Filed 2/26/18




      IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,                           )
                                      )                          S224564
           Plaintiff and Respondent,  )
                                      )                    Ct.App. 4/1 D063428
           v.                         )
                                      )                     San Diego County
LEONEL CONTRERAS and                  )                 Super. Ct. No. SCD236438
WILLIAM STEVEN RODRIGUEZ,             )
                                      )
           Defendants and Appellants. )
____________________________________)


        Defendants Leonel Contreras and William Rodriguez were convicted in a
joint trial of kidnapping and sexual offenses they committed as 16 year olds.
Rodriguez was sentenced to a term of 50 years to life, and Contreras was
sentenced to a term of 58 years to life. We granted review to determine whether
the sentences imposed on these juvenile nonhomicide offenders violate the Eighth
Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268
(Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham). We hold that
these sentences are unconstitutional under the reasoning of Graham.
                                         I.
        On September 3, 2011, Jane Doe 1 and Jane Doe 2 attended a birthday
party for Doe 1’s uncle in the Rancho Peñasquitos area of San Diego County. Doe
1 was 16 years old, and Doe 2 was 15 years old. In the evening, Doe 1 and Doe 2
went for a walk to a greenbelt nearby and sat near a tree to talk. Two teenagers,
later identified as Contreras and Rodriguez, walked past them dressed in dark



                        SEE DISSENTING OPINIONS
clothing and with their hoods up. Shortly thereafter, defendants walked up behind
Doe 1 and Doe 2, tackled them, and forced them to walk across the street, up an
embankment, and into a vegetated area. Contreras held a knife to Doe 1’s neck
and told her to tell Doe 2 to “shut the fuck up” multiple times. Rodriguez covered
Doe 2’s mouth with his hand, tied a bandana around her mouth, and threatened to
hurt her if she screamed. Doe 2 repeatedly tried to get away, fell once from
struggling, and at one point bit Rodriguez’s hand.
       Rodriguez raped and sodomized Doe 2. Contreras raped Doe 1 and forced
her to orally copulate him. Rodriguez then raped and sodomized Doe 1 and forced
her to orally copulate him. Contreras put a knife to Doe 2’s neck, raped her, and
forced her to orally copulate him. Rodriguez forced Doe 2 and then Doe 1 to
orally copulate him. Defendants then told Doe 1 and Doe 2 to get dressed.
Rodriguez told Doe 1 and Doe 2 not to tell anyone what happened. One of the
defendants said they would follow Doe 1 and Doe 2 home and come after them
and one of Doe 1’s family members if they told anyone what had happened. Doe
1 and Doe 2 walked to the street and saw Doe 1’s parents, who had been searching
for them.
       In 2012, defendants were charged as adults under former Welfare and
Institutions Code section 707, subdivisions (d)(1) and (d)(2)(A) (amended by
Prop. 57, § 4.2, eff. Nov. 9, 2016) and were jointly tried before separate juries. A
jury convicted Contreras of conspiracy to commit kidnapping and forcible rape
(Pen. Code, § 182, subd. (a)(1); all undesignated statutory references are to this
code), rape by foreign object (§ 289, subd. (a)(1)(A)), two counts of kidnapping
(§ 207, subd. (a)), seven counts of forcible rape (§ 261, subd. (a)(2)), eight counts
of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by
use of force (§ 286, subd. (c)(2)(A)). The jury found true allegations that
Contreras committed the crimes with use of a knife (§ 12022.3, subd. (a)) as well

                                          2
as allegations that many of the sexual assault crimes were committed during a
kidnapping, against more than one victim, and with a knife within the meaning of
subdivisions (d)(2), (e)(1), (e)(3), and (e)(4) of section 667.61, the “One Strike”
law.
       On the same day, a jury convicted Rodriguez of two counts of kidnapping
(§ 207, subd. (a)), two counts of forcible rape (§ 261, subd. (a)(2)), four counts of
forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by
use of force (§ 286, subd. (c)(2)(A)). The jury found true allegations that
Rodriguez had committed the sexual assault crimes during a kidnapping and
against multiple victims within the meaning of subdivisions (d)(2) and (e)(4) of
section 667.61.
       At defendants’ sentencing hearings, the parties and the trial court agreed
that the court could not impose the statutory maximum sentences of several
hundred years, as those sentences would fall outside of defendants’ natural life
expectancies. At Rodriguez’s hearing, defense counsel noted that Rodriguez had
no criminal history, and the court acknowledged his “very difficult upbringing.”
But the court said, “I have to weigh that against the horrible scars that you have
left on these two girls.” The court then sentenced Rodriguez to two consecutive
terms of 25 years to life. The court observed that it was required to sentence
Rodriguez to additional consecutive terms of 25 years to life under section 667.61,
subdivision (i) but reasoned that doing so would violate Graham and Caballero.
       At Contreras’s hearing, defense counsel noted that Contreras had no arrests
and one prior misdemeanor for vandalism. The court said, “I think that Mr.
Rodriguez was a follower. Mr. Contreras was the shot caller.” The trial judge
identified the “brutal and callous and ruthless” nature of the crimes and expressed
skepticism about Contreras’s ability to rehabilitate: “I think his brain is developed
into who he is . . . .” Based on these factors, among others, the court stated, “I

                                          3
think that it’s only appropriate that he suffer the same punishment that Mr.
Rodriguez did and plus he used a knife, so he should get a little bit more.” The
court sentenced Contreras to two consecutive terms of 25 years to life in addition
to two four-year terms and imposed many additional concurrent or stayed
sentences. The trial judge concluded by noting, “If I could sentence you to 640
years to life, I would have. . . . Because you were a minor, you were spared that
sentence.”
       Defendants appealed their convictions and sentences on multiple grounds.
The Court of Appeal affirmed the convictions but reversed defendants’ sentences.
It held that the sentences “preclude any possibility of parole until [defendants] are
near the end of their lifetimes” and thus “fall[] short of giving them the realistic
chance for release contemplated by Graham.” The Court of Appeal remanded the
matter to the trial court for resentencing, with instructions to consider the
circumstances of the crimes, including the existence of multiple victims, together
with all mitigating circumstances, and to impose a parole eligibility date consistent
with the holding in Graham.
       We granted review and deferred briefing pending our decision in People v.
Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, we held that juvenile
homicide offenders may not be sentenced to the functional equivalent of life
without parole (LWOP) without certain protections afforded by the Eighth
Amendment as interpreted in Miller v. Alabama (2012) 567 U.S. 460 (Miller).
(Franklin, at p. 276.) The defendant there had been sentenced to 50 years to life
for first degree murder, and he claimed that his sentence was the functional
equivalent of LWOP and was imposed in violation of Miller. We held that
because section 3051 entitles Franklin to a youth offender parole hearing during
his 25th year of incarceration, his sentence “is neither LWOP nor its functional
equivalent” and thus gives rise to “no Miller claim.” (Franklin, at p. 280.)

