Filed 8/31/26 P. v. Burbie CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G065618

v. (Super. Ct. No. 93NF1860)

DERRIC JERANT BURBIE, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, M.
Marc Kelly, Judge. Affirmed.
Sheila O’Connor, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Heather B. Arambarri and Christine Y. Friedman, Deputy Attorneys
General, for Plaintiff and Appellant.
* * *
 Defendant Derric Jerant Burbie appeals from an order denying a
youthful offender parole hearing under Penal Code section 30511 and
proceedings pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
Burbie, who was 20 years old at the time, was convicted of first degree
murder with a robbery special circumstance in 1994. He contends that based
on the jury instructions given in his case, denying him the opportunity for
parole is a violation of equal protection. He argues the jury instructions did
not distinguish between first degree felony murder and felony murder with
special circumstances, and therefore, he should be treated as an offender who
was convicted only of felony murder.
The jury, however, was instructed separately on felony murder
and murder with special circumstances. The murder with special
circumstances instruction added the requirement that the murder was
committed in order to advance or carry out the robbery. We do not find the
Legislature acted irrationally by excluding those convicted of first degree
murder with special circumstances from youth offender parole eligibility. We
therefore conclude the court did not err by denying Burbie’s motion and
affirm the order.
STATEMENT OF FACTS
This abbreviated version of the facts is from our original opinion
in this matter. (People v. Burbie (May 9, 1996, G016402) [nonpub. opn.].) On
the evening of June 20, 1993, Filiberto Perez and Ruben Nieto were in a
vehicle, exiting a parking lot in Anaheim when they saw a young woman
standing by the fence. They asked her if she needed help. She gestured with
her hand, and five or six young men appeared, their faces covered with

1 Subsequent statutory references are to the Penal Code unless

otherwise indicated.

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bandanas. Three of the men were carrying knives and went to the passenger
side of the vehicle, where Nieto was seated. Two or three others, at least one
of whom had a gun, approached Perez on the driver’s side. The men ordered
Perez and Nieto out of the car. Shots were fired, and Perez was killed. Nieto
suffered a cut to his right hand. The men fled over a wall into a softball field.
(Ibid.)
Two hours later, the police saw Jermaine Davis and another
person in the field with flashlights. A knife was later recovered there. (People
v. Burbie, supra, G016402.)

Tywayne Decuir was Davis’s half-brother. Decuir’s palm print
was later found on the passenger door of the car. Decuir was detained for a
curfew violation a few hours after the shooting. When he and his mother
returned home, which was about a mile from the scene of the shooting, they
found Burbie, Silhouette Gomez, and Chris Sesellarole outside. Davis was
inside. Decuir left the next day, telling his mother that he was going to
Arizona with Burbie and Juan Carlos Kennedy. (People v. Burbie, supra,
G016402.)
Davis cooperated with police. In a recorded call, defendant said
Gomez had been interviewed by the police but had not given any information.
Burbie made various incriminating statements. (People v. Burbie, supra,
G016402.)
In a later meeting, Davis wore a hidden transmitter when he met
with Burbie, Gomez, and others. They discussed the police investigation and
speculated about who was cooperating. Davis said Decuir was being charged
with felony murder and armed robbery. Burbie stated that there had been no
robbery because the victims had nothing on them, and “‘[i]t was an attempt.’”
He said Sesellarole stabbed someone but did not do so on purpose. He also

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wondered why police hadn’t taken him or Davis into custody for the murder.
Burbie stated he had lost his “.380,”2 referring to a gun, in a stolen Suzuki
Samurai.
Davis said that he was getting a ride out of town. Burbie said he
would go with him and suggested they rob a store. Responding to Gomez’s
concern about cameras, Burbie stated, “‘Either [we] take this murder rap, or
. . . all the money out of 7-11. Now which one would y’all take?’”
At Davis’s prompting, Burbie recalled details of the shooting:
“‘We was like . . . stop the car dude. [I] was like get out the car cuz. [T]urn off
the car, turn off the car. . . . And I tried to reach inside and grab the keys and
cuz rushed my hands and I was like . . . what you doin[g]. . . . Look he was
sittin[g] in the car looked at me just like this. He looked at me, looked at the
strap. Okay, look, looked at me, looked at the strap, looked at me, he looked
at his homeboy, he looked at me again and said no. Just like that. And cuz
says no and hit the gas (makes noise of vehicle accelerating). As soon as . . .
he says no, it snapped in my mind. It was like cuz what? And [he] hit the gas.
It went pow, it went pop, pop, pop. I shot, I shot one, bang, then you went
bang, then bang. I said cuz lets’s get outta here and we hit the wall. . . .’” He
was arrested while walking toward a liquor store, in possession of a handgun.
(People v. Burbie, supra, G016402.)
At trial, defendant testified that he had lied to Davis during their
recorded conversations. His girlfriend testified that he was in Arizona at the
time of the shooting. (Burbie had told the arresting officer he was in Anaheim

