Filed 4/10/19

                      CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                    DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,                A147103

v.                                               (Alameda County
ANTONIO EDWARDS,                                 Super. Ct. No. 171347A)
        Defendant and Appellant.

THE PEOPLE,
        Plaintiff and Respondent,                A147379

v.                                               (Alameda County
EMMANUEL CHIOMA,                                 Super. Ct. No. 171347B)
        Defendant and Appellant.



        Appellants Emmanuel Chioma and Antonio Edwards were each convicted on
multiple counts arising from their joint sexual assault and robbery of Jane Doe and
robbery of her male friend. With “one-strike” and other allegations against them,
Chioma was sentenced to 129 years to life, and Edwards was sentenced to 95 years to
life. Appellants were both 19 years old when they committed these offenses.
        Appellants challenge their respective prison sentences as cruel and unusual
punishment, and they challenge on equal protection grounds their exclusion from the




        *
         Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of the Discussion, Section I.

                                             1
provisions of Penal Code section 30511—which mandates youthful-offender parole
hearings for most who receive de facto life sentences for crimes they commit at or before
age 25. In the published portion of our opinion, we reject appellants’ cruel and unusual
punishment challenge but accept their equal protection arguments. In the unpublished
portion we reject two further challenges—Chioma’s to the sufficiency of the evidence of
his involvement in the crimes and Edwards’s to the admission into evidence of
photographs recovered from Chioma’s phone. We therefore affirm the judgments, except
to the extent we remand to allow appellants to develop the record with evidence of youth-
related factors that will be relevant in a youthful-offender parole hearing.
                                     BACKGROUND
I.     Sexual Assault and Robberies
       At 11:30 p.m. on December 8, 2012, Jane Doe and Rafael Reynolds stopped at
Reynolds’s Oakland home before driving to a fundraiser where Reynolds, a professional
photographer, planned to take photographs. Inside, one of Reynolds’s roommates told
them someone had been robbed nearby by two men several hours earlier. When Doe and
Reynolds prepared to leave for the fundraiser, they paused on their way out as they saw
two men walk by. When the men were out of sight, Doe got into the passenger seat of
her Mercedes, which Reynolds planned to drive to the fundraiser, and Reynolds went to
his truck to retrieve some photography equipment. It was approximately 11:45 p.m.
       Suddenly, a man opened the passenger door to the Mercedes, placed a gun to
Doe’s head and ordered her out of the car. The gunman, Chioma, demanded money from
Doe and grabbed her bag. Another man, Edwards, put a gun to Reynolds’s head and
ordered him to the ground. One of the gunmen took Reynolds’s keys, money clip, and
phone. Edwards then switched positions with Chioma and placed his gun to Doe’s chest.
Edwards opened Doe’s jacket and lifted up her shirt. Chioma returned and directed Doe
to get on her knees in between the two vehicles. With a gun still to her head, Doe



       1
        All statutory citations are to the California Penal Code, unless otherwise
indicated.

                                              2
complied. Chioma then took out his penis and forced Doe to orally copulate him, telling
her “to act like you mean it” if she did not want “something to happen” to her.
         Edwards then ordered Doe to stand up, pulled her pants down, and forced his penis
into her vagina. For a time, Chioma compelled Doe to orally copulate him while
Edwards was raping her. Then, as Edwards persisted in raping Doe, Chioma moved
away and began searching through the Mercedes to see what “he could take.” Edwards
paused in raping Doe to pull her into the back seat of the Mercedes, but Chioma
immediately told him to remove her. Edwards again raped Doe from behind, attempting
to insert his penis into her anus before inserting it back into her vagina. Meanwhile,
Chioma walked to where Reynolds lay on the ground and hit Reynolds in the back of the
head with his gun; Doe recalled hearing a “crack” which she was “sure was the gun.”
Edwards eventually withdrew his penis and Doe saw him ejaculate onto the ground near
where they were standing. Chioma and Edwards then left. In addition to the items
already taken from Reynolds, the two men left with Doe’s purse, including her wallet and
phone.
         Doe found Reynolds unconscious. She summoned one of Reynolds’s roommates
to call 911, and the Oakland police responded to investigate. Officers spoke with Doe
and recovered the semen from the ground near her car. In a subsequent meeting with
police, Doe identified a photograph of Chioma as the person who pulled her out of the car
and forced her to orally copulate him. At trial, she identified Chioma with “a hundred
percent certainty.” Doe could not positively identify Edwards, however. Edwards was
identified by DNA recovered from the semen. Police recovered a fingerprint matching
Chioma’s from the driver’s-side door of Doe’s car.
         Police also obtained surveillance video from outside Reynolds’s home, and the
prosecution played it for the jury at trial. The video depicted most of the incident,
including Doe and Reynolds parking her car and entering Reynolds’s house, leaving
Doe’s Mercedes in the center of the image; Doe and Reynolds exiting Reynolds’s house
and returning to their vehicles; one assailant removing Doe from her Mercedes and
another forcing Reynolds out of view; Doe being forced to her knees to orally copulate


