Opinion
D074098
04-06-2020
The PEOPLE, Plaintiff and Respondent, v. Jeremiah Ira WILLIAMS, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts A, B, C, D, & F.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, Acting P. J. A jury found defendant Jeremiah Ira Williams guilty of first degree robbery ( Pen. Code, §§ 211 & 212.5, subd. (a), count 1); four counts of making a criminal threat (§ 422, counts 2, 8, 9 & 11); two counts of forcible rape (§ 261, subd. (a)(2), counts 3 & 6); sexual penetration by use of force (§ 289, subd. (a), count 4); forcible oral copulation (former § 288a, subd. (c)(2)(A), count 5); burglary of an inhabited dwelling (§§ 459 & 460, subd. (a), count 7); battery and assault, as lesser offenses of sodomy by use of force (§§ 240 & 242, count 10); assault with a deadly weapon (§ 245, subd. (a)(1), count 12); and false imprisonment by violence (§§ 236 & 237, subd. (a), count 13). Counts 1-8 were committed against Jane Doe 1; and counts 9-13 were committed against Jane Doe 2.
All further statutory references are to the Penal Code unless otherwise noted.
Effective January 1, 2019, former section 288a was renumbered to section 287. (Stats. 2018, ch. 423, § 49.)
The jury also found defendant personally used a firearm in counts 1, 3, 4, 5, and 6 (§ 12022.53, subd. (b)); personally used a firearm in counts 2, 7, and 11 (§ 12022.5, subd. (a)); kidnapped Doe 1, committed the offenses in the commission of a burglary, and inflicted great bodily injury in counts 3, 4, 5, and 6 (§§ 667.61, subds. (a), (c), (d) & (e) & 667.5); and committed the burglary in count 7 with another person present, other than an accomplice (§ 667.5, subd. (c)(21)). The jury, however, found defendant did not commit forcible sexual offenses against more than one victim (§ 667.61, subds. (a), (c), & (e)).
The court sentenced defendant to a term of 100 years to life plus 86 years two months. It also imposed a $10,000 restitution fine (former § 1202.4, subd. (b)) and a matching suspended parole revocation restitution fine (§ 1202.45), as well as other fines, fees, and assessments as discussed post . Defendant on appeal claims the court: (1) lacked statutory authority to remove him from the courtroom because his trial had yet "commenced in his presence" (see § 1043, subd. (b)), after defendant ignored the court’s myriad warnings not to disrupt the proceedings, addressed the jurors directly as they entered the courtroom, and repeatedly disclosed his dissatisfaction with counsel and certain rulings made by the court; (2) erred in refusing his "request" to self-represent, which he made in connection with a Marsden hearing held during a break while the parties were in the middle of jury selection; and (3) erred in failing to declare a mistrial, dismiss the venire, and begin jury selection anew, after his outburst and removal from the courtroom.
The Legislature amended section 1202.4 effective January 1, 2019. (See Stats. 2018, ch. 92 (Sen. Bill No. 1289), § 165, eff. Jan. 1, 2019; Stats. 2018, ch. 142 (Assem. Bill No. 2226), § 1, eff. Jan. 1, 2019.) This amendment has no substantive bearing on the issues presented in this case.
See People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (Marsden ).
Defendant further claims: (4) the matter should be remanded to allow the court to exercise its discretion and consider whether to grant him mental health diversion; (5) his equal protection rights have been violated because he is statutorily ineligible for a youth parole hearing under section 3051 as a result of being a one-strike offender; and (6) the imposition of fines, fees, and assessments was made without a finding of his ability to pay.
As we explain, we reject these claims and affirm the judgment.
We summarize the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640.)
Doe 1
On August 13, 2016, Doe 1 was living in an apartment located on Nobel Drive in San Diego. At about 6:00 p.m., Doe 1 went with friends to Mission Bay for a barbecue. Doe 1 did not consume any alcohol at the barbecue. At about 10:00 p.m., a friend dropped Doe 1 off at the front gate of her apartment complex. Doe 1 testified that any pedestrian could "freely" walk through the gate and enter the complex.
After being dropped off, Doe 1 headed to her apartment carrying a bag and a Cajon box, which she described as a small drum. As she was walking through the garage, she became aware of a man she did not know about 50 yards behind her.
The man asked Doe 1 if she needed help carrying her "stuff." Doe 1 responded she was "managing fine." As she continued walking, the man next asked about her husband. Doe 1 ignored the man. As she approached her apartment, Doe 1 put down her Cajon box and, to her surprise, saw the man standing in the hallway leading to her unit.
Although concerned, Doe 1 nonetheless approached the man, and asked if he needed help. The man pretended to be talking on his phone, and responded he was looking for "someplace" on the other side of the tennis court. Doe 1 told the man there was a map of the apartment complex near the tennis court.
