Opinion
No. C067260.
12-11-2014
THE PEOPLE, Plaintiff and Respondent, v. JOSE ARTURO HERNANDEZ, Defendant and Appellant.
John Hardesty , under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Michael P. Farrell , Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill , Deputy Attorneys General, for Plaintiff and Respondent.
[CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part I of the Discussion.
OPINION
ROBIE, J.
Defendant Jose Arturo Hernandez was convicted of two counts of attempted murder and five other charges and sentenced to 61 years to life in prison for crimes he committed when he was 16 years old. On appeal, he contends his trial attorney was ineffective because (1) his attorney did not move to suppress his confession and (2) his attorney did not object to his sentence as violating the constitutional proscription against cruel and unusual punishment.
Defendant was born in October 1993; the crimes of which he was convicted occurred in December 2009.
(1) We find no ineffective assistance in counsel's failure to move to suppress the confession because such a motion would have had no merit. We do conclude, however, that under recent decisions from the United States and California Supreme Courts, defendant's sentence is unconstitutional. Accordingly, we reverse and remand for resentencing consistent with those decisions.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's arguments on appeal do not require a detailed recitation of the evidence or of the trial. Suffice it to say that on December 16, 2009, defendant participated in three different gang-related shootings. A week later, defendant was arrested and interrogated by Tracy Police Detective Matthew Sierra. During the interrogation, defendant admitted being involved in the shootings.
A jury found defendant guilty of two counts of attempted murder, one count of being an accessory to a felony, three counts of assault with a firearm, and one count of shooting at an inhabited dwelling. The jury also found true a number of firearm and gang enhancement allegations.
The trial court sentenced defendant to an indeterminate term of 55 years to life in prison — 15 years to life for shooting at an inhabited dwelling, 25 years to life for one of the attempted murders, and 15 years to life for the other attempted murder — and to a consecutive determinate term of six years in prison — three years four months for one of the assaults and two years eight months for one of the other assaults — for an aggregate term of 61 years to life. The court granted defendant 451 days of presentence credits. Defendant timely appealed.
The court ordered the sentences for being an accessory to a felony and for the third assault to run concurrently to defendant's other sentences.
DISCUSSION
I
Defendant's Trial Attorney Was Not Ineffective in Failing to Move to Suppress Defendant's Confession
See footnote, ante, page 278.
II
Defendant's Sentence Constitutes Cruel and Unusual Punishment
The issues discussed below are presently under review by our Supreme Court in In re Alatriste, review granted February 19, 2014, S214652 and In re Bonilla, review granted February 19, 2014, S214960.
In his opening brief, defendant contended his sentence constitutes cruel and unusual punishment under the Eighth Amendment and his trial attorney was ineffective for failing to object to the sentence on that ground. Following the initial briefing in the case, both the United States Supreme Court and the California Supreme Court released opinions addressing the constitutionality of lengthy prison terms imposed on defendants for crimes committed as minors. (Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller); People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero).) The parties filed supplemental briefs addressing those decisions, and in December 2012 the People conceded that "remand would be appropriate to resentence [defendant] so as to permit a meaningful opportunity for release from prison within his expected lifetime."
Although defendant frames the issue in terms of his trial attorney's ineffective assistance of counsel, we elect to reach the issue as a new development in the law since defendant's sentencing.
The People conceded that defendant's "minimum parole eligibility date would fall approximately 65 years and 10 months after sentencing, in approximately November 2076, just after [defendant] turns 83 years old." The People further asserted that defendant's expected lifespan was approximately 80 years. Based on this, the People conceded that defendant's sentence was the functional equivalent of a life sentence without parole.
We note that the People's concession is based on an erroneous calculation of the length of defendant's sentence. According to the People, defendant was sentenced to "an aggregate indeterminate term of 62 years to life plus an aggregate determinate term of six years" — for a total of 68 years to life. As we have shown, however, defendant was actually sentenced to an aggregate terms of 61 years to life, including both the determinate and indeterminate terms imposed by the court.