                                             3
someone; someone else having vaginal sex with her from behind; two men walking
away; and Doe checking on Reynolds and then ringing the buzzer to his house. Doe
acknowledged the video was not clear enough to show faces, but she was confident it
clearly depicted the incident, including the respective actions of the two assailants.
       Reynolds sustained a concussion that left him unable to walk for several days and
unable to focus his eyes—particularly with a camera—for significant periods of time. He
still suffered from abnormal eyesight, headaches, and an inability to concentrate at the
time of trial in 2015.
II.    Arrests in Possession of Firearms
       Five days after the assault, at approximately 10:30 p.m., appellants were detained
by private security officers after Chioma purchased drugs in Oakland. Chioma, Edwards,
and a friend had driven to the purchase location and were stopped while still in their
vehicle. Edwards was in the driver’s seat, Chioma was in the front passenger’s seat, and
their friend was in the back seat. The security officers located a handgun in Chioma’s
waistband and another gun, with an extended magazine, on the floorboard beneath where
Edwards was sitting. An Oakland police officer was dispatched to the scene and
recovered the guns. The gun recovered from Chioma’s waistband was a loaded .40-
caliber Glock with a 30-round clip. The gun recovered from the driver’s side floorboard
was a loaded .45-caliber Colt with an extended magazine. Officers also seized four
mobile phones during the incident and booked them into evidence. Chioma and Edwards
were arrested.
       Police subsequently examined the four mobile phones and their contents. From an
HTC phone identified with Chioma, police recovered several photographs taken in the
months leading up to these incidents. Several of the photographs depicted guns,
including the two guns found in the car that night. The parties described one of the
photographs as showing “Edwards allegedly or purportedly with a gun on his hip.” The
same phone received a call from a contact listed as “Bankhead” at approximately 11:45
p.m. on December 8, 2012. This was just as the assault of Doe and Reynolds began, and



                                              4
the call lasted 13 minutes and 26 seconds. A phone associated with Edwards did not
contain photographs of guns.
III.   Procedural Background
       The operative consolidated information charged appellants with the following
counts as to the December 8, 2012 incident: oral copulation by acting in concert with
force and fear (§ 288a, subd. (d)(1) (count 1)) as to Chioma and Edwards; attempted
sodomy by use of force (§ 286, subd. (c)(2)(A) (count 2)) as to Edwards only; forcible
rape while acting in concert (§ 264.1, subd. (a) (counts 3 and 4)) as to Chioma and
Edwards; assault with a firearm (§ 245, subd. (a)(2) (count 5)) as to Chioma only; and
second degree robbery (§ 211 (counts 6 and 7)) as to Chioma and Edwards.
       As to the December 13h, 2012 incident, the information charged appellants with:
carrying a concealed firearm on the person (§ 25400, subd. (a)(2) (count 8)) as to Chioma
only; carrying a loaded firearm on one’s person in a city (§ 25850, subd. (a) (count 9)) as
to Chioma only; carrying a concealed firearm within a vehicle (§ 25400, subd. (a)(1)
(count 10)) as to Edwards only; carrying a loaded firearm on one’s person in a vehicle in
a city (§ 25850, subd. (a) (count 11)) as to Edwards only; and possession of a firearm by
a felon with priors (§ 29800, subd. (a)(1) (count 12)) as to Edwards only.
       The information also alleged numerous sentencing enhancements against
appellants. Enhancement allegations arising from the sexual assault and robbery included
those against Chioma for inflicting great bodily injury on Reynolds (§ 667.61, subd.
(d)(6)), against Edwards for Chioma’s infliction of great bodily injury on Reynolds in the
course of Edwards’s violation of section 288a, subdivision (d) (in-concert oral copulation
with force and fear) (§ 667.61, subds. (e)(7) and (d)(6)), and against both Chioma and
Edwards for personal use of a firearm (§§ 667.61, subd. (e)(3), 1203.06, subd. (a)(1),
12022.5, subd. (a), 12022.53, subd. (b), and 12022.53, subd. (g)). If found true by the
jury, these enhancements would mandate that appellants each serve a sentence of at least
25 years to life on count 1 (forced oral copulation in concert), count 3 (forcible rape in
concert), and count 4 (forcible rape in concert). (§ 667.61, subds. (c)(3) & (c)(7).)



                                              5
       On October 29, 2015, the jury found Edwards guilty as charged except as to count
2 (attempted sodomy by force), and found all related allegations true. The jury found
Chioma guilty as charged and all related allegations true. On December 7, 2015, the
court sentenced Chioma to a prison term of 129 years to life and Edwards to a prison
term of 95 years to life. Appellants each filed a timely notice of appeal.
                                       DISCUSSION
I.     Appellants’ Guilt-Phase Challenges Fail
       A. Substantial Evidence Proved Chioma’s Participation
       Chioma challenges the sufficiency of the evidence that he participated in the
December 8th sexual assault and robbery. He acknowledges there was substantial
evidence of his participation in the form of Doe’s identification of him, before and during
trial, and the presence of his fingerprint on the exterior of Doe’s car, and he concedes
“[a]rguably, this would be sufficient in an ordinary case.” He contends, though, that the
cell phone call made from his friend Bankhead’s phone to one of Chioma’s phones,
which according to the timestamp on the surveillance video was essentially
contemporaneous with this attack, provided him with an alibi. Chioma’s argument is
unpersuasive.
       When faced with a substantial evidence challenge, we “must review the whole
record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v.
Virginia (1979) 443 U.S. 307, 318–319.) “[T]he direct testimony of a single witness is
sufficient to support a finding unless the testimony is physically impossible or its falsity
is apparent ‘without resorting to inferences or deductions.’ [Citations.] Except in these
rare instances of demonstrable falsity, doubts about the credibility of the in-court witness
should be left for the [fact finder]’s resolution.” (People v. Cudjo (1993) 6 Cal.4th 585,
608–609 (Cudjo).)