After their short conversation, Doe 1 tried to "sneak" into her apartment and lock the door before the man could react. However, as soon as she unlocked the door and began opening it, the man rushed her, causing her to fall to the ground. Scared and in shock, Doe 1 started screaming. The man put a gun to her forehead and told her not to make any more noise. He then demanded money and her necklace.
As Doe 1 pulled out her wallet, the man said, "you better have a hundred bucks in there." Because she had about $1 on her person, Doe 1 said she was "sorry" and offered to get cash from an ATM. The man told Doe 1 he "didn’t want to kill [her], but he would if he had to." Believing her life was "going to end," Doe 1 handed the man her wallet, necklace, and cellphone.
The man demanded entry into Doe 1’s apartment. Doe 1 instead just sat on the ground outside her front door, repeatedly telling the man she was willing to go with him to an ATM. After again refusing to accompany him into the apartment, the man suddenly put his hands around Doe 1’s neck and began "strangl[ing]" her. Doe 1 estimated the man strangled her for about a minute, then let go, and again demanded they enter her apartment. This time she complied.
As they entered her living room, the man grabbed Doe 1 from behind and again strangled her, this time using a "towel-like object." Believing she was going to die, Doe 1 fought back, causing the man to loosen the object around her neck. The man again demanded money and valuables. Doe 1 went to a bookshelf where she kept money and gave the man about $300.
While still in the living room, the man told Doe 1 his name was "John." He also told her if she called police, he would kill her. Using a closed fist, the man punched Doe 1 a "few times" in the face, causing her to fall to the ground and making it difficult for her to see. Doe 1 subsequently learned these blows had fractured her face.
The man next removed Doe 1’s pants, and demanded they go into her bedroom. When she refused, the man forcefully "dragged" her into the bedroom and removed her remaining clothes. Doe 1 then clearly saw the man’s face as the bedroom was lit. Doe 1 previously testified she was "very sure" the man who attacked her was defendant Williams. While on the bed, the man penetrated Doe 1’s vagina with his penis. He next digitally penetrated her vagina at least five times, and used his hands to touch her breasts. At some point, the man pushed Doe 1 onto her knees, and forced her to orally copulate him. The man then made Doe 1 get back on the bed, and used his penis to penetrate her vagina a second time. Doe 1 testified she complied with the man’s ongoing demands because she believed he otherwise would kill her. The man then ejaculated on, but not "in[ ]," Doe 1.
As discussed post , defendant was not present in the courtroom during Doe 1’s testimony as he voluntarily absented himself during his trial and sentencing.
The man demanded Doe 1 go with him to the bathroom. She reluctantly complied. Once in the bathroom, he demanded more of her valuables. Doe 1 gave the man a pair of earrings she kept in a "square transparent box." He next made Doe 1 take a shower. Using a washcloth, the man wiped her face and vagina, both of which were bleeding. The man then closed the shower curtain. Doe 1 estimated she stayed in the shower for about 20 more minutes, as she did not know if the man was still inside her apartment. She eventually got out of the shower and dried off. Doe 1 found the man had left her apartment, and had taken her laptop and an "old cell phone."
Because she had no electronic devices, Doe 1 waited a while longer to go outside for help. Once outside, she saw the lights on in a neighbor’s apartment. Doe 1 contacted the neighbors, informed them of the attack, and they drove her to a nearby hospital.
Doe 1 described her injuries for the jury. They included among others bruising to her face, neck and chest, which lasted for months; stitches inside her mouth; vaginal bleeding; inability to walk for days because of the injury to her vaginal area and the "rest of [her] body"; and a facial fracture that caused the left side of her face to be "lower" than the right side.
Witness C.M. testified he was living in an apartment near Doe 1’s on the night she was attacked. At about 10:30 p.m., he heard a knock on the front door. C.M.’s fiancé R.P. answered the door. R.P. testified he immediately knew something was wrong as Doe 1’s face was swollen, she was hunched over, and she was barely able to speak. R.P. invited Doe 1 into their apartment.
Once inside, C.M. saw Doe 1, describing her appearance to the jury as follows: "Her right face was completely hematoma’d on the whole cheek was swollen really far out. There was blood all over the place. Dripping wet. Completely wet. Hair was wet. Blood all over the chest and on some of the clothes as well." C.M. noted Doe 1 appeared "[v]ery scared" and "[v]ery confused, as she kept repeating, "He beat me. He beat me. He beat me."
