The Eighth Amendment prohibiting cruel and unusual punishment does not apply to a person who is not sentenced to “life-without-parole” even if the sentence, in effect, cannot be completed within the person’s lifetime. Appellant was convicted of three counts of attempted premeditated murder, each with a firearm-discharge enhancement. He was sentenced to three consecutive life terms for the attempted murders, for which he would be required to serve a minimum term of 15 years for each offense. Additionally, for the enhancements, he received three consecutive 25-year-to-life terms. Relying on Graham v. Florida (2010) 560 U.S. __, appellant argued that his sentence of 120 years to life violated the Eighth Amendment. Citing People v. Caballero (2011) 191 Cal.App.4th 1248, the court rejected the contention. Graham does not apply to a juvenile offender convicted of a non-homicide offense who receives a term-of-years sentence that results in the functional equivalent of a life sentence without the possibility of parole. (Cf. People v. Mendez (2011) 188 Cal.App.4th 47, holding that a sentence of 84-years-to-life for a juvenile convicted of a non-homicide offense was a de facto sentence of life without parole which fell within Graham, supra.)
Where appellant claims ineffective assistance, he must demonstrate that the overlooked evidence would have been exculpatory and that there was no tactical decision by counsel for not pursuing it. Appellant also contended that trial counsel was ineffective for failing to investigate a potential witness. Here, the record was silent as to counsel’s reasons for not pursuing the evidence at issue, and did not even indicate whether he had not pursued a promising lead.
Prior testimony from the preliminary hearing is admissible at trial if the witness is unavailable and the proponent of the testimony has exercised reasonable diligence in securing the witness for trial. Appellant argued he trial court erred in permitting preliminary hearing testimony from a witness. The court rejected the claim since the evidence in this case indicated that the prosecution acted in good faith and due diligence to secure the presence of the reluctant witness, but was unsuccessful. Evidence Code sections 240 and 1291 permit the introduction of hearsay evidence if the declarant is unavailable and the proponent has used reasonable diligence in securing his presence.