                                              6
       Substantial evidence supports Chioma’s convictions. Doe testified with certainty
at trial that Chioma was the man who first removed her from her car and forced her to
orally copulate him. Doe explained, “the street behind was lit up pretty good. That is
why the face coming in made me be able to identify Mr. Chioma very clearly, because
getting out of the car that’s the first person I saw with the light [shining] on[] him and I
won’t forget that face.” Though Chioma is correct that Doe confused the two appellants
at times during her trial testimony, she immediately corrected herself in specifically
identifying Chioma as the man who hit Reynolds with the gun. Her testimony on this
point was supported by the DNA evidence that it was Edwards who raped her from
behind while Chioma left to silence Reynolds. Doe also testified that the video evidence
allowed her to distinguish between Chioma and Edwards as to the specific acts for which
each man was responsible. On its own, Doe’s testimony provides substantial evidence of
Chioma’s involvement in these crimes. (Cudjo, supra, 6 Cal.4th at pp. 608–609.)
       While this ends the matter, we note further that the 13-minute phone call to
Chioma’s phone is not conclusive evidence of Chioma’s alibi. The evidence established
only the time the call occurred, its duration, and that it was made from a mobile phone
associated with one of Chioma’s contacts to one of two mobile phones associated with
Chioma. There was no evidence about who, if anyone, spoke to Bankhead during the call
or what was said. There also was no evidence of the phone’s location or who possessed it
at the time of the call. The jury heard all the evidence, and Chioma had the opportunity
to cross-examine. The jury’s verdicts indicate that it credited the prosecution’s evidence
over Chioma’s, and because substantial evidence in the form of Doe’s testimony supports
the jury’s verdicts we may not revisit them on appeal. (Cudjo, supra, 6 Cal.4th at
pp. 608–609.)
       B. The Gun Photographs Were Properly Admitted
       Edwards argues the trial court abused its discretion by admitting photographs
of guns that were taken by, and recovered from, one of Chioma’s mobile phones.
       In moving to admit the photographs, the prosecution noted that one photograph
depicted two guns that “appeared to be the exact two guns that were seized on


                                              7
[December] 13th” and that the photograph had been taken shortly before that incident.
The prosecution explained that the photographs were taken both before and after the
December 8th incident, specifically on: September 28, 2012; November 19, 2012;
November 24, 2012; December 6, 2012; and December 12, 2012. The prosecution
offered the photographs as relevant to show that the guns used in the December 8th
incident, which were not seized, were real firearms (not toys or replicas) as required to
support the firearm enhancements associated with those counts, in that Chioma and
Edwards had access to real guns beyond the two they were caught with at the time of
their arrests. Chioma’s counsel objected to the photographs as unnecessary to prove the
December 13th charges and as impermissible propensity evidence for the December 8th
counts.
       The court admitted the photographs over Chioma’s objection, “in light of the fact
that no guns were recovered from the first incident, and one of the things [the prosecution
is] endeavoring to prove is the use of a real firearm, and the witness’s testimony that it
was silver and the guns recovered a few days later being black, I think the access to other
weapons does become relevant.” The court concluded that any prejudice did not
substantially outweigh the photographs’ probative value, as required under Evidence
Code section 352. And the court did grant Chioma’s request to instruct the jury “that
evidence that either defendant possessed a firearm may not be used to infer that the
defendant has a propensity to commit crime.”
       Edwards’s counsel was silent during the proceedings on this issue and did not join
in Chioma’s objection to the photographs. But Chioma’s objection, to the same evidence
and on the same grounds, was sufficient to preserve the issue for our appellate review.
(People v. Gamache (2010) 48 Cal.4th 347, 373.) In addition, we exercise our discretion
to excuse Edwards’s lack of objection so that we may dispose of this issue on its merits.
(People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649, citing People v. Williams
(1998) 17 Cal.4th 148, 161–162, fn. 6.)
       Edwards now argues the photographs should not have been admitted because they
were unnecessary to show the guns used on December 8th were real, and the photographs


                                              8
prejudicially suggested Edwards was a person “of bad character with a propensity to
commit” crimes. In denying that the photographs were relevant to show the guns used on
December 8th were real, Edwards cites evidence that “both Doe and Reynolds described
metal guns (not plastic guns) and described them in considerable detail.” We disagree
that the witnesses’ testimony precluded the prosecution from also introducing the
photographs as circumstantial evidence that the guns were real.
       We review the trial court’s decision to admit photographs under Evidence Code
section 352 for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 748.)
“ ‘ “ ‘The court’s exercise of that discretion will not be disturbed on appeal unless the
probative value of the photographs clearly is outweighed by their prejudicial effect.’ ” ’ ”
(Ibid., quoting People v. McKinzie (2012) 54 Cal.4th 1302, 1351.)
       Evidence that the defendant possessed a weapon may be admitted if the weapon
used in the crime is unknown, or if the proposed evidence is relevant to some issue other
than the defendant’s propensity to possess weapons. (People v. Cox (2003)
30 Cal.4th 916, 956, disapproved on other grounds in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22.) Such evidence may be relevant and admissible as
circumstantial evidence that a defendant committed the charged offenses. (People v.
Carpenter (1999) 21 Cal.4th 1016, 1052.) The weapons used in the December 8th
incident were to some extent unknown. Though Doe and Reynolds testified that both
Chioma and Edwards used guns and the witnesses gave a physical description of the guns
they saw, no specific guns were recovered at the scene.
       The photographs in question were evidence that Chioma and Edwards had access
to guns on other occasions. One photograph depicted the gun found at Edwards’s feet on
December 13th, and there was no dispute that that gun was real. Chioma testified that
another photograph showed Edwards with a gun on his hip on a different occasion. In
addition, the photographs may have depicted the gun Chioma used on December 8th.
The photographs admitted at trial were not transmitted to us along with the rest of the
appellate record, so we rely on the sparse descriptions in the Reporter’s Transcript.
Nevertheless, we agree with the attorney general that the photographs were evidence


