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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

People v. Harvey CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D084219

• Precedential Status: Non-Precedential

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.5K)

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Combined Opinion

Filed 2/26/26 P. v. Harvey CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D084219, D084220

Plaintiff and Respondent,

v. (Super. Ct. Nos. CR59270,
CR57721)
JAMES EARL HARVEY,

Defendant and Appellant.

CONSOLIDATED APPEALS from judgments of the Superior Court of
San Diego County, David J. Danielsen, Judge. Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Steve Oetting and Joshua Trinh, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION

Defendant James Earl Harvey turned 18 on September 26, 1981. One
month later, he committed multiple robberies and ultimately pled guilty to
two of them. In April 1982, about six months after committing the robberies,
Harvey committed murder and attempted murder, for which a jury convicted
him in February 1983. A judge sentenced Harvey in both cases to a total

prison term of 29 years to life.1
Forty-one years later, in 2024, Harvey filed a petition for recall and

resentencing under Penal Code section 1170, subdivision (d),2 which provides
a resentencing mechanism for “defendant[s] who [were] under 18 years of age
at the time of the commission of [an] offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
[(LWOP)].” (§ 1170(d)(1)(A).) Harvey argued that his sentence was the
functional equivalent of an LWOP sentence and, while acknowledging he was
18 when he committed the offenses, argued that providing a recall and
resentencing mechanism to defendants who were under 18 but denying such
a mechanism to defendants who were 18 or older violates his equal protection
rights. The trial court denied the motion. Harvey reasserts his equal
protection argument on appeal. Because courts have long recognized the age
of 18 as a rational delineating point for treating offenders differently, we
reject Harvey’s challenge and affirm the judgments.

1 As we explain in part II.A, post, Harvey’s prison term contains both
determinate term and indeterminate term components.
2 Undesignated statutory references are to the Penal Code. We will refer
to section 1170, subdivision (d) as “section 1170(d).”
2
II. BACKGROUND

A. The Underlying Convictions and Sentences

This consolidated appeal involves sentences imposed in separate
underlying cases.
In 1981, in superior court case number CR57721 (our case number
D084220), Harvey pleaded guilty to committing two counts of robbery, with a
firearm enhancement. Harvey had only recently turned 18. The trial court
sentenced Harvey to five years in prison.
In 1982, in superior court case number CR59270 (our case number
D084219), a jury found Harvey guilty of committing first degree murder and
attempted murder, with firearm and bodily injury enhancements. Harvey
was 18 and a half at the time. The trial court sentenced him to 40 years to
life in prison. On appeal, this court reversed Harvey’s first degree murder
conviction and on remand gave the People the option to accept a reduction to
second degree murder. In the trial court, the People accepted the reduction
and the trial court resentenced Harvey to 29 years to life in prison, consisting
of (1) 15 years to life, plus two years for the firearm enhancement, on the
murder count; and (2) nine years, plus three years for the bodily injury

enhancement, on the attempted murder count.3

B. The Petition for Recall and Resentencing

In February 2024, after serving more than 40 years in prison, Harvey
filed in propria persona a petition for recall and resentencing under section
1170(d). He acknowledged he was 18 at the time he committed the

3 It is unclear from the limited record before us whether or how the trial
court’s resentencing in the murder case addressed Harvey’s sentence in the
robbery case.
3
underlying offenses, but asked, “What is the difference between being 17 and
one month or [a] month and a half over 18?”
The People opposed Harvey’s motion on the ground that his age made
“him categorically ineligible for the relief he seeks.”
The trial court appointed counsel for Harvey and issued an order to
show cause why his petition should not be denied for failing to state a prima
face showing of eligibility with respect to his age.
Counsel for Harvey thereafter filed a brief arguing that “excluding
someone who was an 18-year-old at the time of their controlling offense from
the relief afforded by . . . section 1170(d) and affording relief to a 17-year-old,
who is cognitively similarly situated, amounts to a violation of equal
protection.” Harvey attached to his brief a scientific article discussing brain
development in adolescents and young adults. Harvey also argued that his
sentence was the functional equivalent of an LWOP sentence because he “is
now over the age of 60 and still in prison for crimes he committed when he
was 18 years old.”
After hearing argument from counsel, the trial court found that Harvey
“fail[ed] to establish a prima facie showing that [he] is eligible for relief
statutorily” because he “was not a juvenile at the time of the offense as
defined by the statutes.” The court rejected Harvey’s equal protection
argument with the following explanation:

