People v. Jackson

Filed 2/23/21(review denied 6/9/21; reposted with Supreme Court order and statement)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D077095

Plaintiff and Respondent,

v. (Super. Ct. No. SCD127034)

JOSEPH LEON JACKSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,
Michael T. Smyth, Judge. Affirmed.

Stephen M. Hinkle, 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, Assistant Attorney General, Arlene A.
Sevidal, Randall Einhorn and Minh U. Le, Deputy Attorneys General, for
Plaintiff and Respondent.
 Defendant Joseph Leon Jackson sought a youth offender parole hearing

under Penal Code1 section 3051 as a result of his conviction in 1998 that
included two counts of first degree murder with multiple special
circumstances, which counts resulted in a sentence of two consecutive terms
of life without the possibility of parole (LWOP). Defendant was 19 years old
when he committed the homicides. In his October 2019 motion, defendant
argued section 3051 violated his equal protection rights because he allegedly
“is entitled to the same protections as any other person who violated the law
at the same age whether it was murder without special circumstances,
robbery, kidnapping or any other crime.” The trial court in November 2019
denied the motion, finding that defendant was statutorily ineligible for relief
and that there was a rational basis for carving out from section 3051
offenders such as defendant who are convicted of first degree special
circumstance murder and sentenced to LWOP.
On appeal, defendant asserts section 3051’s exclusion of persons over
18 years of age with LWOP sentences from its parole hearing provisions
violates the constitutional guarantee of equal protection. As we explain, we
independently conclude the carve out to section 3051 for offenders such as
defendant serving a LWOP sentence for special circumstance murder is not
an equal protection violation.
FACTUAL AND PROCEDURAL OVERVIEW
On the evening of January 30, 1997, defendant shot and killed Charles
(Charles) Downing and Linda Lewis. He also shot James Robinson in the
chest and Sonja (Sonja) Downing in the right and left thigh. Both Robinson
and Sonja survived. All of the victims were inside an apartment that
defendant and two accomplices entered at about 10:00 p.m., after learning

1
All additional statutory references are to the Penal Code.
2
earlier that evening that Charles was selling cocaine from the apartment.
Once inside, defendant asked about the drugs while announcing, “This is a
robbery.” As noted, defendant was 19 years old when he committed the
crimes.
In 1998, a jury convicted defendant of two counts of first degree murder
(§ 187, subd. (a); counts 2 & 3); three counts of attempted premeditated
murder (§ 187, subd. (a) & former § 664; counts 4, 6 & 8); five counts of
attempted first degree robbery (§§ 211, 213, subd. (b) & 664; counts 10-14);
one count of residential burglary (§ 459; count 15); three counts of assault
with a semi-automatic firearm (former § 245, subd. (b); counts 5, 7 & 9), and
one count of conspiracy to commit robbery (former § 182, subd. (a)(1); count
1).
As to both murder counts, the jury found true the special circumstances
of multiple murder (former § 190.2, subd. (a)(3)); murder during an
attempted robbery (id., subd. (a)(17)); and murder during a first degree
burglary (ibid.). The jury also found true the allegations as to all counts that
defendant was armed with a firearm (former § 12022, subd. (a)(1)), and that
he personally used a firearm (former § 12022.5, subd. (a)(1)). As to counts 4
through 7, 10 through 13, and 15, the jury found true the allegation that
defendant inflicted great bodily injury on a nonaccomplice (former § 12022.7,
subd. (a)). The People sought the death penalty for defendant, but the jury
was unable to unanimously agree on the penalty and the People did not seek
a retrial on the issue.
As noted, the trial court sentenced defendant to two consecutive terms
of LWOP. Defendant also was sentenced to three consecutive terms of life
with the possibility of parole, plus a determinate term of 27 years four
months. Defendant appealed. After striking a parole revocation fine, this

3
court in January 2001 affirmed the judgment in defendant’s direct appeal.

