People v. Moseley

Filed 1/20/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B303321

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BA164739)
v.

ERICK LAMAR MOSELEY,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.
Xavier Becerra, Attorney General, Phillip J. Lindsay,
Assistant Attorney General, Julie A. Malone and Jennifer O.
Cano, Deputy Attorney General, for Plaintiff and Appellant.
Law Office of Michael Satris and Michael Satris, under
appointment by the Court of Appeal, for Defendant and
Respondent.

1
 Is a defendant who was sentenced to 66 years to life for
violent sex offenses he committed at age 17 entitled to youth
offender parole consideration under Penal Code section 30511 on
federal and California constitutional equal protection grounds?
We answer this question in the negative, finding that a rational
basis exists for treating one strike offenders such as the
defendant differently from other youthful offenders entitled to
the benefit of the statute, applying the reasoning and analysis of
the court in People v. Williams (2020) 47 Cal.App.5th 475, review
granted July 22, 2020, S262229 (Williams).

BACKGROUND
A jury convicted Erick Lamar Moseley (Moseley) in 1998 of
four counts of forcible rape (§ 261, subd. (a)(2)), one count of
forcible oral copulation (§ 288, subd. (c)), and one count of first
degree robbery. (§ 211.) Moseley was 17 years old at the time he
committed the crimes. The jury found that Moseley committed
the offenses during a first degree burglary with the intent to
commit rape in violation of section 667.61, subdivision (d)(4); that
he committed forcible rape against more than one victim in
violation of section 667.61, subdivision (e)(5); and that he
personally used a dangerous or deadly weapon in violation of
section 12022.3, subdivision (a). Moseley was sentenced in
January 1999 to two consecutive terms of 25 years to life, one of
those terms enhanced by four years for use of a weapon, together
with an additional consecutive term of 12 years, for a total of 66
years to life.

__________________________________________________________
1 All further statutory references are to the Penal Code.

2
 Moseley petitioned for a writ of habeas corpus in December
2018, arguing that his sentence violated the Eighth Amendment
prohibition against cruel and unusual punishment. The Los
Angeles County District Attorney filed a return admitting that
under the current sentence, Moseley would not be eligible for
parole until age 73. The District Attorney conceded that
Moseley’s sentence was unconstitutional under the Eighth
Amendment because Moseley would have little, if any,
meaningful life expectancy remaining at age 73.
In April 2019, Division Four of the First Appellate District
held in People v. Edwards (2019) 34 Cal.App.5th 183 (Edwards)
that section 3051, subdivision (h) violates the equal protection
clause of the Fourteenth Amendment by excluding certain “One
Strike” young adult offenders from the statute’s benefits. The
trial court ordered the California Department of Corrections and
Rehabilitation (CDCR) to file an informal response in light of the
court’s decision in Edwards.2 CDCR argued in its informal
response that Edwards had no bearing on Moseley’s Eighth
Amendment claim or the relief owed him.
The trial court concluded that it was bound by the court’s
determination in Edwards that youth offender parole eligibility
hearings must be made available to one strike youth offenders
after 25 years of incarceration. The trial court granted Moseley’s
habeas petition on that basis.

__________________________________________________________
2 The CDCR reiterates the concession that Moseley’s
sentence is unconstitutional under the Eighth Amendment but
argues that the issue here is whether equal protection principles
were violated by treating one strike youth offenders differently
from youth offenders convicted of other crimes.

3
 The CDCR appeals from the trial court’s October 18, 2019
order granting Moseley’s habeas petition. CDCR contends the
judgment granting habeas relief should be reversed and the
matter remanded for resentencing “in accordance with
constitutional principles.” We agree.

