People v. Harrell CA5

Filed 10/27/22 P. v. Harrell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081763 Plaintiff and Respondent, (Super. Ct. No. 145363) v.

MILTON BOYAY HARRELL, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Stanislaus County. Dawna Reeves, Judge. Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Levy, J. and Poochigian, J.

In 1998, defendant Milton Boyay Harrell was convicted of various crimes he committed when he was 22 years old. He was sentenced under the “Three Strikes” law. In 2020, he filed a motion for a youth offender parole hearing (YOPH) pursuant to Penal Code section 3051.1 The trial court determined the motion was not yet ripe for consideration. On appeal, defendant contends (1) the trial court violated his Fourteenth Amendment right to equal protection by denying his motion for a YOPH and (2) the trial court erred in declining to consider his motion on its merits. After requesting and receiving supplemental briefing, we conclude defendant is not eligible for a YOPH, and his ineligibility does not violate his right to equal protection. He is nevertheless entitled to a Franklin2 proceeding on remand. In all other respects, we affirm. BACKGROUND On December 3, 1997, when defendant was 22 years old, he committed the crimes underlying the convictions in this case. On June 10, 1998, the Stanislaus County District Attorney filed a second amended information charging defendant with two counts of attempted robbery (§§ 664, 211, 212.5; counts 1 & 4), three counts of robbery (§§ 211, 212.5; counts 2, 3 & 5), burglary of an inhabited building (§ 459; count 6), and conspiracy to commit robbery (§§ 182, 211, 212.5; count 7). The information further alleged a firearm enhancement (§ 12022.5) and gang enhancement (§ 186.22, subd. (b)(1)) as to each count, and alleged that defendant had suffered two prior serious felony convictions (§ 667, subd. (a)) and two prior “strike” convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). On October 6, 1998, a jury found defendant guilty of all counts and found true all special allegations.