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People v. Contreras

Supreme Court of California

February 26, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
LEONEL CONTRERAS and WILLIAM STEVEN RODRIGUEZ, Defendants and Appellants.

         San Diego County Super. Ct. No. SCD236438, Ct.App. 4/1 D063428 Peter C. Deddeh Judge

          Nancy J. King, under appointment by the Supreme Court, for Defendant and Appellant Leonel Contreras.

          Daniel J. Kessler, under appointment by the Supreme Court, for Defendant and Appellant William S. Rodriguez.

          L. Richard Braucher and Susan L. Burrell for Pacific Juvenile Defender Center as Amicus Curiae on behalf of Defendant and Appellant.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Joshua Klein, Deputy State Solicitor General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Meredith S. White, Steven T. Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

          Nancy J. King, Daniel J. Kessler, Kessler & Seecof, LLP, Steven T. Oetting, Deputy Attorney General

          LIU, J.

         Defendants Leonel Contreras and William Rodriguez were convicted in a joint trial of kidnapping and sexual offenses they committed as 16 year olds. Rodriguez was sentenced to a term of 50 years to life, and Contreras was sentenced to a term of 58 years to life. We granted review to determine whether the sentences imposed on these juvenile nonhomicide offenders violate the Eighth Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham). We hold that these sentences are unconstitutional under the reasoning of Graham.

         I.

         On September 3, 2011, Jane Doe 1 and Jane Doe 2 attended a birthday party for Doe 1's uncle in the Rancho Peñasquitos area of San Diego County. Doe 1 was 16 years old, and Doe 2 was 15 years old. In the evening, Doe 1 and Doe 2 went for a walk to a greenbelt nearby and sat near a tree to talk. Two teenagers, later identified as Contreras and Rodriguez, walked past them dressed in dark clothing and with their hoods up. Shortly thereafter, defendants walked up behind Doe 1 and Doe 2, tackled them, and forced them to walk across the street, up an embankment, and into a vegetated area. Contreras held a knife to Doe 1's neck and told her to tell Doe 2 to “shut the fuck up” multiple times. Rodriguez covered Doe 2's mouth with his hand, tied a bandana around her mouth, and threatened to hurt her if she screamed. Doe 2 repeatedly tried to get away, fell once from struggling, and at one point bit Rodriguez's hand.

         Rodriguez raped and sodomized Doe 2. Contreras raped Doe 1 and forced her to orally copulate him. Rodriguez then raped and sodomized Doe 1 and forced her to orally copulate him. Contreras put a knife to Doe 2's neck, raped her, and forced her to orally copulate him. Rodriguez forced Doe 2 and then Doe 1 to orally copulate him. Defendants then told Doe 1 and Doe 2 to get dressed. Rodriguez told Doe 1 and Doe 2 not to tell anyone what happened. One of the defendants said they would follow Doe 1 and Doe 2 home and come after them and one of Doe 1's family members if they told anyone what had happened. Doe 1 and Doe 2 walked to the street and saw Doe 1's parents, who had been searching for them.

         In 2012, defendants were charged as adults under former Welfare and Institutions Code section 707, subdivisions (d)(1) and (d)(2)(A) (amended by Prop. 57, § 4.2, eff. Nov. 9, 2016) and were jointly tried before separate juries. A jury convicted Contreras of conspiracy to commit kidnapping and forcible rape (Pen. Code, § 182, subd. (a)(1); all undesignated statutory references are to this code), rape by foreign object (§ 289, subd. (a)(1)(A)), two counts of kidnapping (§ 207, subd. (a)), seven counts of forcible rape (§ 261, subd. (a)(2)), eight counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by use of force (§ 286, subd. (c)(2)(A)). The jury found true allegations that Contreras committed the crimes with use of a knife (§ 12022.3, subd. (a)) as well as allegations that many of the sexual assault crimes were committed during a kidnapping, against more than one victim, and with a knife within the meaning of subdivisions (d)(2), (e)(1), (e)(3), and (e)(4) of section 667.61, the “One Strike” law.

         On the same day, a jury convicted Rodriguez of two counts of kidnapping (§ 207, subd. (a)), two counts of forcible rape (§ 261, subd. (a)(2)), four counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by use of force (§ 286, subd. (c)(2)(A)). The jury found true allegations that Rodriguez had committed the sexual assault crimes during a kidnapping and against multiple victims within the meaning of subdivisions (d)(2) and (e)(4) of section 667.61.

         At defendants' sentencing hearings, the parties and the trial court agreed that the court could not impose the statutory maximum sentences of several hundred years, as those sentences would fall outside of defendants' natural life expectancies. At Rodriguez's hearing, defense counsel noted that Rodriguez had no criminal history, and the court acknowledged his “very difficult upbringing.” But the court said, “I have to weigh that against the horrible scars that you have left on these two girls.” The court then sentenced Rodriguez to two consecutive terms of 25 years to life. The court observed that it was required to sentence Rodriguez to additional consecutive terms of 25 years to life under section 667.61, subdivision (i) but reasoned that doing so would violate Graham and Caballero.

         At Contreras's hearing, defense counsel noted that Contreras had no arrests and one prior misdemeanor for vandalism. The court said, “I think that Mr. Rodriguez was a follower. Mr. Contreras was the shot caller.” The trial judge identified the “brutal and callous and ruthless” nature of the crimes and expressed skepticism about Contreras's ability to rehabilitate: “I think his brain is developed into who he is....” Based on these factors, among others, the court stated, “I think that it's only appropriate that he suffer the same punishment that Mr. Rodriguez did and plus he used a knife, so he should get a little bit more.” The court sentenced Contreras to two consecutive terms of 25 years to life in addition to two four-year terms and imposed many additional concurrent or stayed sentences. The trial judge concluded by noting, “If I could sentence you to 640 years to life, I would have.... Because you were a minor, you were spared that sentence.”

         Defendants appealed their convictions and sentences on multiple grounds. The Court of Appeal affirmed the convictions but reversed defendants' sentences. It held that the sentences “preclude any possibility of parole until [defendants] are near the end of their lifetimes” and thus “fall[] short of giving them the realistic chance for release contemplated by Graham.” The Court of Appeal remanded the matter to the trial court for resentencing, with instructions to consider the circumstances of the crimes, including the existence of multiple victims, together with all mitigating circumstances, and to impose a parole eligibility date consistent with the holding in Graham.

