People v. Livingston CA3

Filed 5/13/24 P. v. Livingston CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C099413

Plaintiff and Respondent, (Super. Ct. No. 95F05570)

v.

DON CORNELIOUS LIVINGSTON,

Defendant and Appellant.

Defendant Don Cornelious Livingston appeals an order denying his motion for a Franklin1 hearing under Penal Code section 1203.01.2 Livingston is serving a sentence of life without the possibility of parole (LWOP) for offenses he committed when he was 18 years four months old. Livingston’s opening brief argued the guarantees of equal

1 People v. Franklin (2016) 63 Cal.4th 271 (Franklin).

2 Undesignated statutory references are to the Penal Code.

1

protection under the United States and California Constitutions were violated by the youth offender parole statute’s exclusion of LWOP offenders whose offenses were committed between the ages of 18 and 25. (See § 3051, subds. (b), (h).) Livingston’s reply brief, however, concedes the California Supreme Court’s recent decision in People v. Hardin (2024) 15 Cal.5th 834 (Hardin) forecloses his claim for relief. He nonetheless maintains for purposes of an appeal to the Supreme Court of the United States that section 3051’s exclusion of LWOP young adult offenders violates equal protection. Following Hardin, we affirm. BACKGROUND In 1996, Livingston was convicted by jury of first degree murder (§ 187, subd. (a)) with the special circumstances that the murder was committed in the commission of a rape or attempted rape (§ 190.2, subd. (a)(17)). The trial court imposed an LWOP sentence, and a panel of this court upheld the judgment. (People v. Livingston (Feb. 25, 1999, C025145) [nonpub. opn.].) On June 26, 2023, Livingston filed a pro. per. motion for a Franklin hearing to preserve evidence for use at a future youth offender parole hearing. On August 10, 2023, the trial court issued a written order denying his motion because Livingston was ineligible for relief as an LWOP offender over the age of 18 at the time of the offense. Nonetheless, the trial court’s order was without prejudice to refiling the motion if the California Supreme Court affirmed the opinion in People v. Hardin (2022) 84 Cal.App.5th 273. Livingston filed a notice of appeal with this court in September 2023. His opening brief was filed in February 2024, and this case was fully briefed on March 19, 2024. DISCUSSION Livingston argues the guarantees of equal protection under the United States and California Constitutions were violated by the youth offender parole statute’s exclusion of LWOP offenders whose offenses were committed between the ages of 18 and 25.