People v. Livingston CA3

BACKGROUND

In 1996, Livingston was convicted by jury of first degree murder (§ 187, subd. (a)) with the special circumstances that the murder was committed in the commission of a rape or attempted rape (§ 190.2, subd. (a)(17)). The trial court imposed an LWOP sentence, and a panel of this court upheld the judgment. (People v. Livingston (Feb. 25, 1999, C025145) [nonpub. opn.].) On June 26, 2023, Livingston filed a pro. per. motion for a Franklin hearing to preserve evidence for use at a future youth offender parole hearing. On August 10, 2023, the trial court issued a written order denying his motion because Livingston was ineligible for relief as an LWOP offender over the age of 18 at the time of the offense. Nonetheless, the trial court’s order was without prejudice to refiling the motion if the California Supreme Court affirmed the opinion in People v. Hardin (2022) 84 Cal.App.5th 273. Livingston filed a notice of appeal with this court in September 2023. His opening brief was filed in February 2024, and this case was fully briefed on March 19, 2024.

DISCUSSION

Livingston argues the guarantees of equal protection under the United States and California Constitutions were…