Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. (Super. Ct. No. 01ZF0021)
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PUBLICATION
In an earlier habeas petition in this matter, we concluded imposing a sentence of life in prison without the possibility of parole (LWOP) on a 14-year-old defendant convicted of aggravated kidnapping violated the Eighth Amendment and Article I, section 17 of the California Constitution. (In re Nunez (2009) 173 Cal.App.4th 709, 729-730 (Nunez) [noting "perverse distinction" in sentencing scheme providing for LWOP for juveniles under age 16 who commit aggravated kidnapping, but 25 years to life if they murdered their victims with special circumstances].) Accordingly, we directed the trial court to conduct a new sentencing hearing for Nunez consistent with our opinion. The trial court at resentencing imposed five consecutive indeterminate life terms for Nunez's kidnapping and other non-homicide offenses, plus five consecutive 20-year enhancements for his gun use. By not imposing an LWOP term, the trial court technically granted Nunez the possibility of parole -- albeit after 175 years.
Here, we explain again that juveniles who commit non-homicide offenses do not share identical culpability with adult offenders who receive LWOP sentences for the same offenses. (Nunez, supra, 173 Cal.App.4th at p. 726 ["Age . . . matters" and "Youth is generally relevant to culpability"].) The United States Supreme Court recently determined the immature and potentially malleable nature of juveniles precludes a judgment at the outset that a non-homicide juvenile offender will never be fit to re-enter society. (Graham v. Florida (2010) __ U.S. __; 130 S.Ct. 2011 (Graham).) Graham invalidated a de facto sentence of life without the possibility of parole as a sentencing option for juveniles who do not kill. (Id. at p. 2030.) As a practical matter, the consecutive life sentences the trial court imposed here denied Nunez any possibility of receiving a parole hearing. We perceive no sound basis to distinguish Graham's reasoning where a term of years beyond the juvenile's life expectancy is tantamount to an LWOP term.
In reaching this conclusion, we agree with People v. Mendez (2010) 188 Cal.App.4th 47 (Mendez) [84-year sentence for 16 year old's non-homicide offenses violates Eighth Amendment], and we disagree with People v. Ramirez (2011) 193 Cal.App.4th 613 (Ramirez), which upheld a minimum 120-year prison sentence for a juvenile convicted of three attempted homicides.*fn1 We part company with Ramirez because a term of years -- no less than an actual LWOP sentence -- violates constitutional standards when it predetermines juvenile non-homicide offenders are irredeemable. We disagree with Ramirez that a sentence for a term of years exceeding the life expectancy of a juvenile, but without the LWOP label, passes constitutional muster based on a theoretical, but illusory parole date. Consequently, we reverse Nunez's sentence and remand for another sentencing hearing consistent with this opinion.
I FACTUAL AND PROCEDURAL BACKGROUND
Nunez, at age 14 and in a period of less than 36 hours in April 2001, committed several serious and violent offenses that posed such a grave danger to others "it is fortuitous . . . no one died or was injured as a result of [his] conduct." (Nunez, supra, 173 Cal.App.4th at p. 726.) We detailed these kidnapping and four attempted murder offenses in our prior opinion. (Id. at pp. 716-719.) In summary, Nunez and at least one much older compatriot armed themselves with an AK-47 and other guns, surprised a two-vehicle convoy of illegal immigrants, surrounded and fired their weapons at one of the vehicles as it sped away, and kidnapped the driver of the other vehicle, Delfino Moreno. Nunez fired a handgun at the departing van, held the gun to Moreno's head while he and a partner forced Moreno into a waiting vehicle, and kept a gun pointed at Moreno while holding him hostage overnight.
The next day, the kidnappers' ransom demands went awry and, in a lengthy chase along Long Beach surface streets and Southern California freeways, Nunez fired the AK-47 from the front passenger seat in two volleys, discharging three to six shots and then eight to 10 shots at officers pursuing in several vehicles, including a marked car with its overhead lights and siren activated. The chase ended with Nunez's vehicle exiting the freeway and crashing to a halt, where he was apprehended after fleeing on foot. Investigators later found bullet holes in the front hood, the right door frame, the right side-view mirror, the roof, the front push bar, and the overhead lights of the pursuing officers' vehicles, and inside one police car in the rifle rack between the driver's and passenger's seats. One shot had struck within a foot of one officer's head and another within four to six inches of a different officer. Moreno had been handcuffed and sitting in the back seat of Nunez's vehicle during the chase, and one of Nunez's gunshots blew out the back window above Moreno's head.
Nunez testified Moreno hatched the alleged kidnapping as a ruse to extort a ransom from his smuggling operation cohorts. Nunez claimed he was not part of the initial abduction, but met Moreno that night at a party, where Nunez accepted Moreno's invitation to join the scheme. During the ensuing chase, Nunez fired his weapon the first time at two unmarked vans because he was "scared . . . that they're following us" and the second time because he feared the pursuers, who he believed were "narcos" in the smuggling underworld, were "gonna try and do something to us." Moreno had ordered him to fire. The initial loud report of his gun caused a ringing in his ears, the violent recoil of the weapon stunned him and blurred his eyesight, and the shattered rear window also obstructed his vision. He claimed he did not hear the police sirens or see any police cars until just before his vehicle crashed.
During deliberations, the jury sent a note asking whether the kidnapping charge applied if Nunez was absent during the abduction, but after the trial court cited the relevant instructions, the jury convicted Nunez of kidnapping for ransom, four counts of attempted murder, evading police, and street terrorism, and found gang and firearm enhancements true on each count.
The trial court imposed an LWOP term on the aggravated kidnapping conviction and lengthy sentences on the other counts, but Nunez did not raise a constitutional challenge in his initial appeal. We affirmed his conviction in an unpublished opinion. (People v. Nunez (Dec. 21, 2004, G032462) [nonpub. opn.].)
New counsel subsequently filed a habeas petition on Nunez's behalf in the California Supreme Court, which issued an order to show cause in this court on the question whether imposing an LWOP term on the kidnapping count violated the Eighth Amendment and article I, section 17 of the California Constitution.
Nunez's unrebutted habeas showing established he responded positively to juvenile camp staff in an earlier commitment for a burglary offense and that, at the time of the present offenses, he still suffered posttraumatic stress disorder from being shot on his bicycle a year and a half earlier -- when he witnessed his brother's slaying by a gangmember. The perpetrator shot Nunez's 14-year-old brother Jose in the head and killed him when Jose ran to Nunez's aid after Nunez was shot. A defense expert opined in a habeas declaration that "'Nunez's mental functioning and behavior was diminished beyond that typical of 14-year-old children by mental illness, namely post-traumatic stress disorder and major depression, as well as ...