Penal Code section 1170, subdivision (d)(2), regarding a juvenile offender’s ability to petition for recall of his sentence, does not apply to a juvenile offender serving a long sentence which is not technically LWOP. Flores was 17 years old when he and an adult committed three first degree murder offenses that resulted in a sentence of 76 years to life. After serving 22 years in prison, Flores petitioned the court to recall his sentence under section 1170, subdivision (d)(2). The prosecution opposed the petition, contending that section 1170, subdivision (d)(2) did not apply because Flores was not sentenced to LWOP. Flores argued that the statute was applicable because 76 years to life was the functional equivalent of LWOP. The trial court granted Flores’s petition, and set the case for resentencing. The prosecution filed a petition for writ of mandate. Held: Petition granted and writ issued directing the superior court to vacate the order recalling the sentence. Section 1170, subdivision (d)(2) provides that a defendant who is sentenced to LWOP for an offense that he or she committed when under 18 may petition the sentencing court for recall and resentencing after at least 15 years of the sentence has been served. Under the plain language of the statute, it only applies to offenders sentenced to LWOP. There is nothing either in the language of the statute or its legislative history which shows that it was intended to apply to sentences which might be the functional equivalent of LWOP. Instead, recently enacted Penal Code section 3051 (SB 260) applies to offenders, like Flores, with defacto LWOP sentences.

Interpreting section 1170, subdivision (d)(2) to apply only to offenders with technical LWOP sentences does not violate equal protection principles. Flores also argued that interpreting section 1170, subdivision (d)(2) to apply only to offenders with technical LWOP sentences and not to offenders with defacto LWOP sentences violated his right to equal protection. The court rejected this argument. A meritorious equal protection claim requires a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. Here, Flores failed to show that he is similarly situated to juvenile offenders with technical LWOP sentences because his sentence is not the functional equivalent of LWOP. Under section 3051 (SB 260), Flores has some meaningful opportunity to obtain release based on maturity and rehabilitation.