People v. Bellows CA2/5

Filed 1/29/21 P. v. Bellows CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B298706

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA432450)
v.

ANTIONE L. BELLOWS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Affirmed.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Steve Oetting, Supervising Deputy Attorney
General, and Amanda Lloyd, Deputy Attorney General, for
Plaintiff and Respondent.
 At age 18, defendant Antione Bellows (defendant) pointed a
gun at Jesus Vasquez (Vasquez) and attempted to rob him. A
struggle for the gun ensued, with bystanders coming to Vasquez’s
aid, and the gun discharged—killing Vasquez. After a trial, the
jury convicted defendant of murder, found true an alleged
robbery-murder special circumstance, and further found
defendant personally and intentionally discharged a firearm
causing death. Defendant now asks us to decide whether the jury
instruction on the special circumstance allegation was defective
because it did not require the jury to find defendant personally
killed Vasquez. We also decide whether defendant can seek
retroactive relief under Senate Bill 1437 on direct appeal,
whether defendant’s life without possibility of parole sentence
(plus a 25-year determinate term) is cruel or unusual, and
whether statutes affording early parole consideration for juvenile
offenders deny defendant equal protection of the laws.

I. BACKGROUND
A. The Offense Conduct, as Established by the Evidence
at Trial
Defendant was four months beyond his 18th birthday on
December 17, 2014.1 That evening, Vasquez (also known as
Chuy) and Francisco Cardenas (Cardenas) ate and drank at a
taco stand run by Miguel Bernal (Bernal). The taco stand was set
up outside Bernal’s store, Mike’s 99. Both Vasquez and Cardenas
lived down the street from the store.

1
Defendant was a member of the Rollin’ 40s criminal street
gang and known to go by the moniker “Nsane Number 5.”

2
 Vasquez stayed at the taco stand when Cardenas walked
home to shower. Sometime after 10:00 p.m., while only Vasquez
and Bernal remained at the taco stand, Vasquez asked Bernal for
a cigarette, and Bernal went into his store to get one.
As Bernal exited the store, he heard Vasquez call for help
and saw him fighting with a young man and a young woman.
None of the testifying witnesses saw the beginning of the
confrontation, but surveillance video showed defendant approach
Vasquez, point a gun at him, and hit and kick him while his co-
defendant, Nicole Issiah (Issiah), reached into Vasquez’s pockets.
Defendant then pursued Vasquez behind a van.
Bernal saw Vasquez with his hands on the barrel of the
gun, trying to take it from defendant. Bernal then joined the fray
and called to a neighbor, Jose Enriquez (Enriquez), also known as
Cholo, for help.
Vasquez, Bernal, and defendant continued to struggle for
control of the gun, and all three had their hands on the weapon.
At some point the gun discharged; Bernal recalled only one shot
being fired. Bernal could not remember who was holding the
gun’s grip when it fired, but he thought defendant was holding
the barrel. Vasquez fell to the ground just before Enriquez
reached them. Defendant and Issiah fled, and Bernal flagged
down a passing car for help.
Vasquez died of a single gunshot wound to the head. The
only other injuries to his body noted by the medical examiner
were some lacerations and abrasions on his forehead and some
abrasions and bruises on his legs. Los Angeles Police
Department (LAPD) detective Eloy Ochoa processed the crime
scene. Among other things, officers found two nine-millimeter
cartridge cases near a van parked in front of Bernal’s store.

