STATEMENT OF THE CASE

In 1990, when he was 19, defendant participated in a shooting from a motor

vehicle that killed two people and wounded a third. In 1992, he was convicted by a jury.

His convictions, after the judgment was modified on appeal, were on:

• Two counts of first degree murder (§§ 187, subd. (a), 189, subd. (a)), both with

enhancements for intentionally causing great bodily injury by discharging a firearm from

a vehicle (§ 12022.55, subd. (a)), and with a multiple murder special circumstance

(§ 190.2, subd. (a)(3));

• One count of attempted murder (§ 187, subd. (a); former § 664, Stats. 1986,

ch. 519, § 2; see now § 664, subd. (a)), with an enhancement for intentionally causing

great bodily injury by discharging a firearm from a vehicle; and

• One count of shooting at an occupied motor vehicle (§ 246).

3 His sentence, again after the judgment was modified on appeal, was a total of life

without parole (LWOP) plus four years.

In 2022, defendant, in pro. per., filed a motion for a Franklin hearing.

In his motion, he stated: “Salgado acknowledges that this court is bound by Court

of Appeal authority holding that the exclusion of 18-to-25-year-olds sentenced to LWOP

from youth offender parole does not violate equal protection. [Citation.] Nonetheless, to

preserve this claim for further review, s/he files this . . . motion contending that the

exclusion of 18-to 25-year-olds from youth offender parole violates his/her constitutional

rights to equal protection [citations].

“Salgado further contends that the exclusion of 18-to 25-year-olds from youth

offender parole, and the failure to provide any mechanism for parole in his/her case,

violates the state constitutional ban on cruel or unusual punishment. [Citation.]” He

attached a memorandum of points and authorities expanding on these arguments.

The trial court appointed counsel for defendant.

At the hearing on the motion, the trial court summarily denied it. It ruled that

defendant was not eligible for a Franklin hearing because he had been sentenced to

LWOP. It declined to follow People v. Hardin (2022) 84 Cal.App.5th 273 (Hardin),

review granted Jan. 11, 2023, S277487 — which had held that section 3051’s distinction

between youthful offenders with LWOP and non-LWOP sentences violates equal

protection — because review in Hardin was pending. It did not address defendant’s cruel

and unusual punishment argument.

4 II

EQUAL PROTECTION

Defendant contends that providing Franklin hearings to youthful offenders with

non-LWOP sentences and juvenile offenders with LWOP sentences, but not to youthful

offenders with LWOP sentences, violates equal protection.

With regard to the differential treatment of youthful offenders with non-LWOP

sentences, this court is already on record as rejecting the identical contention. (People v.

Ngo (2023) 89 Cal.App.5th 116 (Ngo), review granted May 17, 2023, S279458.)

In Ngo, we found “several rational bases for the unequal treatment.” (Ngo, supra,

89 Cal.App.5th at p. 123.) “For one thing, section 3051 was enacted in response to

[People v.] Caballero [(2012) 55 Cal.4th 262 (Caballero)]. In Caballero, the Supreme

Court called for ‘legislation establishing a parole eligibility mechanism that provides a

defendant serving a de facto life sentence without possibility of parole for nonhomicide

crimes that he or she committed as a juvenile with the opportunity to obtain release on a

showing of rehabilitation and maturity.’ [Citation.] It did not call for such a mechanism

for any defendants — whether juvenile, youthful, or otherwise — serving a de jure

LWOP sentence. The Legislature could rationally limit its response accordingly.

“For another, section 3051 provides for a youthful offender parole hearing. A

youthful offender sentenced to LWOP is not entitled to parole at all. Just like all other

adult offenders convicted of murder with special circumstances, a youthful offender

5 convicted of murder with special circumstances must actually spend the rest of his or her

life in prison.

“If any further justification is needed, we find it in the difference in culpability. A

person guilty of murder with special circumstances is the worst of the worst. This is the

most heinous crime known to our Penal Code, and one of the few crimes subject to the

death penalty in California. [Citations.]” (Ngo, supra, 89 Cal.App.5th at p. 123.)

We also noted that “a long line of cases have rejected the equal protection claim

defendant makes here”; Hardin was the sole outlier. (Ngo, supra, 89 Cal.App.5th at

p. 124, and cases cited.) We found Hardin’s reasoning flawed, in that (1) it incorrectly

considered section 3051 not to be a sentencing statute; (2) it incorrectly limited the

“rational basis” inquiry to the purposes of the challenged law; (3) it incorrectly required a

perfect fit between means and ends; and (4) it incorrectly overlooked the existence of a

rational basis for distinguishing between youthful offenders with de jure LWOP

sentences and youthful offenders with de facto LWOP sentences (such as 50 years to

life). (Ngo, supra, at pp. 124–126.)

Defendant relies primarily on Hardin. He disagrees with the reasons we stated in

Ngo for declining to follow Hardin, but he provides no persuasive argument. We

therefore adhere to Ngo.

With regard to the differential treatment of juvenile offenders with LWOP

sentences, the obvious rational basis is age. “[B]oth the United States Supreme Court and

our high court have repeatedly found the bright-line drawn between juveniles and

6 nonjuveniles to be a rational one when it comes to criminal sentencing. [Citations.]”