                                              9
Edwards and Chioma possessed real guns on other occasions, and they were relevant to
show that appellants used real guns during the December 8th incident.
       In addition, the photographs had probative value to show that Edwards and
Chioma worked in concert during the December 8th assault. The photograph of Edwards
with a gun on his hip was taken on or before December 6, 2012, just two days before the
sexual assault. That photograph also depicted Chioma and Edwards together, alongside
other men, connecting the two men before the date of the assault. At least one other
photograph from Chioma’s phone depicted the two men together. The oral copulation
and rape counts alleged Edwards and Chioma acted in concert, and the photographs—
including the photograph of Edwards with a gun on his hip—were probative of that
element of those offenses.
       Any undue prejudice from these photographs was mitigated by other evidence
showing appellants used real firearms during the December 8th incident, including the
victims’ testimony as summarized by Edwards in his own opening brief: “Doe stated she
felt a metal gun on the side of her head. [. . .] She had grown up with guns and knew
what they looked like; the barrel of this one was cold and metal. [. . .] That was
Chioma’s gun. [. . .] She said Edwards also had a gun, pointing at her chest. [. . .] When
Chioma hit Reynolds in the back of the head, the sound was as if he hit him with a gun.
[. . .] Similarly, when Reynolds was accosted he felt something hard, like the barrel of a
gun, pressed into the back of his head. [. . .] That gun was a black semiautomatic. [. . .]
The other person’s gun was a shiny revolver, perhaps nickel. [. . .] These were not toys.”
The record supports this assessment of the gun evidence. Although this testimony
reduced the prosecutor’s need to rely on the photographs as evidence that Chioma and
Edwards were using real guns in the assault, it simultaneously reduced any prejudice to
appellants from admitting the photographs into evidence. The witness testimony tended
to establish that Chioma and Edwards had access to guns, and the photographs
corroborated this. Having reasonably weighed the probative value of the photographs
against their undue prejudice to appellants, the trial court did not abuse its discretion by
admitting them.


                                             10
       Any remaining prejudice to appellants was cured by the court’s limiting
instruction—that evidence either defendant possessing a firearm may not be used to infer
that the defendant has a propensity to commit crime—an instruction we presume the jury
understood and followed. (People v. Edwards (2013) 57 Cal.4th 658, 746.) Thus, there
was little risk the jury would have used the challenged photographs improperly.
       For these same reasons, any error in admitting them was also harmless under the
standard announced in People v. Watson (1956) 46 Cal.2d 818, 836—whether it is
reasonably probable that, absent the error, the jury would have returned a verdict more
favorable to Edwards—which is the standard that applies here. (See People v. Paniagua
(2012) 209 Cal.App.4th 499, 524.)
II.    Appellants’ Sentencing Claims
       A. Appellants’ Sentences Are Not Cruel and Unusual Punishment
       “Whether a punishment is cruel and/or unusual is a question of law,” so we
exercise independent review while considering in the light most favorable to the
judgment any underlying disputed facts. (People v. Palafox (2014) 231 Cal.App.4th 68,
82.)
       In the opening brief appellants argue that their respective prison sentences violate
federal and state prohibitions on cruel and unusual punishment by failing to account for
their “extreme youth” at the time of the offenses. Both 19 years old when they
committed these crimes, appellants rely on cases holding that the law requires children to
be treated differently from adults for sentencing purposes, including Graham v. Florida
(2010) 130 S.Ct. 2011 (Graham), Roper v. Simmons (2005) 543 U.S. 551, Miller v.
Alabama (2012) 132 S.Ct. 2455 (Miller), and People v. Caballero (2012) 55 Cal.4th 262
(Caballero). Acknowledging they were over 18, appellants contend “none of the relevant
mitigating characteristics of youth discussed in those cases end abruptly on one’s 18th
birthday.” Appellants do not revisit this argument in their reply briefs, however, and we
reject it for the reasons stated in People v. Argeta (2012) 210 Cal.App.4th 1478, 1482,
namely that a defendant’s 18th birthday marks a bright line, and only for crimes
committed before that date can he or she take advantage of the Graham/Caballero


                                            11
jurisprudence in arguing cruel and unusual punishment. (Ibid.) We turn, then, to
appellants’ proportionality arguments.
       The Eighth Amendment contains a “ ‘narrow proportionality principle’ that
‘applies to noncapital sentences.’ ” (Ewing v. California (2003) 538 U.S. 11, 20.) The
Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to
the crime.” (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin) (conc. opn. of
Kennedy, J.).) Reviewing courts must “ ‘grant substantial deference to the broad
authority that legislatures necessarily possess in determining the types and limits of
punishments for crimes.’ ” (Id., at p. 999, quoting Solem v. Helm (1983) 463 U.S. 277,
290.) This is especially so in assessing the proportionality of a sentence of imprisonment,
where “the relative lack of objective standards concerning terms of imprisonment” means
that successful challenges are “ ‘ “exceedingly rare.” ’ ” (Harmelin, at p. 1001, quoting
Solem v. Helm, supra, at pp. 289–290.) Even “extended analysis” of a sentence’s
proportionality is rarely required. (Harmelin, at p. 1004.) “[C]omparative analysis
within and between jurisdictions is . . . [¶] . . . appropriate only in the rare case in which a
threshold comparison of the crime committed and the sentence imposed leads to an
inference of gross disproportionality.” (Id. at pp. 1004–1005.)
       “ ‘Article I, section 17, of the California Constitution separately and independently
lays down the same prohibition’ ” as the Eighth Amendment. (People v. Marshall (1990)
50 Cal.3d 907, 938, quoting People v. Poggi (1988) 45 Cal.3d 306, 349 (conc. & dis.
opn. of Mosk, J.).) A punishment may violate article I, section 17 of the California
Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks
the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972)
8 Cal.3d 410, 424, fn. omitted.) It requires that we “examine the circumstances of the
offense” and the defendant in determining whether the “the penalty imposed is ‘grossly
disproportionate to the defendant’s culpability.’ ” (Cox, supra, 30 Cal.4th at pp. 969–
970, quoting People v. Dillon (1983) 34 Cal.3d 441, 479.) We assess three factors in
making this determination: (1) the nature of the offense and the offender, and the degree
of danger posed to society; (2) a comparison with sentences for more serious offenses


