People v. Moore CA1/3

Filed 1/25/24 P. v. Moore CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A166422 v. KENNETH LYNN MOORE, (Alameda County Super. Ct. No. 67113B) Defendant and Appellant.

MEMORANDUM OPINION1 In 1980, a jury convicted defendant Kenneth Lynn Moore of an array of over 50 crimes, including two counts of first degree murder and assorted counts of burglary, robbery, and rape. As to the murder counts, the jury found true robbery-murder and multiple-murder special-circumstance allegations. Moore was 20 years old at the time of the murders. The trial court sentenced defendant to life without the possibility of parole (LWOP) for the murder counts. This division affirmed the judgment in 1984. (People v. Moore (1984) 162 Cal.App.3d 709.)

1 We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. The record in Moore’s prior appeal, case no. A165429, has been incorporated by reference in this matter.

1

On June 9, 2022, Moore filed a pro se motion in the trial court pursuant to Penal Code section 1203.012 requesting a Franklin proceeding—i.e., a proceeding where youthful offenders can make a record to preserve evidence for an eventual parole hearing—and appointment of counsel. (People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) On July 11, 2022, the court denied the motion and attendant request for counsel, reasoning that Franklin proceedings are unavailable to defendants like Moore, who were young adult offenders sentenced to LWOP. (§ 3051, subd. (h).) As relevant here, the court rejected Moore’s contention that excluding young adults sentenced to LWOP from parole consideration violates equal protection, noting numerous cases rejecting that argument. (E.g., In re Murray (2021) 63 Cal.App.5th 184 (Murray); People v. Jackson (2021) 61 Cal.App.5th 189 (Jackson); People v. Acosta (2021) 60 Cal.App.5th 769 (Acosta).) Moore appealed. On appeal, Moore challenges the denial of his motion for a Franklin proceeding on equal protection grounds. He argues that section 3051 violates equal protection by rendering young adult offenders who committed their controlling offenses between the ages of 18 and 25 and were sentenced to LWOP ineligible for Franklin proceedings, while young adult offenders who committed first degree murder but were not sentenced to LWOP are eligible. Under section 3051, young adult offenders, like Moore, who were sentenced to LWOP and were over the age of 18 at the time of their controlling offense are ineligible for a youth offender parole hearing. (§ 3051, subd. (h).) That said, non-LWOP (i.e., parole eligible) young adult offenders who committed first degree murder between the ages of 18 to 25 are eligible. (Id., subd. (b)(3).)