Filed 11/18/21 P. v. Ward CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A162002
v.
MARCUS WARD, (Alameda County
Super. Ct. No.
Defendant and Appellant.
HC170099B2)
Appellant Marcus Ward was 21 years old when he fatally
shot the pimp of an acquaintance while trying to rob him. Among
other things, he was convicted of first-degree murder with a
special circumstance for committing the murder while engaged in
the commission of a robbery and was sentenced to prison for life
without the possibility of parole (LWOP). (Pen. Code, §§ 187,
subd. (a), 190.2, subd. (a)(17)(A).)1 Appellant filed a petition for
habeas corpus requesting an evidence preservation hearing under
People v. Franklin (2016) 63 Cal.4th 261 (Franklin) to develop the
record in anticipation of a youthful parole offender hearing under
section 3051. The court construed the writ as a motion under
Further references are to the Penal Code unless otherwise
1
indicated.
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section 1203.01 and denied the motion because as an adult
offender sentenced to LWOP, appellant was not eligible for a
youthful parole hearing. We affirm.
“In response to a series of decisions addressing Eighth
Amendment limits on juvenile sentencing (see, e.g., Miller v.
Alabama (2012) 567 U.S. 460[]; Graham v. Florida (2010) 560
U.S. 48, 75[]), the Legislature enacted section 3051. (Sen. Bill
No. 260 (2013–2014 Reg. Sess.), Stats. 2013, ch. 312, §§ 1, 4; In re
Trejo (2017) 10 Cal.App.5th 972, 980–981[].) In its current form,
the statute provides an opportunity for release (via youth
offender parole hearings) to most persons convicted of crimes
committed before the age of 26 in their 15th, 20th, or 25th year of
incarceration, depending on the sentence imposed for their
‘ “[c]ontrolling offense.” ’ (§ 3051, subds. (a)(2)(B); see id., subd.
(b)(1)–(4).).” (People v. Sands (2021) 70 Cal.App.5th 193, 197–198
(Sands).) Section 3051 carves out an exception for offenders who
are over 18 years of age at the time of their offense, who are
either sentenced to LWOP or are convicted under the One Strike
or Three Strikes laws, and makes such offenders ineligible for a
youthful parole hearing. (§ 3051, subd. (h).)
In In re Cook (2019) 7 Cal.5th 439 (Cook), the Supreme
Court held that an evidence preservation hearing of the type
envisioned by Franklin, supra, 63 Cal.4th at p. 284 was available
for offenders who were eligible for youthful parole hearings under
section 3051. (Cook, supra, at p. 458–459.) Appellant does not
dispute that as a person sentenced to LWOP who was over 18
when he committed his offense, under section 3051 he is
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statutorily ineligible for a youthful parole hearing. But he argues
that equal protection principles require us to treat him as eligible
for parole consideration.
The equal protection issue was properly raised in a
post-judgment motion under section 1203.01, and the trial court
properly construed appellant’s petition for a writ of habeas corpus
as such a motion. (Sands, supra, 70 Cal.App.5th at pp. 197–199.)
But appellant’s equal protection argument fails on its merits.2
This Court recently rejected the identical argument in
Sands, supra, 70 Cal.App.5th 193, in which we affirmed an order
denying a Franklin-type hearing to a defendant sentenced to
LWOP for a murder he committed when he was 24 years old.
(See also In re Murray (2021) 68 Cal.App.5th 456, 462–465 [rev.
denied, Nov. 10, 2021].) We concluded that section 3051 does not
violate equal protection by treating adult offenders sentenced to
LWOP more harshly than juvenile offenders sentenced to LWOP,
because assuming these two groups are similarly situated, an
LWOP sentence imposed on a juvenile offender might violate the
constitution and the Legislature “could rationally decide to
remedy unconstitutional sentences but go no further.” (Sands,
p. 205.) Moreover, assuming an adult offender sentenced to
LWOP was similarly situated to an adult offender sentenced to a
de facto term of life without the possibility of parole, the
Legislature could have rationally decided to treat the latter group
We deny by separate order on this same date appellant’s
2
companion petition for a writ of habeas corpus. (In re Marcus
Ward (Nov. 18, 2021, A161841)[nonpub. order].)
3
less harshly because it believed their crimes were less serious
than special circumstance murder. (Sands, at pp. 204–206.) We
reject appellant’s arguments for the reasons set forth in Sands.3
The judgment is affirmed.
3 The California Supreme Court is currently considering
whether it violates equal protection to exclude young adults
convicted under the One Strike law from youthful offender parole
consideration under section 3051 when offenders convicted of
first-degree murder without special circumstances are not
excluded. (People v. Williams (2020) 47 Cal.App.5th 475, review
granted July 22, 2020 (S262229).)
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NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Ward / A162002
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