People v. Hardin

Filed 10/18/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B315434

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A893110)
v.

TONY HARDIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Juan C. Dominguez, Judge. Reversed and
remanded with directions.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Nima Razfar, Deputy Attorney General,
for Plaintiff and Respondent.
________________________
 An individual convicted of a controlling offense committed
before the person was 18 years old and for which the sentence is
life without the possibility of parole is eligible for release on
parole at a youth offender parole hearing at the beginning of the
25th year of incarceration. (Pen. Code, § 3051, subd. (b)(4).)1
Similarly, with several exceptions, an individual convicted of a
controlling offense committed when the person was a young
adult, 25 years old or younger, and for which the sentence is an
indeterminate state prison term of 25 years to life, including
first degree premeditated murder, is eligible for release on parole
at a youth offender parole hearing at the beginning of the 25th
year of incarceration. (§ 3051, subd. (b)(3).) However, an
individual who received a sentence of life without the possibility
of parole for an offense committed after attaining the age of 18 is
not eligible for a youth offender parole hearing (§ 3051, subd. (h))
or otherwise entitled to parole consideration.
Tony Hardin, convicted in 1990 of special-circumstance
felony murder for a crime committed when he was 25 years old,
contends it violates his right to equal protection under the
Fourteenth Amendment to exclude him from youth offender
parole consideration, while a 17-year-old who committed special-
circumstance murder and a young adult who committed
first degree premeditated murder when 25 years old or younger
but was convicted of the crime without a special-circumstance
finding are entitled to such consideration. As a consequence, he
argues, the trial court erred in denying his motion for a Franklin

1 Statutory references are to this code.

2
hearing2 to assemble information concerning youth-related
mitigating factors for an eventual youth offender parole hearing.
This statutory scheme’s tension with the rationale of the
United States Supreme Court decisions in Miller v. Alabama
(2012) 567 U.S. 460 (Miller) and Graham v. Florida (2010)
560 U.S. 48 (Graham) has been widely recognized. (See, e.g.,
In re Murray (2021) 68 Cal.App.5th 456, 464; People v. Acosta
(2021) 60 Cal.App.5th 769, 780-781; People v. Montelongo (2020)
55 Cal.App.5th 1016, 1036 (conc. opn. of Segal, J.); In re Jones
(2019) 42 Cal.App.5th 477, 486-487 (conc. opn. of Pollak, P. J.);
see also People v. Montelongo, Liu, J., concurring in denial of
petition for review, Jan. 27, 2021, S265597.)3 Although it is

2 Recognizing that gathering information on youth-related
mitigating factors for a youth offender parole hearing is a task
more easily accomplished at the time of sentencing rather than
decades later at a parole hearing, the Supreme Court in People v.
Franklin (2016) 63 Cal.4th 261, 283-284 held a defendant eligible
for such a hearing must be permitted at the time of sentencing to
make a record of those factors, a proceeding that has since
become known as a Franklin proceeding. The Court in In re Cook
(2019) 7 Cal.5th 439, 458 held a juvenile offender with a final
judgment could move in a postjudgment proceeding under
section 1203.01 (rather than through a petition for a writ of
habeas corpus) to present evidence of youth-related factors.
3 A constitutional challenge to one aspect of section 3051,
subdivision (h)’s exclusion of young adults from youth offender
parole consideration is currently pending in the Supreme Court.
In People v. Williams, review granted July 22, 2020, S262229, the
Court limited briefing and argument to the following issue:
“Does Penal Code section 3051, subdivision (h), violate the equal
protection clause of the Fourteenth Amendment by excluding
young adults convicted and sentenced for serious sex crimes
under the One Strike law (Pen. Code, § 667.61) from youth

3
arguably unsound as a matter of policy to adhere to the bright
line rule articulated in Roper v. Simmons (2005) 543 U.S. 551,
the Legislature acted rationally in deciding that individuals
sentenced to life without parole for a special-circumstance
murder committed while still a minor (16 or 17 years old) were
entitled to a youth offender parole hearing but young adults who
committed the same offense after turning 18 were not.
The same analysis does not support the Legislature’s
distinction for purposes of section 3051 between young adult
offenders who committed a special-circumstance murder and
were sentenced to life without parole and other young adult
offenders who committed different serious or violent crimes and
received parole-eligible indeterminate life terms, including those
that could be the functional equivalent of a life without parole
sentence. The purpose of the current iteration of section 3051
generally providing youth offender parole hearings for
individuals convicted of a controlling offense committed when the
person was 25 years old or younger is that the distinctive
attributes of youth—transitory mental traits and environmental
vulnerabilities—which the Supreme Court in Miller recognized
mitigate culpability and offer the possibility of growth and
change, apply equally to young adults up to age 25. Having made
that determination, there was no rational basis for the
Legislature to exclude otherwise similarly situated offenders
from any opportunity for a youth offender parole hearing based
solely on the crime committed or the sentence imposed, factors

offender parole consideration, while young adults convicted of
first degree murder are entitled to such consideration?”