DISCUSSION
I. Youth offender parole hearings
Section 3051 was enacted in 2013 to “‘establish a parole
eligibility mechanism that provides a person serving a sentence
for crimes that he or she committed as a juvenile the opportunity
to obtain release when he or she has shown that he or she has
been rehabilitated and gained maturity. . . .’” (In re Trejo (2017)
10 Cal.App.5th 972, 980.) Under section 3051, youth offenders
who committed their “controlling offense” when they were 25
years old or younger are entitled to a parole hearing after serving
a designated period in custody. (§ 3051, subd. (b).) A “controlling
offense” is defined as “the offense or enhancement for which any
sentencing court imposed the longest term of imprisonment.”
(§ 3051, subd. (a)(2)(B).)
Section 3051, subdivision (b)(3) states: “A person who was
convicted of a controlling offense that was committed when the
person was 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. The youth parole eligible date for a
person eligible for a youth offender parole hearing under this
paragraph shall be the first day of the person’s 25th year of

4
incarceration.” Subdivision (h) of section 30513 excludes from
youth offender parole consideration, however, offenders such as
Moseley who were sentenced under section 667.61, the “One
Strike” law.4 The statutory exclusion does not apply to youth
offenders convicted of intentional first degree murder. (§ 3051,
subd. (h); Edwards, supra, 34 Cal.App.5th at p. 195.)

II. Equal protection jurisprudence
The Fourteenth Amendment to the United States
Constitution and article I, section 7 of the California Constitution
guarantee equal protection under the law to all persons. To
succeed on an equal protection claim, Moseley must show that
the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner. (People v.
Wilkinson (2004) 33 Cal.4th 821, 836. (Wilkinson).)
When a class of criminal defendants is similarly situated to
another class of defendants who are sentenced differently, courts
look to determine whether a rational basis exists for the
__________________________________________________________
3 Subdivision (h) of section 3051 states: “This section shall
not apply to cases in which sentencing occurs pursuant to Section
1170.12, subdivisions (b) to (i), inclusive, of Section 667, or
Section 667.61, or to cases in which an individual is sentenced to
life in prison without the possibility of parole for a controlling
offense that was committed after the person had attained 18
years of age. This section shall not apply to an individual to
whom this section would otherwise apply, but who, subsequent to
attaining 26 years of age, commits an additional crime for which
malice aforethought is a necessary element of the crime or for
which the individual is sentenced to life in prison.”

4 Forcible rape and forcible oral copulation are two offenses
subject to the One Strike law. (§ 667.61, subd. (c)(1), (c)(7).)

5
difference. (Johnson v. Department of Justice (2015) 60 Cal.4th
871, 882. (Johnson).) “[E]qual protection of the law is denied only
where there is no ‘rational relationship between the disparity of
treatment and some legitimate governmental purpose.’” (People
v. Turnage (2012) 55 Cal.4th 62, 74 (Turnage).) “This standard of
rationality does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor
must the underlying rationale be empirically substantiated.
[Citation.] 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.’” (Id. at
pp. 74-75.) To mount a successful rational basis challenge, a
party must “‘negative every conceivable basis’” that might
support the disputed statutory disparity. (Heller v. Doe (1993)
509 U.S. 312, 320. (Heller).) 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.” (Turnage, at p. 74.)

A. People v. Bell
Applying the deferential rational basis standard, Division
Eight of this Court rejected a juvenile one strike defendant’s
equal protection challenge to section 3051. (People v. Bell (2016)
3 Cal.App.5th 865, 876-880 (Bell), review granted on another
ground on Jan. 11, 2017.) The 14-year-old defendant in Bell
argued there was no rational basis for treating him more severely
than a juvenile defendant convicted of special circumstances
murder. (Id. at p. 878.) The court in Bell disagreed and

6
concluded that the defendant’s commission of multiple offenses,
including rape, burglary with the intent to commit rape, and
assault with a firearm, provided a rational basis for excluding
one strike offenders from section 3051.
The court in Bell further concluded that recidivism
concerns also provides a rational basis for excluding violent sex
offenders from section 3051. (Bell, supra, 3 Cal.App.5th at
p. 879.) The court reasoned that several comprehensive statutory
schemes, including the Sexually Violent Predators Act (Welf. &
Inst. Code, § 6600 et seq.), the Mentally Disordered Offenders Act
(Pen. Code, § 2690 et seq.), and the section 290 lifetime
registration requirement imposed on a large class of sex
offenders, reflect a legislative concern that sex offenders pose a
risk of recidivism. (Bell, at pp. 879-880.) The court in Bell
determined that recidivism concerns were the basis for the
Legislature’s exclusion of one strike offenders from section 3051
and that the risk of recidivism provided a rational basis that
exclusion. (Ibid.) The California Supreme Court subsequently
ordered Bell vacated and transferred for reconsideration in light
of People v. Contreras (2018) 4 Cal.5th 349 (Contreras).

