People v. Smith CA2/3

Filed 2/24/21 P. v. Smith CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B305527

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145980)
v.

DUSHAWNE EARL SMITH,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
 Appellant Dushawne Earl Smith was involved in a series of
gang-related drive-by shootings. The jury convicted Smith of first
degree premeditated murder with special circumstances (Pen.
Code,1 §§ 187, subd. (a), 190.2, subds. (a)(21), (a)(22)), attempted
premediated murder (§§ 664, 187, subd. (a)), shooting at an
occupied vehicle (§ 246), and possession of a firearm by a felon
(§ 29800, subd. (a)). The jury also made true findings on firearm
enhancement (§ 12022.53, subds. (d), (e)(1)) and gang
enhancement (§ 186.22, subd. (b)) allegations. Smith was
sentenced to life without the possibility of parole (LWOP) plus 25
years to life on the murder count. On appeal, Smith argues:
(1) the trial court erred in instructing the jury on the defense of
duress; (2) his LWOP sentence constitutes cruel and unusual
punishment; (3) his ineligibility for a youth offender parole
hearing under section 3051 denies him equal protection of the
law; and (4) the imposition of the firearm enhancement on the
murder count violates California’s multiple conviction rule and
double jeopardy principles. We affirm.

BACKGROUND

The Gang-related Shootings
This case arises out of a series of drive-by shootings
committed by members of the Grape Street Crips. Smith and
six codefendants were charged with murder, attempted murder,
and other related crimes in connection with two of the shootings.
Smith and codefendant Lykeem Marty were jointly tried on the
charges before separate juries. Two other codefendants, Karnell

1 All further statutory references are to the Penal Code.

2
Lawson and Deanthony Bradford, testified against Smith and
Marty as part of plea agreements for reduced sentences.
The Grape Street Crips are a large gang in South Los
Angeles. One of the gang’s main rivals are the Bounty Hunter
Bloods. Nickerson Gardens is a housing project located in an
area controlled by the Bounty Hunter Bloods. Jordan Downs is
another housing project about a mile away, and is a stronghold
of the Grape Street Crips. A few weeks before the shootings in
this case, a high-ranking member of the Grape Street Crips was
murdered by a member of the rival Bounty Hunter Bloods.
On the night of August 3, 2016, a group of Grape Street
gang members, including Smith, Marty, Lawson, and Bradford,
gathered near Jordan Downs. Vernon Williams, a leader and
shot caller for the gang, came up with a plan to retaliate against
the Bounty Hunters by shooting and killing one or more of their
members. At Williams’s direction, the group got into three cars
and stayed in communication using their cell phones. Williams
and Bradford were in a Mercedes, the lead car, and looked for
potential targets. Three other men were in a Lexus, the decoy
car, that would try to draw the attention of any police officers
responding to the shooting. Smith, Marty, and Lawson were in a
Nissan, the designated shooting car and the only one containing
firearms. Marty drove the Nissan, and Smith and Lawson sat in
the backseat. All three occupants of the Nissan were armed.
The group first drove in a caravan to the Howard Hughes
Center in Culver City where Williams believed they would
find Bounty Hunter Bloods. Williams directed the group to the
driver of a Maserati whom he identified as a rival gang member.
Smith, Lawson, and Marty all shot at the Maserati’s occupants.

3
The driver of the Maserati was treated for multiple gunshot
wounds.
Following this shooting, the group retrieved an AK-47
assault rifle. Because Williams was not satisfied with the
shooting, all three cars then headed to Nickerson Gardens
searching for another target. After scouting the area a few times,
Marty stopped the Nissan near a field where a group of people
had congregated. Lawson fired a pistol at the group until the
chamber was empty. Several bullets hit a nearby home. Smith,
who had been given the AK-47, struggled to cock the rifle and
was unable to fire any shots. No injuries were reported as a
result of that shooting.
The caravan of cars next went to a nearby park. Williams
told the group that they were not done because no one had been
killed. After Williams helped Smith cock the AK-47, the group
headed toward a gas station across the street from Nickerson
Gardens. From the Mercedes, Williams or Bradford identified
the driver of a white Chrysler at the gas station as another
potential target.
Dougal Cordero was the driver of the Chrysler and his
girlfriend, Ijeoma Chukwudi, was also in the car. A third person,
Paul Richmond, was standing nearby. Smith said, “[W]hat’s up
cuz?” then immediately opened fire with the AK-47, killing
Cordero and wounding Chukwudi and Richmond.

