People v. Hardin

• Decision Date: 18 October 2022
• Docket Number: B315434
• Citation: 84 Cal.App.5th 273,300 Cal.Rptr.3d 243
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tony HARDIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

84 Cal.App.5th 273

300 Cal.Rptr.3d 243

The PEOPLE, Plaintiff and Respondent,

v.Tony HARDIN, Defendant and Appellant.

B315434

Court of Appeal, Second District, Division 7, California.

Filed October 18, 2022

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.

PERLUSS, P. J.

An individual convicted of a controlling offense committed before the person was 18 years old and for which the sentence is life without the possibility of parole is eligible for release on parole at a youth offender parole hearing at the beginning of the 25th year of incarceration. ( Pen. Code, § 3051, subd. (b)(4).)¹ Similarly, with several exceptions, an individual convicted of a controlling offense committed when the person was a young adult, 25 years old or younger, and for which the sentence is an indeterminate state prison term of 25 years to life, including first degree premeditated murder, is eligible for release on parole at a youth offender parole hearing at the beginning of the 25th year of incarceration. ( § 3051, subd. (b)(3).) However, an individual who received a sentence of life without the possibility of parole for an offense committed after attaining the age of 18 is not eligible for a youth offender parole hearing ( § 3051, subd. (h) ) or otherwise entitled to parole consideration.

Tony Hardin, convicted in 1990 of special-circumstance felony murder for a crime committed when he was 25 years old, contends it violates his right to equal protection under the Fourteenth Amendment to exclude him from youth offender parole consideration, while a 17-year-old who committed special-circumstance murder and a young adult who committed first degree premeditated murder when 25 years old or younger but was convicted of the crime without a special-circumstance finding are entitled to such consideration. As a consequence, he argues, the trial court erred in denying his motion for a Franklin hearing² to assemble information concerning youth-related mitigating factors for an eventual youth offender parole hearing.

This statutory scheme's tension with the rationale of the United States Supreme Court decisions in Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) and Graham v. Florida (2010) 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ) has been widely recognized. (See, e.g., In re Murray (2021) 68 Cal.App.5th 456, 464, 283 Cal.Rptr.3d 601 ; People v. Acosta (2021) 60 Cal.App.5th 769, 780-781, 275 Cal.Rptr.3d 110 ; People v. Montelongo (2020) 55 Cal.App.5th 1016, 1036, 269 Cal.Rptr.3d 883 (conc. opn. of Segal, J.); In re Jones (2019) 42 Cal.App.5th 477, 486-487, 255 Cal.Rptr.3d 571 (conc. opn. of Pollak, P. J.); see also People v. Montelongo , Liu, J., concurring in denial of petition for review, Jan. 27, 2021, S265597.)³ Although it is arguably unsound as a matter of policy to adhere to the bright line rule articulated in Roper v. Simmons (2005) 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1, the Legislature acted rationally in deciding that individuals sentenced to life without parole for a special-circumstance murder committed while still a minor (16 or 17 years old) were entitled to a youth offender parole hearing but young adults who committed the same offense after turning 18 were not.

The same analysis does not support the Legislature's distinction for purposes of section 3051 between young adult offenders who committed a special-circumstance murder and were sentenced to life without parole and other young adult offenders who committed different serious or violent crimes and received parole-eligible indeterminate life terms, including those that could be the functional equivalent of a life without parole sentence. The purpose of the current iteration of section 3051 generally providing youth offender parole hearings for individuals convicted of a controlling offense committed when the person was 25 years old or younger is that the distinctive attributes of youth—transitory mental traits and environmental vulnerabilities—which the Supreme Court in Miller recognized mitigate culpability and offer the possibility of growth and change, apply equally to young adults up to age 25. Having made that determination, there was no rational basis for the Legislature to exclude otherwise similarly situated offenders from any opportunity for a youth offender parole hearing based solely on the crime committed or the sentence imposed, factors unrelated to a determination the offender is "irreparably corrupt."