B. People v. Contreras
In Contreras, the California Supreme Court held that the
Eighth Amendment’s prohibition against cruel and unusual
punishment prevented juvenile non-homicide offenders from
receiving sentences of 50 years to life and 58 years to life.
(Contreras, supra, 4 Cal.5th at p. 356.) Citing Graham v. Florida
(2010) 560 U.S. 48 (Graham), the court in Contreras noted that
while “‘[r]ecidivism is a serious risk to public safety, and so
incapacitation is an important goal’ . . . [b]ut the ‘characteristics

7
of juveniles’ make it ‘questionable’ to conclude that a juvenile
offender is incorrigible; indeed, ‘“incorrigibility is inconsistent
with youth.”’” (Contreras, at p. 366.) The court noted that the
statute’s distinction between one strike defendants and those
convicted of intentional first degree murder appeared
inconsistent with United States Supreme Court constitutional
jurisprudence: “[W]e note defendants’ contention that the
current treatment of juvenile One Strike offenders is anomalous
given that juveniles convicted of special circumstance murder and
sentenced to LWOP5 are now eligible for parole during their 25th
year in prison. This scheme appears at odds with the [United
States Supreme Court’s] observation that ‘defendants who do not
kill, intend to kill, or foresee that life will be taken are
categorically less deserving of the most serious forms of
punishment than are murderers. . . . Although an offense like
robbery or rape is “a serious crime deserving serious
punishment,” those crimes differ from homicide crimes in a moral
sense.’ [Citation.] In the death penalty context, the high court
has said ‘there is a distinction between intentional first-degree
murder on the one hand and nonhomicide crimes against
individual persons, even including child rape, on the other. The
latter crimes may be devastating in their harm, as here, but “in
terms of moral depravity and of the injury to the person and to
the public,” they cannot be compared to murder in their “severity
and irrevocability.”’” (Id. at p. 382, quoting Graham, supra, 560
U.S. at p. 69 and Kennedy v. Louisiana (2008) 554 U.S. 407, 438.)
The court in Contreras went on to state: “The parties point
to no other provision of our Penal Code, and we are aware of
none, that treats a nonhomicide offense more harshly than
__________________________________________________________
5 Life in prison without the opportunity for parole (LWOP).

8
special circumstance murder. . . . We are also unaware of any
other jurisdiction that punishes juveniles for aggravated rape
offenses more severely than for the most aggravated forms of
murder. Further, we note the concern raised by amicus
curiae . . . that if defendants had killed their victims after the
sexual assaults and had been sentenced to LWOP, they would
have been eligible for a youth offender parole hearing after 25
years of incarceration . . . . [¶] Defendants contend that this
treatment of juvenile One Strike offenders violates principles of
equal protection and the Eighth Amendment. There is also a
colorable claim that it constitutes ‘unusual punishment’ within
the meaning of article I, section 17 of the California Constitution.
As with the other issues arising from new legislation, we decline
to resolve these contentions here. It suffices to note . . . that the
current penal scheme for juveniles may warrant additional
legislative attention.” (Contreras, supra, 4 Cal.5th at p. 382.)

C. People v. Edwards
Relying on Contreras, the First Appellate District in
Edwards held that equal protection required one strike young
adult offenders to be afforded a youth offender parole hearing
under section 3051 and that the statute’s exclusion of such
offenders was unconstitutional. (Edwards, supra, 34 Cal.App.5th
at p. 197.) The defendants in Edwards were both 19 years old
when they jointly sexually assaulted and robbed the victim and
her male friend. Their subsequent conviction of one strike and
other offenses resulted in sentences of 129 years to life and 95
years to life. (Id. at p. 186.) The defendants challenged their
respective sentences as cruel and unusual punishment. They

