THE PEOPLE, Plaintiff and Respondent, v. LUIS JAVIER MORALES, JR., Defendant and Appellant.
A157644
(Contra Costa County Super. Ct. No. 51709906)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 7/30/21
Defendant Luis Javier Morales, Jr. fired six shots in the direction of a parked, occupied car, resulting in the death of his pregnant acquaintance who stood in the street near the car. The jury convicted Morales of two counts of first degree murder, one count of attempted murder, one count of shooting at an occupied vehicle, and one count of possession of a firearm by a felon. The jury also found true four firearm use enhancements under
Morales contends: (1) the prosecutor committed prejudicial misconduct in closing argument and his counsel was ineffective for failing to object thereto; (2) the attempted murder conviction must be reversed because there was insufficient evidence to support a kill zone jury instruction, and the instruction given was legally erroneous; and (3) with respect to the firearm use enhancement found true on count 1, Morales was deprived of due process by the court‘s failure to instruct that the requisite great bodily injury or death under
Morales also raises the following sentencing challenges: (1) the court erred in imposing two terms of 25 years to life for first degree murder (counts 1
I. BACKGROUND
Based on Morales‘s act of firing six shots at the occupants of a parked car and the resulting deaths of a young woman who stood near the car and her unborn baby, Morales was charged with two counts of murder with a multiple murder special circumstance allegation and firearm use enhancements (
The trial court sentenced Morales to a term of LWOP on the special circumstance allegation and to two consecutive terms of 25 years to life for each murder. The court imposed but stayed the four 25 years-to-life terms for the firearm use enhancements associated with counts 1 through 4; a term of 7 years for attempted murder; a term of 1 year and eight months for shooting at an occupied vehicle; and a term of eight months for the felon in possession of a firearm conviction. Morales timely appealed.
A. The Prosecution‘s Case
In September 2016, 18-year-old Ilaysia M. was seven months pregnant with Deandre L.‘s child. Deandre L. had ended the relationship and had a new girlfriend, Maria M. Ilaysia M. was upset over the end of the relationship, so, on September 5, Ilaysia M., her cousin Maria U., and their friends, Joselin E. and Carla G., drove around looking for Deandre L. and Maria M. to confront them. Maria U. planned to fight Maria M.
The women saw Deandre L. and Maria M. at a bus stop near Deandre L.‘s house. Before the women could get out of their car, however, Deandre L.‘s
Elias Q., who was in the front passenger seat of Gustavo D.‘s car, got out, and, according to Joselin E., tried to hit or push Ilaysia M. At trial, Elias Q. denied trying to hit or push Ilaysia M., but admitted that he had pushed Maria U. “away.” Deandre L. also intervened and called Ilaysia M. and her friends “bitches.” After the fight ended, Deandre L. and Elias Q. told the women to come over to Deandre L.‘s house, and Joselin E. testified that Elias Q. made a gun gesture with his hand.
Ilaysia M. and her friends were angry and upset, and one of them decided to call Morales, whom Joselin E. was casually dating, on Joselin E.‘s cell phone. The women told Morales about the fight, including that Deandre L. had called them names and that Elias Q. had tried to push Ilaysia M. They asked Morales to accompany them to Deandre L.‘s house, and they talked about wanting to fight.
The women then met Morales, who was with Luciano D. and Deepak N., at the corner on Bush Avenue. One of the women asked the men to “slide” over to Deandre L.‘s house. “Slide” can imply something violent. At Bush Avenue, defendant got out of his black Nissan and went inside a nearby residence to go get something. Maria U. saw defendant holding a black gun in the street at Bush Avenue and 21st Street.
The two cars then went to Ilaysia M.‘s grandmother‘s house, and the plan became to go to Deandre L.‘s house. The word “slide” was used again. Maria U. told police that Morales said he was “going to slide on” Deandre L. Joselin E. told police that she saw Luciano D. with a gun that day before going to Deandre L.‘s house. The women knew that Morales had a gun and knew that Luciano D. had one on that occasion. The women wanted Morales and his companions to bring their weapons and go with them to Deandre L.‘s house, where they were going to pick a fight. The women drove to Deandre L.‘s house, and the three men did as well in Morales‘s car.