                                           4
       A youth offender parole hearing is not available to juveniles convicted
under the One Strike law, as defendants were here. (§ 3051, subd. (h).) Because
Franklin does not resolve this case, we ordered briefing to address whether
Rodriguez’s sentence of 50 years to life or Contreras’s sentence of 58 years to life
violates the Eighth Amendment.
                                         II.
       The Eighth Amendment ban on cruel and unusual punishment “flows from
the basic ‘ “precept of justice that punishment for crime should be graduated and
proportioned to [the] offense. [Citation.]” ’ ” (Roper v. Simmons (2005) 543 U.S.
551, 560 (Roper).) “By protecting even those convicted of heinous crimes, the
Eighth Amendment reaffirms the duty of the government to respect the dignity of
all persons.” (Ibid.; see Robinson v. California (1962) 370 U.S. 660, 667 [Eighth
Amendment applies to the states].)
       The United States Supreme Court has interpreted the Eighth Amendment to
impose unique constraints on the sentencing of juveniles who commit serious
crimes. This case law reflects the principle that “children are constitutionally
different from adults for purposes of sentencing.” (Miller, supra, 567 U.S. at
p. 471.) “From this principle, the high court has derived a number of limitations
on juvenile sentencing: (1) no individual may be executed for an offense
committed when he or she was a juvenile (Roper, [supra,] 543 U.S. at p. 578); (2)
no juvenile who commits a nonhomicide offense may be sentenced to LWOP
(Graham, supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide
offense may be automatically sentenced to LWOP (Miller, at p. [465]).”
(Franklin, supra, 63 Cal.4th at pp. 273–274; see Montgomery v. Louisiana (2016)
577 U.S. __, __ [136 S.Ct. 718, 734] (Montgomery) [“Miller announced a
substantive rule of constitutional law” that applies retroactively].) The second
limitation is relevant here: Because Contreras and Rodriguez committed

                                          5
nonhomicide offenses, the Eighth Amendment does not permit them to be
sentenced to LWOP. Although they may be punished with long sentences, they
must have “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” (Graham, at p. 75.)
       In Caballero, we held that a juvenile defendant’s sentence of 110 years to
life for three counts of attempted murder was the functional equivalent of LWOP
and, under Graham, violated the Eighth Amendment. (Caballero, supra, 55
Cal.4th at p. 268.) We rejected the argument that Graham’s prohibition on LWOP
does not apply to aggregated sentences for distinct crimes where each sentence
individually provides for the possibility of parole within a juvenile’s expected
lifespan. (Id. at pp. 267–268.) We said: “Graham’s analysis does not focus on
the precise sentence meted out. Instead, . . . it holds that a state must provide a
juvenile offender ‘with some realistic opportunity to obtain release’ from prison
during his or her expected lifetime.” (Id. at p. 268.)
       Graham and Caballero together hold that the Eighth Amendment does not
allow juveniles who commit nonhomicide crimes to be sentenced to LWOP or to a
term of years well in excess of natural life expectancy. But neither Graham nor
Caballero considered whether a lengthy sentence short of LWOP or its equivalent
would likewise violate the Eighth Amendment in this context. The question here
is whether Rodriguez’s sentence of 50 years to life or Contreras’s sentence of 58
years to life for nonhomicide offenses violates the same Eighth Amendment
principles that bar the imposition of LWOP for their crimes.
                                          A.
       The Attorney General says we “should adopt the following rule: any term
of imprisonment that provides a juvenile offender with an opportunity for parole
within his or her expected natural lifetime is not the functional equivalent of
LWOP . . . .” The Attorney General urges us to determine natural life expectancy

                                           6
by looking to a report published by the Centers for Disease Control (CDC), based
on 2010 data, providing the life expectancies of various age and gender cohorts
living in the United States. (See Arias, United States Life Tables, 2010, National
Vital Statistics Reports, vol. 63, no. 7 (Nov. 6, 2014) p. 1 (2010 Life Tables).)
According to that report, a 16-year-old boy in the United States is expected to live
an additional 60.9 years, for a total life expectancy of 76.9 years. (Id. at p. 11,
table 2.) Noting that “Rodriguez will be 66 years old when first eligible for
parole, and Contreras will be 74 years old when first eligible for parole,” the
Attorney General contends that “[b]ecause it affords appellants an opportunity for
parole within their expected natural lifetimes, a sentence of 50 years to life and 58
years to life is not the functional equivalent of LWOP and therefore may be
constitutionally imposed.” As explained below, this actuarial approach urged by
the Attorney General is practically and conceptually problematic.
       As an initial matter, we find unpersuasive the Attorney General’s claim that
we already decided in Caballero that a term-of-years sentence does not violate the
Eighth Amendment if it allows the possibility of parole at some point during the
juvenile offender’s natural life expectancy. Caballero held that “sentencing a
juvenile offender for a nonhomicide offense to a term of years with a parole
eligibility date that falls outside the juvenile offender’s natural life expectancy
constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
(Caballero, supra, 55 Cal.4th at p. 268.) But the defendant in Caballero
challenged a sentence allowing for parole eligibility “over 100 years from now.”
(Ibid.) In that context, it was enough to note that the parole eligibility date “falls
outside the juvenile offender’s natural life expectancy.” (Ibid.) We had no
occasion to consider whether a term-of-years sentence violates the Eighth
Amendment only if it exceeds a juvenile defendant’s natural life expectancy. (See
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [“ ‘It is axiomatic that