9
also challenged on equal protection grounds their exclusion from
the provisions of section 3051. (Ibid.)
The court in Edwards noted, as did the California Supreme
Court in Contreras, that section 3051 makes youthful offender
parole hearings available even for first degree murderers (except
those who committed murder as an adult and received a sentence
of life without parole). The Edwards court observed that “United
States Supreme Court case law has long distinguished between
such murders and other crimes against persons, reserving the
most draconian sentences for murderers alone. Consistent with
the Eighth Amendment, first degree murderers can be executed;
defendants convicted of even the most egregious sexual crimes
cannot. . . . Section 3051 flouts this pattern. It makes youthful-
offender parole hearings available to intentional first degree
murderers after 25 years of incarceration, while categorically
denying them to One Strike sex offenders.” (Edwards, supra, 34
Cal.App.5th at p. 197, citing Kennedy v. Louisiana, supra, 554
U.S. 407, Coker v. Georgia (1977) 433 U.S. 584, Miller v. Alabama
(2012) 567 U.S. 460, and Graham, supra, 560 U.S. at p. 82.) The
court in Edwards went on to state: “Considering this United
States Supreme Court jurisprudence and the California Supreme
Court’s invocation of it in Contreras, we conclude section 3051’s
carve-out for One Strike defendants violates principles of equal
protection.” (Edwards, at p. 197.)

D. People v. Williams
The Fourth Appellate District in Williams, disagreed with
Edwards, finding that the threat of recidivism by violent sexual
offenders provides a rational basis for excluding one strike youth
offenders from the benefits of section 3051. (Williams, supra, 47

10
Cal.App.5h at p. 493.) The court in Williams found the Edward
court’s reliance on Contreras misplaced for two reasons. First,
Contreras involved a constitutional challenge to LWOP sentences
under the Eighth Amendment’s prohibition against cruel and
unusual punishment and not whether such sentences violated the
equal protection clause. Second, Contreras only addressed the
constitutional implications of juvenile offenders sentenced to
LWOP, whereas the defendant in Williams was a 24-year-old
adult when he committed sexually violent crimes against two
different victims. (Williams, at pp. 492-493.) Given these
differences, the court in Williams did not find Contreras to be
controlling authority on the issue before it. The Williams court
concluded: “Given the deferential standard we apply in
determining rationality for equal protection purposes [citation],
and given our view that the risk of recidivism provides a rational
basis for the Legislature to treat violent felony sex offenders
sentenced under the one strike law differently than murderers or
others who commit serious crimes, we reject defendant’s equal
protection challenge to subdivision (h) of section 3051.”
(Williams, at p. 493.)
The California Supreme Court granted review of Williams
on the issue of whether section 3051, subdivision (h) violates the
equal protection clause of the Fourteenth Amendment by
excluding young adults convicted and sentenced for serious sex
crimes under the one strike law from youth offender parole
consideration, while young adults convicted of first degree
murder are entitled to such consideration.

11
III. Section 3051, subdivision (h) does not violate equal
protection
A. Mosley is not similarly situated to those who do
not commit violent sex crimes.
The Supreme Court’s grant of review rendered Williams
persuasive, rather than binding authority. (Cal. Rules of Court,
rule 8.1115(e)(1).) Nevertheless, we are persuaded by its analysis
over that of Edwards for the following reasons. First, Edwards
broadly holds that murderers and one strikers are “similarly
situated” because the purpose of section 3051 is to give youthful
offenders a “meaningful opportunity to obtain release” after
lengthy prison sentences. (§ 3051(e)). The Constitution does not
require things that are different in fact or opinion receive the
same treatment under the law (Briggs v. Brown (2017) 3 Cal.5th
808, 842.). Absent a showing that two groups are similarly
situated with respect to the legitimate purpose of the law, an
equal protection analysis should end. (People v. Rhodes (2005)
126 Cal.App.4th 1374, 1384.)
In Edwards, the court assumed that one strike youth
offenders (who are excluded from youth offender parole) and
youthful murderers (who are not excluded) are similarly situated
because they are “both aged 25 years or younger [and] are two
groups of violent youthful offenders who seek the opportunity to
demonstrate after extended terms of imprisonment that they
should rejoin society.” (Edwards, supra, 34 Cal.App.5th at p. 195,
citing People v. Brandao (2012) 203 Cal.App.4th 436, 442.)
However, there is no established precedent that supports this
conclusion. If a common interest in rejoining society after an
extended imprisonment were the proper standard, nearly every