When the women arrived at Deandre L.‘s house, Gustavo D.‘s Cadillac was parked next to the sidewalk in front of Deandre L.‘s driveway, and Gustavo D. and Elias Q. were in the car. Elias Q. testified that another person, Jason, was also in the Cadillac, and he believed that Jason was in the car when the fight occurred earlier at the market. Maria U. also said that Jason was in the Cadillac when they arrived at Deandre L.‘s house. Gustavo D.,
Joselin E. stopped her car in the middle of the street facing the opposite direction from Gustavo D.‘s car. Maria U. asked Gustavo D. if he “had a problem with” her, and, as she spoke, Ilaysia M. got out of the car, “walk[ed] up to” Gustavo D., and asked where Deandre L. and Maria M. had gone. By Gustavo D.‘s account, all of the women were aggressive and started “screaming” and demanding to see Maria M. He testified it was clear they wanted to continue the confrontation.
At some point, Morales, Luciano D., and Deepak N. arrived in Morales‘s black Nissan. Gustavo D. and Joselin E. testified that Morales drove by in a black car after the women parked. Gustavo D. testified that Morales parked his car 30 to 40 yards behind Gustavo D.‘s car, facing the same direction as the women‘s car. Gustavo D. and Elias Q. could only see Morales‘s car by turning around or looking in the rearview mirrors.
Ilaysia M. stood near the driver‘s side window of Gustavo D.‘s car with her body facing him. As they spoke, Maria U.—who had returned to Joselin E.‘s car—saw Morales and Luciano D. get out of Morales‘s car. Maria U. testified that she saw Morales point his gun in the direction of the Cadillac. She did not hear anything before Morales shot. Gustavo D. also saw Morales shoot, and Gustavo D. and Maria U. saw sparks from Morales‘s gun as it fired. Joselin E., who sat in the driver‘s seat of her car, dropped down but saw one bullet come from the front of her car across and pass on the side; the bullet came from the direction of Morales‘s car. A neighbor testified that she heard several gunshots in quick succession. Elias Q. counted four or five shots. San Pablo‘s ShotSpotter system—a network of audio-recording devices placed throughout the city that detect the sound of gunfire and “geolocate” its origin—detected six gunshots at 7:56 p.m., at 17th Street and Post Avenue.
At the sound of gunfire, Gustavo D. testified that he opened the driver‘s side door and fled from the car. He saw Morales shooting as he fled. Elias Q. opened the door on the other side of the car and also “ran for [his] life.” They both hopped the fence to Deandre L.‘s backyard and waited for the police to arrive. Elias Q. testified that Jason ran from the car as well, but he did not see him again that day. As he jumped over the fence, Gustavo D. heard the women screaming.
Police responded to the scene within one minute of the ShotSpotter notice. Paramedics also arrived and took Ilaysia M. to the hospital. Both the baby and Ilaysia M. died. Ilaysia M. was hit by a single bullet that caused significant organ and tissue damage, and she died as a result of the gunshot. The baby died from lack of oxygen resulting from maternal blood loss.
During evidence collection that night, Officer Biama found six .40-caliber spent cartridges at the intersection of Post and 17th Street, 169.4 feet from Ilaysia M.‘s body. All but one of the cartridges were “partially crushed,” consistent with having been stepped on or driven over. A ballistics expert determined that the six cartridges were from the same gun. Officer Biama searched near Gustavo D.‘s car and in Deandre L.‘s front yard, but did not locate any casings there. Police did not discover evidence of gunfire in or on the Cadillac.
B. The Defense Case
Jesus Valencia lived near Deandre L.‘s house in San Pablo and heard two gunshots on the evening of September 5. “Very little” time passed between the first and second shot. Valencia testified that the two shots sounded differently, leading him to believe they came from different guns.