                                           7
language in a judicial opinion is to be understood in accordance with the facts and
issues before the court. An opinion is not authority for propositions not
considered.’ ”].)
       Taken on its own terms, the Attorney General’s actuarial approach gives
rise to a tangle of legal and empirical difficulties. In defining life expectancy, the
Attorney General relies on our statement in Caballero that “the term ‘life
expectancy’ means the normal life expectancy of a healthy person of defendant’s
age and gender living in the United States.” (Caballero, supra, 55 Cal.4th at
p. 267, fn. 3, italics added.) But this passing statement was unnecessary to our
decision because the 110-years-to-life sentence at issue clearly exceeded the
defendant’s life expectancy under any definition. Although a gender-specific
approach to determining life expectancy reflects the reality that females generally
live longer than males (see 2010 Life Tables, supra, at p. 2 [“The difference in life
expectancy between the sexes was 4.8 years in 2010 . . . .”]), we did not examine
in Caballero whether it would be constitutional to authorize lengthier sentences
for girls than for boys in determining the parameters of lawful punishment for
juvenile nonhomicide offenders.
       “We long ago concluded that discrimination based on gender violates the
equal protection clause of the California Constitution (art. I, § 7, subd. (a)) and
triggers the highest level of scrutiny. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1,
17–20.)” (Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32
Cal.4th 527, 564.) “In order to satisfy that standard, the state must demonstrate
not simply that there is a rational, constitutionally legitimate interest that supports
the differential treatment at issue, but instead that the state interest is a
constitutionally compelling one that justifies the disparate treatment prescribed by
the statute in question. [Citation.]” (In re Marriage Cases (2008) 43 Cal.4th 757,
847.) And “the state must demonstrate that the distinctions drawn by the statute

                                            8
(or statutory scheme) are necessary to further that interest. [Citation.]” (Id. at
p. 848.)
       It is unclear whether sentencing juveniles based on gender-specific life
expectancies would satisfy strict scrutiny. But assuming it would, there would
then be no reason why the definition of life expectancy should not also account for
well-documented racial differences, since racial classifications are evaluated under
the same constitutional standard. (See Johnson v. California (2005) 543 U.S. 499,
505; Coral Construction, Inc. v. City and County of San Francisco (2010) 50
Cal.4th 315, 337.) According to the CDC report on which the Attorney General
relies, life expectancy in 2010 was 83.8 years for Hispanic females, 81.3 years for
non-Hispanic white females, 78.0 years for black females, 78.7 years for Hispanic
males, 76.5 years for white males, and 71.8 years for black males. (2010 Life
Tables, supra, at p. 5.) These differences present a conundrum: Although persons
of different races and genders are not similarly situated in terms of life expectancy,
it seems doubtful that considering such differences in juvenile sentencing would
pass constitutional muster.
       Moreover, were we to adopt the Attorney General’s proposed rule, it is not
obvious why the definition of life expectancy should ignore other group-based
differences that may be relevant to a particular juvenile defendant. The Pacific
Juvenile Defender Center (PJDC), as amicus curiae, notes that life expectancy is
affected by many “ ‘variables that have long been studied by social scientists but
are not included in U.S. Census or vital statistics reports — income, education,
region, type of community, access to regular health care, and the like . . . .’ ” (See
Cummings & Colling, There is No Meaningful Opportunity in Meaningless Data:
Why It Is Unconstitutional to Use Life Expectancy Tables in Post-Graham
Sentences (2014) 18 U.C. Davis J. Juvenile L. & Policy 267, 282.)



                                          9
       Defendants and PJDC highlight the relevance of one variable in particular:
incarceration. PJDC cites studies showing that incarceration accelerates the aging
process and results in life expectancies substantially shorter than estimates for the
general population. (See Patterson, The Dose-Response of Time Served in Prison
on Mortality: New York State, 1989–2003 (2013) 103 Am. J. Pub. Health 523, 526
[finding each year of incarceration correlated with a 15.6 percent increase in odds
of death for parolees and a two-year decline in life expectancy]; U.S. Dept. of
Justice, Nat. Inst. of Corrections, Correctional Health Care: Addressing the Needs
of Elderly, Chronically Ill, and Terminally Ill Inmates (2004) pp. 9–10
(Correctional Health Care) [stresses of incarceration intensify the health problems
of elderly inmates and accelerate aging processes]; see also Spaulding et al.,
Prisoner Survival Inside and Outside of the Institution: Implications for Health-
Care Planning (2011) 173 Am. J. Epidemiology 479, 484 [currently and formerly
incarcerated individuals in Georgia have “overall heightened mortality . . . over 15
years of follow-up relative to the general Georgia population,” with significant
differences by race, gender, and time incarcerated].) One state high court has
taken such evidence into account in determining whether a term-of-years sentence
violates the Eighth Amendment. (See Casiano v. Commissioner of Correction
(Conn. 2015) 115 A.3d 1031, 1046 (Casiano).)
       On the other hand, it has been suggested that inmates who “have aged in
place are generally the best adapted to prison life because they have been in prison
since their youth and have adjusted to it.” (Correctional Health Care, supra, at
p. 10.) Further, although incarceration has its stresses, it may shield inmates from
other stresses that would afflict them outside of prison, including violence,
accidents, and poor access to health care. (See Spaulding et al., supra, at pp. 482–
485; Rosen et al., All-Cause and Cause-Specific Mortality Among Black and White
North Carolina State Prisoners, 1995–2005 (2011) 21 Ann. Epidemiology 719,

                                         10
725–726 [average death rates for currently incarcerated black men in North
Carolina prisons are significantly lower than for the black population in the state
overall, but currently incarcerated white men have slightly higher average death
rates than white men in the state].) In addition, the Attorney General asserts that
although race, region, and economic status may affect death rates outside prison,
such findings are not necessarily true “for those inside prison, where living
conditions, medical treatment, and wealth are roughly the same for all.”
       The record in this case contains no findings by the trial court on these
matters. At sentencing, the prosecution introduced evidence of statistical life
expectancies, and neither defendant presented evidence demonstrating shorter life
expectancy in prison. But we decline to adopt a constitutional rule that employs a
concept of life expectancy whose meaning depends on the facts presented in each
case. Determining the validity of lengthy term-of-years sentences under the
Eighth Amendment through a case-by-case inquiry into competing evidence of the
life expectancy most pertinent to a particular juvenile defendant would lead to
problems of disparate sentencing. Moreover, even if there were a legally and
empirically sound approach to estimating life expectancy, it must be noted that a
life expectancy is an average. (2010 Life Tables, supra, at p. 2.) In a normal
distribution, about half of a population reaches or exceeds its life expectancy,
while the other half does not. Under Graham, juvenile nonhomicide offenders
must be given “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75; see
id. at p. 82 [the state must give juvenile nonhomicide offenders “some realistic
opportunity to obtain release before the end of [a life] term”].) An opportunity to
obtain release does not seem “meaningful” or “realistic” within the meaning of
Graham if the chance of living long enough to meet that opportunity is roughly the
same as a coin toss. Of course, there can be no guarantee that every juvenile

