People v. Heard

• Docket Number: D079237
• Decision Date: 20 September 2022
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Eli HEARD, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

83 Cal.App.5th 608

299 Cal.Rptr.3d 634

The PEOPLE, Plaintiff and Respondent,

v.Frank Eli HEARD, Defendant and Appellant.

D079237

Court of Appeal, Fourth District, Division 1, California.

Filed September 20, 2022

Eric R. Larson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting Assistant Attorney General, Melissa Mandel and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.

DO, J.

INTRODUCTION

Frank Eli Heard is serving a sentence of 23 years plus 80 years to life for two counts of attempted willful, deliberate and premeditated murder for a drive-by shooting he committed at age 15, and one count of voluntary manslaughter for a homicide he committed just after he turned 16. After 15 years of incarceration, he petitioned the trial court to recall his sentence and resentence him to a lesser sentence under Penal Code ¹ section 1170, former subdivision (d)(2) (now subdivision (d)(1)). Under this provision, a juvenile offender who "was sentenced to imprisonment for life without the possibility of parole" and has been incarcerated for at least 15 years "may submit to the sentencing court a petition for recall and resentencing." ( § 1170, former subd. (d)(2)(A)(i), now subd. (d)(1)(A).) The trial court denied Heard's petition, finding him ineligible for relief because he was not sentenced to an explicitly designated term of life without the possibility of parole.²

Heard appeals, presenting two issues of first impression. First, he asserts the resentencing provision should be interpreted to apply not only to juvenile offenders sentenced to explicitly designated terms of life without parole, but also to a juvenile offender, like him, who have been sentenced to multiple terms that are the functional equivalent of life without parole. Second and alternatively, Heard asserts a contrary interpretation of the resentencing provision would violate his constitutional right to equal protection of the laws. We reject his first contention. Instead, we interpret section 1170, subdivision (d)(1)(A), to limit eligibility to petition for recall and resentencing to juvenile offenders sentenced to explicitly designated life without parole terms. But we conclude denying juvenile offenders, who were sentenced to the functional equivalent of life without parole, the opportunity to petition for resentencing violates the guarantee of equal protection. We therefore reverse the trial court's order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

I.Heard's Convictions and Sentence³

In January 2005, when Heard was 15 years old, he and three fellow members of the West Coast Crips gang were riding in a car when the front passenger shot at a group of rival Blood gang members on the street. In the volley of bullets, two persons were injured, but not killed. Heard admitted to the police he was in possession of a gun at the time of the shooting. When the gun was recovered, it had Heard's fingerprints on it and was determined to have fired shell casings recovered from the crime scene. The evening of the shooting, Heard bragged to a friend that he "got a slob," which is a derogatory term for a Blood. In a videotape of a party, made a few days before the shooting, Heard was holding what appeared to be the same gun used in the shooting and performing a rap song that glorified a prior killing of Bloods.

In July 2005, less than two weeks after Heard turned 16, witnesses saw him and others walk up to a young man standing on a street corner. After exchanging words with the man, Heard pulled out a handgun and shot him in the head, killing him. It was later determined that Heard believed the victim was on the street corner selling drugs in his gang's territory.⁴

Heard was charged with two counts of attempted willful, deliberate and premeditated murder ( §§ 664, 187, subd. (a) ; counts 1 and 2), and one count of murder ( § 187, subd. (a) ; count 3). Each offense was alleged to have been committed for the benefit of a criminal street gang ( § 186.22, subd. (b)(1) ) and with the personal use of a firearm ( § 12022.53, subds. (c), (d), & (e)(1) ). Count 3 was severed and Heard went to a jury trial on counts 1 and 2. The jury found him guilty of both counts of attempted murder as charged and found true the firearm use and gang allegations. Heard then entered a plea agreement on count 3, in which he pled guilty to the lesser included offense of voluntary manslaughter ( § 192, subd. (a) ) and admitted a gang enhancement allegation ( § 186.22, subd. (b)(1) ), as well as a firearm enhancement ( § 12022.5, subd. (a) ).