On cross-examination, the prosecution‘s ShotSpotter expert testified that the system can have trouble registering sounds from lower caliber guns, like .22 calibers. Deepak N. testified that, on the day of the shooting, he was with Morales and Luciano D. They met Ilaysia M. and the other women at Ilaysia M.‘s grandmother‘s house, but he did not recall meeting on Bush Avenue. Deepak N. considered the women to be close friends. The women told Morales, Luciano D., and Deepak N. about the fight at the market. Ilaysia M. wanted to go to Deandre L.‘s house to cause problems, with Morales, Luciano D. and Deepak N. acting as their “protection,” which Deepak N. understood to mean accompanying the women and “[j]ust being there.” Ilaysia M. asked the men to come to Deandre L.‘s house “[o]nce or twice,” and Deepak N. testified that the women wanted to go start a fight. However, Ilaysia M. told Morales, “Don‘t shoot,” and Deepak N. said that Morales did not want to go.
Nonetheless, the group went to Deandre L.‘s house on 17th Street. Deepak N. sat in the backseat and Luciano D. in the front passenger seat of
About two weeks later, the police came to Deepak N.‘s house. He jumped out of a second-story window and hid in his yard, but police found and arrested him. Deepak N. conceded that he lied and told police that Morales had dropped him off before Morales and Luciano D. “did all that shit.” Eventually, however, he told the truth.
II. DISCUSSION
We first address Morales‘s challenges to his conviction and then turn to his claims of sentencing error.
A. Prosecutorial Misconduct and Ineffective Assistance of Counsel
1. Additional Background
The prosecutor made the following remarks at the end of his closing argument:
“Finally, ladies and gentlemen, before I wrap up, we watch you. We see you in the halls. We watch you coming in and stuff like that. And my sense is you get along just fine. [¶] But if somebody is not obeying the rules of the road, we got to know that.
“Here are the two ways sometimes this happens. Sometimes a juror makes an instant decision and her Honor‘s going to give you a closing instruction that says, Don‘t express strong opinions too quickly, because that‘s not usually productive in jury deliberations. [¶] But sometimes somebody just says: Nope, I‘m refusing to deliberate, made up my mind. [¶] That‘s illegal. Can‘t do that. We got to know about that, if somebody decides that. Right? [¶] And the other one is if somebody just doesn‘t want to follow the law as it‘s stated, we got to know about that too.
“Her Honor made this point a dozen times in voir dire, maybe more, but it‘s that we are not legislators here. Our job is to follow the law. Right? [¶]
The jury‘s job is to follow the law. If somebody is not doing that, somebody is refusing to deliberate or follow the law, you got to send out a note and let us know. I say that every time. Almost never happens. All right.”
2. Analysis
Morales argues that the prosecutor committed misconduct in his closing argument by: 1) stating that it was “illegal” for jurors to refuse to deliberate; 2) stating that jurors must report the failure to deliberate or follow the law after our Supreme Court discontinued use of a jury instruction with similar language in People v. Engelman (2002) 28 Cal.4th 436 (Engelman); and 3) conveying that jurors had no power to engage in nullification. Respondent disputes that prosecutorial misconduct occurred and argues that Morales forfeited his claim by failing to object below. We agree with respondent on the forfeiture point because Morales did not object to the alleged misconduct. (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081–1082.)
Morales alternatively argues that his counsel was ineffective for failing to object. In order to establish ineffective assistance, Morales must show counsel‘s performance fell below an objective standard of reasonableness under prevailing professional norms, and a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different[,]” i.e., a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694 (Strickland).) A court deciding an ineffective assistance claim need not approach the inquiry in a certain order or even address both components of the inquiry if the defendant makes an insufficient showing on one component. (Id. at p. 697.)