         We granted review and deferred briefing pending our decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, we held that juvenile homicide offenders may not be sentenced to the functional equivalent of life without parole (LWOP) without certain protections afforded by the Eighth Amendment as interpreted in Miller v. Alabama (2012) 567 U.S. 460 (Miller). (Franklin, at p. 276.) The defendant there had been sentenced to 50 years to life for first degree murder, and he claimed that his sentence was the functional equivalent of LWOP and was imposed in violation of Miller. We held that because section 3051 entitles Franklin to a youth offender parole hearing during his 25th year of incarceration, his sentence “is neither LWOP nor its functional equivalent” and thus gives rise to “no Miller claim.” (Franklin, at p. 280.)

         A youth offender parole hearing is not available to juveniles convicted under the One Strike law, as defendants were here. (§ 3051, subd. (h).) Because Franklin does not resolve this case, we ordered briefing to address whether Rodriguez's sentence of 50 years to life or Contreras's sentence of 58 years to life violates the Eighth Amendment.

         II.

         The Eighth Amendment ban on cruel and unusual punishment “flows from the basic ‘ “precept of justice that punishment for crime should be graduated and proportioned to [the] offense. [Citation.]” ' ” (Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper).) “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” (Ibid.; see Robinson v. California (1962) 370 U.S. 660, 667 [Eighth Amendment applies to the states].)

         The United States Supreme Court has interpreted the Eighth Amendment to impose unique constraints on the sentencing of juveniles who commit serious crimes. This case law reflects the principle that “children are constitutionally different from adults for purposes of sentencing.” (Miller, supra, 567 U.S. at p. 471.) “From this principle, the high court has derived a number of limitations on juvenile sentencing: (1) no individual may be executed for an offense committed when he or she was a juvenile (Roper, [supra, ] 543 U.S. at p. 578); (2) no juvenile who commits a nonhomicide offense may be sentenced to LWOP (Graham, supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide offense may be automatically sentenced to LWOP (Miller, at p. [465]).” (Franklin, supra, 63 Cal.4th at pp. 273-274; see Montgomery v. Louisiana (2016) 577 U.S. __, __ [136 S.Ct. 718');">136 S.Ct. 718, 734] (Montgomery) [“Miller announced a substantive rule of constitutional law” that applies retroactively].) The second limitation is relevant here: Because Contreras and Rodriguez committed nonhomicide offenses, the Eighth Amendment does not permit them to be sentenced to LWOP. Although they may be punished with long sentences, they must have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Graham, at p. 75.)

         In Caballero, we held that a juvenile defendant's sentence of 110 years to life for three counts of attempted murder was the functional equivalent of LWOP and, under Graham, violated the Eighth Amendment. (Caballero, supra, 55 Cal.4th at p. 268.) We rejected the argument that Graham's prohibition on LWOP does not apply to aggregated sentences for distinct crimes where each sentence individually provides for the possibility of parole within a juvenile's expected lifespan. (Id. at pp. 267-268.) We said: “Graham's analysis does not focus on the precise sentence meted out. Instead, ... it holds that a state must provide a juvenile offender ‘with some realistic opportunity to obtain release' from prison during his or her expected lifetime.” (Id. at p. 268.)

         Graham and Caballero together hold that the Eighth Amendment does not allow juveniles who commit nonhomicide crimes to be sentenced to LWOP or to a term of years well in excess of natural life expectancy. But neither Graham nor Caballero considered whether a lengthy sentence short of LWOP or its equivalent would likewise violate the Eighth Amendment in this context. The question here is whether Rodriguez's sentence of 50 years to life or Contreras's sentence of 58 years to life for nonhomicide offenses violates the same Eighth Amendment principles that bar the imposition of LWOP for their crimes.

         A.

         The Attorney General says we “should adopt the following rule: any term of imprisonment that provides a juvenile offender with an opportunity for parole within his or her expected natural lifetime is not the functional equivalent of LWOP....” The Attorney General urges us to determine natural life expectancy by looking to a report published by the Centers for Disease Control (CDC), based on 2010 data, providing the life expectancies of various age and gender cohorts living in the United States. (See Arias, United States Life Tables, 2010, National Vital Statistics Reports, vol. 63, no. 7 (Nov. 6, 2014) p. 1 (2010 Life Tables).) According to that report, a 16-year-old boy in the United States is expected to live an additional 60.9 years, for a total life expectancy of 76.9 years. (Id. at p. 11, table 2.) Noting that “Rodriguez will be 66 years old when first eligible for parole, and Contreras will be 74 years old when first eligible for parole, ” the Attorney General contends that “[b]ecause it affords appellants an opportunity for parole within their expected natural lifetimes, a sentence of 50 years to life and 58 years to life is not the functional equivalent of LWOP and therefore may be constitutionally imposed.” As explained below, this actuarial approach urged by the Attorney General is practically and conceptually problematic.

         As an initial matter, we find unpersuasive the Attorney General's claim that we already decided in Caballero that a term-of-years sentence does not violate the Eighth Amendment if it allows the possibility of parole at some point during the juvenile offender's natural life expectancy. Caballero held that “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.” (Caballero, supra, 55 Cal.4th at p. 268.) But the defendant in Caballero challenged a sentence allowing for parole eligibility “over 100 years from now.” (Ibid.) In that context, it was enough to note that the parole eligibility date “falls outside the juvenile offender's natural life expectancy.” (Ibid.) We had no occasion to consider whether a term-of-years sentence violates the Eighth Amendment only if it exceeds a juvenile defendant's natural life expectancy. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [“ ‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.' ”].)

         Taken on its own terms, the Attorney General's actuarial approach gives rise to a tangle of legal and empirical difficulties. In defining life expectancy, the Attorney General relies on our statement in Caballero that “the term ‘life expectancy' means the normal life expectancy of a healthy person of defendant's age and gender living in the United States.” (Caballero, supra, 55 Cal.4th at p. 267, fn. 3, italics added.) But this passing statement was unnecessary to our decision because the 110-years-to-life sentence at issue clearly exceeded the defendant's life expectancy under any definition. Although a gender-specific approach to determining life expectancy reflects the reality that females generally live longer than males (see 2010 Life Tables, supra, at p. 2 [“The difference in life expectancy between the sexes was 4.8 years in 2010....”]), we did not examine in Caballero whether it would be constitutional to authorize lengthier sentences for girls than for boys in determining the parameters of lawful punishment for juvenile nonhomicide offenders.

         “We long ago concluded that discrimination based on gender violates the equal protection clause of the California Constitution (art. I, § 7, subd. (a)) and triggers the highest level of scrutiny. (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-20.)” (Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 564.) “In order to satisfy that standard, the state must demonstrate not simply that there is a rational, constitutionally legitimate interest that supports the differential treatment at issue, but instead that the state interest is a constitutionally compelling one that justifies the disparate treatment prescribed by the statute in question. [Citation.]” (In re Marriage Cases (2008) 43 Cal.4th 757, 847.) And “the state must demonstrate that the distinctions drawn by the statute (or statutory scheme) are necessary to further that interest. [Citation.]” (Id. at p. 848.)

