People v. Garcia CA1/5

Filed 2/22/22 P. v. Garcia CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
A164265
v.
CARLOS GARCIA, (Kern County
Super. Ct. No. BF172406A)
Defendant and Appellant.

Defendant and appellant Carlos Garcia (appellant) appeals following
his conviction of first degree murder and other charges. He contends that his
trial counsel’s failure to request a pinpoint instruction on provocation
constituted ineffective assistance of counsel, that insufficient evidence
supports the jury’s finding the murder was in the first degree, and that
denying him the opportunity for a youth offender parole hearing violates his
constitutional right to equal protection of the laws. We affirm.1
PROCEDURAL BACKGROUND
In July 2018, the Kern County District Attorney filed an information
charging appellant with premeditated murder (Pen. Code, § 187, subd. (a);

The present appeal was originally filed in the Fifth District Court of
1

Appeal and assigned case number F079744. It was transferred to this court
by order of the California Supreme Court.

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count one);2 possession of a firearm by a felon (§ 29800, subd. (a)(l); count
two); and unlawful possession of ammunition (§ 30305, subd. (a)(l); count
three). The information further alleged as to count one that appellant
personally used and deliberately discharged a firearm causing death
(§§ 12022.5, subd. (a), 12022.53, subd. (d)), and that he had previously been
convicted of a serious felony (§ 667, subd. (a)). It was alleged as to all counts
that appellant had suffered a prior strike conviction within the meaning of
the “Three Strikes” law (§ 667, subd. (c)–(j)).
The jury found appellant guilty on all counts, finding the murder in the
first degree and the firearm enhancement allegations true. The trial court
subsequently found the prior offense allegations true. The court sentenced
appellant on count one to a term of 25 years to life, doubled under the Three
Strikes law (pursuant to section 667, subdivision (e)), plus 25 years to life for
the firearm enhancement (pursuant to section 12022.53, subdivision (d)), and
plus five years for the prior serious felony (pursuant to section 667,
subdivision (a)). The aggregate sentence was an indeterminate term of 75
years to life, plus a determinate term of 5 years, for a total of 80 years to life.
The terms on the remaining counts were stayed pursuant to section 654.
The present appeal followed.
FACTUAL BACKGROUND
The Prosecution’s Evidence
In May 2018, the victim, Alyson Muniz, lived in Blanca A.’s garage in
Bakersfield with her three young children. Blanca A. lived in the house with
her four sons and her daughter. Blanca A.’s husband occasionally stayed at
the house, and appellant, who was dating Muniz, sometimes stayed in the
garage with Muniz.

2 All undesignated statutory references are to the Penal Code.

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 A few days or up to a week and a half before the shooting, appellant
punched and broke a living room window at Blanca A.’s house. She banned
appellant from the house and told her husband about the incident. Shortly
thereafter, Blanca A.’s husband beat appellant up.
On May 19, 2018, appellant sent Muniz several threatening audio
messages on Facebook. Appellant told her, “I’ll let your dumb ass feel the
fucking hurt bitch.” He said, “I’m really gonna end up not ever getting with
you ever again or talking to you dude like, I mean I don’t even want to talk to
you right, I don’t want to see you, I don’t, to be honest I don’t even want to
hear that you’re breathing. That’s how much, how I feel about you.” Later he
told her, “But go ahead dumb ass, keep lying. Keep lying to the next
boyfriend and then the next one and then the next one and then the next one
till that fucking one that just gets pissed the fuck off ends up murking your
bitch ass. Because that’s what I hope happens since you’re just a fucking
lying sack of shit.”3 He also threatened to shoot himself in the head. Muniz
responded, “Just remember I love you . . . . And I’m always going to be here.
I can’t believe you’re going to hurt me.”
On May 20, 2018, appellant sent Muniz a Facebook message stating
that if she tested positive for “dope” she would “feel so much fukn pain n the
pain will not be like the lil pain u usually get this one best believe u will
regret ever smoking that shit.” Later he wrote, “Just know bitch I’m going to
torture ur friends entire lil family they have there.”
On May 21, 2018, Muniz told Blanca A. that appellant had a gun. She
did not seem afraid. On May 22, at around 7:00 p.m., Blanca A.’s daughter D.
came into Blanca A.’s room to tell her that appellant had come over. About

3A police detective testified that “murking” is slang for “killing.” When
appellant testified, he agreed.