To establish that his trial counsel‘s performance fell below an objective standard of reasonableness, Morales must first show prosecutorial misconduct. To do so, Morales relies largely on Engelman. In Engelman, our Supreme Court addressed the constitutionality of a jury instruction that “inform[ed] jurors at the outset of jury deliberations that ‘should . . . any juror refuse[ ] to deliberate or express[ ] an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.’ (CALJIC No. 17.41.1 (1998 new) (6th ed. 1996).)” (Engelman, supra, 28 Cal.4th at p. 439.) The Supreme Court held that giving the instruction did not violate the defendant‘s federal or state constitutional right to trial by jury or his state constitutional right to a unanimous verdict. (Id. at pp. 439–440.) Nevertheless, the court observed that the instruction had the potential to intrude into the deliberative process and was unnecessary because
Nonetheless, because Morales‘s claim fails for lack of prejudice, we need not decide whether the prosecutor‘s comments rose to the level of misconduct (or, by extension, whether counsel‘s failure to object fell below an objective standard of reasonableness). Morales‘s theory of prejudice is that the prosecutor‘s comments could have had a chilling effect on minority views and could have prevented juror nullification. But after closing arguments, the court instructed the jurors that they had a duty to talk, deliberate, and follow the law; it further instructed that each juror must decide the case for himself or herself after discussing the evidence, and that no juror should change his or her mind just because other jurors disagree. Morales speculates that the prosecutor‘s comments would have greater influence than the jury instructions, but we presume the jury properly followed the instructions. (See People v. Boyette (2002) 29 Cal.4th 381, 436 [alleged prosecutorial misconduct not prejudicial when trial court properly instructed on the law because jury presumed to have followed instructions].) Morales points to no evidence of juror conflict, a refusal to deliberate, or any explicit or implicit expressions of an intent to disregard the law.2 (McKinnon, supra, 52 Cal.4th at p. 681 [upholding the use of CALJIC
B. Alleged Error From the Kill Zone Instruction
After Morales‘s conviction, the Supreme Court clarified the circumstances that allow for a kill zone instruction on an attempted murder charge in People v. Canizales (2019) 7 Cal.5th 591 (Canizales). Morales challenges his attempted murder conviction, arguing that there was insufficient evidence to support a kill zone instruction and that the instruction given was erroneous after Canizales.
1. The Kill Zone Theory of Attempted Murder
“To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ [Citation.] When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be ‘transferred’ from one attempted murder victim to another under the transferred intent doctrine.” (Canizales, supra, 7 Cal.5th at p. 602.)
The kill zone theory, first expressly embraced by Supreme Court in People v. Bland (2002) 28 Cal.4th 313, 329–330, provides a theory by which a defendant can be found guilty of the attempted murder of victims who were not the defendant‘s “primary target.” “[A]lthough the intent to kill a primary target does not transfer to a survivor, the fact the person desires to kill a particular target does not preclude finding that the person also, concurrently, intended to kill others within what it termed the ‘kill zone’ ” for attempted murder. (Id. at p. 329.) This theory is illustrated by the following hypothetical. “[C]onsider a defendant who intends to kill A and, in order to ensure A‘s death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group. The defendant has intentionally created a ‘kill zone’ to ensure the death of his primary victim, and the trier of fact may reasonably infer from the method employed an intent to kill others concurrent with the intent to kill the primary victim. When the defendant escalated his mode of attack from a single bullet aimed at A‘s head to a hail of bullets or an explosive device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A‘s immediate vicinity to ensure A‘s death.” (Id. at p. 330.)
In Canizales, the Supreme Court clarified the kill zone theory, holding “that a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant‘s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target‘s death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.” (Canizales, supra, 7 Cal.5th at pp. 596–597.) “In determining the defendant‘s intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target. Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory.” (Id. at p. 607.)
The Supreme Court further observed, “[a]s past cases reveal, there is a substantial potential that the kill zone theory may be improperly applied, for instance, where a defendant acts with the intent to kill a primary target but with only conscious disregard of the risk that others may be seriously injured or killed.” (Canizales, supra, 7 Cal.5th at p. 597.) “[T]rial courts must be extremely careful in determining when to permit the jury to rely upon the kill zone theory” (ibid.), and “there will be relatively few cases in which the theory will be applicable and an instruction appropriate” (id. at p. 608).
In Canizales, five shots were fired at a man, who the jury could have concluded was a primary target, and the man‘s companion from 100 feet away at a block party on a public street. The shots were “going everywhere” and killed an innocent bystander rather than the primary target. (Canizales, supra, 7 Cal.5th at p. 611Ibid.)
