Filed 9/3/24 P. v. Scott CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARQUS SCOTT,

Defendant and Appellant.

B329373

Los Angeles County

Super. Ct. No. BA448436

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Lisa B. Lench, 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, Assistant 

Attorney General, Zee Rodriguez and Michael C. Keller, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________
2

At a resentencing hearing, Marqus Scott requested the 

court conduct a hearing pursuant to People v. Franklin (2016) 

63 Cal.4th 261 (Franklin) to preserve evidence for his future 

youth offender parole hearing. The court denied the request on 

the ground that Scott was statutorily ineligible for youth offender 

parole, and Scott appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Scott was born in September 1996. At age 17, Scott 

committed second degree robbery (Pen. Code,1 §211); the juvenile 

court later declared Scott a ward of the court pursuant to Welfare 

and Institutions Code section 602.

As described in the opinion in Scott’s prior appeal,2 on 

March 14, 2016, Scott, age 19, participated in a drive-by shooting 

that killed Bradford Smith. (People v. Scott (Mar. 2, 2022, 

B301478) [nonpub. opn.]) In February 2016 and July 2016 police 

discovered Scott was in possession of a firearm. (Ibid.) Scott was 

convicted of special circumstances murder (§§ 187, subd. (a); 

190.2, subd. (a)(21), (22)) and two counts of unlawful firearm 

activity (§ 29820, subd. (b)). (Scott, supra, B301478.) The trial 

court found Scott was subject to the enhanced sentencing 

provisions of the “Three Strikes” law (§§ 667, subds. (b)–(j), 

1170.12, subds. (a)–(d)) because his juvenile adjudication 

1 Further statutory references are to the Penal Code unless 

otherwise indicated.

2 Scott requested we take judicial notice of certain pages of 

our March 2, 2022 opinion from Scott’s earlier appeal, case No. 

B301478. We take judicial notice of the entire opinion. (Evid. 

Code, §§ 452, 459, subd. (a).)
3

constituted a prior serious or violent felony conviction for 

purposes of sentence enhancement.

In Scott’s first appeal, we vacated the gang-related special 

circumstance and enhancement findings due to changes in the 

applicable law, and we remanded the matter to permit the People 

to elect whether to retry the vacated allegations. (People v. Scott, 

supra, B301478.) On remand, the People elected not to retry 

those allegations.

At resentencing, the court sentenced Scott to life in prison 

without the possibility of parole (LWOP) for Smith’s murder, plus 

a consecutive determinate sentence of five years four months for 

the two counts of unlawful firearm activity. Scott asked the court 

to set a Franklin hearing to preserve evidence pertinent to a 

future youth offender parole hearing. The trial court refused on 

the ground that because Scott had been sentenced to LWOP, he 

was statutorily ineligible for a youth offender parole hearing.

Scott appeals.

DISCUSSION

Section 3051 requires the Board of Parole Hearings (Board)

to conduct a youth3 offender parole hearing during the 15th, 20th, 

or 25th year of a defendant’s incarceration if the defendant was 

25 years or younger at the time of the “controlling offense,” that 

is, “the offense or enhancement for which any sentencing court 

imposed the longest term of imprisonment.” (§ 3051, 

subds. (a)(2)(B), (b)(1)–(3).) “A person who was convicted of a 

controlling offense that was committed when the person was 

3 We refer to those over 18 years of age but younger than 26 

years at the time of their offense as youth offenders, and to those 

under 18 years of age at the time of their offense as juveniles.
4

25 years of age or younger and for which the sentence is a life 

term of 25 years to life shall be eligible for release on parole at a 

youth offender parole hearing during the person’s 25th year of 

incarceration.” (Id., subd. (b)(3).) Several categories of offenders, 

however, are excluded from eligibility pursuant to section 3051, 

subdivision (h), including offenders such as Scott who were 

“sentenced to [LWOP] for a controlling offense that was 

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

Offenders who are eligible for youth offender parole 

hearings are entitled to what is termed a “Franklin hearing” “to 

provide an opportunity for the parties to make an accurate record 

of the juvenile [or youth] offender’s characteristics and 

circumstances at the time of the offense so that the Board, years 

later, may properly discharge its obligation to ‘give great weight 

to’ youth-related factors” at the eventual hearing. (Franklin, 

supra, 63 Cal.4th at p. 284.)

On appeal, Scott argues the trial court erroneously denied 

his Franklin hearing request because section 3051 violates the 

constitutional guarantee of equal protection and prohibition 

against cruel or unusual punishment.