4
unrelated to a determination the offender is “irreparably
corrupt.”
The Legislature exercising its authority to define crimes
and fix the penalties, of course, may in the future decide the
youth parole eligibility date for a young adult convicted of
special-circumstance murder and sentenced to life without parole
should be different from the first day of the person’s 25th year of
incarceration, as now provided in section 3051, subdivision (b)(3),
for those serving an indeterminate state prison term of 25 years
to life for the controlling offense. But Hardin is entitled to a
youth offender parole hearing and a meaningful opportunity to be
released on parole at some point and, as such, is also entitled to a
Franklin hearing to assemble information concerning his youth-
related mitigating factors.
FACTUAL AND PROCEDURAL BACKGROUND
1. Hardin’s Conviction for the Murder of Norma Barber
and Sentence to Life Without Parole
In 1989, when he was 25 years old, Hardin killed his
neighbor Norma Barber while stealing jewelry and other items
from her apartment and her car. In 1990 a jury convicted Hardin
of first degree murder (§ 187) and found true the special-
circumstance allegation the murder had been committed during
the commission of a robbery (§ 190.2, subd. (a)(17)). The jury also
found Hardin guilty of inflicting great bodily injury on a person
60 years of age or older (§ 1203.09, subd. (a)), residential robbery
(§ 211) and grand theft of an automobile (§ 487, subd. (c)). The
trial court sentenced Hardin to a state prison term of life without

5
parole for the special-circumstance murder.4 We affirmed the
judgment on appeal. (People v. Hardin (July 19, 1993, B051873)
[nonpub. opn.].)
2. Hardin’s Franklin Motion
On August 18, 2021 Hardin, representing himself, filed a
motion seeking to develop a record for an eventual youth offender
parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th
261 (Franklin) and In re Cook (2019) 7 Cal.5th 439. In his motion
Hardin argued section 3051, subdivision (h), violated the equal
protection clause of the Fourteenth Amendment by denying the
right to a youth offender parole hearing to inmates sentenced to
life without the possibility of parole for crimes committed
between the ages of 18 and 25 while authorizing youth offender
parole hearings for individuals who committed first degree
murder and received a sentence of 25 years to life (that is,
without the additional true finding on a special-circumstance
allegation). The trial court denied Hardin’s request for a
Franklin hearing because Hardin was statutorily ineligible for a
youth offender parole hearing, ruling section 3051,
subdivision (h), was “not unconstitutional as applied to persons
sentenced to life without the possibility of parole.”
Hardin filed a timely notice of appeal.

4 Pursuant to section 654 the trial court stayed the sentences
imposed on the remaining counts.

6
 DISCUSSION
1. Indeterminate Life Sentencing and Youth Offender
Parole Hearings
In Roper v. Simmons, supra, 543 U.S. 551 the United
States Supreme Court held the Eighth Amendment’s ban on the
infliction of cruel and unusual punishment categorically
prohibited imposition of the death penalty on juvenile offenders,
defined as youths under the age of 18. (Id. at pp. 568-569.)
Five years later in Graham, supra, 560 U.S. 48 the Supreme
Court, emphasizing a juvenile offender’s “capacity for change and
limited moral culpability,” held it violated the Eighth
Amendment to impose a sentence of life without parole on a
juvenile offender who had not committed homicide. (Id. at p. 74.)
Two years after Graham, in Miller, supra, 567 U.S. 460 the
Supreme Court extended the reasoning of its prior decisions to
hold it also violated the Eighth Amendment to impose a
mandatory life without parole sentence on a juvenile convicted of
murder because that mandatory penalty “precludes consideration
of [the juvenile’s] chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate
risks and consequences. It prevents taking into account the
family and home environment that surrounds him—and from
which he cannot usually extricate himself—no matter how brutal
or dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the conduct
and the way familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and convicted
of a lesser offense if not for incompetencies associated with
youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to

