The opinion
Filed 10/12/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A160973
v.
PHILIP LEO SANDS, (San Francisco City & County
Super. Ct. Nos. SCN 195209,
Defendant and Appellant.
SCN 184929)
Philip Leo Sands was 24 years old when he committed, among
other crimes, special circumstance murder (Pen. Code §§ 187, 190.2,
subd. (a)(10)),1 and was sentenced to a prison term of life without the
possibility of parole. He filed a postjudgment motion in the superior
court, seeking to develop a record of mitigating circumstances for an
eventual youth offender parole hearing (see People v. Franklin (2016)
63 Cal.4th 261 (Franklin)). The trial court denied Sands’s motion, and
he appeals. He acknowledges that, having been sentenced to life
without the possibility of parole for a crime he committed after the age
of 18, he is statutorily ineligible for a youth offender parole hearing (§
1
Undesignated statutory references are to the Penal Code.
1
3051, subd. (h)) but argues the statutory exclusion violates his rights to
equal protection.2 We disagree and affirm.
BACKGROUND
A.
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 (Miller); 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 & fn. 6.) 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), (b)(1)-(4).)
The Legislature originally “passed [section 3051] explicitly to
bring juvenile sentencing into conformity with Graham [and] Miller” as
well as decisions from the California Supreme Court. (Franklin, supra,
63 Cal.4th at p. 277.) It also explained that recent developments in
neuroscience showed that “youthfulness both lessens a juvenile’s moral
culpability and enhances the prospect that, as a youth matures into an
adult and neurological development occurs,” such individuals can, by
demonstrating rehabilitation and maturity, become contributing
Sands also filed a petition for writ of habeas corpus/mandate
2
(A160707). We deferred the question of whether to issue an order to
show cause pending this appeal. By separate order, we dismiss the
habeas petition.
2
members of society. (Sen. Bill No. 260 (2013-2014 Reg. Sess.), Stats.
2013, ch. 312, § 1.)
The statute originally limited eligibility for youth offender parole
hearings to juvenile offenders (although it excluded juveniles sentenced
to life without the possibility of parole). (See People v. Morales (2021)
67 Cal.App.5th 326, 346 (Morales).) However, the Legislature later
amended it to apply to most offenders who committed crimes before the
age of 23, and then before the age of 26. (In re Trejo, supra, 10
Cal.App.5th at p. 981 & fn. 6; Sen. Bill No. 261 (2015-2016 Reg. Sess.),
Stats. 2015, ch. 471, § 1; Sen. Bill No. 394 (2017-2018 Reg. Sess.), Stats.
2017, ch. 684, § 1.5.) In broadening the statute’s reach, our Legislature
again cited recent developments in neuroscience that indicate the
maturity process does not end at 18 and that, in many cases, brain
development involved in decision making and impulse control extends
into one’s early 20s. (People v. Acosta (2021) 60 Cal.App.5th 769, 776-
777 (Acosta); In re Williams (2020) 57 Cal.App.5th 427, 434 (Williams).)
The Legislature also amended section 3051 to allow parole
hearings, in their 25th year of imprisonment, for juveniles sentenced to
life without the possibility of parole for crimes committed before age 18.
(§ 3051, subd. (b)(4); Sen Bill No. 394 (2017-2018 Reg. Sess.), Stats.
2017, ch. 684, § 1.5.) That amendment was aimed at remedying
unconstitutional juvenile sentences without the need for an expensive
and time-consuming resentencing hearing. (Morales, supra, 67
Cal.App.5th at p. 347; see Montgomery v. Louisiana (2016) 577 U.S.
190, 736 [“[a] State may remedy a Miller violation by permitting
3
juvenile homicide offenders to be considered for parole, rather than by
resentencing”].)
Section 3051, subdivision (h), continues to exclude certain
categories of youthful offenders from the youth offender parole hearing
process. (Morales, supra, 67 Cal.App.5th at p. 346.) The process is
unavailable to offenders “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.” (§ 3051, subd. (h), italics
added.) The statute also categorically excludes offenders sentenced
under the One Strike Law (§ 667.61) or the Three Strikes Law (§§ 667,
1170.12). (§ 3051, subd. (h).)
