial court relied on section 1170, subdivision (d)(1)(A), 

which states: “When a defendant who was under 18 years of age at the time 

of the commission of the offense for which the defendant was sentenced to 

imprisonment for life without the possibility of parole has been incarcerated 

for at least 15 years, the defendant may submit to the sentencing court a 

petition for recall and resentencing.” (Italics added.) 

The question is whether this provision, and in particular the italicized 

text, refers only to defendants sentenced to an explicitly designated term of 

life without parole, or whether it includes defendants sentenced to multiple 

terms that in the aggregate constitute the functional equivalent of life 

without parole. Two aspects of the statutory text suggest eligibility to 

petition for resentencing is limited to defendants sentenced to an explicitly 

designated term of life without parole. 

First, the phrase “life without the possibility of parole” denotes a 

specific sentence and is used elsewhere in the Penal Code to specify that 

punishment as distinct from other punishments. For example, section 190.5, 
19

subdivision (b), provides: “The penalty for a defendant found guilty of 

murder in the first degree, in any case in which one or more special 

circumstances enumerated in Section 190.2 or 190.25 has been found to be 

true under Section 190.4, who was 16 years of age or older and under the age 

of 18 years at the time of the commission of the crime, shall be confinement 

in the state prison for life without the possibility of parole or, at the discretion 

of the court, 25 years to life.” (Italics added.) Similarly, section 3051, 

subdivision (b), which makes the timing of youth offender parole hearings

contingent on the offender’s longest term of imprisonment (§ 3051, subd. 

(a)(2)(B)), has separate provisions that create different parole hearing 

eligibility dates depending on whether the offender’s longest term of 

imprisonment is “a determinate sentence” (§ 3051, subd. (b)(1)), “a life term of 

less than 25 years to life” (§ 3051, subd. (b)(2)), “a life term of 25 years to life” 

(§ 3051, subd. (b)(3)), or “life without the possibility of parole” (§ 3051, subd. 

(b)(4), italics added). 

Second, section 1170, subdivision (d)(1)(A), uses the singular when 

referring to “the offense for which the defendant was sentenced to 

imprisonment for life without the possibility of parole.” (§ 1170, subd. 

(d)(1)(A), italics added.) For a single offense to result in a life without parole 

sentence, the sentence must be one of an explicitly designated life without 

parole. The functional equivalent of life without parole results only when a 

defendant receives multiple sentences for multiple offenses, or an offense plus 

one or more enhancements, that add up to a lifelong prison commitment with 

no realistic opportunity for release. (See, e.g., Caballero, supra, 55 Cal.4th at 

pp. 265, 268–269 [sentence of 110 years to life for three counts of attempted

murder plus corresponding firearm enhancements was the functional 

equivalent of life without parole]; People v. Contreras (2018) 4 Cal.5th 349, 
20

356–357, 369 (Contreras) [two juveniles sentenced to aggregate terms of 50 

years to life and 58 years to life imposed for multiple kidnapping offenses and 

multiple sexual offenses; held, these sentences were the functional equivalent 

of life without parole].) The use of the singular when referring to “the offense 

for which the defendant was sentenced” suggests the Legislature meant an 

explicitly designated life without parole sentence. (§ 1170, subd. (d)(1)(A).)

Accordingly, the text of the statute does not support Heard’s 

interpretation of it. And even if we were to find ambiguity in the statute’s 

text, its legislative history also fails to assist Heard. As Kirchner explained, 

Senate Bill 9 “was inspired by concerns regarding sentences of life without 

parole for juvenile offenders.” (Kirchner, supra, 2 Cal.5th at p. 1049, citing 

Assem. Com. on Appropriations, Analysis of Sen. Bill 9, as amended Aug. 15, 

2011, pp. 3–5.) Although case law has since made clear these concerns apply 

to offenders sentenced to an explicitly designated life without parole term as 

well as terms that are functionally equivalent to life without parole, this case 

law was still nascent when Senate Bill 9 was introduced. Virtually every 

legislative committee analysis of Senate Bill 9 observed that section 190.5, 

subdivision (b), permitted juvenile offenders to be sentenced to life without 

parole for special circumstances murder; other sentencing provisions were 

not discussed. (See, e.g., Sen. Com. on Public Safety, Analysis of Sen. Bill 9, 

as introduced Dec. 6, 2010, p. 3; Sen. Rules Com., Off. of Sen. Floor Analyses, 

3d reading analysis of Sen. Bill 9, as introduced, pp. 2‒3; Assem. Com. on 

Public Safety, Analysis of Sen. Bill 9, as amended May 27, 2011, pp. 5–6, 9; 

Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of 

Sen. Bill 9, as amended July 2, 2012, p. 2.) Thus, contemporaneous analyses 

of Senate Bill 9 tend to show the Legislature, in enacting the resentencing 
21

provision, was focused only on creating a remedy for juveniles sentenced to 

an explicitly designated life without parole term. 