7
assist his own attorneys.” (Miller, at pp. 477-478.)5 A sentence of
life without parole on a juvenile that fails to take these youth-
related mitigating factors into account, the Court held, violates
the Eighth Amendment prohibition on cruel and unusual
punishment. (Ibid.; accord, Montgomery v. Louisiana (2016)
577 U.S. 190 (Montgomery).)
Shortly after the decision in Miller, the California Supreme
Court held in People v. Caballero (2012) 55 Cal.4th 262 that the
Eighth Amendment analysis in Graham also applied to sentences
that are the “functional equivalent of a life without parole
sentence,” including Caballero’s term of 110 years to life. (Id. at
p. 268.)
To bring juvenile sentencing in California into conformity
with Graham, Miller and Caballero, the Legislature in Senate
Bill No. 260 (2013-2014 Reg. Sess.) (Stats. 2013, ch. 312, §§ 4, 5),
effective January 1, 2014, added sections 3051 and 4801,
subdivision (c), to the Penal Code, providing for youth offender
parole hearings at which youth-related mitigating factors are to
be considered. (Franklin, supra, 63 Cal.4th at p. 277; accord,

5 Miller identified three significant differences between
juveniles and adults that bear on culpability. “First, children
have a ‘“lack of maturity and an underdeveloped sense of
responsibility,”’ leading to recklessness, impulsivity, and heedless
risk-taking. [Citation.] Second, children ‘are more vulnerable . . .
to negative influences and outside pressures,’ including from
their family and peers; they have limited ‘contro[l] over their own
environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings. [Citation.] And third, a child’s
character is not as ‘well formed’ as an adult’s; his traits are ‘less
fixed’ and his actions less likely to be ‘evidence of irretrievabl[e]
deprav[ity].’” (Miller, supra, 567 U.S. at p. 471.)

8
People v. Ochoa (2020) 53 Cal.App.5th 841, 848.) Section 3051
initially applied to offenses committed before the offender turned
18 years old and required the Board of Parole Hearings with
certain limited exceptions to conduct a youth offender parole
hearing no later than a juvenile offender’s 25th year of
incarceration (and at earlier points depending on the offender’s
“controlling offense”).6 (See Ochoa, at p. 848.) New section 4801,
subdivision (c), directed the Board of Parole Hearings, when
considering parole eligibility for youth offenders, to “give great
weight to the diminished culpability of juveniles as compared to
adults, the hallmark features of youth, and any subsequent
growth and increased maturity.”7 As originally enacted former
section 3051, subdivision (h), expressly excluded from eligibility
for a youth offender parole hearing cases in which sentencing was
pursuant to the three strikes law (§§ 667, subds. (b)-(i), 1170.12),
the one strike law (§ 667.61) “or in which an individual was

6 “Controlling offense” is defined in section 3051,
subdivision (a)(2)(B), as “the offense or enhancement for which
any sentencing court imposed the longest term of imprisonment.”
7 As originally enacted, section 4801, subdivision (c), like
section 3051, applied to a prisoner who had committed his or her
controlling offense before attaining the age of 18. As the
Legislature increased the eligibility age for a youth offender
parole hearing, it also increased the age specified in section 4801,
subdivision (c), for consideration of youth-related mitigating
factors at parole hearings. However, the mandate that the Board
consider those factors applies to all parole hearings for a prisoner
who committed his or her controlling offense at an eligible age,
not just to offenders being considered for parole eligibility at a
youth offender parole hearing. (See People v. Delgado (2022)
78 Cal.App.5th 95, 103-104.)

9
sentenced to life in prison without the possibility of parole.”
(Stats. 2013, ch. 312, § 4.)
Sections 3051 was subsequently amended to apply to
offenders who had committed the controlling offense before the
age of 23 (Stats. 2015, ch. 471, § 1) and then to offenders who
committed the controlling offense when 25 years old or younger
(Stats. 2017, ch. 684, § 1.5). In addition, in the 2017 legislation
raising the threshold age to 25, the Legislature extended youth
parole hearings in the 25th year of incarceration to juveniles
sentenced to life without the possibility of parole for a controlling
offense committed before the age of 18. (§ 3051, subd. (b)(4),
added by Stats. 2017, ch. 684, § 1.5; see People v. Contreras
(2018) 4 Cal.5th 349, 381.) Section 3051, subdivision (h), was
amended to limit the exclusion of individuals sentenced to life in
prison without parole to cases in which the sentence was imposed
for a controlling offense committed “after the person had attained
18 years of age.” (Stats. 2017, ch. 684, § 1.5.) The amendments
authorizing youth parole hearings for minors sentenced to life
without parole were designed to “bring California into compliance
with the constitutional requirements of Miller and Montgomery,”
which held Miller’s prohibition on mandatory life without parole
sentences for juvenile offenders was retroactive to juvenile
offenders whose convictions and sentences were final when Miller
was decided. (Sen. Com. on Public Safety, Analysis of Sen. Bill
No. 394 (2017-2018 Reg. Sess.) Mar. 21, 2017, p. 4.) The
legislation sought “to remedy the now unconstitutional juvenile
sentences of life without the possibility of parole,” without the
need for “a resentencing hearing, which is time-consuming,
expensive, and subject to extended appeals.” (Id. at p. 3; see
People v. Acosta, supra, 60 Cal.App.5th at p. 777.)

