THE PEOPLE, Plаintiff and Respondent, v. FRANK ELI HEARD, Defendant and Appellant.
D079237
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 9/20/22
CERTIFIED FOR PUBLICATION; (Super. Ct. No. SCD193832)
Eric R. Larson under appointment by the Court of Appeal, for Defendant and Appellant.
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 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
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
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 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 wаs 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 (
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 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 sеntence 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 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
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 nоt commit homicide. (Graham, supra, 560 U.S. at p. 82.) The Graham court observed:
“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
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
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 сhildren.” (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 and cautioned
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), thе 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
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
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
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. (
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. (
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 tyрe of error, and . . . is not well suited to serve this purpose.” (Id. at p. 1052.) It further explained the procedure
“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.)
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]оntrolling 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
years to life, or a life term of 25 years to life.8 (Stats. 2013, ch. 312, § 4;
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
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 Januаry 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.
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
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.
IV. Heard‘s Petition for Recall and Resentencing
In March 2021, Heard filed in the trial court a petition for recall and resentencing under
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
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
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.)
“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
In ruling that Heard was ineligible to petition for recall and resentencing, the trial court relied on
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,
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,
Second,
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. (
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 committeе analysis of Senate Bill 9 observed that
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,
All of these considerations lead to the conclusion that eligibility under
Second, Heard contends we should construe
For all of these reasons, we conclude
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
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 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
A. Heard Is Similarly Situated With the Juvenile Offenders Eligible to Seek Resentencing Under Section 1170, Subdivision (d)(1)
“The
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
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 сannot. As we have already explained,
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
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
Here, we conclude Heard is similarly situated for purposes of
It is true, as the People contend, that Franklin held that because the defendant had become eligible for a youth offender parоle 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
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
The appellаte court disagreed. It explained that former section 1170.95 was enacted in conjunction with legislation that “amend[ed]
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
We conclude that for purposes of
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 tеst. 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 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
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.
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
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
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
We will therefore reverse the trial court‘s order denying Heard‘s petition for recall and resentencing on the ground that his sentence renderеd 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.
(See
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.