The Police Investigation
Soon after the shooting at the gas station, officers stopped
the Lexus, and took its occupants into custody. The following
night, other officers pulled over the Nissan and arrested its
occupants, Marty and Smith.

4
 After the arrest, Smith admitted to a detective that he was
part of the group of Grape Street gang members that committed
the shootings at Nickerson Gardens and the gas station as
revenge for the murder of one of their members. According to
Smith, Williams and another member of the gang forced him to
participate in the shootings. They physically assaulted Smith
and took his property. They then held him at gunpoint and told
him to get into the Nissan with Marty and Lawson. They also
made Smith put an AK-47 rifle in the backseat of the car. During
the interview, Smith gave a number of inconsistent statements
about where he was seated in the Nissan. He claimed, however,
that Marty and Lawson shot at the crowd in Nickerson Gardens,
and Lawson fired the AK-47 at the couple at the gas station.
While Smith denied firing a gun, he admitted he cocked the AK-
47 for Lawson prior to the shootings.

The Plea Agreements for Lawson and Bradford
After being charged in this case, Lawson and Bradford
entered into plea agreements under which they would receive
reduced sentences in all cases pending against them in exchange
for their truthful testimony. Lawson, who was 18 years old at the
time of the shootings, would receive a total determinate term of
28 years, making him eligible for parole in 13 years. Bradford,
who was 19 years old at the time of the shootings, would be
sentenced to a nine-year term.

Jury Verdict and Sentencing
The jury found Smith guilty of the first degree murder of
Cordero (§ 187, subd. (a)), the attempted willful, deliberate, and
premeditated murders of Chukwudi and Richmond (§§ 664, 187,
subd. (a)), shooting at an occupied vehicle (§ 246), and possession

5
of a firearm by a felon (§ 29800, subd. (a)). The jury found true
the special circumstance allegations that Smith committed the
murder by shooting the victim from a vehicle and to further the
activities of a criminal street gang in which he was an active
participant (§ 190.2, subds. (a)(21), (a)(22)). The jury also found
true the allegations that a principal personally and intentionally
discharged a firearm causing death or great bodily injury
(§ 12022.53, subds. (d), (e)(1)), and that Smith committed the
crimes for the benefit of, at the direction of, or in association with
a criminal street gang and with the specific intent to promote,
further, or assist in criminal conduct by gang members (§ 186.22,
subd. (b)).2
The trial court sentenced Smith to LWOP plus 25 years to
life on the murder count, consecutive life terms plus 25 years to
life on each attempted murder count, and a consecutive three-
year term on the felon in possession of a firearm count. The court
stayed the sentence on the shooting at an occupied vehicle count
pursuant to section 654.

DISCUSSION

Jury Instruction on Duress
Smith contends the trial court violated his constitutional
right to due process and a reliable verdict by refusing to instruct
the jury that duress may negate premeditation and deliberation
for the crimes of murder and attempted murder.

2The jury found Smith not guilty of one count of attempted
murder and one count of shooting at an inhabited dwelling in
connection with the Nickerson Gardens shooting.

6
 Based on the evidence that Smith had been threatened by
his gang to participate in the shootings, the trial court instructed
the jury on the defense of duress with a modified version of
CALJIC No. 4.40: “A person is not guilty of a crime other than
murder or attempted murder when he engages in conduct,
otherwise criminal, when acting under threats and menaces
under the following circumstances: [¶] 1. Where the threats and
menaces are such that they would cause a reasonable person to
fear that his life would be in immediate danger if he did not
engage in the conduct charged, and [¶] 2. If this person then
actually believed that his life was so endangered. [¶] This rule
does not apply to threats, menaces, and fear of future danger to
his life, nor does it apply to the crimes of murder or attempted
murder.”
The trial court denied Smith’s request that the instruction
be further modified to provide that “duress may not be a defense
to murder[,] but it may be a defense to premeditation or implied
malice.” Citing People v. Landry (2016) 2 Cal.5th 52 (Landry)
and People v. Hinton (2006) 37 Cal.4th 839 (Hinton), the court
explained that duress does not negate malice, although it may
negate premeditation to reduce a murder from first to second
degree. The court concluded this concept was adequately covered
by CALJIC Nos. 8.20 and 8.30, the standard instructions defining
first degree premeditated murder and second degree
unpremeditated murder.