B.
In 2001, Sands stabbed Robin Clarke, inflicting life-threatening
injuries. Sands’s friend, Robert Ramirez, witnessed the stabbing.
When Sands was charged, Ramirez was ordered to return to court to
testify. In 2003, after Sands posted bail, he killed Ramirez by firing a
machine gun at him at least 30 times while Ramirez sat in a parked
car. Sands was 24 years old at the time.
In 2005, a jury convicted Sands of first degree murder (§ 187), as
well as other charges, and found true a special circumstance allegation
that Sands committed the murder to prevent a witness from testifying
(§ 190.2, subd. (a)(10)). The trial court sentenced Sands to a prison
term of life without the possibility of parole, plus an additional
indeterminate term of 25 years to life. A different panel of this division
affirmed the judgment on direct appeal. (People v. Sands (Oct. 31,
2008, A112684) [nonpub. opn.])
4
In 2020, Sands filed a motion for a Franklin record development
hearing in the superior court, arguing that section 3051 violates the
equal protection clause on its face because it irrationally excludes
offenders who were sentenced to life without the possibility of parole for
crimes they committed at age 18 to 25. The trial court denied his
motion.
DISCUSSION
A.
The initial question is whether the trial court’s order—denying
Sands’s motion for a Franklin record development hearing—is an
appealable order. The People concede that it is, and we agree. But the
People add a caveat that Sands must file a habeas corpus petition to
resolve the equal protection issue. We reject that argument.
1.
At a youth offender parole hearing, the Board of Parole Hearings
must “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 of the prisoner.” (§ 4801,
subd. (c); Franklin, supra, 63 Cal.4th at p. 269 [Board “will be informed
by youth-related factors, such as . . . cognitive ability, character, and
social and family background at the time of the offense”].) Thus, the
youth offender parole mechanism necessitates preserving a record of
the relevant youth-related characteristics and circumstances at the
time of the offense so that the Board, years later, may properly
discharge its obligations. (Franklin, supra, at p. 284.)
In In re Cook (2019) 7 Cal.5th 439 (Cook), our Supreme Court
held that, even though an offender’s sentence is otherwise final, he or
5
she is nonetheless entitled to seek the remedy of a Franklin proceeding.
(Cook, supra, at p. 451.) The court also concluded that an offender need
not file a petition for writ of habeas corpus but should instead use the
more efficient remedy of filing a section 1203.01 motion in superior
court, which allows the trial court to “create a postjudgment record for
the benefit of the Department of Corrections and Rehabilitation.” (Id.
at pp. 452, 457-458.) Cook indicated that this was an “adequate
remedy at law that makes resort to habeas corpus unnecessary, at least
in the first instance” (id. at p. 452), and reversed the judgment of the
court of appeal, which had concluded habeas relief was appropriate.
(Id. at pp. 447-448, 460.) Cook did not address the appealability of an
order denying record development proceedings.
2.
We agree with the parties that the trial court’s order—denying
Sands relief under Cook and section 1203.01—is appealable as a
postjudgment order affecting Sands’s substantial rights (§ 1237, subd.
(b)).
A criminal defendant may appeal “[f]rom any order made after
judgment, affecting [their] substantial rights.” (§ 1237, subd. (b).)
Cook and section 1203.01 create a substantial right for offenders to
obtain a Franklin record development hearing. Because the trial court
determined Sands is ineligible for such a hearing, the trial court’s order
affected his substantial rights and is, therefore, appealable. (See
§ 1237, subd. (b); Teal v. Superior Court (2014) 60 Cal.4th 595, 598-601
[order denying motion for recall of sentence, filed under § 1170.126, is
an appealable order under § 1237, subdivision (b), even though trial
court (and court of appeal) concluded defendant was ineligible]; cf.
6
People v. Jackson (2021) 61 Cal.App.5th 189, 192-194 (Jackson)
[implicitly concluding order denying Cook motion is an appealable
order].)
3.
We are unpersuaded by the People’s argument that Sands must
litigate the equal protection issue in a habeas petition.