         It is unclear whether sentencing juveniles based on gender-specific life expectancies would satisfy strict scrutiny. But assuming it would, there would then be no reason why the definition of life expectancy should not also account for well-documented racial differences, since racial classifications are evaluated under the same constitutional standard. (See Johnson v. California (2005) 543 U.S. 499, 505; Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 337.) According to the CDC report on which the Attorney General relies, life expectancy in 2010 was 83.8 years for Hispanic females, 81.3 years for non-Hispanic white females, 78.0 years for black females, 78.7 years for Hispanic males, 76.5 years for white males, and 71.8 years for black males. (2010 Life Tables, supra, at p. 5.) These differences present a conundrum: Although persons of different races and genders are not similarly situated in terms of life expectancy, it seems doubtful that considering such differences in juvenile sentencing would pass constitutional muster.

         Moreover, were we to adopt the Attorney General's proposed rule, it is not obvious why the definition of life expectancy should ignore other group-based differences that may be relevant to a particular juvenile defendant. The Pacific Juvenile Defender Center (PJDC), as amicus curiae, notes that life expectancy is affected by many “ ‘variables that have long been studied by social scientists but are not included in U.S. Census or vital statistics reports - income, education, region, type of community, access to regular health care, and the like....' ” (See Cummings & Colling, There is No Meaningful Opportunity in Meaningless Data: Why It Is Unconstitutional to Use Life Expectancy Tables in Post-Graham Sentences (2014) 18 U.C. Davis J. Juvenile L. & Policy 267, 282.)

         Defendants and PJDC highlight the relevance of one variable in particular: incarceration. PJDC cites studies showing that incarceration accelerates the aging process and results in life expectancies substantially shorter than estimates for the general population. (See Patterson, The Dose-Response of Time Served in Prison on Mortality: New York State, 1989-2003 (2013) 103 Am. J. Pub. Health 523, 526 [finding each year of incarceration correlated with a 15.6 percent increase in odds of death for parolees and a two-year decline in life expectancy]; U.S. Dept. of Justice, Nat. Inst. of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill. and Terminally Ill. Inmates (2004) pp. 9-10 (Correctional Health Care) [stresses of incarceration intensify the health problems of elderly inmates and accelerate aging processes]; see also Spaulding et al., Prisoner Survival Inside and Outside of the Institution: Implications for Health-Care Planning (2011) 173 Am. J. Epidemiology 479, 484 [currently and formerly incarcerated individuals in Georgia have “overall heightened mortality... over 15 years of follow-up relative to the general Georgia population, ” with significant differences by race, gender, and time incarcerated].) One state high court has taken such evidence into account in determining whether a term-of-years sentence violates the Eighth Amendment. (See Casiano v. Commissioner of Correction (Conn. 2015) 115 A.3d 1031, 1046 (Casiano).)

         On the other hand, it has been suggested that inmates who “have aged in place are generally the best adapted to prison life because they have been in prison since their youth and have adjusted to it.” (Correctional Health Care, supra, at p. 10.) Further, although incarceration has its stresses, it may shield inmates from other stresses that would afflict them outside of prison, including violence, accidents, and poor access to health care. (See Spaulding et al., supra, at pp. 482-485; Rosen et al., All-Cause and Cause-Specific Mortality Among Black and White North Carolina State Prisoners, 1995-2005 (2011) 21 Ann. Epidemiology 719, 725-726 [average death rates for currently incarcerated black men in North Carolina prisons are significantly lower than for the black population in the state overall, but currently incarcerated white men have slightly higher average death rates than white men in the state].) In addition, the Attorney General asserts that although race, region, and economic status may affect death rates outside prison, such findings are not necessarily true “for those inside prison, where living conditions, medical treatment, and wealth are roughly the same for all.”

         The record in this case contains no findings by the trial court on these matters. At sentencing, the prosecution introduced evidence of statistical life expectancies, and neither defendant presented evidence demonstrating shorter life expectancy in prison. But we decline to adopt a constitutional rule that employs a concept of life expectancy whose meaning depends on the facts presented in each case. Determining the validity of lengthy term-of-years sentences under the Eighth Amendment through a case-by-case inquiry into competing evidence of the life expectancy most pertinent to a particular juvenile defendant would lead to problems of disparate sentencing. Moreover, even if there were a legally and empirically sound approach to estimating life expectancy, it must be noted that a life expectancy is an average. (2010 Life Tables, supra, at p. 2.) In a normal distribution, about half of a population reaches or exceeds its life expectancy, while the other half does not. Under Graham, juvenile nonhomicide offenders must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75; see id. at p. 82 [the state must give juvenile nonhomicide offenders “some realisticopportunity to obtain release before the end of [a life] term”].) An opportunity to obtain release does not seem “meaningful” or “realistic” within the meaning of Graham if the chance of living long enough to meet that opportunity is roughly the same as a coin toss. Of course, there can be no guarantee that every juvenile offender who suffers a lengthy sentence will live until his or her parole eligibility date. But we do not believe the outer boundary of a lawful sentence can be fixed by a concept that by definition would not afford a realistic opportunity for release to a substantial fraction of juvenile offenders.

         B.

         In addition to raising legal and empirical difficulties, the actuarial approach proposed by the Attorney General is misguided at a more fundamental level. When evaluating a sentence that clearly exceeds natural life expectancy, like the 110-years-to-life sentence in Caballero, it is straightforward to conclude that the sentence is “functionally equivalent” to LWOP as an actuarial matter. (Caballero, supra, 55 Cal.4th at p. 268.) But the issue of functional equivalence in this context is not limited to determining whether a term-of-years sentence is actuarially equivalent to LWOP. Although the Attorney General trains his inquiry on that question, there is a separate and distinct question whether a lengthy term-of-years sentence, though not clearly exceeding a juvenile offender's natural lifespan, may nonetheless impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment. This latter notion of functional equivalence - that a term-of-years sentence may function like LWOP with respect to the Eighth Amendment concerns that constrain lawful punishment for juvenile nonhomicide offenders - is what we must address in this case. (See State v. Null (Iowa 2013) 836 N.W.2d 41, 71 [“[W]e do not believe the determination of whether the principles of Miller or Graham apply in a given case should turn on the niceties of epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates.”].) To resolve this question, the proper starting point is not a life expectancy table but the reasoning of the high court in Graham.

