People v. Hardin

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TONY HARDIN,

Defendant and Appellant.

S277487

Second Appellate District, Division Seven

B315434

Los Angeles County Superior Court

A893110

March 4, 2024

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Groban, and

Jenkins concurred.

Justice Liu filed a dissenting opinion.

Justice Evans filed a dissenting opinion.

PEOPLE v. HARDIN

S277487

Opinion of the Court by Kruger, J.

California’s youth offender parole statute offers

opportunities for early release to certain persons who are

incarcerated for crimes they committed at a young age. (Pen.

Code, §§ 3051, 4801.) When it was first enacted in 2013, the

statute applied only to individuals who committed their crimes

before the age of 18; the purpose of the statute was to align

California law with then-recent court decisions identifying

Eighth Amendment limitations on life without parole sentences

for juvenile offenders. In more recent years, however, the

Legislature has expanded the statute to include certain young

adult offenders as well. Under the current version of the

statute, most persons incarcerated for a crime committed

between ages 18 and 25 are entitled to a parole hearing during

the 15th, 20th, or 25th year of their incarceration. (Pen. Code,

§ 3051, subd. (b).) But not all youthful offenders are eligible for

parole hearings. The statute excludes, among others, offenders

who are serving sentences of life in prison without the possibility

of parole for a crime committed after the age of 18. (Id., subd.

(h).)

Appellant Tony Hardin is currently serving a life without

parole sentence for a special circumstance murder he committed

at age 25. He contends that the youth offender parole statute

violates the Fourteenth Amendment’s equal protection

guarantee by irrationally discriminating against young adult

offenders sentenced to life without parole — including, in

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particular, those sentenced to life without parole for special

circumstance murder. Agreeing with Hardin and disagreeing

with other appellate decisions to address the issue, the Court of

Appeal held the life without parole exclusion invalid for lack of

a rational basis.

We now reverse. The standard we apply here, rational

basis review, is necessarily deferential. The law recognizes that

“[i]t is both the prerogative and the duty of the Legislature to

define degrees of culpability and punishment, and to distinguish

between crimes in this regard.” (People v. Turnage (2012) 55

Cal.4th 62, 74.) Respect for the Legislature’s proper role — and

ours — means that we may not strike down its enactment under

a rational basis standard unless the challengers demonstrate

that “there is no ‘rational relationship between the disparity of

treatment and some legitimate governmental purpose.’ ” (Ibid.)

Without foreclosing the possibility of other as-applied

challenges to the statute, we conclude that Hardin has not

demonstrated that Penal Code section 3051’s exclusion of young

adult offenders sentenced to life without parole is

constitutionally invalid under a rational basis standard, either

on its face or as applied to Hardin and other individuals who are

serving life without parole sentences for special circumstance

murder. Under California law, special circumstance murder is

a uniquely serious offense, punishable only by death or life

without possibility of parole. When it was considering whether

to expand the youth offender parole system to include not only

juvenile offenders but also certain young adults, the Legislature

could rationally balance the seriousness of the offender’s crimes

against the capacity of all young adults for growth, and

determine that young adults who have committed certain very

serious crimes should remain ineligible for release from prison.

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Opinion of the Court by Kruger, J.

Hardin has not demonstrated that the Legislature acted

irrationally in declining to grant the possibility of parole to

young adult offenders convicted of special circumstance murder,

even as it has granted youth offender hearings to young adults

convicted of other offenses.

This conclusion does not turn on this court’s judgments

about what constitutes sound sentencing policy. It turns on the

deference we owe to the policy choices made through the

democratic process by the people of California and their elected

representatives. The legislative branch may continue to

consider the appropriate reach of the youth offender parole

statute in light of the recognized capacity of young persons for

growth and change. Hardin has not, however, established that

the legislative policy choices reflected in current law are

irrational and therefore impermissible as a matter of equal

protection.

I.

In 1989, Hardin robbed and killed an elderly neighbor.

Hardin was then 25 years old. A jury convicted Hardin of first

degree murder, among other offenses. The jury also found true

a special circumstance allegation that Hardin murdered the

victim during the commission of a robbery. Hardin’s conviction

for first degree murder with special circumstances carried a

mandatory sentence of either death or life in prison without the

possibility of parole. (Pen. Code, § 190.2, subd. (a); id., subd.

(a)(17)(A).) Although the prosecution had sought the death

penalty, the penalty phase jury declined to return a death

verdict. The trial court imposed a sentence of life in prison

without parole for the murder and stayed the sentences for the

other convictions.

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Opinion of the Court by Kruger, J.

Decades later, Hardin filed a postjudgment motion to

develop and preserve evidence for later use in a youth offender

parole hearing under Penal Code section 3051 (section 3051).

(See People v. Franklin (2016) 63 Cal.4th 261, 283–284

(Franklin) [an offender who will later become eligible for a youth

offender parole hearing is entitled to an interim court

proceeding to develop and preserve evidence of youth-related

characteristics and circumstances at the time of the offense]; In

re Cook (2019) 7 Cal.5th 439, 458–459 [an offender whose

sentence is otherwise final may obtain a Franklin hearing by

filing a postjudgment motion in superior court].) In his motion,

Hardin acknowledged that, as an offender sentenced to life

without parole for a crime committed as a young adult, he is not

eligible for a youth offender parole hearing. (§ 3051, subd. (h).)

He contended, however, that his exclusion violates the Equal

Protection Clause of the Fourteenth Amendment to the federal

Constitution. The superior court rejected the contention and

denied Hardin’s motion. The Court of Appeal, however,

reversed. (People v. Hardin (2022) 84 Cal.App.5th 273, 291

(Hardin).)

On appeal, Hardin raised two equal protection arguments.

He first argued that section 3051 violates equal protection by

excluding young adult offenders sentenced to life without parole

while including juvenile offenders (that is, offenders younger

than 18 at the time of the offense) sentenced to life without

parole. The Court of Appeal rejected this argument. It

explained that the Legislature had a rational basis for

distinguishing between juvenile offenders and young adult

offenders, since a unique set of constitutional rules restricts

sentencing children to life without parole. (Hardin, supra, 84

Cal.App.5th at pp. 285–286, citing, inter alia, Miller v. Alabama

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Opinion of the Court by Kruger, J.

(2012) 567 U.S. 460 (Miller).) Hardin does not challenge the

Court of Appeal’s conclusion on this point.

Hardin next argued that section 3051 violates equal

protection by treating young adult offenders sentenced to life

without parole for special circumstance murder differently from

other young adult offenders serving parole-eligible life sentences

for other crimes. On this point, the Court of Appeal agreed with

Hardin. (Hardin, supra, 84 Cal.App.5th at p. 291.)

Employing the two-step equal protection analysis

prescribed by our cases (see, e.g., Conservatorship of Eric B.

(2022) 12 Cal.5th 1085, 1102 (Eric B.)), the Court of Appeal

began by considering whether, in light of the purposes of the

challenged law, young adult offenders convicted of special

circumstance murder and sentenced to life without parole are

similarly situated to all other young offenders. The court

answered yes. It explained that the Legislature’s stated purpose

in enacting section 3051 was to permit “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.” (Hardin, supra, 84 Cal.App.5th at p. 287.) The

court concluded that all young offenders are similarly situated

from this standpoint, since a person’s potential for increased

maturity and growth is not crime-specific. (Ibid.)

Turning to the next step of the analysis, the basis for the

disparate treatment of similarly situated groups, the court

concluded there was no rational basis for section 3051 to

distinguish between young adult offenders convicted of special

circumstance murder and sentenced to life without parole and

other young adult offenders. The court again adverted to the

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Opinion of the Court by Kruger, J.

stated purpose of section 3051: “[I]f, as the Legislature stated,

the goal of section 3051 was . . . 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 distinguishing between same-age offenders

based solely on the crime they committed.” (Hardin, supra, 84

Cal.App.5th at p. 288; see id. at pp. 278–279.)

The Court of Appeal acknowledged other appellate cases

had reached a different conclusion. In those cases, the courts

reasoned that the Legislature, in determining which young

adult offenders should be afforded opportunities for early

release, permissibly decided to take into account the seriousness

of the offender’s crime and rationally decided to exclude those

who had committed crimes sufficiently serious to warrant a

sentence of life without parole. (Hardin, supra, 84 Cal.App.5th

pp. 288–289 [citing cases].) But the court in this case rejected

this “superficially plausible justification” as “belied by the

statutory provisions that allow [a youth offender parole] 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.” (Id. at

p. 289.) The court also deemed “illusory” any differences

between the culpability of individuals convicted of first degree

murder without special circumstances and first degree murder

with special circumstances. (Id. at p. 290.) The court relied for

this conclusion on a law review article finding that, as a result

of the expansion of the special circumstance statute over time,

at least one special circumstance could have been alleged in 95

percent of first degree murder cases. (Id. at p. 290 & fn. 11

[citing Com. on Revision of the Pen. Code, Annual Report and

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Opinion of the Court by Kruger, J.

Recommendations (2021) p. 51, in turn citing Baldus et al.,

Furman at 45: Constitutional Challenges from California’s

Failure to (Again) Narrow Death Eligibility (2019) 16 J.

Empirical Legal Studies 693].) Ultimately, finding no rational

basis for the challenged life without parole exclusion, the court

concluded that “the disparate treatment of offenders like Hardin

cannot stand.” (Hardin, at p. 291.)

We granted review to resolve the conflict between the

Court of Appeal’s decision in this case and the decisions of the

other appellate courts to address the issue.1

II.

A.

Section 3051 provides that, at a time designated in the

statute, the Board of Parole Hearings must hold a parole

hearing “for the purpose of reviewing the parole suitability of

any prisoner who was 25 years of age or younger . . . at the time

1

The Court of Appeal in this case was the first to conclude

that section 3051’s exclusion of young adults sentenced to life

without parole violated equal protection. Before Hardin, several

published appellate opinions had reached the opposite

conclusion. (See In re Williams (2020) 57 Cal.App.5th 427;

People v. Sands (2021) 70 Cal.App.5th 193; People v. Morales

(2021) 67 Cal.App.5th 326; People v. Jackson (2021) 61

Cal.App.5th 189; People v. Acosta (2021) 60 Cal.App.5th 769;

People v. Montano (2022) 80 Cal.App.5th 82.) More appellate

decisions have done so since Hardin. (People v. Ngo (2023) 89

Cal.App.5th 116, review granted May 17, 2023, S279458; People

v. Bolanos (2023) 87 Cal.App.5th 1069, review granted Apr. 12,

2023, S278803 [distinguishing Hardin on the ground that it

involved a murder conviction, as opposed to a sex offense

conviction carrying a life without parole sentence under the One

Strike law, Pen. Code, § 667.61].)

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Opinion of the Court by Kruger, J.

of the controlling offense.” (§ 3051, subd. (a)(1); id., subd. (d).)

How much time must pass before an eligible youth offender

receives a parole hearing depends on the length of the original

sentence for the “ ‘[c]ontrolling offense,’ ” a term defined to mean

“the offense or enhancement for which any sentencing court

imposed the longest term of imprisonment.” (Id., subd.

(a)(2)(B).) An offender sentenced to a determinate term becomes

eligible for parole after 15 years (id., subd. (b)(1)); an offender

sentenced to an indeterminate life term of fewer than 25 years

to life becomes eligible after 20 years (id., subd. (b)(2)); and an

offender sentenced to an indeterminate life term of 25 years to

life, or an offender sentenced to life without parole for a crime

committed before the age of 18, becomes eligible after 25 years

(id., subd. (b)(3), (4)).

Certain persons are, however, categorically ineligible for

youth offender parole hearings, including offenders sentenced

for multiple violent or serious felonies under the “Three Strikes”

law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12); offenders

sentenced for sex offenses under the One Strike law (id.,

§ 667.61); and offenders who, “subsequent to attaining 26 years

of age, commit[] 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.” (§ 3051, subd. (h).)

The statute also excludes those who, like Hardin, are sentenced

to life without parole for a controlling offense committed after

reaching the age of 18. (Ibid.) In Hardin’s case, as in most of

the appellate cases addressing the issue, the offense is first

degree murder with one or more special circumstances. (Pen.

Code, § 190.2.)

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Opinion of the Court by Kruger, J.

B.

The Legislature first created this system of youth offender

parole hearings in 2013, following a series of court decisions

identifying Eighth Amendment limits on the sentencing of

juvenile offenders. (Stats. 2013, ch. 312, § 1; see generally

Franklin, supra, 63 Cal.4th at p. 277.) In Roper v. Simmons

(2005) 543 U.S. 551 (Roper), the high court held that the Eighth

Amendment forbids imposing the death penalty for crimes

committed before age 18, given the diminished culpability of

juveniles relative to adult offenders. (Roper, at p. 575.) Five

years later, the high court held in Graham v. Florida (2010) 560

U.S. 48 (Graham) that the Eighth Amendment also forbids life

without parole sentences for nonhomicide crimes committed

before age 18. (Graham, at p. 82.) Finally, in Miller, supra, 567

U.S. 460, the high court held that the Eighth Amendment

forbids mandatory life without parole sentences for homicides

committed before the age of 18. (Miller, at pp. 479–480; see id.

at pp. 477–478, 489.)

In each case, the high court explained why juvenile

offenders are “constitutionally different” from adult offenders

for purposes of criminal sentencing. (Miller, supra, 567 U.S. at

p. 471.) Relying “not only on common sense — on what ‘any

parent knows’ — but on science and social science,” the court

identified three primary differences between juveniles and

adults. (Ibid.) First, the “hallmark features” of youth — “among

them, immaturity, impetuosity, and failure to appreciate risks

and consequences” — both diminish a child’s moral culpability

and increase the chances that the child’s moral shortcomings

will be reformed with age. (Id. at p. 477; see id. at p. 472.)

Second, children “ ‘are more vulnerable . . . to negative

influences and outside pressures,’ including from their family

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Opinion of the Court by Kruger, J.

and peers; they have limited ‘contro[l] over their own

environment’ and lack the ability to extricate themselves from

horrific, crime-producing settings.” (Id. at p. 471, quoting

Roper, supra, 543 U.S. at p. 569.) And finally, compared to an

adult, a juvenile’s character is “not as ‘well formed’ . . . his traits

are ‘less fixed’ ” and thus “his actions less likely to be ‘evidence

of irretrievabl[e] deprav[ity].’ ” (Miller, at p. 471, quoting Roper,

at p. 570.)

In Graham and Roper, the court held that these features

of youth categorically preclude a death sentence, or a sentence

of life without parole for a nonhomicide offense. But in ruling

out life without parole sentences for nonhomicide offenses

committed by juveniles, the court in Graham “took care” to

distinguish homicide offenses, which raise different

considerations as a matter of “both moral culpability and

consequential harm.” (Miller, supra, 567 U.S. at p. 473.) When

confronted with the issue in Miller, the court did not

categorically rule out life without parole sentences for juvenile

offenders, instead concluding that before a court may impose

such a sentence, “a judge or jury must have the opportunity to

consider mitigating circumstances,” including the hallmark

features of youth and their relation to the offense. (Id. at p. 489.)

The court further observed that, in light of “children’s

diminished culpability and heightened capacity for change, we

think appropriate occasions for sentencing juveniles to th[e]

harshest possible penalty [of life without parole] will be

uncommon. That is especially so because of the great difficulty

we noted in Roper and Graham of distinguishing at this early

age between ‘the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile

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Opinion of the Court by Kruger, J.

offender whose crime reflects irreparable corruption.’ ” (Id. at

pp. 479–480, quoting Graham, supra, 560 U.S. at p. 68.)

Not long after the high court issued its decision in Miller,

this court clarified in People v. Caballero (2012) 55 Cal.4th 262,

268 (Caballero) that Graham’s prohibition on life without parole

sentences for juvenile nonhomicide offenders applies to a term-

of-years sentence that is “the functional equivalent of a life

without parole sentence” — there, a sentence of 110 years.