                                         11
offender who suffers a lengthy sentence will live until his or her parole eligibility
date. But we do not believe the outer boundary of a lawful sentence can be fixed
by a concept that by definition would not afford a realistic opportunity for release
to a substantial fraction of juvenile offenders.
                                          B.
       In addition to raising legal and empirical difficulties, the actuarial approach
proposed by the Attorney General is misguided at a more fundamental level.
When evaluating a sentence that clearly exceeds natural life expectancy, like the
110-years-to-life sentence in Caballero, it is straightforward to conclude that the
sentence is “functionally equivalent” to LWOP as an actuarial matter. (Caballero,
supra, 55 Cal.4th at p. 268.) But the issue of functional equivalence in this
context is not limited to determining whether a term-of-years sentence is
actuarially equivalent to LWOP. Although the Attorney General trains his inquiry
on that question, there is a separate and distinct question whether a lengthy term-
of-years sentence, though not clearly exceeding a juvenile offender’s natural
lifespan, may nonetheless impinge on the same substantive concerns that make the
imposition of LWOP on juvenile nonhomicide offenders impermissible under the
Eighth Amendment. This latter notion of functional equivalence — that a term-of-
years sentence may function like LWOP with respect to the Eighth Amendment
concerns that constrain lawful punishment for juvenile nonhomicide offenders —
is what we must address in this case. (See State v. Null (Iowa 2013) 836 N.W.2d
41, 71 [“[W]e do not believe the determination of whether the principles of Miller
or Graham apply in a given case should turn on the niceties of epidemiology,
genetic analysis, or actuarial sciences in determining precise mortality dates.”].)
To resolve this question, the proper starting point is not a life expectancy table but
the reasoning of the high court in Graham.



                                          12
       The defendant in Graham, at age 16, was charged in Florida as an adult for
armed burglary with assault or battery, which carried a maximum sentence of
LWOP, and attempted armed robbery, which carried a maximum sentence of 15
years. (Graham, supra, 560 U.S. at pp. 53–54.) Graham pleaded guilty to both
charges and, in a letter to the trial court, said “ ‘this is my first and last time getting
in trouble’ ” and “ ‘I’ve decided to turn my life around.’ ” (Id. at p. 54.) The trial
court withheld adjudication of guilt and sentenced him to probation. (Ibid.) Less
than six months later, 34 days before his 18th birthday, Graham participated in a
home invasion robbery and afterward admitted he had violated his probation
conditions. (Id. at pp. 54–55.) At that point, the trial court found Graham guilty
of the earlier armed burglary and attempted armed robbery. (Id. at pp. 55–57.)
       At sentencing, the trial court said: “ ‘Mr. Graham, as I look back on your
case, yours is really candidly a sad situation. You had, as far as I can tell, you
have quite a family structure. You had a lot of people who wanted to try and help
you get your life turned around including the court system, and you had a judge
who took the step to try and give you direction through his probation order to give
you a chance to get back onto track. And at the time you seemed through your
letters that that is exactly what you wanted to do. And I don’t know why it is that
you threw your life away. . . . [¶] But you did, and that is what is so sad about this
today . . . . [¶] . . . [¶] And I don’t understand why you would be given such a
great opportunity to do something with your life and why you would throw it
away. The only thing that I can rationalize is that you decided that this is how you
were going to lead your life and that there is nothing that we can do for you. And
as the state pointed out, that this is an escalating pattern of criminal conduct on
your part and that we can’t help you any further. We can’t do anything to deter
you. This is the way you are going to lead your life . . . . [¶] . . . [¶] . . . I don’t
see where any further youthful offender sanctions would be appropriate. Given

                                            13
your escalating pattern of criminal conduct, it is apparent to the Court that you
have decided that this is the way you are going to live your life and that the only
thing I can do now is to try and protect the community from your actions.’ ”
(Graham, supra, 560 U.S. at pp. 56–57.) The trial court sentenced Graham to the
maximum penalty for both crimes: LWOP for the armed burglary and 15 years in
prison for the attempted armed robbery. (Id. at p. 57.) The high court held that
the Eighth Amendment categorically “prohibits the imposition of a life without
parole sentence on a juvenile offender who did not commit homicide.” (Id. at
p. 82.)
          Central to the high court’s analysis was its “consideration of the culpability
of the offenders at issue in light of their crimes and characteristics, along with the
severity of the punishment in question.” (Graham, supra, 560 U.S. at p. 67.) As
for culpability, the high court reiterated its observations in Roper that “[a]s
compared to adults, juveniles have a ‘ “lack of maturity and an underdeveloped
sense of responsibility” ’; they ‘are more vulnerable or susceptible to negative
influences and outside pressures, including peer pressure’; and their characters are
‘not as well formed.’ [Citation.] These salient characteristics mean that ‘[i]t is
difficult even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption.’ ” (Graham, at
p. 68, quoting Roper, supra, 543 U.S. at pp. 569–570, 573.) Further, the high
court underscored that “defendants who do not kill, intend to kill, or foresee that
life will be taken are categorically less deserving of the most serious forms of
punishment than are murderers. . . . Although an offense like robbery or rape is ‘a
serious crime deserving serious punishment,’ those crimes differ from homicide
crimes in a moral sense.” (Graham, at p. 69, citations omitted.)