(See People v. Bowman et al. (Jan. 19, 2001, D032440) [nonpub. opn.].)2
As also noted, the trial court in November 2019 denied defendant’s
motion seeking a youth offender parole hearing pursuant to section 3051,
based on his argument that exclusion of offenders between the ages of 18 and
25 sentenced to LWOP is a violation of equal protection laws.
DISCUSSION
A. Youth Offender Parole Hearings
Enacted in 2013, the Legislature intended in section 3051 et seq. 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 (Trejo).) Section 3051 therefore provides for youth offender parole
hearings that guarantee youth offenders a meaningful opportunity for release
on parole. (§ 3051, subd. (e).) Youth offenders who committed their
“controlling offense” prior to reaching a specified age are entitled to a parole
hearing after serving a designated period in custody. (Id., subd. (b).) A
“ ‘controlling offense’ ” is defined as “the offense or enhancement for which
any sentencing court imposed the longest term of imprisonment.” (Id., subd.
(a)(2)(B).)
As originally enacted, section 3051 applied where the controlling
offense was committed before the offender was 18 years old. (Trejo, supra, 10
Cal.App.5th at p. 981 & fn. 6.) By amendment effective January 1, 2016, the

2
Defendant was tried and convicted along with codefendants Deaundre
Louis Bowman and Kevin Markeith Sumner. Neither Bowman nor Sumner
are parties to this appeal.
4
Legislature extended the availability of youth offender parole hearings to
offenders who were under 23 years old when they committed their controlling
offenses. (Stats. 2015, ch. 471 (Sen. Bill No. 261), § 1, eff. Jan. 1, 2016; see
Trejo, at p. 981 & fn. 6.) By subsequent amendments, the Legislature further
extended the availability of youth offender parole hearings to offenders who
were 25 years old or younger when they committed their controlling offenses.
(Stats. 2017, ch. 684 (Sen. Bill No. 394), § 3051, eff. Jan. 1, 2018.)
Under section 3051 “an offender who committed a ‘controlling offense’
under the age of 26 is entitled to a ‘youth offender parole hearing’ during his
or her 15th year of incarceration if he [or she] received a determinate
sentence; during his or her 20th year of incarceration if he or she received a
life term of less than 25 years to life; and during his or her 25th year of
incarceration if he or she received a term of 25 years to life. (§ 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 his or her 25th year of incarceration. (§ 3051,
subd. (b)(4).)” (In re Jenson (2018) 24 Cal.App.5th 266, 277.)
Subdivision (h) of section 3051 includes various exceptions to a person’s
right to a youth offender parole hearing. It provides in part: “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,[3]
or to cases in which an individual is sentenced to life in prison without the