I think it’s important for the courts to recognize that
it is the prerogative and duty of the Legislature to
define degrees of culpability and punishment and
statutory means of relief from previous punishment.
It is the prerogative and duty of the Legislature to
distinguish between crimes and individuals convicted
of those crimes. I think under People v. Hardin
[(2024) 15 Cal.5th 834 (Hardin)], the standard is a
rational basis review. And as Hardin suggests, that
4
review is deferential. And by deferential, it means
respect for the Legislature’s proper role and an
understanding of the court’s proper role. [That]
means that an enactment is not stricken under a
rational basis standard unless there is no rational
relationship between the disparity of treatment and
some legitimate governmental purpose. This . . .
argument raised by the defense strikes at the very
nature of the existence of juvenile court and juvenile
law and juvenile procedures and the dividing line. I
would make the gratuitous observation that the
wisdom of the policy decisions by the Legislature
many times are called into question and sometimes
the scientific research as recently as surfacing as
represented by this particular article in support of
the defense argument. But the wisdom of the
Legislature is not the prerogative of the court, and
the choices that [it] make[s] in this circumstance are
a matter for deference. And accordingly, I would
decline to rule that there is an equal protection
violation. The petition is denied.

The trial court did not address Harvey’s argument that his 29-year-to-

life sentence was the functional equivalent of an LWOP sentence.4

III. DISCUSSION

Harvey contends section 1170(d) violates his equal protection rights by
providing a recall and resentencing mechanism for defendants who received
LWOP sentences for offenses they committed when they were under 18 but
denying such a mechanism to defendants who received LWOP sentences for
offenses they committed when they were 18 or older. We disagree.

4 Harvey does not raise this issue on appeal. Because we reject his equal
protection challenge on other grounds, we do not address whether his
sentence is the functional equivalent of an LWOP sentence.
5
A. Relevant Legal Principles

The relevant statutory provision, section 1170(d)(1)(A), provides:
“When a defendant who was under 18 years of age at the time of the
commission of the offense for which the defendant was sentenced to
imprisonment for life without the possibility of parole has been incarcerated
for at least 15 years, the defendant may submit to the sentencing court a
petition for recall and resentencing.” Section 1170(d), more broadly, was
enacted in response to “a seismic shift in the law governing juvenile
punishment . . . ‘based upon developments in scientific research on adolescent
brain development confirming that children are different from adults in ways
that are critical to identifying age-appropriate sentences.’ ” (People v. Bagsby
(2024) 106 Cal.App.5th 1040, 1048, citations omitted (Bagsby).) The statute’s
application only to offenders who were under 18 gives rise to Harvey’s equal
protection challenge.
“The equal protection clause of the Fourteenth Amendment to the
United States Constitution provides that no state may ‘deny to any person
within its jurisdiction the equal protection of the laws.’ This provision is
‘essentially a direction that all persons similarly situated should be treated
alike.’ [Citation.] ‘At core, the requirement of equal protection ensures that
the government does not treat a group of people unequally without some
justification.’ ” (Hardin, supra, 15 Cal.5th at p. 847, fn. omitted; see ibid.,
fn. 2 [“The California Constitution also guarantees equal protection of the
law. (Cal. Const., art. I, § 7, subd. (a).)”].)
The Supreme Court recently clarified in Hardin how courts are to
evaluate equal protection challenges: “[W]hen plaintiffs challenge laws
drawing distinctions between identifiable groups or classes of persons, on the
basis that the distinctions drawn are inconsistent with equal protection,

6
courts no longer need to ask at the threshold whether the two groups are
similarly situated for purposes of the law in question. The only pertinent
inquiry is whether the challenged difference in treatment is adequately
justified under the applicable standard of review. The burden is on the party
challenging the law to show that it is not.” (Hardin, supra, 15 Cal.5th at
pp. 850–851.)
“The degree of justification required to satisfy equal protection depends
on the type of unequal treatment at issue. Courts apply heightened scrutiny
when a challenged statute or other regulation involves a suspect
classification such as race, or a fundamental right such as the right to vote,
and accordingly will demand greater justification for the differential
treatment. [Citations.] But when a statute involves neither a suspect
classification nor a fundamental right, the ‘general rule is that legislation is
presumed to be valid and will be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest.’ [Citations.] A
court applying this standard finds ‘a denial of equal protection only if there is
no rational relationship between a disparity in treatment and some
legitimate government purpose.’ ” (Hardin, supra, 15 Cal.5th at p. 847.)
Age is not a suspect classification for equal protection purposes and is,
therefore, subject to rational basis review. (See Kimel v. Florida Bd. of
Regents (2000) 528 U.S. 62, 83; Perez v. County of Monterey (2019)
32 Cal.App.5th 257, 264.) Harvey does not contend otherwise.
“Rational basis review ‘sets a high bar’ for litigants challenging
legislative enactments. [Citation.] The reasons for this lie at the heart of our
democratic system of governance. ‘Coupled with a rebuttable presumption
that legislation is constitutional, [rational basis review] helps ensure that
democratically enacted laws are not invalidated merely based on a court’s