10
 2. Equal Protection Review
Both the federal and California Constitutions guarantee
that no person shall be denied the equal protection of the laws.
(U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) “The concept
of equal treatment under the laws means that persons similarly
situated regarding the legitimate purpose of the law should
receive like treatment.” (People v. Morales (2016) 63 Cal.4th 399,
408; accord, Engquist v. Oregon Dept. of Agriculture (2008)
553 U.S. 591, 602 [“[w]hen those who appear similarly situated
are nevertheless treated differently, the Equal Protection Clause
requires at least a rational reason for the difference, to ensure
that all persons subject to legislation or regulation are indeed
being ‘treated alike, under like circumstances and conditions’”];
see People v. Chatman (2018) 4 Cal.5th 277, 289 [“our precedent
has not distinguished the state and federal guarantees of equal
protection for claims arising from allegedly unequal consequences
associated with different types of criminal offenses”]; Johnson v.
Department of Justice (2015) 60 Cal.4th 871, 881 [federal and
state equal protection guarantees have similar interpretation].)
“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. [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. [Citation.] In other words, we ask at the threshold
whether two classes that are different in some respects are
sufficiently similar with respect to the laws in question to require
the government to justify its differential treatment of these
classes under those laws.” (People v. Foster (2019) 7 Cal.5th

11
1202, 1211-1212 [internal quotation marks omitted]; accord,
People v. Barrett (2012) 54 Cal.4th 1081, 1107; see Cooley v.
Superior Court (2002) 29 Cal.4th 228, 253 [to prevail on an equal
protection challenge, a party must first establish that “‘the state
has adopted a classification that affects two or more similarly
situated groups in an unequal manner’”].) If the two groups are
not similarly situated, there can be no equal protection violation.
(Barrett, at p. 1107 [“[a] prerequisite to a meritorious claim is
that individuals ‘“similarly situated with respect to the legitimate
purpose of the law receive like treatment”’”]; see People v.
Navarro (2021) 12 Cal.5th 285, 346; In re Lemanuel C. (2007)
41 Cal.4th 33, 38.)
“The next step of an equal protection analysis asks whether
the disparate treatment of two similarly situated groups is
justified by a constitutionally sufficient state interest. [Citation.]
Varying levels of judicial scrutiny apply depending on the type of
claim. ‘[M]ost legislation is tested only to determine if the
challenged classification bears a rational relationship to a
legitimate state purpose.’ [Citation.] However, differences ‘in
statutes that involve suspect classifications or touch upon
fundamental interests are subject to strict scrutiny, and can be
sustained only if they are necessary to achieve a compelling state
interest.’” (Conservatorship of Eric B. (2022) 12 Cal.5th 1085,
1107; accord, In re Smith (2008) 42 Cal.4th 1251, 1262-1263.)
Under rational relationship review a classification or
differential treatment is presumed valid “until the challenger
shows that no rational basis for the unequal treatment is
reasonably conceivable. [Citations.] The underlying rationale for
a statutory classification need not have been ‘“‘ever actually
articulated’”’ by lawmakers, and it does not need to ‘“‘be

12
empirically substantiated.’”’ [Citation.] Nor does the logic
behind a potential justification need to be persuasive or
sensible—rather than simply rational.” (People v. Chatman,
supra, 4 Cal.5th at p. 289; see Gerawan Farming, Inc. v.
Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118, 1140 [“‘“a
statutory classification that neither proceeds along suspect lines
nor infringes fundamental constitutional rights must be upheld
against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for
the classification”’”]; People v. Floyd (2003) 31 Cal.4th 179, 189-
190 [the Legislature can make “‘a classification between groups
differently situated, so long as a reasonable basis for the
distinction exists’”].)
3. Denying a Youth Offender Parole Hearing to Individuals
Sentenced to Life Without Parole for Offenses Committed
When They Were Between the Ages of 18 and 25 Violates
Equal Protection
Hardin contends (a) at least for purposes of section 3051, he
is similarly situated to individuals who committed special-
circumstance murder before they were 18 years old and were
sentenced to life without parole and to individuals who
committed first degree premeditated murder when they were
between the age of 18 and 25 and were sentenced to state prison
for 25 years to life, and (b) section 3051, subdivision (h), violates
his constitutional right to equal protection because it deprives
him of the same right to a youth offender parole hearing to which
those individuals are entitled.8

8 As discussed, in his motion for a Franklin hearing in the
trial court, Hardin’s equal protection challenge to section 3051,
subdivision (h), was directed only to the distinction between