3
Our high court granted review of this court’s opinion in People v.
Williams (2020) 47 Cal.App.5th 475, review granted July 22, 2020, S262191,
on whether subdivision (h) of section 3051 violates equal protection of the
laws by excluding from youth offender parole consideration young adults
convicted and sentenced for serious sex crimes under the One Strike law (§
667.61), while young adults convicted of first degree murder are entitled to
such consideration.
5
possibility of parole for a controlling offense that was committed after the
person had attained 18 years of age.” (§ 3051, subd. (h), italics added.)
Defendant recognizes he is statutorily ineligible for relief under the
plain language of subdivisions (b)(4) and (h) of section 3051, as he was 19
years old when he committed the homicides and was subsequently sentenced
to two consecutive LWOP terms as a result. Accordingly, he argues he is
entitled to a youth offender parole hearing because section 3051 denies his
right to equal protection of the laws in two ways: (1) it grants a youth
offender parole hearing to persons under the age of 18 sentenced to LWOP,
but denies such a hearing to persons 18 to 25 years old sentenced to LWOP;
and (2) it grants a youth offender parole hearing to persons 25 years of age or
younger who are convicted of first degree murder but not sentenced to LWOP,
but denies such relief to persons 18 to 25 years old convicted of murder but
sentenced to LWOP.
B. Guiding Principles
We independently review defendant’s challenge to section 3051. (See
People v. Ramos (1997) 15 Cal.4th 1133, 1154.) Both the Fourteenth
Amendment to the United States Constitution and article I, section 7 of the
California Constitution guarantee to all persons the equal protection of the
laws. The right to equal protection of the laws is violated when “the
government . . . treat[s] a [similarly situated] group of people unequally
without some justification.” (People v. Chatman (2018) 4 Cal.5th 277, 288;
Manduley v. Superior Court (2002) 27 Cal.4th 537, 568.) “The California
equal protection clause offers substantially similar protection to the federal
equal protection clause.” (People v. Laird (2018) 27 Cal.App.5th 458, 469.)
“ ‘ “The 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.”
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[Citations.] This initial inquiry is not whether persons are similarly situated
for all purposes, but “whether they are similarly situated for purposes of the
law challenged.” ’ ” (People v. Morales (2016) 63 Cal.4th 399, 408.)
Where our Legislature fixes different punishments for different crimes,
those differences do not violate equal protection unless the challenges show
“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); People v. Wilkinson (2004) 33 Cal.4th 821, 838
(Wilkinson).) “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 ‘empirically substantiated,’ and regardless of whether the Legislature
ever ‘articulated’ that reason when enacting the law.” (People v. Love (2020)
55 Cal.App.5th 273, 287, quoting Turnage, at pp. 74–75 and Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 881; see also People v. Edwards
(2019) 34 Cal.App.5th 183, 195–196 (Edwards) [recognizing that to “mount a
successful rational basis challenge, a party must ‘ “negative every conceivable
basis” ’ that might support the disputed statutory disparity,” quoting Heller
v. Doe (1993) 509 U.S. 312, 320 (Heller), and that “[i]f 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’ ”], quoting Turnage,
supra, at p. 74.)
We separately examine each of defendant’s equal protection arguments.
C. Disparate Treatment of Youth Offenders and Juveniles Sentenced to
LWOP