                                              12
under California law; and (3) a comparison with sentences imposed by other states for the
same offense. (Lynch, at pp. 425–427.)
       Appellants argue that their respective sentences shock the conscience considering
the circumstances of the crimes, the “attenuated” level of violence involved, and their
minimal criminal histories. Appellants challenge only the total length of their prison
sentences—129 years for Chioma and 95 years for Edwards—rather than any specific
sentencing decision by the trial court.
       Given the limited role for a reviewing court in a case where the challenge is to the
length of a prison term, we reject this argument. Appellants’ crimes here were egregious.
What may have begun as an armed robbery quickly turned into a violent sexual assault.
After demanding her valuables, Chioma held a gun to Jane Doe’s head to force her to
orally copulate him and to facilitate two instances of rape by Edwards. In response to
perceived resistance, Chioma hit Reynolds in the head with a gun, leaving him with
damaged eyesight. Also using a gun, Edwards raped Doe on two separate occasions
during the incident. We acknowledge that each appellant had little prior criminal history
and no prior history of committing sex offenses, but these facts do not outweigh the
ruthlessness of this attack.
       A key factor in the length of each appellant’s sentence was the trial court’s
determination that the sentences on the sex counts be served consecutively pursuant to
rule 4.426 of the California Rules of Court. Appellants do not challenge the trial court’s
findings under rule 4.426, or its conclusion that their relevant sentences must be served
consecutively. The sentencing record reflects that the trial court followed the statutory
guidelines and rules of court assiduously, detailing each appellant’s path to his total
prison term.
       Under these circumstances, we find no principled basis for concluding that these
sentences, though each amounts to a term of life in prison, fall outside the range where a
reviewing court must defer to legislative judgments on criminal sentencing. (See
Harmelin, supra, 501 U.S. at p. 999 (conc. opn. of Kennedy, J.).) We cannot conclude



                                             13
that either sentence violates federal or state constitutional proscriptions on cruel and/or
unusual punishment.
       B. Equal Protection Requires Youthful-Offender Parole Hearings for One-
          Strikers
       Appellants contend that section 3051, subdivision (h) violates the Equal Protection
Clause of the Fourteenth Amendment by excluding certain young adult offenders, such as
themselves, from its protections. Under section 3051, a person convicted of an offense
committed when he or she was 25 years of age or younger becomes eligible for release on
parole at a youth-offender parole hearing held during his or her 15th, 20th, or 25th year of
incarceration, depending on the offense. (§ 3051, subd. (b).) However, section 3051,
subdivision (h) excludes offenders like appellants who were sentenced under section
667.61, the “One Strike” law. Appellants’ equal protection challenge to this exclusion is
a facial challenge, as it was not raised in the court below. (See In re Sheena K. (2007)
40 Cal.4th 875, 885.)
              1. Chioma and Edwards are “One-Strikers”
       The “One Strike” law is an alternative, harsher sentencing scheme that applies to
specified felony sex offenses. (People v. Anderson (2009) 47 Cal.4th 92, 102.)
Appellants were each convicted of forcible rape in concert and forcible oral copulation in
concert, which are among the offenses that qualify for treatment under the One Strike
law. (§ 667.61, subds. (c)(3), (c)(7).)
       “For sex crimes falling within its reach [citation], a first-time offense can result in
one of two heightened sentences. The sentence will be 15 years to life if the jury finds
(or the defendant admits) one or more of the ‘circumstances’ listed in section 667.61,
subdivision (e).” (People v. Perez (2015) 240 Cal.App.4th 1218, 1223 (Perez).) “The
sentence will be 25 years to life if the jury finds (or the defendant admits) either (1) two
of the ‘circumstances’ listed in section 667.61, subdivision (e), or (2) one of the more
aggravated circumstances listed in section 667.61, subdivision (d).” (Perez, supra,
240 Cal.App.4th at p. 1223.)



                                              14
       Several circumstances enumerated in subdivisions (d) and (e) are relevant to this
case. Subdivision (d) includes crimes where “[t]he defendant personally inflicted great
bodily injury on the victim or another person in the commission of the present
offense. . . .” (§ 667.61, subd. (d)(6).) This circumstance applies to Chioma, who
inflicted such injury on Reynolds. Subdivision (e) includes crimes where a “defendant
personally used a dangerous or deadly weapon or a firearm . . . ,” a circumstance that
applies to both defendants here. (§ 667.61, subd. (e)(3).) Subdivision (e) also reaches
crimes, in the commission of which, “any person” inflicts great bodily injury on the
victim of the sex crime or another person. (§ 667.61, subd. (e)(7).) This enhancement
applies to Edwards, as a result of another person—Chioma—having injured Reynolds.
       In sum, Chioma qualifies as a “One-Striker” because the jury found true the
allegations under section 667.61, subdivision (d)(6) that he personally inflicted great
bodily injury on Reynolds. Then, because the jury also found true the firearm
enhancements, but Chioma was already a One-Striker without them, Chioma’s sentence
for each of counts 1, 3, and 4 rose to 35 years to life. (§ 667.61, subd. (f); § 12022.53,
subd. (b).) Meanwhile, Edwards qualified as a “One-Striker” because the jury found true
as to each count two subdivision (e) allegations: that Edwards used a firearm, and that
Chioma inflicted great bodily injury on Reynolds. (§ 667.61, subd. (e)(3) & (7).) The
jury’s findings on these allegations subjected Edwards to 25 years to life on each of
counts 1, 3, and 4.
              2. Section 3051 Establishes Youthful-Offender Parole Hearings
       In Caballero, the California Supreme Court urged the state legislature to establish
a parole eligibility mechanism for a defendant “serving a de facto life sentence without
possibility of parole for nonhomicide crimes that he or she committed as a juvenile.”
(Caballero, supra, 55 Cal.4th at p. 269, fn. 5.) The Legislature complied and then went a
step further, creating a parole eligibility mechanism for juvenile offenders that includes
homicide defendants, which it subsequently expanded to reach most defendants serving
long sentences for crimes they committed at 25 years of age or younger. (People v.