                                            14
       As for the punishment, the high court noted that a sentence of LWOP
“deprives the convict of the most basic liberties without giving hope of
restoration.” (Graham, supra, 560 U.S. at pp. 69–70; see id. at p. 70 [“this
sentence ‘means denial of hope; it means that good behavior and character
improvement are immaterial . . . .’ ”].) In addition, “[l]ife without parole is an
especially harsh punishment for a juvenile. Under this sentence a juvenile
offender will on average serve more years and a greater percentage of his life in
prison than an adult offender. . . . This reality cannot be ignored.” (Ibid.)
       The high court then evaluated the sentence against the penological goals of
“retribution, deterrence, incapacitation, and rehabilitation.” (Graham, supra, 560
U.S. at p. 71.) Linking retribution to culpability, the high court said “ ‘the case for
retribution is not as strong with a minor as with an adult’ ” and “becomes even
weaker with respect to a juvenile who did not commit homicide.” (Ibid.) As for
deterrence, the high court said that “[b]ecause juveniles’ ‘lack of maturity and
underdeveloped sense of responsibility . . . often result in impetuous and ill-
considered actions and decisions,’ [citation], they are less likely to take a possible
punishment into consideration when making decisions.” (Id. at p. 72.)
       As for incapacitation, the high court acknowledged that “[r]ecidivism is a
serious risk to public safety, and so incapacitation is an important goal.”
(Graham, supra, 560 U.S. at p. 72.) But the “characteristics of juveniles” make it
“questionable” to conclude that a juvenile offender is incorrigible; indeed,
“ ‘incorrigibility is inconsistent with youth.’ ” (Id. at pp. 72–73.) A sentencing
authority may not make a judgment “at the outset” that a juvenile nonhomicide
offender will “be a risk to society for the rest of his life.” (Id. at p. 73.) This was
true even for Graham, who had violated the terms of his probation “despite his
own assurances of reform” and had engaged in “what the trial court described as
an ‘escalating pattern of criminal conduct.’ ” (Ibid.) “A life without parole

                                           15
sentence improperly denies the juvenile offender a chance to demonstrate growth
and maturity.” (Ibid.)
       The high court then discussed rehabilitation and explained that LWOP
“forswears altogether the rehabilitative ideal. By denying the defendant the right
to reenter the community, the State makes an irrevocable judgment about that
person’s value and place in society. This judgment is not appropriate in light of a
juvenile nonhomicide offender’s capacity for change and limited moral
culpability.” (Graham, supra, 560 U.S. at p. 74.) The high court also noted that
inmates sentenced to LWOP “are often denied access to vocational training and
other rehabilitative services that are available to other inmates,” making “all the
more evident” the disproportionality of LWOP when imposed on “juvenile
offenders, who are most in need of and receptive to rehabilitation.” (Ibid.) “In
sum,” Graham concluded, “penological theory is not adequate to justify life
without parole for juvenile nonhomicide offenders.” (Ibid.)
                                          C.
       What emerges from Graham is not a constitutional prohibition on harsh
sentences for juveniles who commit serious crimes. (Graham, supra, 560 U.S. at
p. 71 [“Society is entitled to impose severe sanctions on a juvenile nonhomicide
offender to express its condemnation of the crime and to seek restoration of the
moral imbalance caused by the offense.”].) Nor does Graham “require the State to
release [a juvenile nonhomicide] offender during his natural life. Those who
commit truly horrifying crimes as juveniles may turn out to be irredeemable, and
thus deserving of incarceration for the duration of their lives.” (Id. at p. 75.) But
Graham “does prohibit States from making the judgment at the outset that those
offenders never will be fit to reenter society.” (Ibid.) “What the State must do . . .
is give defendants like Graham some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” (Ibid.)

                                          16
       While finding LWOP impermissible for juvenile nonhomicide offenders,
the high court did not define the maximum length of incarceration before parole
eligibility that would be permissible in light of the concerns it set forth in Graham.
But the high court made clear the nature of its concerns: A lawful sentence must
recognize “a juvenile nonhomicide offender’s capacity for change and limited
moral culpability.” (Graham, supra, 560 U.S. at p. 74.) A lawful sentence must
offer “hope of restoration” (id. at p. 70), “a chance to demonstrate maturity and
reform” (id. at p. 79), a “chance for fulfillment outside prison walls,” and a
“chance for reconciliation with society” (ibid.). A lawful sentence must offer “the
opportunity to achieve maturity of judgment and self-recognition of human worth
and potential.” (Ibid.) A lawful sentence must offer the juvenile offender an
“incentive to become a responsible individual.” (Ibid.)
       Although the Attorney General says a penalty is not invalid under Graham
unless it “is tantamount to [a] sentence of death,” he does not seriously contend
that a term-of-years sentence with parole eligibility at any point before the end of
life expectancy — whether it is one year, one month, or one day — would satisfy
the Eighth Amendment. Even assuming defendants’ parole eligibility dates are
within their expected lifespans, the chance for release would come near the end of
their lives; even if released, they will have spent the vast majority of adulthood in
prison. We agree with the Court of Appeal that these sentences “tend to reflect a
judgment Rodriguez and Contreras are irretrievably incorrigible” and “fall[] short
of giving them the realistic chance for release contemplated by Graham.”
       Several considerations support this conclusion. First, although the high
court has not defined what it means for a juvenile offender “to rejoin society”
(Graham, supra, 560 U.S. at p. 79), the language of Graham suggests that the high
court envisioned more than the mere act of release or a de minimis quantum of
time outside of prison. Graham spoke of the chance to rejoin society in qualitative

                                          17
terms — “the rehabilitative ideal” (id. at p. 74) — that contemplate a sufficient
period to achieve reintegration as a productive and respected member of the
citizenry. The “chance for reconciliation with society” (id. at p. 79), “the right to
reenter the community” (id. at p. 74), and the opportunity to reclaim one’s “value
and place in society” (ibid.) all indicate concern for a measure of belonging and
redemption that goes beyond mere freedom from confinement. It is also
significant that Graham said juvenile nonhomicide offenders should not be denied
access to “vocational training” and “education,” among other rehabilitative
services. (Id. at pp. 74, 79.) Presumably one purpose of such programming is to
enable a juvenile offender to hold a job or otherwise participate as a productive
member of society if released. Graham’s directive that “[t]he juvenile should not
be deprived of the opportunity to achieve . . . self-recognition of human worth and
potential” implies that the juvenile may someday have the opportunity to realize
that “potential.” (Id. at p. 79.) For any individual released after decades of
incarceration, adjusting to ordinary civic life is undoubtedly a complex and
gradual process. Confinement with no possibility of release until age 66 or age 74
seems unlikely to allow for the reintegration that Graham contemplates.
       Second, in underscoring the capacity of juveniles to change, Graham made
clear that a juvenile offender’s prospect of rehabilitation is not simply a matter of
outgrowing the transient qualities of youth; it also depends on the incentives and
opportunities available to the juvenile going forward. (See, e.g., Graham, supra,
560 U.S. at p. 79 [prison system may “become[] complicit in the lack of
development” of a juvenile offender by “withhold[ing] counseling, education, and
rehabilitation programs”].) Importantly, Graham said “[a] young person who
knows that he or she has no chance to leave prison before life’s end has little
incentive to become a responsible individual.” (Ibid.) We believe the same is true