7
cursory conclusion that a statute’s tradeoffs seem unwise or unfair.’ ”
(Hardin, supra, 15 Cal.5th at p. 852.) “Under this deferential standard, we
presume that a given statutory classification is valid ‘until the challenger
shows that no rational basis for the unequal treatment is reasonably
conceivable.’ [Citation.] The underlying rationale for a statutory
classification need not have been ‘ever actually articulated’ by lawmakers,
nor ‘be empirically substantiated.’ [Citation.] Evaluating potential
justifications for disparate treatment, a court reviewing a statute under this
standard must ‘treat the statute’s potential logic and assumptions far more
permissively than with other standards of constitutional or regulatory
review.’ [Citation.] ‘If a plausible basis exists for the disparity, courts may
not second-guess its “ ‘wisdom, fairness, or logic.’ ” ’ [Citation.] ‘[T]he logic
behind a potential justification need [not] be persuasive or sensible—rather
than simply rational.’ ” (Ibid.)
We review de novo an equal protection challenge to classifications in a
criminal statute. (See Bagsby, supra, 106 Cal.App.5th at p. 1054; In re
Murray (2021) 68 Cal.App.5th 456, 463 (Murray).)

B. Analysis

On its face, section 1170(d)(1)(A) makes Harvey ineligible for recall and
resentencing because he admittedly was not “under 18 years of age” when he
committed the underlying offenses. (§ 1170(d)(1)(A).) Thus, his challenge to
the denial of his petition has merit only if the statutory distinction between
offenders “under 18 years of age” and those age 18 or older violates equal
protection principles. It does not.
“When it comes to criminal sentencing, the United States and
California Supreme Courts have found the line drawn between juveniles and
nonjuveniles to be a rational one.” (Murray, supra, 68 Cal.App.5th at p. 464

8
[finding a rational basis for § 3051’s provision of a youth offender parole
hearing to LWOP offenders who were under 18 at the time of their offense
but not to those who were 18 or older]; see, e.g., Miller v. Alabama (2012)
567 U.S. 460, 471 [“children are constitutionally different from adults for
purposes of sentencing”]; Roper v. Simmons (2005) 543 U.S. 551, 574 [“The
age of 18 is the point where society draws the line for many purposes between
childhood and adulthood.”]; People v. Gamache (2010) 48 Cal.4th 347, 405
[“We previously have rejected the argument that a death penalty scheme that
treats differently those who are 18 years of age and older, and those younger
than 18, violates equal protection.”]; People v. Sands (2021) 70 Cal.App.5th
193, 204 [“The Legislature had a rational basis to distinguish between
offenders with the same sentence (life without parole) based on their age.”].)
For purposes of a petition for recall and resentencing under
section 1170(d), in particular, “[t]he Legislature could reasonably decide that
for those convicted of LWOP crimes, the line should be drawn at age 18,
rather than at some later date when the brain is fully developed. Drawing a
bright line at age 18 establishes an objective and easily implemented
measure, which has been used by the United States Supreme Court for
sentencing purposes. While a different line could have been drawn, it is not
entirely arbitrary to limit [former] section 1170(d)(2) [now section
1170(d)(1)(A))] to individuals who committed their crimes before they were
18 years old.” (In re Jones (2019) 42 Cal.App.5th 477, 483.)
Harvey raises two points in support of his position. First, he
argues “[t]he present situation is analogous to” People v. Heard (2022)
83 Cal.App.5th 608, in which this court found an equal protection violation —
even under the rational basis standard — as to a different aspect of section
1170(d). (Heard, at p. 633 [“we are unable to identify a rational basis for

9
making juveniles sentenced to an explicitly designated life without parole
term, but not juveniles sentenced to the functional equivalent of life without
parole, eligible to petition for resentencing under [§ 1170(d)(1)]”].) The
classification at issue in Heard — disparate treatment of juvenile offenders
based on punishment — is not analogous to the well-established classification
of offenders based on age.
Second, Harvey discusses at length a scientific article regarding
adolescent and young adult brain development. Harvey’s argument is better
directed to the Legislature and not to the courts. Our rejection of Harvey’s
equal protection challenge “does not turn on [our] judgments about what
constitutes sound sentencing policy. It turns on the deference we owe to the
policy choices made through the democratic process by the people of
California and their elected representatives. The legislative branch may
continue to consider the appropriate reach of [section 1170(d)(1)(A)] in light of
the recognized capacity of young persons for growth and change. [Harvey]
has not, however, established that the legislative policy choices reflected in
current law are irrational and therefore impermissible as a matter of equal
protection.” (Hardin, supra, 15 Cal.5th at pp. 839–840.) “We emphasize . . .
that the question before us concerns only the constitutional permissibility of
the lines the Legislature has drawn. It is not for us to pass judgment on the
wisdom or desirability of its policy choices.” (Id. at p. 864.)

10
IV. DISPOSITION

The judgments are affirmed.

RUBIN, J.

WE CONCUR:

McCONNELL, P. J.

CASTILLO, J.

11