As noted, defendant argues that section 3051 violates equal protection
because it treats youthful offenders (i.e., those 18 to 25 years old) who commit
7
murder and are sentenced to LWOP differently than juveniles (i.e., those
under 18 years of age) who commit murder and receive the same sentence.
As also noted, under the statute the former are not entitled to a youth
offender parole hearing while the latter are. (§ 3051, subds. (b)(4) & (h).) For
purposes of this particular analysis, we will assume defendant has shown
that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner. (See Wilkinson, supra, 33 Cal.4th at
p. 836.)
We conclude defendant’s equal protection challenge to this
classification lacks merit because both the United States Supreme Court and
our high court have repeatedly found the bright-line drawn between juveniles
and nonjuveniles to be a rational one when it comes to criminal sentencing.
(Miller v. Alabama (2012) 567 U.S. 460, 471 (Miller) [“children are
constitutionally different from adults for purposes of sentencing”]; 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”];
People v. Gutierrez (2014) 58 Cal.4th 1354, 1380 [the age of 18 “is the line the
[United States Supreme Court] has drawn in its Eighth Amendment
jurisprudence”]; People v. Gamache (2010) 48 Cal.4th 347, 405 [“We
previously have rejected the argument that a death penalty scheme that
treats differently those who are 18 years of age and older, and those younger
than 18, violates equal protection”].)
In support of his equal protection argument, defendant relies on
Edwards, supra, 34 Cal.App.5th at page 183. In Edwards, the First District
Court of Appeal addressed equal protection and the application of section
3051 to one-strike offenders sentenced pursuant to section 667.61. The
Edwards court concluded equal protection required one-strike offenders be
afforded a youth offender parole hearing under section 3051, finding
8
unconstitutional the carve out of such offenders in subdivision (h) of that
statute. (Edwards, at p. 197.) In reaching its conclusion, the Edwards court
found “no rational relationship between the disparity of treatment [of one-
strike offenders] and a legitimate governmental purpose” (ibid.), noting that
section 3051 included “first degree murderers but exclude[d] One Strikers.”
(Edwards, at p. 195.)
In its decision, the Edwards court relied heavily on People v. Contreras
(2018) 4 Cal.5th 349 (Contreras). In Contreras, our high court held the
Eighth Amendment’s ban on cruel and unusual punishment was violated by
the imposition of sentences of 50 years to life, and 58 years to life, on two 16-
year-old nonhomicide offenders. (Id. at p. 356.) In support of its holding,
Contreras in turn relied on United States Supreme Court authority including
Miller, supra, 567 U.S. at page 460, Graham v. Florida (2010) 560 U.S. 48
(Graham), and Roper, supra, 543 U.S. at page 560. From such authority,
Contreras recognized that the Eighth Amendment “impose[d] unique
constraints on the sentencing of juveniles who commit serious crimes”
(Contreras, at p. 359); and that children therefore “ ‘are constitutionally
different from adults for purposes of sentencing.’ ” (Ibid., quoting Miller, at
p. 471.)
Our high court in Contreras in particular relied on the Supreme Court's
Graham decision—a case involving a 17-year-old defendant who was
sentenced in Florida to LWOP for a nonhomicide offense—in discussing the
sentencing differences between juvenile and adult offenders: “Central to the
high court’s analysis was its ‘consideration of the culpability of the [juvenile]
offenders at issue in light of their crimes and characteristics, along with the
severity of the punishment in question.’ (Graham, supra, 560 U.S. at p. 67.)
As for culpability, the high court reiterated its observations in Roper that
‘[a]s compared to adults, juveniles have a “ ‘lack of maturity and an
9
underdeveloped sense of responsibility’ ”; they “are more vulnerable or
susceptible to negative influences and outside pressures, including peer
pressure”; and their characters are “not as well formed.” [Citation.] These
salient characteristics mean that “[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.” ’ (Graham, at p. 68, quoting
Roper, supra, 543 U.S. at pp. 569–570, 573.)” (Contreras, supra, 4 Cal.5th at
pp. 365–366.)
We find Edwards reliance on Contreras misplaced for two reasons.
First, Contreras involved a constitutional challenge to LWOP sentences
under the Eighth Amendment’s prohibition of cruel and unusual punishment.
Contreras did not analyze whether such sentences violated the equal
protection clause, as the opinion expressly recognized. (Contreras, supra, 4
Cal.5th at p. 382.)
Second, and perhaps more important to the instant case, Contreras
only addressed the constitutional implications of juvenile offenders sentenced
to LWOP. That is not our case here, as defendant Jackson was a 19-year-old
adult when he committed the two first degree murders leading to two
consecutive LWOP sentences. Thus, the “unique constraints” (Contreras,
supra, 4 Cal.5th at p. 359) and “ ‘constitutionally different’ ” standards (ibid.,
quoting Miller, supra, 567 U.S. at p. 471) applicable to juvenile offenders
sentenced to LWOP are inapposite in the instant case. For these reasons, we
do not find Contreras to be controlling, or Edwards to be persuasive,
authority on our case.
Moreover, we also find Edwards inapposite here because unlike the
defendant in that case, our defendant is unable to point to any more serious
offense for which section 3051 provides relief. As Edwards itself notes, “there
10
is no crime as horrible as intentional first degree murder” and “case law has
long distinguished between such murders and other crimes against persons,
reserving the most draconian sentences for murderers alone.” (Edwards,
supra, 34 Cal.App.5th at p. 197; see Contreras, supra, 4 Cal.5th at p. 382
[“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 special
circumstance murder”].) As there is no crime more serious than the special
circumstance murders defendant committed in 1998, much less one for which
section 3051 permits relief, we conclude for this separate reason that
Edwards does not support defendant’s equal protection claim.
D. Disparate Treatment of Youthful Offenders Convicted of First Degree
Murder