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30 minutes later, Muniz came to Blanca A’s room and Blanca A. told her
appellant was not allowed in the house. Blanca A. said it was okay if they
were outside. Muniz gave Blanca A. her phone to hold for her. Shortly
afterwards, D. saw appellant and Muniz on the front lawn.4 Muniz called her
over, but appellant told her not to come. Muniz then stood and ran past D.
into the house. Appellant followed, running past Blanca A.’s son J.,5 who was
playing in the living room.
D. saw appellant point a gun at Muniz. A loud sound followed and both
children saw appellant standing over Muniz, who was on the ground
bleeding. J. saw appellant holding a black pistol. Appellant fled.
Muniz was taken to a hospital and died. A forensic pathologist
concluded that Muniz died from a single gunshot wound to the head. Muniz
could have been standing, falling, or lying on the ground at the time of the
shooting. Due to soot in the wound, it appeared the barrel of the gun had
been fired from between a few inches to less than two feet away. The killing
could have been unintentional.
Appellant was arrested at the end of May 2018. When interrogated by
the police, he said he brought the gun when he went to see Muniz because he
was nervous Blanca A.’s husband and son would “jump” him again. When he
met up with Muniz on the day of the shooting, he, Muniz, and her sons
walked around the block a couple of times. He and Muniz argued because he
really did not want to be there. Before she ran into the house, Muniz said
“we’ll see what [Blanca A.’s husband and son] think about this.” He chased
after her, and he grabbed his gun because it was falling from his waistband.
Muniz hit him, he pushed her, and she fell to the ground. The gun may have

4 D. was nine years old at the time of her testimony in October 2019.
5 J. was 11 years old at the time of his testimony in October 2019.

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gone off when he blocked her punches; he heard the gunshot as she was
falling.
The jury also heard evidence regarding a 2017 incident during which
appellant forced himself into his ex-girlfriend’s car and hit her in the head
shortly after she broke up with him.
Appellant’s Testimony
Appellant testified he was a methamphetamine addict, having started
using the drug at age 13. He started dating Muniz in September 2017. In
2018, he was using methamphetamine every day; he was homeless but
sometimes he would stay with Muniz or his sister. In May 2018, he engaged
in a fight with Blanca A.’s husband and son after he accidentally broke a
window at Blanca A.’s house. Appellant’s arguments with Muniz were
usually about infidelity and his drug use; he was upset because he believed
she was “talking to” several other men, including one of his cousins. The
threatening statements he made on Facebook were the result of his
methamphetamine use; he made the statements while he was high on the
drug and he had not been sleeping for almost four weeks before the shooting.
He did not intend to follow through on any of his threats.
Appellant testified he obtained the gun used to kill Muniz from his
sister’s residence on the day of the shooting. Muniz asked him over; he had
already used methamphetamine and he used more on the way over. He had
the gun to dissuade Blanca A.’s husband and son if they tried to “jump” him
again. Before he met up with Muniz, the gun accidentally discharged in an
alley while he was trying to adjust it in his waistband.
After he met up with Muniz, they walked around the neighborhood
with her boys and then sat on the grass in front of Blanca A.’s house. During
the walk, Muniz was upset with him because he was high. Later, Muniz said