                                          18
here: A young person who knows he or she has no chance to leave prison for 50
years “has little incentive to become a responsible individual.” (Ibid.)
       Third, a sentence of 50 years to life imprisonment bears an attenuated
relationship to legitimate penological goals under the reasoning of Graham. Such
a sentence, though less harsh than LWOP, is still “an especially harsh punishment
for a juvenile,” who “will on average serve more years and a greater percentage of
his life in prison than an adult offender.” (Graham, supra, 560 U.S. at p. 70.) It is
also a highly severe punishment for a juvenile nonhomicide offender who, “when
compared to an adult murderer,” has “a twice diminished moral culpability.” (Id.
at p. 69; cf. § 190, subd. (a) [penalty for adult who commits first degree murder
simpliciter is 25 years to life].) The retributive case for a 50-years-to-life
sentence, as for LWOP, is weakened by the juvenile nonhomicide offender’s “age
. . . and the nature of the crime.” (Graham, at p. 69.) As for deterrence, Graham’s
observation that juveniles have limited ability to consider consequences when
making decisions (id. at p. 72) applies to a sentence of 50 years to life just as it
does to a sentence of LWOP. And as for incapacitation, a judgment that a juvenile
offender will be incorrigible for the next 50 years is no less “questionable” than a
judgment that the juvenile offender will be incorrigible “forever.” (Id. at pp. 72–
73; see Montgomery, supra, 577 U.S. at p. __ [136 S.Ct. at p. 736] [“Miller’s
central intuition” is “that children who commit even heinous crimes are capable of
change”].) Finally, as noted, a sentence of 50 years to life “cannot be justified by
the goal of rehabilitation” because it offers a juvenile offender “little incentive to
become a responsible individual.” (Graham, at pp. 74, 79.)
       Fourth, our conclusion that a sentence of 50 years to life is functionally
equivalent to LWOP is consistent with the decisions of other state high courts.
Setting aside courts that have disagreed with our case law holding that Graham
and Miller apply to aggregated sentences (see Franklin, supra, 63 Cal.4th at

                                          19
p. 276; Caballero, supra, 55 Cal.4th at pp. 267–268), we are not aware of any
state high court that has found incarceration of a juvenile for 50 years or more
before parole eligibility to fall outside the strictures of Graham and Miller. (See
State v. Zuber (N.J. 2017) 152 A.3d 197, 212 [110-year sentence with parole
eligibility after 55 years “is the practical equivalent of life without parole”];
Casiano, supra, 115 A.3d at p. 1044 [same for 50-year sentence]; Bear Cloud v.
State of Wyoming (Wyo. 2014) 334 P.3d 132, 142 [same for 45-years-to-life
sentence]; Null, supra, 836 N.W.2d at p. 71 [same for 75-year sentence with
parole eligibility after 52.5 years]; but cf. Collins v. State (Fla.Ct.App. 2016) 189
So.3d 342, 343 [55-year sentence with parole eligibility after 52 years does not
violate Graham]; United States v. Mathurin (11th Cir. 2017) 868 F.3d 921, 934–
936 [57-year sentence, which defendant could reduce to a near-50-year sentence
by earning good-time credits, does not violate Graham].)
       Finally, our conclusion is also consistent with state legislation adopted in
the wake of Graham and Miller, assuming that the parole hearings in these
statutory schemes provide for meaningful consideration of the inmate’s age at the
time of the offense and demonstrated maturity and rehabilitation. (See Ark. Code
Ann. § 16-93-621(a)(1) [juvenile nonhomicide offenders eligible for parole after
20 years]; Colo. Rev. Stat. Ann. § 18-1.3-401(4)(c)(I)(B) [juvenile offenders
sentenced to LWOP for a crime other than first degree murder resentenced to life
with opportunity for parole after 40 years]; Conn. Gen. Stat. Ann. § 54-125a(f)(1)
[juvenile offenders sentenced to over 50 years eligible for parole after 30 years,
and juvenile offenders sentenced to between 10 and 50 years eligible for parole
after the greater of 12 years or 60% of the sentence]; Del. Code Ann. tit. 11,
§ 4204A(d) [juvenile offender convicted of a crime other than first degree murder
eligible for resentencing after 20 years]; D.C. Code Ann. § 24-403.03(a) [juvenile
offenders eligible for sentence reduction after 20 years]; Fla. Stat. Ann.

                                           20
§ 921.1402(2)(d) [juvenile offenders convicted of offenses other than murder
entitled to review of sentence after 20 years]; La. Rev. Stat. § 15:574.4(D)(1)
[juvenile offenders sentenced to life for crimes other than first or second degree
murder eligible for parole after 30 years]; Sen. Bill No. 16 (La. 2017 Reg. Sess.)
[juvenile offenders sentenced to life for crimes other than first or second degree
murder eligible for parole after 25 years, effective August 2017]; Mo. Ann. Stat.
§ 558.047(1) [juvenile offenders sentenced to LWOP eligible for review of
sentence after 25 years]; Nev. Rev. Stat. Ann. § 213.12135 [juvenile nonhomicide
offenders eligible for parole after 15 years]; House Bill No. 1195 (N.D. 2017 Reg.
Sess.) [juvenile offenders eligible for sentence reduction after 20 years]; W.Va.
Code § 61-11-23(b) [juvenile offenders eligible for parole after 15 years]; Wyo.
Stat. Ann. § 6-10-301(c) [juvenile offenders sentenced to life eligible for parole
after 25 years]; but see Wash. Rev. Code § 9.94A.730(1) [juvenile offenders
eligible for release after 20 years, except for those serving sentences for
aggravated first degree murder or certain sex offenses].) In enacting these
sentencing reforms, these state legislatures observed that sentencing juvenile
nonhomicide offenders to 50 or more years of incarceration without parole
eligibility is not consistent with Graham. (See, e.g., Sen. Bill No. 294 (Ark. 2017
Reg. Sess.) § 2; Colo. Rev. Stat. Ann. § 16-13-1001; Sen. Judiciary Com.,
Summary of Sen. Bill No. 796 (Conn. 2015 Reg. Sess.) § 1; Synopsis of Sen. Bill
No. 9 (Del. 2013–2014 Reg. Sess.); House Judiciary Com., Crim. J. Subcom.,
Analysis of Sen. Bill No. 384 (Fla. 2014 Reg. Sess.) Jan. 3, 2014, pp. 1–4; Resume
Dig. for Sen. Bill No. 317 (La. 2012 Reg. Sess.); Resume Dig. for Sen. Bill No. 16
(La. 2017 Reg. Sess.).)