(Ibid.) Without dictating “a precise timeframe” for holding

parole hearings for juvenile offenders who had received actual

or de facto life sentences for nonhomicide crimes, this court

explained that, under Graham, “a state must provide a juvenile

offender ‘with some realistic opportunity to obtain release’ from

prison during his or her expected lifetime.” (Id. at pp. 269, 268.)

The Legislature enacted section 3051 to bring California

juvenile sentencing law into line with Graham, Miller, and

Caballero. (Stats. 2013, ch. 312, § 1; see Franklin, supra, 63

Cal.4th at p. 268; id. at pp. 278–280 [holding that the youth

offender parole statute remedied any Eighth Amendment

defects in the sentences of juvenile offenders].) In language

echoing the holdings of these cases, section 3051 provided for

youth offender parole hearings at which the Board of Parole

Hearings must provide “a meaningful opportunity” for release

(§ 3051, subd. (e)), giving “great weight to the diminished

culpability of youth as compared to adults, the hallmark

features of youth, and any subsequent growth and increased

maturity” (Pen. Code, § 4801, subd. (c)).

As initially enacted, section 3051 provided youth offender

parole hearings only for juvenile offenders incarcerated for

crimes committed before the age of 18. (Former § 3051, subd.

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Opinion of the Court by Kruger, J.

(a)(1), added by Stats. 2013, ch. 312, § 4.) But it did not include

all juvenile offenders; the statute excluded several categories of

individuals, including juvenile offenders sentenced to life

without possibility of parole. (Former § 3051, subd. (h), added

by Stats. 2013, ch. 312, § 4.) A different statute, enacted not

long before section 3051, had created an alternative mechanism

for relief that, with some exceptions, permitted juvenile

offenders sentenced to life without parole to petition for recall of

sentence and resentencing to a term that included an

opportunity for parole. (Stats. 2012, ch. 828, adding Pen. Code,

§ 1170, subd. (d).)

Since the youth offender parole statute was first enacted,

the Legislature has expanded it in two primary respects. The

first area of change concerns juvenile offenders sentenced to life

without possibility of parole. In 2017, this court concluded the

recall and resentencing scheme did not provide an adequate

remedy for juvenile offenders who had been sentenced to life

without parole terms without adequate consideration of the

youth-related factors set out in Miller. (In re Kirchner (2017) 2

Cal.5th 1040, 1043 (Kirchner).) That same year, the Legislature

expanded section 3051 to include juvenile offenders sentenced

to life without parole, making them eligible for youth offender

parole hearings after their 25th year of incarceration. (Stats.

2017, ch. 684, § 1.5, adding § 3051, subd. (b)(4); see Assem. Com.

on Public Safety, Analysis of Sen. Bill No. 394 (2017–2018 Reg.

Sess.) as amended May 26, 2017, p. 1.)

The second area of change concerns the statute’s

application to older offenders. In 2015, the Legislature raised

the age of eligibility for youth offender parole hearings to include

most young adults incarcerated for offenses committed before

the age of 23. (Stats. 2015, ch. 471, § 1.) In expanding section

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3051 beyond the constitutional minimum age of 18 set out in

Graham and Miller, the Legislature considered scientific

evidence that neurological development, particularly in areas of

the brain relevant to judgment and decisionmaking, continues

beyond adolescence and into the mid-20’s. (See Sen. Com. on

Public Safety, Rep. on Sen. Bill No. 261 (2015–2016 Reg. Sess.)

Apr. 28, 2015, p. 3.) In 2017, motivated by these same

considerations, the Legislature once again raised the age cut-off

for section 3051 parole hearings, this time to age 25. (Stats.

2017, ch. 675, § 1; see Assem. Com. on Public Safety, Analysis of

Assem. Bill No. 1308 (2017–2018 Reg. Sess.) as amended Mar.

30, 2017, p. 2.)

The expansion to young adults did not, however, include

all persons who committed crimes between the age of 18 and 25:

The Legislature carried forward preexisting exclusions,

including the exclusion for those sentenced to life in prison

without the possibility of parole. (See Assem. Com. on Public

Safety, Analysis of Assem. Bill No. 1308, supra, as amended

Mar. 30, 2017, p. 2.) Similarly, when it expanded the youth

offender parole system to include juvenile offenders sentenced

to life without parole, the Legislature preserved the life without

parole exclusion for youthful offenders who committed their

controlling offense after the age of 18. (See Assem. Com. on

Public Safety, Analysis of Sen. Bill No. 394, supra, as amended

May 26, 2017, p. 1.)

Hardin challenges the statute’s exclusion of young adult

offenders sentenced to life without parole as violative of equal

protection. As noted, in the trial court, Hardin challenged the

statute’s disparate treatment of juvenile and young adult

offenders sentenced to life without possibility of parole. But the

Court of Appeal in this case held, and he does not dispute, that

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the Legislature acted reasonably in distinguishing between

offenses committed before and after the age of 18 because the

Eighth Amendment (and the law more generally) makes the

same distinction. (Hardin, supra, 84 Cal.App.5th at pp. 285–

286 [noting that age 18 generally marks the difference between

childhood and adulthood].)

As the case comes to us, the parties agree that the

Legislature was not constitutionally obligated to expand youth

offender parole opportunities to young adults over the age of 18.

Hardin argues, however, that once the Legislature decided to

expand such opportunities to young adults, it could not

rationally treat those sentenced to life without parole differently

from those convicted of other serious crimes and serving lengthy

parole-eligible sentences. Once the Legislature decided to

include one class of young adult offenders, it was obligated to

include both.

Hardin effectively challenges the life without parole

exclusion on its face, in all of its applications. He also challenges

the exclusion more specifically as it applies to young adult

offenders who are, like him, serving life without parole

sentences following convictions for first degree murder with one

or more special circumstances.

III.

The Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution provides that no

state may “deny to any person within its jurisdiction the equal

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protection of the laws.”2 (U.S. Const., 14th Amend.) This

provision is “essentially a direction that all persons similarly

situated should be treated alike.” (Cleburne v. Cleburne Living

Center, Inc. (1985) 473 U.S. 432, 439 (Cleburne).) “At core, the

requirement of equal protection ensures that the government

does not treat a group of people unequally without some

justification.” (People v. Chatman (2018) 4 Cal.5th 277, 288

(Chatman).)

The degree of justification required to satisfy equal

protection depends on the type of unequal treatment at issue.

Courts apply heightened scrutiny when a challenged statute or

other regulation involves a suspect classification such as race,

or a fundamental right such as the right to vote, and accordingly

will demand greater justification for the differential treatment.

(E.g., Chatman, supra, 4 Cal.5th at p. 288; Massachusetts Bd. of

Retirement v. Murgia (1976) 427 U.S. 307, 312.) But when a

statute involves neither a suspect classification nor a

fundamental right, the “general rule is that legislation is

presumed to be valid and will be sustained if the classification

drawn by the statute is rationally related to a legitimate state

interest.” (Cleburne, supra, 473 U.S. at p. 440; see Chatman, at

pp. 288–289.) A court applying this standard finds “a denial of

equal protection only if there is no rational relationship between

2

The California Constitution also guarantees equal

protection of the law. (Cal. Const., art. I, § 7, subd. (a).) Hardin

does not raise any arguments specific to the California

Constitution, however, and we see “ ‘no reason to suppose’ that

federal equal protection analysis would yield a result different

from what would emerge from analysis of the state

Constitution.” (Chatman, supra, 4 Cal.5th at p. 288.)

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a disparity in treatment and some legitimate government

purpose.” (Chatman, at pp. 288–289.)

Here, both sides agree that rational basis review applies;

Hardin makes no argument that this case involves a suspect

classification or a fundamental right. (See Chatman, supra, 4

Cal.5th at pp. 282, 287 [rational basis review applied to evaluate

constitutionality of law prescribing different collateral

consequences for different types of criminal convictions]; People

v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson) [A

defendant “ ‘does not have a fundamental interest in a specific

term of imprisonment’ ”].)

In the past, our cases have set out a two-part inquiry to

evaluate equal protection claims. “We first ask whether the

state adopted a classification affecting two or more groups that

are similarly situated in an unequal manner. [Citation.] If we

deem the groups at issue similarly situated in all material

respects, we consider whether the challenged classification” is

adequately justified. (Chatman, supra, 4 Cal.5th at p. 289.) In

a case, like this one, subject to rational basis review, the

question is “whether the challenged classification ultimately

bears a rational relationship to a legitimate state purpose.”

(Ibid.)

The Courts of Appeal that have addressed the issue

presented here concerning the life without parole exclusion have

fractured over the proper analysis of the threshold “similarly

situated” inquiry. At this first step of the two-part equal

protection inquiry, the reviewing court asks “not whether

persons are similarly situated for all purposes, but ‘whether

they are similarly situated for purposes of the law challenged.’ ”

(Cooley v. Superior Court (2002) 29 Cal.4th 228, 253, quoting

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People v. Gibson (1988) 204 Cal.App.3d 1425, 1438.) If the

challenging party fails to satisfy this threshold “ ‘similarly

situated’ ” inquiry, the equal protection analysis is at an end.

(Cooley, at p. 254.)

The Court of Appeal in this case held that offenders

serving life without parole sentences are, for purposes of the

youth offender parole statute, similarly situated to offenders

serving parole-eligible life terms for offenses committed at the

same age. It then went on to hold that the statute’s disparate

treatment of the two groups is not adequately justified.

(Hardin, supra, 84 Cal.App.5th at pp. 287–288, 290.) Several

other courts have likewise concluded that the groups are

similarly situated for purposes of the challenged law, but that

the difference in treatment is justified. A still larger group of

courts have concluded that the groups are not similarly situated

for purposes of the law, while citing essentially the same reasons

other courts have cited at the justification step of the inquiry.

And the largest group of courts have avoided the question by

assuming without deciding that the two groups are similarly

situated and proceeding to hold that the difference in treatment

is justified under rational basis review.

Despite this state of uncertainty, the Attorney General

asks us to join the group of courts that have avoided the issue

by assuming without deciding that a young adult offender

serving a parole eligible life sentence is similarly situated to an

individual serving a sentence of life without parole for an offense

committed at a similar age. The Attorney General thus would

have us proceed directly to the operative question, which is

whether the disparate treatment has a rational basis.

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We have taken this assume-without-deciding approach to

the “similarly situated” inquiry in other recent equal protection

cases and could do the same here. (Chatman, supra, 4 Cal.5th

at p. 290 [moving to the second step of the equal protection

analysis without deciding the first, “similarly situated” step];

Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882

(Johnson).) But to do so would simply perpetuate the

uncertainty that has led courts to so many different conclusions

about how the “similarly situated” test ought to apply, and that

has so often led both this court and the Courts of Appeal to avoid

the test altogether.

There is a reason for this uncertainty. As we recognized

decades ago, in cases involving challenges to statutes like

section 3051, subdivision (h) that facially distinguish between

identifiable groups or classes of individuals, “[t]o ask whether

two groups are similarly situated in this context,” given the

interests underlying the law challenged, is essentially “the same

as asking whether the distinction between them can be justified

under the appropriate test of equal protection.” (Fullerton Joint

Union High School Dist. v. State Bd. of Education (1982) 32

Cal.3d 779, 798, fn. 19 (plur. opn.).) This is because one can only

reach the conclusion that two groups are similarly situated with

respect to the purposes of a particular law after considering the

law’s aims and how the differential treatment relates to those

aims. But the first, “similarly situated” step of the analysis

provides substantially less guidance about how this inquiry is to

proceed: “How similarly situated, precisely, relative to which

aims? These are questions courts already explore at the

justification step, using the tiers of scrutiny to guide their

answers.” (Eric B., supra, 12 Cal.5th at p. 1115 (conc. opn. of

Kruger, J.).) In the context of challenges like this one, the

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similarly situated test serves no real purpose. At best it

duplicates the justification inquiry prescribed at the second step

of the analysis; at worst it creates an unnecessary threshold

obstacle to the adjudication of potentially meritorious

constitutional challenges; and in all events it injects

unnecessary uncertainty into the analysis, particularly in the

situations in which the challenged law reflects multiple,

sometimes competing aims.

Our cases purported to derive the threshold “similarly

situated” test from United States Supreme Court guidance, but

the high court itself has not employed any similar threshold test

in equal protection cases involving challenges to facial legal

classifications. (See, e.g., Cleburne, supra, 473 U.S. at pp. 439–

450.) Even when this court first began to speak in terms of a

“similarly situated” test, it did not initially understand this to

mean that courts must always engage in that inquiry as a

separate analytical step. (See In re Roger S. (1977) 19 Cal.3d

921; In re Eric J. (1979) 25 Cal.3d 522.) Rather, courts reciting

the rules of these cases over time came to lay out a two-step

analysis, even though no court ever identified precisely what

independent function the first step is supposed to serve.

Unsurprisingly, then, courts did not apply it consistently, often

adopting an approach of assuming-without-deciding that the

groups or classes facing disparate treatment are similarly

situated, or skipping the inquiry altogether, to reach the critical

question of whether the justification for the alleged disparate

treatment is adequate. (See, e.g., Chatman, supra, 4 Cal.5th at

p. 290; Johnson, supra, 60 Cal.4th at p. 882; Hernandez v. City

of Hanford (2007) 41 Cal.4th 279, 299 (Hernandez); People v.

Floyd (2003) 31 Cal.4th 179, 190.)

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After directing the parties and inviting amici curiae to

address this issue, none has identified any substantive reason

why we should continue to prescribe a two-step analysis in cases

like this one, in which the only real question is whether a facial

difference in treatment is adequately justified by the purposes

the law was meant to serve. The primary concern raised by the

Attorney General relates to stare decisis — the idea that once

an issue is decided, it should ordinarily remain decided.

Stare decisis plays a vitally important role in our work as

a common law court; the policy of adherence to precedent

ensures the certainty, stability, and predictability on which the

rule of law depends. But stare decisis concerns have no real

place here. The doctrine “does not ‘ “shield court-created error

from correction” ’ ” but “permits us ‘to reconsider, and ultimately

to depart from, our own prior precedent in an appropriate

case.’ ” (People v. Mendoza (2000) 23 Cal.4th 896, 924.) Here,

none of the factors we have identified as relevant to the question

of adherence to precedent — including “the age of the precedent,

the nature and extent of public and private reliance on it, and

its consistency or inconsistency with other related rules of law”

(Trope v. Katz (1995) 11 Cal.4th 274, 288) — suggests we are

bound to preserve an analytical framework that has generated

uncertainty and confusion, with no discernible effect on the

actual outcomes of cases.

For these reasons, we now hold that, when plaintiffs

challenge laws drawing distinctions between identifiable groups

or classes of persons, on the basis that the distinctions drawn

are inconsistent with equal protection, courts no longer need to

ask at the threshold whether the two groups are similarly

situated for purposes of the law in question. The only pertinent

inquiry is whether the challenged difference in treatment is

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Opinion of the Court by Kruger, J.

adequately justified under the applicable standard of review.

The burden is on the party challenging the law to show that it

is not.

To be clear, we cast no doubt on the utility of “similarly

situated” inquiries in other contexts. In cases that do not

involve challenges to classifications appearing on the face of the

law, to ask whether a person has been treated differently from

another person similarly situated is typically how we determine

whether a person has been treated differently on the basis of

group membership or another actionable basis. We do not call

into question the established role the similarly situated inquiry

plays in, for instance, cases involving claims of group-based

discrimination against individuals, in which plaintiffs bear the

burden of showing disparate treatment along class lines, or so-

called “class of one” cases that do not allege differential

treatment on the basis of class membership. (See, e.g., United

States v. Armstrong (1996) 517 U.S. 456, 465–467; Village of

Willowbrook v. Olech (2000) 528 U.S. 562, 564.)

