Filed 8/2/23 P. v. Parker CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
DAVID DUANE PARKER, Defendant and Appellant. F085642
(Super. Ct. No. SUF23393B)



### OPINION

THE COURT *
APPEAL from a n order of the Superior Court of Merced County. David Moranda, Judge. Aaron J. Schecter, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Cliffor d E. Zall, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-

* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.2

In this appeal, defendant David Duane Parker challenges the trial court’s denial of his request for a hearing he believe s was available under People v. Franklin (2016)
63 Cal.4th 261 ( Franklin )

. The court denied the Franklin motion because defen dant was
sentenced to life without the possibility of parole ( LWOP ) , making him ineligible for a parole hearing. Defendant believes the denial of his request for a Franklin hearing based
on his LWOP sentence constitute d a violation of his right to equal p rotection of the law. The People disagree. We affirm the court’s denial of the motion

. PROCEDURAL SUMMARY In 2000, a jury found appellant guilty of first degree murder (Pen. Code , 1 § 187,
subd. (a) ; count 1), kidnapping for robbery (§ 209, subd. (b); count 2), carjacking (§ 215; count 3), and robbery (§ 211 ; count 4). As to the murder, the jury found true the following three special circumstances: robbery

- murder (§ 190.2, subd. (a)(17)(A)), kidnapping

- murder (§ 190.2, subd. (a)(17)(B)), and carj acking

- murder (§ 190.2,
subd. (a)(17)(L)). The trial court then sentenced appellant to LWOP for the first degree murder, and stayed the remaining sentences pursuant to section 654

. At the time the crimes were committed, defendant was 22 years old.
In November 2022, defendant made a motion requesting a Franklin hearing to create a record showing how his youth at the time the crimes were committed contributed
to the commission of his offense

— information that might be useful during a possible youth offend er parole hearing. When denying that request, the court stated:

“On November 4, 2022, [defendant] filed this motion. [Defendant] has also filed an appeal and his case is currently before the Court of Appeal, Fif t h Appellate District. Thus, this [c] ourt has been divested of jurisdiction. ( People v. Haynes (1969) 270 [Cal.App.]2 d 318.) Accordingly, the motion is DENIED.”

1 All further statutory references are to the Penal Code.3

This appeal followed the denial of defendant’s Franklin motion.
DISCUSSION 2 The law provides for a youth offender parole hearing for persons sentenced to indeterminate life sentences with the possibility of parole if they were between the age s of 18 and 25 when they committed the offense. However, the law does not provide for a youth offender parole hearing for a person in the same age group who was sentenced to
LWOP. Defendant is in the latter category . Defendant contends that the discrepancy in treatment between the two groups violates equal protection principles. The People disagree, as do we. However, before we address the un availability of a Franklin hearing in this case, we must address the trial court’s conclusion it lacked jurisdiction to order such a hearing.
I. The Question of Jurisdiction The trial court specifically denied defendant’s request for a Franklin hearing believing it was without jurisdiction since a notice of appeal had been filed by defendant
i n a separate matter, which wa s also before this court. 3 On March 3 0, 2023, d efendant asked this court to take judicial notice of that other appeal when resolving th e issue of jurisdiction. We grant the request for judicial notice, but only for the limited purpose of resolving th e issue of jurisdiction

. In the absence of a statutory exception, once a valid notice of appeal is filed, jurisdiction vests in the appellate court until there is a determination of the appeal and the
issuance of the remittitur

. ( People v. Wagner (2009) 45 Cal.4th 1039, 1061 .) U ntil that time, the trial court lacks jurisdiction to issue any order s that could affect the judgment

. ( Ibid

. ) “ ‘ The purpose of the rule divesting the lower court of jurisdiction when an appeal

2 A factual summary of the crimes committed by defendant is not necessary to the resolution of th is appeal.
3 People v. Parker ( August 2, 2023, F085006) [nonpub. opn.]

