People v. McNeill CA2/5

Filed 5/30/24 P. v. McNeill CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B328153

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A039828) v.

JACK B. McNEILL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daniel J. Lowenthal, Judge. Affirmed. William L. Heyman, under the appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

In 1992, the jury found Jack B. McNeill guilty of first degree murder (Pen. Code1, § 187), burglary (§ 459), and robbery (§ 211). The jury found true the special circumstances that McNeill committed the murder while he was engaged in the commission of a robbery and a burglary (§ 190.2, subd. (a)(17)(i) and (vii)), and the allegation that the victim was over the age of 60 years old. (§ 1203.09, subd. (f).) McNeill was 18 years old at the time he committed the offenses. He was sentenced to life without parole (LWOP). In 2022, McNeill moved for a hearing to preserve evidence for use at a future youth offender parole hearing pursuant to section 1203.1. (People v. Franklin (2016) 63 Cal.4th 261; In re Cook (2019) 7 Cal.5th 439.) The trial court denied the motion on the ground that youth offender parole hearings are not available for people, like McNeill, serving LWOP sentences for an offense committed after the offender attained 18 years of age. (§ 3051, subd. (h).) On appeal, McNeill contends that excluding from youth offender parole consideration defendants like himself, who were between the ages of 18 and 26 years old at the time of the offenses for which they were sentenced to LWOP, violates the constitutional right to equal protection of the laws and the prohibition on cruel and unusual punishment. We affirm the trial court’s order.