The interplay between the relief afforded by Senate Bill 9 and the relief 

afforded by Senate Bill 260 provides further support for the conclusion that 

Senate Bill 9 was intended for juvenile offenders sentenced to an explicitly 

designated life without parole term. As we have discussed, Senate Bill 260, 

which created section 3051, was explicitly passed “to bring juvenile 

sentencing into conformity with Graham, Miller, and Caballero.” (Franklin, 

supra, 63 Cal.4th at p. 277.) And yet as originally enacted, section 3051 

provided youth offender parole hearings only to juveniles whose lengthiest 

sentence was (1) a determinate sentence, (2) “a life term of less than 25 years 

to life,” or (3) “a life term of 25 years to life.” (See § 3051, subd. (b)(1)‒(3), 

added by Stats. 2013, ch. 312, § 4.) It was only after the California Supreme 

Court held in Kirchner, supra, 2 Cal.5th 1040 that section 1170, former 

subdivision (d)(2), now subdivision (d)(1), was inadequate to cure Miller error, 

that the Legislature amended section 3051 to provide youth offender parole 

hearings to juvenile offenders sentenced to “life without the possibility of 

parole.” (See § 3051, subd. (b)(4), added by Stats. 2017, ch. 684, § 1.5.) This 

history, too, demonstrates the resentencing provision was intended for 

juvenile offenders sentenced to explicitly designated life without parole 

terms, with section 3051 initially serving as a complementary provision that 

provided relief only to other juvenile offenders.

All of these considerations lead to the conclusion that eligibility under 

section 1170, subdivision (d)(1)(A), to petition for recall and resentencing is 

limited to juvenile offenders sentenced to an explicitly designated life without 

parole term. Heard offers two reasons why we should construe the statute 

differently. First, he contends we should “view[ ]” the statute against the 
22

“legal landscape” pertaining to juvenile sentencing—a landscape that 

includes Miller, Franklin, and Kirchner. He essentially asks us to read 

section 1170, subdivision (d)(1), as though it embodied the principles 

articulated in these decisions even though it was introduced after them. We 

are not free to construe a statute so liberally that we change its intended 

meaning. “[W]e may not ‘ “ ‘ “rewrite a statute to make it express an 

intention not expressed therein” ’ ” ’ or one that may be derived from its 

legislative history.” (People v. Hobbs (2007) 152 Cal.App.4th 1, 5.) “We do 

not sit as a ‘super Legislature.’ ” (People v. Flores (2014) 227 Cal.App.4th 

1070, 1074.) 

Second, Heard contends we should construe section 1170, subdivision 

(d)(1), so as to avoid an absurd result. The absurd result being that a 

juvenile sentenced to terms amounting to de facto life without parole is not 

eligible to petition for resentencing, when a juvenile sentenced to actual life 

without parole is eligible to petition for resentencing. We disagree this 

circumstance warrants invoking the absurdity exception of statutory 

construction. Under the absurdity doctrine, “[a] court is not required to 

follow the plain meaning of a statute when to do so would frustrate the 

manifest purpose of the legislation as a whole or otherwise lead to absurd 

results. [Citations.] However, the absurdity exception requires much more 

than showing that troubling consequences may potentially result if the 

statute’s plain meaning were followed or that a different approach would 

have been wiser or better. . . . Moreover, our courts have wisely cautioned 

that the absurdity exception to the plain meaning rule ‘should be used most 

sparingly by the judiciary and only in extreme cases else we violate the 

separation of powers principle of government.’ ” (Switzer v. Wood (2019) 35 

Cal.App.5th 116, 129.) It is not unusual for resentencing provisions to 
23

exclude categories of offenders. (See People v. Gonzalez (2021) 65 

Cal.App.5th 420, 434 [identifying examples of such provisions].) Interpreting 

section 1170, subdivision (d)(1)(A), to limit eligibility for resentencing to 

juveniles sentenced to an explicitly designated life without parole term is not 

a consequence so extreme that it qualifies as absurd. (Cf. People v. Morris

(1988) 46 Cal.3d 1, 15 [applying the absurdity doctrine to avoid construing 

section 190.4 to require that the robbery underlying a felony murder must be 

separately charged as an independent substantive offense, lest the statute of 

limitations applicable to the robbery operate as a bar to the felony murder, 

which has no statute of limitations], disapproved on other grounds by In re 

Sassounian (1995) 9 Cal.4th 535, 543‒545.) 

