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Court of Appeal:
Resentencing, Not Statutorily Authorized, May Be Sought
Do Says Penal Code Section Only Applies to Persons Who Committed Crimes As Juveniles and Were Sentenced
To LWOP, but Declares It Must Be Extended to Inmates Sentenced to Functional Equivalent of LWOP
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal declared yesterday that a statute authorizing an inmate who was sentenced to life imprisonment without possibility of parole for crimes committed as a minor must be extended, based on the Equal Protection Clause, to persons who received the functional equivalent of such a sentence.
San Diego Superior Court Judge John M. Thompson denied a resentencing petition filed by Frank Eli Heard, who is equivalent serving a sentence of 23 years plus 80 years to life for two murders he committed at age 15 during a drive-by shooting and voluntary manslaughter committed at age 16. He held that the resentencing statute, now Penal Code §1170(d)(1)(A), only applies to persons who were explicitly sentenced to life without possibility of parole—commonly known as “LWOP.”
Justice Truc T. Do agreed that the statute, on its face, does not apply to Heard—saying that “the phrase ‘life without the possibility of parole’ denotes a specific sentence.” But, she declared, in an opinion that reverses Thompson’s order, “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,” requiring that the merits of Heard’s petition be addressed on remand.
Supreme Court Opinion
Do noted that under the California Supreme Court’s 2016 decision in People v. Franklin, “Heard’s sentence as it currently operates is no longer the functional equivalent of life without parole.”
In that case, Justice Goodwin H. Liu wrote that in light of legislation that would afford the defendant a hearing during his 25th year of incarceration to put youthful mitigating factors on the record for use at a future parole hearing, the defendant’s sentence of 25 years to life “is neither LWOP nor its functional equivalent.”
Do wrote that “this does not change the fact that the sentence was a de facto life without parole sentence at the time it was imposed,” elaborating:
“Because section 1170, subdivision (d)(1)(A), refers to the “offense for which the defendant was sentenced to imprisonment for life without the possibility of parole” (italics added), and Heard was sentenced to the functional equivalent of a life without parole sentence, he is similarly situated with the juvenile offenders whose sentences make them eligible to seek resentencing.”
‘No Legitimate Reason’
The jurist went on to say:
“We can conceive of no legitimate reason for making juvenile offenders sentenced to explicit life without parole terms eligible to seek resentencing but not juvenile offenders sentenced to the equivalent of a life without parole sentence. Both groups, subject to limited exceptions, are now eligible for youth offender parole hearings. Heard will receive his youth offender parole hearing after 25 years of incarceration; so will a juvenile offender sentenced to an explicit term of life without parole. (§ 3051, subd. (b)(3), (4).) And yet only the latter group is permitted to petition for resentencing.
“The People’s sole justification for the differential treatment is that the Legislature ‘could have reasonably concluded that the punishment of [life without parole] imposed on those under age 18 could be excessive and this was an appropriate means of reform by allowing for reconsideration of such a sentence.’ But as Heard points out, the same concern applies equally to juveniles sentenced to the functional equivalent of life without parole.”
The case is People v. Heard, 2022 S.O.S. 5007.
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