         The defendant in Graham, at age 16, was charged in Florida as an adult for armed burglary with assault or battery, which carried a maximum sentence of LWOP, and attempted armed robbery, which carried a maximum sentence of 15 years. (Graham, supra, 560 U.S. at pp. 53-54.) Graham pleaded guilty to both charges and, in a letter to the trial court, said “ ‘this is my first and last time getting in trouble' ” and “ ‘I've decided to turn my life around.' ” (Id. at p. 54.) The trial court withheld adjudication of guilt and sentenced him to probation. (Ibid.) Less than six months later, 34 days before his 18th birthday, Graham participated in a home invasion robbery and afterward admitted he had violated his probation conditions. (Id. at pp. 54-55.) At that point, the trial court found Graham guilty of the earlier armed burglary and attempted armed robbery. (Id. at pp. 55-57.)

         At sentencing, the trial court said: “ ‘Mr. Graham, as I look back on your case, yours is really candidly a sad situation. You had, as far as I can tell, you have quite a family structure. You had a lot of people who wanted to try and help you get your life turned around including the court system, and you had a judge who took the step to try and give you direction through his probation order to give you a chance to get back onto track. And at the time you seemed through your letters that that is exactly what you wanted to do. And I don't know why it is that you threw your life away.... [¶] But you did, and that is what is so sad about this today.... [¶]... [¶] And I don't understand why you would be given such a great opportunity to do something with your life and why you would throw it away. The only thing that I can rationalize is that you decided that this is how you were going to lead your life and that there is nothing that we can do for you. And as the state pointed out, that this is an escalating pattern of criminal conduct on your part and that we can't help you any further. We can't do anything to deter you. This is the way you are going to lead your life.... [¶]... [¶]... I don't see where any further youthful offender sanctions would be appropriate. Given your escalating pattern of criminal conduct, it is apparent to the Court that you have decided that this is the way you are going to live your life and that the only thing I can do now is to try and protect the community from your actions.' ” (Graham, supra, 560 U.S. at pp. 56-57.) The trial court sentenced Graham to the maximum penalty for both crimes: LWOP for the armed burglary and 15 years in prison for the attempted armed robbery. (Id. at p. 57.) The high court held that the Eighth Amendment categorically “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” (Id. at p. 82.)

         Central to the high court's analysis was its “consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” (Graham, supra, 560 U.S. at p. 67.) As for culpability, the high court reiterated its observations in Roper that “[a]s compared to adults, juveniles have a ‘ “lack of maturity and an underdeveloped sense of responsibility” '; they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure'; and their characters are ‘not as well formed.' [Citation.] These salient characteristics mean that ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.' ” (Graham, at p. 68, quoting Roper, supra, 543 U.S. at pp. 569-570, 573.) Further, the high court underscored that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.... Although an offense like robbery or rape is ‘a serious crime deserving serious punishment, ' those crimes differ from homicide crimes in a moral sense.” (Graham, at p. 69, citations omitted.)

         As for the punishment, the high court noted that a sentence of LWOP “deprives the convict of the most basic liberties without giving hope of restoration.” (Graham, supra, 560 U.S. at pp. 69-70; see id. at p. 70 [“this sentence ‘means denial of hope; it means that good behavior and character improvement are immaterial....' ”].) In addition, “[l]ife without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.... This reality cannot be ignored.” (Ibid.)

         The high court then evaluated the sentence against the penological goals of “retribution, deterrence, incapacitation, and rehabilitation.” (Graham, supra, 560 U.S. at p. 71.) Linking retribution to culpability, the high court said “ ‘the case for retribution is not as strong with a minor as with an adult' ” and “becomes even weaker with respect to a juvenile who did not commit homicide.” (Ibid.) As for deterrence, the high court said that “[b]ecause juveniles' ‘lack of maturity and underdeveloped sense of responsibility... often result in impetuous and ill-considered actions and decisions, ' [citation], they are less likely to take a possible punishment into consideration when making decisions.” (Id. at p. 72.)

         As for incapacitation, the high court acknowledged that “[r]ecidivism is a serious risk to public safety, and so incapacitation is an important goal.” (Graham, supra, 560 U.S. at p. 72.) But the “characteristics of juveniles” make it “questionable” to conclude that a juvenile offender is incorrigible; indeed, “ ‘incorrigibility is inconsistent with youth.' ” (Id. at pp. 72-73.) A sentencing authority may not make a judgment “at the outset” that a juvenile nonhomicide offender will “be a risk to society for the rest of his life.” (Id. at p. 73.) This was true even for Graham, who had violated the terms of his probation “despite his own assurances of reform” and had engaged in “what the trial court described as an ‘escalating pattern of criminal conduct.' ” (Ibid.) “A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.” (Ibid.)

         The high court then discussed rehabilitation and explained that LWOP “forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person's value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability.” (Graham, supra, 560 U.S. at p. 74.) The high court also noted that inmates sentenced to LWOP “are often denied access to vocational training and other rehabilitative services that are available to other inmates, ” making “all the more evident” the disproportionality of LWOP when imposed on “juvenile offenders, who are most in need of and receptive to rehabilitation.” (Ibid.) “In sum, ” Graham concluded, “penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders.” (Ibid.)

         C.

         What emerges from Graham is not a constitutional prohibition on harsh sentences for juveniles who commit serious crimes. (Graham, supra, 560 U.S. at p. 71 [“Society is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense.”].) Nor does Graham “require the State to release [a juvenile nonhomicide] offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.” (Id. at p. 75.) But Graham “does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.” (Ibid.) “What the State must do... is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Ibid.)

         While finding LWOP impermissible for juvenile nonhomicide offenders, the high court did not define the maximum length of incarceration before parole eligibility that would be permissible in light of the concerns it set forth in Graham. But the high court made clear the nature of its concerns: A lawful sentence must recognize “a juvenile nonhomicide offender's capacity for change and limited moral culpability.” (Graham, supra, 560 U.S. at p. 74.) A lawful sentence must offer “hope of restoration” (id. at p. 70), “a chance to demonstrate maturity and reform” (id. at p. 79), a “chance for fulfillment outside prison walls, ” and a “chance for reconciliation with society” (ibid.). A lawful sentence must offer “the opportunity to achieve maturity of judgment and self-recognition of human worth and potential.” (Ibid.) A lawful sentence must offer the juvenile offender an “incentive to become a responsible individual.” (Ibid.)

         Although the Attorney General says a penalty is not invalid under Graham unless it “is tantamount to [a] sentence of death, ” he does not seriously contend that a term-of-years sentence with parole eligibility at any point before the end of life expectancy - whether it is one year, one month, or one day - would satisfy the Eighth Amendment. Even assuming defendants' parole eligibility dates are within their expected lifespans, the chance for release would come near the end of their lives; even if released, they will have spent the vast majority of adulthood in prison. We agree with the Court of Appeal that these sentences “tend to reflect a judgment Rodriguez and Contreras are irretrievably incorrigible” and “fall[] short of giving them the realistic chance for release contemplated by Graham.”

