A sentence of life without possibility of parole (LWOP) for minor convicted of special circumstances murder does not require a jury determination of the minor’s age at the time of the offense. Appellant was convicted of first degree murder with special circumstances; a gun use allegation was found not true. The prosecution had elected to direct file the case in adult court pursuant to Welfare and Institutions Code section 707, subdivision (d)(2)(A). Appellant was sentenced to LWOP. On appeal he claimed that his “adult sentence” violated his Sixth Amendment right to a jury determination that he was at least 14 years old at the time of the offense, citing Apprendi v. New Jersey (2000) 530 U.S. 466. Had he been treated as a juvenile, the statutory maximum for the offense would be his commitment until the age of 25 years. The minor claimed there was no factual determination regarding his age, which was required to make him eligible to receive the greater punishment as an adult. However, age was not an element of any of the offenses charged, it “merely determined which branch of the superior court [would] decide his guilt or innocence.” Thus, the maximum penalty “for Apprendi purposes was determined when the jury returned its guilty verdict” of first degree murder with special circumstances. Even if the jury was required to make such a finding, the failure to do so was harmless in light of the record and defense admissions regarding age in a section 995 motion.

The LWOP sentence was not cruel and unusual punishment. The case of Graham v. Florida (2011) __ U.S. __ does not support appellant’s contention his LWOP sentence violates the Eighth Amendment because he was convicted of first degree murder with special circumstances. Appellant’s claim he was convicted only of aiding and abetting the murder, and therefore the rationale of Graham applies, is incorrect. The verdict does not necessarily reflect the jury found appellant aided and abetted the homicide. Even if it did so, this would not bar a LWOP sentence, as minors convicted of murder are not akin to minors convicted of non-homicide offenses (as in Graham). Further, the sentence is not disproportionate, as special circumstance murder is the most serious offense under California law. Finally, the minor’s background does not mitigate his individual culpability.