Defendant next argues that section 3051 violates equal protection of
the laws because it treats youthful offenders convicted of first degree murder
differently than youthful offenders who are sentenced to LWOP; the former
are entitled under the statute to a youth offender parole hearing, while the
latter are not. Because a person is eligible for LWOP only if he or she has
committed first degree murder (§ 190.2), both classifications involve youthful
offenders convicted of first degree murder.
But those sentenced to LWOP have also been found, beyond a
reasonable doubt, to have committed that first degree murder under one—or
as in this case, more than one—of the special circumstances that reflect that
the particular first degree murder was in some manner aggravated or
reflected a greater risk of harm to persons other than the immediate murder
victim or victims. (See § 190.2, subds. (a)(1)–(a)(22); People v. Horning (2004)
34 Cal.4th 871, 907.) As a result, youthful offenders who have been
sentenced to LWOP have committed an aggravated form of first degree
murder that distinguishes them from youthful offenders who have committed
11
first degree murder but done so in the absence of any such aggravating
factors.
Consequently, we independently conclude the two groups of first degree
murderers are not similarly situated. (In re Williams (2020) 57 Cal.App.5th
427, 435–436 (Williams) [rejecting the argument that “youth offenders
sentenced to LWOP and those youth offenders sentenced to parole-eligible life
terms are similarly situated with respect to the Legislature’s first goal, which
is to calibrate sentences in accordance with youthful offenders’ diminished
culpability,” and noting that “[w]hile a 21-year-old special circumstance
murderer may, in fact, have diminished culpability compared with a 28 year
old who commits the same crime, he [or she] is nonetheless more culpable and
has committed a more serious crime than a 21 year old convicted of a
nonspecial circumstance murder” for purposes of equal protection]; see also In
re Jones (2019) 42 Cal.App.5th 477, 481 [in which the majority concluded that
“[b]ecause LWOP offenders who were between the ages of 18 and 25 when
they committed their offenses are adult offenders, they are not similarly
situated to juvenile offenders described in section 1170(d)(2)”]; People v.
Jacobs (1984) 157 Cal.App.3d 797, 803 [recognizing that “ ‘[p]ersons convicted
of different crimes are not similarly situated for equal protection purposes,’ ”
italics omitted].)
And, assuming arguendo we accept defendant’s contention that all
murderers are similarly situated vis-à-vis section 3051’s desire to allow all
youthful offenders the opportunity to show that they have reformed, in our
view the difference in the underlying crimes, and the fact that special
circumstance murder is punished more harshly, provide a rational reason for
distinguishing between the two groups of first degree murderers. (Williams,
supra, 57 Cal.App.5th 427, 435–436; accord, Contreras, supra, 4 Cal.5th at

12
p. 382 [noting that “special circumstance murder” is sentenced most
“harshly”]; People v. Blackwell (2016) 3 Cal.App.5th 166, 202 [noting that
“[f]irst degree special circumstance murder, viewed in the abstract, is
perhaps the most serious offense under California law. . . .”]; People v. Acosta
(Feb. 9, 2021, G057136) __ Cal.App.5th __ 2021 LEXIS 116, at p. *16 [noting
the severity of the crime committed provides a “rational basis for
distinguishing between a young adult LWOP offender and a young adult
offender serving a non-LWOP sentence”].)
“ ‘It is the prerogative, indeed the duty, of the Legislature to recognize
degrees of culpability when drafting a Penal Code.’ [Citation.] . . . ‘The
decision of how long a particular term of punishment should be is left
properly to the Legislature. The Legislature is responsible for determining
which class of crimes deserves certain punishments and which crimes
should be distinguished from others. As long as the Legislature acts
rationally, such determinations should not be disturbed.’ [Citation.]”
(Wilkinson, supra, 33 Cal.4th at p. 840; see In re Lynch (1972) 8 Cal.3d 410,
414 [noting it is the “function of the legislative branch to define crimes and
prescribe punishments, and . . . such questions are in the first instance for
the judgment of the Legislature alone”].)
Given the deferential standard we apply in determining rationality for
equal protection purposes, we conclude public safety, and the desire to punish
those persons who commit first degree special circumstance murder more
harshly than persons who commit first degree murder without aggravating
circumstances, provide a plausible basis for our Legislature to treat these two
classifications differently for purposes of section 3051. (See Heller, supra,
509 U.S. at p. 319 [noting that “rational-basis review in equal protection
analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of
legislative choices’ ”]; see also Turnage, supra, 55 Cal.4th at p. 74.)
13
 DISPOSITION
The order denying defendant relief under section 3051 is affirmed.

BENKE, Acting P. J.

I CONCUR:

O'ROURKE, J.