                                             15
Contreras (2018) 4 Cal.5th 349, 381 (Contreras).) This parole eligibility mechanism is
section 3051.
       Section 3051 affects three categories of lengthy sentences. A defendant who
commits his or her “controlling offense” at age 25 or younger and who receives a long
determinate sentence becomes eligible for release on parole “during his or her 15th year
of incarceration.” (§ 3051, subd. (b)(1).) When the sentence for the controlling offense
is a life term of less than 25 years to life, the offender becomes eligible for parole during
the 20th year of incarceration. (§ 3051, subd. (b)(2).) And when the sentence for the
controlling offense is 25 years to life, the offender becomes eligible for parole during the
25th year of incarceration. (§ 3051, subd. (b)(3).) “ ‘Controlling offense’ means the
offense or enhancement for which any sentencing court imposed the longest term of
imprisonment.” (§ 3051, subd. (a)(2)(B).) Chioma’s and Edwards’s sentences would fit
into the third category, for controlling offenses punished by sentences of 25 years to life.
       Section 3051 has a carve-out, however, and it is the scope of that carve-out that
gives rise to appellants’ equal protection claim. Subdivision (h) of section 3051
expressly excludes from eligibility for a youthful-offender parole hearing any inmate
sentenced under the Three Strikes law, under the One Strike law, or to Life Without
Possibility of Parole (LWOP) for an offense committed after the defendant turned 18. 2
Because Chioma and Edwards were sentenced as “One-Strikers,” section 3051,
subdivision (h) renders them ineligible for a youthful-offender parole hearing, even
though they committed their crimes at age 19.



       2
          Section 3051, subdivision (h), reads: “This section shall not apply to cases in
which sentencing occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of
Section 667 [Three Strikes], or Section 667.61 [One Strike], or to cases in which an
individual is sentenced to life in prison without the possibility of parole for a controlling
offense that was committed after the person had attained 18 years of age. This section
shall not apply to an individual to whom this section would otherwise apply, but who,
subsequent to attaining 26 years of age, commits an additional crime for which malice
aforethought is a necessary element of the crime or for which the individual is sentenced
to life in prison.”

                                              16
                 3. Equal Protection Renders One-Strikers Eligible for Youthful-
                    Offender Parole Hearings

        Appellants argue that section 3051, subdivision (h), violates their right to equal
protection because, although the statute reaches almost all youthful offenders who draw
life terms or long determinate sentences, it excludes them. Specifically, section 3051
reaches first degree murderers but excludes One Strikers. Appellants contend they are
similarly situated to youthful first degree murderers, and they challenge their exclusion
from this statutory scheme as unsupported by any rational basis, arguing it is driven only
by “the fact that the public has a special distaste for sex offenders.” We conclude that
while a sentencing scheme can rationally express the public’s distaste for sex offenders, it
cannot limit their opportunity for eventual parole more harshly than it limits these who
commit intentional first degree murder. Equal protection requires that Chioma and
Edwards, like those whose controlling offense is first degree murder punishable by 25
years to life, be afforded a youthful offender parole hearing during the 25th year of their
incarceration.
        The Fourteenth Amendment to the United States Constitution and article I, section
7 of the California Constitution guarantee all persons the equal protection of the laws. To
succeed on an equal protection claim, appellants must first show that the state has
adopted a classification that affects two or more similarly situated groups in an unequal
manner. (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) For example, One Strike
rapists and first degree murderers, both aged 25 years or younger, are two groups of
violent youthful offenders who seek the opportunity to demonstrate after extended terms
of imprisonment that they should rejoin society. The two groups are, for purposes of
section 3051, “similarly situated.” (People v. Brandao (2012) 203 Cal.App.4th 436,
442.)
        Where a class of criminal defendants is similarly situated to another class of
defendants who are sentenced differently, courts look to determine whether there is a
rational basis for the difference. (Johnson v. Department of Justice (2015)
60 Cal.4th 871, 882.) “[E]qual protection of the law is denied only where there is no


                                              17
‘rational relationship between the disparity of treatment and some legitimate
governmental purpose.’ ” (People v. Turnage (2012) 55 Cal.4th 62, 74 (Turnage).)
“This standard of rationality does not depend upon whether lawmakers ever actually
articulated the purpose they sought to achieve. Nor must the underlying rationale be
empirically substantiated. [Citation.] While the realities of the subject matter cannot be
completely ignored [citation], a court may engage in ‘ “rational speculation” ’ as to the
justifications for the legislative choice [citation]. It is immaterial for rational basis review
‘whether or not’ any such speculation has ‘a foundation in the record.’ ” (Id. at pp. 74–
75.) To mount a successful rational basis challenge, a party must “ ‘negative every
conceivable basis’ ” that might support the disputed statutory disparity. (Heller v. Doe
(1993) 509 U.S. 312, 320; see Turnage, at p. 75.) If a plausible basis exists for the
disparity, “[e]qual protection analysis does not entitle the judiciary to second-guess the
wisdom, fairness, or logic of the law.” (Turnage, at p. 74.)
       Because rational basis review is a highly deferential standard, one published
opinion that has considered the equal protection argument appellants make here has
already rejected the challenge (People v. Bell (2016) 3 Cal.App.5th 865, 876–880 (Bell),
review granted on another ground on Jan. 11, 2017), but that decision has since been
ordered vacated (People v. Bell (June 13, 2018, S238339) __ Cal.5th __
[234 Cal.Rptr.3d 74] [transferring for reconsideration in light of Contreras, supra,
4 Cal.5th 349].) The Bell court concluded that concerns about recidivism provide a
rational basis for excluding One Strike defendants from the benefits of section 3051.
(Bell, at p. 879.) The California Supreme Court granted review in Bell and deferred
further action pending its decision in Contreras.
       In deciding Contreras, the Supreme Court held that the Eighth Amendment
prevents juvenile non-homicide offenders from receiving sentences so long that the
offenders will have no prospect of release while still young enough to reintegrate with
society. Contreras involved two 16-year-olds convicted of kidnapping and sexual
offenses, sentenced to 50 years to life and 58 years to life, respectively. These sentences
meant the young men could expect to become eligible for parole late in life. (Contreras,