(People v. Jackson (2021) 61 Cal.App.5th 189, 196–197.) Accordingly, the distinction

that section 3051 draws between juvenile offenders with LWOP sentences and youthful

offenders with LWOP sentences has repeatedly been upheld. (Id. at pp. 196–198; accord,

People v. Bolanos (2023) 87 Cal.App.5th 1069, 1079, review granted Apr. 12, 2023,

S278803; People v. Sands (2021) 70 Cal.App.5th 193, 204–205; In re Murray (2021) 68

Cal.App.5th 456, 463–465; People v. Acosta (2021) 60 Cal.App.5th 769, 779–781.)

III

CRUEL AND UNUSUAL PUNISHMENT

Defendant contends that denying Franklin hearings to youthful offenders with

LWOP sentences results in cruel and unusual punishment. Basically, this is a contention

that section 3051 itself results in cruel and unusual punishment.

In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the Supreme Court held that

the Eighth Amendment prohibits a mandatory LWOP sentence for a juvenile offender,

even for homicide. (Id. at pp. 465, 479.) It explained, in part, that “children are

constitutionally different from adults for purposes of sentencing. Because juveniles have

diminished culpability and greater prospects for reform, . . . ‘they are less deserving of

the most severe punishments.’ [Citation.] . . . First, children have a ‘“lack of maturity

and an underdeveloped sense of responsibility,”” leading to recklessness, impulsivity,

and heedless risk-taking. [Citation.] Second, children ‘are more vulnerable . . . to

negative influences and outside pressures,’ including from their family and peers; they

7 have limited ‘contro[l] over their own environment’ and lack the ability to extricate

themselves from horrific, crime-producing settings. [Citation.] And third, a child’s

character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions

less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ [Citation.]” (Id. at p. 471.)

Therefore, “a sentencer [must] have the ability to consider the ‘mitigating qualities of

youth.’ [Citation.]” (Id. at p. 476.)

In People v. Franklin, supra, 63 Cal.4th 261, the defendant was convicted of first

degree murder, committed when he was 16 years old, and given the mandatory sentence

(see id. at p. 272) of 50 years to life. (Id. at p. 271.) On appeal, the defendant argued that

this was a de facto LWOP sentence, and that imposing a mandatory de facto LWOP

sentence on a juvenile offender constituted cruel and unusual punishment. (Id. at p. 273.)

The Supreme Court agreed with the principle that imposing a mandatory de facto

LWOP sentence on a juvenile offender constitutes cruel and unusual punishment.

(Franklin, supra, 63 Cal.4th at p. 276.) However, it declined to decide whether

Franklin’s sentence was, in fact, a de facto LWOP sentence. Instead, it held that the

enactment of section 3051 mooted his cruel and unusual punishment claim. It explained

that the sentence of 50 years to life was no longer mandatory, and that the Board of

Parole Hearings could consider the attributes of youth in deciding whether to require

Franklin to actually serve that sentence. (Id. at pp. 276–280.)

Here, defendant argues that youthful offenders share “the mitigating qualities of

youth” with juvenile offenders and not with adult offenders. He cites two law review

8 articles and one scientific article, all making the undeniable point that full maturity does

not arrive with a thunderclap on one’s 18th birthday. Thus, in his view, a mandatory

LWOP sentence for a youthful offender constitutes cruel and unusual punishment; the

Eighth Amendment requires that the sentencer must be able to consider the mitigating

qualities of youth, at a section 3051 hearing or otherwise; and finally, if a youthful

offender is entitled to a section 3051 hearing, then he or she is equally entitled to a

Franklin hearing in preparation for that section 3051 hearing.

Our Supreme Court has repeatedly held that it is not cruel and unusual punishment

to impose the death penalty on a youthful offender, as opposed to a juvenile offender.

(People v. Flores (2020) 9 Cal.5th 371, 429–430 [18 to 21 years old]; People v. Powell

(2018) 6 Cal.5th 136, 191–192 [18 years old]; People v. Gamache (2010) 48 Cal.4th 347,

404–405 [18 years old].) “[A] death judgment against an adult is not unconstitutional

merely because that person may share certain qualities with some juveniles.” (People v.

Powell, supra, at p. 192.)

Most recently, in People v. Tran (2022) 13 Cal.5th 1169, it held that it is not cruel

and unusual punishment to impose the death penalty on a youthful offender who was 20

when he committed murder. (Id. at pp. 1234–1235.) It explained: “‘[T]he “‘“qualities

that distinguish juveniles from adults do not disappear when an individual turns 18,”’”

but nonetheless . . . the “‘“age of 18 is the point where society draws the line for many

purposes between childhood and adulthood”’” and is “‘“the age at which the line for

death eligibility ought to rest.”’”’ [Citation.]” (Ibid.) It also did not find “‘“the ‘national

9 consensus’ necessary to justify a categorical bar on the death penalty for individuals

between the ages of 18 and 21 at the time of their offenses. [Citation.] . . .” [Citation.]’”

(Ibid..)

Because, as to a youthful offender, death itself is not necessarily cruel and unusual

punishment, neither is a mandatory LWOP sentence. (People v. Acosta, supra, 60

Cal.App.5th at p. 781; In re Williams (2020) 57 Cal.App.5th 427, 439; People v.

Montelongo (2020) 55 Cal.App.5th 1016, 1030–1032; People v. Argeta (2012) 210

Cal.App.4th 1478, 1482.) That includes a mandatory LWOP sentence without access to a

section 3051 hearing.

IV

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFICIAL REPORTS

RAMIREZ

P. J.

We concur:

FIELDS

J.

RAPHAEL

J.

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