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she had received a message on her phone from appellant’s sister, who was
mad at appellant about something. Appellant wanted Muniz to bring him
her phone so he could contact his sister, but she refused. He became “a little
bit” “upset” because he believed she did not want him seeing that she was
“talking to” people. He was angry with her because he suspected her of
cheating on him.
When Muniz asked D. to come over, appellant told her not to come
because he and Muniz were “having a conversation.” Muniz told appellant
she was going to see what Blanca A.’s husband and eldest son “think about
this,” and she got up and ran into the house. He ran after her because he
“didn't know what she was going to be trying to tell” them.
Appellant followed Muniz into the house. While he ran, the gun was
slipping from his waistband, so he grabbed the handle. They ended up in the
kitchen and Muniz “started swinging on” him. Appellant blocked the
punches while holding onto the gun, which had slipped out of his waistband.
Muniz fell down; the gun apparently accidentally discharged as she fell. He
then fled.
DISCUSSION
I. Appellant Has Not Shown Ineffective Assistance of Counsel
Appellant contends his trial counsel was ineffective because counsel
failed to request a pinpoint instruction on second degree murder by
provocation. Appellant has not shown ineffectiveness of counsel (IAC).

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 A. Legal and Factual Background
“ ‘ “In assessing claims of ineffective assistance of trial counsel, we
consider whether counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms and whether the
defendant suffered prejudice to a reasonable probability, that is, a probability
sufficient to undermine confidence in the outcome. [Citations.] . . . Defendant
thus bears the burden of establishing constitutionally inadequate assistance
of counsel.” ’ ” (People v. Brown (2014) 59 Cal.4th 86, 109.) “[T]he duty of
counsel to a criminal defendant includes careful preparation of and request
for all instructions which in his judgment are necessary to explain all of the
legal theories upon which his defense rests.” (People v. Hussain (2014)
231 Cal.App.4th 261, 270.) “If the record ‘sheds no light on why counsel acted
or failed to act in the manner challenged,’ an appellate claim of ineffective
assistance of counsel must be rejected ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.)
Appellant argues trial counsel provided ineffective assistance in failing
to request that the court give CALCRIM No. 522, “Provocation: Effect on
Degree of Murder.” CALCRIM No. 522 provides in relevant part,
“Provocation may reduce a murder from first degree to second degree [and
may reduce a murder to manslaughter]. The weight and significance of the
provocation, if any, are for you to decide. If you conclude that the defendant
committed murder but was provoked, consider the provocation in deciding
whether the crime was first or second degree murder. [Also, consider the
provocation in deciding whether the defendant committed murder or
manslaughter.]” To address appellant’s claim it is necessary to briefly
summarize the law of murder and manslaughter.

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 “ ‘ “Homicide is the killing of a human being by another....” ’ [Citation.]
Criminal homicide is divided into two types: murder and manslaughter.
‘Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.’ (§ 187, subd. (a).) Malice aforethought may be express or
implied. (§ 188.) ‘Express malice is an intent to kill. . . . Malice is implied
when a person willfully does an act, the natural and probable consequences of
which are dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses.’ [Citation.] A
killing with express malice formed willfully, deliberately, and with
premeditation constitutes first degree murder. [Citation.] ‘Second degree
murder is the unlawful killing of a human being with malice aforethought
but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 941–942 (Beltran).)
“Manslaughter is a lesser included offense of murder. (§ 192;
[citation].) The mens rea element required for murder is a state of mind
constituting either express or implied malice. A person who kills without
malice does not commit murder. Heat of passion is a mental state that
precludes the formation of malice and reduces an unlawful killing from
murder to [voluntary] manslaughter. Heat of passion arises if, ‘ “at the time
of the killing, the reason of the accused was obscured or disturbed by passion
to such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from
such passion rather than from judgment.” ’ [Citation.] Heat of passion, then,
is a state of mind caused by legally sufficient provocation that causes a
person to act, not out of rational thought but out of unconsidered reaction to
the provocation. While some measure of thought is required to form either an