Nor, in dispensing with the threshold “similarly situated”

test in equal protection challenges like this one, do we call into

question any of this court’s precedent that purported to dispose

of an equal protection challenge upon deciding that the

challenged disparate treatment did not involve groups that were

similarly situated for purposes of the law in question. As we

have explained, the conclusion in each of those cases could just

as well have been cast as a conclusion about whether the

difference in treatment was adequately justified under the

applicable standard of review. (See, e.g., People v. Salazar

(2016) 63 Cal.4th 214, 227 [noting individuals who commit a

capital crime after being convicted of a juvenile murder in

superior court are not similarly situated to those whose prior

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murder was adjudicated in juvenile court, because the

Legislature may fairly distinguish these groups based on

culpability]; People v. Johnson (1992) 3 Cal.4th 1183, 1242–1243

[noting capital defendants are not similarly situated to those

subject to ordinary sentencing enhancements because of the

aggravating circumstances surrounding the capital offense].)

Having thus clarified the governing analytical framework,

we turn to the central inquiry in this case: whether there is a

rational basis justifying section 3051’s disparate treatment of

individuals who, like Hardin, are serving sentences of life

without parole for special circumstance murder.

IV.

A.

Rational basis review “sets a high bar” for litigants

challenging legislative enactments. (Chatman, supra, 4 Cal.5th

at p. 289.) The reasons for this lie at the heart of our democratic

system of governance. “Coupled with a rebuttable presumption

that legislation is constitutional, [rational basis review] helps

ensure that democratically enacted laws are not invalidated

merely based on a court’s cursory conclusion that a statute’s

tradeoffs seem unwise or unfair.” (Ibid.)

Under this deferential standard, we presume that a given

statutory classification is valid “until the challenger shows that

no rational basis for the unequal treatment is reasonably

conceivable.” (Chatman, supra, 4 Cal.5th at p. 289.) The

underlying rationale for a statutory classification need not have

been “ever actually articulated” by lawmakers, nor “be

empirically substantiated.” (People v. Turnage, supra, 55

Cal.4th at pp. 74, 75 (Turnage).) Evaluating potential

justifications for disparate treatment, a court reviewing a

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statute under this standard must “treat the statute’s potential

logic and assumptions far more permissively than with other

standards of constitutional or regulatory review.” (Chatman, at

p. 294.) “If a plausible basis exists for the disparity, courts may

not second-guess its ‘ “wisdom, fairness, or logic.” ’ ” (Johnson,

supra, 60 Cal.4th at p. 881.) “[T]he logic behind a potential

justification need [not] be persuasive or sensible — rather than

simply rational.” (Chatman, at p. 289.)3

B.

Hardin’s central argument is that section 3051’s exclusion

of offenders sentenced to life without possibility of parole has no

rational basis because it is inconsistent with what he

understands to be the “sole” purpose behind the statute: to

create “a meaningful opportunity for release for youthful

3

The high court has on occasion applied a more searching

form of rational basis review that looks to the Legislature’s

actual motivations in enacting a statute rather than

hypothesized ones. (See, e.g., U.S. Dept. of Agriculture v.

Moreno (1973) 413 U.S. 528, 535–538.) The high court has

generally reserved this form of review for cases in which the sole

motivation underlying the enactment is baseless prejudice

against a politically unpopular group. (See, e.g., ibid.; Cleburne,

supra, 473 U.S. at pp. 448–450.) Those are not the

circumstances we confront here, and no party argues otherwise.

Justice Liu lays out an argument for reconsidering

rational basis review under our state equal protection guarantee

to require a focus on the Legislature’s actual, rather than

hypothesized, reasons for the challenged classification. (Dis.

opn. of Liu, J., post, at p. 21.) We note, however, that our

analysis focuses on the apparent motivations underlying the

challenged classification, as revealed in the statutory text and

history; we do not endeavor to exhaustively catalog all

conceivable concerns that might be hypothesized in support of

the challenged distinction.

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Opinion of the Court by Kruger, J.

offenders, who were 25 or younger at the time of their crimes,

through demonstrated growth and rehabilitation.” Pointing to

the high court’s reasoning concerning juvenile offenders in

Miller, supra, 567 U.S. 460, and the scientific research that

prompted the Legislature to expand section 3051 to young

adults, Hardin contends that all youthful offenders, by virtue of

their age and the limitations associated with still-developing

judgment and impulse control, possess the same characteristics

that prompted the enactment and expansion of section 3051,

including diminished culpability and the potential for change.

Hardin acknowledges the core of the counterargument. “It

is both the prerogative and the duty of the Legislature to define

degrees of culpability and punishment, and to distinguish

between crimes in this regard.” (Turnage, supra, 55 Cal.4th at

p. 74.) Life without parole is the most severe sentence of

imprisonment in California law, applicable only in cases of

special circumstance murder and a small number of other

offenses the law regards as particularly serious.4 By excluding

persons sentenced to life without parole from youth offender

parole proceedings, the Legislature exercised its prerogative to

define degrees of culpability and punishment by leaving in place

4

These offenses include certain aggravated sex offenses

against minors (Pen. Code, § 667.61, subds. (j)(1), (l));

kidnapping for ransom resulting in death or bodily harm or

exposure to a substantial likelihood of death (id., § 209, subd.

(a)); certain felonies inflicting great bodily injury that are

committed by a “habitual offender” (id., § 667.7, subd. (a)); hate

crime first degree murder (id., § 190.03, subd. (a)); willful and

malicious ignition of an explosive device causing death (id.,

§ 18755, subd. (a)); and intentional train wrecking (id., §§ 218,

219).

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longstanding judgments about the seriousness of these crimes

and, relatedly, the punishment for them.

Hardin asserts, however, that the seriousness of the

offenses “provides no basis for their exclusion because the

purpose of the statute was ameliorative, not punitive.” The

Court of Appeal made a similar point: “[I]f, 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 distinguishing

between same-age offenders based solely on the crime they

committed.” (Hardin, supra, 84 Cal.App.5th at p. 288.)

This argument rests on the premise that “there was only

a single purpose underlying” section 3051. (Hernandez, supra,

41 Cal.4th at p. 300.) But as we explained in Hernandez,

legislation does not always — or even often — work this way.

Legislation is frequently the “ ‘product of multiple and

somewhat inconsistent purposes that led to certain

compromises.’ ” (Id. at p. 301, quoting U. S. Railroad

Retirement Bd. v. Fritz (1980) 449 U.S. 116, 181 (conc. opn. of

Stevens, J.).) This is only to be expected, for “[d]eciding what

competing values will or will not be sacrificed to the

achievement of a particular objective is the very essence of

legislative choice.” (Rodriguez v. United States (1987) 480 U.S.

522, 526.) “Past cases establish that the equal protection clause

does not preclude a . . . legislative measure that is aimed at

achieving multiple objectives, even when such objectives in some

respects may be in tension or conflict.” (Hernandez, at p. 300.)

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Section 3051 is such a measure. No one doubts that the

Legislature’s primary purpose in expanding section 3051 to

include young adult offenders was to give these young persons

the opportunity to obtain release based on demonstrated growth

and rehabilitation. Even though the Eighth Amendment

requires that this opportunity be afforded only to persons who

committed their crimes as juveniles, the Legislature determined

that comparable opportunities should be available to some older

offenders as well. But the structure and history of the expansion

make clear that the Legislature sought to balance this primary

objective with other, sometimes competing, concerns, including

concerns about culpability and the appropriate level of

punishment for certain very serious crimes.

This balancing has been evident throughout the history of

the youth offender parole statute. Even as initially drafted, the

statute did not categorically extend youth offender parole

hearings to all persons below the age of 18, but instead

distinguished between offenders based on the crimes they

committed. (Stats. 2013, ch. 312, § 1; former § 3051, added by

Stats. 2013, ch. 312, § 4; cf. Sen. Com. on Appropriations,

Analysis of Sen. Bill No. 394 (2017–2018 Reg. Sess.) Apr. 17,

2017, p. 2 [“[The bill that created section 3051] established a

parole process for persons sentenced to prison for certain crimes

committed before attaining 18 years of age” (italics added)].)

Through multiple rounds of statutory amendments gradually

expanding the statute, the Legislature retained crime-based

distinctions, and the legislative history accompanying the

amendments confirms that these were deliberate choices. (See,

e.g., Assem. Com. on Appropriations, Analysis of Assem. Bill

No. 1308 (2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2

[“Some offenders are not eligible [for parole hearings] based on

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Opinion of the Court by Kruger, J.

the crime that was committed, or actions taken by the inmate

after the age of 23” (italics added)]; Sen. Com. on Public Safety,

Rep. on Sen. Bill No. 394 (2017–2018 Reg. Sess.) Mar. 21, 2017,

p. 4 [“This bill would apply the youth offender parole process to

juveniles sentenced to [life without parole]. . . . [¶] The bill

makes clear that . . . the provisions applying to juvenile [life

without parole] apply only to those sentenced before the age of

18” and thus exclude individuals sentenced to life without parole

for crimes committed after the age of 18].)

The end result is that under the youth offender parole

statute as enacted and since amended, the nature of the

sentence received for a particular crime — what the statute

terms the “controlling offense” — sometimes determines

whether an individual is eligible for a youth offender parole

hearing in the first instance. And for those who are eligible, the

nature of the sentence determines when they will receive such a

hearing: whether after 15, 20, or 25 years. In other words, in

designing section 3051, the Legislature consciously drew lines

that altered the parole component of offenders’ sentences based

not only on the age of the offender (and thus the offender’s

amenability to rehabilitation) but also on the offense and

sentence imposed. The lines the Legislature drew necessarily

reflect a set of legislative judgments about the nature of

punishment that is appropriate for the crime.

It may be true, as Hardin argues, that these crime-based

categories are not rationally related to the Legislature’s purpose

of expanding opportunities for early release based on the

attributes of youth since, as Miller explained, the attributes of

youth are not “crime-specific.” (Miller, supra, 567 U.S. at

p. 473.) No doubt the Legislature — which consciously enacted

section 3051 in language that borrowed from Miller and other

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Eighth Amendment juvenile sentencing cases — was aware of

this point. The Legislature nonetheless crafted a statutory

scheme that assigns significance to the nature of underlying

offenses and accompanying sentences. The most natural

conclusion to draw from this is not, as Hardin would have it,

that the Legislature enacted a statute at odds with its own

rehabilitative ends, but instead that the Legislature — as

legislatures often do — was attempting to pursue other

“ ‘(perhaps even contrary) ends as well.’ ” (Hernandez, supra, 41

Cal.4th at p. 301, quoting Fitzgerald v. Racing Assn. of Central

Iowa (2003) 539 U.S. 103, 108.)

The statutory framework indicates that the Legislature

aimed to increase opportunities for meaningful release for young

adult offenders, while taking into account the appropriate

punishment for the underlying crimes, depending on their

severity. These are essentially the same considerations involved

whenever the Legislature exercises its responsibility “for

determining which class of crimes deserves certain punishments

and which crimes should be distinguished from others.”

(Wilkinson, supra, 33 Cal.4th at p. 840.) They are also not

dissimilar from the considerations that prompted the high court

to distinguish, for Eighth Amendment purposes, between

sentencing juveniles for homicide offenses and sentencing

juveniles for nonhomicide offenses. (Miller, supra, 567 U.S. at

p. 473 [based on considerations of “both moral culpability and

consequential harm,” juvenile homicide offenders, unlike

juvenile nonhomicide offenders, may be sentenced to life without

possibility of parole, but only after individualized sentencing

that gives appropriate consideration to the mitigating attributes

of youth].) Much as the high court invoked culpability-related

concerns to distinguish among crimes in that context, it is

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reasonable to infer that the Legislature considered such

concerns in this one.

Hardin argues that the Legislature’s decision to adopt a

parole process indicates it was unconcerned with culpability and

instead had only rehabilitation in mind. If the Legislature had

been concerned with calibrating the appropriate sentence for

particular crimes, Hardin reasons, the Legislature could have

instead enacted a statute providing for the recall of sentence and

resentencing, as it had done in Penal Code section 1170,

subdivision (d) — the predecessor statute to section 3051

discussed in Kirchner, supra, 2 Cal.5th at pages 1049–1050 —

and as it has done in other recently enacted ameliorative

statutes (e.g., Pen. Code, § 1172.6; see People v. Lewis (2021) 11

Cal.5th 952, 959–960). In Hardin’s view it is “telling” that the

Legislature instead enacted a parole process, since “California’s

parole process explicitly measures rehabilitation. . . . To the

extent the crime of commitment can be taken into consideration

at all, it is only for purposes of determining the present level of

risk.”

What Hardin says is true of the task of the Parole Board

at a parole hearing. (§ 3051, subd. (d), citing Pen. Code, § 3041;

see Pen. Code, § 3041, subd. (b)(1) [“The panel . . . shall grant

parole . . . unless it determines that the gravity of . . . current or

past convicted offense or offenses . . . is such that consideration

of the public safety requires a more lengthy period of

incarceration”].) But the Legislature has a different role, which

is to determine not only whether an incarcerated individual may

be suitable for release on parole, but when and whether it is

appropriate to afford that individual the opportunity to

demonstrate suitability for release. Parole eligibility is

frequently an important component of the sentence prescribed

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Opinion of the Court by Kruger, J.

for a crime, and so the Legislature frequently considers multiple

sentencing objectives — including both the prospects for

rehabilitation and the degree of culpability demonstrated by the

crime — in determining when, and if, a particular category of

offenders will become eligible for a parole hearing.

Hardin also argues that section 3051’s focus on the

“controlling offense” — that is, the single “offense or

enhancement for which any sentencing court imposed the

longest term of imprisonment” (§ 3051, subd. (a)(2)(B)) — is

indicative of the Legislature’s rehabilitative concerns rather

than concerns with appropriate punishment. Hardin points out,

for example, that the statute sets a 25-year eligibility date for

all youthful offenders who have received a sentence of 25 years

to life for any one offense or enhancement — even if another

individual with the same youth offender parole eligibility date

may be serving a much longer aggregate sentence on account of

other crimes; and even if the offender’s “controlling offense” is

merely an enhancement, rather than a substantive crime.

Hardin argues that the Legislature that enacted section 3051

therefore must not have been concerned with the relatively

greater culpability of the individual with the longer aggregate

sentence, or of the substantive crime to which the longer

enhancement was attached.

To be sure, the statute’s “controlling offense” framework

does rely on a certain amount of generalization about the

relationship between the lengthiest individual sentence the

offender has received and the culpability of the underlying

criminal conduct. But “ ‘[w]hen conducting rational basis

review, we must accept any gross generalizations and rough

accommodations that the Legislature seems to have made.’ ”

(Turnage, supra, 55 Cal.4th at p. 77.) Hardin’s argument

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presumes there is only one way to evaluate culpability for these

purposes — by focusing on the offender’s entire criminal history

rather than examining an individual offense, or by focusing on

substantive crimes and ignoring the role of sentence

enhancements. But these are not the only possible ways to

evaluate culpability. That the Legislature may have prescribed

a measurement of culpability different from Hardin’s does not

mean the Legislature was not attempting to measure culpability

at all. While section 3051 is not, in terms, a statute prescribing

sentences for particular crimes, it does “set[] the consequences

of criminal offenses.” (Johnson, supra, 60 Cal.4th at p. 887.) It

is reasonable to infer that in setting those consequences through

operation of the youth offender parole system, the Legislature

balanced multiple considerations, including both concerns about

increasing opportunities for release for young adults able to

show growth and maturity and concerns about calibrating the

level of punishment appropriate for certain serious criminal

offenses.