On our own motion, we take judicial notice of the National Vital Statistics Reports, United States Life Tables, 2008, which shows that defendant's life expectancy at the time he was sentenced, when he was 17 years old, was somewhere in the vicinity of 77 years (using the table for males) to 79 years (using the table for Hispanic males). (See Evid. Code, §§ 452, subd. (h), 459, subd. (a); Behr v. Redmond (2011) , 534, fn. 7 [].) Taking into account the amount of presentence credits defendant was awarded — one year three months — and the length of his minimum term — 61 years — it appears that at the time of his sentencing, it could have been reasonably expected that defendant would be 77 years old before he was eligible for parole. On this evidence, and given the People's concession (even though it was based on a calculation error), we conclude that defendant's sentence did not give him a meaningful opportunity for release from prison within his expected lifetime, and thus his sentence is subject to the decisions we discuss herein.
Following the passage of Senate Bill No. 260 (2013-2014 Reg. Sess.) Statutes 2013, chapter 312 (Senate Bill No. 260), we requested supplemental briefing on whether that legislation rendered defendant's challenge to his sentence moot. The People contend it did; defendant disagrees. We agree with defendant and conclude that his sentence must be reversed and the case remanded for reconsideration in light of our Supreme Court's guidance in Caballero even after the passage of Senate Bill No. 260. A
Life Sentences for Nonhomicide Crimes Committed by Minors
(2) In Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham), the United States Supreme Court announced that the "... Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." (Id. at p. 82 .) Two years later, in Miller, the Supreme Court declared, "`[j]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered' in assessing his [or her] culpability." (Miller, supra, 567 U.S. at p. ___ , quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 116 [71 L.Ed.2d at p. 12, 102 S.Ct. 869].) The Miller court recognized it "imposed a categorical ban on the sentence's use, in a way unprecedented for a term of imprisonment. See [Graham, supra, 560 U.S. at p. ___] ... ... (Thomas, J., dissenting) (`For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone')." (Miller, at p. ___ .)
(3) Following Graham and Miller, the California Supreme Court held a 110-year-to-life sentence imposed for three counts of attempted murder committed as a minor constituted cruel and unusual punishment. (Caballero, supra, 55 Cal.4th at p. 265.) As the Caballero court explained, "the Eighth Amendment requires the state to afford the juvenile offender a `meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,' and that `[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.' (Graham, supra, 560 U.S. at p. [73] [130 S.Ct. at pp. 2029-2030].) The court observed that a life without parole sentence is particularly harsh for a juvenile offender who `will on average serve more years and a greater percentage of his [or her] life in prison than an adult offender.' (Id. at p. [70] .) Graham likened a life without parole sentence for nonhomicide offenders to the death penalty itself, given their youth and the prospect that, as the years progress, juveniles can reform their deficiencies and become contributing members of society. (Ibid.)" (Caballero, supra, 55 Cal.4th at p. 266.)
In Caballero, the Attorney General argued the 110-year-to-life prison sentence for a minor did not violate the Eighth Amendment even though it was the "functional equivalent to a life without parole term" on grounds no individual component of the defendant's sentence by itself amounted to a life sentence. (Caballero, supra, 55 Cal.4th at p. 271 (conc. opn. of Werdegar, J.).) Justice Werdegar rejected the contention because "the purported distinction between a single sentence of life without parole and one of component parts adding up to 110 years to life is unpersuasive." (Id. at pp. 271-272 (conc. opn. of Werdegar, J.).) Thus, the Caballero court reversed the sentence and instructed that "the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison `based on demonstrated maturity and rehabilitation.'" (Caballero, supra, 55 Cal.4th at pp. 268-269, quoting Graham, supra, 560 U.S. at p. 74 .)
B
Senate Bill No. 260 Does Not Cure the Constitutional Error in Sentencing
The Legislature responded to Miller and Caballero by passing Senate Bill No. 260, which became effective on January 1, 2014. The Legislature noted the bill "recognizes that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society." (Sen. Bill No. 260 (2013-2014 Reg. Sess.) § 1.) The Legislature declared, "[t]he purpose of this act 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.)