         Several considerations support this conclusion. First, although the high court has not defined what it means for a juvenile offender “to rejoin society” (Graham, supra, 560 U.S. at p. 79), the language of Graham suggests that the high court envisioned more than the mere act of release or a de minimis quantum of time outside of prison. Graham spoke of the chance to rejoin society in qualitative terms - “the rehabilitative ideal” (id. at p. 74) - that contemplate a sufficient period to achieve reintegration as a productive and respected member of the citizenry. The “chance for reconciliation with society” (id. at p. 79), “the right to reenter the community” (id. at p. 74), and the opportunity to reclaim one's “value and place in society” (ibid.) all indicate concern for a measure of belonging and redemption that goes beyond mere freedom from confinement. It is also significant that Graham said juvenile nonhomicide offenders should not be denied access to “vocational training” and “education, ” among other rehabilitative services. (Id. at pp. 74, 79.) Presumably one purpose of such programming is to enable a juvenile offender to hold a job or otherwise participate as a productive member of society if released. Graham's directive that “[t]he juvenile should not be deprived of the opportunity to achieve... self-recognition of human worth and potential” implies that the juvenile may someday have the opportunity to realize that “potential.” (Id. at p. 79.) For any individual released after decades of incarceration, adjusting to ordinary civic life is undoubtedly a complex and gradual process. Confinement with no possibility of release until age 66 or age 74 seems unlikely to allow for the reintegration that Graham contemplates.

         Second, in underscoring the capacity of juveniles to change, Graham made clear that a juvenile offender's prospect of rehabilitation is not simply a matter of outgrowing the transient qualities of youth; it also depends on the incentives and opportunities available to the juvenile going forward. (See, e.g., Graham, supra, 560 U.S. at p. 79 [prison system may “become[] complicit in the lack of development” of a juvenile offender by “withhold[ing] counseling, education, and rehabilitation programs”].) Importantly, Graham said “[a] young person who knows that he or she has no chance to leave prison before life's end has little incentive to become a responsible individual.” (Ibid.) We believe the same is true here: A young person who knows he or she has no chance to leave prison for 50 years “has little incentive to become a responsible individual.” (Ibid.)

         Third, a sentence of 50 years to life imprisonment bears an attenuated relationship to legitimate penological goals under the reasoning of Graham. Such a sentence, though less harsh than LWOP, is still “an especially harsh punishment for a juvenile, ” who “will on average serve more years and a greater percentage of his life in prison than an adult offender.” (Graham, supra, 560 U.S. at p. 70.) It is also a highly severe punishment for a juvenile nonhomicide offender who, “when compared to an adult murderer, ” has “a twice diminished moral culpability.” (Id. at p. 69; cf. § 190, subd. (a) [penalty for adult who commits first degree murder simpliciter is 25 years to life].) The retributive case for a 50-years-to-life sentence, as for LWOP, is weakened by the juvenile nonhomicide offender's “age... and the nature of the crime.” (Graham, at p. 69.) As for deterrence, Graham's observation that juveniles have limited ability to consider consequences when making decisions (id. at p. 72) applies to a sentence of 50 years to life just as it does to a sentence of LWOP. And as for incapacitation, a judgment that a juvenile offender will be incorrigible for the next 50 years is no less “questionable” than a judgment that the juvenile offender will be incorrigible “forever.” (Id. at pp. 72-73; see Montgomery, supra, 577 U.S. at p. __ [136 S.Ct. at p. 736] [“Miller's central intuition” is “that children who commit even heinous crimes are capable of change”].) Finally, as noted, a sentence of 50 years to life “cannot be justified by the goal of rehabilitation” because it offers a juvenile offender “little incentive to become a responsible individual.” (Graham, at pp. 74, 79.)

         Fourth, our conclusion that a sentence of 50 years to life is functionally equivalent to LWOP is consistent with the decisions of other state high courts. Setting aside courts that have disagreed with our case law holding that Graham and Miller apply to aggregated sentences (see Franklin, supra, 63 Cal.4th at p. 276; Caballero, supra, 55 Cal.4th at pp. 267-268), we are not aware of any state high court that has found incarceration of a juvenile for 50 years or more before parole eligibility to fall outside the strictures of Graham and Miller. (See State v. Zuber (N.J. 2017');">2017) 152 A.3d 197, 212 [110-year sentence with parole eligibility after 55 years “is the practical equivalent of life without parole”]; Casiano, supra, 115 A.3d at p. 1044 [same for 50-year sentence]; Bear Cloud v. State of Wyoming (Wyo. 2014) 334 P.3d 132, 142 [same for 45-years-to-life sentence]; Null, supra, 836 N.W.2d at p. 71 [same for 75-year sentence with parole eligibility after 52.5 years]; but cf. Collins v. State (Fla.Ct.App. 2016) 189 So.3d 342, 343 [55-year sentence with parole eligibility after 52 years does not violate Graham]; United States v. Mathurin (11th Cir. 2017');">2017) 868 F.3d 921, 934-936 [57-year sentence, which defendant could reduce to a near-50-year sentence by earning good-time credits, does not violate Graham].)