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intent to kill or a conscious disregard for human life, a person who acts
without reflection in response to adequate provocation does not act with
malice.” (Beltran, supra, 56 Cal.4th at pp. 941–942.)
Although a defendant who kills without adequate provocation is guilty
of murder rather than voluntary manslaughter, any evidence of provocation
is relevant in determining whether the defendant is guilty of first or second
degree murder. (See People v. Rivera (2019) 7 Cal.5th 306, 328; People v.
Rogers (2006) 39 Cal.4th 826, 877–878.) CALCRIM No. 522 is a pinpoint
instruction that directs the jury to consider any provocation “in deciding
whether the crime was first or second degree murder.” (See Rogers, at
pp. 877–878 [stating that analogous CALJIC instruction instructs jury “that
provocation inadequate to reduce a killing from murder to manslaughter
nonetheless may suffice to negate premeditation and deliberation, thus
reducing the crime to second degree murder”].)
The final relevant charge is involuntary manslaughter. “ ‘An essential
distinction between second degree murder based on implied malice and
involuntary manslaughter based on criminal negligence, is that in the former
the defendant subjectively realized the risk to human life created by his
conduct, whereas in the latter the defendant’s conduct objectively endangered
life, but he did not subjectively realize the risk.’ ” (People v. Klvana (1992)
11 Cal.App.4th 1679, 1704.)
In the present case, the trial court gave instructions on excusable
homicide by accident; involuntary manslaughter due to criminal negligence;
voluntary manslaughter (on the sudden quarrel/heat of passion provocation
theory); and murder, including that first degree murder required proof
appellant “acted willfully, deliberately, and with premeditation.” Defense

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counsel did not request and the trial court did not give the CALCRIM No. 522
pinpoint instruction.
The main thrust of defense counsel’s closing argument was that the
shooting was accidental, which was consistent with appellant’s statements to
the police and his testimony at trial. He also argued there was no evidence
the killing was planned, which was also consistent with the accident defense.
Regarding second degree murder and voluntary manslaughter, defense
counsel effectively argued that the evidence that the shooting was an
accident showed that appellant did not act with malice or even a provoked
intent to do harm. In reference to second degree murder, he told the jury,
“[R]eaching implied malice is very close to having to find an intent to kill just
because of how the events played out that if he actually knew that his act
was dangerous and was consciously disregarding it, he would basically have
to have the intent to kill given that he had the firearm and they were in close
proximity and I’ve gone through all the reasons why he did not.” He argued
appellant was innocent of voluntary manslaughter for the same reason. He
did not argue that, if the jury rejected the accident defense, the jury should
convict appellant of only voluntary manslaughter or second degree murder
because the evidence showed appellant acted based on provocation rather
than with the deliberation necessary to support a conviction for first degree
murder. Instead, defense counsel asked the jury to convict appellant of
involuntary manslaughter. He told the jury, “[I]t has to be proved he acted in
a reckless way creating a high risk of death or great bodily injury. It’s clearly
established here.”
B. Analysis
Appellant contends trial counsel’s representation“ ‘ “fell below an
objective standard of reasonableness” ’ ” (Brown, supra, 59 Cal.4th at p. 109)

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because he relied solely “on a theory of involuntary manslaughter, which
rested on the jury’s acceptance of the proposition that appellant did not know
his act was dangerous to human life.” Appellant argues that theory was very
weak because defense counsel had to acknowledge to the jury “that the
evidence showed appellant knew there was a round in the chamber, the
safety was not engaged and earlier in the day he had almost shot his foot off
under the same conditions.”
In this case, the defense rested on the theory that the shooting was an
accident. In this context, appellant has not shown counsel’s failure to request
a pinpoint instruction on the provocation theory of second degree murder was
objectively unreasonable. Although counsel had a duty to request all
instructions “necessary to explain all of the legal theories upon which [the]
defense rests” (People v. Hussain, supra, 231 Cal.App.4th at p. 270),
appellant cites no authority counsel could have had no legitimate tactical
reason to forgo a pinpoint instruction inconsistent with the defense theory.
In People v. Wader (1993) 5 Cal.4th 610, the California Supreme Court
rejected an analogous IAC claim. There, the defendant contended his trial
counsel was ineffective in failing to request an instruction on voluntary
intoxication, where the defendant’s “version of events was that he specifically
intended not to kill the victim when he shot her.” (Id. at p. 643.) Because
“[a]n instruction on voluntary intoxication as negating specific intent would
have been inconsistent with defendant’s theory of the case,” the court held it
could not “say that defense counsel had no rational tactical purpose in not
requesting an instruction on intoxication.” (Ibid.; see also People v. Olivas
(2016) 248 Cal.App.4th 758, 771 [no IAC in failing to request voluntary
intoxication instruction that would have been inconsistent with the
defendant’s claim he did not engage in the alleged sexual misconduct].)

