THE PEOPLE, Plaintiff and Respondent, v. GREGORY MOORE, Defendant and Appellant.
B308386
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 9/10/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. TA043305)
H. Clay Jacke II, Judge.
APPEAL from an order of the Superior Court of Los Angeles County. H. Clay Jacke II, Judge. Affirmed.
Wayne C. Tobin, 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 and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and
Gregory Moore appeals from the order of the court denying his petition for a youth offender evidence preservation proceeding in accordance with People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Appellant also requests that the five-year prior serious felony enhancement imposed under
PROCEDURAL2 BACKGROUND
In 1997, appellant was convicted following a jury trial of one count of murder (
On September 29, 2020, the trial court denied appellant‘s petition for a Franklin proceeding on the ground that appellant is ineligible for a youth
DISCUSSION
I. Section 3051, subdivision (h) Does Not Violate Equal Protection
Appellant was 21 years old when he committed the offenses in this case and contends that the exclusion of youth offenders who were sentenced under the Three Strikes law from eligibility for a youth offender parole hearing violates equal protection. We disagree.
A. Youth offender parole hearings
With the enactment of
were sentenced under the Three Strikes law.4 (Ibid.) Appellant maintains this disparate treatment of Three Strikes youth offenders violates equal protection.
Under the
sentenced differently, courts look to determine whether there is a rational basis for the difference.’ ” (Wilkes, supra, 46 Cal.App.5th at p. 1165, quoting People v. Edwards (2019) 34 Cal.App.5th 183, 195 (Edwards); People v. Chatman (2018) 4 Cal.5th 277, 289 (Chatman).)
“A classification in a statute is presumed rational until the 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.” (Chatman, supra, 4 Cal.5th at p. 289.)
To successfully challenge a statute as violative of equal protection under a rational basis standard, the party must negate every conceivable basis for the disparate treatment. (Heller v. Doe (1993) 509 U.S. 312, 320; Edwards, supra, 34 Cal.App.5th at p. 195.) Indeed, a classification does not violate equal protection if there is any rational relationship between the disparity of treatment and some legitimate governmental purpose. (Heller, at p. 320.) “If a plausible basis exists for the disparity, ‘[e]qual protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law.’ ” (Edwards, at pp. 195–196; Wilkes, supra, 46 Cal.App.5th at p. 1165; People v. Turnage (2012) 55 Cal.4th 62, 74.)
C.
Appellant contends he is similarly situated to youth offenders who were not sentenced under the Three Strikes law and the differential treatment of youth offenders with prior strikes and those without under
Wilkes observed, “Numerous courts have rejected equal protection challenges to the differential treatment of Three Strikes offenders, concluding that such offenders are not similarly situated to nonrecidivist offenders and/or that a rational basis exists to treat them differently.” (Wilkes, supra, 46 Cal.App.5th at p. 1165.) Thus, as the court in Cooper reasoned: “A person who has committed and been convicted of two serious or violent felonies before the instant offense is a recidivist who has engaged in significant antisocial behavior and who has not benefited from the intervention of the criminal justice system. He is the prototype of the repeat offender for whom the three strikes legislation was drafted. It is reasonable for the
Legislature to distinguish between those felons, like appellant, who come to court with a history of serious or violent felony convictions and those who do not. Such exercise of legislative discretion cannot be defeated simply by the argument that at the end of a mathematical process the offenders have committed an equal number of serious and nonserious felonies. The Legislature is entitled to treat recidivist felons of the type described in the three strikes law more harshly than those recidivists who have not yet qualified.” (Cooper, supra, 43 Cal.App.4th at p. 829; see People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332 [“The system of imposing greater punishment on all persons who commit a felony-grade crime after having committed one or more serious or violent felonies in the past, is rationally related to the legitimate public objective of discouraging recidivism“]; People v. Spears (1995) 40 Cal.App.4th 1683, 1688 [“It is clear the Legislature intended to set appellant and other recidivists with prior ‘strike’ convictions apart from first time offenders and those with less serious criminal histories; it is equally clear it did so with a legitimate objective in mind“]; People v. McCain (1995) 36 Cal.App.4th 817, 820 [“The Legislature
Appellant relies on Edwards, supra, 34 Cal.App.5th 183 to argue there is no rational basis to distinguish between a youth offender whose immaturity, impulsiveness, and susceptibility to peer pressure caused him to commit a crime earlier in his youth that qualifies as a strike and the youth offender who, despite a
long criminal record, has no prior strike convictions. In Edwards, Division Four of the First District Court of Appeal held
We agree with Wilkes that Edwards is distinguishable. As Wilkes explained, ” ‘The “One Strike” law is an alternative, harsher sentencing scheme that applies to specified felony sex offenses,’ such that ’ “a first-time offense can result in one of two heightened sentences.” ’ (Edwards, supra, 34 Cal.App.5th at pp. 192, 193.) The distinguishing characteristic of Three Strikes offenders, of course, is that they are not being sentenced for a first-time offense. Thus, the ample authority rejecting equal protection challenges from Three Strikes offenders did not apply in Edwards. Indeed, Edwards itself took pains to ‘note that criminal history plays no role in defining a One Strike crime’ and that ‘[t]he problem in this case is’ the categorical exclusion of ‘an entire class of youthful offenders convicted of a crime short of homicide . . . , regardless of criminal history . . . .’ (Edwards, at
p. 199, italics added.)” (Wilkes, supra, 46 Cal.App.5th at pp. 1166–1167.)