         Finally, our conclusion is also consistent with state legislation adopted in the wake of Graham and Miller, assuming that the parole hearings in these statutory schemes provide for meaningful consideration of the inmate's age at the time of the offense and demonstrated maturity and rehabilitation. (See Ark. Code Ann. § 16-93-621(a)(1) [juvenile nonhomicide offenders eligible for parole after 20 years]; Colo. Rev. Stat. Ann. § 18-1.3-401(4)(c)(I)(B) [juvenile offenders sentenced to LWOP for a crime other than first degree murder resentenced to life with opportunity for parole after 40 years]; Conn. Gen. Stat. Ann. § 54-125a(f)(1) [juvenile offenders sentenced to over 50 years eligible for parole after 30 years, and juvenile offenders sentenced to between 10 and 50 years eligible for parole after the greater of 12 years or 60% of the sentence]; Del. Code Ann. tit. 11, § 4204A(d) [juvenile offender convicted of a crime other than first degree murder eligible for resentencing after 20 years]; D.C. Code Ann. § 24-403.03(a) [juvenile offenders eligible for sentence reduction after 20 years]; Fla. Stat. Ann. § 921.1402(2)(d) [juvenile offenders convicted of offenses other than murder entitled to review of sentence after 20 years]; La. Rev. Stat. § 15:574.4(D)(1) [juvenile offenders sentenced to life for crimes other than first or second degree murder eligible for parole after 30 years]; Sen. Bill No. 16 (La. 2017');">2017 Reg. Sess.) [juvenile offenders sentenced to life for crimes other than first or second degree murder eligible for parole after 25 years, effective August 2017');">2017]; Mo. Ann. Stat. § 558.047(1) [juvenile offenders sentenced to LWOP eligible for review of sentence after 25 years]; Nev. Rev. Stat. Ann. § 213.12135 [juvenile nonhomicide offenders eligible for parole after 15 years]; House Bill No. 1195 (N.D. 2017');">2017 Reg. Sess.) [juvenile offenders eligible for sentence reduction after 20 years]; W.Va. Code § 61-11-23(b) [juvenile offenders eligible for parole after 15 years]; Wyo. Stat. Ann. § 6-10-301(c) [juvenile offenders sentenced to life eligible for parole after 25 years]; but see Wash. Rev. Code § 9.94A.730(1) [juvenile offenders eligible for release after 20 years, except for those serving sentences for aggravated first degree murder or certain sex offenses].) In enacting these sentencing reforms, these state legislatures observed that sentencing juvenile nonhomicide offenders to 50 or more years of incarceration without parole eligibility is not consistent with Graham. (See, e.g., Sen. Bill No. 294 (Ark. 2017');">2017 Reg. Sess.) § 2; Colo. Rev. Stat. Ann. § 16-13-1001; Sen. Judiciary Com., Summary of Sen. Bill No. 796 (Conn. 2015 Reg. Sess.) § 1; Synopsis of Sen. Bill No. 9 (Del. 2013-2014 Reg. Sess.); House Judiciary Com., Crim. J. Subcom., Analysis of Sen. Bill No. 384 (Fla. 2014 Reg. Sess.) Jan. 3, 2014, pp. 1-4; Resume Dig. for Sen. Bill No. 317 (La. 2012 Reg. Sess.); Resume Dig. for Sen. Bill No. 16 (La. 2017');">2017 Reg. Sess.).)

         D.

         The Chief Justice criticizes our decision today as an “unwarranted extension of Graham.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 3.) She observes that “Graham... invalidated a narrowly defined, specific type of sentence” for juvenile nonhomicide offenders - namely, life without parole, “ ‘ “the second most severe penalty permitted by law.” ' ” (Id. at p. 9, quoting Graham, supra, 560 U.S. at p. 69.) Our decision, she contends, ignores “the limited nature of the holding in Graham” and disregards the “ ‘clear line' ” that Graham drew in demarcating the type of sentence that violates the Eighth Amendment. (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 3, 10, 20, 21 & fn. 7, 23, quoting Graham, at 74).

         But what exactly is the “clear line” that Graham drew? Here is the passage where those words appear in Graham: “[P]enological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual. This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood, ' those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime.” (Graham, supra, 560 U.S. at pp. 74-75.)

         The Chief Justice reads the phrase “clear line” to distinguish between LWOP and other types of sentences. But in context, the phrase more sensibly refers to two other distinctions: (1) between homicide and nonhomicide offenses, and (2) between juvenile and adult offenders. The “line” that Graham made “clear” is that LWOP may not be imposed on juveniles who commit nonhomicide offenses, even if it may be imposed (rarely) on juveniles who commit homicide offenses or on adults who commit nonhomicide offenses. In drawing this line, the majority in Graham was rejecting Chief Justice Roberts's view that the Eighth Amendment does not support a “categorical rule that juveniles may never receive a sentence of life without parole for nonhomicide crimes” and instead “allow[s] courts... to consider the particular defendant and particular crime at issue.” (Graham, supra, 560 U.S. at pp. 89, 86 (conc. opn. of Roberts, C. J.); see id. at pp. 93-95 [arguing that some juvenile nonhomicide offenders may deserve an LWOP sentence].) Graham does not hold or suggest that only LWOP sentences, and no sentences other than LWOP, violate the Eighth Amendment when imposed on a juvenile nonhomicide offender.

         Indeed, our dissenting colleagues do not contend that the reasoning of Graham is limited to LWOP sentences, for we have already rejected that proposition in Caballero. The Attorney General argued in Caballero that “a cumulative sentence for distinct crimes does not present a cognizable Eighth Amendment claim.... In addition, the Court of Appeal reasoned that Graham applied a categorical rule specifically limited to juvenile nonhomicide offenders receiving an explicitly designated life without parole sentence....” (Caballero, supra, 55 Cal.4th at p. 267.) At the time we decided Caballero, several appellate courts had held that Graham applies only to LWOP sentences and not to any individual or aggregate term-of-years sentences. (See Bunch v. Smith (6th Cir. 2012) 685 F.3d 546, 552; Henry v. State (Fla.Ct.App. 2012) 82 So.3d 1084, 1089; State v. Kasic (Ariz.Ct.App. 2011) 265 P.3d 410, 415.) Notwithstanding these arguments and authorities, we unanimously held that Graham's reasoning applies to a “term-of-years sentence that amounts to the functional equivalent of a life without parole sentence.” (Caballero, supra, 55 Cal.4th at p. 268; see id. at pp. 271-273 (conc. opn. of Werdegar. J.).)

         As the Chief Justice acknowledges, the “line” that Graham actually drew between lawful and unlawful sentences for juvenile nonhomicide offenders is not between LWOP and other sentences, but between sentences that do and sentences that do not provide “ ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' ” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 10, quoting Graham, supra, 560 U.S. at p. 75.) Whatever “abstraction, ” “vagueness, ” or “subjectiv[ity]” (dis. opn. of Cantil-Sakauye, C. J., post, at p. 22) there may be in analyzing whether a particular sentence provides “some meaningful opportunity to obtain release” (Graham, at p. 75), we are obligated to apply the rule stated by the high court, and that is what our opinion today does.

         The Chief Justice would hold that a sentence provides a meaningful opportunity for release if it allows for parole eligibility within a defendant's life expectancy. (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 15.) This approach is problematic for reasons we have explained above. (Ante, at pp. 6-12.) The Chief Justice does not dispute that the life expectancy tables she relies on show significant disparities by race and gender. Her response is that apart from race, sex, and custodial status, “juvenile defendants belong to a nearly infinite number of cohorts” with varying life expectancies. (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 17.) She then says: “Given that a defendant could be placed within any of many peer groups for purposes of assessing his or her life expectancy, and given as well the need to use some conception of life expectancy as a benchmark, reliance on general population life expectancies makes good sense as providing an administrable rule of decision that is consistent with Graham.” (Id. at p. 17.) This is a non-sequitur. Why does reliance on general-population life expectancies make good sense when it is acknowledged that life expectancies vary by race, sex, custodial status, and other traits as well? Such an approach seems quite arbitrary.