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 The same reasoning applies in the present case. Appellant’s IAC claim
on direct appeal fails.
II. There Was Sufficient Evidence to Support the Verdict
Appellant contends there was insufficient evidence from which a
reasonable jury could have found beyond a reasonable doubt that appellant’s
killing of Muniz was deliberate and premeditated. We disagree.
A. Legal Background
“In evaluating a claim that a conviction lacks sufficient evidence, ‘ “we
review the whole record to determine whether ... [there is] substantial
evidence to support the verdict ... such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.” ’ ” (People v.
Wear (2020) 44 Cal.App.5th 1007, 1019 (Wear).)
Murder is the unlawful killing of a person with malice aforethought.
(§ 187, subd. (a).) First degree murder is murder committed by certain
enumerated means including, as relevant here, a “willful, deliberate, and
premeditated killing.” (§ 189, subd. (a).) “ ‘The very definition of
“premeditation” encompasses the idea that a defendant thought about or
considered the act beforehand.’ [Citation.] ‘Deliberate’ means ‘ “ ‘ “formed or
arrived at or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” [Citation.]’
[Citation.]” ’ [Citation.] Thus, ‘ “[a]n intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.” ’ ” (People v. Boatman (2013)
221 Cal.App.4th 1253, 1264 (Boatman).) However, “ ‘ “ ‘[t]he process of

12
premeditation and deliberation does not require any extended period of time.
“The true test is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .” ’ ” ’ ” (Id. at p. 1265.)
There is a “ ‘presumption that an unjustified killing of a human being
constitutes murder of the second, rather than of the first, degree,’ ” and
therefore “ ‘[a reviewing court] must determine in any case of circumstantial
evidence whether the proof is such as will furnish a reasonable foundation for
an inference of premeditation and deliberation [citation] or whether it “leaves
only to conjecture and surmise the conclusion that defendant either arrived at
or carried out the intention to kill as the result of a concurrence of
deliberation and premeditation.” ’ ” (Ibid.)
“Our Supreme Court has identified three categories of evidence to
consider when determining whether a murder was deliberate and
premeditated: planning activity, motive, and the manner of the killing.
[Citation.] When the record contains evidence in all three categories, the
verdict is generally affirmed. [Citation.] But those categories or factors are
not exclusive or determinative—they are merely intended to guide a
reviewing court’s assessment of whether the evidence supports a reasonable
inference that the killing was the result of the defendant’s preexisting
reflection and not the result of an unconsidered or rash impulse. [Citation.]
‘A first degree murder conviction will be upheld when there is extremely
strong evidence of planning, or when there is evidence of motive with
evidence of either planning or manner.’ ” (People v. Pettigrew (2021)
62 Cal.App.5th 477, 492 (Pettigrew).)

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 B. Analysis
As to planning evidence, appellant argues that “[t]he only evidence of
planning was that appellant acquired a firearm and ammunition and thereby
brought a loaded gun to his visit with Alyson,” and that the evidence
supported appellant’s testimony he had the gun for self-defense. He also
argues that appellant spent considerable time walking and talking with
Muniz before shooting her, and that it did not reflect planning for appellant
to shoot Muniz in front of people who could identify him and for him to tell
Muniz he had a gun. As to motive evidence, appellant argues that, although
appellant expressed concern Muniz was cheating on him, “[a]ppellant had no
credible evidence that she was seeing other men and the evidence provides
little basis to believe that he made a cold calculation to kill her based on
nothing but suspicions.” Finally, as to the manner of killing, appellant
argues the “one fatal shot at close range” after a “very brief physical tussle”
“offers no evidence supporting a finding of deliberation or premeditation.”
We agree with appellant that the manner of killing was not probative
on the question of whether the killing was deliberate and premeditated. As
in Boatman, supra, 221 Cal.App.4th at page 1268, the “manner of killing
supports the finding of malice necessary to convict defendant of murder. To
support first degree murder, however, the prosecution must show more than
an intent to kill.” (Cf. Pettigrew, supra, 62 Cal.App.5th at pp. 494–495
[manner of killing probative where evidence showed killing “ ‘occurred in
stages’ ” with “multiple means” and “over a sufficiently prolonged period to
allow defendant to reflect on his actions”].) However, we disagree with
appellant’s analysis of the evidence of planning and motive.
As to planning, although a jury could have accepted appellant’s
testimony that he had the gun in self-defense, the jury also could have