3
Inside the van, they found a gun magazine that was several
bullets short of its capacity. On the other side of a nearby fence,
officers found an unloaded nine-millimeter firearm. LAPD
criminalist Annette Woiwode (Woiwode) testified the cartridges
found in the street and a bullet fragment she received from the
coroner were fired from the gun found at the scene.
Several weeks after Vasquez was killed, in February 2015,
Detective Ochoa and his partner interviewed Robert Reeves
(Reeves), who indicated he had information about the homicide
when he was cited for illegal possession of marijuana.2 Reeves is
a gang member with several felony convictions. During the
interview, Reeves told Detective Ochoa and his partner he was
aware that a “Mexican” “innocent bystander” had been killed at
the intersection where Mike’s 99 is located. A man he knew by
the moniker Tiny Insane told Reeves “[h]e was the one who
killed . . . the Mexican guy.” Detective Ochoa testified that
Reeves showed him a photo of defendant and identified him as
Tiny Insane.
After defendant’s arrest, the police arranged for a paid,
trained civilian to be placed in defendant’s cell to “engage
[defendant] in conversation to obtain statements.” Excerpts of
the conversation between defendant and the paid agent were
played at trial. Among other things, defendant told the agent he
and a woman were “out walking through the 30’s. And this
Mexican was standing by a van. And he was whistling, bro . . . .
And then like 20 Mexicans coming out of nowhere, trying to kill
me. So we struggling and shit, struggling for the th[i]ng. I put

2
Reeves also had a robbery case pending at the time. Reeves
testified he received no benefit for his testimony in this case.

4
one in their head and did what I had to do and shit . . . .” When
the agent asked defendant whether police had the gun, defendant
replied, “Yeah, they got everything. And they got this bullshit
ass, uh, picture on cameras of—but you couldn’t tell that was me.
It didn’t even look like me.”
LAPD criminalist Brian Kim (Kim) analyzed DNA collected
from, among other things, Vasquez’s fingernails and the grips
and trigger of the murder weapon. Both Vasquez and defendant’s
DNA was found under Vasquez’s fingernails: Vasquez was the
major contributor, and defendant was the minor contributor.3
Only Vasquez’s DNA was found on the grips and trigger. Kim
explained, however, that touching an object “does not guarantee”
that DNA is left behind.

B. Verdict and Sentencing
The jury convicted defendant of first degree murder and
unlawful possession of a firearm (Pen. Code,4 § 29820, subd. (b)).
With respect to the murder, the jury found true an allegation
that defendant committed the murder while engaged in the crime
of attempted robbery, a special circumstance. (§ 190.2, subd.
(a)(17).) It also found true several firearm enhancements alleged
under section 12022.53, including, as particularly relevant for our
purposes, an allegation that defendant personally and

3
More precisely, the minor contributor’s DNA was consistent
with defendant, and Kim testified he would expect to see the
minor contributor’s DNA in approximately one in 10 million
unrelated individuals.
4
Undesignated statutory references that follow are to the
Penal Code.

5
intentionally discharged a firearm causing great bodily injury or
death. (§ 12022.53, subd. (d).)
The trial court sentenced defendant to life in prison
without the possibility of parole for the murder plus a consecutive
term of 25 years to life for the personal discharge of a firearm
enhancement. The other aspects of defendant’s sentence are not
relevant to our resolution of this appeal.

II. DISCUSSION
The special circumstance allegation instruction given to the
jury, patterned on CALCRIM No. 730, told the jury it could find
the allegation true so long as defendant “did an act that caused
the death of another person,” regardless of his intent or whether
he was a major participant in the robbery. But the instruction
did not inform the jury that this standard applies only if it found
he was the victim’s “actual killer,” i.e., that he personally killed
the victim. (§ 190.2, subd. (b).) Assuming the instruction was
defective, the error did not affect defendant’s substantial rights.
The jury’s finding that defendant personally and intentionally
discharged a firearm causing death or great bodily injury
necessarily means the jury concluded defendant personally killed
Vasquez. And that means the special circumstance allegation
true finding cannot rest on a legally invalid theory.
The remainder of defendant’s contentions are also
unavailing. He is not entitled to argue for retroactive application
of Senate Bill No. 1437 on direct appeal. As we held in People v.
Martinez (2019) 31 Cal.App.5th 719 (Martinez) and as our
Supreme Court recently confirmed in People v. Gentile (2020) 10
Cal.5th 830 (Gentile), defendant must instead proceed by way of a
section 1170.95 petition filed in the trial court. Defendant also

6
has not carried his burden to demonstrate his sentence
constitutes cruel or unusual punishment. And the limitation of
early parole consideration to juvenile offenders (which excludes
defendant because he was 18 when he killed Vasquez) is
supported by a rational basis and does not contravene
constitutional equal protection principles.