I. Equal Protection

Scott’s first equal protection argument is that section 3051 

denies him equal protection of the laws under the Fourteenth 

Amendment because there is no rational basis to deny a youth 

offender with an LWOP sentence a parole hearing when youth 

offenders not sentenced to LWOP receive one. As Scott 

acknowledges in his reply brief, the California Supreme Court’s 

recent decision in People v. Hardin (2024) 15 Cal.5th 834

(Hardin) forecloses this contention. In Hardin, the Supreme 

Court held that “section 3051’s exclusion of young adult offenders 
5

sentenced to [LWOP] is [not] constitutionally invalid under a 

rational basis standard, either on its face or as applied 

to . . . individuals who are serving [LWOP] sentences for special 

circumstance murder.” (Id. at p. 839.)

Scott’s second equal protection argument is that there is no 

rational basis for distinguishing between juveniles sentenced to 

LWOP, who are eligible for a parole hearing (§ 3051, subd. (b)(4)), 

and youth offenders sentenced to LWOP, who are not eligible for 

such a hearing (id., subd. (h)). The courts that have considered 

this argument have rejected it, and we agree with their analysis. 

(E.g., People v. Sands (2021) 70 Cal.App.5th 193, 202–205

[Legislature may rationally extend the possibility of parole to

those whose crimes are less grave than special circumstance 

murder, a crime it “ ‘deems so morally depraved and so injurious 

as to warrant a sentence that carries no hope of release for the 

criminal and no threat of recidivism for society’ ”]; In re Murray

(2021) 68 Cal.App.5th 456, 463–465 [“dr[awing] the line at 

adulthood” has a rational basis] (Murray); People v. Morales

(2021) 67 Cal.App.5th 326, 345–349 (Morales) [“for purposes of 

LWOP offenders, the line drawn at 18 is a rational one”]; cf. In re 

Jones (2019) 42 Cal.App.5th 477, 482 (Jones) [“By drawing the 

line at a defendant’s 18th birthday, the Legislature has chosen to 

target the youngest, and presumably most deserving, of the group 

of youthful offenders whose brains were still developing and 

whose judgment had not yet matured. While young adults share 

many of the attributes of youth, they are by definition further 

along in the process of maturation, and the law need not be blind 

to the difference”].) Additionally, although it was not considering 

the same exclusion from parole eligibility under section 3051, 

subdivision (h), the California Supreme Court has recently stated 
6

that young adults and juveniles are “constitutionally different” 

for purposes of sentencing, and it rejected the argument that the 

Legislature, having extended parole eligibility from juveniles to 

youth offenders, must “treat young adults the same as it treats 

juveniles” in the section 3051 context. (People v. Williams (Aug. 

29, 2024, S262229) __Cal.5th __ [applying Hardin and finding a 

rational basis for section 3051, subdivision (h)’s exclusion of 

defendants sentenced under the One Strike Law (§ 667.61) from 

parole eligibility].)

We follow the Hardin Court and many others in finding no 

equal protection violation in this context but highlighting the 

need for additional legislative attention to this issue. (Hardin,

supra, 15 Cal.5th at p. 864; see, e.g., Murray, supra,

68 Cal.App.5th at p. 464; Morales, supra, 67 Cal.App.5th at 

p. 349; People v. Jackson (2021) 61 Cal.App.5th 189, 201–202 

(conc. opn. of Dato, J.); People v. Acosta (2021) 60 Cal.App.5th 

769, 781 (Acosta); People v. Montelongo (2020) 55 Cal.App.5th 

1016, 1035–1036 (conc. opn. of Segal, J.) (Montelongo); Jones, 

supra, 42 Cal.App.5th at pp. 486–487 (conc. opn. of Pollak, J.).) 

As the Hardin Court explained, “Special circumstance murder is 

an unquestionably grave offense, one that exacts an 

unimaginable toll on the lives of victims and those the victims 

leave behind. But we also know that young people—even young 

people who have committed grave offenses—are capable of 

significant, sometimes transformative, change over the course of 

their lifetimes. To extinguish any hope of release, particularly for 

an individual just past the cusp of adulthood, is a form of 

retribution that exacts its own price—one borne not just by the 

individuals involved, but by their families, by their communities, 

and by society as a whole.” (Hardin, at pp. 864–865.)
7

II. Cruel or Unusual Punishment

In an argument essentially reframing his first equal 

protection claim, Scott contends section 3051’s extension of youth 

offender parole hearings to most but not all youth offenders 

causes LWOP sentences for youth offenders to be grossly 

disproportionate to the offenses for which they were imposed, 

rendering them cruel or unusual under the California 

Constitution. (Cal. Const., art. I, § 17.) Scott concedes his LWOP 

sentence “may not meet the three-part test set forth in In re 

Lynch” (1972) 8 Cal.3d 410, 424–427 for determining whether a 

punishment is cruel or unusual pursuant to the California 

Constitution, but maintains it is nonetheless grossly 

disproportionate because it fails to take into account the reduced 

culpability of youth offenders.

