Justices Goodwin Liu and Kelli Evans recorded dissenting votes from yesterday’s denial of review in People v. Powell, and Justice Evans filed a separate statement, joined by Justice Liu.

The First District, Division Five, Court of Appeal, in an unpublished opinion, rejected a constitutional attack on the statute barring possible youth offender parole for those defendants who are convicted of special circumstances murder — committed when they were between 18 and 25 years old — and sentenced to life without parole.  Parole is available to, among others, defendants sentenced to life without parole for murders committed before they turn 18 and defendants sentenced to 25 years to life for crimes, including first degree premeditated murder, committed when they were under 26 years old.

The Supreme Court upheld the statutory scheme against an equal protection challenge in People v. Hardin (2022) 84 Cal.App.5th 273 (2024) 15 Cal.5th 834. (See here.) But Justice Evans and Liu, who both dissented in Hardin, said there remain “serious” unanswered questions to resolve: “first, whether excluding youthful offenders from the youth offender parole eligibility scheme constitutes cruel or unusual punishment under the California Constitution, and second, whether the LWOP exclusion constitutes cruel or unusual punishment by disproportionately impacting young African Americans, like Powell, and other young people of color.”

Justice Evans pointed out that the California Constitution “prohibition against cruel or unusual punishment is distinct from the federal constitution’s prohibition against cruel and unusual,” that the distinction “is purposeful and substantive,” and that the high courts in three other states with similar provisions “recently held their state constitutions prohibited imposing an LWOP sentence on youthful offenders who were over 17 years old.”

Division Five did not reach the argument that an LWOP sentence for African Americans is cruel or unusual punishment because it is disproportionate under the Racial Justice Act. The appellate court said “Powell cannot make a RJA claim in this appeal” because his appeal was from a post-judgment motion, but could raise his argument by other procedures. Justice Evans said the Supreme Court should “grapple” with the issue now. “[S]tatistical evidence showing the imposition of mandatory LWOP sentences on emerging adults disparately impacts youth of color may demonstrate the sentence is arbitrary and capricious and thus ‘cruel or unusual,’ in violation of our state constitution,” she wrote.

Justice Evans also reiterated the call she made in her Hardin dissent for “ ‘the Legislature to correct itself by ridding [the statutory] LWOP exclusion and extending youth offender parole eligibility to all individuals who were convicted in their youth.’ ”