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rejected that testimony and inferred that his possession of the gun was
evidence he was contemplating killing Muniz. As to motive, we disagree with
appellant’s assertion that we can ignore the strong evidence appellant was
violently angry over his suspicions of infidelity because there is no evidence
Muniz was actually cheating on him. The very threatening Facebook
communications, which led Muniz to comment “I can’t believe you’re going to
hurt me,” are powerful evidence that appellant had a motive to kill. Of
course, appellant was acting in an unreasonable and paranoid manner—
possibly under the influence of methamphetamine—but appellant does not
argue that negates the evidence of premeditation and deliberation. “ ‘ “[T]he
law does not require that a first degree murderer have a “rational” motive for
killing.” ’ ” (Pettigrew, supra, 62 Cal.App.5th at p. 495.)
We note that the evidence does not reflect that appellant had a definite
plan to kill Muniz on May 22, 2018. If so, he might have killed Muniz before
they returned to Blanca A.’s house, where there were many witnesses who
knew him. But the evidence does support inferences that appellant
considered killing Muniz before meeting up with her on the day of the
shooting and that he came prepared with a gun in case he decided to go
through with it. The jury could further infer that Muniz failed to satisfy
appellant’s concerns over her purported infidelity and that he made a rapid
but calculated decision to kill, as he was prepared to do and as he had warned
her he might do. (See People v. Young (2005) 34 Cal.4th 1149, 1183 [“the jury
could infer that defendant ‘considered the possibility of murder in
advance’ ”].)
Substantial evidence supports the verdict of first degree murder.

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III. The Exclusion of Three Strikes Offenders from Youth Offender Parole
Hearings Does Not Violate Equal Protection
Appellant was 24 years old when he committed the instant offense.
Pursuant to section 3051, subdivisions (a) and (b), offenders 25 years of age
and younger at the time of their offense are eligible for a youth offender
parole hearing after 15, 20, or 25 years in prison, depending on the sentence.
(§ 3051, subds. (a)–(b).) However, section 3051, subdivision (h) provides that
certain youth offenders—including those sentenced pursuant to the Three
Strikes law, such as appellant—are ineligible for youth offender parole
hearings.6 Appellant argues this differential treatment of Three Strikes
youth offenders violates his right to equal protection of the laws.
“The federal and state constitutional guarantees of equal protection of
the laws require, generally, that ‘ “ ‘persons similarly situated with respect to
the legitimate purpose of the law [should] receive like treatment.’ ”
[Citation.] “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.”
[Citation.]’ [Citation.] If this showing is made and, as here, the different
treatment implicates no suspect class or fundamental right, a defendant
must further show that there is no rational basis for the different treatment.”

6 Section 3051, subdivision (h) provides: “This section shall not apply to
cases in which sentencing occurs pursuant to Section 1170.12, subdivisions
(b) to (i), inclusive, of Section 667, or Section 667.61, or to cases in which an
individual is sentenced to life in prison without the possibility of parole for a
controlling offense that was committed after the person had attained 18 years
of age. This section shall not apply to an individual to whom this section
would otherwise apply, but who, subsequent to attaining 26 years of age,
commits an additional crime for which malice aforethought is a necessary
element of the crime or for which the individual is sentenced to life in prison.”