A. Any Defect in the Special Circumstance Instruction
Was Harmless
Section 190.2, the special circumstance statute, provides
“(a) [t]he penalty for a defendant who is found guilty of murder in
the first degree is death or imprisonment in the state prison for
life without the possibility of parole if . . . [¶] (17) [t]he murder
was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the
immediate flight after committing, or attempting to commit . . .
[¶] (A) [r]obbery in violation of Section 211 or 212.5.” (§ 190.2,
subd. (a)(17)(A).)
The statute distinguishes between someone who is an
“actual killer” and others who are not (though still guilty of
murder). Generally, the actual killer “need not have had any
intent to kill at the time of the commission of the offense which is
the basis of the special circumstance” for the statute to apply. (§
190.2, subd. (b).) But for those who are not actual killers, a
special circumstance can only be found true if, “with the intent to
kill,” the person “aids, abets, counsels, commands, induces,
solicits, requests, or assists any actor in the commission of
murder in the first degree” (§ 190.2, subd. (c)) or if “with reckless
indifference to human life and as a major participant,” the person
“aids, abets, counsels, commands, induces, solicits, requests, or

7
assists in the commission of” certain felonies and is convicted of
first degree murder (§ 190.2, subd. (d)).
Section 190.2, subdivision (b) does not define the phrase
“actual killer,” but our Supreme Court has held that “[a] felony-
murder special circumstance is established even absent intent to
kill, premeditation, or deliberation, if there is proof beyond a
reasonable doubt that the defendant personally killed the victim
in the commission or attempted commission of, and in
furtherance of, one of the felonies enumerated in subdivision
(a)(17) of section 190.2. [Citations.]” (People v. Jennings (1988)
46 Cal.3d 963, 979, emphasis added.)
The trial court here instructed the jury as to the special
circumstance allegation with instructions based on CALCRIM
Nos. 703 and 730.
The instruction based on CALCRIM No. 703 explained, in
pertinent part, that “[i]f the defendant was not the actual killer,
then the People have the burden of proving beyond a reasonable
doubt that he or she acted with either the intent to kill or with
reckless indifference to human life and was a major participant
in the commission or attempted commission of robbery for the
special circumstance to be true.” The instruction stated “[t]he
People do not have to prove that the actual killer acted with
intent to kill or with reckless indifference to human life in order
for the special circumstance of felony murder to be true.”
The instruction patterned on CALCRIM No. 730 provided,
in pertinent part, that “[t]o prove that this special circumstance
is true, the People must prove that:
“1. The defendant committed or attempted to commit, or
aided and abetted the commission or attempted commission of
robbery;

8
 “2. The defendant intended to commit or intended to aid
and abet the perpetrator in the commission or attempted
commission of robbery;
“3. If the defendant did not personally commit or attempt
to commit robbery, then a perpetrator, whom the defendant was
aiding and abetting before or during the killing, personally
committed or attempted to commit robbery;
“AND
“4. The defendant or the perpetrator in the commission or
attempted commission of the robbery did an act that caused the
death of another person.” (Emphasis added.)
In People v. Garcia (2020) 46 Cal.App.5th 123 (Garcia), the
Court of Appeal held CALCRIM No. 730’s reference to “an act
that caused the death of another person” permitted the jury to
consider the defendant’s special circumstance liability based on a
legally invalid theory. (Id. at 155.) Specifically, the instruction
permitted the jury to find the special circumstance to be true
based on the theory that the defendant was the actual killer by
virtue of having handed a roll of tape to a confederate who then
killed the victim by using it to cover the victim’s mouth. (Id. at
149.) The Court of Appeal held “[t]he jury should have been
instructed that it could find true the special circumstance under
sections 190.2(a)(17)(A) and (b) only if the prosecution proved
beyond a reasonable doubt that [the defendant] ‘personally killed’
[the victim].” (Id. at 155.)
In this case, defendant argued Bernal’s testimony that
defendant’s hand was on the barrel of the gun when it fired and
the absence of defendant’s DNA on the grips and trigger
suggested someone other than defendant pulled the trigger.
Defendant now argues the instruction as worded allowed the jury