The Legislature exercising its authority to define crimes and fix the penalties, of course, may in the future decide the youth parole eligibility date for a young adult convicted of special-circumstance murder and sentenced to life without parole should be different from the first day of the person's 25th year of incarceration, as now provided in section 3051, subdivision (b)(3), for those serving an indeterminate state prison term of 25 years to life for the controlling offense. But Hardin is entitled to a youth offender parole hearing and a meaningful opportunity to be released on parole at some point and, as such, is also entitled to a Franklin hearing to assemble information concerning his youth-related mitigating factors.

FACTUAL AND PROCEDURAL BACKGROUND

1. Hardin's Conviction for the Murder of Norma Barber and Sentence to Life Without Parole

In 1989, when he was 25 years old, Hardin killed his neighbor Norma Barber while stealing jewelry and other items from her apartment and her car. In 1990 a jury convicted Hardin of first degree murder (§ 187) and found true the special-circumstance allegation the murder had been committed during the commission of a robbery (§ 190.2, subd. (a)(17)). The jury also found Hardin guilty of inflicting great bodily injury on a person 60 years of age or older (§ 1203.09, subd. (a)), residential robbery (§ 211) and grand theft of an automobile (§ 487, subd. (c)). The trial court sentenced Hardin to a state prison term of life without parole for the special-circumstance murder.⁴ We affirmed the judgment on appeal. (People v. Hardin (July 19, 1993, B051873) [nonpub. opn.].)

2. Hardin's Franklin Motion

On August 18, 2021 Hardin, representing himself, filed a motion seeking to develop a record for an eventual youth offender parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ) and In re Cook (2019) 7 Cal.5th 439, 247 Cal.Rptr.3d 669, 441 P.3d 912. In his motion Hardin argued section 3051, subdivision (h), violated the equal protection clause of the Fourteenth Amendment by denying the right to a youth offender parole hearing to inmates sentenced to life without the possibility of parole for crimes committed between the ages of 18 and 25 while authorizing youth offender parole hearings for individuals who committed first degree murder and received a sentence of 25 years to life (that is, without the additional true finding on a special-circumstance allegation). The trial court denied Hardin's request for a Franklin hearing because Hardin was statutorily ineligible for a youth offender parole hearing, ruling section 3051, subdivision (h), was "not unconstitutional as applied to persons sentenced to life without the possibility of parole."

Hardin filed a timely notice of appeal.

DISCUSSION

1. Indeterminate Life Sentencing and Youth Offender Parole Hearings

In Roper v. Simmons , supra , 543 U.S. 551, 125 S.Ct. 1183 the United States Supreme Court held the Eighth Amendment's ban on the infliction of cruel and unusual punishment categorically prohibited imposition of the death penalty on juvenile offenders, defined as youths under the age of 18. ( Id. at pp. 568-569, 125 S.Ct. 1183.) Five years later in Graham , supra , 560 U.S. 48, 130 S.Ct. 2011 the Supreme Court, emphasizing a juvenile offender's "capacity for change and limited moral culpability," held it violated the Eighth Amendment to impose a sentence of life without parole on a juvenile offender who had not committed homicide. ( Id. at p. 74, 130 S.Ct. 2011.)

Two years after Graham , in Miller , supra , 567 U.S. 460, 132 S.Ct. 2455 the Supreme Court extended the reasoning of its prior decisions to hold it also violated the Eighth Amendment to impose a mandatory life without parole sentence on a juvenile convicted of murder because that mandatory penalty "precludes consideration of [the juvenile's] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys." ( Miller , at pp. 477-478, 132 S.Ct. 2455.)⁵ A sentence of life without parole on a juvenile that fails to take these youth-related mitigating factors into account, the Court held, violates the Eighth Amendment prohibition on cruel and unusual punishment. ( Ibid. ; accord, Montgomery v. Louisiana (2016) 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 ( Montgomery ).)

Shortly after the decision in Miller , the California Supreme Court held in People v. Caballero (2012) 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 that the Eighth...