To support this position, the Attorney General contends that
Cook is distinguishable—because the Cook offender was statutorily
eligible for a youth offender parole hearing under section 3051,
subdivision (b)(3). (Cook, supra, 7 Cal.5th at p. 447.) Here, in contrast,
Sands acknowledges that he is statutorily ineligible for a youth
offender parole hearing (§ 3051, subd. (h)) and a Franklin record
development hearing. Sands argues he is entitled to a record
development hearing and eventual youth offender parole hearing as a
matter of equal protection because section 3051 improperly
discriminates against him. The People posit Sands’s equal protection
argument necessitates relief beyond mere record development and
must be litigated in a habeas petition.3
3
Sands filed a request for judicial notice of the habeas corpus
proceedings currently pending before us (A160707), as well as an
earlier petition (A158556) that this division denied without prejudice.
We originally deferred ruling on Sands’s unopposed request. We take
judicial notice of the record in his prior habeas proceeding (Evid. Code,
§§ 452, subd. (d), 459, subd. (a)), but otherwise deny the request as
unnecessary. We agree with Sands that, in denying (without prejudice)
Sands’s earlier petition for writ of habeas corpus (A158556), this
division suggested that his remedy—should section 3051 violate equal
protection–-was to file a motion (under the authority of section 1203.01
and Cook). We note, however, we are not bound by that ruling. (Gomez
v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6 [“the summary
7
The Cook court cited practical reasons for preferring a motion
over a habeas petition. Although the court did not decide if the habeas
writ “is expansive enough to afford Cook the relief he seeks” (Cook,
supra, 7 Cal.5th at p. 457), it concluded that resort to habeas corpus “in
the first instance” was unnecessary. (Id. at p. 452.) The court
explained that “ ‘[a] person unlawfully imprisoned or restrained of his
or her liberty . . . may prosecute a writ of habeas corpus to inquire into
the cause of his or her imprisonment or restraint.’ ” (Ibid., quoting
§ 1473, subd. (a).) It noted that, among other requirements, a habeas
petitioner must file and verify a petition alleging unlawful restraint,
name the custodian, specify the facts on which the claim is based, and
include documentary evidence. (Id. at p. 457.) The court deemed
habeas procedures “unnecessarily cumbersome” because Cook was not
seeking release or challenging the validity of the underlying judgment
and because Franklin record development does not require the trial
court to act as fact finder. (Cook, at pp. 449, fn. 3 and 457.) Instead,
the court fashioned a more simple and efficient motion process by
supplementing Penal Code section 1203.01 with the court’s inherent
power to manage its proceedings and with Code of Civil Procedure
section 187. (Cook, at pp. 454-455; see Code Civ. Proc., § 187 [granting
court with jurisdiction broad authority to use “any suitable process or
mode of proceeding” in the absence of specific statutory procedure].)
The People do not persuade us that Sands’s situation is
materially distinguishable. Like Cook, Sands is not seeking release or
challenging the validity of the underlying judgment; he seeks a record
denial of a habeas corpus petition does not establish law of the case and
does not have a res judicata effect in future proceedings”].)
8
preservation hearing. The trial court is not required to make factual
findings—Sands brings only a facial equal protection challenge. (See
Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) Any offender
that brings a Cook motion must establish his entitlement to a youth
offender parole hearing in his moving papers (Cook, supra, 7 Cal.5th at
p. 459), which is how Sands raised the equal protection issue. The
more cumbersome habeas procedure would add no value to the process.
It would just add the same sort of unnecessary complications that led
the Cook court to permit an offender to proceed by a motion rather than
a habeas petition.
B.
Sands contends section 3051, subdivision (h), violates his equal
protection rights. We review the constitutional question independently
(Samples v. Brown (2007) 146 Cal.App.4th 787, 799) and find no
violation of equal protection.
1.
Equal protection ensures that the government does not treat one
group of people “unequally” in comparison to other groups with similar
characteristics “without some justification.” (People v. Chatman (2018)
4 Cal.5th 277, 288.) First, we consider whether “ ‘the state has adopted
a classification that affects two or more similarly situated groups in an
unequal manner.’ ” (People v. Brown (2012) 54 Cal.4th 314, 328, italics
omitted.) The groups need not be similar in all respects but must be
similarly situated for the purposes of the challenged law. (Ibid.)