Hardin also suggests that, by enacting a system of single-

offense-based staggered eligibility terms and exclusions, the

Legislature was attempting to capture the moment when, based

on the sentence received for a single offense or enhancement, “a

person might be first expected to demonstrate meaningful

rehabilitation.” Hardin provides no logical or evidentiary

support for this view. It is unclear how the Legislature could

have determined that 15 years marks the relevant line of

maturation for an offender who received a determinate sentence

for a controlling offense; 20 years marks the maturation line for

an offender sentenced to a life term of less than 25 years to life;

and so on. But more fundamentally, this is not an either/or

matter. Parole eligibility dates are an important component of

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the sentences prescribed for crimes. As such, they

presumptively reflect the full range of usual penological

considerations, including rehabilitative and retributive

purposes. Even assuming the staggered parole eligibility terms

reflect some set of legislative judgments about when an offender

is most likely to be rehabilitated, the critical point is that they

also necessarily reflect a judgment about the degree to which the

youth offender parole statute should reduce potential

punishment. Concerns about both appropriate punishment and

rehabilitation underlie this provision, just as the same balance

of penological considerations underlie the other provisions of the

statute. These are unquestionably legitimate purposes. (E.g.,

Wilkinson, supra, 33 Cal.4th at p. 840.) The exclusion that

Hardin challenges may or may not be rationally related to those

purposes — we will turn to that question below — but the

exclusion is not invalid simply because it reflects interests on

the other side of a legislative balance.

Finally, Hardin argues that the other exclusions from

youth offender parole eligibility set forth in section 3051,

subdivision (h) “further undermine the rationality of the

statute.” The only question before us here concerns the

constitutionality of the exclusion of youthful offenders sentenced

to life without parole, and there is no occasion for us to pass

judgment on the validity of any other exclusion. It suffices to

observe, however, that nothing in the other exclusions

undermines the conclusion that the Legislature that crafted the

youth offender parole statute was attempting to balance

multiple penological considerations in addition to rehabilitation.

Whether or not each of the other exclusions is adequately

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justified in light of those considerations is beyond the scope of

our inquiry in this case.5

C.

Hardin argues that even if the life without parole

exclusion reflects culpability-related concerns, it nonetheless

fails rational basis review because there is no reasonable basis

to conclude that young adult offenders sentenced to life without

parole are more culpable or less deserving of the opportunity for

release than other young adult offenders. Hardin’s arguments

focus specifically on individuals who, like him, received life

without parole sentences following convictions for special

circumstance murder. The Legislature, he argues, “would have

had no rational basis to distinguish between youthful offenders

sentenced to life without parole for special circumstance murder

and youthful offenders sentenced either to the functional

equivalent of life without parole or to indeterminate life terms

for first degree murder. That is because, from a culpability

standpoint, these groups cannot rationally be distinguished.”

Hardin, however, fails to demonstrate that the life without

parole exclusion is irrational, and therefore unconstitutional, as

applied to individuals sentenced for special circumstance

murder.

In California, a conviction for first degree murder

generally results in a life sentence with parole eligibility after

5

We do not, for instance, decide the issue presented in

People v. Williams (2020) 47 Cal.App.5th 475, review granted July

22, 2020, S262229, in which the Court of Appeal held that section

3051, subdivision (h) violates equal protection principles by

excluding youthful offenders convicted and sentenced for

aggravated sex crimes under the One Strike law (Pen. Code

§ 667.61) from youth offender parole consideration.

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25 years. (See Pen. Code, § 190, subd. (a); id., §§ 190.1–190.5.)

Penal Code section 190.2 (section 190.2) lists special

circumstances that, under California law, mark a first degree

murder particularly egregious and thus render the perpetrator

eligible for the death penalty, consistent with Eighth

Amendment requirements. (People v. Bacigalupo (1993) 6

Cal.4th 457, 467–468 [the “special circumstances” statute

performs the constitutionally required function of “ ‘narrowing’ ”

the “class of murderers eligible for the death penalty”].) If a

defendant is convicted of first degree murder with a special

circumstance under section 190.2, there are only two possible

sentences: death or life without the possibility of parole. (Id.,

subd. (a).)

To understand the function of special circumstances in

California’s capital sentencing law is to understand why Hardin

faces a particularly difficult task in establishing that the

Legislature’s decision to exclude offenders convicted of special

circumstance murder from the youth offender parole system is

“so devoid of even minimal rationality that it is unconstitutional

as a matter of equal protection.” (Chatman, supra, 4 Cal.5th at

p. 289.) The core of Hardin’s argument is that the Legislature

could not rationally conclude that a conviction for special

circumstance murder is a reliable indication of the seriousness

of an offense or the culpability of the offender, such that it could

rationally decide to exclude the offender from receiving the

youth offender parole consideration to which other young adults

are statutorily entitled. In making this argument, Hardin does

not focus on any single special circumstance or any particular

factual scenarios; his argument is a categorical one, aimed at

special circumstance murder in general. This argument about

the relative insignificance of special circumstance murder, as a

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category, is inconsistent with what are by now legions of

decisions holding that special circumstance murder is

sufficiently serious and morally culpable as to justify imposing

the most severe sanctions available under the law, up to and

including death.

In the Eighth Amendment context, this court has

consistently rejected arguments that section 190.2’s potential

coverage is too broad to perform its constitutionally required

function of identifying those convicted of murders whose crimes

are sufficiently egregious to warrant the law’s most severe

penalty.6 We have explained why various challenged provisions

of section 190.2 adequately separate the most egregious first

degree murders — those deserving of the most severe

punishment available — from the rest. (See, e.g., People v.

Anderson (1987) 43 Cal.3d 1104, 1147 [“[B]y making the felony

murderer but not the simple murderer death-eligible, a death

penalty law furnishes the ‘meaningful basis [required by the

Eighth Amendment] for distinguishing the few cases in which

[the death penalty] is imposed from the many cases in which it

is not’ ”].)

Here, for example, Hardin was convicted of murdering his

victim in the course of robbing her. We have explained why the

6

See, e.g., People v. Wilson (2023) 14 Cal.5th 839, 865–866;

People v. Thomas (2023) 14 Cal.5th 327, 408; People v. Ramirez

(2022) 13 Cal.5th 997, 1160; People v. Parker (2022) 13 Cal.5th

1, 89; People v. Wright (2021) 12 Cal.5th 419, 455–456; People v.

Scully (2021) 11 Cal.5th 542, 610; People v. Schultz (2020) 10

Cal.5th 623, 682; People v. Frederickson (2020) 8 Cal.5th 963,

1026; People v. Capers (2019) 7 Cal.5th 989, 1012–1013; People

v. Brooks (2017) 3 Cal.5th 1, 114–115; People v. Johnson (2016)

62 Cal.4th 600, 654–655.

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

law treats robbery-murder as more culpable than simple

murder. The special circumstance is limited to those defendants

who commit “a ‘willful, deliberate and premeditated’ murder

‘during the commission’ of a robbery or other listed felony”

rather than “when the defendant’s intent is not to steal but to

kill and the robbery is merely incidental to the murder.” (People

v. Green (1980) 27 Cal.3d 1, 61.) The law treats as particularly

egregious a murder “in cold blood in order to advance an

independent felonious purpose, e.g., who carried out an

execution-style slaying of the victim of or witness to a holdup, a

kidnaping, or a rape.” (Ibid.) “[T]he purpose of this special

circumstance is to make eligible for the most severe punishment

those defendants who escalate a serious felony into a murder,

thereby attempting to deter such escalation.” (People v. Mora

and Rangel (2018) 5 Cal.5th 442, 520 (conc. & dis. opn. of Liu,

J.).)

Given this body of case law, it is difficult to see how the

Legislature that enacted section 3051 could have acted

irrationally in singling out special circumstance murder as a

particularly culpable offense. In concluding otherwise, the

Court of Appeal in this case pointed to a law review article’s

finding that, because of the expansion of the special

circumstances over the years, at least one special circumstance

could be alleged in many if not most first degree murder cases,

“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.” (Hardin, supra, 84 Cal.App.5th at

p. 290; id. at p. 290, fn. 11, citing Com. on Revision of the Pen.

Code, supra, Annual Report and Recommendations, p. 51, in

turn citing Baldus et al., Furman at 45: Constitutional

Challenges from California’s Failure to (Again) Narrow Death

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

Eligibility, supra, 16 J. Empirical Legal Studies at pp. 713–714

(Baldus study).) Hardin now invokes the same article in support

of his challenge to section 3051’s disparate treatment of

individuals sentenced for special circumstance murder.

Hardin’s argument is not that prosecutorial discretion

itself offends equal protection. (See People v. Keenan (1988) 46

Cal.3d 478, 505, 506 [rejecting the argument that “prosecutorial

discretion to select those eligible cases in which the death

penalty will actually be sought” in and of itself “offend[s]

principles of equal protection,” and explaining that “[m]any

circumstances may affect the litigation of a case chargeable

under the death penalty law. These include factual nuances,

strength of evidence, and, in particular, the broad discretion to

show leniency”]; see also United States v. Batchelder (1979) 442

U.S. 114, 125 [rejecting an equal protection challenge to “the

discretion a prosecutor exercises when deciding whether to

charge under one of two statutes”].) Nor does he bring or

develop a claim that prosecutorial discretion has been exercised

in an arbitrary or invidious manner. Rather, in light of the

findings of the cited law review article, Hardin “challenges the

Legislature’s ability to rely on a distinction between two

groups — youthful offenders convicted of special circumstance

murders and youthful offenders convicted of first degree

murders — that collapses on further scrutiny.”

We have previously considered a similar argument raised

in the Eighth Amendment context. In People v. Frye (1998) 18

Cal.4th 894, 1028–1029 (Frye), a capital defendant relied on “a

statistical analysis based on an examination of published

appeals from murder convictions for the years 1988–1992” that

showed “virtually all first degree murders are death eligible.”

The defendant in that case attributed this result to “the broad

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

interpretation of the lying-in-wait special circumstance and the

expansive sweep of the felony-murder special circumstance.”

(Id. at p. 1029.) We rejected the argument, citing case law

upholding the validity of both the lying-in-wait special

circumstance and the felony-murder special circumstance in

cases in which the defendant did not harbor an intent to kill but

was instead a major participant in a felony who acted with

reckless indifference to human life. (Ibid., citing, inter alia,

People v. Morales (1989) 48 Cal.3d 527, 557–558 & People v.

Marshall (1990) 50 Cal. 3d 907, 946.)

Our treatment of the issue in Frye was admittedly terse,

and it relied on a different study than the one on which Hardin

now relies. But based on the arguments and evidence that have

been presented to us here, we have no adequate basis to fault

the Legislature for distinguishing, as a categorical matter,

between a conviction for special circumstance murder and a

conviction for a different homicide offense, as the law has long

done.

At the outset, we note that the Baldus study on which

Hardin relies is not part of the record in this case, having been

first raised not by the parties but by the Court of Appeal in its

opinion. (See Hardin, supra, 84 Cal.App.5th at p. 290.) The

study’s findings were not litigated in the trial court, so they have

never been the subject of any sort of adversarial testing that

would afford us insight into either the methodology employed or

the ultimate accuracy or significance of the results. To strike

down an act of the Legislature as irrational based on a set of

untested empirical findings would be antithetical to multiple

settled principles of judicial review.

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

Even if we were to take the study’s findings at face value,

however, they do not support Hardin’s claim that it is, as a

categorical matter, irrational to treat individuals convicted of

first degree special circumstance murder differently from

individuals convicted of first degree murder without special

circumstances. The study neither says nor suggests that

California’s special circumstance law is categorically invalid.

Rather, as the Court of Appeal noted in its opinion, the study

appears to suggest that certain special circumstances, added

through various amendments after the initial enactment of

section 190.2, have led to the results found in the study.7 (See

Hardin, supra, 84 Cal.App.5th at p. 290.) But Hardin makes no

challenge specific to any particular special circumstance or

special circumstances added or changed by postenactment

7

As Justice Liu notes, the Baldus study also reports that

robbery-murder is factually present in a majority of special

circumstance murder cases. (Dis. opn. of Liu, J., post, at p. 38.)

But standing alone, that finding has no clear relevance; a special

circumstance is not legally invalid simply because it may be the

most frequently recurring form of special circumstance murder.

Justice Liu also invokes a different study, cited in the

Baldus study but not raised by either party to this case, in

support of the view that “ ‘the felony murder special

circumstances alone defeat any possibility of genuine

narrowing.’ ” (Dis. opn. of Liu, J., post, at p. 38.) Particularly

without any adversarial testing or argument concerning the

relationship between this limited set of empirical findings and

the Eighth Amendment’s narrowing requirement, we have no

adequate basis for drawing this sweeping conclusion, which

would call into question a substantial body of precedent of both

this court and of the United States Supreme Court. (See Pulley

v. Harris (1984) 465 U.S. 37, 51, fn. 13, 53 [upholding the 1978

version of the special circumstance murder statute]; Frye, supra,

18 Cal.4th at pp. 1028–1029.)

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

amendments. (The special circumstance finding at issue in

Hardin’s own case is based on a provision of the law that dates

back to the initial enactment of section 190.2. (See Stats. 1973,

ch. 719, § 5, pp. 1299–1300.)) While we do not foreclose the

possibility of other challenges to the distinctions drawn by the

special circumstances statute based on a more robust record or

a more focused as-applied inquiry, Hardin has not carried his

burden to demonstrate that legislative reliance on the special

circumstance murder statute in section 3051, subdivision (h) is

categorically irrational.

Hardin next argues that an individual who commits

special circumstance murder may not actually be more culpable

than an offender who commits a string of other violent crimes.

Agreeing with Hardin, the Court of Appeal raised for

comparison two hypothetical offenders who would be eligible for

a section 3051 parole hearing: (1) “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”; and

(2) an individual “who committed multiple violent crimes . . .

and received a parole-eligible indeterminate life term that far

exceeded his or her life expectancy.” (Hardin, supra, 84

Cal.App.5th at p. 289.) In the court’s view, these crimes “cannot

rationally” be considered less severe than “[t]he 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.” (Ibid.) Yet section 3051 would deny a parole hearing to

that offender. The court concluded that “[b]y 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’

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

[sic] overall culpability, let alone his or her amenability to

growth.” (Hardin, at p. 289.)

That view again rests on the assumption that the

Legislature is required to evaluate culpability in a particular

way — a way that would, essentially, regard special

circumstance murder as similar in culpability to a string of other

violent crimes that leads to technically parole-eligible sentences.

But the Legislature that enacted section 3051 was not obligated

to see things this way. Indeed, the law in general does not see

things this way: In the criminal law, there is no violent crime

or set of violent crimes considered more serious, or that trigger

more severe punishment, than special circumstance murder.

We thus cannot say that the decision to deny a parole hearing to

an offender convicted of special circumstance murder is

irrational, even if it is possible that in certain cases some might

consider an individual offender convicted of multiple violent

crimes more culpable, in a holistic sense, than an individual

convicted of special circumstance murder. (Turnage, supra, 55

Cal.4th at pp. 77–78 [“When conducting rational basis review

. . . [a] plausible reason for distinguishing between [two groups

of individuals] need not exist in every scenario in which the

statutes might apply”].)

Hardin notes that we have described an aggregate

sentence that fixes parole eligibility outside of an offender’s life

expectancy as the “functional equivalent of a life without parole

sentence.” (Caballero, supra, 55 Cal.4th at p. 268.) But we have

employed that description in the context of identifying the

category of juvenile offenders to whom the Eighth Amendment

limitations on life without parole sentences apply; for that

purpose, what matters is only whether the sentence, by its

nature, forecloses any realistic chance for a juvenile offender to

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

rejoin society. (See People v. Contreras (2018) 4 Cal.5th 349,

368.) We have not held that a lengthy term-of-years sentence is

necessarily equivalent to a life without parole sentence for all

purposes. Nor, more specifically, have we suggested that a set

of crimes punishable by a lengthy term-of-years sentence is

necessarily more culpable, or equivalent in culpability, to a

single crime for which the law prescribes a sentence of life

without parole. It was not irrational for the Legislature to

exclude from youth offender parole eligibility those young adults

who have committed special circumstance murder, an offense

deemed sufficiently culpable that it merits society’s most

stringent sanctions.