(4) To effectuate the Legislature's intent, Senate Bill No. 260 added section 3051 to the Penal Code, which requires the Board of Parole Hearings to conduct youth offender parole hearings during the 15th, 20th, or 25th year of incarceration. (Pen. Code, § 3051, subd. (b).) A youthful offender whose sentence is a term of 25 years to life or greater is "eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (Pen. Code, § 3051, subd. (b)(3); Sen. Bill No. 260 (2013-2014 Reg. Sess.) § 4.) In conducting youth offender parole hearings under Penal Code section 3051, the Board of Parole Hearings is required to "give great weight to the diminished culpability of juveniles 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." (Pen. Code, § 4801, subd. (c).) If the youthful offender is found suitable for parole by the Board of Parole Hearings, he or she must be released even if the full determinate term originally imposed has not yet been completed. (Pen. Code, § 3046, subd. (c).)
In light of defendant's newly enacted entitlement to a youth offender parole hearing during his 25th year of incarceration, the Attorney General contends defendant's sentence "is constitutional because he now has a realistic opportunity to obtain release from prison during his lifetime." We conclude remand for resentencing is compelled by the Eighth Amendment.
(5) In Caballero, the California Supreme Court concluded: "Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future. Under Graham's nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board." (Caballero, supra, 55 Cal.4th at pp. 268-269, italics added.)
(6) Even though Senate Bill No. 260 provides what may be considered a "safety net" providing a juvenile offender the opportunity for a parole hearing during his or her lifetime, the new legislation does not substitute for the sentencing court's consideration of all individual characteristics of the offender. In Miller, the United States Supreme Court held imposition of punishment for crimes committed as a juvenile constitutes a task "demanding individualized sentencing...." (Miller, supra, 567 U.S. at p. ___ .) After noting its earlier decisions requiring consideration of the mitigating and aggravating factors unique to each case of sentencing for crimes committed as a minor, the Miller court emphasized that, "[o]f special pertinence here, we insisted in these rulings that a sentencer have the ability to consider the `mitigating qualities of youth.'" (Id. at p. ___ italics added, quoting Johnson v. Texas (1993) 509 U.S. 350, 367 [125 L.Ed.2d 290, 306, 113 S.Ct. 2658].) Consequently, Senate Bill No. 260 does not render defendant's claim moot.
(7) The possibility that defendant will have a board of parole undertake an evaluation 25 years after his sentencing is not a substitute for the trial court's evaluation at sentencing. Although the trial court is not required to articulate the analysis of Miller, Graham, and Caballero as it relates to every youthful offender, each youthful offender is entitled to a sentence that passes muster under the Eighth Amendment. Moreover, a properly imposed sentence by itself can prove instructive in indicating the trial court's conclusions about the youthful offender's level of development, culpability, and other relevant factors. When youthful offenders must ultimately show achievement of sufficient growth and maturity to secure release on parole, they will need to refer back to the circumstances that existed at the commission of the crimes and were apparent to the trial court at sentencing. (Caballero, supra, 55 Cal.4th at pp. 268-269.) Without a proper evaluation by the trial court, youthful offenders will be deprived of their constitutionally guaranteed evaluation at the time of their sentencing and again when attempting to meet their burden during the much later youth parole hearings. (Ibid.) Consequently, we adhere to the guidance of the United States and California Supreme Courts that the sentencing court must engage in the proper evaluation of the appropriate punishment for a youthful offender. (Miller, supra, 567 U.S. at p. ___ ; Caballero, supra, 55 Cal.4th at pp. 268-269.)