2 A .38 caliber cartridge that matched the one found at the murder

scene was discovered in defendant’s room. The gun used in the shooting was
later recovered in a Suzuki Samurai belonging to William Willis in Arizona.
Decuir had sold the gun to him. (People v. Burbie, supra, G016402.)

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at the time.) A psychiatrist testified that Burbie was a narcissist and teller of
tales who exaggerated his acts to gain attention and admiration. (People v.
Burbie, supra, G016402.)
A jury convicted Burbie of the first degree murder of Perez
(§ 187, subd. (a)), assault with a deadly weapon on Nieto (§ 245, subd. (a)(1)),
and attempted robbery as to both victims (§§ 211, 664). The jury also found
true the special circumstance that Burbie was engaged in the commission or
attempted commission of robbery (former §190.2, subd. (a)(17)(i))3 and the
allegation that he had personally used a firearm during the murder and the
attempted robbery. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) Burbie was
sentenced to life without the possibility of parole on the robbery murder with
a four-year consecutive term for the firearm enhancement. Sentence for the
remaining counts was either concurrent or stayed pursuant to section 654.
We affirmed the judgment on appeal. (People v. Burbie, supra, G016402.)
In January 2025, Burbie filed a motion for a youth offender
parole hearing under section 3051 and a Franklin hearing. He acknowledged
he was statutorily ineligible for youth offender parole (§ 3051, subds. (b)(4),
(h)) but asked the court to find these hearings were required by the equal
protection guarantees of the state and federal Constitutions.
The court held a hearing on Burbie’s motion in May 2025. For
purposes of the motion, Burbie conceded that he was the actual killer. The
court stated it had reviewed all of the motion papers, the amended
information, the complete set of jury instructions from Burbie’s 1994 trial,

3 At the time Burbie was charged and convicted, the special

circumstance of murder while engaged in an attempted robbery was codified
as section 190.2, subdivision (a)(17)(i). The current subdivision is (a)(17)(A)
and includes no substantive change.

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and the finding and verdict forms. The court had also reviewed the two key
cases in this area, People v. Briscoe (2024) 105 Cal.App.5th 479 (Briscoe), and
People v. Hardin (2024) 15 Cal.5th 834 (Hardin). The court ultimately denied
the motion for a youthful offender parole hearing as a matter of equal
protection. The court also denied Burbie’s request for a Franklin hearing
because he was ineligible for a youthful offender parole hearing.
Burbie now appeals.
DISCUSSION
I.
LEGAL FRAMEWORK
A. Standard of Review
“Where no suspect class or fundamental right is in play, we
analyze equal protection claims with rational basis review. [Citation.] [The
defendant] has the burden to show the distinctions he challenges fail this
‘deferential standard.’ [Citation.] We analyze his claims de novo.” (Briscoe,
supra, 105 Cal.App.5th at p. 487.) “Rational basis review ‘sets a high bar’ for
litigants challenging legislative enactments.” (Hardin, supra, 15 Cal.5th at p.
852.) “[W]e presume that a given statutory classification is valid ‘until the
challenger shows that no rational basis for the unequal treatment is
reasonably conceivable.’” (Ibid.)
B. Youth Offender Parole Hearings and Franklin Proceedings
In 2013, the Legislature adopted section 3051 “following a series
of court decisions identifying Eighth Amendment limits on the sentencing of
juvenile offenders.” (Hardin, supra, 15 Cal.5th at p. 843.) “‘In language
echoing the holdings of these cases,’ the statute established youth offender
parole hearings to offer ‘“a meaningful opportunity” for release [citation],
giving “great weight to the diminished culpability of youth as compared to

