Filed 6/13/24 P. v. Keith CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. JOHN ALAN KEITH, Defendant and Appellant. G062211 (Super. Ct. No. C

- 44185)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.

Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Maxine Hart, Deputy Attorney s General, for Plaintiff and Respondent.2 Appellant John Alan Keith was convic ted of, among other offenses , special
circumstances murder and sentenced to life in prison without the possibility of parole (LWOP). He was 21 years old at the time he committed the crimes. Decades later, h e filed a motion in the trial court seeking a Franklin/Cook proceeding

. 1 The trial court
denied the motion , concluding Keith was ineligible for a youth offender parole hearing (YOPH) because he was a young adult offender 2 sentenced to LWOP

. (Pen

. Code , § 3051, subd. ( h) (all undesignated statutory references are to this code) .)

On appeal, Keith asserts the exclusion of young adult offenders sentenced
to LWOP from eligibility for YOPHs violates the equal protection clause of the
Fourteenth Amendment to the United States Constitution and the California Constitution (Cal. Const., art. I, § 7, subd. (a)). He argues there is no rational basis for treating young adult offenders sentenced to LWOP differently from two groups who are eligible for
YOPHs : (1) young adult offender s sentenced to parole

- eligible life i m prison ment or de
facto LWOP ; and (2) juvenile offender s sentenced to LWOP. While there previously was a split of authority regarding the first issue , the California Supreme Court recently resolved the sp lit and concluded there is no equal protection violation for the exclusion of young adult offenders sentenced to LWOP for special circumstance murder . ( People v.
Hardin (2024) 15 Cal.5th 834, 838

– 840 ( Hardin ).) T he California Supreme Court did not directly address the latter issue , but another panel of this court previously found no equal protection violation because a rational basis exists for treating these two populations different ly under the law. ( People v. Acosta (2021) 60 Cal. App.5th 769, 779

–

1 Under People v. Franklin (2016) 63 Cal.4th 261 and In re Cook (2019) 7 Cal.5th 439, this proceeding allows a defendant to develop and preserve evidence to eventually use at a youth offender parole hearing.

2 For brevity and clarity, this opinion refers to individuals who committed a crime while under the age of 18 as “ juvenile offenders ” and individuals who committed a crime between the ages of 18 and 25 as “ young adult offenders. ”3

780 ( Acosta ).) We agree with Acosta and likewise find no equal protection violatio n here . We also disagree with Keith ’ s other argument that his exclusion from a YOPH and
LWOP sentence violate the California Constitution ’ s prohibition aga inst cruel or unusual punishment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND In 1981, a jury convicted Keith of first degree murder (§ 187), robbery (§ 211), and residential burglary (§ 459). The jury also found true special circumstances allegations the murder was committed in the commission of a robbery and a residential burglary (§ 190.2 )

. Keith was 21 years old when he committed the crimes. He was sentenced to LWOP.

In November 2022, Keith filed a motion in the trial court for a
Franklin/Cook proceeding and appointment of counsel. Keith argued the exclusion of young adult offenders sentenced to LWOP from YOPHs violated equal protection. He
also asserted this exclusion and his LWOP sentence violated the California Constitution ’ s prohibition against cruel or unusual punishment. The trial court denied the motion. The
trial court concluded Keith was “ statutorily ineligible for a [YOPH] because he stands convicted as an adult offender of special circumstanc es first degree murder sentenced to [LWOP]

. ” The trial court rejected Keith ’s equal protection and cruel or unusual punishment arguments

. 3

DISCUSSION

“ California ’ s youth offender parole statute offers opportunities for early release to certain persons w ho are incarcerated for crimes they committed at a young

age. ” ( Hardin, supra , 15 Cal.5th at p. 838.) T he statute provides , among other things,

3 The trial court also found Keith failed to include a proof of service. On appeal, the Attorney General does not contend we should affirm because of the failure to include a proof of service . As we affirm for other reasons discussed post , we need not address the proof of service issue.4

that juvenile offenders sentenced to LWOP are “ eligible for release on parole at a [YOPH] during the person ’ s 25th year of incarceration. ” (§ 3051, subd. (b)(4).) While