12
inmate would be similarly situated for any statute with an
ameliorative effect on an inmate’s sentence.
Second, youthful sex offenders and youthful murderers are
not similarly situated because offenders who commit different
crimes are not similarly situated. (People v. Macias (1982) 137
Cal.App.3d 465, 472-473.) Moseley, a youthful sex offender is not
similarly situated to a youthful murderer as they are different
crimes.
B. Moseley’s exclusion from youth offender parole
consideration is rationally related to a legitimate
penal interest.
“[L]egislation is presumed to be valid and will be sustained
if the classification drawn by the statute is rationally related to a
legitimate state interest.” (City of Cleburne, Tex. v. Cleburne
Living Center (1985) 473 U.S. 432, 440; Wilkinson, supra, 33
Cal.4th at p. 836.) As set forth above, to prove an equal
protection violation, a party must defeat “‘“every conceivable
basis”’ that might support the disputed statutory disparity.”
(Johnson, supra, 60 Cal.4th at p. 881, quoting Heller, supra, 509
U.S at pp. 319-320.) A reviewing court “‘must accept any gross
generalizations and rough accommodations that the Legislature
seems to have made.’” (Turnage, supra, 55 Cal.4th at p. 77.) “‘A
classification is not arbitrary or irrational simply because there is
an “imperfect fit between means and ends.”’” (Turnage, at p. 77,
quoting Heller, at p. 321)
Though the Edwards court found that section 3051’s
exclusion of one strike offenders does not have a rational basis,
we find otherwise when comparing youthful sex offenders to
youthful murderers. (Edwards, supra, 34 Cal.App.5th at pp. 197-
200.) Indeed, there are significant public safety concerns that

13
support the exclusion of these sex offenders from youth offender
parole consideration, including recidivism. The United States
Supreme Court explained, “[w]hen convicted sex offenders
reenter society, they are much more likely than any other type of
offender to be rearrested for a new rape or sexual assault.”
(McKune v. Lile (2002) 536 U.S. 24, 33.) Our Legislature has long
expressed special concern for recidivism among sex offenders.
For example, certain sex offenders are required to register for life
after release from custody (§ 290, et seq.), and the “One Strike”
Law was enacted precisely to ensure that violent sex offenders
“be separated from society to prevent reoffense.” (People v.
Wutzke (2002) 28 Cal.4th 923, 930.) For purposes of rational basis
review, it is immaterial whether a conceivable basis for the
classification has “a foundation in the record.” (Turnage, supra,
55 Cal.4th at p. 75.)
Given the deferential standard we apply in determining
rationality for equal protection purposes, and given our view that
the risk of recidivism provides a rational basis for the Legislature
to treat felony sex offenders sentenced under the one strike law
differently that murderers, we reject the argument that
subdivision (h) of section 3051 violates equal protection and is
unconstitutional.

14
 DISPOSITION
The order granting Moseley’s petition for writ of habeas
corpus is reversed and the matter is remanded to the superior
court for resentencing.
CERTIFIED FOR PUBLICATION

____________________________, J.
CHAVEZ

I concur:

__________________________, J.
HOFFSTADT

15
People v. Moseley, B303321

ASHMANN-GERST, Acting P. J.—Dissenting

I respectfully dissent.
Following People v. Williams (2020) 47 Cal.App.5th 475
(Williams), review granted July 22, 2020, S262229, the majority
holds that Penal Code section 3051, subdivision (h),1 does not
violate equal protection even though it excludes juveniles
sentenced under the “One Strike” law (§ 667.61) from youth
offender parole consideration, but grants juveniles convicted of
special circumstance murder such consideration. In so holding,
Williams disagreed with the holding in People v. Edwards (2019)
34 Cal.App.5th 183, 197 (Edwards) that section 3051 violates
equal protection. (Williams, supra, at pp. 492–493.)
I disagree with the majority’s reliance upon Williams,
supra, 47 Cal.App.5th 475. Rather, I agree with the analysis in
Edwards, supra, 34 Cal.App.5th at page 197 that section 3051’s
categorial exclusion of youthful One Strike offenders from its
youth offender parole scheme violates equal protection. Thus, I
would affirm the trial court’s order granting defendant and
respondent Erick Lamar Moseley’s petition for writ of habeas
corpus on equal protection grounds.

__________________________, Acting P. J.
ASHMANN-GERST

__________________________________________________________
1 All further statutory references are to the Penal Code
unless otherwise indicated.

1