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adults, the hallmark features of youth, and any subsequent growth and
increased maturity” [citation].’ [Citation.]” (Briscoe, supra, 105 Cal.App.5th
at p. 488.)
In its original version, section 3051 granted youth offender parole
hearings “only for juvenile offenders incarcerated for crimes committed before
the age of 18.” (Hardin, supra, 15 Cal.5th at p. 845.) The Legislature later
amended the statute to grant hearings to those who committed their offenses
before the age of 26. (Id. at pp. 845–846.) “In expanding section 3051 beyond
the constitutional minimum age of 18 set out in [U.S. Supreme Court
decisions], the Legislature considered scientific evidence that neurological
development, particularly in areas of the brain relevant to judgment and
decisionmaking, continues beyond adolescence and into the mid-20’s.” (Id. at
p. 846.)
The current version of section 3051 grants youth offender parole
hearings to most defendants who committed their offenses before the age of
26. (§ 3051, subd. (a)(1).) But defendants who are serving a sentence of life
without parole are eligible for a youth offender parole hearing only if they
committed the relevant offense before they turned 18. (§ 3051, subds. (a)(1),
(b)(4).) The Legislature has not expanded relief to defendants serving life
without parole who committed the relevant offense after they turned 18.
Those defendants are explicitly ineligible for youth offender parole hearings.
(§ 3051, subd. (h).)
A defendant who qualifies for a future youth offender parole
hearing under section 3051 is entitled to a proceeding in the trial court at
which the defendant “may place on the record any documents, evaluations, or
testimony (subject to cross-examination) that may be relevant at his eventual
youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at p. 284.)

7
 Burbie does not deny he is statutorily ineligible for a youth
offender parole hearing, and therefore has no need for a Franklin hearing. He
contends, however, that he “falls within the exception laid out in Briscoe and
he should be entitled to a youthful offender hearing under the equal
protection doctrine as it was applied to him here.”
C. Hardin
In Hardin, supra, 15 Cal.5th 834, the 25-year-old defendant
robbed and killed an elderly neighbor. He was convicted of murder with the
special circumstance that he murdered the victim during a robbery. (§ 190.2,
subd. (a)(17)(A).) He was sentenced to life without parole. (Hardin, supra, 15
Cal.5th at p. 840.)
Decades later, he sought a Franklin proceeding. (Hardin, supra,
15 Cal.5th at p. 840.) He acknowledged he was not eligible for a youth
offender parole hearing under section 3051. He contended his exclusion was a
violation of equal protection because it treated young adult offenders
sentenced to life without parole for special circumstance murder differently
from other young adult offenders serving life sentences with parole eligibility
for other crimes. The trial court denied his motion, but the court of appeal
reversed. (Hardin, at p. 840.)
On review, the court noted the case’s scope. “Hardin effectively
challenges the life without parole exclusion on its face, in all of its
applications. He also challenges the exclusion more specifically as it applies
to young adult offenders who are, like him, serving life without parole
sentences following convictions for first degree murder with one or more
special circumstances.” (Hardin, supra, 15 Cal.5th at p. 847.)
The court reviewed the equal protection issues using the
deferential rational basis test. (Hardin, supra, 15 Cal.5th at p. 847.) “A court

8
applying this standard finds ‘a denial of equal protection only if there is
no rational relationship between a disparity in treatment and some
legitimate government purpose.’” (Ibid.) The court employed a new test,
finding “[t]he only pertinent inquiry is whether the challenged difference in
treatment is adequately justified under the applicable standard of review.”
(Id. at pp. 850–851.)
Hardin’s key argument, the court noted, “is that section 3051’s
exclusion of offenders sentenced to life without possibility of parole has no
rational basis because it is inconsistent with what he understands to be the
‘sole’ purpose behind the statute: to create ‘a meaningful opportunity for
release for youthful offenders, who were 25 or younger at the time of their
crimes, through demonstrated growth and rehabilitation.’” (Hardin, supra, 15
Cal.5th at pp. 852–853.) The court rejected this as overly simplistic, finding
that section 3051 had multiple objectives. (Id. at p. 854.) “No one doubts that
the Legislature’s primary purpose in expanding section 3051 to include young
adult offenders was to give these young persons the opportunity to obtain
release based on demonstrated growth and rehabilitation. Even though the
Eighth Amendment requires that this opportunity be afforded only to persons
who committed their crimes as juveniles, the Legislature determined that
comparable opportunities should be available to some older offenders as well.
But the structure and history of the expansion make clear that the
Legislature sought to balance this primary objective with other, sometimes
competing, concerns, including concerns about culpability and the
appropriate level of punishment for certain very serious crimes.” (Ibid.)
“[T]he Legislature consciously drew lines that altered the parole component
of offenders’ sentences based not only on the age of the offender (and thus the
offender’s amenability to rehabilitation) but also on the offense and sentence