         Even if general-population life expectancies were relevant to evaluating whether a particular sentence provides a meaningful opportunity for release, the Chief Justice does not answer the crucial question of how many years before the end of a defendant's life expectancy must parole eligibility be provided in order to satisfy Graham. The Chief Justice believes five years is sufficient. (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 15, 17 [parole eligibility at age 74 falls “well within” the general life expectancy of 79 years for 15- to 16-year-olds].) But why is five years sufficient? Why not require 10, 15, or 25 years? And if five years is sufficient, then what about four years? three? two? or one?

         Ultimately, any line-drawing must depend on a considered judgment as to whether the parole eligibility date of a lengthy sentence offers a juvenile offender a realistic hope of release and a genuine opportunity to reintegrate into society. Reasonable minds may disagree on such judgments, but it is specious to contend that an approach based on life expectancy would avoid “subjective and quite likely divergent assessments of what constitutes adequate reintegration into society, and the time necessary to accomplish this reentry.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 23.) In the end, the Chief Justice's conclusion that defendants' sentences are lawful rests on her view that “profound life experiences still may lie ahead of someone released from prison at age 66 or 74.” (Id. at p. 22.) Whatever the merits of this view, the analysis that underlies it is not more “objective, ” more “workable, ” or more conducive to drawing a “ ‘clear line' ” (id. at pp. 20, 23) than the analysis set forth in our opinion today. Indeed, the Chief Justice's approach calls for the very sort of line-drawing she purports to disavow: Under her approach as under ours, the controlling inquiry is not simply whether defendants' sentences provide for parole eligibility within their life expectancies, but whether the sentences “impinge on the same substantive concerns that make the imposition of LWOP on juvenile nonhomicide offenders impermissible under the Eighth Amendment.” (Ante, at p. 12.)

         III.

         After oral argument in this case, the Governor on October 11, 2017');">2017, signed into law Assembly Bill No. 1448 and Senate Bill No. 394. Assembly Bill 1448 codifies the Elderly Parole Program, under which prisoners age 60 or older who have served at least 25 years in prison are entitled to a parole hearing. (Assem. Bill No. 1448 (2017');">2017-2018 Reg. Sess.) § 3.) Senate Bill 394 extends eligibility for a youth offender parole hearing after 25 years of incarceration to a person who was convicted of certain controlling offenses committed before 18 years of age and sentenced to life without the possibility of parole. (Sen. Bill No. 394 (2017');">2017-2018 Reg. Sess.) § 1.) In addition, upon the passage of Proposition 57 in the November 2016 elections, the California Department of Corrections and Rehabilitation (CDCR) issued new regulations governing the ability of inmates to earn custody credit to advance their parole dates. We vacated submission of this case and ordered supplemental briefing from the parties on what bearing, if any, Assembly Bill 1448, Senate Bill 394, or the regulations codified at sections 3043, 3043.2, 3043.3, 3043.4, 3043.5, and 3043.6 of title 15 of the California Code of Regulations have on the question presented.

         The Chief Justice contends that regardless of whether defendants' original sentences are valid, the recent legislation authorizing elderly parole means “both defendants will have an opportunity for parole at age 60, ” and “[a] sentence offering an opportunity for parole no later than age 60 is not invalid under Graham.” (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 24-25.) Further, she asserts, “even without the Elderly Parole Program, Rodriguez may be eligible for parole when he is 57 years old, simply by earning good-conduct credits” (id. at pp. 24-25), and “Contreras could advance his initial parole date to age 64 through good conduct” (id. at p. 36). As explained below, we decline to resolve whether the newly enacted legislation and regulations affect the validity of defendants' sentences and instead leave these novel issues for the lower courts to address in the first instance.

         A.

         The elderly parole statute provides that when considering the release of an eligible inmate, the Board of Parole Hearings (Board) “shall give special consideration to whether age, time served, and diminished physical condition, if any, have reduced the elderly inmate's risk for future violence.” (§ 3055, subd. (c).) A key question is whether an elderly parole hearing offers a juvenile offender a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75, italics added.)

         The legislative history of Assembly Bill 1448 indicates that the legislation's main purpose was to curb rising medical costs of the geriatric inmate population and to provide a “compassionate” release for those elderly individuals. (Assem. Concurrence in Sen. Amends. to Assem. Bill No. 1448 (2017');">2017-2018 Reg. Sess.) Sept. 11, 2017');">2017.) In contrast to the statute authorizing youth offender parole hearings, the text of the elderly parole statute does not mention youth-related considerations or rehabilitation. (Compare § 3051, subd. (f)(1) with § 3055.)

         The Attorney General contends that elderly parole hearings are governed by section 4801, subdivision (c) and are thus required to consider youth-related factors associated with the controlling offense. Section 4801, subdivision (c) says: “When a prisoner committed his or her controlling offense, as defined in subdivision (a) of Section 3051, when he or she was 25 years of age or younger, the board, in reviewing a prisoner's suitability for parole pursuant to Section 3041.5, shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” Noting that the provisions for parole hearings set forth in section 3041.5 apply to “all hearings for the purpose of reviewing an inmate's parole suitability” (§ 3041.5, subd. (a)), the Attorney General argues that “they necessarily therefore apply to parole consideration under the Elderly Parole Program.”

         But it is questionable whether the Board is reviewing an inmate's suitability for parole “pursuant to Section 3041.5” (§ 4801, subd. (c)) when it conducts an elderly parole hearing. The elderly parole statute contains a provision that makes applicable section 3041.5, subdivision (b)(3)'s schedule for a subsequent parole hearing in the event of a parole denial (§ 3055, subd. (f)) and another provision stating that “when considering a request for an advance hearing pursuant to subdivision (d) of Section 3041.5, the board shall consider whether the inmate meets or will meet the criteria [for the Elderly Parole Program]” (§ 3055, subd. (d)). These provisions, which appear to treat section 3041.5's parole procedures as separate and distinct from those in section 3055, suggest that an elderly parole hearing is conducted pursuant to section 3055, not pursuant to section 3041.5.

         The Chief Justice does not endorse the Attorney General's interpretation of the statute and instead asserts that “the decision whether to grant elderly parole is concerned with the same question of public safety that governs conventional parole hearings.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 25.) At conventional parole hearings, “ ‘[a]ll relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's: social history; past and present mental state;... past and present attitude toward the crime;... and any other information which bears on the prisoner's suitability for release.' (Cal. Code Regs., tit. 15, § 2281, subd. (b).)” (Id. at p. 26, fn. omitted.) She contends that “[a]lthough in an elderly parole hearing ‘special consideration' is given to the three factors specified in section 3055, subdivision (c), there is no suggestion that these ‘special' considerations somehow skew the basic question before the panel.” (Id. at p. 27.)