Second, if two similarly situated groups have been identified and no
suspect class or fundamental rights are at issue, we must decide
9
whether there is any rational basis to support treating the groups
differently. (People v. Turnage (2012) 55 Cal.4th 62, 74.)
There are three groups of offenders at issue here: (1) Sands’s
group, which consists of young adult offenders who were sentenced to
life without parole for crimes they committed at age 18 to 25; (2)
juvenile offenders who were sentenced to life without parole for crimes
they committed under the age of 18, and (3) young adult offenders
sentenced to so-called “de facto life without parole” for crimes they
committed between the age of 18 and 25. Offenders in this third group
are technically eligible for parole but not within their natural lifetimes.
Sands argues his group is similarly situated to the other two groups
and that there is no rational basis for extending youth parole hearings
to offenders in those groups while excluding his. (§ 3051, subds.
(a)(2)(B), (b)(3), (b)(4), (h).)
2.
We assume that the first prong of the test is met—i.e, that young
adult offenders sentenced to life without parole are similarly situated
to both juvenile offenders sentenced to life without parole and to young
adult offenders sentenced to de facto life without parole. (But see In re
Williams, supra, 57 Cal.App.5th at p. 435 [young adult offenders
sentenced to life without parole are not similarly situated to those
sentenced to de facto life without parole]; People v. Rhodes (2005) 126
Cal.App.4th 1374, 1384-1385 (Rhodes) [defendants who committed
distinctly classified homicides are not similarly situated for purposes of
sentencing].)
Section 3051’s “legislative history suggests the Legislature was
motivated by dual concerns: that lengthy life sentences did not
10
adequately account for, first, the diminished culpability of youth, and,
second, youthful offenders’ greater potential for rehabilitation and
maturation.” (Williams, supra, 57 Cal.App.5th at p. 434.) There is
certainly no indication that the second concern—young offenders’
capacity for growth and rehabilitation—disappears simply because a
young adult has passed the age of 18 or has been sentenced to life
without parole. (See Acosta, supra, 60 Cal.App.5th at p. 779; Williams,
supra, at p. 435 [“[b]oth groups are equally likely to demonstrate
improved judgment and decisionmaking as they reach emotional and
cognitive maturity”]; Miller, supra, 567 U.S. at p. 473 [“none” of what
has been said about children’s “distinctive (and transitory) mental
traits and environmental vulnerabilities . . . is crime-specific”].)
3.
Sands’s challenge fails at the second stage of the inquiry—
whether there is a rational basis for the disparate treatment.
The rational basis test sets a very high bar. The Legislature’s
classifications are presumed to be rational. (People v. Chatman, supra,
4 Cal.5th at p. 289.) A challenger must demonstrate there is no
conceivable rational basis for them. (Ibid.) We must accept any
plausible rational basis without questioning its wisdom, logic,
persuasiveness, or fairness, and regardless of whether the Legislature
ever articulated it. (Ibid.)
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. (Graham v. Florida, supra, 560 U.S. at p. 75; Miller,
supra, 567 U.S. at p. 479.) But the same sentence does not violate the
11
Eighth Amendment when imposed on an adult, even an adult under
the age of 26. (Morales, supra, 67 Cal.App.5th at p. 347.) We agree
with the other courts of appeal that the Legislature could rationally
decide to remedy unconstitutional sentences but go no further. (In re
Murray (2021) 68 Cal.App.5th 456, 463-464 [age is rational basis for
distinction]; Morales, supra, 67 Cal.App.5th at p. 347; Acosta, supra, 60
Cal.App.5th at pp. 779-780; Williams, supra, 57 Cal.App.5th at p. 435,
fn. 5; see 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 (2005) 543 U.S. 551, 574
[“[t]he age of 18 is the point where society draws the line for many
purposes between childhood and adulthood”].)