9
imposed. The lines the Legislature drew necessarily reflect a set of legislative
judgments about the nature of punishment that is appropriate for the crime.”
(Id. at p. 855.)
Following an extensive analysis, the court ultimately found no
equal protection violation, concluding that the Legislature could conclude
that young offenders who have committed certain very serious crimes should
remain ineligible for release. “While we do not foreclose the possibility of
other challenges to the distinctions drawn by the special circumstances
statute based on a more robust record or a more focused as-applied inquiry,
Hardin has not carried his burden to demonstrate that legislative reliance on
the special circumstance murder statute in section 3051, subdivision (h) is
categorically irrational.” (Hardin, supra, 15 Cal.5th at p. 862.)
D. Briscoe

Following the California Supreme Court’s decision in Hardin, the
court of appeal decided Briscoe, supra, 105 Cal.App.5th 479. In that case, the
21-year-old defendant and an accomplice participated in a home invasion
robbery in 1998. (Id. at p. 485.) During the robbery, both Briscoe and the
accomplice were armed. A struggle occurred, resulting in the fatal shooting of
the accomplice by the victim. Briscoe was convicted of first degree murder,
robbery, and burglary, with firearm enhancements and a special
circumstance finding of murder during a robbery and burglary. He was
sentenced to life without parole. (Ibid.)
In 2022, Briscoe moved for a youth offender parole hearing under
section 3051 and for a Franklin proceeding. (Briscoe, supra, 105 Cal.App.5th
at p. 486.) He acknowledged he was statutorily ineligible but claimed he was
entitled to equal protection relief under the state and federal Constitutions.
The trial court denied both requests. (Ibid.)

10
 The Briscoe court acknowledged Hardin, but noted that Hardin
had expressly left open the possibility of as applied challenges based on the
specific facts of the case. (Briscoe, supra, 105 Cal.App.5th at pp. 484–485.)
Briscoe’s primary challenge was “to section 3051’s inclusion of youth
offenders convicted of first degree felony murder under section 189,
subdivision (e)(3) while excluding those sentenced for special circumstance
murder under section 190.2, subdivision (d).” (Id. at p. 489.)
The Briscoe court reviewed the statutory context, noting the
history of the felony murder doctrine. “Under the old version of this doctrine,
a defendant could be convicted of first degree felony murder without a
showing they actually killed anyone, or acted with intent to kill or even
implied malice—but merely by a showing they intended to commit the
underlying felony during which a murder took place. [Citation.] The
defendant then could be punished by death or life without parole per the
felony-murder special circumstance involving the most serious felonies.”
(Briscoe, supra, 105 Cal.App.5th at pp. 490–491.) But under current law, the
felony-murder rule was limited to those who had personally killed or
intended to kill. (Id. at p. 489; see People v. Banks (2015) 61 Cal.4th 788,
798.) In response, the voters enacted section 190.2, subdivision (d). That
section stated that “a major participant in a felony who was not the actual
killer or did not intend to kill may be convicted of this special circumstance if
they acted with reckless indifference to human life.” (Briscoe, at p. 491.)
Thereafter, the Legislature “amended section 189 to limit felony-
murder liability—in part by directly incorporating the section 190.2,
subdivision (d) standard into the definition of first degree felony murder
under section 189, subdivision (e)(3). [Citation.] The result is that today,
those convicted of first degree felony murder under section 189 must have

11
violated the exact same standard of conduct as special circumstance
murderers under section 190.2, subdivision (d).” (Briscoe, supra, 105
Cal.App.5th at p. 491.)
In sum, under current law, section 190.2, subdivision (d) states,
in relevant part: “[E]very person, not the actual killer, who, with reckless
indifference to human life and as a major participant, aids, abets, counsels,
commands, induces, solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in the death of
some person or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if a special circumstance enumerated in
paragraph (17) of subdivision (a) has been found to be true . . . .”
The current version of section 189, subdivision (e)(3), states: “A
participant in the perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if one of the
following is proven: [¶] . . . [¶] (3) The person was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”
Because the current version of both statues imposed the same
standard for liability for major participants acting with reckless indifference,
the court held, the result was “an irrational distinction between equally
culpable youth offenders seeking parole that the Legislature did not
contemplate.” (Briscoe, supra, 105 Cal.App.5th at p. 490.) After considering
section 3051 and its purpose, the court concluded there was no rational basis
for a distinction between the two crimes. “As applied to youth offenders
sentenced under section 190.2, subdivision (d) for murder during a robbery or
burglary, the statute violates equal protection.” (Briscoe, at p. 495.)