.4

is pending “ ‘ “is to protect the appellate court ’ s jurisdi ction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment

... by conducting other proceedings that may affect it.” ’ ” [Citations] .’ ” ( People v. Cre ss (2023) 87 Cal.App.5th 421, 425, citing People v. Burhop (2021) 65 Cal.App.5th 808, 814 .) The question that must be resolved, therefore, is whether defendant c ould be granted the right to a Franklin hearing while the other appeal was pending in c ase No. F08500 6

. W e note , the academic answer to this question is that a grant or denial of
the Franklin motion would not have affect ed the judgment or the issues presented in c ase No. F085006 , concerning the denial of defendant’s petition for resentencing under
section 1172.6 . However , the practical response is that under the circumstances as they
existed when the trial court denied defendant’s motion , defendant wa s not entitled to a
Franklin hearing.
II
. Youth Offen der Parole Hearing s and the Franklin Hearing Framework
A. The Applicable Law In 2013, the Legislature enacted section 3051 , effective January 1, 2014, providing a parole eligibility mechanism for juvenile offenders. ( Franklin , supra , 63 Cal.4th at
p p

. 2 7 6

– 27 7; former § 3051; Stats. 2013, ch. 312, § 4.) Its purpose was “to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she ha s shown that he or she has been rehabilitated and gained maturity [

. ] ” (Stats. 2013, ch. 312, § 1.) The version of section 3051 effective on January 1, 2014, applied only to juvenile
offenders sentenced to indeterminate life terms with the possibility of parole. ( Fo rmer § 3051, subd. (b); Stats. 2013, ch. 312, § 4.) On its face, it did not apply to juvenile offenders sentenced to LWOP or those over age 18 at the time of the offense. ( F ormer § 3051, subds. (a)(1), (b); Stats. 2013, ch. 312 , § 4.)5

In 2015, section 3051 was amended to extend eligibility to youthful offenders under age 23. ( F ormer § 3051, subds. (a)(1), (b); Stats. 2015, ch. 471, § 1.) Then in 2017, section 3051 was amended again to extend eligibility to youthful offender s age 2 5
and under

. ( F ormer § 3051, subds. (a)(1), (b); Stats. 2017, ch. 675, § 1.) Presently, “section 305 1 ... requires the Board [of Parole Hearings] 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. ’ ” ( Frankl in , supra , 63 Cal.4th at p. 277; § 3051, subd. (a)(2)(B).) “A person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a determinate sentence shall be eligible for re lease on parole at a youth offender parole hearing during the person’s 15th year of incarceration”; persons sentenced to indeterminate terms of less than 25 years to life are eligible at their 20th year of incarceration; and persons sentenced to indetermin ate terms of 25 years to life are eligible at their 25th year of incarceration. (§ 3051, subd. (b)(1)

– (3).)
Section 3051 does not create youth offender parole hearing eligibility for a person
sentenced to a LWOP sentence. Against this backdrop, our Su preme Court has established a procedure by which
an inmate may be entitled to a separate hearing ( the Franklin hearing) to preserve
evidence that could be beneficial for a future parole hearing addressing the impact of the inmate’s youth in the commission of the crime

. ( Franklin , supra , 63 Cal.4th at p. 269;
In re Cook (2019) 7 Cal.5th 439, 450; see Cook , at pp. 453, 458 [the proper avenue for inmates who seek to preserve youth

- related evidence following a final judgment is to file a motion under section 1203.01].) A person who cannot prove eligib i l ity for a parole hearing in the future is not entitled to a Franklin hearing. ( Cook , at p. 458.)6

B
. Equal Protection Principles “Both the state and federal Constitutions extend to persons the equal protection of the law.” ( People v. Chatman (2018) 4 Cal.5th 277, 287.) An equal protection challenge requires a showing that the government has adopted a classification affecting two or more
similarl y situated groups in an unequal manner. ( People v. Wilkinson (2004)
33 Cal. 4th 821, 836.) The level of scrutiny we apply depends on the type of classification. ( Ibid

. ) Statutes, such as the one in th is case, neither involving a suspect class like race or national origin nor those impinging on fundamental rights, are subject to the minimum equal protection standard

— rational basis review. ( People v. Turnage (2012) 55 Cal.4th 62, 74.)
Under the rationa l basis review, “e qual protection of the law is denied only where
there is no ‘ rational relationship between the disparity of treatment and some legitimate governmental purpose. ’ ” ( People v. Turnage , supra , 55 Cal.4th at p. 74.) “To successfully challen ge a law on equal protection grounds, the defendant must negate

‘ “ ‘ every conceivable basis’ ” ’ on which ‘the disputed statutory disparity’ might be supported. [Citation .] ‘If a plausible basis exists for the disparity, “[e]qual protection analysis doe s not entitle the judiciary to second