The question of whether remand for resentencing must be ordered in this case is additionally informed by the California Supreme Court's recent examination of constitutionally deficient sentencing for youthful offenders in People v. Gutierrez (2014) 58 Cal.4th 1354 [171 Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez). Gutierrez involved consolidated cases in which two defendants, Gutierrez and Moffett, each separately committed special circumstance murder while 17 years old. (Id. at pp. 1360-1361.) The trial court imposed life without the possibility of parole (LWOP) sentences on each defendant under Penal Code section 190.5, subdivision (b), which had been construed to create a presumption in favor of LWOP sentences for special circumstance murders committed by 16- and 17-year-old offenders. (Gutierrez, at p. 1360.) In Gutierrez, the California Supreme Court harmonized Penal Code section 190.5, subdivision (b), with Eighth Amendment protections by holding trial courts have discretion to sentence a youthful offender to serve 25 years to life or LWOP with no presumption in favor of the LWOP option. (Gutierrez, at pp. 1371-1379.) (8) Because the defendants in Gutierrez had been sentenced under the prior, prevailing presumption in favor of LWOP, the Supreme Court held that resentencing was required. (Gutierrez, supra, 58 Cal.4th at pp. 1361, 1379.) In so holding, the Gutierrez court rejected the People's argument that the recent enactment of Penal Code section 1170, subdivision (d)(2), "removes life without parole sentences for juvenile offenders from the ambit of Miller's concerns because the statute provides a meaningful opportunity for such offenders to obtain release." (Gutierrez, at p. 1386.) Penal Code section 1170 allows a youthful offender to petition the court to recall the sentence after serving 15 years. (Gutierrez, at p. 1384; see id. at p. 1385 [noting also that the youthful offender, if not initially successful, may petition again after 20 and 24 years have been served].) The Gutierrez court explained that the United States Supreme Court in "Graham spoke of providing juvenile offenders with a `meaningful opportunity to obtain release' as a constitutionally required alternative to — not as an after-the-fact corrective for — `making the judgment at the outset that those offenders never will be fit to reenter society.' (Graham, at p. 75, italics added.) Likewise, Miller's `cf.' citation to the `meaningful opportunity' language in Graham occurred in the context of prohibiting `imposition of that harshest prison sentence' on juveniles under a mandatory scheme. (Miller, at p. ___ .) Neither Miller nor Graham indicated that an opportunity to recall a sentence of life without parole 15 to 24 years into the future would somehow make more reliable or justifiable the imposition of that sentence and its underlying judgment of the offender's incorrigibility `at the outset.' (Graham, at p. 75.) [¶] Indeed, the high court in Graham explained that a juvenile offender's subsequent failure to rehabilitate while serving a sentence of life without parole cannot retroactively justify imposition of the sentence in the first instance: `Even if the State's judgment that Graham was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgment was made at the outset.' (Graham, supra, 560 U.S. at p. 73, italics added.) By the same logic, it is doubtful that the potential to recall a life without parole sentence based on a future demonstration of rehabilitation can make such a sentence any more valid when it was imposed. If anything, a decision to recall the sentence pursuant to [Penal Code] section 1170(d)(2) is a recognition that the initial judgment of incorrigibility underlying the imposition of life without parole turned out to be erroneous. Consistent with Graham, Miller repeatedly made clear that the sentencing authority must address this risk of error by considering how children are different and how those differences counsel against a sentence of life without parole `before imposing a particular penalty.' (Miller, supra, 567 U.S. at p. ___ , italics added; see id. at pp. ___, ___ [132 S.Ct. at pp. 2469, 2475].)" (Gutierrez, supra, 58 Cal.4th at pp. 1386-1387.) In short, the California Supreme Court recognized a statutory promise of future correction of a presently unconstitutional sentence does not alleviate the need to remand for resentencing that comports with the Eighth Amendment.
Consequently, we reverse and remand "the case to the trial court with directions to resentence defendant to a term that does not violate his constitutional rights, that is, a sentence that, although undoubtedly lengthy, provides him with a `meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' (Graham, 560 U.S. at p. [75] .)" (Caballero, supra, 55 Cal.4th at p. 273 (conc. opn. of Werdegar, J.).)
DISPOSITION
The judgment is reversed and the case is remanded for resentencing consistent with Caballero.
Hoch, J., concurred.
NICHOLSON, Acting P. J., Dissenting.
I respectfully dissent.
The majority reverses for resentencing based on language 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). I do not believe that reversal is required even if, applying the after-acquired wisdom of Graham, Miller, and Caballero, the trial court erred by sentencing defendant to a term that is the functional equivalent of a sentence of life without parole. No reversal is required because, since the enactment of Senate Bill No. 260 (2013-2014 Reg. Sess.; Senate Bill No. 260) (Pen. Code, § 3051), defendant's sentence is no longer the functional equivalent of a sentence of life without parole. The later-legislated limit of 25 years to life for a juvenile nonhomicide offender eliminates the concerns of the high courts in Graham, Miller, and Caballero and renders our expenditure of further time and resources on the issue both unnecessary and imprudent.