         But the Chief Justice's interpretation is not the only plausible reading of the elderly parole statute, and we decline to issue a definitive interpretation less than five months after the statute's enactment, before any Court of Appeal has filed a published opinion applying it in the context of juvenile sentencing, and before CDCR has adopted any implementing regulations. We are not certain, for example, that the statute would preclude CDCR from adopting regulations that focus the Elderly Parole Program on identifying those inmates who no longer pose a risk of future violence primarily because of their age, illness, or other physical incapacitation, while leaving all other inmates age 60 or older who may be suitable for parole to the ordinary parole process. Such an interpretation does not appear foreclosed by the statutory text, and it seems consistent with the Legislature's purpose of reducing costs of geriatric care and providing compassionate release for elderly inmates. Yet it is questionable whether such a parole hearing would provide juvenile offenders with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75, italics added.) The record before us contains no information on how the Elderly Parole Program actually operates or what considerations, apart from the “special considerations” set forth in the statute (§ 3055, subd. (c)), guide the Board's determination of suitability for elderly parole. This information may be developed on remand.

         The Chief Justice says such development is unnecessary, noting that we required no similar information before finding the availability of a youth offender parole hearing sufficient to moot the Eighth Amendment claim in Franklin. (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 30-31, citing Franklin, supra, 63 Cal.4th at pp. 284-286.) But Franklin addressed legislation whose explicit and specific purpose is “to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in [Caballero] and the decisions of the United States Supreme Court in Graham... and Miller.... It is the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established.” (Sen. Bill No. 260 (2013-2014 Reg. Sess.) § 1.) As noted, the statute expressly mandates consideration of youth-related factors in youth offender parole hearings. (§§ 3051, subd. (e), 4801, subd. (c).) For this reason, and because the statutes contemplate that “juvenile offenders [must] have an adequate opportunity to make a record of factors, including youth-related factors, relevant to the eventual parole determination, ” we were assured “at this point” that a juvenile offender eligible for such a hearing has a meaningful opportunity for release within the meaning of Graham. (Franklin, at p. 286.) Neither the text nor history of the elderly parole statute contains any indication that the Legislature intended elderly parole hearings to be responsive to the Eighth Amendment concerns raised by lengthy juvenile sentences.

         Even assuming that elderly parole hearings consider normal parole factors, it is not clear that elderly parole eligibility after 44 years in prison would provide the 16-year-old nonhomicide offenders in this case with the “hope of restoration” and realistic opportunity to reintegrate into society that Graham requires. (Graham, supra, 560 U.S. at p. 70.) The Chief Justice notes that Bear Cloud v. State, supra, 334 P.3d 132 invalidated a 45-year sentence for a 16-year-old nonhomicide offender, but that three other state high courts have held that parole eligibility at or around age 60 passes constitutional muster. (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 33-34.) Among them, only Angel v. Commonwealth (Va. 2011) 704 S.E.2d 386 (Angel) concluded that a geriatric release program for inmates who are 60 or older satisfies Graham. The Virginia Supreme Court's holding was premised on its understanding that “the factors used in the normal parole consideration process apply to conditional release decisions under [Virginia's geriatric release] statute.” (Angel at p. 402.)

         Notably, in Virginia v. LeBlanc (2017');">2017) 582 U.S. __ [137 S.Ct. 1726] (LeBlanc), the high court considered on habeas review whether Virginia's geriatric release program provides a meaningful opportunity for a juvenile nonhomicide offender to obtain release based on demonstrated maturity and rehabilitation. The trial court in LeBlanc, relying on Angel, rejected the defendant's Eighth Amendment challenge, and the high court held that the trial court's ruling was not objectively unreasonable. (LeBlanc, at p. __ [137 S.Ct. at p. 1729.) In so doing, the high court emphasized that it was applying the deferential standard of review required by the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (28 U.S.C. § 2254(d)(1)) and that “ ‘[t]here are reasonable arguments on both sides.' ” (LeBlanc, at p. __ [137 S.Ct. at p. 1729].) On one hand, because Virginia's geriatric release program considers “normal parole factors, ” it “could allow the Parole Board to order a former juvenile offender's conditional release in light of his or her ‘demonstrated maturity and rehabilitation.' ” (Ibid.) On the other hand, there were concerns “that the Parole Board's substantial discretion to deny geriatric release deprives juvenile nonhomicide offenders a meaningful opportunity to seek parole and that juveniles cannot seek geriatric release until they have spent at least four decades in prison.” (Ibid.) The high court thus recognized there is a reasonable argument that even an elderly parole process that considers normal parole factors could, in practice, fail to provide a meaningful opportunity for release and that incarcerating a juvenile nonhomicide offender for 40 years or more without parole eligibility is simply too long under Graham.

         Defendants here raise an additional concern: Juvenile offenders for whom the Elderly Parole Program provides the first opportunity for release will invariably spend more time in prison before parole eligibility compared to adult inmates who committed the same crime and served at least 25 years before age 60 - a result at odds with the high court's “conclusion in Roper v. Simmons, 543 U.S. 551 (2005), that juvenile offenders are generally less culpable than adults who commit the same crimes.” (Graham, supra, 560 U.S. at p. 86 (conc. opn. of Roberts, C. J.); see Roper, supra, 543 U.S. at p. 570.) In Graham, the high court reasoned that “[l]ife without parole is an especially harsh punishment for a juvenile” because “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.” (Graham, at p. 70.) Defendants contend the same reasoning applies to a sentence of more than 40 years without parole eligibility. (Id. at p. 71 [“This reality cannot be ignored.”].)

         These issues are novel and substantial, and we leave them for the lower courts to address in the first instance. Like the high court in LeBlanc, we decline to resolve in this case whether the availability of an elderly parole hearing at age 60 for a juvenile nonhomicide offender satisfies the Eighth Amendment concerns set forth in Graham.

         B.

         Apart from defendants' eligibility for elderly parole, the Chief Justice claims that “simply by maximizing the good-conduct credits that are available” to them under Proposition 57, Rodriguez can advance his initial parole date to age 57 and Contreras can advance his initial parole date to age 64. (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 36.) But as with elderly parole, no Court of Appeal has filed a published opinion addressing the relevance of Good Conduct Credit to the constitutionality of a juvenile sentence, and the regulations, promulgated less than one year ago, remain in ...


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