V.

In holding that Hardin has not demonstrated that the

exclusion of offenders who are serving sentences of life in prison

without the possibility of parole for a crime committed after the

age of 18 from youth offender parole eligibility is irrational, we

pass no judgment on the validity of any of the other exclusions

set forth in section 3051, subdivision (h). Nor do we resolve here

the constitutionality of section 3051, subdivision (h) as it might

arise in other as-applied challenges based on particular special

circumstances or the factual circumstances of individual cases.

We emphasize, finally, that the question before us

concerns only the constitutional permissibility of the lines the

Legislature has drawn. It is not for us to pass judgment on the

wisdom or desirability of its policy choices. (Chatman, supra, 4

Cal.5th at p. 297.) Recognizing this, every published Court of

Appeal decision other than the decision in this case has upheld

the life without parole exclusion against equal protection

challenge. At the same time, several opinions have taken the

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

additional step of calling on the Legislature to give further

careful consideration to the issue. (See, e.g., In re Murray (2021)

68 Cal.App.5th 456, 464; People v. Morales, supra, 67

Cal.App.5th at p. 349; People v. Jackson, supra, 61 Cal.App.5th

at p. 202 (conc. stmt. of Liu, J.) review den. June 9, 2021,

S267812; id. at pp. 201–202 (conc. opn. of Dato, J.); People v.

Acosta, supra, 60 Cal.App.5th at p. 781; People v. Montelongo

(2020) 55 Cal.App.5th 1016, 1041a (conc. stmt. of Liu, J.) review

den. Jan. 27, 2021, S265597; id. at pp. 1035–1036 (conc. opn. of

Segal, J.); In re Jones (2019) 42 Cal.App.5th 477, 486–487 (conc.

opn. of Pollak, J.).)

That so many judges across the state have taken this step

reflects the significance of this issue. Special circumstance

murder is an unquestionably grave offense, one that exacts an

unimaginable toll on the lives of victims and those the victims

leave behind. But we also know that young people — even

young people who have committed grave offenses — are capable

of significant, sometimes transformative, change over the course

of their lifetimes. To extinguish any hope of release, particularly

for an individual just past the cusp of adulthood, is a form of

retribution that exacts its own price — one borne not just by the

individuals involved, but by their families, by their

communities, and by society as a whole.8

8

In addition to pointing to neuroscience research showing

that all youthful offenders, irrespective of their offense, bear the

mitigating attributes of adolescent cognitive development and

are capable of reform, various amici curiae also caution against

legislative reliance on the special circumstance law given the

geographic, temporal, and racial disparities in its application.

Justice Evans’s dissent, too, argues that the exclusion of

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

We acknowledge our dissenting colleagues’ view that, in

light of these overarching concerns, the Legislature should have

made a different choice. But for us to hold that the Legislature

was constitutionally compelled to do so would require us to set

aside multiple settled rules of constitutional adjudication. As

this court has repeatedly explained, the purpose of these rules

is to ensure that courts act as courts, and allow for the

offenders sentenced to life without parole perpetuates racial

disparities, and that this bias “should inform this court’s mode

of deference.” (Dis. opn. of Evans, J., post, at p. 2.) Hardin

himself, however, has never argued that heightened scrutiny

should apply to the facially neutral section 3051, subdivision (h),

nor has he brought a constitutional claim based on the unequal

or invidious enforcement of the special circumstance law. We do

not here address how claims concerning racial disparities might

be raised or addressed in a different case, whether under the

Equal Protection Clause or under the California Racial Justice

Act of 2020 (Pen. Code, § 745).

Some amici curiae on the other side of the issue argue that,

if we were to find an equal protection violation in section 3051,

subdivision (h), the only possible remedy would be to deny youth

offender parole hearings to all young adult offenders; we could

not instead order that treatment be equalized by granting youth

offender parole hearings to young adults convicted of special

circumstance murder. These amici curiae argue that because

the current version of section 190.2 was enacted by voter

initiative (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7,

1978) § 6), extending parole eligibility to youthful offenders

sentenced to special circumstance murder would constitute an

impermissible amendment by the Legislature. In response,

Hardin contends that the penalty scheme set forth in section

190.2 was first enacted by the Legislature, so the Legislature

remains free to amend the penalties available for special

circumstance murder. We have no occasion to reach this issue,

since Hardin has not established that section 3051’s exclusion of

young adult offenders sentenced to life without parole violates

equal protection.

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PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

development of policy through the democratic process without

putting the Legislature to unwarranted all-or-nothing choices.

“While this court will not condone unconstitutional variances in

the statutory consequences of our criminal laws,” rational basis

review requires us to extend substantial respect to the

Legislature’s judgments, for “ ‘ “ ‘[o]nly by faithful adherence to

this guiding principle of judicial review of legislation is it

possible to preserve to the legislative branch its rightful

independence and its ability to function.’ ” ’ ” (Johnson, supra,

60 Cal.4th at p. 889.)

Our legislative bodies may continue to consider the issue

and how to balance concerns about the severity of certain crimes

with the overarching concern that prompted enactment of the

youth offender parole hearing system and its eventual

expansion to young adult offenders — that is, the recognition of

the potential of young persons for growth and change. We are,

however, mindful that the issue in this case arises in the first

instance because the Legislature chose to expand opportunities

for early parole consideration to many categories of young adult

offenders, even though it was under no constitutional

compulsion to do so. We are also mindful that the legislative

branch is entitled to proceed incrementally, so long as it

proceeds rationally, in “walking [the] tightrope” of the political

process. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 487.) Our

task is limited to determining whether Hardin has shown that

the Legislature’s decision to expand youth offender parole

hearings to most young adult offenders, while excluding Hardin

and others similarly situated, violates equal protection under a

rational basis standard. For reasons explained above, we cannot

so conclude.

45

PEOPLE v. HARDIN

Opinion of the Court by Kruger, J.

VI.

We reverse the judgment of the Court of Appeal.

KRUGER, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

GROBAN, J.

JENKINS, J.

46

PEOPLE v. HARDIN

S277487

Dissenting Opinion by Justice Liu

In a series of statutes over the past decade, the Legislature

has established a parole eligibility process that provides young

people who have committed serious crimes “the opportunity to

obtain release when he or she has shown that he or she has been

rehabilitated and gained maturity.” (Stats. 2013, ch. 312, § 1.)

Although the initial version of the parole scheme applied to

persons serving sentences for crimes committed before age 18,

the Legislature soon expanded eligibility by increasing the age

cutoff, first to 23 and then to 26. In these enactments, the

Legislature repeatedly recognized 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, these individuals can become contributing

members of society” (Stats. 2013, ch. 312, § 1), and that brain

development affecting judgment and decisionmaking “continues

beyond adolescence and into the mid-20’s” (maj. opn., ante, at

p.13 [citing legislative history]).

Parole eligibility is now available to young adult offenders

serving sentences for crimes committed before age 26, but with

exceptions. (Pen. Code, § 3051; undesignated citations are to

the Penal Code.) In 1989, at age 25, appellant Tony Hardin

killed his elderly neighbor in the course of robbing her, and he

was convicted of special-circumstance murder and sentenced to

life imprisonment without the possibility of parole (LWOP). The

parole eligibility scheme from its inception has excluded young

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PEOPLE v. HARDIN

Liu, J., dissenting

offenders sentenced to LWOP. That exclusion has been lifted

for juvenile offenders (§ 3051, subd. (b)(4)), but it still applies to

individuals like Hardin who committed their crimes between

the ages of 18 and 25 (id., subd. (h)), even though it is

undisputed that the Legislature’s concerns about youth

offenders’ diminished culpability and capacity for rehabilitation

are not “crime-specific.” (Miller v. Alabama (2012) 567 U.S. 460,

473 (Miller); see maj. opn., ante, at p. 27.) Hardin says this

exclusion violates equal protection of the laws, and he is right.

Today’s opinion rationalizes the exclusion by imputing to

the Legislature a purpose — calibrating “culpability and the

appropriate level of punishment for certain very serious crimes”

(maj. opn., ante, at p. 26) — that is nowhere stated in the statute

or its legislative history. It then posits that special-

circumstance murder is generally distinguishable from simple

first degree murder in terms of culpability (id. at pp. 33–42)

despite strong evidence to the contrary. According to the court,

nothing more is required under rational basis review.

Although I agree that rational basis review applies to

Hardin’s claim, I disagree with how the court has applied it here.

Today’s opinion ignores the considerable variation and nuance

in our case law applying rational basis review and undertakes

the sort of lax analysis that has become typical “ ‘[i]n areas of

social and economic policy.’ ” (Warden v. State Bar (1999) 21

Cal.4th 628, 644 (Warden).) But the issue in this case is a far

cry from, say, whether the State Bar may exempt retired judges

from continuing education requirements applicable to other

licensed attorneys. (Id. at p. 633.) Hardin, who is Black, is

challenging a law that spells the difference between dying in

prison and having a chance to earn freedom. The law targets a

class of offenders who are overwhelmingly Black or Hispanic,

2

PEOPLE v. HARDIN

Liu, J., dissenting

and whose crimes — no less than the crimes of other youth

offenders — reflect the “transient rashness, proclivity for risk,

and inability to assess consequences” that are characteristic of

young minds still undergoing neurological development.

(Miller, supra, 567 U.S. at p. 472.) In light of today’s decision,

nearly 3,000 inmates continue to be denied any chance to

demonstrate — as no doubt many could — that as mature adults

they are more than the worst thing they ever did in their youth.

We have applied rational basis review more rigorously in

cases with lower stakes. Rational basis review “require[s] the

court to conduct ‘a serious and genuine judicial inquiry into the

correspondence between the classification and the legislative

goals.’ ” (Newland v. Board of Governors (1977) 19 Cal.3d 705,

711 (Newland).) Here, such inquiry reveals that the exclusion

of young offenders convicted of special-circumstance murder is

irrational when measured against the Legislature’s stated

purpose for establishing and expanding youth offender parole

eligibility. And even if we were to impute a purpose of excluding

young offenders who have committed the most serious crimes,

the exclusion of those convicted of special-circumstance murder

does not withstand scrutiny. That is because, as the Court of

Appeal found, they are not meaningfully distinguishable from

young offenders convicted of simple first degree murder, a group

that is parole eligible under the statute.

Today’s opinion concludes by echoing judges throughout

the state who have urged the Legislature to reconsider the

statute. (Maj. opn., ante, at pp. 42–43.) One can hope the

Legislature will take up the invitation, but that is no salve for

what should have happened here. It is indeed imperative that

“courts act as courts” (maj. opn., ante, at p. 45), and in our

system of government, courts are the ultimate guarantor of

3

PEOPLE v. HARDIN

Liu, J., dissenting

constitutional rights against arbitrariness or excesses of

majoritarian rule. Although courts owe deference to the

democratic process, deference is not abdication. Upon a serious

and genuine judicial inquiry, it is evident that the exclusion of

persons convicted of special-circumstance murder from youth

offender parole eligibility does not meet the basic test of

rationality. I respectfully dissent.

I.

While I agree that rational basis review is the appropriate

equal protection standard in this case, today’s opinion largely

ignores the way this standard has been articulated and applied

in our case law. One feature that distinguishes our equal

protection doctrine from its federal counterpart is that the

standards of review under our doctrine are limited to two:

rational basis review and strict scrutiny. (See In re Marriage

Cases (2008) 43 Cal.4th 757, 832.) Unlike the federal courts, we

have declined to adopt intermediate scrutiny as a third standard

of review. (See Hawkins v. Superior Court (1978) 22 Cal.3d 584,

595–603 (conc. opn. of Mosk, J.); id. at pp. 607–610 (conc. opn.

of Bird, C. J.).) This means that rational basis review, in our

doctrine, covers a wide range of cases and must be applied with

nuance and sensitivity if we are to avoid the “rigidity of [a] two-

tiered framework” that “applies either a standard that is

virtually always met [rational basis] or one that is almost never

satisfied [strict scrutiny].” (Id. at p. 598 (conc. opn. of Mosk, J.).)

In the pages that follow, I discuss the rational basis standard in

depth. I regret the length of this discussion, but patient readers

will understand why careful attention to our case law is

essential to proper resolution of Hardin’s equal protection claim.

4

PEOPLE v. HARDIN

Liu, J., dissenting

A.

In Brown v. Merlo (1973) 8 Cal.3d 855 (Brown), we applied

rational basis review and struck down an automobile guest

statute that “deprive[d] an injured automobile guest of any

recovery for the careless driving of his host unless the injury

results from the driver’s willful misconduct or intoxication.” (Id.

at pp. 858–859, citing Veh. Code, former § 17158.) Our opinion

examined the two rationales traditionally offered for the

statute — protecting hospitality and preventing collusive

lawsuits — and rejected both with extensive analysis. As to

protecting hospitality, the court found this rationale

underinclusive in that it “provides no explanation for the

statute’s differential treatment of automobile guests as

distinguished from other guests, or indeed, all other recipients

of hospitality.” (Brown, at p. 864.) Further, we said that any

interest in protecting drivers from claims by “ungrateful” guests

had been undermined by the advent of widespread liability

insurance. (Id. at p. 868; see id. at p. 869 [“a classification which

once was rational because of a given set of circumstances may

lose its rationality if the relevant factual premise is totally

altered”].) As to preventing collusive lawsuits, the court

explained that “it is unreasonable to eliminate causes of action

of an entire class of persons simply because some undefined

portion of the designated class may file fraudulent lawsuits.”

(Id. at p. 875.) “[B]y broadly prohibiting all automobile guests

from instituting causes of action for negligence because a small

segment of that class may file collusive suits, the guest statute

presents a classic case of an impermissibly overinclusive

classification scheme . . . .” (Id. at p. 876.)

The court in Brown did not rationalize the statute’s

underinclusivity by saying that a legislature “may take one step

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PEOPLE v. HARDIN

Liu, J., dissenting

at a time, addressing itself to the phase of the problem which

seems most acute to the legislative mind.” (Williamson v. Lee

Optical of Oklahoma, Inc. (1955) 348 U.S. 483, 489 (Lee

Optical).) Nor did Brown rationalize the statute’s

overinclusivity by saying that a classification does not fail

rational basis review “simply because [it] ‘is not made with

mathematical nicety or because in practice it results in some

inequality,’ ” or that practical problems of government “ ‘may

justify, if they do not require, rough accommodations — illogical,

it may be, and unscientific.’ ” (Dandridge v. Williams (1970) 397

U.S. 471, 485.) In fact, Brown began its discussion of the

rational basis standard by observing that a classification “ ‘must

rest upon some ground of difference having a fair and

substantial relation to the object of the legislation,’ ” (Brown,

supra, 8 Cal.3d at p. 681, italics omitted, quoting Reed v. Reed

(1971) 404 U.S. 71, 76 (Reed).) Although Reed presaged the

development of intermediate scrutiny under federal law (see

Craig v. Boren (1976) 429 U.S. 190, 197–199, 204; Frontiero v.

Richardson (1973) 411 U.S. 677, 682–684, 690–691 (plur. opn.)),

Brown assimilated it into our explication of rational basis

review.