                                              18
supra, 4 Cal.5th at pp. 356, 368.) Caballero had previously held that for a juvenile to
receive a sentence twice that long—110 years to life—violates the Eighth Amendment
because this sentence is the “functional equivalent of LWOP.” (Contreras, at p. 360.)
Contreras extends Caballero by applying the same reasoning and reaching the same
result for juvenile non-homicide offenders whose sentences, while lengthy, are not “well
in excess of natural life expectancy.” (Ibid.)
       In Contreras the high court acknowledged, but had no occasion to resolve, the
equal protection challenge to section 3051. (Contreras, supra, 4 Cal.5th at p. 382.) Dicta
in Contreras highlights, however, a consistent theme in constitutional jurisprudence that
we think does resolve the equal protection challenge. Contreras quotes Graham, supra,
130 S.Ct. 2011, for this proposition: “ ‘[D]efendants who do not kill, intend to kill, or
foresee that life will be taken are categorically less deserving of the most serious forms of
punishment than are murderers. . . . Although an offense like robbery or rape is “a
serious crime deserving serious punishment,” those crimes differ from homicide crimes
in a moral sense.’ ” (Contreras, at p. 366.) Contreras goes on to observe, “[i]n the death
penalty context, the high court has said ‘there is a distinction between intentional first-
degree murder on the one hand and nonhomicide crimes against individual persons, even
including child rape, on the other. The latter crimes may be devastating in their harm, as
here, but “in terms of moral depravity and of the injury to the person and to the public,”
they cannot be compared to murder in their “severity and irrevocability.” ’ (Kennedy v.
Louisiana (2008) 554 U.S. 407, 438, citation omitted.)” (Contreras, at p. 382.)
Contreras, in short, confirms that there is no crime as horrible as intentional first degree
murder.
       United States Supreme Court case law has long distinguished between such
murders and other crimes against persons, reserving the most draconian sentences for
murderers alone. Consistent with the Eighth Amendment, first degree murderers can be
executed; defendants convicted of even the most egregious sexual crimes cannot.
(Kennedy v. Louisiana, supra, 554 U.S. 407 [aggravated rape of a child]; Coker v.
Georgia (1977) 433 U.S. 584 [armed robbery, rape of an adult woman, and other


                                              19
felonies].) Juveniles who murder can be sentenced to life without the possibility of
parole, if in fixing that sentence the sentencer has considered mitigating circumstances
including “how children are different, and how those differences counsel against” an
LWOP sentence. (Miller, supra, 567 U.S. at pp. 479–480, 489.) Juveniles who commit
non-homicide crimes, by contrast, are categorically exempt from LWOP sentences.
(Graham, supra, 560 U.S. at p. 82.) Section 3051 flouts this pattern. It makes youthful-
offender parole hearings available to intentional first degree murderers after 25 years of
incarceration, while categorically denying them to One Strike sex offenders.
       Considering this U.S. Supreme Court jurisprudence and the California Supreme
Court’s invocation of it in Contreras, we conclude section 3051’s carve-out for One
Strike defendants violates principles of equal protection. It is, to that extent,
unconstitutional. We see no rational relationship between the disparity of treatment and a
legitimate governmental purpose. Certainly, the crimes punished by the One Strike law
are heinous, and the crimes in this case are among the most awful in our judicial system
short of murder. But United States Supreme Court and California Supreme Court
precedent has already determined that these defendants “ ‘are categorically less deserving
of the most serious forms of punishment than are murderers.’ ” (Contreras, supra,
4 Cal.5th at p. 366, quoting Graham, supra, 560 U.S. at p. 69.) Because the Legislature
made youthful offender parole hearings available even for first degree murderers (except
those who committed murder as an adult and received an LWOP sentence), there is no
rational basis for excluding One Strike defendants from such hearings. This does not
mean, of course, that Chioma, Edwards, or any other One Strike defendant will be
released from prison after 25 years in custody, only that they will become eligible for a
youthful offender parole hearing at that time.
       Respondent makes two arguments against the equal protection challenge. First the
attorney general asserts that Chioma and Edwards are not “similarly situated” with first
degree murderers because their crimes are not the same. But equal protection analysis
does not require that two groups of defendants be the same, or even that they be
“ ‘ “similarly situated for all purposes.” ’ ” (Brandao, supra, 203 Cal.App.4th at p. 442.)