For all of these reasons, we conclude section 1170, subdivision (d)(1)(A),

limits eligibility to petition for recall and resentencing to juvenile offenders 

sentenced to an explicitly designated life without parole term. The trial 

court’s interpretation of the statute was correct, and it did not err in denying 

Heard’s petition for recall and resentencing on this ground.

II.

Denying Juvenile Offenders Like Heard Who Were Sentenced to the 

Functional Equivalent of Life Without Parole the Opportunity to Petition for 

Resentencing Violates the Constitutional Guarantee of Equal Protection

Heard contends that if section 1170, subdivision (d)(1), is not 

interpreted to apply to defendants sentenced to the functional equivalent of 

life without parole, then it violates his constitutional right to equal protection 

of the laws. On this, we agree.

The People argue that Heard forfeited the opportunity to raise his 

equal protection challenge on appeal because he failed to assert it in the trial 

court. It is true that an equal protection claim “may be forfeited if it is raised 
24

for the first time on appeal.” (People v. Dunley (2016) 247 Cal.App.4th 1438, 

1447.) But “application of the forfeiture rule is not automatic.” (In re S.B.

(2004) 32 Cal.4th 1287, 1293.) “[A]ppellate courts have discretion to address 

constitutional issues raised on appeal” where, as here, “the issue presented is 

‘a pure question of law’ turning on undisputed facts.” (In re Spencer S. (2009) 

176 Cal.App.4th 1315, 1323; see In re Sheena K. (2007) 40 Cal.4th 875, 888 

[defendant’s challenge to a probation condition as constitutionally vague and 

overbroad presented a pure question of law that could be considered for the 

first time on review]; People v. Blanco (1992) 10 Cal.App.4th 1167, 1172–1173 

[whether to address the constitutionality of a statute for the first time on 

appeal is a discretionary determination for the reviewing court].) One factor 

that supports overlooking a forfeiture is when the belatedly raised issue “may 

return as a habeas corpus petition” (In re Spencer S., at p. 1323), which could 

occur here (see In re Jones (2019) 42 Cal.App.5th 477, 480 [habeas petition 

challenging denial of resentencing under section 1170, former subdivision

(d)(2)]). We also observe that section 1170, subdivision (d)(10), allows the 

filing of successive resentencing petitions, so Heard could conceivably raise 

his equal protection challenge in a later petition if we do not consider it now. 

So we will exercise our discretion to consider the merits of Heard’s equal 

protection claim.

A. Heard Is Similarly Situated With the Juvenile Offenders Eligible to 

Seek Resentencing Under Section 1170, Subdivision (d)(1)

“The Fourteenth Amendment to the United States Constitution and 

article I, section 7, subdivision (a) of the California Constitution both prohibit 

the denial of equal protection of the laws. ‘The equal protection guarantees of 

[both Constitutions] are substantially equivalent and analyzed in a similar 

fashion.’ ” (People v. Cruz (2012) 207 Cal.App.4th 664, 674.) “The concept of 

equal protection recognizes that persons who are similarly situated with 
25

respect to a law’s legitimate purposes must be treated equally.” (People v. 

Brown (2012) 54 Cal.4th 314, 328.) 

When we are presented with an equal protection claim, we begin by 

considering whether the class of persons allegedly subjected to unequal 

treatment is similarly situated with the class of persons benefited by the 

challenged law. “ ‘ “The first prerequisite to a meritorious claim under the 

equal protection clause is a showing that the state has adopted a 

classification that affects two or more similarly situated groups in an unequal 

manner.” [Citations.] This initial inquiry is not whether persons are 

similarly situated for all purposes, but “whether they are similarly situated 

for purposes of the law challenged.” ’ ” (People v. Morales (2016) 63 Cal.4th 

399, 408 (Morales).) Indeed, “[t]here is always some difference between the 

two groups which a law treats in an unequal manner since an equal 

protection claim necessarily asserts that the law in some way distinguishes 

between the two groups.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)