In sum, we conclude the differential treatment of youth offenders sentenced under the Three Strikes law for purposes of early parole consideration for youth offenders is rationally related to the legitimate governmental purpose of addressing recidivism and does not violate equal protection.
Section 667, Subdivision (a) Resulted in an Unauthorized Sentence
Wholly unrelated to the denial of his petition for a Franklin proceeding, appellant also challenges his sentence on the ground that the imposition of a five-year enhancement under
“As a general rule, a criminal defendant who fails to object at trial to a purportedly erroneous ruling forfeits the right to challenge that ruling on appeal.” (People v. Anderson (2020) 9 Cal.5th 946, 961.) But there is an exception to this rule for an
unauthorized sentence, which may be challenged despite a final judgment of conviction, even after affirmance on appeal. (In re G.C. (2020) 8 Cal.5th 1119, 1130 (G.C.).) “The unauthorized sentence doctrine is designed to provide relief from forfeiture for ‘obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings.’ [Citation.] It applies when the trial court has imposed a sentence that ‘could not lawfully be imposed under any circumstance in the particular case.’ ” (Anderson, at p. 962; G.C. at p. 1130.)
By permitting a defendant to challenge an unauthorized sentence on appeal even in the absence of an objection below, the unauthorized sentence rule constitutes a narrow exception to the forfeiture doctrine (In re Sheena K. (2007) 40 Cal.4th 875, 886–887), ” ‘not to the jurisdictional requirement of a timely notice of appeal’ ” or other means of properly challenging the judgment of conviction. (G.C., supra, 8 Cal.5th at p. 1129.) In order to invoke the unauthorized sentence rule in the first instance, our Supreme Court has held the reviewing court “must have jurisdiction over the judgment.” (G.C. at p. 1130.)
In G.C., the juvenile court‘s disposition order found the minor had committed a so-called “wobbler” offense, but the court failed to make the
So it is here. Not only is appellant attempting to challenge his sentence more than 20 years after his judgment of conviction became final, but he is doing so for the first time on appeal from the denial of his request for a Franklin proceeding. A Franklin proceeding, however, “is unrelated to the validity of the defendant‘s sentence. Neither the entitlement to a youth offender parole hearing, nor the evidence preservation process ‘disturb[s] the finality of state convictions.’ ” (In re Cook (2019) 7 Cal.5th 439, 451.) By the same token, the trial court‘s denial of appellant‘s petition for a Franklin proceeding and his appeal from that denial did not confer jurisdiction on this court over the judgment. The unauthorized sentence doctrine has no application here, and we have no jurisdiction to consider appellant‘s challenge to his sentence in this appeal.
Moreover, even if we had jurisdiction to review appellant‘s claim, he has not presented a sufficient record on appeal to permit consideration of the challenge to his sentence. In support of his contention, appellant points to the omission of any reference to the prior serious felony enhancement in the amended information and the absence of an admission to the enhancement by appellant or a true finding by the trier of fact in the record in this appeal. But the record in this appeal—consisting of the amended information, minute orders from sentencing, the abstract of judgment, and the transcript from the hearing on appellant‘s petition for a Franklin proceeding—is woefully inadequate for determining the merits of appellant‘s claim. Of course, “the defendant . . . bears the burden to provide a record on
appeal which affirmatively shows that there was error below, and any uncertainty in the record must be resolved against the defendant.” (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) Because appellant has failed to provide an adequate record for review, his claim fails. (People v. Chubbuck (2019) 43 Cal.App.5th 1, 12.)
DISPOSITION
The postjudgment order is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.