15-year-old special circumstance murderer’s 50-year-to-life sentence is not cruel and unusual because he will receive a parole hearing after 25 years in custody. Gonzalez was 15 years old when he shot a rival gang member to death in 2003. For years he remained unidentified until a codefendant informed on him. He was convicted of first degree murder. The jury found true a gun use allegation and a gang special circumstance allegation. He received 25 years to life for the murder and a like term for the gun use. On appeal he claimed the 50-year term was the equivalent of a mandatory LWOP sentence and thus cruel and unusual punishment (citing Miller v. Alabama (2012) __ U.S. __). Held: Affirmed. Miller held that a mandatory LWOP sentence may not be imposed on a juvenile defendant even in a murder case because of the distinctive attributes of minors; a constitutionally adequate process must be used that considers a minor’s characteristics. In People v. Caballero (2012) 55 Cal.4th 262, the court held a de facto LWOP term in a nonhomicide case implicates the same constitutional considerations. The same analysis should apply to a de facto LWOP in a homicide case. However, appellant’s challenge under Miller fails because SB 260 effectively modified his sentence. New section 3051, subdivision (b)(3) provides for a parole hearing in the 25th year of incarceration for juvenile offenders like appellant. Thus his sentence does not implicate the Miller ban on LWOP terms for juveniles or Caballero’s holding regarding de facto LWOPs. [Editor’s Note: This decision disagrees with the contrary holding in People v. Heard (2014) 233 Cal.App.4th 115 [SB 260 does not ameliorate the trial court’s failure to consider mitigating circumstances at the outset].]
Appellant’s sentence is not invalid for failure to consider his individual culpability and prospects for reform. Appellant’s claim his sentence is cruel and unusual punishment was not raised below and is therefore subject to forfeiture. Appellant claims he was ineffectively represented by counsel if the issue is forfeited. However, there was no prejudice from counsel’s failure to advance an Eighth Amendment claim because, given SB 260, it is not reasonably probable appellant would have received a sentence that would have provided an earlier parole eligibility than under SB 260.