Filed 4/4/24 P. v. Macias CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, E081599 v. (Super.Ct.No. FVI025322) RUBEN MACIAS, OPINION Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory Tavill, Judge. Affirmed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Kathryn Kirschbaum and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION In 2007, defendant and appellant Ruben Macias was convicted by a jury of special circumstance first degree murder (Pen. Code,1 § 187) and sentenced to life without the possibility of parole. In 2022, defendant filed a motion pursuant to People v. Franklin (2016) 63 Cal.4th 261, seeking a hearing (Franklin hearing) to preserve evidence of youth-related mitigating factors that may be relevant to a future youthful offender parole hearing under section 3051.2 The trial court denied the motion on the ground that, under section 3051, persons serving a sentence of life without the possibility of parole are not eligible for youthful offender parole hearings.

Defendant appeals, asserting only a facial challenge to the constitutional validity of section 3051 on the ground that treating youthful offenders sentenced to life without the possibility of parole differently than other youthful offenders violates the United States and California constitutions’ guarantees of equal protection. We respectfully find defendant’s argument unpersuasive for the same reasons we articulated in People v. Ngo (2023) 89 Cal.App.5th 116, review granted May 17, 2023, S279458 (Ngo), and the reasons expressed by the California Supreme Court’s recent opinion in People v. Hardin (Mar. 4, 2024, S277487)___Cal.5th___[2024 Cal.Lexis 1076] (Hardin). As such, we affirm the trial court’s order.

II. BACKGROUND In 2007, defendant was convicted by a jury of first degree murder (§ 187; count 1); two counts of attempted murder (§§ 187, 664, counts 2, 3); one count of prohibited possession of a firearm (§ 12021, subd. (a), count 4); and one count of street terrorism (§ 186.22, subd. (a), count 5). The jury also found true special allegations that the murder in count 1 was committed while defendant was an active participant in a criminal street gang and for the purpose of furthering the activities of the gang (§ 190.2, subd. (a)(22)); the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)); and defendant personally used a firearm causing death in the commission of the offenses (§ 12022.53, subd. (d)). In addition, defendant admitted he had suffered a prior prison term within the meaning of former section 667.5, subdivision (b). Defendant was sentenced to life in state prison without the possibility of parole, as well as a term of years to life for the personal use of a firearm causing death on count 1.3 At the time defendant committed the offenses, he was 24 years of age.

In 2022, defendant filed a motion for a Franklin hearing seeking to preserve evidence for a potential youth offender parole hearing pursuant to section 3051. The trial court denied the motion, concluding that a Franklin hearing was unnecessary because defendant was statutorily ineligible for a youth offender parole hearing under section 3051. Defendant appeals the denial of his motion.

III. DISCUSSION The only argument asserted by defendant on appeal is that the trial court’s denial of his motion for a Franklin hearing violated his right to equal protection under the United States and California constitutions. For the reasons set forth below, we disagree.

Section 3051 generally requires the board of parole hearings to periodically conduct “youth offender parole hearing[s]” during an offender’s incarceration for persons who were 25 years of age or younger at the time they committed the underlying offense for which they were incarcerated. (§ 3051; Franklin, supra, 63 Cal.4th at p. 277.)

However, youthful offenders who were older than 18 years of age at the time they committed the underlying offense and sentenced to life without the possibility of parole are not eligible for a hearing under the statute. (Ibid.) In this case, defendant contends that section 3051 denies him equal protection because youthful offenders who are sentenced to life without the possibility of parole are treated differently than all other youthful offenders. Because defendant’s claim constitutes a facial challenge to the constitutional validity of the statute, we review the claim de novo. (People v. Sands (2021) 70 Cal.App.5th 193, 202 [claim that section 3051 violates equal protection rights reviewed independently] (Sands); People v. Laird (2018) 27 Cal.App.5th 458, 469 [“We review an equal protection claim de novo.”]; People v. Yang (2022) 78 Cal.App.5th 120, [same].)

Generally, “[b]oth the state and federal Constitutions extend to persons the equal protection of law.” (People v. Chatman (2018) 4 Cal.5th 277, 287.) “At core, the requirement of equal protection ensures that the government does not treat a group of people unequally without some justification. . . . [¶] . . . [¶] [W]here the law challenged neither draws a suspect classification nor burdens fundamental rights, . . . [w]e find a denial of equal protection only if there is no rational relationship between a disparity in treatment and some legitimate government purpose.” (Id. at pp. 288-289.) This rational basis review applies to the Legislature’s decision “to define degrees of culpability and punishment, and to distinguish between crimes . . . .” (Hardin, supra,___Cal.5th___ [2024 Cal.Lexis 1076 at *4]; People v. Williams (2020) 47 Cal.App.5th 475, 492 [The rational basis test applies in determining whether carve-outs for certain offenders in section 3051 are unconstitutional under equal protection principles.].)

However, we need not discuss defendant’s argument in detail. As defendant concedes, in Ngo, supra, 89 Cal.App.5th 116, this court rejected the exact argument he advances in this appeal. In that case, we concluded there were “several rational bases” that would justify section 3051’s differential treatment of youthful offenders sentenced to life without the possibility of parole, including (1) the Legislature’s potentially rational intent that section 3051 be a limited response to the precise issues identified by the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262; (2) the potentially rational conclusion that providing a youth offender parole hearing to an offender who is not entitled to parole at all appears absurd; and (3) the fact that the Legislature could rationally recognize a difference in culpability for youthful offenders sentenced to life without the possibility of parole given the nature of the crimes subject to such punishment. (Ngo, supra, 89 Cal.App.5th at pp. 123-124.) In his reply brief, defendant concedes that his case is not factually distinguishable from Ngo, and defendant has declined to present any argument addressing the rationale adopted in Ngo.

More importantly, while this appeal was pending, the California Supreme Court issued its decision in Hardin, supra,___Cal.5th___[2024 Cal.Lexis 1076] concluding that section 3051’s disparate treatment of youthful offenders sentenced to life without the possibility of parole does not violate equal protection, resolving the split of authority on this issue.4 Given our high court’s decision in Hardin, we conclude that the trial court did not err in denying defendant’s motion for a Franklin hearing.

However, that case has now been reversed by the California Supreme Court. (Hardin, supra,___Cal.5th___[2024 Cal.Lexis 1076].)

IV. DISPOSITION The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS FIELDS J.

We concur: MILLER Acting P. J.

MENETREZ J.