To explain, I must put the issue in context.
The Eighth Amendment categorically bans imposition of a sentence of life without parole on a juvenile nonhomicide offender. (Graham, supra, 560 U.S. at p. 75.) The Eighth Amendment also categorically bans imposition of the functional equivalent of a sentence of life without parole on a juvenile nonhomicide offender. (Caballero, supra, 55 Cal.4th at p. 268.) That summarizes Graham and Caballero. Miller dealt with whether the Eighth Amendment allowed mandatory imposition of a term of life without parole on a juvenile murderer. (Miller, supra, 567 U.S. at pp. ___ [183 L.Ed.2d at pp. 414-415].) The court held that a life-without-parole term cannot be mandatory, but such a term is permissible if the term is discretionary and the court takes into account certain relevant circumstances. Miller summarized those circumstances as follows (which I call the Miller factors): "Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it." (Miller, supra, 567 U.S. at p. ___ .)
Miller did not hold that every court sentencing any juvenile must consider the Miller factors. It pertained only to the discretionary determination of whether a juvenile murderer should be sentenced to a term of life without parole. Therefore, quoting Miller in a case of a juvenile offender who did not commit homicide misapplies that Miller requirement. In fact, no amount of considering the Miller factors with respect to a juvenile who did not commit homicide can justify imposing a sentence of life without parole because the high court, in Graham, categorically banned such sentences for juveniles who committed crimes short of homicide.
Caballero applied Graham, according to the first and last paragraphs in the Caballero opinion. (Caballero, supra, 55 Cal.4th at pp. 266, 268-269.) Since the Eighth Amendment categorically bans a term of life without parole for a juvenile who did not commit homicide, reasoned the California high court, it also categorically bans the functional equivalent of a term of life without parole. (55 Cal.4th at p. 268.)
While it is true that Caballero includes statements about what a sentencing court must consider when imposing a sentence on a juvenile nonhomicide offender, those statements are dicta. (Caballero, supra, 55 Cal.4th at pp. 266, 268-269.) The holding of Caballero, the sole ratio decidendi, is that the Eighth Amendment categorically bans the functional equivalent of life without parole sentences for juvenile nonhomicide offenders. Again, no amount of considering the Miller factors can justify imposing a term of life without parole or its functional equivalent on a juvenile nonhomicide offender.
On the other hand, there is no authority that the Eighth Amendment bans a Legislature from prescribing a mandatory term of 25 years to life for a juvenile convicted of heinous crimes short of homicide. (People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] is an outlier confined to its own facts.) Such a sentence is not a term of life without parole or the functional equivalent of life without parole and, therefore, Graham, Miller, and Caballero are not implicated. So why cannot the Legislature impose such a term retrospectively and eliminate Eighth Amendment concerns? I believe it can and did.
With these thoughts in mind, I believe the majority misreads Graham, Miller, and Caballero.
The majority concludes that Senate Bill No. 260 does not eliminate the necessity of reversing and remanding for resentencing a functional equivalent of a life-without-parole sentence for a youthful nonhomicide offense. It determines that the trial court must resentence the youthful defendant. In making this determination, the majority uses statements in Miller and Caballero about how the sentencing court must consider factors pertaining to the defendant's age. This approach, however, ignores the actual holdings of Miller and Caballero. Miller related to discretionary sentencing of a juvenile murderer to a term of life without parole, and, as I have already said, the language now cited from Caballero is dicta. Also, the statements in Caballero concerning what the sentencing court must consider pertained to the law as it existed at the time Caballero was decided, with the possibility that a youthful nonhomicide offender might be subject to a sentence that is the functional equivalent of a term of life without parole.
But now the law has changed. With the passage of Senate Bill No. 260, as recounted in the majority opinion, no defendant who committed a nonhomicide offense as a juvenile is currently subject to the functional equivalent of a life-without-parole sentence because the possibility for parole exists after 25 years of incarceration, at the latest. Since there can be no dispute that a sentence of 25 years to life is not the functional equivalent of a life-without-parole sentence for a juvenile, there is no Eighth Amendment problem, at least as it relates to Graham, Miller, and Caballero.
