An 86-years-to-life sentence for a defendant who was 20 years old when he committed three counts of attempted murder and other offenses does not constitute cruel and unusual punishment. Perez, a gang member, shot at three rival gang members, wounding one of them. He was convicted of three counts of premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187), gun use (Pen. Code, § 12022.53, subd. (d)) and other offenses. He received a sentence of 86 years to life. On appeal he claimed the sentence was cruel and unusual, as he was only 20 years of age when he committed the crime. Held: Judgment affirmed; limited remand ordered. In Graham v. Florida (2010) 560 U.S. 48, the court held a life without parole (LWOP) sentence on a juvenile convicted of a nonhomicide offense violates the Eighth Amendment and in Miller v. Alabama (2012) 132 S.Ct. 2455, the court extended this view to a sentencing scheme that mandates LWOP for juvenile offenders. The California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262, found a term of years that exceeded a juvenile offender’s life expectancy cruel and unusual punishment. Perez argued the holdings of Graham, Miller, and Caballero should apply equally to defendants of his age. However, because Perez was not a juvenile at the time of the offenses, the considerations in these cases are inapplicable and the Court of Appeal declined to extend them to defendants over the age of 18 years (agreeing with similar holdings in People v. Argeta (2012) 210 Cal.App.4th 1478 and People v. Abundio (2013) 221 Cal.App.4th 1211).
A limited remand is required so defendant may have sufficient opportunity to put on the record the types of information relevant to a youth offender parole hearing. In response to Graham, Miller, and Caballero, the Legislature passed Senate Bill No. 260 (effective January 1, 2014), which created Penal Code sections 3051, 3046, subdivision (c), and 4801, subdivision (c). These sections provide a parole mechanism for juvenile offenders and require the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th or 25th year of a defendant’s incarceration depending on the controlling offense. Several categories of juvenile offenders are excluded, but these exclusions are inapplicable to Perez. Effective January 1, 2016, section 3051 was amended to extend the benefits of the section to anyone who committed his offense before the age of 23. In People v. Franklin (2016) 63 Cal.4th 261, the court found the juvenile offender’s constitutional challenges to his sentence had been mooted by the enactment of sections 3051 and 4801, because the defendant might obtain release after serving 25 years of imprisonment. However, the court remanded the matter to allow the defendant to make a record of the kind of information that sections 3051 and 4801 deem relevant to a youth offender parole hearing. Similarly, Perez’s case must be remanded to allow him the opportunity to make a record of his characteristics and circumstances at the time of the offense so it may be available to the Parole Board in the future.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G050927.PDF