After calling 911 and being told by dispatch it would "take them a little bit [of time] to get there," C.M. offered to drive Doe 1 to a nearby hospital emergency room. On the way to his car, C.M. and Doe 1 briefly entered her apartment, as C.M. sought to find contact information to notify her family and/or a friend of the attack. C.M. made sure not to touch anything inside the apartment. C.M. testified inside Doe 1’s apartment he saw "chucks of hair"; "numerous" bloody handprints on a doorway, with blood smeared all over the door; and "puddles of blood in the bed as well as soaking wet clothes and towels in the bathroom floor in front of the shower."
As they drove to the hospital, Doe 1 told C.M. she had been beaten and raped. C.M. called a friend who worked at the hospital to let him know they were on the way. After making sure Doe 1 was receiving treatment at the emergency room, C.M. returned home and waited with his fiancé for the police.
San Diego Police Officer Garry Davis was on patrol on the night of August 13. At about midnight, Officer Davis was dispatched to a hospital emergency room. Officer Davis met with Doe 1 in the trauma center and saw she had "severe physical trauma to her face and ... was traumatized psychologically" as well. Officer Davis obtained a statement from Doe 1 and took myriad photographs of her injuries.
Doe 2
Doe 2 was "prostituting" on August 14, 2016—the day after the attack on Doe 1—at a motel located off Alvarado Canyon Road in San Diego. Doe 2 testified she met a fellow prostitute at the motel, although each had their own rooms. Doe 2 estimated she checked-in to the motel at about 3:00 p.m. Before going to the motel, Doe 2 posted an "ad" on the internet informing potential "clients" of her general location.
At some point that day, a man contacted Doe 2 and they set up a meeting, or what she referred to as a "session," in her motel room. The man told Doe 2 he wanted an hour of her time and had $200. Doe 2 testified that she agreed to have vaginal intercourse with the man as long as he wore a condom, but that at no time did she agree to have "anal sex" with him.
Sometime after dark, the man came to Doe 2’s motel room. Doe 2 had never seen the man before this encounter. She recalled the man was African-American, appeared young, had a tattoo on his hand, and seemed angry. When asked why she thought the man was angry, Doe 2 testified he refused to give her a hug upon entering the room, and instead immediately asked to use the bathroom, which made her "a little nervous." At the preliminary hearing, Doe 2 identified this man as defendant Williams.
As noted ante , defendant was not in the courtroom during his trial.
After a few minutes passed, the man came out of the bathroom. At some point he put money on a table. After a conversation with the man that lasted about 10 or 20 minutes, Doe 2 testified they began to argue. Using his hands, the man suddenly grabbed Doe 2 around the neck and choked her "really hard," while repeatedly asking if she wanted to "die." Doe 2 screamed for help and tried to fight back.
Although she was having trouble breathing while the man choked her, Doe 2 testified that she begged the man to stop and pleaded with him not to kill her, telling him she was only 23 years old and she had a sibling and parents. The man, however, continued to choke her. Doe 2 felt her body grow "weak," and then she "blacked out." When she regained consciousness, Doe 2 found herself "bent over on the [side of the] bed," with the man’s "penis inside [her] anus." Doe 2 was certain the man was not wearing a condom.
Doe 2 testified that she again tried to fight-off the man. He, however, continued "raping" her, calling her names, and keeping his hands around her neck. At some point during the attack, Doe 2 suffered a deep cut to her right leg, as she attempted to kick the man off of her. While still on top of her, the man punched Doe 2 in the back of the head, causing her again to temporarily lose consciousness.
After the attack, the man threatened to shoot Doe 2 and told her to "shut up" as she screamed for help. He then "out of nowhere" pulled a gun and used it to strike Doe 2 "very hard" on the head. Believing he was going to kill her, Doe 2 ran to the front door, but was unable to overpower the man who had blocked the exit. She next tried to use the motel telephone to call the front desk for help. The man, however, grabbed the phone from her, and attempted to wrap the phone cord around her neck.
Because the man was preventing Doe 2 from leaving the room, she ran to the window near the bed, used her hands to "bust[ ]" it open, and screamed for help. Doe 2 saw people outside looking in her direction. The man grabbed some of his belongings, including the money he previously had placed on the table, and left. Bloodied, Doe 2 climbed out of the window, and, with the assistance of others, called friend Henry C. for help. Shortly thereafter, Henry arrived at the motel and picked up Doe 2.
After picking her up from the motel, Henry drove Doe 2 to his apartment, where she took a painkiller and showered to wash away the blood. Despite being in significant pain, Doe 2 waited about two days before seeking medical treatment. She testified she waited to go to the hospital because she believed she was "wrong" and would be in "trouble" for engaging in prostitution.
As a result of the attack, Doe 2 testified she had bruises on her neck for a couple of months, making it difficult to eat, drink, or breathe; infections and pain in her anus and rectal area; a dislocated shoulder ; a "deep hole" in her face, near her temple; and multiple scars on her body, including on her right leg.