9
to find the special circumstance true even if, like the defendant in
Garcia, his “act that caused the death of another person” was
merely placing the gun in the hands of someone else—Vasquez,
Bernal, or Enriquez—who accidentally shot Vasquez.
We accept for the sake of argument that the instruction as
given was defective for the reasons articulated in Garcia. We
also do not dwell on the question of whether the issue is forfeited
for lack of a contemporaneous objection because we may review
an instructional error that affects a defendant’s substantial
rights. (Pen. Code, § 1259; People v. Scott (2015) 61 Cal.4th 363,
400.) But defendant’s substantial rights were not affected, and
any instructional error was harmless beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18, 24), because the
record shows the jury necessarily found defendant personally
killed Vasquez.
As we have already mentioned, an actual killer is a person
who personally kills another (a category narrower than those who
do an act that is the proximate cause of another’s death). In
addition to finding true the special circumstance alleged under
section 190.2, the jury found true the allegation that defendant
personally and intentionally discharged a firearm causing great
bodily injury or death to Vasquez (§ 12022.53, subd. (d)). As to
the section 12022.53, subdivision (d) enhancement, the jury was
properly instructed that the People must prove “defendant
personally discharged a firearm during the commission of
[murder],” he “intended to discharge the firearm,” and these
actions “caused great bodily injury to or the death of a person.”
Thus, the jury’s true finding on this enhancement and the
testimony regarding the cause of death necessarily means the
jury found defendant personally killed Vasquez—which means

10
the “actual killer” theory on which the jury was instructed for
purposes of the special circumstance was valid. There can
accordingly be no prejudicial error affecting defendant’s
substantial rights.5 (See People v. Valdez (2002) 27 Cal.4th 778,
792 [failure to properly instruct on willfulness element of
substantive offense not prejudicial because jury was properly
instructed that enhancement found true required willfulness].)

B. Defendant Is Not Entitled to Reversal of His Murder
Conviction Via a Retroactive Application of Senate
Bill 1437
Defendant contends Senate Bill 1437 applies retroactively
to him and the jury instructions given in this case did not

5
Defendant contends the jury’s finding as to the firearm
enhancement is not probative as to prejudice because it “did not
attach to the special circumstance.” The factual issue of whether
defendant personally shot and killed Vasquez, however, was
identical.
Defendant does not challenge the sufficiency of the
evidence supporting either the special circumstance or the section
12022.53, subdivision (d) firearm enhancement findings, but he
suggests “the evidence showed he did not personally kill Vasquez
because his hands were on the barrel when it discharged.” This
assertion, based on Bernal’s testimony and the absence of
defendant’s DNA on the grips and trigger, does not account for
defendant’s admissions to Reeves and the paid informant-
cellmate that he personally shot Vasquez. It also does not
grapple with LAPD criminalist Kim’s testimony that a person
might handle a gun without leaving DNA, which, in combination
with surveillance video showing defendant handling the gun’s
grips, undermines the probative value of the absence of
defendant’s DNA from the grips and trigger.

11
properly define the elements of felony murder based on an “actual
killer” theory under section 189, subdivision (e)(1), as amended.
In Martinez, supra, 31 Cal.App.5th 719, we held a defendant
whose conviction was not yet final when Senate Bill 1437 took
effect may not seek retroactive relief on direct appeal and instead
must proceed by way of a petition pursuant to section 1170.95.
(Id. at 724.) Defendant urges us to reverse course and repudiate
Martinez, but our Supreme Court—citing Martinez—recently
came to the same conclusion as we did in that case. (Gentile,
supra, 10 Cal.5th at 851-852.) Defendant must file a section
1170.95 petition in the trial court to seek retroactive relief under
Senate Bill 1437, and we express no view, beyond what we have
already said, on whether he merits such relief.