14
Dato, J., Concurring.

I agree with the majority that the exception in Penal Code section 3051,
subdivision (h) for persons who were between 18 and 25 when they
committed their offense and were sentenced to life imprisonment without
possibility of parole (LWOP) does not violate the equal protection guarantees
of the United States and California Constitutions. In large measure I reach
this conclusion for the same reasons thoughtfully expressed in Justice
Goethal’s recent opinion for Division Three of the Fourth Appellate District in
People v. Acosta (Feb. 9, 2021, No. G057136) ___ Cal.App.5th ___ [2021
Cal.App. Lexis 116] (Acosta).
Like the court in Acosta, for purposes of an equal protection analysis I
believe youthful offenders under the age of 25 who commit murder and are
sentenced to LWOP are “similarly situated” to young adult defendants
sentenced to life imprisonment with the possibility of parole and juvenile
offenders sentenced to LWOP. (Acosta, supra, [2021 Cal.App. Lexis at
pp. **13‒15].) Some courts seem willing to peremptorily reject any equal
protection challenge by concluding that these groups of youthful offenders are
not “similarly situated.” (See, e.g., In re Williams (2020) 57 Cal.App.5th
427, 435 (Williams) [“Where two groups of individuals are not similarly
situated for purposes of the law being challenged, we need not proceed to the
next step of the equal protection analysis.”].) They further suggest such a
determination can be based on the mere fact that certain defendants were
convicted of different crimes. (Id. at p. 435.) But where a facial classification
is challenged there will always be differences between two groups, and to
state that the relevant groups are not “similarly situated” is in many respects
announcing the conclusion before performing the analysis. As the Supreme
Court has explained, rejecting a constitutional challenge at the outset by
finding that two groups are not “similarly situated” would have the effect of
“insulat[ing] the challenged . . . statute from any meaningful equal protection
review.” (In re Marriage Cases (2008) 43 Cal.4th 757, 831, fn. 54; see
Shay, Similarly Situated (2011) 18 Geo. Mason L. Rev. 581, 624 [“ ‘Similarly
situated’ should not be used as an end-run around equal protection review.”].)
In any event, “similar” does not mean “identical.” The groups here are
“sufficiently similar” with respect to the purpose of the statute because, while
they are alike in many respects, they are different in at least one significant
way that is the basis for a disparity of treatment. (People v. Hofsheier (2006)
37 Cal.4th 1185, 1200; quoting People v. Nguyen (1997) 54 Cal.App.4th 705,
715.) The question is “whether distinctions between the groups justify the
unequal treatment.” (Nguyen, at p. 715.)
Also like the Acosta court, I have some reservations “whether the
exclusion for young adult LWOP offenders from [the parole] process is
consistent with the statute’s purpose and legislative history.” (Acosta, supra,
[2021 Cal.App.Lexis, at p. *18].) I, too, would invite the Legislature to
reconsider whether our evolving knowledge of brain development suggests
that unalterable judgments about individuals based on what they did
between age 18 and 25 may be unjustifiable. (See also People v.
Montelongo (2020) 55 Cal.App.5th 1016, 1040 (conc. opn. of Segal, J.); In re
Jones (2019) 42 Cal.App.5th 477, 486‒487 (conc. opn. of Pollak, J.).) But
while it might be more reasonable to allow youthful LWOP offenders the
possibility of parole at some point in time beyond 25 years in prison, giving
appropriate deference to the Legislature I cannot say the current judgment
implicit in section Penal Code section 3051 is irrational.

DATO, J.

2
Filed 6/9/21

Court of Appeal, Fourth Appellate District, Division One - No. D077095

S267812

IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________

THE PEOPLE, Plaintiff and Respondent,

v.

JOSEPH LEON JACKSON, Defendant and Appellant.
________________________________________________________________________

The petition for review is denied.