Emergency room nurse Stefanie W. was on duty on August 16 when Doe 2 came in for treatment. Doe 2 complained of neck pain and informed hospital personnel she had been "assaulted," including choked; struck "three or four times" on the head with a gun, causing her to lose consciousness; and "raped anally." Stefanie testified she observed "many bruises" on Doe 2’s body. Stefanie informed Doe 2 she was a "mandatory reporter" and was required to notify police.
Henry testified he and Doe 2 were in a dating relationship in August 2016. At what he believed was about 6:00 or 7:00 p.m. on August 14, Doe 2 called Henry and said she had just been raped. Henry, with his son in the car, drove to the motel and met Doe 2 about 10 to 20 minutes later. Henry saw Doe 2 was covered in blood, and was "hysterical." A friend or companion of Doe 2 yelled at Henry to "get her out of [t]here." As they left the motel in Henry’s car, police pulled into the parking lot.
The record shows there was inconsistent testimony regarding the timing of the attack on Doe 2, as various law enforcement officers testified they were notified of the attack close to midnight, as discussed post , and contacted the suspect near the motel a short time later.
Henry drove Doe 2 to his apartment. Because she was weak, Henry helped her into and out of the shower. He observed Doe 2 had an injury to the left side of her face, near her ear. Doe 2 told Henry she could not hear out of that ear. According to Henry, the following day Doe 2 mostly cried, would not eat, and "couldn’t really cope." Henry drove Doe 2 to the hospital emergency room two days after the attack.
Witness Julio C. and his wife were staying on the third floor of the motel on the night Doe 2 was attacked. Julio was outside smoking a cigarette in a third-floor stairwell when he heard from below a female’s "bloodcurdling scream." A few seconds later, a young lady on the first floor looked up at Julio and said, "Did you hear that?" Julio descended one flight of stairs and met the young lady on the second floor, who appeared "panicked." Because the young lady appeared to know where the scream came from, Julio followed her as they hurried toward a second-floor room.
Once they had stopped, Julio asked the young lady what was going on inside. She responded, "What do you mean what’s going on in there? He’s beating her ass. Get in there." Julio looked through the window of the fully lit room and saw a naked male and female. Julio saw the male inside the room make a movement with his hands, and, "within a second," saw the female fly "across [the] bed. Not like someone could jump across that bed. She flew across that bed like she had been thrown across that bed. But she wasn’t thrown. It was—it was a strike, you know[.]" Julio heard the male tell the female "something like, [‘]bitch, this ain’t going to stop—you think this is going to stop me?[’]"
The female stopped in front of the window where Julio and the young woman were standing. Julio saw blood "pouring profusely" from the female’s head. Seconds later, the female started punching the window with her hands, causing it to break. Julio and the young woman, who Julio surmised was a friend of the female, helped her escape through the window. As the female was climbing through the window, Julio saw the male exit the room. Once outside, the male confronted Julio, who was standing about five feet away. With a gun at his side, the male bent his arm—as if he was going to point the gun at Julio—and said, "[o]h, bitch ass, nigga, mind your business."
According to Julio, about 20 seconds later the "butt naked" male ran off holding only the gun. The young woman took the female back into the room and helped her quickly dress and gather her belongings, as Julio stood watch to ensure the male did not return. Julio then walked the two women to the stairwell, where the female sat down.
Julio testified he told other motel guests to call 911. As he was doing so, Julio could hear the young woman and the female calling someone to pick up the female. Julio asked the female if the male with the gun was her "man." The female in response said "naw," and then added, "He tried to rape me." Julio, with the young woman’s assistance, helped the female down the stairs to the ground floor, which led to the back of the motel. Less than a minute later, a white car pulled up with two men sitting in the front seat. Without saying a word, the two women got into the back seat of the car and it drove away. Julio estimated the police arrived at the motel less than 30 seconds later.
San Diego Police Officer Steven Bundy testified he was on patrol on August 16 when he was dispatched at about 7:00 p.m. to a hospital emergency room regarding a potential sexual assault that had occurred two days earlier. Officer Bundy contacted Doe 2, who initially appeared reluctant to answer any of his questions. However, as the interview progressed, she became more cooperative, explaining to the officer that she had been alone in a room at a motel located on Alvarado Canyon Road; that she had arranged to meet a man in her room and have sex with him in exchange for money; and that at some point the man, after entering her room, had pulled a gun from his pocket and attacked her. Doe 2 added the man also had choked her and cut her with an "unknown object."
During this same interview, Doe 2 told Officer Bundy the man forcibly removed her clothes, put his penis in both "her vagina and her anus," and threatened to kill her. Doe 2 also told Officer Bundy that she escaped through a motel window, as the man ran out the front door.
