California Court of Appeal, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed as modified. (Super. Ct. No. 10ZF0091)
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Under the Eighth Amendment, juvenile offenders who commit homicide cannot be sentenced to prison for life without the possibility of parole (LWOP), except in the rare case where their crimes reflect
irreparable corruption and they have no prospects for reform. Although appellant was convicted of special circumstances murder, and was thus statutorily eligible for LWOP, the trial judge determined he did not come within the small class of juvenile offenders who are deserving of this most serious of punishments. While recognizing appellant's crime was very serious, the judge stated, " I don't see [appellant] as an individual [who] at one month into his 17th
[168 Cal.Rptr.3d 816] birthday is so evil, that his crime reflects irreparable corruption. I just don't see it that way." But, immediately after sparing appellant a straight LWOP sentence, the judge turned around and sentenced him to 50 years to life in prison.
For constitutional purposes, we discern no material difference between a sentence of LWOP and 50 years to life. Because appellant's sentence deprives him of a meaningful opportunity for parole, it is facially unconstitutional. However, in addressing the issue of juvenile sentencing, the Legislature has recently decreed that offenders such as appellant shall be afforded a parole hearing after serving 25 years in prison. This legislation gives appellant what the Constitution compels: A meaningful opportunity to demonstrate maturity, rehabilitation and fitness to reenter society at some point in the future. The legislation is designed to apply to appellant's sentence by operation of law, but to ensure he receives the benefit of the statute, we will modify his sentence to include a minimum parole eligibility date of 25 years. In all other respects, we affirm the judgment.
FACTS AND VERDICT
On June 28, 2008, appellant was a 17-year-old member of the Citron Street gang. That night, he and his fellow gang members confronted Mario Barajas and other members of a rival gang in an area claimed by Citron Street. During the confrontation, someone in Barajas' group fired a gunshot. In response, appellant chased Barajas and cornered him between two apartment buildings. He then fired two shots at Barajas. The first shot struck Barajas in the chest, killing him, and the second shot missed Barajas and lodged in the dresser mirror of a nearby apartment unit.
Appellant was not arrested for the shooting until nearly a year later, on June 1, 2009. He told the police the initial shot fired from Barajas' group tore through his clothing. And after he cornered Barajas in the alley, Barajas came toward him, so he shot him in self-defense.
At trial, the defense presented evidence appellant's cognitive functioning is in the borderline retarded range. Defense counsel argued this impaired appellant's ability to make rational decisions, and given the circumstances of the shooting, he was, at most, ...