In Hardin, the California Supreme Court held the 

Legislature had a rational basis for excluding youth offenders 

serving LWOP sentences from the extension of youth offender 

parole hearings. “[T]he Legislature consciously drew lines that 

altered the parole component of offenders’ sentences based not 

only on the age of the offender (and thus the offender’s 

amenability to rehabilitation) but also on the offense and 

sentence imposed. The lines the Legislature drew necessarily 

reflect a set of legislative judgments about the nature of 

punishment that is appropriate for the crime.” (Hardin, supra, 

15 Cal.5th at p. 855.)

The California Supreme Court explained, “Life without 

parole is the most severe sentence of imprisonment in California 

law, applicable only in cases of special circumstance murder and 

a small number of other offenses the law regards as particularly 

serious. By excluding persons sentenced to life without parole 
8

from youth offender parole proceedings, the Legislature exercised 

its prerogative to define degrees of culpability and punishment by 

leaving in place longstanding judgments about the seriousness of 

these crimes and, relatedly, the punishment for them.” (Hardin,

supra, 15 Cal.5th at p. 853, fn. omitted.) The court stated, “The 

statutory framework indicates that the Legislature aimed to 

increase opportunities for meaningful release for young adult 

offenders, while taking into account the appropriate punishment 

for the underlying crimes, depending on their severity. These are 

essentially the same considerations involved whenever the 

Legislature exercises its responsibility ‘for determining which 

class of crimes deserves certain punishments and which crimes 

should be distinguished from others.’ [Citation.] They are also 

not dissimilar from the considerations that prompted the high 

court to distinguish, for Eighth Amendment purposes, between 

sentencing juveniles for homicide offenses and sentencing 

juveniles for nonhomicide offenses. (Miller [v. Alabama (2012) 

567 U.S. 460, 473 (Miller)] [based on considerations of ‘both 

moral culpability and consequential harm,’ juvenile homicide 

offenders, unlike juvenile nonhomicide offenders, may be 

sentenced to life without possibility of parole, but only after 

individualized sentencing that gives appropriate consideration to 

the mitigating attributes of youth].) Much as the high court 

invoked culpability-related concerns to distinguish among crimes 

in that context, it is reasonable to infer that the Legislature 

considered such concerns in this one.” (Hardin, at pp. 855–856.)

Given that the Hardin Court found a rational basis for

section 3051’s distinction between youth offenders sentenced to

LWOP and youth offenders not sentenced to LWOP, it is difficult 

to envision how the same distinction could render an LWOP 
9

sentence “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, supra, 8 Cal.3d at p. 424.) Scott 

does not address this tension in his reply brief, filed after Hardin

was decided; he simply asserts that because there was no cruel or 

unusual punishment claim in Hardin, that decision does not 

affect the analysis here.

California courts have uniformly rejected the argument 

that LWOP sentences imposed on young adults between the ages 

of 18 and 25 constitute cruel and unusual punishment. (E.g., 

Acosta, supra, 60 Cal.App.5th at pp. 781–782 [LWOP for a 21-

year-old offender on autism spectrum did not violate Eighth 

Amendment]; People v. Windfield (2021) 59 Cal.App.5th 496, 

525–526 [despite scientific literature showing the features of 

juveniles extend to 18 year olds, “we are bound by precedent and 

there is no precedent for us to declare that Miller applies to 18 

year old[]s”]; Montelongo, supra, 55 Cal.App.5th at pp. 1030–1032 

[LWOP for an 18-year-old offender did not violate the Eighth 

Amendment]; People v. Abundio (2013) 221 Cal.App.4th 1211, 

1220–1221 [LWOP for an 18-year-old defendant was “not cruel 

and/or unusual”].) 

Although Scott points out that Acosta, Windfield, and 

Montelongo concern cruel and unusual punishment claims under 

the Eighth Amendment rather than claims under the California 

Constitution, he does not provide any cogent argument why this 

distinction makes a difference here. (See People v. Baker (2018) 

20 Cal.App.5th 711, 733 [noting the “considerable overlap in the 

state and federal approaches” to cruel and/or unusual 

punishment, both of which prohibit grossly disproportionate 

punishment].) As the California Supreme Court has held that it 
10

does not violate either federal or state constitutional prohibitions 

on cruel and/or unusual punishment to sentence youth offenders 

who commit special circumstance murder to the death penalty 

(People v. Tran (2022) 13 Cal.5th 1169, 1234–1235), the lesser 

sentence of LWOP for special circumstances murder is 

necessarily constitutional.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J