2. The Attempted Murder Instruction Given
Morales was charged with attempted murder of “an occupant of a 1991 Blue Cadillac parked in front of 1707 17th Street in San Pablo.” The jury instruction, which was based on CALCRIM No. 600, required the prosecution to prove: “1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person.” The trial court also instructed on a kill zone theory: “A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or ‘kill zone.’ [¶] In order to convict the defendant of the attempted murder of the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA, the People must prove that the defendant not only intended to kill the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA but also either intended to kill one of the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA, or intended to kill everyone within the kill zone. [¶] If you have a reasonable doubt whether the defendant intended to kill occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA or intended to kill occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA.”
3. Analysis
Morales first argues that the evidence was insufficient to support the kill zone instruction. The kill zone theory cannot be used unless (1) the defendant has a primary target, (2) the defendant harbors the intent to annihilate everyone within the kill zone in order to make sure he or she kills the primary target, and (3) the alleged victim of the attempted murder, “who was not the primary target,” was inside the kill zone. (See Canizales, supra, 7 Cal.5th at pp. 597, 607, italics added.) Preliminarily, we note that this case was not tried as a kill zone case. The prosecutor alluded to the inside of the Cadillac when attempting to explain the kill zone instruction briefly in his closing argument, but he made no effort to identify nontargeted victims. Rather, he argued that Morales specifically intended to kill Gustavo D., Elias Q., and Deandre L., and that Morales also intended to kill whomever he could in the Cadillac, so he was responsible for attempted murder of Gustavo D. and Elias Q. The kill zone jury instruction here identified “the occupants” of the Cadillac as the primary targets. Only one count of attempted murder was charged, and, according to the prosecutor‘s theory, there was no nontargeted victim. In the absence of evidence of primary targets and a nontargeted victim of the attempted murder charge, a kill zone theory would not apply. (Canizales, supra, 7 Cal.5th at p. 597.)
But even assuming the jury should not have been instructed on the kill zone theory because the evidence was insufficient to support a kill zone instruction, any error in giving the instruction was not prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).3 (Canizales, supra, 7 Cal.5th at p. 614; People v. Aledamat, supra, 8 Cal.5th 1, 13.) Error is harmless if the record shows “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Chapman, at p. 24.) In other words, we must determine ” ‘whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error.’ ” (Canizales, at p. 615.) Reversal is required if there is ” ‘a reasonable possibility’ ” that the error may have contributed to the verdict. (Chapman, at p. 24.)
Morales contends that the instruction was prejudicial because it equated the primary targets and the nontargeted victims, but the instruction‘s wording actually dispels a finding of prejudice. Under the kill zone instruction, the jury was told, “In order to convict the defendant of the attempted murder of the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA, the People must prove that the defendant not only intended to kill the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA but also either intended to kill one of the occupants of a blue Cadillac parked in front of 1707 17th Street in San Pablo, CA, or intended to kill everyone within the kill zone.” (Italics added.) While awkwardly worded, the instruction could not have prejudiced Morales because a conviction thereunder expressly required the jury to find that Morales intended to kill all occupants of the Cadillac. In People v. Tran (2018) 20 Cal.App.5th 561 (Tran), where a kill zone instruction erroneously listed the same person as the primary target and the nontargeted victim, the court rejected a similar assertion of prejudice.4 While the instruction “could very well have prejudiced the prosecution, insofar as it effectively deprived it of the opportunity to obtain a conviction for attempted murder based on the theory of concurrent intent . . . it could not possibly have prejudiced [the defendant] because it expressly required the jury to find he harbored the intent to kill [the person alleged to be the primary target and victim] in order to convict him of that offense.” (Id. at p. 565, italics removed.)