C. Defendant’s Sentence Is Not Cruel and Unusual
1. Eighteen-year-old offenders may be sentenced to
life without parole
The Eighth Amendment to the United States Constitution,
applicable to the states via the Fourteenth Amendment, prohibits
cruel and unusual punishment. The Supreme Court has
emphasized that “children are constitutionally different from
adults for purposes of sentencing” (Miller v. Alabama (2012) 567
U.S. 460, 471 (Miller)) and has held sentences of life in prison
without the possibility of parole are cruel and unusual with
respect to certain juvenile offenders. In Graham v. Florida
(2010) 560 U.S. 48 (Graham), the Court held that a sentence of
life in prison without parole is “not appropriate” for a juvenile
non-homicide offender because it represents “an irrevocable
judgment about [the offender’s] value and place in society”

12
without accounting for juveniles’ “capacity for change and limited
moral culpability.” (Id. at 74.)
Defendant contends the same considerations of juveniles’
diminished culpability and capacity for change discussed in
Graham and Miller render a sentence of life without the
possibility of parole cruel and unusual in his case (where the
crime was committed after his 18th birthday). Although the
Supreme Court has acknowledged “[t]he qualities that
distinguish juveniles from adults do not disappear when an
individual turns 18,” it has also emphasized “a line must be
drawn.” (Roper v. Simmons (2005) 543 U.S. 551, 574 (Roper).)
“The age of 18 is the point where society draws the line for many
purposes between childhood and adulthood.” (Ibid. [holding the
Eighth Amendment prohibits the death penalty for juvenile
offenders].)
Similarly, the courts of this state have repeatedly held the
Eighth Amendment does not prohibit sentences of life without
parole for offenders only slightly older than 18. In People v.
Argeta (2012) 210 Cal.App.4th 1478 (Argeta), the Court of Appeal
held that the rationale applicable to the sentencing of juveniles
did not apply to a defendant who committed first degree murder
months after his 18th birthday: “Making an exception for a
defendant who committed a crime just five months past his 18th
birthday opens the door for the next defendant who is only six
months into adulthood. Such arguments would have no logical
end, and so a line must be drawn at some point. We respect the
line our society has drawn and which the United States Supreme
Court has relied on for sentencing purposes, and conclude [the
defendant’s] sentence is not cruel and/or unusual under Graham,
Miller, or [People v.] Caballero [(2012) 55 Cal.4th 262].” (Argeta,

13
supra, at 1480; accord People v. Abundio (2013) 221 Cal.App.4th
1211, 1220-1221; People v. Perez (2016) 3 Cal.App.5th 612, 617;
People v. Edwards (2019) 34 Cal.App.5th 183, 190 (Edwards); see
also In re Jones (2019) 42 Cal.App.5th 477, 483 (Jones) [“Drawing
a bright line at age 18 establishes an objective and easily
implemented measure, which has been used by the United States
Supreme Court for sentencing purposes”].) We follow these cases
and conclude a life without parole sentence for defendant is not
unconstitutional merely because of his age at the time of the
offense.6

2. The sentence is not disproportionate to the
offense
Even if defendant’s age does not render his sentence
unconstitutional, it still must not be disproportionate to his
offense. “The Eighth Amendment . . . contains a ‘narrow
proportionality principle’ that ‘applies to noncapital sentences.’
[Citations.]” (Ewing v. California (2003) 538 U.S. 11, 20 (plur.
opn. of O’Connor, J.), quoting Harmelin v. Michigan (1991) 501

6
Defendant’s contention that Argeta and other cases decided
before Montgomery v. Louisiana (2016) ___ U.S. ___ [136 S.Ct.
718] (Montgomery) must be reevaluated lacks merit. In
Montgomery, the Supreme Court held it announced a new
substantive rule in Miller that applies retroactively because it
“did more than require a sentencer to consider a juvenile
offender’s youth before imposing life without parole; it
established that the penological justifications for life without
parole collapse in light of ‘the distinctive attributes of youth.’
[Citation.]” (Montgomery, supra, 136 S.Ct. at 734.) Nothing in
Montgomery casts doubt on the distinction between juvenile and
adult offenders or drawing that distinction at 18 years of age.

