# People v. Hardin

> California Supreme Court · March 4, 2024

URL: https://www.frixlaw.com/law-library/cases/9947370

## Case

- **Court:** California Supreme Court
- **Decided:** March 4, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Opinion of the Court by Kruger, J.

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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PEOPLE v. HARDIN
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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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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PEOPLE v. HARDIN
Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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PEOPLE v. HARDIN
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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PEOPLE v. HARDIN
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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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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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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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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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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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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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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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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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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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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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.

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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.

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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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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,

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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

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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.

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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

5
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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Liu, J., dissenting

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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Liu, J., dissenting

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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Liu, J., dissenting

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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Liu, J., dissenting

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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Liu, J., dissenting

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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Liu, J., dissenting

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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PEOPLE v. HARDIN
Liu, J., dissenting

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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PEOPLE v. HARDIN
Liu, J., dissenting

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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PEOPLE v. HARDIN
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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PEOPLE v. HARDIN
Liu, J., dissenting

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 th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9947370. Public record. Not legal advice.