On appeal, Smith argues the trial court erred in refusing to
give his requested pinpoint instruction on duress because it was

7
an accurate statement of the law and supported by the evidence.
He further asserts the instructions given by the trial court failed
to adequately address the defense of duress because they did not
explain that duress could negate the elements of premeditation
and deliberation. We conclude this claim lacks merit.
“The trial court must instruct the jury ‘on general
principles of law that are closely and openly connected to the
facts and that are necessary for the jury’s understanding of the
case.’ ” (People v. Anderson (2018) 5 Cal.5th 372, 413.) A
defendant also has a right to a pinpoint instruction on the theory
of the defense. (People v. Homick (2012) 55 Cal.4th 816, 890.)
The court, however, may properly refuse a defense instruction if
it incorrectly states the law, is argumentative, duplicative, or
potentially confusing, or if it is not supported by substantial
evidence. (People v. Bivert (2011) 52 Cal.4th 96, 120.)
“ ‘The defense of duress is available to defendants who
commit crimes, except murder, “under threats or menaces
sufficient to show that they had reasonable cause to and did
believe their lives would be endangered if they refused.” ’ ”
(People v. Powell (2018) 6 Cal.5th 136, 164; see § 26.) Duress is
not a defense to any murder and does not negate malice. (Hinton,
supra, 37 Cal.4th at pp. 883–884; accord, Landry, supra, 2
Cal.5th at p. 91 [duress not a defense to murder and does not
reduce murder to manslaughter].) Although duress does not
categorically negate premeditation and deliberation, if a person
obeys an order to kill without reflection, a jury might find no
premeditation and thus convict only of second degree murder.
(Hinton, at p. 884.) However, “this circumstance is not due to a
special doctrine of duress but to the legal requirements of first
degree murder.” (People v. Anderson (2002) 28 Cal.4th 767, 784.)

8
A “killing ‘upon a sudden heat of passion or other condition
precluding the idea of deliberation’ would not be premeditated
first degree murder.” (Ibid., italics omitted.) But “a malicious,
premeditated killing, even under duress, is first degree murder.”
(Ibid.)
In Hinton, supra, 37 Cal.4th at pages 847 to 848, for
instance, the defendant was convicted of first degree murder with
special circumstances. In addition to giving CALJIC No. 4.40 on
the defense of duress, the trial court instructed the jury that
when “ ‘a person commits a crime punishable with death, it is not
a defense that he committed the act or made the omission under
threats or menaces of immediate death or bodily harm.’ ”
(Hinton, at p. 882.) On appeal, the defendant argued the
instructions erroneously prohibited the jury from considering
whether threats to his life could negate the mental state
elements of first degree murder. (Ibid.) In concluding there was
no instructional error, the Supreme Court explained that the
instructions “correctly informed the jury that threats and menace
do not constitute a defense to murder.” (Id. at p. 883.) The court
also noted that “[n]othing in these instructions barred the jury
from considering whether these threats—or any other facts—
prevented defendant from premeditating and deliberating.”
(Ibid.)
Here, as in Hinton, the trial court properly instructed the
jury on duress. The version of CALJIC No. 4.40 given by the trial
court correctly informed the jury that threats and menace do not
constitute a defense to murder or attempted murder. In addition,
CALJIC Nos. 8.20 and 8.30 accurately defined the mental state
elements of first degree premeditated murder and second degree
unpremeditated murder. There was nothing in the instructions

9
that precluded the jury from considering whether Smith acted
without premeditation and deliberation in committing the gas
station shooting. The jury was thus free to determine whether
any threats made to Smith on the night of the shooting caused
him to obey his gang’s order to kill without reflection, thereby
negating the mental state required for premeditated murder.
Smith nevertheless asserts that CALJIC Nos. 8.20 and
8.30 “did not fill this instructional void” because they failed to
inform the jury that duress could negate premeditation and
deliberation. (Boldface and initial capitalization omitted.) The
Supreme Court rejected a similar argument in Landry because
CALJIC No. 8.20 (deliberate and premeditated murder) instructs
the jury that a killing upon a sudden heat of passion or other
condition precluding the idea of deliberation is not premeditated
first degree murder. (Landry, supra, 2 Cal.5th at pp. 93–94.) In
this case, the jury was properly instructed with CALJIC
Nos. 8.20 and 8.30, and found Smith acted with premeditation.
There was no instructional error.

