Opinion
B263022
08-02-2018
Christopher Hawthorne and Joseph R. Magazenni for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Shawn McGahey Webb and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA047579) APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Reversed and remanded. Christopher Hawthorne and Joseph R. Magazenni for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Shawn McGahey Webb and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Before us is the most recent of six appeals that have come our way following defendant's convictions for a series of brutal crimes he committed in 2000, when he was 14 years old. After a lengthy appellate process, we affirmed defendant's sentence of 43 years to life, with parole eligibility at age 55. (People v. Bell (2016) 3 Cal.App.5th 865, review granted January 11, 2017 (Bell V).) The matter is before us again on remand from the California Supreme Court, to reconsider certain sentencing issues.
Initially, the jury found defendant guilty of three counts of robbery, three counts of rape, two counts of oral copulation, one count of kidnapping to commit rape or robbery, and one count of assault with a firearm. The jury also found defendant had committed the crimes during a residential burglary for purposes of the One Strike law (Pen Code, § 667.61, subd. (e)(2), (3)) and that a principal was armed with a firearm during the commission of these crimes. Defendant's initial sentence consisted of a determinate term of 28 years eight months, along with an indeterminate term of 25 years to life for the One Strike sentence.
In 2003, we affirmed in part and reversed in part defendant's convictions. There followed multiple proceedings in the trial court, and appeals and petitions to our court, our Supreme Court and the United States Supreme Court. These subsequent proceedings generally raised issues relating to the constitutional limitations on lengthy juvenile sentences (see, e.g. Graham v. Florida (2010) 560 U.S. 48 (Graham)) and the jury's failure to make factual findings under Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
We discuss the procedural history in slightly more detail below. The case comes to us at this moment after our Supreme Court granted a petition for review and then transferred the matter to us for reconsideration in light of its decision in People v. Contreras (2018) 4 Cal.5th 349 (Contreras). Contreras established the criteria that a trial court must employ so that a sentence imposed on a nonhomicide juvenile offender does not constitute the functional equivalent of a life sentence without the possibility of parole as prohibited under Graham, supra, 560 U.S. 48, and People v. Caballero (2012) 55 Cal.4th 262.
Following the Supreme Court's order returning the case to us for consideration under Contreras, the parties filed supplemental briefs. (Cal. Rules of Court, rule 8.200(b)(1).) Appellant and the Attorney General agree that we should reverse defendant's sentence and remand the matter to the trial court to apply the Contreras factors in the first instance. We agree as well.
FACTUAL AND PROCEDURAL BACKGROUND
Some nine days before his fifteenth birthday, defendant, with an accomplice, visited the home of a former friend. Upon being admitted, defendant and his accomplice robbed defendant's friend of several video game systems at gunpoint. They were forced to return the items when the victim's mother returned. Shortly thereafter, defendant and his friend went to the home of a former neighbor. The neighbor denied them entry, but they barged in anyway, at gunpoint. Aiming the gun at the woman and her eight-year-old child, defendant and his companion robbed their victim of money, her television, her jewelry, and her car keys; repeatedly raped her; repeatedly forced her to orally copulate them; bound her with a telephone cord; and tried to take her away with them in her car, when she finally managed to escape. (Bell V, supra, 3 Cal.App.5th at pp. 868-870.)
Defendant was convicted of multiple violent crimes. Enhancement allegations under One Strike and that a principal was armed with a firearm were found true. He was given a determinate term of 28 years eight months, with a consecutive indeterminate term of 25 years to life for the One Strike sentence.
A series of five appeals followed, which we describe in greater detail in our opinion in Bell V, supra, 3 Cal.App.5th at pages 871-872: Briefly, in 2003, we reduced the kidnapping count to attempted kidnapping and struck the principal armed enhancement from the assault count. (People v. Bell (July 31, 2003, B158891 [nonpub. opn.] (Bell I).) Defendant was resentenced to 54 years to life and he appealed a second time. In 2005, we reversed for Blakely error, because the trial court, not the jury, had determined the facts that supported a finding concerning aggravating factors that led to imposition of the upper term as to one of the robbery counts. (People v. Bell (Feb. 10, 2005, B171066 [nonpub. opn.] (Bell II).) The California Supreme Court granted review and transferred the matter back to us in light of People v. Black (2005) 35 Cal.4th 1238, which had upheld California's sentencing scheme against a Blakely challenge. In 2006, we affirmed the judgment. (People v. Bell (Jan. 30, 2006, B171066 [nonpub. opn.] (Bell III).) Two years later, in Cunningham v. California (2007) 549 U.S. 270, the U.S. Supreme Court overruled Black, which eventually brought the matter back to us for reconsideration. In 2008, we concluded the Blakely error in the case was harmless and therefore affirmed. (People v. Bell (Feb. 27, 2008, B171066 [nonpub. opn.] (Bell IV).) This resolved the Blakely issue.
