California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Appeal from a judgment of the Superior Court of Orange County No. 11ZF0111, James A. Stotler, Judge.
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Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jaime Guadalupe Gonzalez of first degree murder (count 1; Pen. Code, § 187, subd. (a); all further undesignated statutory references are to this code) and street terrorism (count 2; § 186.22, subd. (a)) for killing 20-year-old Juan Carlos Cena. The jury found true a special circumstance allegation that Gonzalez, who was 15 years old at the time of the offense, intentionally committed the murder for a criminal street gang purpose (§ 190.2, subd. (a)(22)), and found true a gang penalty enhancement allegation (§ 186.22, subd. (b)(1)). The jury also found Gonzalez was a principal in committing a gang offense involving the intentional discharge of a firearm causing death (§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced Gonzalez to a term of 50 years to life for count 1, consisting of 25 years to life for first degree murder and a consecutive 25-years-to-life term for the firearm use enhancement. The court stayed under section 654 Gonzalez’s street terrorism sentence on count 2. Gonzalez now contends his youth at the time of the offense renders his lengthy sentence cruel and unusual punishment in violation of the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.)
He relies on Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407,132 S.Ct. 2455] (Miller), which precludes for juvenile offenders a mandatory sentence of life in prison without the possibility of parole (LWOP). Gonzalez argues the mandatory term the trial court imposed is tantamount to an LWOP sentence based on actuarial tables showing a life expectancy in his mid-70’s, which he asserts is overstated given the dangers of prison life. In any event, he contends his sentence is unconstitutional because it denies him the possibility of any meaningful period outside prison on parole if he demonstrates rehabilitation. His core premise is mistaken, however. He does not face LWOP. New legislation effective January 1, 2014,  provides for a parole hearing for juvenile offenders like Gonzalez in the 25th year of their
incarceration, usually within their life expectancy by a matter of decades and therefore well within constitutional norms. We also find no merit in Gonzalez’s as-applied, disproportional punishment challenge or his ineffective assistance of counsel (LAC) claim. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2003, Gonzalez shot and killed Cena in a second encounter after two of Cena’s friends dropped him off near an Anaheim intersection. According to Cena’s friends, Cena planned to sell shampoo they had stolen from a store so they could use the proceeds to buy drugs. The trio belonged to the Kodiak criminal street gang, while Gonzalez belonged to Kodiak’s rival, the Underhill gang. In an initial encounter, Cena’s friends saw Gonzalez and a companion engage Cena in a conversation that did not appear friendly, “but there was no yelling.” Cena returned safely to his friends’ truck, and they dropped him off at the Balsom and Curtis intersection. Before the truck could make a u-turn to retrieve Cena, two shots rang out, felling Cena. The police and an ambulance responded, but Cena never regained consciousness and bled to death from his injuries.
More than a year later, Gonzalez’s mother discovered a firearm in his possession and turned it over to the police. A ballistics test at the time did not connect the weapon, which had a damaged barrel, to Cena’s shooting. Gonzalez admitted in a police interview only that he had received the gun as an Underhill gang member trying to earn his “stripes, ” and that he had used it to fire shots in the air to scare off rival La Jolla gang members in a different incident.
In 2009, a fellow gang member identified Gonzalez as the person who shot Cena and agreed to wear a recording device while he briefly shared a jail cell with Gonzalez, who was incarcerated on other charges. But Gonzalez admitted in the recording only that he possessed the handgun his mother discovered. The gang associate, however, also identified Gonzalez’s accomplice on the day of the shooting, Ricardo Castaneda.
In May 2011, officers arrested Castaneda on an outstanding traffic warrant, he admitted his role in the shooting, and at trial in May 2012, Castaneda identified Gonzalez as the shooter. A new ballistics test conducted with the aid of 3-D printing technology to account for the damaged barrel on Gonzalez’s gun confirmed the weapon matched the bullet retrieved when Cena died on a hospital gurney. The jury convicted Gonzalez as noted, and the trial court held a sentencing hearing in July 2012.
At the time of sentencing, Gonzalez was 23 years old and already serving an 11-year sentence for assaulting a police officer with a firearm. The trial court imposed a 50-year-to-life sentence and ordered it to run concurrently with Gonzalez’s 11-year assault sentence. The trial court credited Gonzalez with just over a year of pretrial incarceration, 372 days, and Gonzalez now appeals his 50-year-to-life sentence.
A. General Principles and Standard of Review
Punishment that is grossly disproportionate to the offender’s culpability violates constitutional norms prohibiting “cruel and unusual” (U.S. Const., 8th amend.) and “cruel or unusual” (Cal. Const., art. I, § 17) punishment. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 997 [115 L.Ed.2d 836, 111 S.Ct. 2680] (cone. opn. of Kennedy, J.) (Harmelin) [8th Amend. “encompasses a narrow proportionality principle”]; People v. Dillon (1983) 34 Cal.3d 441, 478 [194 Cal.Rptr. 390, 668 P.2d 697] (Dillon) [“punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed”].) Because “in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments” (In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921] (Lynch), a defendant bears a “considerable burden” to show the requisite disproportionality. (People v. Wingo (1975) 14 Cal.3d 169, 174 1121 Cal.Rptr. 97, 534 P.2d 10011 (Wingo).) Consequently, such findings “have occurred with exquisite rarity in the case law” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [2 Cal.Rptr.2d 714)).
B. Categorical Rules Governing Punishment and Process in the Juvenile Context
In the juvenile context, because “juvenile offenders cannot with reliability be classified among the worst offenders” (Roper v. Simmons (2005) 543 U.S. 551, 569 [161 L.Ed.2d 1, 125 S.Ct. 1183] (Roper)), certain “categorical rules” (Graham v. Florida (2010) 560 U.S. 48, 61 [176 L.Ed.2d 825, 130 S.Ct. 20111');"> 130 S.Ct. 20111 (Graham)) have emerged to mitigate the risk of disproportionate punishment. As Graham explained, “The Court’s cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death
penalty.” (Id. at p. 59.) In Graham, the high court extended its categorical approach to bar LWOP sentences for juveniles in nonhomicide cases. (Id. at p. 61 [“The present case involves an issue the Court has not considered previously: a categorical challenge to a term-of-years sentence”].)
The high court cautioned its categorical approach in Graham was not “suited for considering a gross proportionality challenge to a particular defendant’s sentence” on an as-applied basis, but instead applies “[w]here a sentencing practice itself is in question.” (Graham, supra, 560 U.S. at p. 61 [“This case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes”].)
The Supreme Court’s categorical line of cases has yielded several bright-line rules. The death penalty may not be imposed on juvenile offenders. (Roper, supra, 543 U.S. at p. 578.) An LWOP sentence may not be imposed on a juvenile who commits a nonhomicide offense. (Graham, 560 U.S. at p. 82.) Similarly, our Supreme Court has explained that a de facto LWOP sentence, including for example a sentence of 110-years-to-life, is constitutionally barred in juvenile ...