Ct.App. 2/4 B217709/B221833 Los Angeles County Super. Ct. No. MA043902 Judge: Hayden A. Zacky
The opinion of the court was delivered by: Chin, J.
In Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011] (Graham), the high court held that the Eighth Amendment prohibits states from sentencing a juvenile convicted of non-homicide offenses to life imprisonment without the possibility of parole. (Id. at p. ___ [130 S.Ct. at p. 2030].)*fn1 We must determine here whether a 110-year-to-life sentence imposed on a juvenile convicted of non-homicide offenses contravenes Graham's mandate against cruel and unusual punishment under the Eighth Amendment. We conclude it does.
Factual and Procedural Background
On the afternoon of June 6, 2007, 16-year-old defendant, Rodrigo Caballero, opened fire on three teenage boys who were members of a rival gang. Adrian Bautista, Carlos Vargas, and Vincent Valle, members of the Val Verde Park Gang, were rounding a street corner on foot when defendant jumped out of a green Toyota and yelled out the name of his gang, either "Vario Lancas" or "Lancas." Vargas responded by shouting "Val Verde." Defendant began shooting at the group. Neither Vargas nor Valle were hit by the gunfire; Bautista was hit in the upper back, near his shoulder blade.
A jury convicted defendant of three counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)).*fn2 The jury found true that defendant personally and intentionally discharged a firearm (§ 12022.53, subds. (c)-(d)) and inflicted great bodily harm on one victim (§ 12022.7), and that defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant, a diagnosed schizophrenic, testified in his own behalf after he was treated with antipsychotic medication. He told the jury both that he "was straight trying to kill somebody" and that he did not intend to kill anyone. The trial court sentenced defendant to 15 years to life for the first attempted murder count, plus a consecutive 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).) For the second attempted murder, the court imposed an additional consecutive term of 15 years to life, plus 20 years for the firearm enhancement on that count. (§ 12022.53, subd. (c).) On the third attempted murder count, the court sentenced defendant to another consecutive term of 15 years to life, plus 20 years for the corresponding firearm enhancement. (§ 12022.53, subd. (c)). Defendant's total sentence was 110 years to life. The Court of Appeal affirmed the trial court's judgment in its entirety.
We granted defendant's petition for review to determine whether Graham prohibits imposition of the sentence here.
In Graham, the 16-year-old defendant, Terrance Graham, committed armed burglary and attempted armed robbery, was sentenced to probation, and subsequently violated the terms of his probation when he committed other crimes. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2020].) The trial court revoked his probation and sentenced him to life in prison for the burglary. (Ibid.) Graham's sentence amounted to a life sentence without the possibility of parole because Florida had abolished its parole system, leaving Graham with no possibility of release unless he was granted executive clemency. (Id. at p. ___ [130 S.Ct. at p. 2015].)
The high court stated that non-homicide crimes differ from homicide crimes in a "moral sense" and that a juvenile non-homicide offender has a "twice diminished moral culpability" as opposed to an adult convicted of murder -- both because of his crime and because of his undeveloped moral sense. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].) The court relied on studies showing that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. [Citations.] Juveniles are [also] more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults." (Id. at p. ___ [130 S.Ct. at p. 2026], quoting Roper v. Simmons (2005) 543 U.S. 551, 570.) No legitimate penological interest, the court concluded, justifies a life without parole sentence for juvenile non-homicide offenders. (Id. at p. ___ [130 S.Ct. at p. 2030].)
Although the state is by no means required to guarantee eventual freedom to a juvenile convicted of a non-homicide offense, Graham holds that the Eighth Amendment requires the state to afford the juvenile offender a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," and that "[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity." (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at pp. 2029-2030].) The court observed that a life without parole sentence is particularly harsh for a juvenile offender who "will on average serve more years and a greater percentage of his life in prison than an adult offender." (Id. at p. ___ [130 S.Ct. at p. 2028].) Graham likened a life without parole sentence for non-homicide offenders to the death penalty itself, given their youth and the prospect that, as the years progress, juveniles can reform their deficiencies and become contributing members of society. (Ibid.)
The People assert that Graham's ban on life without parole sentences does not apply to juvenile offenders who commit attempted murder, with its requisite intent to kill. The People also claim that a cumulative sentence for distinct crimes does not present a cognizable Eighth Amendment claim, concluding that each of defendant's sentences was permissible individually because each included the possibility of parole within his lifetime.*fn3 In addition, the Court of Appeal reasoned that Graham applied a categorical rule specifically limited to juvenile non-homicide offenders receiving an explicitly designated life without parole sentence: "[I]f [Graham] had intended to broaden the class of offenders within the scope of its decision, it would have [included] . . . any juvenile offender who received the functional equivalent of a life sentence without the possibility of parole for a non-homicide offense." The Court of Appeal found support for its conclusion in Justice Alito's dissent from Graham: "nothing in the Court's opinion affects the imposition of a sentence to a term of years without the possibility of parole." (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2058] (dis. opn. of Alito, J.).) Graham's scope and application, however, were recently clarified in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).)
In Miller, the United States Supreme Court extended Graham's reasoning (but not its categorical ban) to homicide cases, and, in so doing, made it clear that Graham's "flat ban" on life without parole sentences for juvenile offenders in non-homicide cases applies to their sentencing equation regardless of intent in the crime's commission, or how a sentencing court structures the life without parole sentence. (Miller, supra, 567 U.S. ___ [132 S.Ct. at pp. 2465, 2469].) The high court was careful to emphasize that Graham's "categorical bar" on life without parole applied "only to non-homicide crimes." (Id. at p. ___ [132 S.Ct. at p.2465].) But the court also observed that "none of what [Graham] said about children -- about their distinctive (and transitory) mental traits and environmental vulnerabilities -- is crime-specific. Those features are evident in the same way, and to the same degree, when . . . a botched robbery turns into a killing. So Graham's reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to non-homicide offenses." (Miller, supra, 567 U.S. ___ [132 S.Ct. at p. 2465].) Miller therefore made it clear that Graham's "flat ban" on life without parole sentences applies to all non-homicide cases involving juvenile offenders, including the term-of-years sentence that amounts to the functional equivalent of a life without parole sentence imposed in this case.*fn4
Defendant in the present matter will become parole eligible over 100 years from now. (§ 3046, subd. (b) [requiring defendant serve a minimum of 110 years before becoming parole eligible].) Consequently, he would have no opportunity to "demonstrate growth and maturity" to try to secure his release, in contravention of Graham's dictate. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2029]; see People v. Mendez (2010) 188 Cal.App.4th 47, 50-51 [holding that a sentence of 84 years to life was the equivalent of life without parole under Graham, and therefore cruel and unusual punishment].) Graham's analysis does not focus on the precise sentence meted out. Instead, as noted above, it holds that a state must ...