Heard protests the fact that juvenile offenders sentenced to an 

explicitly designated life without parole term can seek resentencing while 

juvenile offenders sentenced to the functional equivalent of such a sentence 

cannot. As we have already explained, section 1170, subdivision (d)(1)(A),

establishes the threshold eligibility requirements to petition for recall and 

resentencing. Its only criteria are (1) the defendant “was under 18 years of 

age at the time of the commission of the offense”; (2) for this offense, the 

defendant “was sentenced to imprisonment for life without the possibility of 

parole”; and (3) the defendant “has been incarcerated for at least 15 years.” 

(§ 1170, subd. (d)(1)(A).) If the defendant meets these requirements, he “may 

submit to the sentencing court a petition for recall and resentencing.” (Ibid.) 

Heard meets the first and third criteria; in this regard, he is identically 
26

situated with those who are eligible to petition for resentencing. The only 

difference between him and the defendants to whom this provision applies is 

that he was sentenced to 23 years plus 80 years to life, rather than life 

without parole. 

Heard argues his sentence constitutes a de facto life without parole 

sentence and he is thus similarly situated with juveniles sentenced to an 

explicit term of life without parole. He acknowledges that due to the 

enactment of section 3051, he will now receive a youth offender parole 

hearing in his 25th year of incarceration, but points out that following the 

2018 amendment of section 3051, juveniles sentenced to an explicit term of 

life without parole are also entitled to a youth offender parole hearing in 

their 25th year of incarceration. (Stats. 2017, ch. 684 § 1.5; see § 3051, subd. 

(b)(3), (4).) 

The People disagree that Heard’s sentence qualifies as a de facto life 

without parole sentence. Citing Franklin, supra, 63 Cal.4th at page 286, they 

contend section 3051 has “ ‘reformed’ ” Heard’s sentence so that it is no longer 

the functional equivalent of life without parole. The People additionally 

argue that “irrespective of section 3051,” Heard is not similarly situated with

juvenile offenders sentenced to an explicit term of life without parole. The 

difference, they claim, is in the crimes committed by each group of offenders.

Here, we conclude Heard is similarly situated for purposes of section 

1170, subdivision (d)(1)(A), with those juvenile offenders who are eligible to 

petition for resentencing. First, we disagree that Heard’s eligibility for a 

youth offender parole hearing under section 3051 undermines the conclusion 

that his sentence constitutes a de facto life without parole sentence, such that 

he is not similarly situated with the juvenile offenders to whom the 

resentencing provision applies. As another court has explained, the statutory 
27

resentencing provision “uses the phrase ‘was sentenced’ and refers to the 

past.” (See People v. Lopez (2016) 4 Cal.App.5th 649, 653–654, italics added

(Lopez) [holding that two juveniles, whose life without parole sentences were 

modified to life with parole in response to a habeas petition, asserting Eighth 

Amendment error remained eligible to seek resentencing under section 1170, 

former subdivision (d)(2)(A)(i), because they were originally sentenced to life 

without parole].) At the time Heard was sentenced, section 3051 had not yet 

been enacted, and he was required to serve his determinate term plus the full 

minimum period of confinement of each of his life sentences before becoming 

parole eligible. (§§ 669, subd. (a), 3046, subd. (b).) Put another way, Heard 

would have to serve 103 years before becoming parole eligible. Such a 

sentence constitutes a de facto life without parole sentence. (See Caballero, 

supra, 55 Cal.4th at p. 268 [offender who would not become parole eligible for 

more than 100 years was sentenced to the functional equivalent of life 

without parole].) 

