Filed 7/30/26 P. v. Bailey CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B345786
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA029812)
v.
JACOB BAILEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David W. Stuart, Judge. Affirmed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and David S. Wildman, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Jacob Bailey appeals from a postjudgment order denying
his motion for a Franklin/Cook1 hearing to develop and preserve
evidence for a future youth offender parole hearing. The superior
court determined Bailey was ineligible for a youth offender parole
hearing under Penal Code section 30512 because he was
sentenced to life without the possibility of parole (LWOP) for
offenses that were committed “after [he] had attained 18 years of
age.” (§ 3051, subd. (h).) Bailey was 18 years eight months old
when he committed the offenses. Bailey contends section 3051
violates his federal and state constitutional rights to equal
protection. He also argues his sentence constituted cruel or
unusual punishment in violation of the California Constitution.
(See Cal. Const., art. I, § 17.) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
In 1999 a jury found Bailey guilty on two counts of first
degree murder of Elmer Ortiz and Eddie Marquez and one count
of attempted willful, deliberate, and premeditated murder of
1 In People v. Franklin (2016) 63 Cal.4th 261, 283-284, the
California Supreme Court held a juvenile offender who is eligible
for a youth offender parole hearing under Penal Code section
3051 is entitled to a hearing to develop and preserve youth-
related mitigation evidence. In In re Cook (2019) 7 Cal.5th 439,
451, the Supreme Court further held that “an offender entitled to
a hearing under [Penal Code] sections 3051 and 4801 may seek
the remedy of a Franklin proceeding even though the offender’s
sentence is otherwise final.”
2 Further statutory references are to the Penal Code.
3 We omit the facts regarding the underlying offenses
because they are not relevant to our analysis.
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Julio Alcaraz. For each murder count, the jury found true a
multiple murder special circumstance (§ 190.2, subd. (a)(3)).
With respect to Marquez’s murder, the jury also found true a
special circumstance allegation that the murder was perpetrated
by shooting from a vehicle, intentionally at a person outside the
vehicle with the intent to inflict death (§ 190.2, subd. (a)(21)).
With respect to all counts, the jury found several firearm
enhancements true (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b),
(d), (e)).
The trial court sentenced Bailey to two consecutive
indeterminate terms of life in prison without the possibility of
parole for the murders and a consecutive indeterminate term of
life with the possibility of parole for the attempted murder. For
each count, the court imposed a consecutive 25-years-to-life
enhancement under section 12022.53, subdivision (d). On direct
appeal, this court ordered stricken one of the two multiple
murder special circumstances and made other minor
modifications before affirming the judgment. (People v. Bailey
(Feb. 14, 2002, B144133) [nonpub. opn.].)
In 2023 Bailey filed a section 1172.6 (former section
1170.95) petition for resentencing. The superior court held a
prima facie hearing and denied the petition without issuing an
order to show cause. We affirmed the superior court’s denial.
(People v. Bailey (May 1, 2025, B340543) [nonpub. opn.].)
In 2025 Bailey, representing himself, filed a motion
requesting a Franklin/Cook hearing to develop and preserve
youth-related mitigation evidence for a future youth offender
parole hearing under section 3051. The superior court
summarily denied Bailey’s request, explaining Bailey “is
statutorily ineligible for a youth offender parole hearing.”
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Bailey timely appealed.
DISCUSSION
A. Section 3051 Does Not Violate Bailey’s Constitutional Right
to Equal Protection
Section 3051 requires the Board of Parole Hearings to
conduct a “youth offender parole hearing” for certain persons who
are incarcerated for crimes they committed when they were 25
years old or younger. (§ 3051, subds. (a)(1), (b)(1)-(4).) “Under
the current version of the statute, most persons incarcerated for a
crime committed between ages 18 and 25 are entitled to a parole
hearing during the 15th, 20th, or 25th year of their incarceration.
[Citation.] But not all [young adult] offenders are eligible for
parole hearings. The statute excludes, among others, offenders
who are serving sentences of life in prison without the possibility
of parole for a crime committed after the age of 18.” (People v.
