The Supreme Court denied review in People v. Denem, in which a Second District, Division Three, Court of Appeal unpublished opinion rejected constitutional challenges to a statute (Penal Code section 3051(h)) that prevents otherwise available youth-offender parole hearings for defendants serving life without parole sentences for special circumstances murders committed when older than 17 and younger than 26.
There’s nothing unusual about Division Three’s opinion. The Courts of Appeal have been frequently and consistently ruling the same way, especially since the Supreme Court found unavailing an equal protection attack in People v. Hardin (2024) 15 Cal.5th 834. (See here.) Also, the Supreme Court has just as consistently been denying review in those cases, although Justices Goodwin Liu and Kelli Evans have regularly recorded dissenting votes. (See recently here.)
But there are two notable things about the Denem review denial.
First, Justice Leondra Kruger joined Justices Liu and Evans in recording a vote to hear the case. It might be the particular facts of the Denem case that motivated Justice Kruger’s vote, but it’s significant that the court was for the first time just one vote away from taking a youth-offender-parole-denial case post-Hardin.
Second, Justice Liu — joined by Justice Evans, but not Justice Kruger — filed a separate statement discussing his dissenting vote. The statement is not as unique as Justice Kruger’s vote — Justice Evans previously issued a separate statement (that Justice Liu signed) on the same issue — but separate statements are relatively rare.
[May 16 update: here is a copy of Justice Liu’s separate statement that is more readable than what’s on the Denem docket.]
Although Justice Kruger didn’t sign the Denem separate statement, it might explain why she voted for review in the case, which involves a murder committed by an accomplice of the then-18-year-old defendant, and not in earlier youth-offender-parole matters.
In Denem, Justice Liu writes, “To be clear, the question here is not whether an LWOP sentence may lawfully be imposed on an 18-year-old. The issue is whether the state constitution permits a mandatory LWOP sentence for an 18-year-old without any individualized consideration.” Noting various mitigating circumstances and “the changing scientific and legal landscape,” Justice Liu says that “condemn[ing] [the defendant] to die in prison, . . . endur[ing] nearly all of his adult life behind bars . . . with no individualized consideration, seems in serious tension with the state constitutional prohibition on cruel or unusual punishment and warrants our review.”
The statement also reports that pending Senate Bill 672 would eliminate the statutory provision barring Denem from parole consideration. That legislation has passed a couple of Senate committees, but has been placed on one committee’s suspense file.
