Filed 12/7/18 P. v. Coleman CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In 2006 defendant Raymond Nelson Coleman was convicted of murder and sentenced to life without parole (LWOP). He committed the crimes when he was 21. On appeal, he contends the trial court erred in denying his petition for recall and resentencing pursuant to Penal Code section 1170, subdivision (d)(2)[1] (hereafter, section 1170(d)(2)). According to defendant, section 1170(d)(2) violates his equal protection rights because it limits relief to juveniles sentenced to LWOP, whereas certain offenders age 25 years or younger are eligible for youth parole hearings under section 3051, depending on their sentence and time served.

We requested the parties to provide supplemental briefing regarding the recent amendments to section 3051, including the amendments increasing the eligibility age from 23 years to 25 years and adding eligibility for juvenile defendants sentenced to LWOP, and the recent decision in People v. Contreras (2018) 4 Cal.5th 349 (Contreras), which held that sentences of 50 years to life and 58 years to life imposed on juvenile nonhomicide offenders violated the Eighth Amendment. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Underlying Conviction

To provide background, we summarize the pertinent facts from our prior opinion. (People v. Coleman (July 24, 2008, C053684) [nonpub. opn.].)

On December 12, 2004, defendant and his codefendants Andre Marcus Allen and Sammy Anderson went to a park to consummate a drug deal that defendant had arranged with Dwayne Harvey. When Harvey arrived, he was shot and killed. Defendant was 21 years old at the time of the crime.

At trial, Anderson and defendant each testified they saw Allen shoot Harvey. Allen testified defendant shot Harvey.

Defendant and Allen were convicted by jury of first degree murder (§ 187) and second degree robbery (§ 211). The jury also found that defendant committed the murder during a robbery (§ 190.2, subd. (a)(17)) and intentionally and personally discharged a firearm causing great bodily death or injury (§ 12022.53, subd. (d)).

In September 2006 the trial court sentenced defendant to life in prison without the possibility of parole for the murder conviction, plus 25 years to life for the firearm enhancement. The trial court also imposed five years for defendant’s robbery conviction plus 25 years to life for the firearm enhancement, stayed pursuant to section 654.

In 2008 we struck a parole revocation fine but otherwise affirmed the judgment. (People v. Coleman, supra, C053684.)

2. Recall Petition

In 2016 defendant, who was unrepresented at the time, filed a petition to “recall” his sentence, pursuant to section 1170(d)(2), a statute permitting juveniles sentenced to LWOP, with certain exceptions, to seek recall of their sentences and resentencing after 15 years of incarceration.[2] In support, defendant cited the holdings in Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407] (Miller), Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825] (Graham), and People v. Caballero (2012) 55 Cal.4th 262, for the proposition that mandatory life imprisonment without parole for those under age 18 at the time of their crimes violates the Eighth Amendment prohibition on cruel and unusual punishment. He also noted the Legislature had recently amended section 3051 to expand the eligibility of non-LWOP offenders to seek youth offender parole hearings. The amendment extended eligibility to offenders age 23 and under at the time of their offenses.

While acknowledging he did not qualify for relief under either statute, he asserted the Legislature had nonetheless expressed its recognition that youthfulness lessens moral culpability and that a juvenile should be given the opportunity to obtain release when he or she showed he or she had rehabilitated and gained maturity. Defendant argued the increased age limit should also apply to defendants seeking relief under section 1170(d)(2). Failure to do so, he further argued, would violate his equal protection rights.

On June 24, 2016, the trial court denied defendant’s petition, reasoning it did not have jurisdiction because defendant was 21 years old at the time of his crimes, making Miller, Graham, and section 1170(d)(2) inapplicable. Moreover, defendant’s sentence of LWOP rendered section 3051 inapplicable. The trial court refused to construe defendant’s motion as a petition for writ of habeas corpus because defendant had failed to demonstrate that he was entitled to resentencing. The trial court also held that individuals like defendant who committed special circumstance murders and were aged 18 to 22 years at the time of their crimes were not similarly situated to those who committed nonspecial circumstance murders who were aged 18 to 22 years at the time of their crimes.

Defendant filed a timely appeal.

DISCUSSION

I

The People contend defendant’s appeal should be dismissed for lack of jurisdiction. Defendant argues this court has jurisdiction because he is appealing an order affecting his substantial rights. (§ 1237, subd. (b).) In the alternative, defendant argues we should, in the interests of justice, treat the appeal as a petition for writ of habeas corpus.

“ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) Section 1170(d)(2) affords a procedure whereby inmates who committed their crimes when they were younger than 18 and were sentenced to LWOP can petition for recall and resentencing. Although section 1170(d)(2) does not specifically authorize an appeal from the denial of such a petition or motion, section 1237 provides that a defendant may appeal “from a final judgment of conviction” (§ 1237, subd. (a)) or “[f]rom any order made after judgment, affecting the substantial rights of the party” (§ 1237, subd. (b)).