                                          21
                                         D.
       The Chief Justice criticizes our decision today as an “unwarranted
extension of Graham.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 3.) She
observes that “Graham . . . invalidated a narrowly defined, specific type of
sentence” for juvenile nonhomicide offenders — namely, life without parole,
“ ‘ “the second most severe penalty permitted by law.” ’ ” (Id. at p. 9, quoting
Graham, supra, 560 U.S. at p. 69.) Our decision, she contends, ignores “the
limited nature of the holding in Graham” and disregards the “ ‘clear line’ ” that
Graham drew in demarcating the type of sentence that violates the Eighth
Amendment. (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 3, 10, 20, 21 & fn. 7,
23, quoting Graham, at 74).
       But what exactly is the “clear line” that Graham drew? Here is the passage
where those words appear in Graham: “[P]enological theory is not adequate to
justify life without parole for juvenile nonhomicide offenders. This determination;
the limited culpability of juvenile nonhomicide offenders; and the severity of life
without parole sentences all lead to the conclusion that the sentencing practice
under consideration is cruel and unusual. This Court now holds that for a juvenile
offender who did not commit homicide the Eighth Amendment forbids the
sentence of life without parole. This clear line is necessary to prevent the
possibility that life without parole sentences will be imposed on juvenile
nonhomicide offenders who are not sufficiently culpable to merit that punishment.
Because ‘[t]he age of 18 is the point where society draws the line for many
purposes between childhood and adulthood,’ those who were below that age when
the offense was committed may not be sentenced to life without parole for a
nonhomicide crime.” (Graham, supra, 560 U.S. at pp. 74–75.)
       The Chief Justice reads the phrase “clear line” to distinguish between
LWOP and other types of sentences. But in context, the phrase more sensibly

                                         22
refers to two other distinctions: (1) between homicide and nonhomicide offenses,
and (2) between juvenile and adult offenders. The “line” that Graham made
“clear” is that LWOP may not be imposed on juveniles who commit nonhomicide
offenses, even if it may be imposed (rarely) on juveniles who commit homicide
offenses or on adults who commit nonhomicide offenses. In drawing this line, the
majority in Graham was rejecting Chief Justice Roberts’s view that the Eighth
Amendment does not support a “categorical rule that juveniles may never receive
a sentence of life without parole for nonhomicide crimes” and instead “allow[s]
courts . . . to consider the particular defendant and particular crime at issue.”
(Graham, supra, 560 U.S. at pp. 89, 86 (conc. opn. of Roberts, C. J.); see id. at
pp. 93–95 [arguing that some juvenile nonhomicide offenders may deserve an
LWOP sentence].) Graham does not hold or suggest that only LWOP sentences,
and no sentences other than LWOP, violate the Eighth Amendment when imposed
on a juvenile nonhomicide offender.
       Indeed, our dissenting colleagues do not contend that the reasoning of
Graham is limited to LWOP sentences, for we have already rejected that
proposition in Caballero. The Attorney General argued in Caballero that “a
cumulative sentence for distinct crimes does not present a cognizable Eighth
Amendment claim . . . . In addition, the Court of Appeal reasoned that Graham
applied a categorical rule specifically limited to juvenile nonhomicide offenders
receiving an explicitly designated life without parole sentence . . . .” (Caballero,
supra, 55 Cal.4th at p. 267.) At the time we decided Caballero, several appellate
courts had held that Graham applies only to LWOP sentences and not to any
individual or aggregate term-of-years sentences. (See Bunch v. Smith (6th Cir.
2012) 685 F.3d 546, 552; Henry v. State (Fla.Ct.App. 2012) 82 So.3d 1084, 1089;
State v. Kasic (Ariz.Ct.App. 2011) 265 P.3d 410, 415.) Notwithstanding these
arguments and authorities, we unanimously held that Graham’s reasoning applies

                                          23
to a “term-of-years sentence that amounts to the functional equivalent of a life
without parole sentence.” (Caballero, supra, 55 Cal.4th at p. 268; see id. at
pp. 271–273 (conc. opn. of Werdegar. J.).)
       As the Chief Justice acknowledges, the “line” that Graham actually drew
between lawful and unlawful sentences for juvenile nonhomicide offenders is not
between LWOP and other sentences, but between sentences that do and sentences
that do not provide “ ‘some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.’ ” (Dis. opn. of Cantil-Sakauye, C. J.,
post, at p. 10, quoting Graham, supra, 560 U.S. at p. 75.) Whatever “abstraction,”
“vagueness,” or “subjectiv[ity]” (dis. opn. of Cantil-Sakauye, C. J., post, at p. 22)
there may be in analyzing whether a particular sentence provides “some
meaningful opportunity to obtain release” (Graham, at p. 75), we are obligated to
apply the rule stated by the high court, and that is what our opinion today does.
       The Chief Justice would hold that a sentence provides a meaningful
opportunity for release if it allows for parole eligibility within a defendant’s life
expectancy. (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 15.) This approach is
problematic for reasons we have explained above. (Ante, at pp. 6–12.) The Chief
Justice does not dispute that the life expectancy tables she relies on show
significant disparities by race and gender. Her response is that apart from race,
sex, and custodial status, “juvenile defendants belong to a nearly infinite number
of cohorts” with varying life expectancies. (Dis. opn. of Cantil-Sakauye, C. J.,
post, at p. 17.) She then says: “Given that a defendant could be placed within any
of many peer groups for purposes of assessing his or her life expectancy, and
given as well the need to use some conception of life expectancy as a benchmark,
reliance on general population life expectancies makes good sense as providing an
administrable rule of decision that is consistent with Graham.” (Id. at p. 17.) This
is a non-sequitur. Why does reliance on general-population life expectancies