13
 Effectively conceding rational basis review applies to the
Legislature’s decisions defining crimes and fixing sentences and
penalties (see, e.g., People v. Wilkinson (2004) 33 Cal.4th 821, 838
[a defendant “‘does not have a fundamental interest in a specific
term of imprisonment or in the designation a particular crime
receives’”]; People v. Ward (2008) 167 Cal.App.4th 252, 258
[applying rational basis review to a constitutional change to
statutes imposing different penalties for possession for sale of
cocaine base and cocaine powder]; People v. Mitchell (1994)
30 Cal.App.4th 783, 796 [“[d]etermining gradations of culpability
. . . does not implicate the strict scrutiny test for equal protection
purposes”]), Hardin maintains there is no rational basis for
treating these groups differently because the Legislature has
made a determination that all persons under the age of 26 are
less culpable and more amenable to rehabilitation than those who
committed the same offense after reaching the age of 26. We
review this equal protection claim de novo. (California Grocers
Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 208; People v.
Montano (2022) 80 Cal.App.5th 82, 114.)

individuals who had committed a special-circumstance murder
when a young adult between the ages of 18 and 25 and those in
that age group convicted of first degree murder without a special-
circumstance finding. He did not address the distinction between
juvenile offenders sentenced to life without parole and young
adult offenders who received a life without parole sentence, as he
does on appeal. The Attorney General does not contend Hardin
forfeited this aspect of his equal protection argument.

14
 a. Distinguishing between juvenile and young adult
offenders sentenced to life without parole does not
violate equal protection
The courts of appeal are not in agreement whether young
adults convicted of special-circumstance murder are similarly
situated to youth offenders who committed their controlling
offense before they turned 18 years old. (Compare, e.g., People v.
Acosta, supra, 60 Cal.App.5th at p. 779 [similarly situated] with,
e.g., In re Jones (2019) 42 Cal.App.5th 477, 481 [not similarly
situated].) We need not address that issue, however, because
there is a rational basis for the Legislature’s decision to treat
these two groups differently. (See, e.g, In re Murray, supra,
68 Cal.App.5th at p. 463 [“[e]ven if we assume petitioner has
demonstrated that juvenile and youthful LWOP [life without
parole] offenders are similarly situated, the claim must fail
because petitioner has not demonstrated there is no rational
basis for treating the two groups in an unequal manner”].)
As explained by our colleagues in Division Five of the First
Appellate District in People v. Sands (2021) 70 Cal.App.5th 193,
204, “The Legislature had a rational basis to distinguish between
offenders with the same sentence (life without parole) based on
their age. For juvenile offenders, such a sentence may violate the
Eighth Amendment. [Citations.] But the same sentence does not
violate the Eighth Amendment when imposed on an adult, even
an adult under the age of 26. . . . [T]he Legislature could
rationally decide to remedy unconstitutional sentences but go no
further.” (Accord, People v. Acosta, supra, 60 Cal.App.5th at
pp. 779-780 [“Section 3051 now affords a youth offender parole
hearing to juvenile LWOP offenders to comply with Montgomery
without resorting to costly resentencing hearings. [Citation.]
The Legislature declined to include young adult LWOP offenders

15
in this amendment, presumably because Montgomery did not
compel such treatment for young adults. The Legislature thus
had a constitutionally sufficient basis for distinguishing juvenile
LWOP offenders from young adult LWOP offenders”]; see
generally Miller, supra, 567 U.S. at p. 481 [“[w]e have by now
held on multiple occasions that a sentencing rule permissible for
adults may not be so for children”]; Roper v. Simmons, supra,
543 U.S. at p. 574 [“[t]he age of 18 is the point where society
draws the line for many purposes between childhood and
adulthood”].)
As we said in a related context in People v. Montelongo,
supra, 55 Cal.App.5th at page 1032, even if, as argued, “the line
the United States Supreme Court created in Roper between
juvenile and adult offenders is arbitrary and, at a minimum,
should be extended to 19 or older, as ‘[s]cience determines’ . . .
[u]nless and until the United States Supreme Court, the
California Supreme Court, the Legislature, or the voters by
initiative change the law, we are bound to apply it.” Although
the issue in Montelongo was whether the 19-year-old defendant’s
special-circumstance felony-murder life without parole sentence
constituted cruel and unusual punishment in violation of the
Eighth Amendment,9 the same constraint applies to our equal
protection analysis in the case at bar.

9
We did not consider Montelongo’s equal protection
challenge to his sentence because he did not raise that argument
until his reply brief. (See People v. Montelongo, supra,
55 Cal.App.5th at p. 1030, fn. 8.)