It is true, as the People contend, that Franklin held that because the 

defendant had become eligible for a youth offender parole hearing in his 25th 

year of incarceration, he was no longer serving a life without parole sentence 

or its functional equivalent. (Franklin, supra, 63 Cal.4th at pp. 279–280.) As 

our high court explained, this was the result of the retroactive operation of 

section 3051. (Franklin, at pp. 278–279.) The Court further explained, 

however, that section 3051 did not alter the defendant’s original sentence, 

which continued to remain binding. (Franklin, at pp. 279–280.) Applying the 

same reasoning here, although the retroactive operation of section 3051 

means Heard will receive a youth offender parole hearing in his 25th year of 

incarceration, his original sentence remains binding. Section 1170, 

subdivision (d)(1), is a statutory resentencing opportunity, not a cure for 
28

Miller error. (Kirchner, supra, 2 Cal.5th at p. 1056.) Although under 

Franklin, Heard’s sentence as it currently operates is no longer the functional 

equivalent of life without parole, this does not change the fact that the 

sentence was a de facto life without parole sentence at the time it was 

imposed. Because section 1170, subdivision (d)(1)(A), refers to the “offense 

for which the defendant was sentenced to imprisonment for life without the 

possibility of parole” (italics added), and Heard was sentenced to the 

functional equivalent of a life without parole sentence, he is similarly 

situated with the juvenile offenders whose sentences make them eligible to 

seek resentencing. 

As for the People’s claim that the crimes committed by the juvenile 

offenders eligible to petition for resentencing are different from the crimes 

committed by those who cannot seek resentencing, we do not find this 

distinction is relevant. The People rely on People v. Sanchez (2020) 48 

Cal.App.5th 914, 920 (Sanchez), which involved an equal protection challenge 

to former section 1170.95.14 At that time, former section 1170.95 provided 

that “[a] person convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder conviction vacated 

and to be resentenced on any remaining counts” if certain specified conditions 

were met. (See Sanchez, at p. 918; former § 1170.95, subd. (a), added by 

Stats. 2018, ch. 1015, § 4.) The defendant in Sanchez was convicted of 

voluntary manslaughter based on an incident in which he and fellow gang 

members yelled at a rival gang member and the defendant’s fellow gang 

14 Former section 1170.95 has since been amended and renumbered as 

section 1172.6. (Stats. 2021, ch. 551, § 2 [amended, effective Jan. 1, 2022]; 

Stats. 2022, ch. 58, § 10 [amended and renumbered, effective June 30, 2022].)
29

members assaulted the rival, causing him to smash his head on the 

pavement. (Sanchez, at p. 916.) He argued that former section 1170.95 

violated equal protection by granting relief to defendants convicted of felony 

murder or murder under a natural and probable consequences theory, but not 

to defendants convicted of voluntary manslaughter. (Sanchez, at p. 917.) 

The appellate court disagreed. It explained that former section 1170.95 

was enacted in conjunction with legislation that “amend[ed] sections 188 and 

189 to restrict the scope of first-degree felony murder and to eliminate 

murder liability based on the natural and probable consequences doctrine,” 

and “create[d] a procedure for offenders previously convicted of felony murder 

or murder under a natural and probable consequences theory to obtain the 

benefits of these changes retrospectively.” (Sanchez, supra, 48 Cal.App.5th at 

p. 917.) The court found the defendant was not similarly situated with those 

the law was intended to benefit, because he “was ‘convicted of voluntary 

manslaughter, a different crime from murder, which carries a different 

punishment’ ” and because “[i]n general, ‘offenders who commit different 

crimes are not similarly situated.’ ” (Id. at p. 920.) 

The People’s reliance on Sanchez is misplaced. The equal protection 

inquiry focuses on whether two groups of people are similarly situated “ ‘ “for 

purposes of the law challenged.” ’ ” (Morales, supra, 63 Cal.4th at p. 408, 

italics added.) Unlike former section 1170.95, the resentencing provision 

currently codified at section 1170, subdivision (d)(1), was not enacted in 

conjunction with legislation that narrowed the scope of theories available to 

support particular homicide offenses, and its purpose was not to create a 

procedure for vacating convictions. In stark contrast to former section 

1170.95, section 1170, subdivision (d)(1), does not make the defendant’s 

conviction of a particular offense a requirement for seeking resentencing. 
30

(See § 1170, subd. (d)(1)(A).) In short, Sanchez involved a different 

ameliorative law with a different purpose and different requirements than 

the provision at issue in this case. The Sanchez court’s reasons for finding 

the defendant convicted of voluntary manslaughter insufficiently similar to 

the defendants eligible for relief under former section 1170.95 simply do not 

apply here.

We conclude that for purposes of section 1170, subdivision (d)(1)(A), 

Heard is similarly situated with those defendants who are eligible to petition 

for resentencing. 

B. The Resentencing Provision’s Differential Treatment of Juvenile 

Offenders Sentenced to Life Without Parole and Juvenile Offenders 

Sentenced to the Functional Equivalent of Life Without Parole Fails 

Rational Basis Scrutiny

Next, we must consider whether the disparate treatment of the two 

categories of juvenile offenders is constitutionally justified. Both sides 

contend we should answer this question by applying the rational basis test. 