Newly retired San Diego Police Detective Rena Hernandez testified that she was assigned to the sex crimes unit in August 2016 when she began investigating the assault of Doe 2. Detective Hernandez initially met Doe 2 at about 11:30 p.m. on August 16 at a San Diego SART (i.e., Sexual Assault Response Team) office. Detective Hernandez observed multiple injuries to Doe 2’s neck, face, and shoulders.
During this first interview, Doe 2 told Detective Hernandez that she had been at a motel on Alvarado Canyon Road when she had solicited a male to come to her room; that because the man wanted sex and she just wanted to talk, the man became angry, grabbed her around the neck, and said it was "her last day living" and "she was going to die"; and that she believed she lost consciousness as the man "raped" her.
Detective Hernandez testified she reinterviewed Doe 2 at police headquarters a few days later. Doe 2 provided additional details of the attack during this follow-up interview, including how the man at one point pulled out a gun and hit her with it, causing a "significant gash" to her head; how she wanted at least $300 from the man, but he had only offered $150 to $200; and how she escaped by breaking and climbing out a window. Detective Hernandez observed scratches to Doe 2’s face and neck, a significant abrasion on her shoulder, and bruises and lacerations on her legs.
San Diego Police Officer Joseph Peralta was on routine patrol on August 14 when he was dispatched at about midnight to the motel where Doe 2 had just been assaulted. On arrival, Officer Peralta and other officers were met by several witnesses who explained a female had been "screaming" inside one of the rooms. With their body-cameras operational, Officer Peralta and another officer approached the female’s room, saw a shattered window and a partially removed screen. Once inside the room, they saw "blood on the walls, bed and the floor." A portion of the video from Officer Peralta’s body camera was played for the jury.
As noted ante , there was conflicting testimony regarding the timing of Doe 2’s attack.
California Highway Patrol Officer Mathew Cavataio testified he was on duty on August 14 and, along with other officers, was on a break at a coffee shop located about a quarter mile away from the motel. During the break, the officers received a dispatch about a potential sexual assault at the motel. The dispatcher described the suspect as a naked, or almost naked, African-American male "covered in blood."
Officer Cavataio participated in the search for the suspect. In his patrol car he drove west on Camino Del Rio North. Less than a quarter mile away, Officer Cavataio saw a male running on the sidewalk matching the suspect’s description. On contact, Officer Cavataio observed the man was sweating; had blood on his chest, back, and arms; and was wearing basketball shorts with a gun "sticking out of his pocket." Officer Cavataio detained the man.
As a result of its investigation and the contact near the motel of a male matching the suspect’s description, police believed defendant Williams was the man responsible for the attack on Doe 2. Detective Hernandez prepared a photographic lineup, which included a photograph of defendant; read Doe 2 the standard admonishment; and showed her the lineup. Doe 2 identified the man in photo number 2 as her attacker. That man was defendant Williams.
In addition to the evidence summarized ante , other evidence also linked defendant to the attacks on Does 1 and 2. Defendant’s DNA was found on a sample taken from Doe 1’s bedroom comforter. Law enforcement also found Doe 1’s transparent jewelry box in defendant’s backpack, which he had left behind in Doe 2’s motel room. Blood samples taken from defendant’s handgun and chest also matched DNA from Doe 2.
A criminalist called by the prosecution estimated "it was 1.25 times 10 to the 26 times more likely to see the DNA evidence if Mr. Williams was a contributor to that sample than if he was not a contributor to that sample."
Another criminalist testified the "DNA results were a 3 with 27 zeroes after it times more likely if Jane Doe Number 2 was the source of that DNA than if she was not."
DISCUSSION
A.-D. E. No Equal Protection Violation
See footnote *, ante .
Defendant next claims the carve-out to section 3051 violates the equal protection clause because, as a one-strike offender, he is statutory ineligible for a youth offender parole hearing while a murderer is entitled to such a hearing.
1. Youth Offender Parole Hearings
Enacted in 2013, the Legislature intended in section 3051 et seq. to " ‘establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity ....’ " ( In re Trejo (2017) 10 Cal.App.5th 972, 980, 216 Cal.Rptr.3d 855 ( Trejo ).) Section 3051 therefore provides for youth offender parole hearings that guarantee youth offenders a meaningful opportunity for release on parole. (§ 3051, subd. (e).) Youth offenders who committed their "controlling offense" prior to reaching a specified age are entitled to a parole hearing after serving a designated period in custody. (§ 3051, subd. (b).) A "controlling offense" is defined as "the offense or enhancement for which any sentencing court imposed the longest term of imprisonment." (§ 3051, subd. (a)(2)(B).)