Likewise, there is a rational basis for distinguishing the
remaining group—young adult offenders sentenced to de facto life
without parole. The Legislature may rationally treat offenders in this
group less harshly because it deems their underlying crimes, such as
first degree murder, less grave than special circumstance murder. (See
Morales, supra, 67 Cal.App.5th at pp. 348-349; Jackson, supra, 61
Cal.App.5th at p. 200; Acosta, supra, 60 Cal.App.5th at pp. 779-780;
Williams, supra, 57 Cal.App.5th at p. 436.) Most people sentenced to
life without parole, like Sands, have committed both first degree
murder and been found to have committed that murder under one of
the aggravating circumstances specified in the special circumstance
murder statute. (§ 190.2, subd. (a); Morales, supra, at p. 348; Jackson,
supra, at p. 199.) Simply put, “[t]hese are the crimes the Legislature
deems so morally depraved and so injurious as to warrant a sentence
12
that carries no hope of release for the criminal and no threat of
recidivism for society.” (Williams, supra, at p. 436.)
The Legislature’s distinction is not irrational simply because
some offenders sentenced to life without the possibility of parole are
arguably less culpable than some offenders receiving lesser sentences.
A legislative classification does not fail rational basis review because it
is “ ‘imperfect ’ ” or “ ‘because it may be “to some extent both
underinclusive and overinclusive.” ’ ” (Johnson v. Department of
Justice (2015) 60 Cal.4th 871, 887.)
It is well settled that the Legislature has broad latitude to define
crimes, separate them into degrees, and assign them different
punishments based on its view of the crimes’ comparative gravity and
on policy objectives like deterrence, retribution, and incapacitation.
(See Rhodes, supra, 126 Cal.App.4th at pp. 1384-1387 [rejecting equal
protection challenge to Legislature’s decision to punish second degree
murder of a police officer more harshly than some forms of first degree
murder]; People v. Wilkinson (2004) 33 Cal.4th 821, 840-841.) Although
section 3051 may not be “a sentencing statute per se, it nevertheless
impacts the length of sentence served.” (In re Murray, supra, 68
Cal.App.5th at p. 464.)
This case illustrates the point. Sands murdered a witness to
prevent him from testifying. By denying any possibility of parole to
special circumstance murderers, the Legislature presumably hopes to
deter others from committing similar offenses in the future. It is in no
way irrational, or even contradictory, that the Legislature allows parole
for other youthful offenders who, in its view, committed less heinous
homicides.
13
For this reason, Sands misplaces his reliance on People v.
Edwards (2019) 34 Cal.App.5th 183, 195-199. Edwards considered
section 3051’s exclusion of sex offenders sentenced under the One
Strike law. The Edwards court held that it violates equal protection to
grant youth offender parole hearings to first degree murderers while
denying them to sex offenders, given a consistent body of constitutional
precedent concluding that sex crimes, though abhorrent, are
categorically less deserving of society’s harshest punishment than
homicides. (Id. at pp. 197-198, citing Graham, supra, 560 U.S. at p. 69
and People v. Contreras (2018) 4 Cal.5th 349, 366.) Sands is unable to
point to any authority suggesting the Legislature has no rational basis
for punishing one form of homicide more severely than another.4 (See
Rhodes, supra, 126 Cal.App.4th at pp. 1384-1387 [rejecting equal
protection argument that second degree murder of a peace officer
engaged in the performance of his duties cannot rationally be punished
more harshly than first degree murder of an off-duty officer].)
DISPOSITION
The order denying Sands’s motion for a record development
hearing is affirmed.
4
The issue presented in Edwards is currently before the
California Supreme Court. (People v. Williams (2020) 47 Cal.App.5th
475, 490 [disagreeing with Edwards; no equal protection violation],
review granted July 22, 2020, S262191.)
14
_______________________
BURNS, J.
We concur:
____________________________
NEEDHAM, ACTING P.J.
____________________________
RODRIGUEZ, J.*
A160973
* Judge of the Superior Court of Alameda County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
15
San Francisco City and County Superior Court Case Nos. SCN 195209,
SCN 184929. The Honorable Loretta M. Giorgi.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Eric D. Share, Supervising Deputy Attorney
General, and Katie L. Stowe, Deputy Attorney General, for Plaintiff
and Respondent.
Mary K. McComb, State Public Defender and Laura S. Kelly, Deputy
State Public Defender, under appointment by Court of Appeal, First
District Appellate Project Independent Case Program, for Defendant
and Appellant.
16