Hardin (2024) 15 Cal.5th 834, 838-839 (Hardin); see § 3051,
subd. (h).) Defendants who are statutorily ineligible for a youth
offender parole hearing are not entitled to a Franklin hearing.
(People v. Sands (2021) 70 Cal.App.5th 193, 197.)
Bailey was 18 years eight months old when he committed
the offenses for which he was sentenced to LWOP. As he
acknowledges, because he was sentenced to LWOP for a crime
committed after the age of 18, he is statutorily ineligible for a
youth offender parole hearing under section 3051, subdivision (h).
Nonetheless, Bailey argues section 3051, subdivision (h), violates
the equal protection clause of the federal and state Constitutions
because it treats young adult offenders (ages 18 to 25) who are
serving LWOP sentences differently than both young adult
offenders serving non-LWOP sentences and juveniles (under 18
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years of age) serving LWOP sentences. With respect to both sets
of inmates, he asserts that the Legislature did not have a rational
basis to treat them differently. We review his equal protection
claims de novo (People v. Morales (2021) 67 Cal.App.5th 326,
345), and we apply a rational basis standard of review to a
defendant’s equal protection challenge to section 3051 (Hardin,
supra, 15 Cal.5th at p. 839).
In Hardin, the California Supreme Court rejected Bailey’s
argument as to the first set of inmates. It concluded that section
3051’s disparate treatment of young adults sentenced to LWOP
and young adults sentenced to non-LWOP did not violate equal
protection. (Hardin, supra, 15 Cal.5th at p. 839.) Bailey
acknowledges Hardin forecloses his equal protection argument as
between that set of inmates. However, Bailey contends Hardin
did not directly consider his equal protection argument as to the
second set of inmates—that there is no rational basis to treat
young adult offenders sentenced to LWOP differently from
juvenile offenders sentenced to LWOP. Bailey is correct that
Hardin did not address this equal protection challenge because
the defendant in Hardin did not raise it on appeal. (Id. at
p. 846.)
However, we have previously held “there is a rational basis
for the Legislature’s decision to treat these two groups
differently” for purposes of section 3051. (People v. Hardin (2022)
84 Cal.App.5th 273, 285, reversed on other grounds by Hardin,
supra, 15 Cal.5th at p. 8394; accord, People v. Sands, supra,
4 Hardin noted that “the Court of Appeal in this case held,
and [Hardin] d[id] not dispute, that the Legislature acted
reasonably in distinguishing between offenses committed before
5
70 Cal.App.5th at p. 204 [in the context of section 3051, the
Legislature had a rational basis to distinguish between offenders
with LWOP sentences based on their age]; In re Murray (2021)
68 Cal.App.5th 456, 463-464 [same]; People v. Morales, supra,
67 Cal.App.5th at p. 347 [same]; People v. Jackson (2021)
61 Cal.App.5th 189, 196-197 [same]; People v. Acosta (2021)
60 Cal.App.5th 769, 779-780 [same].) We held: “ ‘The
Legislature had a rational basis to distinguish between offenders
with the same sentence (life without parole) based on their age.
For juvenile offenders, such a sentence may violate the Eighth
Amendment. [Citations.] But the same sentence does not violate
the Eighth Amendment when imposed on an adult, even an adult
under the age of 26.... [T]he Legislature could rationally decide
to remedy unconstitutional sentences but go no further.’ (Accord,
People v. Acosta, supra, 60 Cal.App.5th at pp. 779-780 [‘Section
3051 now affords a youth offender parole hearing to juvenile
LWOP offenders to comply with Montgomery [v. Louisiana (2016)
577 U.S. 190] without resorting to costly resentencing hearings.
[Citation.] The Legislature declined to include young adult
LWOP offenders in this amendment, presumably because
Montgomery did not compel such treatment for young adults.
The Legislature thus had a constitutionally sufficient basis for
distinguishing juvenile LWOP offenders from young adult LWOP
offenders’] ….)” (Hardin, 84 Cal.App.5th at pp. 285-286, reversed
on other grounds.)