Cruel and Unusual Punishment
Smith, who was 22 years old when he committed the crimes
in this case, contends his LWOP sentence violates the federal and
state constitutional bans on cruel and unusual punishment based
on his culpability in the offenses relative to his codefendants and
his status as a young adult offender. Because Smith failed to
raise this objection in the trial court, he has forfeited the claim
on appeal. (See People v. Burgener (2003) 29 Cal.4th 833, 886;
People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) Even if not
forfeited, the claim fails.

10
 A sentence violates the federal Constitution only if it is
grossly disproportionate to the severity of the crime. (See, e.g.,
U.S. Const., 8th Amend.; Graham v. Florida (2010) 560 U.S. 48,
60; Ewing v. California (2003) 538 U.S. 11, 23.) The Eighth
Amendment does not require strict proportionality between crime
and sentence. (Graham, at p. 60.) Thus, “ ‘outside the context of
capital punishment, successful challenges to the proportionality
of particular sentences have been exceedingly rare.’ ” (Ewing, at
p. 21.)
A sentence violates 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; see People v.
Dillon (1983) 34 Cal.3d 441, 478; People v. Avila (2020) 57
Cal.App.5th 1134, 1145.) In making this determination, we
(1) consider the nature of the offense and the offender;
(2) compare the punishment with that prescribed for more
serious crimes in California; and (3) compare the punishment
with that prescribed for the same offense in other jurisdictions.
(In re Lynch, at pp. 425–427; Avila, at p. 1145.)
“ ‘To determine whether a sentence is cruel or
unusual . . . as applied to a particular defendant, a reviewing
court must examine the circumstances of the offense, including
motive, the extent of the defendant’s involvement in the crime,
the manner in which the crime was committed, and the
consequences of the defendant’s acts. The court must also
consider the personal characteristics of the defendant, including
his or her age, prior criminality, and mental capabilities.
[Citation.] If the penalty imposed is “grossly disproportionate to

11
the defendant’s individual culpability” [citation], so that the
punishment “ ‘ “shocks the conscience and offends fundamental
notions of human dignity” ’ ” [citation], the court must invalidate
the sentence as unconstitutional.’ ” (People v. Gonzales (2012)
54 Cal.4th 1234, 1300.) “We independently review whether a
punishment is cruel or unusual, considering any underlying
disputed facts in the light most favorable to the judgment.”
(People v. Avila, supra, 57 Cal.App.5th at p. 1145.)
Over the years, the United States Supreme Court and
California Supreme Court have considered the degree to which
the constitutional ban on cruel and unusual punishment limits
the length of sentences that may be prescribed for juvenile
offenders. “In a series of cases, our high courts have recognized
that ‘children are constitutionally different from adults for
purposes of sentencing’ because of their diminished culpability
and greater prospects for reform. (Miller v. Alabama (2012)
567 U.S. 460, 471.) Hence, the Eighth Amendment’s prohibition
on cruel and unusual punishment has been held to prohibit
imposition of the death penalty on juveniles (Roper v. Simmons
(2005) 543 U.S. 551); [LWOP] on juveniles who commit
nonhomicide offenses (Graham v. Florida[, supra,] 560 U.S. 48);
mandatory LWOP on juveniles (Miller, at p. 460); de facto LWOP
on juvenile nonhomicide offenders (People v. Caballero (2012)
55 Cal.4th 262); and a sentence of 50 years to life for juvenile
nonhomicide offenders (People v. Contreras (2018) 4 Cal.5th 349,
356).” (In re Jenson (2018) 24 Cal.App.5th 266, 276.)
To “implement the limitations on juvenile sentencing
articulated in these cases,” our Legislature enacted section 3051
in 2013. (In re Jenson, supra, 24 Cal.App.5th at p. 276.) The
express purpose of the statute was “ ‘to establish a parole

