Filed 8/29/24 P. v. Johnson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE

,

Plaintiff and Respondent,

v.

LA’MIN JOHNSON,

Defendant and Appellant

. B3 31996

(Los Angeles County

Super. Ct. No. GA030918 )

APPEAL from a n order of the Superior Court of Los

Angeles County, Elea nor J. Hunter , 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, Supervising Deputy

Attorney General, and Steven E. Mercer , Deputy Attorney

General, for Plaintiff and Respondent

.

### 2 INTRODUCTION AND BACKGROUND 1

In 1999, a jury convicted defendant of numerous crimes

, including one count of first degree murder, and found true special

circumstance allegations that the murder was committed during

the commission of a burglary

. Defendant was 23 years old at the

time of the murder

. He was sentenced to life without the

possibility of parole (LWOP) , plus 19 years

. In April 2023, defendant filed a motion under Penal Code 2

section 1203.1 for a proceeding under People v. Franklin (2016)

63 Cal.4th 261 , seeking to make a record of mitigating evidence

for a future youth offender parole hearing under section 3051

.

The trial court denied the motion

, finding section 3051 excluded

individuals , such as defendant , serving LWOP sentences for

offenses committed after reaching 18 years of age

. 3 The court

also rejected defendant’s equal protection claim based on the

separate treatment of juvenile and non

- juvenile, youthful

offenders sentenced to LWOP. The court did not address

defendant’s contention that section 305 1

, by rendering him

ineligible for a youth offender parole hearing, made his sentence

cruel or unusual punishment.

1 We grant defendant’s request to take judicial notice of portions

of our earlier nonpublished opinion in defendant ’s case

, People v.

La’Min Johnson (July 11, 2023, B320943). We draw the procedural

facts from that prior opinion.

2 All further statutory references are to the Penal Code, unless

otherwise noted.

3 Section 3051, subdivision ( h ) , provides, “This section shall not

apply to cases in which

. . . an individual is sentenced to life in prison

without the possibility of parole for a controlling offense that was

committed after the person had attained 18 years of age.”

### 3 Defendant timely appealed. On appeal, defendant argues

section 3051 violates his constitutional rights to equal protection

and the prohibition against cruel or unusual punishment under

the California Constitution. We affirm.

DISCUSSION

A. Section 3051 Does Not Violate Defendant’s

Constitutional Rights to Equal Protection

When defendant filed his appeal and opening brief, most

appellate decisions rejected defendant’s equal protection

challenge. ( See People v. Ngo (2023) 89 Cal.App.5th 116, 125

–

127; People v. Bolanos (2023) 87 Cal.App.5th 1069, 1079, review

granted Apr. 12, 2023, S278803 ; People v. Sands (2021) 70

Cal.App.5th 193 , 204

– 205 ( Sands ); In re Murray (2021) 68

Cal.App.5th 456, 463

– 465; People v. Morales (2021) 67

Cal.App.5th 326, 347

– 349 ( Morales ); People v. Jackson (2021) 61

Cal.App.5th 189, 196

– 197, 199

– 200; People v. Acosta (2021) 60

Cal.App.5th 769, 777

– 781 ( Acosta ).) Defendant argues these

cases were wrongly decided and requests we follow People v.

Hardin (2022) 84 Cal.App.5th 273, review granted January 11,

2023, S277487. That case agreed with defendant’s contention

that no rational basis exist s for section 3051’s disparate

treatment of young adults with a LWOP sentence and young

adults with lesser sentences. ( Id. at pp. 286

– 288, 290.)

However, our Supreme Court recently disapproved of this

lone decision and agreed with the majority position of appellate

courts. ( People v. Hardin (2024) 15 Cal.5th 834 ( Hardin ).)

Hardin held section 3051’s exclusion of young adult offenders

sentenced to LWOP from a youth offender parole hearing did not

violate equal protection. ( Id. at pp. 838

– 839.) As stated by t he

### 4

Supreme Court

, “ I t was not irrational for the Legislature to

exclude from youth offender parole eligibility those young adults

who have committed special circumstance murder ” because it is

“ an offense deemed sufficiently culpable ” to merit “ society ’ s most

stringent sanctions

. ” ( I d. at p. 864 .)

Defendant does not dispute we are bound by Hardin

. ( Auto

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

Nevertheless, he contends “ Hardin does not foreclose relief” to

him “ based on a finding that there is no rational basis to

distinguish between young adult offenders sentenced to LWOP

and juvenile offenders sentenced to LWOP, because the

California Supreme Court

. . . did not consider that issue .”

Hardin did not expressly address the separate treatment of

young adults and juveniles sentenced to LWOP because “Hardin

[did] not challenge the Court of Appeal ’s conclusion on this

point .” ( Hardin

, supra , 15 Cal.5th at p. 841 .) The Supreme

Court noted

, however, the appellate court rejected this argument

and “ explained that the Legislature had a rational basis for

distinguishing between juvenile offenders and young adult

offenders, since a unique set of constitutional rules restricts

sentencing children to life without parole. ” ( Id. at pp. 840

– 841,

citing Miller v. Alabama (2012) 567 U.S. 460 .)

Defendant offers no argument addressing the Supreme

Court’s statement or the principles court s rely on to rationally

distinguish between children and adults subject to the same

sentence. ( See, e.g., Morales

, supra

, 67 Cal.App.5th at p. 34 7.)