For these reasons, we also reject Bailey’s claim that the
Legislature acted irrationally in granting youth offender parole
and after the age of 18 because the Eighth Amendment (and the
law more generally) makes the same distinction.” (Hardin,
supra, 15 Cal.5th at p. 846.)
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hearings to juvenile offenders with LWOP sentences but denying
such hearings to young adult offenders with LWOP sentences.
B. Section 3051 Does Not Violate the State Constitutional
Prohibition Against Cruel or Unusual Punishment
Bailey also argues the exclusion in section 3051 of young
adult offenders sentenced to LWOP violates our state’s
prohibition against “[c]ruel or unusual punishment” (Cal. Const.,
art. I, § 17). Bailey specifically contends that even if his sentence
did not constitute cruel or unusual punishment when it was
imposed, “the recent expression by the Legislature in sections
3051 and 4801 in effect that youthful offenders committing
serious or violent offenses before they became 26 years old are
less culpable than those who committed such offenses after they
turned 26 and thus should be given youth offender parole
hearings at some point, causes LWOP sentences, without any
hope for a parole hearing and possible parole at some point, for
such offenders, to be grossly disproportionate to the offenses for
which they were imposed.” Bailey did not raise this argument in
the superior court; thus, it is forfeited. (See People v. Brewer
(2021) 65 Cal.App.5th 199, 212 [“Because defendant failed to
make the contention that his sentence constituted cruel and
unusual punishment in violation of the … California Constitution
in the trial court, he has forfeited the issue.”]; People v. Baker
(2018) 20 Cal.App.5th 711, 720 (Baker) [“A claim that a sentence
is cruel or unusual requires a ‘fact specific’ inquiry and is
forfeited if not raised below.”].) Even if Bailey had not forfeited
his claim, he failed to meet his burden to show his LWOP
sentence constitutes cruel or unusual punishment.
We review Bailey’s claim de novo. (Baker, supra,
20 Cal.App.5th at p. 721.) The California Constitution prohibits
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“[c]ruel or unusual punishment.” (Cal. Const., art. I, § 17,
emphasis added.) The Eighth Amendment to the United States
Constitution prohibits “cruel and unusual punishment[ ].” (U.S.
Const., 8th Amend., italics added.) A sentence violates either
constitution “when the penalty is ‘grossly disproportionate to the
offense’ [citation] so that it ‘ “shocks the conscience and offends
fundamental notions of human dignity.” ’ ” (People v. Steskal
(2021) 11 Cal.5th 332, 378.)
Bailey’s argument is foreclosed by the California Supreme
Court’s holding that section 3051 does not bar imposition of the
death penalty for young adult offenders under the Eight
Amendment. (See People v. Flores (2020) 9 Cal.5th 371, 429
[section 3051 provides no basis for concluding the Eighth
Amendment bars the death penalty for young adult offenders];
accord, People v. Tran (2022) 13 Cal.5th 1169, 1234 [rejecting
argument that imposing death penalty for crimes committed by
18- to 20-year-olds violates the state and federal Constitutions
because it is cruel and unusual punishment].) The Supreme
Court has thus reaffirmed the age of 18 as the bright line
separating childhood from adulthood in assessing the propriety of
criminal punishments like the death penalty. (See Flores, at
p. 429; see also Roper v. Simmons (2005) 543 U.S. 551, 554
[“While drawing the line at 18 is subject to the objections always
raised against categorical rules, that is the point where society
draws the line for many purposes between childhood and
adulthood and the age at which the line for death eligibility ought
to rest.”].) As the court in In re Williams (2020) 57 Cal.App.5th
427 aptly stated, “If the Eighth Amendment does not prohibit a
sentence of death for 21 year olds, then most assuredly, it does
not prohibit the lesser LWOP sentence.” (Id. at p. 439.)
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Although Flores was decided on federal constitutional grounds,
Bailey offers no persuasive reason why its reasoning would not
also apply to claims under the California Constitution. (See
Baker, supra, 20 Cal.App.5th at p. 733.) Accordingly, consistent
with Flores, we reject Bailey’s claim.
DISPOSITION
The order is affirmed.
STONE, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
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