“ most [young adult offenders] are entitled to a parole hearing during the 15th, 20th, or 25th year of their incarceration ” ( Hardin, supra , 15 Cal.5th at p. 838 ) , certain young adult
offenders are not eligible for a YOPH . As relevant here, section 3051 , subdivision (h)
excludes from YOPH eligibility an i ndividual “sentenced to [LWOP] for a controlling
offense that was committed after t he person had attained 18 years of age.” ( S ee Hardin,

supra , 15 Cal.5th at pp. 838

– 839 .) 4

Keith does not dispute that , pursuant to section 3051, subdivision (h), he is ineligible for a YOPH because he was sentenced to LWOP for an offense he committed when he was 21 years old. Instead, Keith argues the exclusion of young adult offender s sentenced to LWOP from YOPH eligibility violates equal protection and the prohibition against cruel or unus ual punishment in the California Constitution

. As discussed post , Keith ’ s arguments are unavailing.
I.
E QUAL P ROTECTION

“‘ The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee all per sons the equal protection of the
laws. ’” ( Acosta, supra , 60 Cal.App.5th at p. 778.) Courts previously have applied a two

part inquiry to equal protection claims. ( Hardin, supra , 15 Cal.5th at p. 841.) However,
in Hardin, supra , 15 Cal.5 th at pages 850

– 851, the California Supreme Court recently explained , “ w hen plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, ” “ [t]he only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is

4 “‘ C ontrolling offense’ means the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).)5

on the party challenging the law to show that it is not. ” 5 We independently review Keith’s challenge to se ction 3051 as offending constitutional guarantees of equal protection . (

Jackson, supra, 61 Cal.App.5th at p. 195.)
Keith does not dispute the rational basis standard of review is applicable
here

. “ Under this deferential standard, we presume that a given statutory classification is
valid ‘ until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. ’” ( Hardin, supra , 15 Cal.5th at p. 852.) Additionally, “ [t]he underlying rationale for a statutory classification need not have been ‘ ever actually
articulated ’ by lawmakers, nor ‘ be empirically substantiated. ’” ( Ibid. ) As the California Supreme Court has explained , “ a court reviewing a statute under this sta ndard must ‘ treat the statute ’ s potential logic and assumptions far more permissively than with other standards of constitutional or regulatory review. ’ [Citation.] ‘ If a plausible basis exists for the disparity, courts may not second

- guess its “‘ wisdom, fairness, or logic. ’” ’ [Citation.] ‘ [T]he logic behind a potential justification need [not] be persuasive or
sensible

—

rather than simply rational. ’” ( Ibid. , fn. omitted ; third and f ourth brackets in original

. ) Here, Keith argues section 3051’s denial of YOPH s to young adult offenders
sentenced to LWOP violates equal protection.

First , Keith argues there is no rational basis for excluding young adult
offenders sentenced to LWOP from YOPHs while making YOPHs available to young adult offenders sentenced to life in prison or de facto LWOP. There previously was a split of authority on this equal protection issue, whereby a panel of this court in Acosta,

supra , 60 Cal.App.5th at pages 780

– 781, along with several other appellate courts , reject ed si milar arguments and conclud ed there was no equal protection violation . ( See Hardin, supra , 15 Cal.5th at p. 842, fn. 1.) However, while this appeal was pending, in

5 “‘ The California equal protection clause offers substantially similar protection to the federal equal protection clause. ’” ( People v. Jackson (2021) 61 Cal.App.5th 189, 195 ( Jackson ).)6

Hardin, supra , 15 Cal.5th at pages 839

– 842, th e California Supreme Court resolved the spli t , reversing “[t]he Court of Appeal [which] was the first to conclude that section 3051’s exclusion of young adults sentenced to life without parole violated equal protection” ( id. , at p. 8 42, fn. 1 )

.

In Hardin , the defendant, who was sentenced to LWOP for a special
circumstance murder he committed when he was 25 years old, challenged his exclusion
under section 3051 as violating equal protection. ( Hardin, supra , 15 Cal.5th at pp. 839,
846

– 847.) The California Supreme Court “ conclude [d] that Hardin has not demonstrated
that

. . . section 3051 ’ s exclusion of young adult offenders sentenced to life without parole is constitutionally invalid under a rational basis standard, either on its face or as applied to Hardin and other individuals who are serving [LWOP] sentences for special
circumstance murder. ” (

Id. at p. 839.) As the Supreme Court explained, “ special circumstance murder is a uniquely serious offense, punishable only by death or [LWOP,] ”
and “ [w]hen it was considering whether t o expand the youth offender parole system to include not only juvenile offenders but also certain young adults, the Legislature could rationally balance the seriousness of the offender ’ s crimes against the capacity of all young adults for growth, and deter mine that young adults who have committed certain very serious crimes should remain ineligible for release from prison. ” ( Ibid. ) Given the
California Supreme Court ’ s holding in Hardin , Keith ’ s argument fails. 6

