California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
APPEAL from the Superior Court of Riverside County. No. RIF148527 Patrick F. Magers, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
[Copyrighted Material Omitted]
Harry Zimmerman, 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, Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
Defendant and appellant Javante Marquis Scott appeals after the trial court, at a resentencing hearing, imposed the same 120-year-to-life term as at his original sentencing. Defendant was tried as an adult and convicted of three counts of attempted murder with firearm enhancements. Defendant contends the sentence is cruel and unusual because it imposes a de facto life sentence on him as a juvenile offender. The People argue that a new statute, Penal Code section 3051,
 which guarantees defendant a future parole eligibility hearing, renders the sentence constitutional. We hold that section 3051 complies with the central constitutional requirement that the State
provide a juvenile offender with a meaningful opportunity to obtain release within his or her expected lifetime. For this reason we affirm.
Facts and Procedural History
On February 13, 2009, defendant was 16 years old. Around 10:00 p.m. that night, defendant was riding in a car driven by an adult friend. He told the friend that he wanted to “dump” some Mexicans, meaning he wanted to shoot or kill someone. Defendant told the friend where to drive, pulled a gun from his pocket, and said “Watch this, watch these dicks run.” At this time, three Hispanic youths were walking on University Avenue in Riverside on their way to a fast food restaurant. None of the youths were gang members. Defendant fired four shots at the youths, hitting one in the lower back and seriously injuring him.
At trial, defendant admitted firing the shots, but testified that he did so only because the driver of the car told him to and that he “didn’t intend to hit nobody.”
Evidence at trial showed that defendant’s father and older brother were or had been members of a local Crips gang. Defendant’s father was known by the moniker “Tiptoe.” Defendant’s brother was known by the moniker “Lil’ Tiptoe.” Although defendant himself did not have any gang tattoos, and he denied gang membership, he had come to be known as “Baby Tiptoe.” A gang expert testified at trial that defendant committed the shootings for gang purposes. Defendant wrote rap lyrics about cruising around in a car and shooting rival gang members. His cell phone identified him as “Baby Duke Killa.”
On September 15, 2010, the jury convicted defendant of a number of charges and found true a number of enhancement allegations, as follows. First, the jury convicted defendant of three counts of attempted murder (§§ 664/187, subd. (a)), each with a firearm enhancement (§ 12022.53, subds. (d) & (e)) and a gang enhancement (§186.22, subd. (b)). Second, the jury convicted defendant of one count of gang participation (§ 186.22, subd. (a)). Third, the jury convicted defendant of two counts of assault with a firearm (§ 245, subd. (b)), each with a firearm enhancement (§§ 12022.5, subd. (a), 12022.55) and a gang enhancement (§ 186.22, subd. (b)), and one with a great bodily injury enhancement (§ 12022.7, subd. (a)).
On November 5, 2010, the trial court sentence defendant to 120 years to life in prison, as follows: 15 years to life for each of the three attempted
murders, plus 25 years to life for each of the three firearm enhancements, all to run consecutively. The court imposed a concurrent sentence of three years for the gang participation and imposed but stayed the sentences for the assault counts pursuant to section 654.
Defendant appealed, and in People v. Scott (E052276) (nonpub. opn.), dated May 17, 2012, this court modified the sentence to stay the term for gang participation pursuant to section 654.
On April 22, 2013, defendant filed a petition for writ of habeas corpus. Defendant sought resentencing, arguing that the imposition of an indeterminate sentence of 120 years to life is a de facto life sentence, which recent case law from the California Supreme Court held violated the Eighth Amendment prohibition against cruel and unusual punishment when imposed on a juvenile for a nonhomicide crime. On June 28, 2013, the Riverside Superior Court granted the petition, vacated defendant’s sentence and ordered the trial court to hold a resentencing hearing.
While the hearing was pending, the Legislature passed, and the governor signed, legislation enacting section 3051, which provides for juvenile offenders in defendant’s position to be afforded a parole hearing after a maximum wait of 25 years, depending on the sentence imposed.
At the resentencing hearing held on September 20, 2013, the prosecutor took the position that the enactment of section 3051 cured the constitutional deficiency posed by defendant’s sentence. Defense counsel essentially conceded, stating “So he appears to fall within this legislation, and I’ll submit to the Court’s discretion, Your Honor, as to whether this issue was moot.” The trial court accepted the People’s argument, found that defendant would be eligible for a parole review in 25 years under section 3051, and resentenced defendant to 120 years to life.
Defendant now appeals.
I. Standard of Review
The issue presented is whether defendant’s sentence violates the constitutional prohibitions against cruel and unusual punishment, as explained in Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham), Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455 (Miller), and People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero), or whether the constitutional
concerns have been addressed by section 3051. Because the issue is one of constitutional and statutory interpretation, it presents a question of law, which we review de novo. (See Finberg v. Manset (2014) 223 Cal.App.4th 529, 532 [167 Cal.Rptr.3d 109] ["We review de novo questions of interpretation and constitutionality of a statute”]; see also Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 287 [109 Cal.Rptr.3d 620, 231 P.3d 350] ["We review questions of law about the ...