16
 b. Young adult offenders sentenced to life without parole
are similarly situated to all other young adult
offenders for purposes of section 3051
The issue with respect to section 3051’s distinction between
young adult offenders sentenced to life without parole and those
of identical age sentenced to a parole-eligible life term, however,
is quite different. To be sure, individuals who commit different
offenses are not similarly situated for many purposes. (See,
e.g., People v. Descano (2016) 245 Cal.App.4th 175, 182
[“‘[p]ersons convicted of different crimes are not similarly situated
for equal protection purposes’”]; People v. Pecci (1999)
72 Cal.App.4th 1500, 1503 [“[p]ersons convicted of different
offenses can be punished differently”]; see also In re Williams
(2020) 57 Cal.App.5th 427, 435.) But the Supreme Court has
cautioned, “[T]here is not and cannot be an absolute rule to this
effect, because the decision of the Legislature to distinguish
between similar criminal acts is itself a decision subject to equal
protection scrutiny.” (People v. Hofsheier (2006) 37 Cal.4th 1185,
1199, overruled on another ground in Johnson v. Department of
Justice, supra, 60 Cal.4th at p. 875; accord, People v. Miranda
(2021) 62 Cal.App.5th 162, 182, review granted June 16, 2021,
S268384 [the Supreme Court has “rejected the claim that
individuals convicted of different crimes are never similarly
situated”].)
As discussed, the pertinent question for equal protection
analysis is whether the two groups are properly distinguishable
for purposes of the law being challenged, even if they are
dissimilar for other (or even most) purposes. (People v. Barrett,
supra, 54 Cal.4th at p. 1107; Cooley v. Superior Court, supra,
29 Cal.4th at p. 253.) Section 3051 is decidedly not a sentencing
statute. As amended in 2017 to expand its reach to young adult

17
offenders under the age of 26, its purpose was not to assess
culpability or measure the appropriate level of punishment for
various crimes, but “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-
20’s.” (People v. Edwards (2019) 34 Cal.App.5th 183, 198, citing
Sen. Com. on Public Safety, Analysis of Sen. Bill No. 261 (2015-
2016 Reg. Sess.) Apr. 28, 2015 [expanding eligibility to age 23];
Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis
of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended
Mar. 30, 2017 [expanding eligibility to age 25]; accord, People v.
Acosta, supra, 60 Cal.App.5th at p. 779 [“‘[t]he purpose of
section 3051 is not to measure the extent of punishment
warranted by the offense the individual committed but to permit
the evaluation of whether, after years of growth in prison, that
person has attained the maturity to lead a law-abiding life
outside of prison’”].)
Viewed in light of section 3051’s intended purpose of
permitting a determination whether a person who committed a
serious or violent crime between the age of 18 and 25 has
sufficiently matured and outgrown the youthful impulses that led
to the commission of the offense, an individual serving a parole-
eligible life sentence and a person who committed an offense at
the same age serving a sentence of life without parole are
similarly situated. (People v. Acosta, supra, 60 Cal.App.5th at
p. 779; cf. In re Williams, supra, 57 Cal.App.5th at p. 435 [As
between “youth offenders sentenced to LWOP and those
sentenced to a parole-eligible life terms,” “one could say that both
groups committed their crimes before their prefrontal cortexes
reached their full functional capacity, when their characters were

18
not yet fully formed. Both groups are equally likely to
demonstrate improved judgment and decisionmaking as they
reach emotional and cognitive maturity”]; cf. People v. Miranda,
supra, 62 Cal.App.5th at p. 183, review granted [individual
convicted of committing murder when under the age of 26 and
sentenced to parole-eligible life sentence and individual convicted
of committing a one strike offense at the same age are similarly
situated for purposes of section 3051]; see generally Miller, supra,
567 U.S. at p. 473 [none of the distinctive and transitory mental
traits and environmental vulnerabilities of youth offenders “is
crime-specific”]; but see, e.g., People v. Jackson (2021)
61 Cal.App.5th 189, 199 [youthful offenders between the ages of
18 and 25 who committed first degree murder are not similarly
situated for purposes of section 3051 with same-age individual
convicted of special-circumstance murder].)
c. There is no rational basis for distinguishing between
young adult offenders sentenced to life without parole
and other young adult offenders for purposes of
section 3051
We acknowledge the broad deference properly accorded
legislative decisionmaking under rational basis review. (See
Johnson v. Department of Justice, supra, 60 Cal.4th at p. 881
[“[i]f a plausible basis exists for the disparity, courts may not
second-guess its ‘“wisdom, fairness, or logic”’”].) Nonetheless, if,
as the Legislature stated, the goal of section 3051 was to apply
the Miller youth-related mitigating factors to young adults up to
the age of 26 in light of neuroscience research that demonstrated
the human brain continues to develop into a person’s mid-20’s,
and thus to permit youth offenders a meaningful opportunity for
parole if they demonstrate increased maturity and impulse
control, then for that purpose there is no plausible basis for