The next year, this court in D’Amico v. Board of Medical

Examiners (1974) 11 Cal.3d 1 (D’Amico) invalidated statutes

that barred persons with osteopathic training (holders of O.D.

degrees) from obtaining a physician’s license available to

persons with allopathic training (holders of M.D. degrees). (Id.

at p. 23.) We began by explaining that rational basis review, not

strict scrutiny, applies to occupational licensing laws. (Id. at

pp. 16–18.) We then noted the Attorney General’s admissions

“(1) that osteopathy, like allopathy, is a complete school of

medicine and surgery whose practitioners successfully engage

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in the full range of activities commonly thought of as

constituting medical science . . . , and (2) that there exists in the

state examining and licensing boards the technical capacity to

screen osteopathic applicants for licensure, as allopathic

applicants are now screened, so as to insure that the people of

the state will be protected from incompetent and unqualified

practitioners.” (Id. at p. 23.) “This showing,” we said,

“demonstrates beyond peradventure of a doubt that there exists

no rational relationship between the protection of the public

health and the exclusion from licensure of all medical

practitioners who . . . hold D.O. rather than M.D. degrees.”

(Ibid.) We further said that in light of the admissions above, the

same result would obtain even if “evidence might show

differences of emphasis and quality between osteopathic

training and allopathic training.” (Id. at p. 24.) We did not posit

that the Legislature could proceed “one step at a time” in

protecting public health (Lee Optical, supra, 348 U.S. at p. 489)

or that the additional cost of screening osteopathic applicants

for licensure could justify the exclusion (cf. Reed, supra, 404 U.S.

at p. 76 [rejecting administrative efficiency as a valid rationale

for an otherwise “arbitrary legislative choice”]).

Three years later, in Newland, supra, 19 Cal.3d 705, we

applied rational basis review and invalidated a statute that

barred persons with a misdemeanor conviction, but not persons

with a felony conviction, from eligibility for a teaching

credential. (Id. at p. 707.) The differential treatment turned on

the fact that one of the statutory eligibility requirements was a

certificate of rehabilitation, which was available to felons but

not misdemeanants. (Ibid.) We speculated that the certificate

requirement “may simply be a case of legislative oversight — a

failure to realize that this requirement would block any relief to

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a misdemeanant.” (Id. at p. 712.) But we did not rest our

reasoning on that ground. Instead, we said “our inquiry must

begin with an identification of the purpose of [the statute] so

that we may determine whether the statutory classification . . .

rationally relates to that purpose.” (Id. at p. 711.) We

determined that the credentialing statute’s purpose was “to

protect the students, faculty and others who might be harmed

by the employment of an unfit teacher.” (Id. at pp. 711–712.)

We then explained: “This statutory discrimination against

misdemeanants can claim no rational relationship to the

protective purpose of [the statute]. . . . The Legislature could

not possibly or sensibly have concluded that misdemeanants, as

opposed to felons, constitute a class of particularly incorrigible

offenders who are beyond hope of rehabilitation.” (Id. at p. 712.)

In applying rational basis review, Newland hewed to the

statute’s clear purpose and evaluated the classification against

that purpose. We did not posit any competing purposes, though

it would have been easy to do so: The state could have had an

interest in minimizing the costs associated with determining

which persons with criminal history have been rehabilitated

and are thus fit to be a teacher. Whereas an existing

mechanism (a certificate of rehabilitation) simplified that

determination for persons with a felony conviction, no such

mechanism existed for persons with a misdemeanor conviction,

a far larger group. Educational institutions, if they wished to

screen such applicants, would have needed to incur the burden

of conducting their own fitness hearings, as Newland

acknowledged. (Newland, supra, 19 Cal.3d at p. 714, fn. 11.)

Had we taken the view that “ ‘[i]f a plausible basis exists for the

disparity, courts may not second-guess its “ ‘wisdom, fairness, or

logic’ ” ’ ” (maj. opn., ante, at p. 23), Newland would have come

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out the other way. But we did not deploy such reasoning. After

canvassing various formulations of the rational basis standard,

we said that “[a]ll of the formulas require the court to conduct ‘a

serious and genuine judicial inquiry into the correspondence

between the classification and the legislative goals’ ” and that

such inquiry demonstrated the unconstitutionality of the

classification at issue. (Newland, at p. 711, italics added.)

The following year, we applied the inquiry as stated in

Newland to invalidate a Vehicle Code provision barring

passengers who own the car in which they were injured from

suing the negligent driver: “[H]aving conducted a ‘serious and

genuine judicial inquiry into the correspondence between the

[statutory] classification and the legislative goals’ [citation to

Newland], we are convinced that the disparate treatment

accorded by the statute is not rationally related to a realistically

conceivable legislative purpose.” (Cooper v. Bray (1978) 21

Cal.3d 841, 855 (Cooper).) From “the origin and legislative

history of the provision,” we found it “rather clear” that “the

provision was not intended to impose special burdens on owner-

passengers but rather proposed to place such owner-passengers

on an equal plane with most other injured automobile

passengers” at a time when the Vehicle Code also barred

recovery by nonpaying automobile guests. (Id. at p. 848.)

Because the court in Brown had since invalidated the

automobile guest statute, the bar on recovery by owner-

passengers no longer “ ‘further[ed] the legislative purpose of

according owner-passengers the same treatment as such guests,

but rather defeat[ed] that purpose by singling out owner-

passengers for differential treatment from all other automobile

accident victims.’ ” (Id. at p. 851.)

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In evaluating the classification against the statute’s

actual purpose, we declined to impute other purposes to the

Legislature, such as an “interest in promoting automobile safety

by encouraging the careful selection and supervision of

permissive drivers by car owners.” (Cooper, supra, 21 Cal.3d at

p. 851.) We found the statute overinclusive with regard to such

an interest because it “bar[red] recovery by all owner-

passengers, including the most careful owners who selected the

most cautious drivers and who scrupulously supervised the

driving.” (Id. at p. 852.) We also explained that if the

Legislature had intended “to encourage care in the selection and

supervision of drivers,” then the statutory exceptions allowing

recovery by owner-passengers for injury caused by a driver’s

intoxication or willful misconduct “obviously make[] no sense.”

(Ibid.) We were unmoved by the dissent’s argument that “the

Legislature, pursuing the clearly legitimate goal of achieving a

fair distribution of liability for damage caused by unreasonable

conduct,” could have reasonably “weighed the conflicting

interests of driver and owner and concluded that the driver

should be protected, given the owner’s selection of, and

supervision over, the driver,” even if this “reasoning was unwise,

or . . . the purpose of the Legislature could have been better

furthered by another means.” (Id. at pp. 857–858 (dis. opn. of

Richardson, J.).)

Our approach in Cooper, Newland, and earlier cases was

consonant with a contemporaneous high court case, United

States Department of Agriculture v. Moreno (1973) 413 U.S. 528

(Moreno), which invalidated a statute excluding households

“containing an individual who is unrelated to any other member

of the household” from food stamp eligibility. (Id. at p. 529.)

Applying rational basis review, the high court quoted the Food

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Stamp Act’s stated purpose “ ‘[t]o alleviate . . . hunger and

malnutrition’ ” among “ ‘low-income households’ ” and

concluded that “[t]he challenged statutory classification . . . is

clearly irrelevant to the stated purposes of the Act.” (Id. at

pp. 533–534.) The court then considered whether “Congress

might rationally” have had an “interest in minimizing fraud in

the administration of the food stamp program.” (Id. at p. 535.)

It rejected this rationale on the grounds that the statute already

contained other antifraud provisions (id. at pp. 536–537) and

that the exclusion of unrelated households “in practical

operation” did not target “persons who are ‘likely to abuse the

program’ ” (id. at p. 538). The court did not posit that Congress

could have desired a belt-and-suspenders approach to

combating fraud. Nor did it accept the generalization that

limiting food stamps to related households “provides a

guarantee . . . that the household exists for some purpose other

than to collect federal food stamps” (id. at p. 546 (dis. opn. of

Rehnquist, J.), citing evidence to the contrary (id. at pp. 537–

538 (maj. opn.)). Like Cooper, Moreno evaluated the

classification against the stated legislative purpose and declined

to impute other purposes, and the high court did not defer to

plausible yet unsubstantiated generalizations, even while

acknowledging that rational basis review “does not require that

every classification be drawn with precise ‘ “mathematical

nicety.” ’ ” (Moreno, at p. 538.)

We continued to apply this mode of analysis in Hays v.

Wood (1979) 25 Cal.3d 772 (Hays), where we invalidated a voter-

enacted disclosure law that required public officials who were

lawyers or brokers to disclose any source of payments equal to

or greater than $1,000, but which required filers with other

business interests to disclose only sources of payments equal to

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or greater than $10,000. (Id. at p. 795.) We again applied

Newland’s formulation of the rational basis inquiry (Hays, at

p. 787) and focused on the legislative purpose stated in “the Act

itself,” i.e., “insuring disclosure of income which may be

materially affected by the official actions of the filing public

official” (id. at p. 788). We recognized that the potential for

conflict of interest is a function of an official’s “actual profits”

derived from business dealings (ibid.) and that providers of

professional services have “substantially greater” profit margins

than business entities that make or sell goods (id. at p. 789).

But this distinction did not justify “special treatment” of lawyers

and brokers as compared to other professionals with comparable

profit margins. (Ibid.) We said this “ ‘underinclusiv[ity]’ ” could

not be justified on the ground that “a legislative body . . . need

not attack all phases [of a problem] at once.” (Id. at p. 790.)

“[W]hen the legislative body proposes to address an area of

concern in less than comprehensive fashion by ‘striking the evil

where it is felt most’ [citation], its decision as to where to ‘strike’

must have a rational basis in light of the legislative objectives.”

(Id. at p. 791.)

We then proceeded to reject four possible bases for

distinguishing lawyers from “all others similarly situated in

terms of profit margin.” (Hays, supra, 25 Cal.3d at p. 792.) It

was argued that lawyers are more likely to have potential

conflicts because they often represent private interests in

dealings with government; we said other professionals may have

a higher volume of clients, making potential conflicts more

frequent. (Id. at pp. 792–793.) It was argued that “the unique

nature” of the lawyer-client relationship, including “habits of

loyalty,” make lawyers more prone to conflict; we said the

professional relationships of physicians and psychotherapists

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are at least as “personal and intense.” (Id. at p. 793.) It was

argued that “the customary practice of many lawyers of

accepting retainers” can serve as “a unique device for

channeling money in payment for public favors”; we said a

“disguised payment for political favor” can occur “in any number

of ways.” (Id. at pp.793, 794.) And it was argued that the public

may perceive a lawyer, “ ‘more so than . . . persons in other

professions,’ ” as promoting client interests when serving as a

public official; we said this was a “curious assertion” that

provided no basis for “significantly different standards of

disclosure for members of different professions.” (Id. at pp. 794,

795.) We thus rejected a series of unsubstantiated assertions en

route to holding that the classification “fails to exhibit any fair

and reasonable relationship to the stated legislative objectives.”

(Id. at p. 795.)

Another case in this line was United States Steel Corp. v.

Public Utilities Commission (1981) 29 Cal.3d 603 (U.S. Steel),

which involved a challenge to a Public Utilities Commission

order exempting commodities carried by private vessels (as

opposed to common carriers) from intrastate minimum shipping

rates. The effect of this order was to make foreign steel cheaper

to transport compared to domestic steel. (Id. at p. 607.) We

annulled the order on the ground that the Commission had

adopted it without having satisfied its statutory duty to “assess

the economic impact of its action,” including whether the

exemption would drive shippers out of business and cost jobs.

(Id. at p. 610.) “To guide the commission in further proceedings”

(ibid.), we went on to discuss the requirements of equal

protection in this context. We again quoted Newland’s

formulation of the rational basis inquiry and observed that

“[t]he aim of minimum rate regulation is to preclude destructive

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rate practices and to provide for movement at the lowest rates

compatible with the maintenance of adequate transportation

service. [Citations.] Rates below the minimum do not serve that

aim absent some showing of a difference in cost in hauling

private-vessel steel as compared with domestic steel, or of a

difference regarding destructive rate practices. There is no

showing here.” (U.S. Steel, at p. 612.) A further argument for

the exemption was that the “difficulty in determining whether

imported steel has arrived via common carrier or private vessel”

would burden “truckers in determining the appropriate rate as

well as on the commission in enforcing minimum rates.” (Id. at

p. 613.) We said this concern was plausible, but “the

commission’s finding as to ‘difficulty’ seems inadequately

supported by the record,” and the equal protection issue could

not be settled “[w]ithout a more complete record.” (Id. at p. 614.)

In sum, we again declined to accept plausible yet

unsubstantiated assertions under rational basis review.

B.

A few years after U.S. Steel, we decided a series of cases

rejecting equal protection challenges to various provisions of the

Medical Injury Compensation Reform Act of 1975 (MICRA).

(See American Bank & Trust Co. v. Community Hospital (1984)

36 Cal.3d 359, 370–374 (American Bank); Barme v. Wood (1984)

37 Cal.3d 174, 181–182 (Barme); Roa v. Lodi Medical Group,

Inc. (1985) 37 Cal.3d 920, 930–931 (Roa); Fein v. Permanente

Medical Group (1985) 38 Cal.3d 137, 161–164 (Fein).) Our

language in those cases featured more deferential formulations

of rational basis review. (See, e.g., American Bank, at p. 371

[“the equal protection clause does not prohibit a Legislature

from implementing a reform measure ‘one step at a time’

[citation], or prevent it ‘from striking the evil where it is felt

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Liu, J., dissenting

most’ ”]; id. at p. 374 [“the constitutionality of a measure under

the equal protection clause does not depend on a court’s

assessment of the empirical success or failure of the measure’s

provisions”].) But we observed that “our application of equal

protection principles in [the MICRA cases] is not inconsistent

with the principles enunciated in [Brown and Cooper] or like

cases. As Cooper explains, . . . what is required is that the court

‘conduct “a serious and genuine judicial inquiry into the

correspondence between the classification and the legislative

goals.” ’ (21 Cal.3d at p. 848 [quoting Newland v. Board of

Governors (1977) 19 Cal.3d 705, 711, italics added in Cooper].)

We have conducted such an inquiry in all of these cases . . . .”

(Fein, at p. 163.)

Fein is illustrative. The plaintiff argued that MICRA’s

$250,000 cap on noneconomic damages violates equal protection

because it “discriminates between medical malpractice victims

and other tort victims” and because it “discriminates within the

class of medical malpractice victims, denying a ‘complete’

recovery of damages only to those malpractice plaintiffs with

noneconomic damages exceeding $250,000.” (Fein, supra, 38

Cal.3d at pp. 161–162.) As to the first contention, we cited our

earlier cases that had extensively examined the legislative

history of MICRA showing that the Legislature, with ample

basis, had targeted medical malpractice cases for reform

because of “an insurance ‘crisis’ in that particular area.” (Fein,

at p. 162, citing American Bank, Barme, and Roa.) As to the

second contention, we said “the Legislature clearly had a

reasonable basis” for seeking cost savings “only by limiting the

recovery of noneconomic damage.” (Fein, at p. 162.) While

acknowledging other plausible means of distributing cost

savings across malpractice plaintiffs, we explained that the size

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and unpredictability of noneconomic damages awards rationally

justified the Legislature’s approach. (Id. at pp. 162–163.) We

noted that “the unpredictability of the size of large noneconomic

damage awards” was “[o]ne of the problems identified in the

legislative hearings” (id. at p. 163), and we cited legal

scholarship and an American Bar Association report to show

that the issue was one on which “reasonable persons can

certainly disagree” (id. at p. 160; see id. at pp. 159–160 &

fns. 16–17). Fein did not rely on imputed legislative purposes or

unsubstantiated assertions to uphold the challenged provision.

A subsequent case, Warden, supra, 21 Cal.4th 628, marks

perhaps our most deferential application of rational basis

review. We rejected an equal protection challenge to an

exemption for retired judges, elected officials, and law professors

from continuing education requirements that are generally

applicable to practicing attorneys. (Id. at p. 634.) We said “it

would not have been irrational to conclude that the attorneys in

each of the exempted categories, as a general matter, are less

likely than other attorneys to represent clients on a full-time

basis, thus rendering the need for a continuing education

requirement less vital,” and that “in view of their particular

professional roles and experience, the attorneys in each of the

exempt classes (again, as a general matter) are less likely than

lawyers in general to need continuing education courses in order

to be familiar with recent legal developments or to remain

competent practitioners.” (Id. at pp. 645–646.)