- guess the wisdom, fairness, or logic of
the law. ” ’ ” ( People v. Acosta (2021) 60 Cal.App.5th 769, 778.) The majority of published case law on this issue has rejected the defendants’ arguments and upheld the
constitu tionality of the provision. (See, e.g., People v. Jackson (2021)
61 Cal.App .5th 189; Acosta , at p. 769; In re Williams (2020) 57 Cal.App.5th 427.) Rational basis review requires courts to ask two questions: (1) “whether the state adopted a classificat ion affecting two or more groups that are similarly situated in an unequal manner” and (2) “whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose.” ( Peopl e v. Cha t man , supra , 4 Cal.5th at p. 289.) “A classification in a statute is presumed rational until the7

challenger shows that no rational basis for the unequal treatment is reasonably
conceivable. [Citations.] The underlying rationale for a statutory classification need not
have been ‘ “ ‘ ever actually articulated ’ ” ’ by lawmakers, and it does not need to ‘ “ ‘ be empirically substantiated. ’ ” ’ [Citation.] Nor does the logic behind a potential justification need to be persuasive or sensible

— rather than simply rational. ” ( I bid .)
III. A pplication of These Princip les We reject defendant’s contention that those who are 1 8 to 25 year s old when sentenced to LWOP are similarly situated to those who are 18 to 25 year s old when sentenced to life with the possibility of parole for purposes of a Franklin hearing. Defendant’s claim specifically fails because there is a rational basis for a different treatment of the two groups. Section 3051 creates the mechanism for a youth offend er parole hearing. A person sentenced to LWOP is definitionally ineligible for parole. It make s little sense to provide
defendant a Franklin hearing , which is to provide information for a later youth offender parole hearing , wh en he is not eligible for p arole

. Of course, if that basic fact changes in the future, nothing prevents defendant from filing a new petition asking for a Franklin hearing. 4
Courts also have concluded that the distinction between these two groups is rational given the level of c ulpability a jury must find to convict a defendant of a
first degree murder with special circumstances justifying a sentence of LWOP. For instance, “ ‘ [i] t is the prerogative, indeed the duty, of the Legislature to recognize degrees of culpability when dr afting a Penal Code.’ ” ( People v. Wilkinson , supra , 33 Cal.4th at
p. 840. ) On that basis, m any courts have rejected the claim defendant makes here. ( People v. Sands (2021) 70 Cal.App.5th 193, 204

– 205; People v. Morales (2021)

4 Which is a possibility if the trial court grants defendant’s section 1172.6 petition following a remand in People v. Parker , supra , F085006

.8

67 Cal.App.5th 326 , 347

– 349; People v. Jackson , supra , 61 Cal.App.5th at pp. 199

– 200; People v. A costa , supra , 60 Cal.App.5th at pp. 780

– 781; In re Williams , supra , 57 Cal.App.5th at pp. 433

– 436.) We join the se courts

. However, w e recognize that one court has found the different treatment at issue
here violate s equal protection principles. ( People v. Hardin (2022) 84 Cal.App.5th 273, review granted Jan. 11, 2023, S277487.) The Hardin court stated that “[v]iewed in light
of secti on 3051’s intended purpose of permitting a determination whether a person who committed a serious or violent crime between the age of 18 and 25 has sufficiently matured and outgrown the youthful impulses that led to the commission of the offense, an
indivi dual serving a parole

- eligible life sentence and a person who committed an offense at the same age serving a sentence of life without parole are similarly situated.” ( Hardin , at p. 287.) It then concluded that “if

... the goal of section 3051 was to apply the

... youth

- related mitigating factors to young adults up to the age of 26 in light of neuroscience research that demonstrated the human brain continues to develop into a person’s mid

- 20’s, and thus to permit youth offenders a meaningful opportunity for
pa role if they demonstrate increased maturity and impulse control, then for that purpose there is no plausible basis for distinguishing between same

- age offenders based solely on the crime they committed.” ( Hardin , at p. 288.) As discussed above, we conclu de that the extreme level of culpability required for a LWOP sentence provides a rational basis for the distinction drawn between the

two groups. We therefore disagree with Hardin and agree with the majority of courts in finding that a rational basis exis ts to distinguish between offenders age d 18 to 25 who are sentenced to life with the possibility of parole and offenders age d 18 to 25 who are

sentence d to LWOP with respect to granting a request for a Franklin hearing.9

Because defendant was not eligibl e for a Franklin hearing, the refusal of the trial court to act on the petition , citing a lack of jurisdiction to act, resulted in no prejudice to
defendant.
DISPOSITION
The order is affirmed.