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(In re Woods (2021) 62 Cal.App.5th 740, 751, review granted June 16, 2021,
S268740.)
In People v. Wilkes (2020) 46 Cal.App.5th 1159 (Wilkes), this court
rejected the claim made by appellant in the present appeal. There, the jury
found the defendant guilty of, among other offenses, attempted murder and
found true an allegation the murder was committed willfully, deliberately,
and with premeditation. (Id. at pp. 1163–1164.) The defendant admitted
prior conviction allegations, and the court sentenced him pursuant to the
Three Strikes law to a term of 59 years four months to life. (Id. at p. 1164.)
On appeal, the defendant, who was 25 years old when he committed the
offenses, raised an equal protection challenge to section 3051, subdivision (h),
arguing that he was similarly situated to youth offenders who were not
sentenced pursuant to the Three Strikes law and that there was no rational
basis for the different treatment. (Id. at pp. 1164–1165.)
We disagreed, citing several appellate decisions that “have rejected
equal protection challenges to the differential treatment of three strikes
offenders, concluding that such offenders are not similarly situated to
nonrecidivist offenders and/or that a rational basis exists to treat them
differently.” (Wilkes, supra, 46 Cal.App.5th at pp. 1165–1166.) For example,
in People v. Cooper (1996) 43 Cal.App.4th 815, 829, the court explained, “A
person who has committed and been convicted of two serious or violent
felonies before the instant offense is a recidivist who has engaged in
significant antisocial behavior and who has not benefited from the
intervention of the criminal justice system. . . . It is reasonable for the
Legislature to distinguish between those felons . . . who come to court with a
history of serious or violent felony convictions and those who do not.” (See
also People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332; People v. Spears

17
(1995) 40 Cal.App.4th 1683, 1687; People v. McCain (1995) 36 Cal.App.4th
817, 820.)
The Wilkes decision explained, “The purpose of section 3051 is ‘to give
youthful offenders “a meaningful opportunity to obtain release” after they
have served at least 15, 20, or 25 years in prison (§ 3051, subd. (e)) and made
“ ‘a showing of rehabilitation and maturity’ ” and ‘to account for neuroscience
research that the human brain—especially those portions responsible for
judgment and decisionmaking—continues to develop into a person’s mid-20s.’
[Citation.] Assuming a Three Strikes youth offender is similarly situated to
other youth offenders for purposes of section 3051, the Legislature could
rationally determine that the former—‘a recidivist who has engaged in
significant antisocial behavior and who has not benefited from the
intervention of the criminal justice system’ [citation]—presents too great a
risk of recidivism to allow the possibility of early parole.” (Wilkes, supra,
46 Cal.App.5th at p. 1166; accord People v. Moore (2021) 68 Cal.App.5th 856,
863–864.)7

7The California Supreme Court will consider a different but related
equal protection claim in People v. Williams (2020) 47 Cal.App.5th 475,
review granted July 22, 2020, S262229. In Williams, the court of appeal,
applying a rational basis test, rejected a one-strike defendant’s equal
protection challenge to section 3051, subd. (h). (Williams, at p. 493.) The
court held “the threat of recidivism by violent sexual offenders—as
demonstrated by the Legislature’s enactment of several comprehensive
statutory schemes to curb such recidivism among such offenders—provides a
rational basis for the Legislature’s decision to exclude one strikers from the
reach of section 3051.” (Williams, at p. 493; but see People v. Edwards (2019)
34 Cal.App.5th 183, 197 [holding carve-out for one-strike offenders
unconstitutional]; In re Woods, supra, 62 Cal.App.5th pp. 753–760 [same].)

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 We follow the Wilkes decision in holding the differential treatment of
youth offenders sentenced pursuant to the Three Strikes law for purposes of
youth offender parole hearings does not violate equal protection.
DISPOSITION
The trial court’s judgment is affirmed.

SIMONS, J.

We concur.

JACKSON, P. J.

NEEDHAM, J.

(A164265)

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