Second , Keith asserts there is no rational basis for excluding young adult
offenders sentenced to LWOP from YOPH s but including juvenile offenders sentenced to

6 While Hardin did not “resolve

. . . the constitutionality of section 3051, subdivision (h) as it might arise in other as

- applied challenges based on particular special circumstances or the factual circumstances of individual cases[,]” Keith has not made any equal protection arguments based on his specific special circumstances or factual circumstances. (

Hardin, supra , 15 Cal.5th at p. 864.) As in the instant case, the special circumstance at issue in Hardin was murder during the commission of a robbery. ( Hardin, supra , 15 Cal.5th at p. 840.)7

LWOP. This argument was not directly addressed in Hardin

. 7 ( Hardin, supra , 15 Cal.5th

at p p. 84 0

– 84 1 , 846

. ) But a panel of this court has p reviously concluded “ there is a rational basis for distinguishing between juvenile LWOP offenders and young adult
LWOP offenders: their age. ” ( Acosta, supra , 60 Cal.App.5th at p. 779.) The Acosta

court explained : “ S ection 3051 has always excluded young adult LWOP offenders, and until 2017 it also excluded juvenile LWOP offenders. Section 3051 now affords a [YOPH] to juvenile LWOP offenders to comply with Montgomery [ v. Louisiana (2016) 577 U.S. 190] wi thout resorting to costly resentencing hearings. [Citation.] The Legislature declined to include young adult LWOP offenders in this amendment, presumably because Montgomery did not compel such treatment for young adults. ” ( Acosta, supra , 60 Cal.App.5th at pp. 779

– 780 .)

Thus, the appellate court in Acosta concluded “ [t]he Legislature

. . . had a constitutionally sufficient basis for distinguishing juvenile LWOP offenders from young
adult LWOP offenders. ” ( Acosta, supra , 60 Cal.App.5th at p. 780

. ) Keith ’ s arguments do
not convince us to diverge from the conclusion reached in Acosta

. Indeed, other appellate courts have reached the same conclusion. (See, e.g., Jackson, supra , 61 Cal.App.5th at pp. 196

– 197 [rejecting equal protection argument because “ both the United States Supreme Court and our [California Supreme Court] have repeatedly found the bright

- line drawn between juveniles and nonjuveniles to be a rational one when it comes to criminal sentencing ” ] ; In re Murray (2021) 68 Cal.App.5th 456, 46 3

– 464 [rejecting equal protection argument and recognizing, “ [w]hen it comes to criminal sentencing, the United States and California Supreme Courts have found the line drawn between juveniles and nonjuveniles to be a rational one ” ]

. )

7 The Court of Appeal in Hardin had rejected this argument, which the defendant did not challenge in the Supreme Court. ( Hardin, supra , 15 Cal.5th at pp. 840

– 841, 846.)8 In sum, Keith ’ s equal protection arguments are unavailing. While the court
in Acosta previously expressed some reservations about the equal protection analysis
discussed ante , “ we cannot insert our own policy concerns into the analysis. As noted,

‘ [e]qual protection a nalysis does not entitle [us] to second

- guess the wisdom, fairness, or logic of the law. ’ ” (

Acosta, supra , 60 Cal.App.5th at p. 781.)

II.
C RUEL OR U

NUSUAL P UNISHMENT The California Constitution prohibits “ [c]ru el or unusual punishment[.] ” (Cal. Const., art. I, § 17.) 8 “ [A] sentence will not be found unconstitutional under the California Constitution unless it is so disproportionate to the defendant ’ s crime and
circumstances that it shocks the conscience or offends traditional notions of human dignity. ” ( People v. Perez (2016) 3 Cal.App.5th 612, 616 ( Perez ). ) The California Supreme Court has described three “ techniques ” to aid in determining whether a sentence is so disproportionate that it is unconstitutional : (1) “ examin [ ing ] the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society ” ; (2) “ compar[ing] the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the s ame test, must be deemed more
serious ” ; and (3) “ compar[ing]

. . . the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. ” ( In re Lynch (1972) 8 Cal.3d 41 0, 425

– 427 , italics omitted ( Lynch ).) “‘Whether a punishment is cruel or unusual is a question of law for the

8 The California Constitution prohibits “cruel or unusual” punishment and the United States Constitution prohibits “cruel and unusual” punishment. “‘The distinction in wording is “purposeful and substantive rather than merely semantic.”’” ( People v. Baker (2018) 20 Cal.A pp.5th 711, 723.) But “[t]here is considerable overlap in the state and federal approaches. ‘Although articulated slightly differently, both standards prohibit punishment that is “grossly disproportionate” to the crime or the individual culpability of th e defendant.’” ( Id. at p. 733.)9

appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.’” ( People v. Gomez (2018) 30 Cal. App.5th 493, 49 9 .)