14
U.S. 957, 996-997 (Harmelin).) This principle forbids “‘only
extreme sentences that are “grossly disproportionate” to the
crime.’ [Citations.]” (Id. at 23, quoting Harmelin, supra, at
1001.) A defendant must overcome a “considerable burden” when
challenging a penalty as cruel or unusual. (People v. Wingo
(1975) 14 Cal.3d 169, 174.)
“‘Article I, section 17, of the California Constitution
separately and independently lays down the same prohibition’”
against punishments disproportionate to a defendant’s personal
responsibility and moral guilt. (People v. Marshall (1990) 50
Cal.3d 907, 938.) A punishment may violate article I, section 17
of the California Constitution if “it is so disproportionate to the
crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.” (In re Lynch
(1972) 8 Cal.3d 410, 424 (Lynch).) We assess three factors in
making this determination: (1) “the nature of the offense and/or
the offender, with particular regard to the degree of danger both
present to society” (id. at 425); (2) how the sentence compares
“with the punishments prescribed in the same jurisdiction for
different offenses which, by the same test, must be deemed more
serious” (id. at 426); and (3) how the sentence compares “with the
punishments prescribed for the same offense in other
jurisdictions having an identical or similar constitutional
provision” (id. at 427).
Defendant’s argument is limited to the first Lynch factor.
With respect to the nature of the offense, “viewed in the abstract
robbery-murder presents a very high level of . . . danger, second
only to deliberate and premeditated murder with malice
aforethought.” (People v. Dillon (1983) 34 Cal.3d 441, 479
(Dillon).) But we do not consider the offense only in the abstract.

15
(Ibid.) Defendant contends his culpability is diminished because
he did not personally kill Vasquez. As we have already
discussed, however, the jury found otherwise.
Defendant also contends the offense is mitigated by the
violent resistance he faced from Vasquez, Bernal, and Enriquez.
Defendant contends the struggle over the gun in this case is
comparable to the facts in Dillon, in which a juvenile defendant
raided a marijuana grow operation with friends and shot a
grower who pointed a gun at him. (Dillon, supra, 34 Cal.3d at
482-483.) Our Supreme Court held the Dillon’s sentence of life
without the possibility of parole was unconstitutional in light of
“ample evidence that because of his immaturity [defendant]
neither foresaw the risk he was creating nor was able to extricate
himself without panicking when that risk seemed to eventuate.”
(Id. at 488.) Here, by contrast, defendant initiated the
confrontation by pointing a gun at Vasquez, who was unarmed.
Defendant then unilaterally escalated to physical violence and
pursued Vasquez behind the van rather than fleeing when he had
an opportunity to do so.
Defendant’s individual culpability is determined “by such
factors as his age, prior criminality, personal characteristics, and
state of mind.” (Dillon, supra, 34 Cal.3d at 479.) As the trial
court emphasized, defendant was convicted of robbery as a
juvenile, received “some rehabilitative effort,” and then escalated
his criminal behavior by robbing somebody with a gun.
Defendant contends his conduct is partially attributable to
Attention Deficit/Hyperactivity Disorder (ADHD), dysfunctional
executive functioning, and his use of drugs and alcohol on the day
of the murder. As the trial court observed, however, the only
evidence of defendant’s drug use were his self-serving statements

16
to a psychologist. And although this was not a particularly
sophisticated crime demonstrating significant advance planning,
defendant repeatedly chose to escalate the conflict.
The fact that defendant eventually found himself
outnumbered by bystanders attempting to disarm him was not,
like the sudden appearance of the armed grower in Dillon, an
unforeseen hazard from which he could not escape—it was the
culmination of his successive decisions not to turn away from a
robbery that was not proceeding as anticipated. Even in the
midst of the struggle for the gun, there is no evidence that
defendant was acting defensively. Bernal testified that, apart
from punches thrown by Issiah, he and the others were
struggling for control of the gun rather than hitting each other.
(The defensive character of Vasquez, Bernal, and Enriquez’s
conduct is highlighted by the fact that Enriquez threw the gun
over a fence when defendant dropped it.)
The sentence imposed reflects the circumstances of the
murder, defendant’s criminal history, and defendant’s personal
characteristics—chiefly as demonstrated by his conduct during
the robbery. The sentence defendant received is undoubtedly
stiff given his age, but not unconstitutionally so. It is not
disproportionate to the offense and does not violate the state or
federal constitutional prohibitions against cruel or unusual
punishment.