                                              20
It is enough that “ ‘ “ ‘they are similarly situated for purposes of the law challenged.’ ” ’ ”
(Ibid.) Here, the purpose of section 3051 is to give youthful offenders “a meaningful
opportunity to obtain release” after they have served at least 15, 20, or 25 years in prison
(§ 3051, subd. (e)) and made “a showing of rehabilitation and maturity.” (Contreras,
supra, 4 Cal.5th at 381.) The Legislature said so expressly when it first passed the bill
that became section 3051: “The purpose of this act is to establish a parole eligibility
mechanism that provides a person serving a sentence for crimes that he or she committed
as a juvenile the opportunity to obtain release when he or she has shown that he or she
has been rehabilitated and gained maturity, in accordance with the decision of the
California Supreme Court in Caballero, supra, 55 Cal.4th 262 and the decisions of the
Unites States Supreme Court in Graham[, supra,] 560 U.S. 48, and Miller[, supra,]
183 L.Ed.2d 407.” (Sen. Bill No. 260 (2013–2014 Reg. Sess.) § 1.) Then, when the
Legislature expanded section 3051’s parole eligibility mechanism to reach young adults
up to the age of 25, its expressly-stated rationale was to account for neuro-science
research that the human brain—especially those portions responsible for judgment and
decision-making—continues to develop into a person’s mid-20s. (Sen. Com. on Public
Safety, Analyses of Sen. Bill. No. 261 (2015–2016 Reg. Sess.) April 28, 2015 [expanding
eligibility to age 23]; Sen. Rules Comm., Off. of Sen. Floor Analyses, 3d reading analysis
of Assem. Bill No. 1308 (2017–2018 Reg. Sess.) as amended March 30, 2017 [expanding
eligibility to age 25].) Measured against this legislative purpose, youthful One Strike
defendants are similarly situated with youthful first degree murderers, and the attorney
general does not attempt to argue otherwise.
       The attorney general’s second argument is that the Legislature “clearly made a
rational, moral judgment that the public should be protected from violent sex offenders,
and that violent sex offenders should be incarcerated for longer periods of time.” This
argument is both vague and circular. Does the attorney general intend “incarcerated for
longer” to be a comparison between One Strikers and murderers? If so, the argument
chases its tail: the rationale for punishing One Strike offenders more harshly than
murderers is simply that they should be incarcerated for longer than murderers. In fact,


                                              21
the attorney general sidesteps any actual comparison between One Strikers and
murderers. Attempting to explain why the Legislature could believe that violent sex
offenders should be punished harshly, or more harshly, the attorney general offers only
that “violent rapists do recidivate, and the state has a legitimate interest in severely
punishing this crime.” But of course murderers, too, recidivate, and the state has an
interest in severely punishing the crime of murder. The essence of an equal protection
challenge is a comparison between similarly situated groups, and the attorney general
carefully avoids making any such comparison. Certainly, the attorney general cites no
evidence that violent rapists recidivate more than other felons. Indeed, when a recidivism
rationale prevailed in Bell the only evidence discussed in the opinion was to the contrary.
(Bell, supra, 3 Cal.App.5th at pp. 879–880 [discussing Department of Corrections
report].) While the law requires no empirical support for the hypothesized concern about
recidivism (Turnage, supra, 55 Cal.4th at pp. 74–75), “the realities of the subject matter
cannot be completely ignored.” (Johnson, supra, 60 Cal.4th at p. 881.)
       More importantly, we cannot ignore United States Supreme Court teaching that no
crime deserves categorically harsher punishment than intentional first degree murder.
We recognize that an individual non-homicide defendant may on occasion draw a harsher
sentence than does a first-degree murder, for reasons specific to the circumstances of the
crime or the criminal history of the defendant. We express no view about this sort of
comparison between sentences in individual cases, and we note that criminal history
plays no role in defining a One Strike crime. The problem in this case is that an entire
class of youthful offenders convicted of a crime short of homicide is, regardless of
criminal history, categorically exempted from an opportunity offered to all youthful first
degree murderers except those sentenced to life without possibility of parole.
       The Legislature did not explain, in enacting or expanding section 3051, why it
chose to exempt One Strike offenders.3 As neither the Legislature nor the attorney

3
  Also without explanation, the Legislature made a different decision in crafting the
analogous Elderly Parole Program, which excludes from eligibility certain categories of
recidivist defendants and first-degree murderers (those receiving LWOP or death

                                              22
general has provided a rational basis for categorically excluding youthful One Strikers,
we conclude that this carve-out in section 3051, subdivision (h) violates principles of
equal protection and is unconstitutional on its face. Because the law makes youthful-
offender parole hearings available even to first degree murderers, it must, after 25 years
of incarceration, offer the same to Chioma and Edwards.
                                     DISPOSITION
       The matter is remanded to the trial court for the purpose of determining whether
Chioma and Edwards were “afforded an adequate opportunity to make a record of
information that will be relevant to the Board” at a youthful offender parole hearing to be
held during their 25th year of incarceration. (People v. Franklin (2016) 63 Cal.4th 261,
286–287.) In all other respects, the judgment is affirmed.




sentences, or who killed police officers) but does not exclude One Strikers. (§ 3055,
subds. (g) and (h).)

                                            23
                                                             _________________________
                                                             TUCHER, J.


WE CONCUR:


_________________________
POLLAK, P. J.


_________________________
STREETER, J.




A147379, A147103/ People v. Chioma, People v. Edwards



                                                        24
Trial Court:               Alameda County Superior Court

Trial Judge:               Hon. Thomas M. Reardon

Counsel for Appellants:    Emmanuel Chioma – Ozro William Childs, by
                           Court-Appointment under the First District
                           Appellate Project - Independent Case System

                           Antonio Edwards – David Y. Stanley, by Court-
                           Appointment under the First District Appellate
                           Project - Independent Case System

Counsel for Respondents:   Xavier Becerra, Attorney General; Gerald A.
                           Engler, Chief Assistant Attorney General;
                           Jeffrey M. Laurence, Senior Assistant Attorney
                           General; Bruce M. Slavin, Supervising Deputy
                           Attorney General; Gregg E. Zywicke, Deputy
                           Attorney General




                             25