The majority relies in part on People v. Gutierrez (2014) 58 Cal.4th 1354 [171 Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez), which is a case involving life without parole for special circumstance murder, a homicide offense. In Gutierrez, the California Supreme Court found that California's special circumstance law, Penal Code section 190.5, subdivision (b), does not violate the Eighth Amendment because it does not impose a mandatory sentence of life without parole, neither does it create a presumption of life without parole. However, because the sentencing court did not know that there was no presumption for a life-without-parole sentence, as opposed to a term of 25 years to life, the Supreme Court reversed and remanded for resentencing. (58 Cal.4th at pp. 1360-1361.)
The different, though also later-legislated, scheme considered in Gutierrez provides a youthful homicide offender the opportunity to petition for recall of the sentence after 15 years of incarceration and assigns to the youthful offender the burden of showing rehabilitation. (Pen. Code, § 1170, subd. (d)(2); Gutierrez, supra, 58 Cal.4th at p. 1384.) The court held that this sentence recall scheme did not alleviate the need to remand for resentencing. It said: "... Graham spoke of providing juvenile offenders with a `meaningful opportunity to obtain release' as a constitutionally required alternative to — not as an after-the-fact corrective for — `making the judgment at the outset that those offenders never will be fit to reenter society.' (Graham, at p. 75, italics added.) Likewise, Miller's `cf.' citation to the `meaningful opportunity' language in Graham occurred in the context of prohibiting `imposition of that harshest prison sentence' on juveniles under a mandatory scheme. (Miller, at p. ___ .) Neither Miller nor Graham indicated that an opportunity to recall a sentence of life without parole 15 to 24 years into the future would somehow make more reliable or justifiable the imposition of that sentence and its underlying judgment of the offender's incorrigibility `at the outset.' (Graham, at p. 75.)" (Gutierrez, supra, 58 Cal.4th at p. 1386.)
This text from Gutierrez superficially seems to support remand in a case of a youthful nonhomicide offender subject to the functional equivalent of a life-without-parole sentence, despite the enactment of Senate Bill No. 260. But a close look at the two recent statutes in question exposes the folly of equating them.
Penal Code section 1170, subdivision (d)(2), at issue in Gutierrez, gives a youthful homicide offender the opportunity to petition the sentencing court for recall of the sentence after 15 years. In other words, the statute does not have the effect of modifying the sentence. Instead, it provides an opportunity, later, to petition to be resentenced, which opportunity can be lost by failing to file a petition to recall the sentence.
Senate Bill No. 260, on the other hand, makes a youthful offender eligible for release on parole after the prescribed number of years, at most 25. (Pen. Code, § 3051, subd. (b).) The youthful offender need not file any petition because the youthful offender parole board is required to hold the parole hearing (Pen. Code, § 3051, subd. (d)), which makes the situation the functional equivalent of having been sentenced to 25 years to life originally (since we are talking about functional equivalents).
The majority does not acknowledge the considerable difference between the two schemes. Under the Penal Code section 1170, subdivision (d)(2) scheme, the life-without-parole sentence is unaltered if the youthful offender fails to file the petition or fails to establish rehabilitation. Under the Senate Bill No. 260 scheme, however, the youthful offender's sentence is effectively changed to a sentence of 25 (or less) years to life because the parole eligibility and hearing are automatic.
Therefore, neither Gutierrez nor reason support a remand for resentencing after enactment of Senate Bill No. 260 in the case of a youthful nonhomicide offender sentenced to the functional equivalent of life without parole. Defendant here is not currently subject to a sentence that is the functional equivalent of life without parole; therefore, his punishment is neither cruel nor unusual — that is, it does not violate the Eighth Amendment.
One final consideration bears mention. The majority remands for resentencing to a term that does not violate the Eighth Amendment. The majority, however, does not and cannot give the trial court authority to impose a sentence that is not authorized by statute. In any event, any term the trial court imposes on remand, even the term already imposed, will comply with the Eighth Amendment because, by law, defendant will have a meaningful opportunity to obtain release within his lifetime.
I would affirm.