The Court of Appeal had observed that there was “ ‘no

support’ in the legislative history . . . to indicate that these were

the actual explanations of the rationale or motivation for the

adoption of the exemptions.” (Warden, supra, 21 Cal.4th at

pp. 649–650.) Citing federal case law, we said that “when there

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Liu, J., dissenting

is a reasonably conceivable justification for a classification, ‘[i]t

is . . . “constitutionally irrelevant whether [the] reasoning in fact

underlay the legislative decision.” ’ ” (Id. at p. 650, quoting

United States Railroad Retirement Board. v. Fritz (1980) 449

U.S. 166, 179.) We also said, citing federal case law, that “ ‘a

legislative choice . . . may be based on rational speculation

unsupported by evidence or empirical data’ ” (Warden, at p. 650,

italics added, quoting Federal Communications Commission v.

Beach Communications, Inc. (1993) 508 U.S. 307, 315 (Beach

Communications) and that “ ‘reform may take one step at a

time’ ” (Warden, at p. 645, quoting Lee Optical, supra, 348 U.S.

at p. 489).

As two dissenting Justices observed, Warden relied

heavily on federal authority in elaborating a highly deferential

rational basis test without grappling with the fact that whereas

it is one of three levels of scrutiny in federal equal protection

doctrine, our own case law “has not slavishly followed decisions

of the federal high court” and has never adopted intermediate

scrutiny. (Warden, supra, 21 Cal.4th at pp. 652–653 (dis. opn.

of Kennard, J.); id. at p. 661 (dis. opn. of Brown, J.) [“Our state

equal protection jurisprudence grew out of a recognition of the

inadequacy of federal standards.”].) Justice Brown noted that

our decision in Hays had “expressly rejected” Lee Optical in

saying that “ ‘the legislative body, when it chooses to address a

particular area of concern in less than comprehensive fashion by

merely “striking the evil where it is felt most” [citation] may not

do so wholly at its whim.’ [Citation.] Rather ‘its decision as to

where to “strike” must have a rational basis in light of the

legislative objectives.’ ” (Warden, at p. 664 (dis. opn. of Brown,

J.), quoting Hays, supra, 25 Cal.3d at pp. 790, 791.) “[O]ur state

Constitution insists on greater precision . . . . Rather than

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merely ‘rubberstamping’ the legislative categories at issue here,

we should be engaging in ‘ “a serious and genuine judicial

inquiry into the correspondence between the classification and

the legislative goals” ’ (Newland v. Board of Governors, supra,

19 Cal.3d at p. 711), and, more particularly, we should be asking

whether the legislative classifications substantially advance the

legislative purposes without being ‘grossly overinclusive’ or

‘underinclusive.’ (Brown v. Merlo, supra, 8 Cal.3d at p. 877 &

fn. 17.)” (Warden, at pp. 664–665 (dis. opn. of Brown, J.).)

Warden made clear that the standards it elaborated apply

“ ‘[i]n areas of social and economic policy’ ” (Warden, supra, 21

Cal.4th at p. 644, quoting Beach Communications, supra, 508

U.S. at p. 313), and issues such as continuing legal education

requirements or the definition of a “cable system” (Beach

Communications, at pp. 310–311) are paradigmatic examples.

Warden’s deferential language has seeped into our case law

addressing equal protection challenges to criminal statutes,

with no examination of how our doctrine has evolved differently

from its federal counterpart. (See People v. Turnage (2012) 55

Cal.4th 62, 75, 79 (Turnage); People v. Johnson (2015) 60 Cal.4th

871, 887 (Johnson); People v. Chatman (2018) 4 Cal.5th 277, 289

(Chatman).) But even in those cases, we have not actually

employed the full extent of deference that Warden’s language

contemplates.

In Turnage, we upheld a statute allowing felony treatment

of placing a false bomb without proof of causing sustained fear,

even though a separate statute requires proof of sustained fear

for felony treatment of placing a false weapon of mass

destruction (WMD). (Turnage, supra, 55 Cal.4th at pp. 67–68.)

We said the differential treatment was rational because “[i]t is

conceivable from a legislative perspective” that false WMDs,

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Liu, J., dissenting

unlike false bombs, “would not necessarily be recognized or

cause fear, even where it is detected and was intended to do so.”

(Id. at p. 68.) But this rationale was not merely “conceivable”;

the history of the false WMD statute implied that the

Legislature had actually considered it. Extensively citing a

Senate committee report, we observed that “[t]he new false

WMD statute was said to be inspired by the false bomb statute”

(id. at p. 79) and that “in acknowledging the similarity between

the ‘wobbler’ provisions of [the false WMD statute] and [the false

bomb statute], the Legislature implied that it was aware of the

substance of the latter statute, that proof of sustained fear was

not required in felony false bomb cases, and that both felonies

nonetheless involved the same level of ‘violent’ fear. . . . In other

words, a showing of sustained fear for felonies under the false

WMD statute was necessary to reflect the same level of violent

fear that the Legislature assumed was present in false bomb

cases . . . .” (Id. at p. 80.) “[T]he Senate Report implicitly shows

a rational connection between the disparate role of sustained

fear in the false bomb and false WMD statutes, and the purpose

such disparity was apparently meant to serve.” (Id. at pp. 79–

80.)

In Johnson, we upheld a statutory scheme allowing

discretionary sex offender registration for persons convicted of

unlawful sexual intercourse with a minor, while imposing

mandatory registration for persons convicted of crimes involving

other sexual acts with a minor, including nonforcible oral

copulation. (Johnson, supra, 60 Cal.4th at pp. 874–875.) We

said that “intercourse is unique in its potential to result in

pregnancy and parenthood. Given that unique potential,

legislative concerns regarding teen pregnancy and the support

of children conceived as a result of unlawful sexual intercourse

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provide more than just a plausible basis for” the disparate

treatment. (Id. at p. 875.) This rationale was not hypothetical.

We examined the history of the statute against unlawful sexual

intercourse and observed that the Legislature, by separating

this offense from the general rape statute, “sought to eliminate

. . . the social stigma associated with the rape label so that

offenders could more readily obtain employment and support

children conceived as a result of such intercourse. [Citations to

legislative history.] This history confirms that the potential for

pregnancy and parenthood has, in fact, influenced legislative

decisionmaking regarding unlawful intercourse with minors.”

(Id. at p. 885; see ibid. [citing subsequent legislative concerns

about teen pregnancy and birth rates resulting from unlawful

sexual activity between adult males and teenage girls, and

implications for public welfare and health care expenses].) We

said this actual legislative concern provided a rational basis for

allowing trial courts not to order registration where it “might

cause economic or other hardship to a child born to the minor

victim and the adult offender,” while requiring registration for

persons convicted of other unlawful sexual activity with minors.

(Id. at p. 886.)

Similarly, in Chatman, we upheld a statute barring

former probationers but not former prisoners from eligibility for

a certificate of rehabilitation in certain circumstances.

(Chatman, supra, 4 Cal.5th at pp. 282–283.) Our analysis

focused on the state’s interest in avoiding the costs associated

with extending certificates of rehabilitation to former

probationers, a group much larger than former prisoners. (Id.

at pp. 291–292.) Although we said the rationale for a legislative

classification need not have been articulated by lawmakers and

does not need to be empirically substantiated (id. at p. 289), in

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Liu, J., dissenting

fact we observed that legislative history “provide[s] at least

some indication that this cost concern figured in legislative

deliberations” (id. at p. 292), and we went on to cite “data” that

substantiated the cost concern (id. at p. 293). In other words,

Chatman addressed what appeared to be the actual rationale for

the classification and found it had some empirical support. (See

also People v. Wilkinson (2004) 33 Cal.4th 821, 834, 839

[legislative history showed rationale for statute allowing

potentially harsher treatment of battery on a custodial officer

without injury than such battery with injury].)

C.

In sum, this court’s articulation and application of rational

basis review has not marched in lock step with federal authority.

Our approach is deferential but far from toothless; our case law,

though not entirely uniform, reveals several recurring themes:

In conducting “ ‘a serious and genuine judicial inquiry into the

correspondence between the classification and the legislative

goals’ ” (Newland, supra, 19 Cal.3d at p. 711), we have focused

on actual legislative purposes instead of imputing hypothetical

ones, and we have looked for empirical support instead of relying

on conjecture or unsubstantiated assertions. Although we “do

not require absolute precision in the designation of

classifications,” we also “do not tolerate classifications which are

so grossly overinclusive as to defy notions of fairness or

reasonableness.” (Brown, supra, 8 Cal.3d at p. 877.) And while

the Legislature may proceed incrementally, we have said it

must do so rationally in light of the legislative objectives and

“not . . . wholly at its whim.” (Hays, supra, 25 Cal.3d at p. 790.)

Today’s opinion ignores this case law and claims that I am

offering “an argument for reconsidering rational basis review.”

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(Maj. opn., ante, at p. 23, fn. 3.) To the contrary, it is the court’s

refusal to consider, not reconsider, our precedent that is the

problem here. The principles above have sturdy foundations in

what our cases say and, perhaps more importantly, in what they

actually do. Although Warden took a more deferential approach,

today’s opinion does not cite Warden for an obvious reason: We

are not dealing with a matter at all similar to who is or isn’t

subject to continuing legal education requirements. The case

before us concerns which young offenders will be condemned to

die in prison and which will have a meaningful chance to earn

release. Instead of measuring the challenged classification

against the Legislature’s stated purpose in enacting the youth

offender parole statute, today’s opinion upholds the exclusion of

young offenders convicted of special circumstance murder by

imputing a different purpose that is nowhere mentioned in the

statute’s text or legislative history, and that even on its own

terms does not provide a rational basis for treating the excluded

group differently from young offenders convicted of first degree

murder. The court’s reasoning cannot sustain the result here.

II.

The provision at issue — section 3051, subdivision (h) —

is part of the youth offender parole statute enacted by the

Legislature in 2013. I begin with some background on the

statute and then explain its constitutional infirmity.

A.

The Legislature made clear the purpose of section 3051 in

the statute itself. Its opening provision, as originally enacted,

says in full: “The Legislature recognizes that youthfulness both

lessens a juvenile’s moral culpability and enhances the prospect

that, as a youth matures into an adult and neurological

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development occurs, these individuals can become contributing

members of society. The purpose of this act is to establish a

parole eligibility mechanism that provides a person serving a

sentence for crimes that he or she committed as a juvenile the

opportunity to obtain release when he or she has shown that he

or she has been rehabilitated and gained maturity, in

accordance with the decision of the California Supreme Court in

People v. Caballero (2012) 55 Cal.4th 262 and the decisions of

the United States Supreme Court in Graham v. Florida (2010)

560 U.S. 48 [(Graham)], and Miller v. Alabama (2012) [567 U.S.

460]. Nothing in this act is intended to undermine the

California Supreme Court’s holdings in In re Shaputis (2011) 53

Cal.4th 192, In re Lawrence (2008) 44 Cal.4th 1181, and

subsequent cases. It is the intent of the Legislature to create a

process by which growth and maturity of youthful offenders can

be assessed and a meaningful opportunity for release

established.” (Stats. 2013, ch. 312, § 1 [Sen. Bill No. 260].) The

only references to culpability in the statute are the Legislature’s

recognition of the diminished culpability of youth (ibid.) and the

mandate that any psychological evaluations or risk assessments

used by the parole board “shall take into consideration the

diminished culpability of youth as compared to that of adults”

(§ 3051, subd. (f)(1)).

Subsequently, in light of more “[r]ecent scientific evidence

on adolescent and young adult development and neuroscience

show[ing] that certain areas of the brain — particularly those

affecting judgment and decision-making — do not fully develop

until the early- to mid-20s” (Sen. Com. on Public Safety, Rep. on

Sen. Bill No. 261 (2015–2016 Reg. Sess.) Apr. 28, 2015, p. 3), the

Legislature amended the parole eligibility scheme — first, to

include youth offenders who committed crimes before the age of

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Liu, J., dissenting

23 (Stat. 2015, ch. 471, § 1, Sen. Bill No. 261 (2015–2016 Reg.

Sess.) § 1), and then, to include offenders who committed crimes

before age 26 (Stat. 2017, ch. 675, § 1, Assem. Bill No. 1308

(2017–2018 Reg. Sess.) § 1). A committee report on the latter

bill states: “The rationale, as expressed by the author and

supporters of this bill, is that research shows that cognitive

brain development continues into the early 20s or later. The

parts of the brain that are still developing during this process

affect judgment and decision-making, and are highly relevant to

criminal behavior and culpability. (See Johnson, et al.,

Adolescent Maturity and the Brain: The Promise and Pitfalls of

Neuroscience Research in Adolescent Health Policy, Journal of

Adolescent Health (Sept. 2009); National Institute of Mental

Health, The Teen Brain: Still Under Construction (2011).) ‘The

development and maturation of the prefrontal cortex occurs

primarily during adolescence and is fully accomplished at the

age of 25 years. The development of the prefrontal cortex is very

important for complex behavioral performance, as this region of

the brain helps accomplish executive brain functions.’ [Citation

to Arain et al., Maturation of the Adolescent Brain (2013) 9

Neuropsychiatric Disease & Treatment 449.]” (Sen. Rules Com.,

Off. of Sen. Floor Analyses, Analysis of Assem. Bill No. 1308

(2017–2018 Reg. Sess.) Sept. 4, 2017, pp. 4–5.)

As today’s opinion acknowledges, “No one doubts that the

Legislature’s primary purpose in expanding section 3051 to

include young adult offenders was to give these young persons

the opportunity to obtain release based on demonstrated growth

and rehabilitation.” (Maj. opn., ante, at p. 26.) “The Legislature

enacted section 3051 to bring California juvenile sentencing law

into line with Graham, Miller, and Caballero.” (Id. at p. 11.)

Relying “not only on common sense — on what ‘any parent

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Liu, J., dissenting

knows’ — but on science and social science,” those cases explain

that juveniles have an underdeveloped sense of responsibility,

vulnerability to negative influences and outside pressures, lack

of control over their own environment, and transitory traits that

are not fixed but developing — all of which mitigate their

culpability and point to their capacity for rehabilitation. (Miller,

supra, 567 U.S. at p. 471.) These attributes of youth also

diminish the traditional penological justifications of retribution,

deterrence, and incapacitation. (See id. at p. 472; Graham,

supra, 560 U.S. at pp. 71–73.) As indicated in the legislative

history, the Legislature had these concerns not only about

juveniles but also about young adults under the age of 26.

Further, there is no dispute that the scientific evidence

cited by the Legislature applies to young offenders across the

board. Nothing about the “distinctive (and transitory) mental

traits and environmental vulnerabilities” of youth offenders “is

crime-specific” (Miller, supra, 567 U.S. at p. 473), and the

Legislature nowhere suggested that young offenders who

commit certain crimes, including crimes punishable by LWOP,

are immune to those vulnerabilities or incapable of reform.

There is also no dispute that providing young offenders with a

meaningful opportunity for release in light of their capacity for

change is the only purpose stated by the Legislature in creating

and expanding the parole scheme. No other purpose is stated in

the statute or legislative history.

