by Sam Rutherford

The Court of Appeal of California, District 1, held that Cal. Penal Code § 3051 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by denying youth offenders convicted of special circumstance murder predicated on robbery or burglary the right to a parole hearing while simultaneous permitting such hearings for youth offenders convicted of nonspecial circumstance felony murder predicated on the same underlying offenses.

In 1998, Khyle Armando Briscoe, then 21, participated in a robbery with Shaun P. During the robbery, Briscoe and Shaun P. both had guns. A struggle ensued, resulting in Ben P., the robbery victim, fatally shooting Shaun P. Briscoe was charged with first-degree murder, robbery, and burglary, with firearm-use enhancements and a special circumstance of murder during a robbery and burglary. A jury convicted Briscoe on all counts, and he was sentenced to life without parole.

Briscoe filed a motion in 2022 for a parole hearing under § 3051, which allows certain youth offenders to seek parole but excludes those sentenced to life without parole for special circumstance murder, as well as a proceeding under People v. Franklin, 370 P.3d 1053 (Cal. 2016), which affords youth offenders the opportunity to gather and present evidence that can be considered at a future parole hearing. He argued that this exclusion violates equal protection under the California and U.S. Constitutions. The trial court denied his motion, adhering to the majority view that § 3051 does not violate equal protection. Briscoe timely appealed.

Section 3051 denies parole hearings to youth offenders sentenced for special circumstance murder under § 190.2(d)—which applies to nonkiller participants in specified felony offenses during which a murder occurred—while including those convicted of nonspecial circumstance first degree felony murder for the same specified felony offenses per the exact same standard under § 189(e)(3). The question presented is whether this violates equal protection.

The Court began its analysis by noting that in People v. Hardin, 543 P.3d 960 (Cal. 2024), the California Supreme Court held that § 3051 does not violate equal protection to the extent it denies parole to youth life-without-parole sentenced offenders, “either on its face or as applied to [those] serving life without parole sentences for special circumstance murder” generally. But Hardin left open “other as-applied challenges” to the statute “based on particular special circumstances or the factual circumstances of individual cases,” according to the Court. Briscoe’s case involved just such a narrow challenge.

Challenges such as Briscoe’s, which do not involve a suspect class or fundamental right, are assessed under rational basis review. People v. Morales, 67 Cal. App. 5th 326 (2021). This means that disparities in sentencing laws will be upheld unless the challenged classification bears no rational relationship to a legitimate state purpose. Id. The defendant must “negative every conceivable basis that might support the disputed statutory disparity.” Johnson v. Department of Justice, 341 P.3d 1075 (Cal. 2015). Under this deferential standard, the law will be upheld whenever the reviewing court can “speculate any rational reason” for the distinction it draws. Morales.

In California, a conviction for first-degree murder, including first degree felony murder under § 189(e)(3), typically results in a life sentence with parole eligibility after 25 years in prison. However, § 190.2 requires a life without parole sentence for certain special circumstance murders, including for defendants who were not the “actual killer” but who “with reckless indifference to human life” was “a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of” certain underlying felonies including robbery and burglary. Cal. Penal Code § 190.2(d).

In 2013, the California Legislature enacted § 3051 in response to a series of court decisions setting Eighth Amendment limits on the sentencing of juvenile and young adult defendants. The statute grants these defendants the right to parole hearings to provide a meaningful opportunity for release based on the diminished culpability of youth when compared to adults. Hardin. The statute now applies to defendants who committed crimes before the age of 26 but excludes such defendants sentenced to life without parole.

Consequently, defendants such as Briscoe who committed special circumstances murder under § 190.2(d) before the age of 26 are ineligible for parole under § 3051; whereas, a youth defendant convicted of felony murder under § 189(e)(3) is not excluded from parole under § 3051.

The constitutional problem with this sentencing scheme is that both § 189(e)(3) and § 190.2(d) employ the same standard of liability. See In re Taylor, 34 Cal. App. 5th 543 (2019). In fact, as the Court explained, both “statutes now require a person who is not the actual killer or did not have the intent to kill to be a major participant in the underlying felony and act with reckless indifference to human life.” Citing §§ 190.2(d), 189(e)(3). In Briscoe’s case, the same underlying felonies—robbery and burglary—used as special circumstances under § 190.2(d) also elevate a second-degree murder conviction to first degree felony murder under § 189(e)(3).

Despite identical underlying standards for liability and predicate offenses, only youth defendants convicted of special circumstances murder under § 190.2(d) are denied parole eligibility under § 3051 based on having received life sentences. However, the Court reasoned that “disparate treatment of offenders who committed murder per these identical provisions during the same underlying felonies cannot reflect any difference in culpability.” Thus, the Court held that § 3051 “[a]s applied to youth offenders sentenced under section 190.2, subdivision (d) for murder during a robbery or burglary,” violates equal protection.

The Court then considered the proper remedy for the equal protection violation and concluded: “Since the main purpose of section 3051 is to give youth offenders an opportunity to demonstrate suitability for parole, we will reform the statute to include youth offenders like Briscoe who were sentenced to life without parole under section 190.2, subdivision (d) for murder during a robbery or burglary.”

Accordingly, the Court reversed the order denying Briscoe a Franklin hearing and a parole hearing under § 3051. See: People v. Briscoe, 105 Cal. App. 5th 479 (2024).

Editor’s note: Anyone with an interest in the narrow issue in this case is encouraged to read the Court’s full opinion, which examines the issue in great detail.  

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