As originally enacted, section 3051 applied where the controlling offense was committed before the offender was 18 years old. ( Trejo , supra , 10 Cal.App.5th at p. 981 & fn. 6, 216 Cal.Rptr.3d 855.) By amendment effective January 1, 2016, the Legislature extended the availability of youth offender parole hearings to offenders who were under 23 years old when they committed their controlling offenses. (Stats. 2015, ch. 471 (Sen. Bill No. 261), § 1, eff. Jan. 1, 2016; see Trejo , at p. 981 & fn. 6, 216 Cal.Rptr.3d 855.) By subsequent amendments and as relevant here, the Legislature further extended the availability of youth offender parole hearings to offenders who were 25 years old or younger when they committed their controlling offenses. (Stats. 2017, ch. 684 (Sen. Bill No. 394), § 3051, eff. Jan. 1, 2018.)
The version of section 3051 applicable when defendant committed the offenses in August 2016 included various exceptions from the statutory scheme. Former subdivision (h) of section 3051 provided in part: "This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61 , or in which an individual was sentenced to life in prison without the possibility of parole." (Italics added.) Although defendant was 24 years old when he committed the offenses against Doe 1, he is statutory ineligible for a youth offender parole hearing because he was sentenced as a one-strike offender (see §§ 3051, subd. (h) & 667.61, subds. (a), (c) & (d)) on counts 3, 4, 5, and 6.
We note this version limited youth offender parole hearings to any prisoner who was under "23 years of age" at the time he or she committed the controlling offense. (See former § 3051, subd. (a)(1).) However, as noted the Legislature subsequently amended section 3051 to apply to a prisoner "who was 25 years or younger" at the time he or she committed the controlling offense. (§ 3051, subd. (a)(1).)
Current subdivision (h) of section 3051 provides in relevant part: "This section shall not apply to cases in which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section 667.61 , or to cases in which an individual is sentenced to life in prison without the possibility of parole for a controlling offense that was committed after the person had attained 18 years of age." (Italics added.)
2. Equal Protection Principles and One-Strike Offenders
Both the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee to all persons the equal protection of the laws. In order to succeed on his equal-protection claim, defendant initially must show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (See People v. Wilkinson (2004) 33 Cal.4th 821, 836, 16 Cal.Rptr.3d 420, 94 P.3d 551 ( Wilkinson ).) For purposes of our analysis, we will assume defendant has made such a showing.
Where a class of criminal defendants is similarly situated to another class of defendants who are sentenced differently, courts look to determine whether there is a rational basis for the difference. ( Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882, 183 Cal.Rptr.3d 96, 341 P.3d 1075.) "[E]qual protection of the law is denied only where there is no ‘rational relationship between the disparity of treatment and some legitimate governmental purpose.’ " ( People v. Turnage (2012) 55 Cal.4th 62, 74, 144 Cal.Rptr.3d 489, 281 P.3d 464 ( Turnage ).) "This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in ‘ "rational speculation" ’ as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review ‘whether or not’ any such speculation has ‘a foundation in the record.’ " ( Id. at pp. 74–75, 144 Cal.Rptr.3d 489, 281 P.3d 464.) To mount a successful rational basis challenge, a party such as defendant here must " ‘negative every conceivable basis’ " that might support the disputed statutory disparity. ( Heller v. Doe (1993) 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 ( Heller ).) If a plausible basis exists for the disparity, "[e]qual protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law." ( Turnage , at p. 74, 144 Cal.Rptr.3d 489, 281 P.3d 464.) In People v. Edwards (2019) 34 Cal.App.5th 183, 246 Cal.Rptr.3d 40 ( Edwards ), on which defendant relies, the First District addressed equal protection and the application of section 3051 to one-strike offenders sentenced pursuant to section 667.61. The Edwards court concluded equal protection required one-strike offenders be afforded a youth offender parole hearing under section 3051, finding "unconstitutional" the carve-out of such offenders in subdivision (h) of that statute. ( Edwards , at p. 197, 246 Cal.Rptr.3d 40.) In reaching its conclusion, the Edwards court found "no rational relationship between the disparity of treatment [of one-strike offenders] and a legitimate governmental purpose" ( ibid. ), noting that section 3051 included "first degree murderers but exclude[d] One Strikers." ( Edwards , at p. 195, 246 Cal.Rptr.3d 40.)