12
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.’ ” (Id. at pp. 276–277.)
Section 3051 originally applied only to non-LWOP offenses
committed before the offender was 18 years old, but amendments
raised the age of eligibility to 25 years and included LWOP
offenses committed before age 18. (Jenson, at p. 276.)
Section 3051 now provides that an offender who committed
a “controlling offense” when he or she was under the age of 26 is
entitled to a “youth offender parole hearing” during the 15th year
of incarceration if he or she received a determinate sentence;
during the 20th year of incarceration if he or she received a life
term of less than 25 years to life; and during the 25th year of
incarceration if he or she received a term of 25 years to life.3
(§ 3051, subd. (b)(1)–(3).) An offender convicted of a controlling
offense committed before the age of 18 for which he or she was
sentenced to LWOP is entitled to a youth offender parole hearing
during the 25th year of incarceration. (§ 3051, subd. (b)(4).)
However, an offender sentenced to LWOP for a controlling
offense committed after attaining the age of 18 is ineligible
for a youth offender parole hearing. (§ 3051, subd. (h).)

3 The controlling offense is the “offense or enhancement
for which any sentencing court imposed the longest term of
imprisonment.” (§ 3051, subd. (a)(2)(B).)

13
 Smith argues his LWOP sentence constitutes cruel and
unusual punishment because it was grossly disproportionate
to his culpability in the offenses relative to his codefendants.
Smith acknowledges the “purposeful actions” of the group in
hunting down and murdering a perceived rival gang member
“deserves severe punishment.” He nevertheless asserts his
conduct in the crimes cannot be deemed more culpable than that
of his codefendants, Lawson and Bradford, who received
significantly lighter sentences.
Contrary to Smith’s claim, however, the constitutionality of
his LWOP sentence does not depend on the length of sentences
received by Lawson and Bradford, who, unlike Smith, entered
into plea agreements for reduced prison terms in exchange for
their truthful testimony. In evaluating a cruel and unusual
punishment claim, courts “need not rank every convicted
defendant on a continuum of culpability and ensure each of
their sentences are precisely matched to their particular
culpability as compared to another defendant’s culpability.”
(In re Williams (2020) 57 Cal.App.5th 427, 438 (Williams).)
“Rather, the Eighth Amendment prohibits only sentences that
are grossly disproportionate to an individual’s crime.” (Ibid.)
Here, Smith’s involvement in the crimes makes him
uniquely culpable for the first degree premeditated murder
of Cordero. When viewed in the light most favorable to the
judgment, the evidence establishes that Smith was the direct
perpetrator of the brutal shooting that took place at the gas
station. Smith was the one who was armed with an AK-47 rifle.
Smith also was the one who rolled down the window, shouted

14
“what’s up, cuz,” and then immediately opened fire at the
occupants of a parked vehicle and a nearby bystander. Smith
fired multiple shots at the unarmed and unsuspecting victims,
killing Cordero and seriously wounding Chukwudi and
Richmond. The attack at the gas station was the culmination of
a spree of gang-motivated drive-by shootings that Smith and his
codefendants perpetrated in a single night. While Smith’s LWOP
sentence was severe, so were his crimes, and based on the totality
of the circumstances, the punishment was not grossly
disproportionate to Smith’s individual culpability.
Smith also asserts his LWOP sentence constitutes cruel
and unusual punishment because he was only 22 years at the
time of the offenses. Smith notes that the amendments to section
3051, which raised the age of eligibility for a youth offender
parole hearing to 25 years, recognized “the maturity process
does not end at 18 and in many cases extends to at least 25 years
of age.” (Boldface and italics omitted.) He argues the
constitutional limitations on sentencing afforded to juveniles
offenders, as articulated in Miller, Graham, and Roper, should
also apply to young adult offenders, who, like Smith, were
sentenced to LWOP for a crime committed when they were under
the age of 26.
California courts, however, repeatedly have rejected the
cruel and unusual punishment claim that Smith asserts here.
Because Miller, Graham, Roper, and their progeny expressly
limited their holdings to juvenile offenders, courts have declined
to extend those holdings to young adult offenders sentenced to
LWOP or its functional equivalent. (See, e.g., Williams, supra,
57 Cal.App.5th at p. 439 [two consecutive LWOP terms
constitutional for 21 year old]; People v. Montelongo (2020)