19
distinguishing between same-age offenders based solely on the
crime they committed. (See Miller, supra, 567 U.S. at p. 473.)
The potential for growth and rehabilitation is no greater for the
19-year-old offender who committed a robbery one day and an
unrelated premeditated murder the next, for example, than for
the 19-year-old offender who killed his or her victim during the
robbery, a homicide offense that does not necessarily require
proof of actual malice (see §§ 188, subd. (a)(3), 189, subd. (e)(1),
(3)). The nature of their crimes does not provide any indication
either perpetrator can properly be deemed at the time of
sentencing to be “irreparably corrupt, beyond redemption, and
thus unfit ever to reenter society,” as the Supreme Court in
People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, described the
implied finding and necessary consequence of a life without
parole sentence.
The courts that have rejected an equal protection challenge
directed to section 3051’s disparate treatment of young adult
offenders sentenced to life without parole and those with parole-
eligible indeterminate life terms have focused on the
Legislature’s prerogative to distinguish crimes by degree of
severity and “assign them different punishments based on its
view of the crimes’ comparative gravity and on policy objectives
like deterrence, retribution, and incapacitation.” (People v.
Sands, supra, 70 Cal.App.5th at p. 205.) It is not irrational
under this view for the Legislature to single out special-
circumstance murder and to deny any possibility of parole to
nonjuvenile offenders who commit it. (In re Williams, supra,
57 Cal.App.5th at p. 436 [the Legislature rationally judged the
petitioner’s crime of special-circumstance murder to be more
severe and deserving of lifetime punishment than nonspecial

20
circumstance first degree murder]; accord, People v. Acosta,
supra, 60 Cal.App.5th at p. 780; Sands, at p. 205.)
We have some difficulty with the premise that assessing
relative culpability has a proper role in a statute expressly
intended to recognize the diminished culpability of youthful
offenders based on their stage of cognitive development. But
even accepting that proposition, this superficially plausible
justification for excluding offenders under age 26 sentenced to life
without parole from eligibility for youth offender parole hearing
is belied by the statutory provisions that allow such a hearing for
individuals who have committed multiple violent crimes (albeit
not special-circumstance murder) and were sentenced to a
technically parole-eligible indeterminate state prison term that is
the functional equivalent of life without parole. (Cf. People v.
Caballero, supra, 55 Cal.4th at p. 268 [sentence of 110 years to
life for three counts of attempted premeditated murder with
firearm-use and criminal street gang enhancements “amounts to
the functional equivalent of a life without parole sentence”]; id. at
pp. 271-272 (conc. opn. of Werdegar, J.) [“the purported
distinction [proposed by the Attorney General] between a single
sentence of life without parole and one of component parts adding
up to 110 years to life is unpersuasive”].) The crime of a 20-year-
old offender who shot and killed his victim while attempting to
commit robbery and was sentenced to life without parole (see
§ 190.2, subd. (a)(17)(A)) cannot rationally be considered more
severe than those of a 20-year-old who shot and killed his victim
one day, committed a robbery the next, and was sentenced to an
indeterminate term of 50 years to life (see §§ 190, subd. (a),
12022.53, subd. (d)), or who committed multiple violent crimes,
like Caballero, and received a parole-eligible indeterminate life

21
term that far exceeded his or her life expectancy.10 By defining
the youth parole eligible date in terms of a single “controlling
offense,” rather than by the offender’s aggregate sentence, the
Legislature has eschewed any attempt to assess the offenders’
overall culpability, let alone his or her amenability to growth and
maturity.
Even with respect to first degree murder, any purported
legislatively recognized distinction in culpability between
individuals serving a parole-eligible indeterminate life sentence
and those sentenced to life without parole is illusory. The
Committee on Revision of the Penal Code in its 2021 Annual
Report and Recommendations (2021 Report), citing recent
research,11 explained that expansion of the factors qualifying as
special circumstances from the original list of seven in the
1970’s12 to the current number in excess of 20 (§ 190.2,

10 A sentence exceeding the defendant’s expected lifetime, as
in Caballero, but for which the defendant would be eligible for a
youth offender parole hearing, is far from anomalous. A gang
member who shot two rivals—sadly, not an unusual set of
events—faces a potential sentence of 80 years to life even though
neither victim died. And in a nongang setting, a paradigmatic
“botched” robbery in which two of the victims were seriously
injured after being shot by the perpetrator could result in an
aggregate indeterminate sentence of at least 70 years to life.
11 The Committee cited Baldus et al., Furman at 45:
Constitutional Challenges from California’s Failure to (Again)
Narrow Death Eligibility (2019) 16 J. Empirical Legal Stud. 693.
(2021 Report, supra, at p. 51.)
12 “[S]pecial circumstances were added to the murder laws in
the 1970’s to conform California’s death penalty law to the