We agree with the weight of authority finding a rational basis for

treating juveniles and adults differently. ( Ibid. ; accord, Sands

,

supra , 70 Cal.App. 5th at p. 204; Acosta

, supra , 60 Cal.App.5th at

pp. 779

– 780 [“The Legislature declined to include young adult

### 5

LWOP offenders in this amendment, presumably because

Montgomery [ v. Louisiana (2016) 577 U.S. 190 ] did not compel

such treatment for young adults”].) Accordingly, we reject

defendant’s equal protection challenge.

B. Section 3051 Does Not Render Defendant’s LWOP

Sentence Cruel or Unusual Punishment

D efendant does not dispute his LWOP sentence was

constitutional when imposed, but he argues section 3051

rendered his sentence cruel or unusual in violation of the

California Constitution by making him ineligible for a youth

offender parole hearing

. We disagree.

The Eighth Amendment to the United States Constitution,

which applies to the states ( People v. Caballero (2012) 55 Cal.4th

262, 265, fn. 1), prohibits the infliction of cruel and unusual

punishment. (U.S. Const., 8th Amend.) Our state counterpart

,

Article I, section 17 of the California Constitution, prohibits

infliction of “[c]ruel or unusual” punishment. (Italics added.)

This distinction in wording makes no analytical difference.

( People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7 [“No

distinction need be attached this difference from an analytical

perspective”]; see also People v. Baker (2018) 20 Cal.App.5th 711

,

733 ( Baker ) [“ There is considerable overlap in the state and

federal approaches ”].) The touchstone in each is whether a

defendant ’ s sentence “‘is grossly disproportionate to the severity

of the crime.’ [Citation.]” ( Ewing v. California (2003) 538 U.S.

11, 21 ( Ewing

); accord

, People v. Dillon (1983) 34 Cal.3d 441,

479.)

“‘[O]utside the context of capital punishment, successful

challenges to the proportionality of particular sentences have

### 6

been exceedingly rare.’ [Citation.]” ( Ewing

, supra

, 538 U.S. at

p. 21.) “There is no question that ‘the fixing of prison terms for

specific crimes involves a substantive penological judgment that,

as a general matter, is “properly within the province of

legislatures, not courts.”’ [Citation.] It is for this reason that

when faced with an allegation that a particular sentence amounts

to cruel and unusual punishment, ‘[r]eviewing courts

. . . should

grant substantial deference to the broad authority that

legislatures necessarily possess in determinin g the types and

limits of punishments for crimes

. . . .’ [Citation.]” ( People v.

Reyes (2016) 246 Cal.App.4th 62, 83.) “‘Only in the rarest of

cases could a court declare that the length of a sentence

mandated by the Legislature is unconstitutionally excessive.’”

( Baker

, supra

, 20 Cal.App.5th at p. 724 .) The sentence must be

“ so disproportionate to the crime for which it is inflicted that it

shocks the conscience and offends fundamental notions of human

dignity .” ( In re Lynch (1972) 8 Cal.3d 410

, 424 .) In assessing

whether this is the case

, c ourts consider (1) the degree of danger

which the offense and offender present to society;

(2) punishments prescribed in the same jurisdiction for more

serious offenses; and (3) punishments imposed for the same

offense in other jurisdictions

. ( Id

. at pp. 425

– 427. )

Here, defendant concedes his LWOP sentence “may not

meet the three

- part test ” for evaluating whether a particular

punishment is so disproportionate to the offense committed as to

constitute a cruel or unusual punishment

. Indeed, defendant

does not address any of the factors.

Moreover

, defendant states he is aware this court reached

“an arguably contrary conclusion ” in People v. Argeta (2012) 210

Cal.App.4th 1478

, 1482

. In Argeta

, this court rejected the

### 7

contention that a defendant’s sentence constituted c ruel or

unusual punishment where the defendant was 18 years and five

months old when he committed murder

. Argeta reasoned,

“[W]hile ‘[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.’” ( Ibid.

, quoting Roper v. Simmons

(2005) 543 U.S. 551, 554.) Defendant contends Argeta is not

instructive because it was decided before section 3051 was

enacted. He asserts the line “ has been redrawn, by the

Legislature, at 26 years of age.” However, after the enactment of

section 3051, our Supreme Court reaffirmed the age of 18 as the

line our society uses to separate childhood from adulthood for

many purposes, including the propriety of criminal punishments

,

such as the death penalty

. ( See People v. Tran (2022) 13 Cal.5th

1169, 123 4 [noting section 3051 did “‘not establish the “national

consensus” necessary to justify a categorical bar on the death

penalty for individuals between the ages of 18 and 21 at the time

of their offenses’” ]. )

Defendant does not otherwise explain why Argeta ’s

reasoning is inapplicable to section 3051’s inclusion of juveniles

sentenced to LWOP and its exclusion of defendants sentenced to

the same term for committing a special circumstance murder

between the ages of 18 and 26. ( See also Hardin

, supra

, 15

Cal.5th at p. 854 [“the structure and history of the expansion [of

section 3051] make clear that the Legislature sought to balance

[comparable opportunities to obtain release] with other,

sometimes competing, concerns, including concerns about

culpability and the appropriate level of puni shment for certain

very serious crimes”].) Therefore, we reject defendant’s

### 8

contention section 3051 rendered his LWOP sentence cruel or

unusual punishment.

DISPOSITION

The order denying defendant’s motion is affirmed

.

MORI , J

.

We concur:

CURREY , P. J.

ZUKIN , J.