However, after the United States Supreme Court decided Graham v. Florida, supra, defendant filed a habeas petition in the trial court contending that his sentence of 54 years to life constituted cruel and unusual punishment as it was, in effect, a de facto sentence of life without the possibility of parole. The trial court resentenced him to a combined term of 43 years to life, comprised of 25 years to life on one of the rape counts and a determinate term of 18 years on the remaining counts. The court ordered that defendant would become eligible for parole in December 2040, when he would be 55. (Bell V, supra, 3 Cal.App.5th at p. 872.) Defendant again appealed, arguing that his sentence was cruel and unusual. We rejected defendant's contentions and affirmed in Bell V. (Id. at p. 868.)
The Supreme Court again granted review. On February 26, 2018, it issued its opinion in Contreras, supra, 4 Cal.5th 349, addressing the issues a trial court must consider in sentencing a juvenile nonhomicide offender, within the bounds of the Eighth Amendment. On June 13, 2018, the Supreme Court transferred the case back to us with directions to vacate our decision and reconsider the case in light of Contreras. The parties submitted additional briefing, with both sides agreeing that the matter should be remanded for resentencing under Contreras.
DISCUSSION
Defendant's crimes were brutal and violent; the applicable statutes call for a lengthy prison term. However, defendant was a juvenile when he committed the offenses, and developing authority has held that the Eighth Amendment imposes limits on the length of time juvenile defendants may serve for nonhomicide offenses. Specifically, they may not be sentenced to life without parole. (Graham, supra, 560 U.S. at pp. 67-70.) Nor may they be sentenced to the functional equivalent of life without parole by a sentence well in excess of their natural life expectancy. (People v. Caballero, supra, 55 Cal.4th at pp. 268-269.) At issue in Contreras was whether a lengthy sentence not in excess of the defendant's natural life expectancy would also violate the Eighth Amendment.
The court rejected an "actuarial" approach which would uphold, as constitutional, every sentence which offered an opportunity for parole within the juvenile defendant's expected natural lifetime. (Contreras, supra, 4 Cal.5th at pp. 360-361.) Instead, the court concluded that a lawful sentence "must recognize 'a juvenile nonhomicide offender's capacity for change and limited moral culpability.' [Citation.] A lawful sentence must offer 'hope of restoration' [citation], 'a chance to demonstrate maturity and reform' [citation], a 'chance for fulfillment outside prison walls,' and a 'chance for reconciliation with society' [citation]. A lawful sentence must offer 'the opportunity to achieve maturity of judgment and self-recognition of human worth and potential.' [Citation.] A lawful sentence must offer the juvenile offender an 'incentive to become a responsible individual.' [Citation.]" (Id. at p. 367.) Such a sentence, by definition, must offer a possibility of release with more than "de minimis quantum of time outside of prison." (Id. at p. 368.)
The Contreras court emphasized that it was concerned only with the possibility of parole, not actual release. It held that Graham does not " '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.' [Citation.] But Graham 'does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.' [Citation.] 'What the State must do . . . is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' [Citation.]" (Contreras, supra, 4 Cal.5th at p. 367.) As part of its judgment, the sentencing court should consider "any mitigating circumstances of defendants' crimes and lives, and the impact of any new legislation and regulations on appropriate sentencing." (Id., at p. 383.)
The latter reference was apparently to statutes such as Penal Code section 3055 that provides early parole dates for some elderly prisoners, and regulations adopted pursuant to Proposition 57, regarding custody credits. --------
The Supreme Court did not state at what age parole eligibility necessarily satisfies these requirements. In Contreras, the defendants had been sentenced to 50 years to life and 58 years to life, respectively, with parole eligibility at ages 66 and 74. (Contreras, supra, 4 Cal.5th at pp. 356, 360.) Over two strongly worded dissents, the court found those sentences unconstitutional. (Id. at p. 356.)
The Supreme Court declined to provide a bright-line rule of the age at which parole eligibility is constitutional as a matter of law, and further rejected any attempts to tie such a bright-line to actuarial life expectancy. Nevertheless, we do not read Contreras as stating a rule that general principles of life expectancy may not play any part in a trial court's attempt to impose a harsh sentence within constitutional boundaries. Ignoring life expectancy altogether would run the risk that the trial court could inadvertently set a de facto life without parole sentence.
Defendant here was sentenced to 43 years to life, with a parole eligibility date at age 55. The Contreras court does not explicitly suggest whether that sentence is or is not constitutional under its new criteria. We remand for the trial court to reconsider the sentence, in the first instance, in accordance with the Contreras parameters. We realize the trial court has already undertaken much of the Contreras analysis in its earlier sentencing decisions which considered the principles enunciated in Graham. Much like the dissenting justices in Contreras observed, we, too, realize that we are not providing much guidance to the trial court here. (Contreras, supra, 4 Cal.5th at p. 383 (dis. opn. of Cantil-Sakauye, C.J.]); id. at p. 411 (dis. opn. of Kriegler, J.).) Nevertheless Contreras's approach to the constitutional limits of a sentence for a nonhomicide juvenile offender does not mirror Graham, and it is, thus, to Contreras that the trial court must look.
DISPOSITION
The judgment is reversed and the matter remanded for resentencing only. The trial court is directed to consider, in light of the Contreras opinion, any mitigating circumstances of defendant's crime and life, and the impact of any new legislation and regulations on appropriate sentencing. The court is further / / / / / / directed to impose a time by which defendant must be allowed to seek parole.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.