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 II.
BURBIE HAS NOT ESTABLISHED AN EQUAL PROTECTION VIOLATION
A. Relevant Jury Instructions
The jury was instructed on both felony murder and special
circumstance murder. With regard to felony murder, the jury was instructed
with CALJIC No. 8.21, which stated: “The unlawful killing of a human being,
whether intentional, unintentional or accidental, which occurs during the
commission or attempted commission of the crime of robbery is murder of the
first degree when the perpetrator had the specific intent to commit such
crime. [¶] The specific intent to commit robbery and the commission or
attempted commission of such crime must be proved beyond a reasonable
doubt.” The jury was also instructed with CALJIC No. 8.27, which addressed
first degree felony murder for aiders and abettors.
The jury was also instructed on special circumstance murder. The
introductory instruction, CALJIC No. 8.80.1, stated, as relevant to the actual
killer: “If you find the defendant in this case guilty of murder of the first
degree, you must then determine if the following special circumstance is true
or not true: The murder was committed while the defendant was engaged in
the commission or attempted commission of a robbery. [¶] The People have
the burden of proving the truth of a special circumstance. If you have a
reasonable doubt as to whether a special circumstance is true, you must find
it to be not true. [¶] If you are satisfied beyond a reasonable doubt that the
defendant actually killed a human being, you need not find that the
defendant intended to kill in order to find the special circumstance to be
true.”
The specific instruction on section 190.2, subdivision (a)(17)
stated: “To find that the special circumstance, referred to in these

13
instructions as murder in the commission or attempted commission of a
robbery, is true, it must be proved: [¶] 1. The murder was committed while
the defendant was engaged in the commission or attempted commission of a
robbery; and [¶] . . . [¶] 2. The murder was committed in order to carry out or
advance the commission of the crime of attempted robbery or to facilitate the
escape therefrom or to avoid detection. In other words, the special
circumstance referred to in these instructions is not established if the
attempted robbery was merely incidental to the commission of the murder.”
(Brackets omitted.)
As noted above, the jury found Burbie guilty of murder, found the
special circumstance true, and found that Burbie personally used a firearm in
the commission of the murder.
B. No Equal Protection Violation Occurred
Burbie asserts that Briscoe, and not Hardin, should control here.
We disagree. Unlike the defendant in Briscoe, Burbie, like the defendant in
Hardin, was the actual killer. The special circumstance finding was under
section 190.2, subdivision (a)(17). He was not convicted as an aider or abettor,
as evidenced by the jury’s true finding on the personal use of a firearm
allegation.
Burbie contends there was no legal distinction between felony
murder and special circumstances murder even as the actual killer. This is
simply not true. The special circumstance included the additional
requirement that “[t]he murder was committed in order to carry out or
advance the commission of the crime of attempted robbery or to facilitate the
escape therefrom or to avoid detection.” Briscoe noted this distinction. “The
felony-murder offense ‘is established merely upon a showing that the
defendant killed during the commission or attempted commission of the

14
felony.’ [Citation.] With respect to the felony-murder special circumstance,
courts have fashioned the independent felonious purpose rule so that the
special circumstance ‘applies “when the murder occurs during the
commission of the felony, not when the felony occurs during the commission
of a murder.”’ [Citation.] In other words, ‘[i]f the defendant committed the
felony for the sole purpose of effectuating the killing,’ the special
circumstance does not apply.” (Briscoe, supra, 105 Cal.App.5th at pp. 494–
495; see People v. Andreasen (2013) 214 Cal.App.4th 70, 82, fn. 7.)
Under Hardin, the exclusion of the actual killer convicted of
special circumstance murder does not offend equal protection principles.
(Hardin, supra, 15 Cal.5th at p. 864.) “[T]he Legislature consciously drew
lines that altered the parole component of offenders’ sentences based not only
on the age of the offender (and thus the offender’s amenability to
rehabilitation) but also on the offense and sentence imposed. The lines the
Legislature drew necessarily reflect a set of legislative judgments about the
nature of punishment that is appropriate for the crime.” (Id. at p. 855.) This
was well within the Legislature’s prerogative. “[S]pecial circumstance murder
is a uniquely serious offense,” and “the Legislature could rationally balance
the seriousness of the offender’s crimes against the capacity of all young
adults for growth, and determine that young adults who have committed
certain very serious crimes should remain ineligible for release from prison.”
(Id. at p. 839.) Burbie is serving life without parole for special circumstance
murder. Hardin forecloses his equal protection argument.

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 DISPOSITION
The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

SERVINO, J.

SCHWARM, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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