D. Sections 3051 and 1170 Do Not Violate Equal
Protection Principles
Defendant highlights two statutory provisions by which
juvenile offenders sentenced to life in prison without the
possibility of parole may eventually be considered for parole or

17
resentencing. Section 3051, subdivision (b)(4) provides that “[a]
person who was convicted of a [crime] that was committed before
the person had attained 18 years of age and for which the
sentence is life without the possibility of parole shall be eligible
for release on parole at a youth offender parole hearing during
the person’s 25th year of incarceration.” (§ 3051, subd. (b)(4).)
Section 1170, subdivision (d)(2)(A)(i) provides, subject to certain
exceptions, that “[w]hen a defendant who was under 18 years of
age at the time of the commission of the offense for which the
defendant was sentenced to imprisonment for life without the
possibility of parole has been incarcerated for at least 15 years,
the defendant may submit to the sentencing court a petition for
recall and resentencing.” (§ 1170, subd. (d)(2)(A)(i).)
Because the offense conduct in this case occurred several
months after defendant’s 18th birthday, defendant will not
benefit from either section 3051, subdivision (b)(4) or section
1170, subdivision (d)(2)(A)(i). Defendant’s equal protection
challenge to this exclusion, raised for the first time on appeal, is a
facial challenge. (Edwards, supra, 34 Cal.App.5th at 192, citing
In re Sheena K. (2007) 40 Cal.4th 875, 885.)
“‘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.’
[Citation.]” (Jones, supra, 42 Cal.App.5th at 481.) “The concept
of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be
treated equally. [Citation.] Accordingly, ‘“[t]he 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.”’

18
[Citation.]” (People v. Brown (2012) 54 Cal.4th 314, 328.) If two
classes of criminal defendants subject to different sentencing
rules are similarly situated, “courts look to determine whether
there is a rational basis for the difference. [Citation.] ‘[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.”’ [Citation.]” (Edwards, supra,
34 Cal.App.5th at 195.)
Even if we assume young adult defendants are similarly
situated to juvenile offenders with respect to their capacity for
change and moral culpability, “a line must be drawn” (Roper,
supra, 543 U.S. at 574), and there is a rational basis for doing so
at 18. In Jones, supra, the Court of Appeal considered a 19-year-
old defendant’s equal protection challenge to section 1170,
subdivision (d)(2). (Jones, supra, 42 Cal.App.5th at 483.) It
concluded that “[d]rawing a bright line at age 18 establishes an
objective and easily implemented measure, which has been used
by the United States Supreme Court for sentencing purposes.
While a different line could have been drawn, it is not entirely
arbitrary to limit section 1170(d)(2) to individuals who committed
their crimes before they were 18 years old.” (Ibid.)
The Court of Appeal’s reasoning in Jones with respect to
section 1170, subdivision (d)(2) is persuasive, and it applies with
equal force to 3051, subdivision (b)(4). As the Supreme Court
acknowledged in Roper, drawing a line at 18 years does not
perfectly distinguish immature offenders from mature offenders:
“The qualities that distinguish juveniles from adults do not
disappear when an individual turns 18. By the same token, some
under 18 have already attained a level of maturity some adults
will never reach.” (Roper, supra, 543 U.S. at 574.) But “‘[a]

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classification is not arbitrary or irrational simply because there is
an “imperfect fit between means and ends”’ [citation] or ‘because
it may be “to some extent both underinclusive and overinclusive”’
[citations].” (Johnson v. Dept. of Justice (2015) 60 Cal.4th 871,
887.) The lines drawn in section 3051, subdivision (b)(4) and
section 1170, subdivision (d)(2)(A)(i) rationally “target the
youngest, and presumably most deserving, of the group of
youthful offenders whose brains were still developing and whose
judgment had not yet matured. While young adults share many
of the attributes of youth, they are by definition further along in
the process of maturation, and the law need not be blind to the
difference.” (Jones, supra, 42 Cal.App.5th at 482.)

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 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

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