Senate Bill No. 394, which amends Penal Code section 3051 to make juvenile offenders sentenced to LWOP eligible for a parole suitability hearing, renders juvenile offender’s challenge to LWOP sentence moot. Lozano was sentenced to LWOP in 1996 following her conviction of first degree murder with a robbery-murder special circumstance. She was 16 years old at the time she committed the offense. After the Supreme Court’s decision in Miller v. Alabama (2012) 567 U.S. 460, she was afforded a new sentencing hearing, but was again sentenced to LWOP. Lozano appealed, arguing her LWOP sentence violates the Eighth Amendment. Held: Dismissed as moot. Penal Code section 3051, subdivision (b)(4), recently amended by SB 394, now expressly provides a youth offender parole suitability hearing during the 25th year of incarceration for those sentenced to LWOP. The legislation requires the Board of Parole Hearings to not just consider, but rather to “give great weight to the diminished culpability of juveniles” and any subsequent growth or increased maturity while incarcerated. (Pen. Code, § 4801, subd. (c).) Lozano argued that SB 394 does not render her appeal moot because the LWOP sentence violates the Eighth Amendment based on the adverse collateral consequences she will face unless the errors in her sentence are corrected. Lozano reasoned that she should have been sentenced to 26 years to life rather than LWOP, which would have put her minimum eligible parole date in December 2012 instead of sometime in 2020. The court rejected this argument because under Montgomery v. Louisiana (2016) 136 S.Ct. 718, courts are permitted to remedy a Miller violation by providing meaningful parole consideration rather than resentencing. SB 394 provides this opportunity. The court is not required to resentence Lozano or offer any additional reduction in punishment.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B278663.PDF