Further, in his brief comment in closing argument on the kill zone instruction, the prosecutor did not actually articulate a kill zone theory. He said, “Man, when the lawyers who set out to write this stuff threw down their gauntlets, they made it stick on kill zone. It‘s a little bit hard to follow what‘s in the CALCRIM instruction for kill zone. But essentially it means this. If the defendant aimed down the street at that Cadillac, which he did, and was hoping to kill whomever he can kill in the Cadillac—Gustavo, Elias, hoping to kill Deandre. Deandre wasn‘t out of the house yet. But he was still hoping to kill those people—and his goal was to kill whomever he could kill, he‘s responsible for attempted murder against Gustavo and Elias. [¶] His intent to kill whomever he can kill in the Cadillac makes him guilty for trying to kill them.” Aside from this comment, counsel said nothing about the kill zone theory. Instead, he argued that this was an express malice attempted murder case wherein Morales shot with the intent to kill Gustavo D., Elias Q., and Deandre L. Given the prosecutor‘s argument and the fact that the kill zone instruction explicitly required the jury to find that Morales “intended to kill the occupants of [the] Cadillac,” any error here was harmless under Chapman.
C. The Section 12022.53(d) Firearm Use Enhancement for Count 1
1. Additional Background
For count 1, the murder of Ilaysia M., the information alleged that Morales personally and intentionally discharged a firearm causing great bodily injury and death to Ilaysia M. “within the meaning of [the firearm enhancement set forth in]
The trial court gave a modified version of
2. Analysis
Following People v. Flores (2005) 129 Cal.App.4th 174 (Flores), on which Morales relies, we agree that the court erred when it omitted the accomplice language from the jury instruction on the
The appellate court rejected the Attorney General‘s argument, noting that if it were to accept the argument,
Under Flores, the accomplice exception could have applied to count 1‘s
Respondent does not argue that Flores was wrongly decided, and instead attempts to distinguish this case by characterizing the intended crime to be murder of the Cadillac‘s occupants. We find this argument unavailing because respondent does not acknowledge that the evidence is sufficient for a reasonable juror to conclude that Morales and Ilaysia M. conspired to violate
The failure to permit the jury to determine if Ilaysia M. was an accomplice for purposes of the
appeal, we observe that the trial court showed leniency to Morales by staying the sentences on all the firearm-use enhancements. In light of this purposeful show of leniency, it is unlikely that the trial court would impose a firearm use enhancement on count 1 if the matter were remanded, retried, and a properly instructed jury found the enhancement true. (
D. Sentencing Error on Counts 1 and 2
Defendant was charged with two counts of murder with a multiple murder special circumstance allegation. The jury found the special circumstance allegation true. The court imposed an LWOP sentence for the special circumstance, and two consecutive terms of 25 years to life for counts 1 and 2.8 We agree with the parties that this sentence was unauthorized under
E. Remand Is Unnecessary under Section 12022.53(h)
Senate Bill No. 620, effective January 1, 2018, added the following language to
F. Equal Protection
Morales raises equal protection challenges to statutes that allow: (1) juvenile LWOP offenders to petition for recall and resentencing after a certain period of incarceration (
1. Governing Constitutional Principles
“The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee all persons the equal protection of the laws.” (Edwards, supra, 34 Cal.App.5th at p. 195.) “The right to equal protection of the law is violated when ‘the government . . . treat[s] a [similarly situated] group of people unequally without some justification.’ ” (People v. Love (2020) 55 Cal.App.5th 273, 287.)
The principles by which we evaluate a claimed equal protection violation are well established. Where there are no suspect classes or fundamental rights at issue, we apply rational basis review. (People v. Chatman (2018) 4 Cal.5th 277, 288–289 (Chatman).) Rational basis review “sets a high bar before a law is deemed to lack even the minimal rationality necessary for it to survive constitutional scrutiny. Coupled with a rebuttable presumption that legislation is constitutional, this high bar helps ensure that democratically enacted laws are not invalidated merely based on a court‘s cursory conclusion that a statute‘s tradeoffs seem unwise or unfair.” (Id. at p. 289.)