22
subd. (a)(1)-(22)) meant special-circumstance allegations could
have been charged in 95 percent of all first degree murder
convictions, leaving the decision whether a life without parole
sentence may be imposed to the discretion of local prosecutors,
rather than a matter of statewide policy. (2021 Report, at
p. 51.)13
In sum, while for some purposes it might be reasonable to
view special-circumstance murder differently from murder with
no special-circumstance finding, that is not a rational basis for
the distinction in eligibility for a youth offender parole hearing
made by section 3051.
Nor is this simply a question of the statutory classification
being “imperfect” or somewhat under- or overinclusive. (See
People v. Sands, supra, 70 Cal.App.5th at p. 205; see generally
Johnson v. Department of Justice, supra, 60 Cal.4th at p. 887.)

requirements of the United States Constitution.” (People v.
Anderson (2002) 28 Cal.4th 767, 775.)
13 The Committee recommended all life without parole
sentences be reviewed for resentencing after the inmate has
served 25 years. (2021 Report, supra, at p. 50.) In support of its
recommendation the Committee observed that “life without
parole sentences do not result in any greater public safety
benefits than life with parole sentences,” citing an empirical
study published in 2020 (ibid.), and noted that 79 percent of
individuals serving life without parole sentences in California
(and 86 percent of those 25 years old or younger) are people of
color, “suggest[ing] that inappropriate factors may be playing a
role in who receives this sentence.” (Id. at pp. 50, 53.) Similar
research, the Committee continued, found that individuals
accused of killing White people were more likely to be charged
with a special circumstance. (Id. at p. 51.)

23
While we must accept any gross generalizations the Legislature
may seem to have made when conducting rational basis review
(see People v. Turnage (2012) 55 Cal.4th 62, 77 [‘[a] classification
is not arbitrary or irrational simply because there is an ‘imperfect
fit between means and ends’”]), the exclusion of young adult
offenders sentenced to life without parole was a deliberate and
focused choice, not an inadvertent consequence of broadly worded
legislation.
Finally, we reject the Attorney General’s suggestion that
we should uphold section 3051’s disparate treatment of young
adult offenders sentenced to life without parole based on the
general principle that, when addressing a problem, the
Legislature may choose to proceed incrementally. (See FCC v.
Beach Communications, Inc. (1993) 508 U.S. 307, 316 [“the
legislature must be allowed leeway to approach a perceived
problem incrementally”]; People v. Barrett, supra, 54 Cal.4th at
p. 1110 [“[n]othing compels the state ‘to choose between attacking
every aspect of a problem or not attacking the problem at all’”].)
Although the Legislature may adopt reform measures in steps
“without necessarily engaging in arbitrary and unlawful
discrimination” (Barrett, at p. 1110)—as it did, for example, when
it first expanded section 3051 to young adults under 23 years
old—there still must be some rational basis for the choices made.
(See Young v. Haines (1986) 41 Cal.3d 883, 900 [there must be
“some rational relationship between the legislative goal and the
class singled out for unfavorable treatment”]; People v. Miranda,
supra, 62 Cal.App.5th at p. 186, review granted [“an incremental
approach may be constitutionally sufficient, at least where there
is a rational basis for the manner in which the Legislature has
proceeded to address different dimensions or proportions of a

24
problem”]; see generally Pearce v. Commissioner (1942) 315 U.S.
543, 558 (dis. opn. of Frankfurter, J.) [“the fact that a line has to
be drawn somewhere does not justify its being drawn
anywhere”].)
The Legislature has recognized that the distinctive
attributes of youth, as articulated in the United States Supreme
Court’s decisions in Miller, supra, 567 U.S. 460 and Montgomery,
supra, 577 U.S. 190, justify providing most individuals convicted
of committing violent crimes when they were under 26 years of
age with a meaningful opportunity for parole through a youth
offender parole hearing. Yet similarly situated young adult
offenders sentenced to life without parole are categorically denied
the same right. Absent a rational basis for that exclusion, the
disparate treatment of offenders like Hardin cannot stand.
DISPOSITION
The order denying Hardin’s motion for a Franklin hearing
is reversed. The cause is remanded with directions to schedule
the hearing and to conduct all appropriate further proceedings
not inconsistent with this opinion.

PERLUSS, P. J.
We concur:

SEGAL, J.

FEUER, J.

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