15
55 Cal.App.5th 1016, 1031–1032 [mandatory LWOP sentence
constitutional for 18 year old]; People v. Perez (2016) 3
Cal.App.5th 612, 617–618 [86-year-to-life sentence constitutional
for 20 year old]; People v. Abundio (2013) 221 Cal.App.4th 1211,
1220–1221 [LWOP sentence constitutional for 18 year old];
People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 [functional
equivalent of LWOP sentence constitutional for 18 year old].)
As the United States Supreme Court explained in Roper v.
Simmons, supra, 543 U.S. at page 574: “Drawing the line at
18 years of age is subject, of course, to the objections always
raised against categorical rules. 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. . . . [H]owever, a
line must be drawn. . . . The age of 18 is the point where society
draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death
eligibility ought to rest.” While Smith contends this age
demarcation should be reconsidered in light of the amendments
to section 3051, we are bound by the decisions of our high courts,
and the bright line they have chosen to draw between juvenile
and adult offenders. (See People v. Montelongo, supra, 55
Cal.App.5th at p. 1033; People v. Perez, supra, 3 Cal.App.5th at
p. 617; People v. Argeta, supra, 210 Cal.App.4th at p. 1482.)
Smith’s LWOP sentence accordingly does not violate the
constitutional prohibition on cruel and unusual punishment.

Equal Protection
In a related challenge, Smith argues section 3051 violates
his constitutional right to equal protection of the law by denying
him the opportunity for a youth offender parole hearing while

16
granting that benefit to other similarly situated offenders. As
with his Eighth Amendment claim, Smith has forfeited his equal
protection claim by failing to raise it in the trial court. (See
People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14.) However,
even if the claim was not forfeited, Smith has failed to
demonstrate an equal protection violation.

“ ‘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.’ ”
(Williams, supra, 57 Cal.App.5th at p. 433.) Persons who are
similarly situated with respect to a law’s legitimate purposes
must be treated equally. (People v. Brown (2012) 54 Cal.4th 314,
328.) Equal protection of the law is denied only where no
rational relationship exists between the disparity of treatment
and a legitimate governmental purpose. (People v. Turnage
(2012) 55 Cal.4th 62, 74.)
We typically ask two questions to decide whether a
statutory distinction is so devoid of even minimal rationality that
it violates equal protection. First, has the state adopted a
classification affecting two or more groups that are similarly
situated in an unequal manner? (People v. Chatman (2018) 4
Cal.5th 277, 289.) Second, if we deem the groups at issue
similarly situated, does the challenged classification ultimately
bear a rational relationship to a legitimate state purpose? (Ibid.)
“This so-called ‘rational basis’ scrutiny is exceedingly
deferential: 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

17
‘empirically substantiated,’ and regardless of whether the
Legislature ever ‘articulated’ that reason when enacting the law.
[Citations.] A court may not ‘second-guess’ the ‘ “wisdom,
fairness, or logic” ’ of the law, and may invalidate it only if the
challenger ‘ “negative[s] every conceivable basis” ’ for the
differential treatment.” (People v. Love (2020) 55 Cal.App.5th
273, 287–288.) “We review an equal protection claim de novo.”
(People v. Laird (2018) 27 Cal.App.5th 458, 469.)

Under section 3051, subdivision (h), Smith is not eligible
for a youth offender parole hearing because he was sentenced to
LWOP for a first degree special circumstance murder that he
committed when he was 22 years old. On appeal, Smith asserts
that section 3051 denies him equal protection of the law because
it makes him ineligible for a youth offender parole hearing as a
young adult sentenced to LWOP, while extending that benefit to
(1) juvenile offenders sentenced to LWOP and (2) young adult
offenders sentenced to parole-eligible life terms. Smith argues
that excluding young adult LWOP offenders from the provisions
of section 3051 while including these other groups is not
rationally related to a legitimate government purpose. We
conclude section 3051 does not violate Smith’s equal protection
rights. Even assuming without deciding that Smith is similarly
situated to these other groups of offenders that are entitled to a
youth offender parole hearing under section 3051, the Legislature
had a sufficient rational basis for treating the groups differently.
Our colleagues in Division Five recently considered and
rejected the same equal protection argument that Smith raises in
this appeal. (Williams, supra, 57 Cal.App.5th at pp. 433–436.)