The Edwards court in its decision relied heavily on People v. Contreras (2018) 4 Cal.5th 349, 229 Cal.Rptr.3d 249, 411 P.3d 445 ( Contreras ). In Contreras , our high court held the Eighth Amendment’s ban on cruel and unusual punishment was violated by the imposition of sentences of 50 years to life, and 58 years to life, on two 16-year-old nonhomicide offenders. ( Contreras , at p. 356, 229 Cal.Rptr.3d 249, 411 P.3d 445.) In support of its holding, Contreras in turn relied on United States Supreme Court authority including Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ), Graham v. Florida (2010) 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ), and Roper v. Simmons (2005) 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 ( Roper ). From such authority, Contreras recognized that the Eighth Amendment "impose[d] unique constraints on the sentencing of juveniles who commit serious crimes" ( Contreras , at p. 359, 229 Cal.Rptr.3d 249, 411 P.3d 445 ); and that children therefore " ‘are constitutionally different from adults for purposes of sentencing.’ " ( Ibid. , quoting Miller , at p. 471, 132 S.Ct. 2455.)
Our high court in Contreras in particular relied on the Supreme Court’s Graham decision, a case involving a 17-year-old defendant who was sentenced in Florida to life without possibility of parole (LWOP) for a nonhomicide offense, in discussing the sentencing differences between juvenile and adult offenders: "Central to the high court’s analysis was its ‘consideration of the culpability of the [juvenile] offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.’ ( Graham , supra , 560 U.S. at p. 67, 130 S.Ct. 2011.) As for culpability, the high court reiterated its observations in Roper that ‘[a]s compared to adults, juveniles have a " ‘lack of maturity and an underdeveloped sense of responsibility’ "; they "are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure"; and their characters are "not as well formed." [Citation.] These salient characteristics mean that "[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." ’ ( Graham , at p. 68, 130 S.Ct. 2011, quoting Roper , supra , 543 U.S. at pp. 569–570, 573, 125 S.Ct. 1183.)" ( Contreras , 4 Cal.5th at pp. 365–366, 229 Cal.Rptr.3d 249, 411 P.3d 445.)
Unlike the Edwards court, the Second District in People v. Bell (2016) 3 Cal.App.5th 865, 208 Cal.Rptr.3d 102 ( Bell ) rejected a one-strike offender’s equal protection challenge to the carve-out in section 3051. In Bell , the juvenile defendant argued that equal protection principles mandated that he receive a youth offender parole hearing under section 3051, despite being sentenced under the one-strike law for his commission of "multiple violent crimes of a horrific and devastating nature." ( Bell , at p. 876, 208 Cal.Rptr.3d 102.) The Bell defendant was 14 years old, as noted, when he "broke into the victim’s home in order to commit rape, raped and robbed her at gunpoint in front of her eight-year-old son, and tried to kidnap her in order to facilitate his crimes." ( Ibid. )
Reviewed granted on other grounds on January 11, 2017, S238339, vacated, and transferred on June 13, 2018 in light of Contreras . Noting this was the most recent of six appeals it had decided following the defendant’s convictions for crimes he committed in 2000 when he was 14 years old, the Second District in People v. Bell (Aug. 2, 2018) 2018 WL 3655658 remanded the matter for the trial court to consider and apply the "Contreras factors" in resentencing the defendant. (Id. , at p. *1.)
The defendant in Bell argued there was no rational basis for the Legislature to treat him "more severely" than a juvenile who commits the "far more serious crime of special circumstances murder." ( Bell , supra , 3 Cal.App.5th at p. 878, 208 Cal.Rptr.3d 102.) In response, the People in Bell argued that the defendant’s commission of "multiple offenses, including rape, burglary with the intent to commit rape, and assault with a firearm" provided a rational basis for the Legislature to exclude one-strike offenders from the mandatory minimum parole eligibility requirements of section 3051. ( Id. at pp. 878–879, 208 Cal.Rptr.3d 102.) The People in Bell further argued that the risk of recidivism was yet another reason for the Legislature to exclude one-strike offenders. ( Id. at p. 879, 208 Cal.Rptr.3d 102.) The Bell court agreed with the People, concluding the "threat of recidivism gives rise to a rational basis for the Legislature’s decision to exclude one-strike offenders from section 3051. ( Ibid . )
In support of its decision, the Bell court reasoned as follows: "We begin by noting that Three Strikes offenders were also excluded from section 3051. Because the Three Strikes law is geared toward repeat offenders [see § 667, subds. (b) to (i), inclusive], we believe the statutory scheme suggests that the Legislature had recidivism in mind when it excluded one-strike offenders.
"We also find persuasive that the Legislature has enacted several comprehensive statutory schemes that all seem to focus on the Legislature’s concerns over recidivism by those who commit violent sex offenses. The Sexually Violent Predators Act ( Welf. & Inst. Code, § 6600 et seq. ) provides for the indefinite civil commitment of certain offenders who are found to suffer from a qualifying mental disorder after the completion of their prison terms. The Mentally Disordered Offenders Act ( Pen. Code, § 2690, et seq. ) permits the continued detention of certain other sex offenders until they receive appropriate mental health treatment that results in remission of their disorder. Each has the same purpose: to protect the public from a select group of sexual offenders who are extremely dangerous and to provide treatment for them. [Citations.]