On appeal, Keith does not focus on any of the disproportionality techniques. Instead, he argues the exclusion of young adult offenders sentenced to
LWOP from YOPHs violates the California Constitution ’s prohibition against cruel or unusual punishment becaus e a mandatory LWOP sentence for a ny young adult offender is categorically cruel and excessive. In his opening brief, Keith recognizes “ the Eight h
Amendment [ to the United States Constitution] has so far been construed to bar mandatory LWOP only for minors, ” but he asserts “ California recognizes the scientific principles that extend mitigated culpability up to the age of 25. ” According to Keith , under the framework of Lyn ch
, supra , 8 Cal.3d 410, “ mandatory LWOP for a 21

- year old
offender ‘ shocks the conscience ’ because California has accepted the science generally establishing reduced culpability for offenders up to the age of 25. ”

In Miller v. Alabama (2012) 567 U.S. 460, 465 ( Miller ), the Unit ed States Supreme Court held “ mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment ’ s prohibition on ‘ cruel and unusual punishments. ’” In Acosta, supra , 60 Cal.App.5th at pages 781

– 782, a pan el of this court declined t o extend Miller to apply to young adult offender s sentenced to LWOP

. ( S ee also People v. Montelongo (2020) 55 Cal.App.5th 1016, 103 0

– 103 2 [recognizing “courts have limited the holdings of Miller to cases involving defendants under the age of 18”] ; Perez, supra, 3 Cal.App.5th at p. 617 [ finding “ new insights and societal understandings about the juvenile brain ” do not require a conclusion th at “ the bright line of 18 years old in the criminal sentencing context is unconstitutional”]; People v. Abundio (2013) 221 Cal.App.4th 1211, 1213, 1220

– 1221 [concluding an LWOP sentence for a special
circumstance murder committed when the defendant was 18 years old did not constitute cruel or unusual punishment under the California Constitution]

. )10 The California Supreme Court has also rejected arguments the death penalty is categorically barred for offenders between the ages of 18 to 20 years as cruel or unusual punishment

. In People v. Tran (2022) 13 Cal.5th 1169, 1234 ( Tran ) , the California Supreme Court was not persuaded that “imposing the death penalty on persons
for crimes commi t ted while they were 18 to 20 years old violates the state and federal Constitutions because it is cruel and unusual punishment and because a death sentence cannot be reliably imposed on such youthful offenders

. ” The court “observed that ‘the [United States Supreme Court] in Roper [ v. Simmons (2005) 543 U.S. 551] rec ognized that the “‘“qualities that distinguish juveniles from adults do not disappear when an individual turns 18,”’” but nonetheless held that the “‘“age of 18 is the point where society draws the line for many purposes between childhood and adulthood”’” and is “‘“the age at which the line for death eligibility ought to rest.”’”’” ( Tran, supra , 13 Cal.5th at pp. 1234

– 1235.) Notwithstanding the Legislature’s expansion of section 3051

to apply to some young adult offenders, the Supreme Court in Tran explai ned “‘these developments do 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.’” ( Tran, supra , 13 Cal.5 th at p. 1235.)

Keith also argues “California has cast its net wider than the [United States] Supreme Court in applying the scientific principles concerning the mitigating culpability of youth from beyond juveniles up to the age of 25, in enacting and later amending
section 3051 an d other penal statutes.” However, s ince the California Supreme Court has found no categorical bar to the imposition of the death penalty for offenders between the ages of 18 to 20, we do not find mandatory LWOP sentences for young adult offenders
absolute ly prohibited under the California Constitution. (See In re Williams (2020) 57 Cal.App.5th 427, 439 [concluding, “[i]f the Eighth Amendment does not prohibit a sentence of death for 21 year olds,” then it also “does not prohibit the lesser LWOP sentence”] .) The Legislature’s decision to permit some, but not all, young adult offenders11

to be eligible for a YOPH d oes not automatically render mandatory LWOP sentences for young adult offenders categorically unconstitutional as cruel or unusual punishment.
DISPOSITION The order denying Keith a Franklin/Cook proceeding is affirmed.

MOTOIKE , J.

WE CONCUR:

O’LEARY, P. J.

GOODING, J.