“In order to decide whether a statutory distinction is so devoid of even minimal rationality that it is unconstitutional as a matter of equal protection, we typically ask two questions. We first ask whether the state adopted a classification affecting two or more groups that are similarly situated in an unequal manner. [Citation.] If we deem the groups at issue similarly situated in all material respects, we consider whether the challenged classification ultimately bears a rational relationship to a legitimate state purpose. [Citation.] A classification in a statute is presumed rational until the challenger shows that no rational basis for the unequal treatment is reasonably conceivable. [Citation.] . . . [Citation.] Nor does the logic behind a potential justification need to be persuasive or sensible—rather than simply rational.” (Id. at p. 289.) “A law will be upheld as long as a court can ‘speculat[e]’ any rational reason for the resulting differential treatment, regardless of whether the ‘speculation has “a foundation in the record,” ’ regardless of whether it can be ‘empirically substantiated,’ and
2. Sections 1170(d)(2) and 190.5(b)
Morales contends that
In Jones, the defendant was an LWOP offender who committed his crimes when he was 19, and he claimed his inability to petition for resentencing under
3. Section 3051
Under
a. The Statute‘s History and Purpose
The Legislature enacted
As originally enacted,
The Legislature also amended
b. Analysis
With this background in mind, we turn first to Morales‘s claim that
Relying on Edwards, supra, 34 Cal.App.5th 183, Morales next argues that, because youthful LWOP offenders convicted of murder with a multiple-murder special circumstance finding may have committed murder by lying in wait, whereas a youthful non-LWOP offender may have committed the allegedly more culpable crime of premeditated murder, there can be no rational basis for
In comparing first degree murder convictions and murder convictions with a multiple murder special circumstance, such as his, Morales ignores that the latter type of conviction requires the defendant to have been convicted of one first degree murder and an additional first or second degree murder in the same proceeding. (
In sum, given the deferential standard applicable to this equal protection challenge, and given that LWOP sentences for youthful offenders have not been declared to violate the Eighth Amendment, we conclude that there is a rational basis for the Legislature‘s decision to treat youthful offenders sentenced to LWOP differently than youthful first degree murderers not sentenced to LWOP based on public safety concerns and the desire to punish those who commit special circumstance multiple murder more harshly than those who commit first degree murder without such aggravating circumstances. (Jackson, supra, 61 Cal.App.5th at p. 200.)
In reaching this conclusion, we acknowledge that the United States and California Supreme Courts have recognized that certain traits lessen a juvenile offender‘s culpability, and that such traits and a juvenile‘s capacity for reform are not “crime-specific.” (Miller, supra, 567 U.S. at p. 473; Caballero, supra, 55 Cal.4th at pp. 267–268.) It is, after all, possible that a youthful offender sentenced to LWOP would mature and prove suitable for release at some point during his or her incarceration, just as would a juvenile sentenced to LWOP. We therefore share the reservations expressed by the Acosta court, and join others in urging the Legislature to reconsider the exclusion of youthful LWOP offenders from the opportunity provided by
III. DISPOSITION
The judgment is modified by striking the sentences of 25 years to life on counts 1 and 2, and the term of life without the possibility of parole imposed for the multiple-murder special circumstance finding. The superior court is
finding under
BROWN, J.
I CONCUR:
TUCHER, J.
People v. Morales (A157644)
POLLAK, P.J., Concurring and Dissenting.
I concur in the analysis and conclusions in the majority opinion with respect to all issues except the constitutionality of excluding youthful offenders (those between 18 and 25 years of age) sentenced to life imprisonment without the possibility of parole (LWOP) from eligibility for eventual parole consideration pursuant to the provisions of
I acknowledge that the majority‘s conclusion on this issue is in accord with the decisions of other courts that have considered the issue (People v. Jackson (2021) 61 Cal.App.5th 189 (Jackson); People v. Acosta (2021) 60 Cal.App.5th 769 (Acosta); In re Williams (2020) 57 Cal.App.5th 427, disagreed with in part by People v. Miranda (2021) 62 Cal.App.5th 162; cf. People v. Wilkes (2020) 46 Cal.App.5th 1159 [exclusion of Three Strike offenders from scope of
The principles governing equal protection analysis are correctly stated in the majority opinion and need not be repeated at length. In short, it must be determined whether the disfavored party is similarly situated with those treated more favorably by the statue in question and, if so, whether there is a rational basis for the difference in treatment.