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In Williams, the defendant, who had been sentenced to LWOP for
two special circumstances murders committed at the age of 21,
contended the denial of a youth offender parole hearing under
section 3051 violated his equal protection rights. (Id. at p. 430.)
Like Smith, the defendant argued he was similarly situated to
juvenile offenders sentenced to LWOP and to young adult
offenders sentenced to non-LWOP terms. (Id. at pp. 434–435.)
The court concluded the defendant was not similarly situated to
either group because “ ‘[c]hildren are constitutionally different
from adults for purposes of sentencing’ ” (id. at p. 435, fn. 5), and
a young adult convicted of special circumstance murder is “more
culpable and has committed a more serious crime” than a young
adult convicted of nonspecial circumstance murder (id. at p. 435).
The court in Williams also concluded the Legislature had a
rational basis for excluding young adult LWOP offenders from
parole eligibility under section 3051 while extending that benefit
to young adult non-LWOP offenders. As the court explained:
“The Legislature has prescribed an LWOP sentence for only a
small number of crimes. These are the crimes the Legislature
deems so morally depraved and so injurious as to warrant a
sentence that carries no hope of release for the criminal and no
threat of recidivism for society. In excluding LWOP inmates from
youth offender parole hearings, the Legislature reasonably could
have decided that youthful offenders who have committed such
crimes—even with diminished culpability and increased potential
for rehabilitation—are nonetheless still sufficiently culpable
and sufficiently dangerous to justify lifetime incarceration.”
(Williams, supra, 57 Cal.App.5th at p. 436.) We agree with
the analysis in Williams, and conclude section 3051’s disparate

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treatment of young adult LWOP offenders and young adult non-
LWOP offenders does not run afoul of the equal protection clause.
We further conclude a rational basis exists for section
3051’s disparate treatment of young adult LWOP offenders
and juvenile LWOP offenders. In enacting section 3051, and
in later amending the statute to raise the age of eligibility for
most young adult offenders, the Legislature sought to provide a
parole eligibility system that would take into account a youth
offender’s diminished culpability and greater prospects for
reform. (In re Jenson, supra, 24 Cal.App.5th at pp. 276–277;
Williams, supra, 57 Cal.App.5th at p. 434.) In excluding adults
serving LWOP sentences for crimes committed between ages 18
and 25, the Legislature rationally could have concluded that
these young adult offenders were generally more culpable and
more dangerous to society than similarly-situated juvenile
offenders. The Legislature also rationally could have concluded
that young adult LWOP offenders, who had committed among the
most serious of crimes after attaining the age of 18, were
generally less likely than juvenile LWOP offenders to be
rehabilitated. Because an age eligibility line must be drawn
somewhere, the Legislature “could reasonably decide that for
those convicted of LWOP crimes, the line should be drawn at
age 18.” (In re Jones (2019) 42 Cal.App.5th 477, 483.)
We acknowledge that section 3051’s exclusion of young
adult LWOP offenders from the benefits of the statute stands in
some tension with the Legislature’s recognition that advances
in scientific research show that areas of the brain, particularly
those affecting judgment and decisionmaking, do not develop
until the early to mid-20’s. (Williams, supra, 57 Cal.App.5th at
p. 434.) Whether the Legislature should reconsider this statutory

20
exclusion, however, is a matter best left to its sound discretion.
Our role is to determine if the Legislature had any rational basis
for its sentencing choice, not to second-guess the wisdom,
fairness, or logic of that decision. (People v. Turnage, supra, 55
Cal.4th at p. 74.) Because the Legislature had a constitutionally
sufficient reason for denying parole eligibility hearings to young
adults serving LWOP sentences, Smith’s equal protection claim
fails.

Imposition of the Firearm Enhancement
The trial court imposed an additional term of 25 years to
life on the murder count based on the jury’s true finding that
a principal personally and intentionally discharged a firearm
causing death or great bodily injury (§ 12022.53, subds. (d),
(e)(1)). Smith argues that the imposition of the firearm
enhancement on the murder count violated California’s rule
against multiple convictions and constitutional principles of
double jeopardy. He further asserts that, to the extent federal
double jeopardy principles have not historically been applied to
multiple punishment within a unitary trial, the United States
Supreme Court decisions in Apprendi v. New Jersey (2000) 530
U.S. 466 and Sattazahn v. Pennsylvania (2003) 537 U.S. 101
suggest that it now should.
As Smith concedes, however, the California Supreme Court
has squarely rejected these arguments. (People v. Izaguirre
(2007) 42 Cal.4th 126, 130–131; People v. Sloan (2007) 42 Cal.4th
110, 115–123.) We are bound by the decisions of the Supreme
Court, and therefore, reject Smith’s contentions. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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 DISPOSITION

The judgment is affirmed.
NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

LAVIN, J.

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