We agree. “Where a class of criminal defendants is similarly situated to

another class of defendants who are sentenced differently, courts look to 

determine whether there is a rational basis for the difference.” (People v. 

Edwards (2019) 34 Cal.App.5th 183, 195.) “ ‘This standard of rationality does 

not depend upon whether lawmakers ever actually articulated the purpose 

they sought to achieve.’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th 

871, 881.) “ ‘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 
31

statutory disparity.” (Ibid.) “If a plausible basis exists for the disparity, 

courts may not second guess its ‘ “wisdom, fairness, or logic.” ’ ” (Ibid.)

Heard contends there is no rational basis for making juvenile offenders 

sentenced to explicit terms of life without parole eligible for resentencing 

under section 1170, subdivision (d)(1), while denying the same opportunity to 

juvenile offenders sentenced to terms that amount to the functional 

equivalent of life without parole. We agree. The resentencing provision has 

been called “a legislative ‘act of lenity’ designed to permit defendants to 

secure a ‘modification downward’ of their sentences.” (People v. Gibson (2016) 

2 Cal.App.5th 315, 327.) Though apparently initially conceived as a means 

for reducing the sentence of a juvenile offender sentenced to life without 

parole to one that provided an opportunity for parole,15 section 3051, 

15 When a recall petition filed under the authority of section 1170, 

subdivision (d)(1), is granted, the sentencing court has “the discretion . . . to 

resentence the defendant in the same manner as if the defendant had not 

previously been sentenced, provided that the new sentence, if any, is not 

greater than the initial sentence.” (§ 1170, subd. (d)(7).) Such provisions 

have been held to give the resentencing court “jurisdiction to modify every

aspect of the sentence, and not just the portion subjected to the recall. 

[Citations.] In this situation, . . . the resentencing court may consider ‘any 

pertinent circumstances which have arisen since the prior sentence was 

imposed.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893 [discussing recall of 

sentence under section 1170, former subdivision (d)]; see Dix v. Superior 

Court (1991) 53 Cal.3d 442, 458 [observing that section 1170, former 

subdivision (d) allowed the trial court, on its own motion, within 120 days of 

the date of commitment, to “ ‘recall the sentence and commitment [previously 

ordered] and resentence the defendant in the same manner as if the 

defendant had not been sentenced previously’ ”].) In Lopez, supra, 4 

Cal.App.5th at pages 652 to 653, two juveniles initially sentenced to life 

without parole were each placed on five years of probation after the trial 

court granted their petitions for resentencing. As this example reveals, the 

benefit provided by section 1170, subdivision (d)(1), can extend beyond 

resentencing the offender to a term that includes the possibility of parole. 
32

subdivision (b)(4), now largely fulfills that purpose. (See § 3051, subd. (b)(4).) 

Even so, the resentencing provision remains operative and available to 

offenders sentenced to explicit life without parole terms.

 We can conceive of no legitimate reason for making juvenile offenders 

sentenced to explicit life without parole terms eligible to seek resentencing 

but not juvenile offenders sentenced to the equivalent of a life without parole 

sentence. Both groups, subject to limited exceptions, are now eligible for 

youth offender parole hearings.16 Heard will receive his youth offender 

parole hearing after 25 years of incarceration; so will a juvenile offender 

sentenced to an explicit term of life without parole. (§ 3051, subd. (b)(3), (4).) 

And yet only the latter group is permitted to petition for resentencing. 

The People’s sole justification for the differential treatment is that the 

Legislature “could have reasonably concluded that the punishment of [life 

without parole] imposed on those under age 18 could be excessive and this 

was an appropriate means of reform by allowing for reconsideration of such a 

sentence.” But as Heard points out, the same concern applies equally to 

juveniles sentenced to the functional equivalent of life without parole. 