Heard's sentencing hearing took place in January 2008. In a sentencing memorandum filed before the hearing, Heard argued the imposition of a life sentence would be cruel and unusual punishment in violation of the Eighth Amendment. He urged the court to consider his youth and capacity to mature and change, limited intelligence, and that he was introduced to criminal street gangs as a toddler, when making its sentencing decision. At the sentencing hearing, Heard's trial counsel continued to maintain that it would be unconstitutional to sentence Heard to prison for life.

The trial court disagreed. It found there was "no constitutional infirmity for the imposing of a life sentence for an attempted premeditated murder," and that the Legislature had approved prosecuting juveniles as adults in response to an increase in acts of gang violence by juvenile gang members. The court stated Heard was the "poster child for the legislative intervention with regard to gangs." It concluded there was "no constitutional infirmity in the application of either a life sentence as to the counts or ... life sentences as to the enhancements." The court then sentenced Heard to a total prison term of 23 years plus 80 years to life.⁵

Heard appealed his attempted murder convictions, and this court affirmed the judgment in 2009. ( People v. Heard, supra , D052492, review denied May 20, 2009, S171378.) Heard filed a petition for a writ of habeas corpus with the superior court, claiming his prison sentence was excessive because he would not be eligible for parole during his lifetime. The superior court denied the petition. Heard then filed a petition for a writ of habeas corpus with this court in 2012, raising again the argument that his sentence was excessive. As we later discuss in further detail, in January 2014, we granted the petition and remanded the case for resentencing. ( In re Heard, supra , D063181.) In the intervening years since Heard was sentenced in 2008, a sea change in juvenile sentencing law had occurred, beginning with the United States Supreme Court's decision in Roper v. Simmons (2005) 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 ( Roper ). We discuss those changes in juvenile sentencing law next, before returning to the procedural history of Heard's case.

II.Changes in Juvenile Sentencing Law

A. Decisional Law

Beginning with Roper in 2005, the United States Supreme Court held the Eighth Amendment categorically bars imposition of the death penalty on offenders who were under 18 when their crimes were committed. ( Roper, supra , 543 U.S. at pp. 578–579, 125 S.Ct. 1183.) In a series of decisions that followed, the United States Supreme Court and California Supreme Court placed further limits on the punishment that may constitutionally be imposed on juvenile offenders. These decisions arose in large part from advances in research on adolescent brain development, and the related, growing recognition that juveniles "have diminished culpability and greater prospects for reform" and are therefore "constitutionally different from adults for purposes of sentencing." ( Miller v. Alabama (2012) 567 U.S. 460, 471, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ), discussing Roper, supra , 543 U.S. 551, 125 S.Ct. 1183 and Graham v. Florida (2010) 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ).)

Five years after Roper , the United States Supreme Court held in Graham the Eighth Amendment categorically bars the imposition of a sentence of life without parole on a juvenile offender who did not commit homicide. ( Graham, supra , 560 U.S. at p. 82, 130 S.Ct. 2011.) The Graham court observed: "As 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.’ [Citation.] Accordingly, ‘juvenile offenders cannot with reliability be classified among the worst offenders.’ " ( Id. at p. 68, 130 S.Ct. 2011.)

The Graham court further observed that life without parole is " ‘the second most severe penalty permitted by law’ " and it is "an especially harsh punishment for a juvenile [offender]," who "will on average serve more years and a greater percentage of his life in prison than an adult offender." ( Graham, supra , 560 U.S. at pp. 69, 70, 130 S.Ct. 2011.) It "likened a life without parole sentence for nonhomicide [juvenile] offenders to the death penalty itself, given their youth and the prospect that, as the years progress, juveniles can reform their deficiencies and become contributing members of society." ( People v. Caballero (2012) 55 Cal.4th 262, 266, 145 Cal.Rptr.3d 286, 282 P.3d 291 ( Cabellero ), citing Graham , at pp. 69–70, 130 S.Ct. 2011.) To avoid violating the Eighth Amendment, the high court held that states "need not guarantee the [nonhomicide] offender eventual release" but must provide "some realistic opportunity to obtain release." ( Gra...