"Section 290 requires the lifetime registration of a large class of sex offenders, including those who commit assault or kidnapping with the intent to commit rape. (§ 290, subd. (c).) The purpose of section 290’s lifetime registration requirement is to ensure that persons convicted of the enumerated crimes be readily available for police surveillance at all times because the Legislature has deemed them likely to commit similar offenses in the future. [Citation.]
"As we see it, the Legislature believes that most sex offenders pose a recidivism risk. We believe the Legislature had that concern in mind when it excluded one-strike offenders such as Bell from the reach of section 3051, and that the risk of recidivism provides a rational basis for doing so. [¶] Based on this, and given the deferential standard we must apply, we cannot say that the Legislature lacked a rational basis for its sentencing choice." ( Bell , supra , 3 Cal.App.5th at pp. 879–880, 208 Cal.Rptr.3d 102.)
3. Analysis
We agree with the Edwards and Bell courts that a rational basis test applies in determining whether the carve-out for one-strike offenders in section 3051, subdivision (h) is unconstitutional under equal protection principles. However, our agreement with Edwards ends there, as we disagree there is no " ‘conceivable basis’ " supporting the disputed statutory disparity for such offenders, as compared to murderers. (See Heller , supra , 509 U.S. at p. 320, 113 S.Ct. 2637 ; see also Turnage , supra , 55 Cal.4th at p. 74, 144 Cal.Rptr.3d 489, 281 P.3d 464 [noting if a plausible basis exists for the disparity, "[e]qual protection analysis does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law"].)
For one thing, we find Edwards ’ reliance on Contreras misplaced for two reasons. First, Contreras involved a constitutional challenge to LWOP sentences under the Eighth Amendment’s prohibition of cruel and unusual punishment. Contreras did not analyze whether such sentences violated the equal protection clause, as it itself expressly recognized. ( Contreras , 4 Cal.5th at p. 382, 229 Cal.Rptr.3d 249, 411 P.3d 445.) Second, and perhaps more important, Contreras only addressed the constitutional implications of juvenile offenders sentenced to LWOP. That is not our case here, as defendant Williams was a 24-year-old adult when he committed what the trial court found to be "brutal, vicious, callous, [and] cruel" attacks on Does 1 and 2, a finding amply supported by the record evidence. Thus, the "unique constraints" ( Contreras , supra , 4 Cal.5th at p. 359, 229 Cal.Rptr.3d 249, 411 P.3d 445 ) and " ‘constitutionally different’ " standards ( ibid. , quoting Miller , supra , 567 U.S. at p. 471, 132 S.Ct. 2455 ) applicable to juvenile offenders sentenced to LWOP are inapposite in the instant case. For this reason, we do not find Contreras to be controlling authority on our issue.
Like the Bell court, we believe that the threat of recidivism by violent sexual offenders—as demonstrated by the Legislature’s enactment of several comprehensive statutory schemes to curb such recidivism among such offenders—provides a rational basis for the Legislature’s decision to exclude one-strikers from the reach of section 3051. (See Johnson v. Department of Justice , supra , 60 Cal.4th at p. 881, 183 Cal.Rptr.3d 96, 341 P.3d 1075 [noting a court of review may engage in " ‘ "rational speculation" ’ " as to the justifications for the Legislature’s decision, even if that assumption has no foundation in the record]; see also Turnage , supra , 55 Cal.4th at pp. 74–75, 144 Cal.Rptr.3d 489, 281 P.3d 464 [noting the standard of rationality neither "depend[s] upon whether lawmakers ever actually articulated the purpose they sought to achieve," "[n]or must the underlying rationale be empirically substantiated"]; People v. Luna (2012) 209 Cal.App.4th 460, 471, 146 Cal.Rptr.3d 841 [observing that section 667.61 " ‘was enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction’ "]; § 667.61, subds. (a), (c) & (d) [requiring a punishment of 25 years to life to any person who engages in one or more "circumstances" during the commission of various qualifying felony sex crimes].)
Given the deferential standard we apply in determining rationality for equal protection purposes (see Turnage , supra , 55 Cal.4th at p. 74, 144 Cal.Rptr.3d 489, 281 P.3d 464 ), and given our view that the risk of recidivism provides a rational basis for the Legislature to treat violent felony sex offenders sentenced under the one-strike law differently than murderers or others who commit serious crimes, we reject defendant’s equal protection challenge to subdivision (h) of section 3051.
F. Fines, Fees, and Assessments DISPOSITION
See footnote *, ante .
Judgment affirmed.
WE CONCUR:
HUFFMAN, J.
HALLER, J.