______________________________
Chief Justice
 PEOPLE v. JACKSON
S267812

Concurring Statement by Justice Liu

Joseph Leon Jackson shot and killed two people when he
was 19 years old, and he was sentenced to two terms of life
without the possibility of parole, among other sentences, in
1998. Over two decades later, Jackson sought a youth offender
parole hearing under Penal Code section 3051. (All
undesignated statutory references are to the Penal Code.) The
Court of Appeal affirmed the trial court’s denial of this hearing,
holding that section 3051 did not violate equal protection by
excluding from a youth offender parole hearing people who were
between 18 and 25 years old when they committed an offense for
which they were sentenced to life without the possibility of
parole. (People v. Jackson (2021) 61 Cal.App.5th 189, 195–200
(Jackson).) Another case, denied review today, raises similar
issues. (People v. Acosta (2021) 60 Cal.App.5th 769, 774–782,
review den. June 9, 2021, S267783 (Acosta).)
I continue to believe section 3051’s parole eligibility
scheme is in tension with equal protection of the laws. (See
People v. Montelongo (2020) 55 Cal.App.5th 1016, 1041a–1041c
[274 Cal.Rptr.3d 267, 288–290] (conc. stmt. of Liu, J.)
(Montelongo).) This scheme excludes certain people from youth
offender parole hearings depending on the crime they
committed, even though “the mitigating attributes of youth are
not ‘crime-specific.’ ” (Id. at p. 1041a [274 Cal.Rptr.3d at p. 289]
(conc. stmt. of Liu, J.), quoting Miller v. Alabama (2012) 567
U.S. 460, 473.) And it excludes certain 18- to-25-year-olds from
1
 PEOPLE v. JACKSON
Liu, J., concurring statement upon denial of review

these hearings, even though the Legislature has recognized that
these mitigating attributes “are found in young adults up to age
25” and “that the ordinary process of neurological and cognitive
development continues for several years past age 18.”
(Montelongo, at pp. 1041b, 1041c [274 Cal.Rptr.3d at p. 290
(conc. stmt. of Liu, J.).)
The Legislature has enacted important reforms in this
area and can do so again. It can, as the high court recently
observed, “categorically prohibit life without parole,” “require
sentencers to make extra factual findings before sentencing,”
“direct sentencers to formally explain on the record why a life-
without-parole sentence is appropriate notwithstanding the
defendant’s youth,” or “establish rigorous proportionality or
other substantive appellate review of life-without-parole
sentences.” (Jones v. Mississippi (2021) 593 U.S. __, __ [141
S.Ct. 1307, 1323].) In other words, the Legislature may require
an individualized, on-the-record finding of irreparable
corruption before sentencing a defendant to life without parole.
Or it can altogether eliminate life without the possibility of
parole for youth offenders — a category the Legislature, relying
on science, has defined to include persons between 18 and 25
years old — by making all such life inmates eligible for a youth
offender parole hearing.
As of this writing, at least 11 justices of the Court of
Appeal have called for legislative reconsideration of section
3051. (In re Murray (2021) 63 Cal.App.5th 184, 192–193 (maj.
opn. of Richman, Acting P. J., joined by Stewart and Miller, JJ.);
Jackson, supra, 61 Cal.App.5th at pp. 201–202 (conc. opn. of
Dato, J.); Acosta, supra, 60 Cal.App.5th at p. 781 (maj. opn. of
Goethals, J., joined by Bedsworth, Acting P. J.); Montelongo,
supra, 55 Cal.App.5th at p. 1041 (conc. opn. of Segal, J.); In re

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 PEOPLE v. JACKSON
Liu, J., concurring statement upon denial of review

Jones (2019) 42 Cal.App.5th 477, 486–487 (conc. opn. of Pollak,
P. J., joined by Streeter, J.); People v. Escamilla (Mar. 18, 2021,
F077568) [nonpub. opn.] (maj. opn. of Meehan, J., joined by
DeSantos, J.); see also In re Williams (2020) 57 Cal.App.5th 427,
436, fn. 7 [acknowledging statutory tension]; People v. Smith
(Feb. 24, 2021, B305527) [nonpub. opn.] [same].) I again echo
my colleagues in “invit[ing] the Legislature to reconsider
whether our evolving knowledge of brain development suggests
that unalterable judgments about individuals based on what
they did between age 18 and 25 may be unjustifiable.” (Jackson,
at pp. 201–202 (conc. opn. of Dato, J.).)

LIU, J.

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