The two groups of offenders are similarly situated for the purpose of considering their treatment under
groups are dissimilar because their sentences are different (see Jackson, supra, 61 Cal.App.5th at p. 199), I agree with Justice Dato‘s reasoning in his concurrence in Jackson, rejecting the significance of this distinction: “where a facial classification is challenged there will always be differences between two groups, and to state that the relevant groups are not “similarly situated” is in many respects announcing the conclusion before performing the analysis. As the Supreme Court has explained, rejecting a constitutional challenge at the outset by finding that two groups are not “similarly situated” would have the effect of “insulat[ing] the challenged . . . statute[] from any meaningful equal protection review.” ” (Id. at p. 201 (conc. opn. of Dato, J.).) The majority here does not disagree that the two groups of youthful offenders sentenced to life imprisonment are similarly situated for this purpose. The question is whether there is a rational basis for including one and excluding the other from the re-evaluation afforded by
In determining whether there is a rational basis for the distinction drawn by
As recited at length in prior opinions (Acosta, supra, 60 Cal.App.5th at pp. 776-777; Jackson, supra, 61 Cal.App.5th at p. 194; In re Williams, supra, 57 Cal.App.5th at pp. 431-432; People v. Montelongo (2020) 55 Cal.App.5th 1016, __ [2020 Cal.App. Lexis 956, p. *40] (conc. stmt. of Liu, J.); In re Jones (2019) 42 Cal.App.5th 477, 486-487 (conc. opn. of Pollak, J.)), and acknowledged in the majority opinion here (ante, pp. 34-35), the Legislature has recognized the body of scientific knowledge showing that the areas of a person‘s brain affecting judgment and decision-making continue to develop at least through the age of 25.3 That is the reason for which
adopted and by successive amendments extended to apply first to offenders up to 23 years of age and then to those up to age 25. What then is the rational basis for categorically excluding offenders between 18 and 25 sentenced to LWOP from the scope of
According to the majority in Jackson, “the difference in the underlying crimes, and the fact that special circumstance murder is punished more harshly, provide a rational reason for distinguishing between the two groups of first degree murderers.” (Jackson, supra, 61 Cal.App.5th at p. 200.) Jackson, Acosta, and the majority here agree that “the severity of the crime and the offender‘s culpability provide a rational basis for the differing treatment.” (Maj. opn., ante, p. 38.) But this explanation is no explanation at all. We start with the fact that LWOP is a harsher sentence than life with
The reference in the opinions to greater “culpability” adds little. Greater fault may justify a harsher sentence but it does not explain why a youthful LWOP offender who has been rehabilitated should remain imprisoned beyond the number of years after which a rehabilitated non-LWOP youthful offender sentenced to life imprisonment may be considered for parole. Moreover, those sentenced to LWOP under
The exclusion of youthful LWOP offenders from the scope of
Moreover, other factors increase the irrationality of excluding LWOP youth offenders from the scope of
Still more, the threat of pleading a special circumstance may be used by prosecutors to induce a guilty plea, regardless of the severity of the crime. And if a youthful offender refuses to plead and is convicted of the crime and the special circumstance, that offender will be denied the parole consideration to which he or she would have been entitled had the plea agreement been accepted. But whether a defendant is willing to forego the constitutional right to a jury trial is no measure of the defendant‘s culpability (indeed, there may be an inverse correlation) or likelihood of reforming, yet in practice that decision determines whether the youthful offender will ever be entitled to parole consideration.
What is at stake is not any person‘s right to parole, to which some youthful offenders may never become entitled under the demanding criteria for release on parole. What is in question is only the right of a youthful offender such as Morales eventually to be evaluated to determine whether over an extended
POLLAK, P. J.
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Rebecca C. Hardie
Counsel:
Shannon Case, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Katie L. Stowe, Elizabeth W. Hereford, Deputy Attorneys General for Plaintiff and Respondent.