Nor can the differential treatment be justified by differences in the 

relative culpability of each group. The United States Supreme Court, in

addressing the justifications for juvenile punishment, has recognized that a 

criminal sentence must relate to the culpability of the offender. (See 

Graham, supra, 560 U.S. at p. 71.) Resentencing under section 1170, 

16 The Legislature has excluded from relief under section 3051 juvenile 

offenders sentenced under the Three Strikes Law or the “One Strike” sex 

offender law. (See § 3051, subd. (h) [stating section 3051 “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”].)
33

subdivision (d)(1), is available to juvenile offenders convicted of first degree 

murder whose cases involve a special circumstances finding. (See § 190.5, 

subd. (b).) Special circumstances murders are considered “the most heinous 

acts” proscribed by law. (In re Nunez (2009) 173 Cal.App.4th 709, 728.) They 

are “more severe and more deserving of lifetime punishment than nonspecial 

circumstance first degree murder.” (In re Williams (2020) 57 Cal.App.5th 

427, 436.) By contrast, “ ‘defendants who do not kill, intend to kill, or foresee 

that life will be taken are categorically less deserving of the most serious 

forms of punishment than are murderers. . . . Although an offense like 

robbery or rape is “a serious crime deserving serious punishment,” those 

crimes differ from homicide crimes in a moral sense.’ ” (Contreras, supra, 4 

Cal.5th at p. 382, quoting Graham, at p. 69.) Section 1170, subdivision (d)(1),

thus has the incongruous effect of extending sentencing leniency exclusively 

to the category of offenders generally regarded as the least deserving of it. 

(See Contreras, at p. 382 [observing that section 3051, by making juveniles 

convicted of special circumstances murder eligible for youth offender parole 

hearings while denying youth offender parole hearings to juvenile One Strike 

sex offenders, has the “anomalous” effect of “treat[ing] a nonhomicide offense 

more harshly than special circumstance murder”].) The gravity of the crimes 

committed by the two groups of juvenile offenders thus fails to explain their

differential treatment.

We have also considered whether the Legislature might have viewed a 

juvenile offender whose multiple offenses cause him to receive a lengthy 

term-of-years sentence as more culpable, and more deserving of severe 

punishment, than an offender who commits a single, albeit more serious 

offense. However, even if one accepts this as a logical premise, it fails when 

one considers how section 1170, subdivision (d)(1), operates. Although 
34

section 1170, subdivision (d)(1), makes a juvenile offender sentenced to an 

explicit life without parole term eligible to petition for resentencing, nothing 

in the provision precludes a juvenile who receives that same sentence plus 

additional terms imposed for additional offenses or enhancements from 

petitioning for resentencing. The number of offenses theoretically committed 

by each group of offenders also fails to justify their disparate treatment.

In sum, we are unable to identify a rational basis for making juveniles 

sentenced to an explicitly designated life without parole term, but not 

juveniles sentenced to the functional equivalent of life without parole, eligible 

to petition for resentencing under section 1170, subdivision (d)(1). As a 

consequence, denying Heard the opportunity to petition for resentencing 

under this provision violates his right to equal protection of the laws.17 

We will therefore reverse the trial court’s order denying Heard’s 

petition for recall and resentencing on the ground that his sentence rendered 

him ineligible to petition for resentencing. Because the trial court denied 

Heard’s petition on this ground, it did not consider the merits of the petition. 

17 Heard’s equal protection claim appears to embrace the position—a 

position the People do not address—that the canon of constitutional 

avoidance requires us to construe section 1170, subdivision (d)(1)(A), to avoid 

this equal protection violation. To the extent Heard advances this argument, 

we reject it. The canon of constitutional avoidance applies when a statute 

“ ‘ “is susceptible of two constructions, one of which will render it 

constitutional and the other unconstitutional in whole or in 

part[.]” ’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) It “is a tool for 

choosing between competing plausible interpretations of a statutory text” 

(Clark v. Suarez Martinez (2005) 543 U.S. 371, 381), “not a method of 

adjudicating constitutional questions by other means” (ibid.). As we have 

concluded, section 1170, subdivision (d)(1)(A), cannot plausibly be interpreted 

to apply to juvenile offenders who were not sentenced to an explicitly 

designated life without parole term. For this reason, the canon of 

constitutional avoidance does not apply.
35

(See § 1170, subd. (d)(5) [requiring the court to determine whether, “by a 

preponderance of the evidence that one or more of the statements specified in 

subparagraphs (A) to (D), inclusive, of paragraph (2) is true”].) Upon remand, 

the court must consider the merits of the petition and proceed in accordance 

with section 1170, subdivision (d)(1)’s directives. We express no opinion on 

the outcome of that proceeding.

DISPOSITION

The June 28, 2021 order denying Heard’s petition for recall of sentence 

and resentencing is reversed. The matter is remanded to the trial court for 

further proceedings in accordance with this opinion. 

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.