In Teal v. Superior Court (2014) 60 Cal.4th 595, the People argued the defendant did not have the right to appeal the trial court’s denial of his petition for recall of sentence under section 1170.126, since he did not meet the threshold eligibility requirements to file a petition for recall. (Teal, at p. 598.) The Teal court concluded a denial of a section 1170.126 petition was appealable because it would foreclose a reduced sentence and therefore affect the defendant’s substantial rights. (Teal, at pp. 600-601.) “[A] postjudgment order ‘affecting the substantial rights of the party’ (§ 1237, subd. (b)) does not turn on whether that party’s claim is meritorious, but instead on the nature of the claim and the court’s ruling thereto.” (Teal, at p. 600.)

Similarly here, the trial court’s denial of defendant’s petition due to his apparent ineligibility foreclosed an opportunity for a reduced sentence and therefore was appealable.

II

Under section 1170(d)(2), juveniles sentenced to LWOP are entitled to seek recall and resentencing after 15 years of incarceration. Certain juveniles are ineligible, including those sentenced to LWOP for killings of public safety officials or killings involving torture. (§ 1170(d)(2)(ii).) Because defendant was over the age of 18 years at the time of the crimes, he is not eligible for recall and resentencing under section 1170(d)(2).

Section 3051 provides for youth parole hearings, depending on the defendant’s age at the time of the crime and the sentence imposed. As of January 1, 2018, defendants who committed their crimes when they were 25 years of age or younger are eligible for a hearing during their 15th, 20th, and 25th years of incarceration, depending on whether they received a determinate sentence, a life sentence of less than 25 years to life, or a life term of 25 years to life, respectively. (§ 3051, subd. (b)(1)-(3); see also former § 3051, subd. (b)(1)-(3) [limiting relief to those who committed their crimes when they were 23 years of age or younger].)[3] Although the original section 3051 excluded relief for inmates who had been sentenced to LWOP (former § 3051 subd. (h) [“this section shall not apply to cases in which . . . an individual was sentenced to life in prison without the possibility of parole”]), under the recent amendments, offenders sentenced to LWOP are also eligible for a hearing in their 25th year of incarceration, but only if they committed their crime before they turned 18 years old and are not a one-strike offender (§ 3051, subds. (b)(4), (h)).

Defendant contends the Legislature violated his equal protection rights by failing to extend the age limit under section 1170(d)(2), as it did under section 3051. He asks this court to “extend the age-limit increase benefit afforded to youth offenders under section 3051 to similarly situated youth offenders under section [1170(d)(2)].” In supplemental briefing, defendant further argues the recent amendments to section 3051 only strengthen his argument that all young adult offenders, whether sentenced to LWOP or other long prison terms, are similarly situated and should be treated the same under sections 3051 and 1170(d)(2). According to defendant, “the opportunity for a youth offender parole hearing cannot and should not depend on the underlying crime committed.” Despite the fact that Contreras is limited to addressing whether 50-year-to-life and 58-year-to-life sentences imposed on juvenile nonhomicide offenders violate the Eighth Amendment, defendant argues Contreras bolsters his equal protection claim because it effectively extended the relief under section 3051 to defendants who were otherwise expressly excluded by that statute. We conclude no equal protection violation has been shown.

Both federal and state constitutional provisions protect the right to equal protection of law. “ ‘ “ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ [Citation.]” ’ ” (People v. Jeha (2010) 187 Cal.App.4th 1063, 1073, italics omitted; People v. McKee (2010) 47 Cal.4th 1172, 1218-1219.)

By their own terms, both section 1170(d)(2) and section 3051 exclude from relief nonjuvenile LWOP offenders. Defendant cannot show that he is similarly situated to juvenile LWOP offenders, since “children are constitutionally different from adults for purposes of sentencing.” (Miller, supra, 567 U.S. at p. 471.) Moreover, defendant cannot show that he is similarly situated to offenders who commit their crimes when they are younger than 25 and are not sentenced to LWOP, since such offenders receive different sentences because they have been convicted of different crimes. (People v. Macias (1982) 137 Cal.App.3d 465, 473 [“persons convicted of different crimes are not similarly situated for equal protection purposes”]; see also People v. Pecci (1999) 72 Cal.App.4th 1500, 1503 [“persons convicted of different offenses can be punished differently”].) Defendant’s argument would effectively extend Miller’s prohibition on LWOP for juveniles to LWOP for persons age 25 and under. No case has applied either the Eighth Amendment or the equal protection clause in such a manner. We are not persuaded that Contreras, which considered lengthy sentences for juvenile nonhomicide offenders and the Eighth Amendment, changes the analysis. Defendant’s equal protection argument fails.

DISPOSITION

The order is affirmed.

RAYE , P. J.

We concur:

ROBIE , J.

BUTZ , J.