The implications for equal protection analysis are

straightforward, as the Court of Appeal discerned: “[I]f, 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,

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Liu, J., dissenting

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

distinguishing between same-age offenders based solely on the

crime they committed.” (People v. Hardin (2022) 84 Cal.App.5th

273, 288 (Hardin).) Just as there was no rational basis for

excluding persons with misdemeanor convictions from eligibility

for a teaching credential in Newland, or for excluding

osteopathic applicants from eligibility for medical licensure in

D’Amico, or for imposing more onerous disclosure rules on

lawyers than on other professionals in Hays, or for excluding

unrelated households from food stamp eligibility in Moreno,

there is no rational basis here for excluding inmates convicted

of special-circumstance murder from youth offender parole

eligibility. In each of the cited cases, the court evaluated the

classification against “the primary purpose” (maj. opn., ante, at

p. 26) of the statute and found the classification inconsistent

with that purpose. Those decisions did not impute additional,

unstated purposes that might have justified the challenged

classifications.

Nor did those decisions rely on the notion that legislative

bodies may proceed incrementally or train their attention

wherever they feel it is needed most. In Hays, we made clear

that when a legislature “chooses to address a particular area of

concern in less than comprehensive fashion,” “its decision as to

where to ‘strike’ must have a rational basis in light of the

legislative objectives.” (Hays, supra, 25 Cal.3d at p. 791.) To be

sure, equal protection doctrine gives legislators ample leeway to

avoid “all-or-nothing choices.” (Maj. opn., ante, at p. 45.) But if

the rational basis standard could be met by observing that the

challenged legislation reflects a political compromise, then

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Liu, J., dissenting

virtually no enacted policy would ever fail rational basis review.

The Court of Appeal here rejected the argument that the

exclusion should be upheld “on the general principle that, when

addressing a problem, the Legislature may choose to proceed

incrementally,” aptly noting that “ ‘the fact that a line has to be

drawn somewhere does not justify its being drawn anywhere.’ ”

(Hardin, supra, 84 Cal.App.5th at pp. 290, 291.)

B.

In reaching today’s holding, the court says the Legislature

had a second purpose when it expanded youth offender parole

eligibility to include young adult offenders: “[T]he structure and

history of the [parole eligibility] expansion make clear that the

Legislature sought to balance [its] primary objective with . . .

concerns about culpability and the appropriate level of

punishment for certain very serious crimes.” (Maj. opn., ante,

at p. 26.) Presumably the court points to “structure and history”

because the text of the original statute focuses solely on the

diminished culpability of youth and their capacity for

rehabilitation, and nothing in the text of the original statute or

subsequent expansions indicates concerns about culpability or

appropriate punishment for serious crimes. But neither

structure nor history helps the court’s argument either.

As for history, the court says “the legislative history

accompanying the amendments [expanding parole eligibility]

confirms that [crime-based distinctions] were deliberate

choices.” (Maj. opn., ante, at p. 26.) That is true, but I see no

probative value in quotations from legislative history observing

that the Legislature through multiple rounds of statutory

amendments retained distinctions based on the crime

committed. (Id. at pp. 26–27.) Those quotations simply describe

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Liu, J., dissenting

what the statute does; they shed no light on the Legislature’s

rationale for the distinctions it drew. (Cf. Cooper, supra, 21

Cal.3d at p. 854 [“a suggested legislative purpose” of protecting

negligent drivers from liability to owner-passengers “does no

more than restate the terms of the statute itself and [does not]

indicate[] the general goal which the Legislature ostensibly

intended to promote in providing such ‘protection’ at owner-

passengers’ expense”].)

As for structure, the court notes that the statute provides

for parole eligibility during a youth offender’s 15th, 20th, or 25th

year of incarceration depending on the controlling offense. (Maj.

opn., ante, at p. 27; see § 3051, subd. (b).) Based on the fact that

“the Legislature consciously drew lines that altered the parole

component of offenders’ sentences based not only on the age of

the offender (and thus the offender’s amenability to

rehabilitation) but also on the offense and sentence imposed,”

the court infers that those lines “necessarily reflect a set of

legislative judgments about the nature of punishment that is

appropriate for the crime.” (Maj. opn., ante, at p. 27.) As the

Court of Appeal explained, this “superficially plausible”

inference is implausible when one considers the role of the

controlling offense in the parole scheme. (Hardin, supra, 84

Cal.App.5th at p. 289.)

The statute defines “ ‘controlling offense’ ” as “the offense

or enhancement for which any sentencing court imposed the

longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).) The

timing of parole eligibility is keyed to a person’s controlling

offense, not to the number of offenses or the aggregate sentence.

(Id., subd. (b).) This means that a young adult offender serving

an aggregate term of 85 years plus 189 years to life for two first

degree murders, six attempted premeditated murders, various

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Liu, J., dissenting

gang and firearm enhancements, and other crimes (People v.

Harris (Dec. 5, 2019, B288611) [nonpub. opn.]) is eligible for

parole on the same timeline as a young adult offender serving

25 years to life for a single count of first degree murder (§ 190,

subd. (a)). It means that a young adult offender serving 80 years

to life for two gang-related attempted premeditated murders

with firearm enhancements (People v. Itehua (June 30, 2016,

B265575) [nonpub. opn.]) is eligible for parole on the same

timeline as a young adult offender convicted of a single

attempted murder with a 25-year firearm enhancement

(§ 12022.53, subd. (d)). And it means a young adult offender

sentenced to more than 100 years to life for six attempted

premeditated murders, mayhem, gang enhancements, and

multiple firearm offenses and enhancements (People v. Jimenez

(Apr. 20, 2007, B192157) [nonpub. opn.]) is eligible for parole on

the same timeline as a young adult offender convicted of a gang-

related felony in which an accomplice shot and injured a victim

(§ 12022.53, subd. (e)(1)). What legislature “concern[ed] about

culpability and the appropriate level of punishment for certain

very serious crimes” (maj. opn., ante, at p. 26) would write a

statute with these results?

Today’s opinion says “the statute’s ‘controlling offense’

framework does rely on a certain amount of generalization about

the relationship between the lengthiest individual sentence the

offender has received and the culpability of the underlying

criminal conduct.” (Maj. opn., ante, at p. 30.) I suppose “a

certain amount of generalization” is in the eye of the beholder,

but consider: There are literally thousands of sentences

encompassed by the provision establishing parole eligibility in

the 25th year of incarceration for young adult offenders whose

controlling offense carries a term of 25 years to life. (§ 3051,

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Liu, J., dissenting

subd. (b)(3).) The examples above are easily multiplied. (See,

e.g., People v. Sepulveda (2020) 47 Cal.App.5th 291, 295–297 [90

years to life for first degree murder, three counts of attempted

premeditated murder, drive-by shooting, and firearm and gang

enhancements, committed before age 22]; People v. Jones (Dec.

30, 2020, E073115) [nonpub. opn.] [50 years to life sentence for

single count of first degree murder with firearm and gang

enhancements, committed at age 18]; People v. Kennedy (Jan.

15, 2020, B264661) [nonpub. opn.] [“sentence of life, plus 173

years and eight months,” for second degree murder, four counts

of attempted premeditated murder, shooting at an occupied

vehicle, and gang and firearm enhancements, committed at age

22]; People v. Windfield (Jan. 15, 2020, E055062) opn. ordered

nonpub. Apr. 22, 2020, S260848 [90 years to life for first degree

murder, attempted premeditated murder, assault with a

semiautomatic weapon, and gang and firearm enhancements,

committed before age 23]; People v. Rakisits (Apr. 12, 2018,

B280133) [nonpub. opn.] [40 years to life for single count of

second degree murder with firearm enhancement, committed at

age 18].) To say that “the culpability of the underlying criminal

conduct” in all of these cases is “ ‘ “rough[ly]” ’ ” the same goes

well beyond “ ‘ “any gross generalizations.” ’ ” (Maj. opn., ante,

at p. 30.) It is simply irrational.

The Legislature presumably knew that the cases covered

by section 3501, subdivision (b)(3) span a vast range of

culpability based on the type and number of crimes committed

and enhancements charged, especially in light of the 25 years-

to-life firearm enhancement (§ 12022.53, subds. (d), (e)(1)),

which applies to a wide range of crimes. (See In re Greg F. (2012)

55 Cal.4th 393, 407 [“The Legislature is presumed to be aware

of all laws in existence when it passes or amends a statute.”]; cf.

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Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308

(2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 4 [noting

that the parole board “held 2,519 youth offender hearings”

during the first three years of section 3051’s implementation].)

Yet the Legislature chose to establish a uniform rule of parole

eligibility in the 25th year of incarceration for this large and

varied group of young offenders. As Hardin contends, that rule

is untethered to relative culpability. Today’s opinion does not

explain why the Legislature would have fixated on relative

culpability in its treatment of young adult offenders serving

LWOP sentences when it was clearly indifferent to the relative

culpability of young adult offenders serving non-LWOP

sentences ranging from a single term of 25 years to life up to a

wide array of de facto LWOP sentences. (See Cooper, supra, 21

Cal.3d at p. 852 [rejecting putative rationale for a classification

because it did not cohere with other parts of the statute];

Moreno, supra, 413 U.S. at pp. 536–537 [same].)

The court says considerations of “the appropriate

punishment for the underlying crimes, depending on their

severity,” are “not dissimilar from the considerations that

prompted the high court [in Miller] to distinguish, for Eighth

Amendment purposes, between sentencing juveniles for

homicide offenses and sentencing juveniles for nonhomicide

offenses.” (Maj. opn., ante, at p. 28.) But the line drawn here

between LWOP and non-LWOP sentences does not track the

line between homicide and nonhomicide offenses. And more

fundamentally, the import of Miller is that juvenile sentencing

even for the most severe crimes must be bounded by what is

known about young offenders’ capacity for change. Miller held

that life without parole may be imposed on juvenile homicide

offenders only on “ ‘rare’ ” occasions based on an individualized

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Liu, J., dissenting

sentencing determination that “take[s] into account how

children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.” (Miller,

supra, 567 U.S. at pp. 479, 480.) The Legislature, aware of

Miller, determined that young offenders’ transient traits and

capacity for change extend through age 25. Denying parole

eligibility to a subset of young offenders on the ground that their

culpability categorically trumps their potential for

rehabilitation is plainly “dissimilar” (maj. opn., ante, at p. 28)

from Miller’s emphasis on individualized sentencing

determinations to account for youth-related vulnerabilities.

At bottom, the court says that assessing culpability on the

basis of aggregate sentences or underlying criminal conduct is

“not the only possible way[] to evaluate culpability. That the

Legislature may have prescribed a measurement of culpability

different from Hardin’s does not mean the Legislature was not

attempting to measure culpability at all.” (Maj. opn., ante, at

p. 31.) But it is not Hardin’s measurement of culpability that

the “controlling offense” framework displaces. It is the

Legislature’s own measurements of culpability written into the

Penal Code, including prescribed sentences for certain crimes

and enhancements, as well as requirements for consecutive

sentencing. (E.g., §§ 190, subd. (a), 186.22, subd. (b)(1),

12022.53, subds. (b)–(e).) Notably, the court contends that the

Legislature leaned into its own measurement of culpability in

the special circumstances law (§ 190.2) when it excluded persons

like Hardin from parole eligibility. (Maj. opn., ante, at p. 41

[there is no crime that is “more serious, or that trigger[s] more

severe punishment, than special circumstance murder”]; see id.

at pp. 33–34.) And yet, the court would have us believe that the

Legislature elsewhere in section 3051 simply ditched the

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Liu, J., dissenting

multitude of culpability measurements it has made throughout

the remainder of the Penal Code in favor of a three-tiered

measurement of culpability based only on an offender’s crime or

enhancement with the longest sentence. (See id. at pp. 30–31.)

There is a far simpler explanation: In enacting and

expanding section 3051, the Legislature was not in the business

of measuring culpability at all, apart from recognizing the

diminished culpability of young offenders across the board. The

statute’s text and history make clear that the Legislature’s

purpose was to recognize the developmental vulnerabilities of

young offenders and provide them a chance to earn release by

demonstrating growth and change. As Hardin says, the parole

scheme simply reflects the Legislature’s general calibration as

to how much time is needed for rehabilitation based on a young

person’s most serious offense, keeping in mind that eligibility for

parole does not mean release. The tiered scheme embodies a

legislative judgment that while the attributes of youth are not

crime-specific, young people who commit more serious offenses

generally require more time for rehabilitation, while young

people who commit less serious offenses require less.

This view readily explains the flattening of myriad

gradations of crimes and underlying conduct into three tiers of

parole eligibility. Within a given tier, committing more crimes

typically results in greater harm and culpability, but in view of

the science on which the Legislature relied, it does not typically

indicate less potential for growth and rehabilitation. Moreover,

the 15-, 20-, and 25-year benchmarks are not random numbers;

they track the steeply declining risk of offending as people

mature beyond early adulthood. (See Lofstrom et al., Pub.

Policy Institute of Cal., Are Younger Generations Committing

Less Crime? (2023) p. 8, figure 1 [California age-crime curves

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Liu, J., dissenting

showing that violent felony arrest rates decline significantly as

people mature into their 30s and 40s].) This commonsense

understanding of the eligibility framework, unlike the court’s

culpability rationale, is tethered to the Legislature’s stated

purpose of providing young offenders with an opportunity for

release in light of their diminished culpability and capacity for

change.

Finally, the court says “[t]he most natural” inference is not

that the Legislature “enacted a statute at odds with its own

rehabilitative ends” but that it was “attempting to pursue other

‘ “(perhaps even contrary) ends as well.” ’ ” (Maj. opn., ante, at

p. 28.) Similar reasoning could have been deployed in Newland,

D’Amico, Cooper, Moreno, and other cases. But Newland and

D’Amico did not infer a cost-saving purpose for the exclusions at

issue, Cooper did not accept an owner-negligence rationale for

barring suits by owner-passengers against permissive drivers,

and Moreno did not infer a fraud prevention purpose for

excluding unrelated households from food stamps. In each case,

the court measured the classification against the express or

primary purpose of the statute and did not hesitate to find the

“statute at odds with its own . . . ends.” (Maj. opn., ante, at

p. 28.) The court simply ignores this case law in claiming its

view of the statute is “[t]he most natural.” (Ibid.)

It is easy to posit that the exclusion here reflects a

legislative assessment of culpability and proper punishment;

the court even says this is “necessarily” what the Legislature

thought. (Maj. opn., ante, at pp. 27, 32.) But there is not a single

mention of such an assessment in the repeated consideration of

this legislation. In contrast to the clear statements of

rehabilitative aims, nothing in the legislative record states that

young adult offenders serving LWOP are categorically more

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Liu, J., dissenting

culpable than their parole-eligible peers serving de facto LWOP

or other lengthy sentences for very serious crimes. It is not hard

to imagine that such a claim, had it been asserted, would have

invited skepticism (see post, at pp. 36–41) as well as heightened

attention to the racial skew of the affected group and its

traceability to a history of racially inflected tough-on-crime

policies. (See dis. opn. of Evans, J., post, at p. 16 [“The LWOP

exclusion perpetuates extreme racial disparities in our criminal

and juvenile justice systems.”]; Com. on Revision of the Pen.

Code, Annual Report and Recommendations (2021), at pp. 51,

figure 24, 53 [among California LWOP inmates who were under

age 26 at the time of the offense, 86 percent are people of color

and 76 percent are Black or Latinx]; cf. Hetey & Eberhardt,

Racial Disparities in Incarceration Increase Acceptance of

Punitive Policies (2014) 25 Psychological Science 1949 [field

study showing that awareness of extreme racial disparities in

prison population made voters more accepting of punitive

policies and less likely to support reform].)

The Legislature did not say why it excluded persons like

Hardin, and we should not paper over this lacuna by imputing

a purpose that the Legislature never had. As in past cases, we

should take the Legislature’s actual statement of purpose at its

word. Doing so, I would hold that the exclusion “fails to exhibit

any fair and reasonable relationship to the stated legislative

objective.” (Hays, supra, 25 Cal.3d at p. 795.)

III.

Even if we were to assume that the Legislature had

concerns about culpability and appropriate punishment when it

excluded young adults convicted of special circumstance murder

from parole eligibility, we must still inquire whether such

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