                                          24
make good sense when it is acknowledged that life expectancies vary by race, sex,
custodial status, and other traits as well? Such an approach seems quite arbitrary.
       Even if general-population life expectancies were relevant to evaluating
whether a particular sentence provides a meaningful opportunity for release, the
Chief Justice does not answer the crucial question of how many years before the
end of a defendant’s life expectancy must parole eligibility be provided in order to
satisfy Graham. The Chief Justice believes five years is sufficient. (Dis. opn. of
Cantil-Sakauye, C. J., post, at pp. 15, 17 [parole eligibility at age 74 falls “well
within” the general life expectancy of 79 years for 15- to 16-year-olds].) But why
is five years sufficient? Why not require 10, 15, or 25 years? And if five years is
sufficient, then what about four years? three? two? or one?
       Ultimately, any line-drawing must depend on a considered judgment as to
whether the parole eligibility date of a lengthy sentence offers a juvenile offender
a realistic hope of release and a genuine opportunity to reintegrate into society.
Reasonable minds may disagree on such judgments, but it is specious to contend
that an approach based on life expectancy would avoid “subjective and quite likely
divergent assessments of what constitutes adequate reintegration into society, and
the time necessary to accomplish this reentry.” (Dis. opn. of Cantil-Sakauye, C. J.,
post, at p. 23.) In the end, the Chief Justice’s conclusion that defendants’
sentences are lawful rests on her view that “profound life experiences still may lie
ahead of someone released from prison at age 66 or 74.” (Id. at p. 22.) Whatever
the merits of this view, the analysis that underlies it is not more “objective,” more
“workable,” or more conducive to drawing a “ ‘clear line’ ” (id. at pp. 20, 23) than
the analysis set forth in our opinion today. Indeed, the Chief Justice’s approach
calls for the very sort of line-drawing she purports to disavow: Under her
approach as under ours, the controlling inquiry is not simply whether defendants’
sentences provide for parole eligibility within their life expectancies, but whether

                                          25
the sentences “impinge on the same substantive concerns that make the imposition
of LWOP on juvenile nonhomicide offenders impermissible under the Eighth
Amendment.” (Ante, at p. 12.)
                                        III.
       After oral argument in this case, the Governor on October 11, 2017, signed
into law Assembly Bill No. 1448 and Senate Bill No. 394. Assembly Bill 1448
codifies the Elderly Parole Program, under which prisoners age 60 or older who
have served at least 25 years in prison are entitled to a parole hearing. (Assem.
Bill No. 1448 (2017–2018 Reg. Sess.) § 3.) Senate Bill 394 extends eligibility for
a youth offender parole hearing after 25 years of incarceration to a person who
was convicted of certain controlling offenses committed before 18 years of age
and sentenced to life without the possibility of parole. (Sen. Bill No. 394 (2017–
2018 Reg. Sess.) § 1.) In addition, upon the passage of Proposition 57 in the
November 2016 elections, the California Department of Corrections and
Rehabilitation (CDCR) issued new regulations governing the ability of inmates to
earn custody credit to advance their parole dates. We vacated submission of this
case and ordered supplemental briefing from the parties on what bearing, if any,
Assembly Bill 1448, Senate Bill 394, or the regulations codified at sections 3043,
3043.2, 3043.3, 3043.4, 3043.5, and 3043.6 of title 15 of the California Code of
Regulations have on the question presented.
       The Chief Justice contends that regardless of whether defendants’ original
sentences are valid, the recent legislation authorizing elderly parole means “both
defendants will have an opportunity for parole at age 60,” and “[a] sentence
offering an opportunity for parole no later than age 60 is not invalid under
Graham.” (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 24–25.) Further, she
asserts, “even without the Elderly Parole Program, Rodriguez may be eligible for
parole when he is 57 years old, simply by earning good-conduct credits” (id. at

                                         26
pp. 24–25), and “Contreras could advance his initial parole date to age 64 through
good conduct” (id. at p. 36). As explained below, we decline to resolve whether
the newly enacted legislation and regulations affect the validity of defendants’
sentences and instead leave these novel issues for the lower courts to address in
the first instance.
                                         A.
       The elderly parole statute provides that when considering the release of an
eligible inmate, the Board of Parole Hearings (Board) “shall give special
consideration to whether age, time served, and diminished physical condition, if
any, have reduced the elderly inmate’s risk for future violence.” (§ 3055,
subd. (c).) A key question is whether an elderly parole hearing offers a juvenile
offender a “meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75, italics added.)
       The legislative history of Assembly Bill 1448 indicates that the legislation’s
main purpose was to curb rising medical costs of the geriatric inmate population
and to provide a “compassionate” release for those elderly individuals. (Assem.
Concurrence in Sen. Amends. to Assem. Bill No. 1448 (2017–2018 Reg. Sess.)
Sept. 11, 2017.) In contrast to the statute authorizing youth offender parole
hearings, the text of the elderly parole statute does not mention youth-related
considerations or rehabilitation. (Compare § 3051, subd. (f)(1) with § 3055.)
       The Attorney General contends that elderly parole hearings are governed by
section 4801, subdivision (c) and are thus required to consider youth-related
factors associated with the controlling offense. Section 4801, subdivision (c) says:
“When a prisoner committed his or her controlling offense, as defined in
subdivision (a) of Section 3051, when he or she was 25 years of age or younger,
the board, in reviewing a prisoner’s suitability for parole pursuant to Section
3041.5, shall give great weight to the diminished culpability of youth as compared

                                         27
to adults, the hallmark features of youth, and any subsequent growth and increased
maturity of the prisoner in accordance with relevant case law.” Noting that the
provisions for parole hearings set forth in section 3041.5 apply to “all hearings for
the purpose of reviewing an inmate’s parole suitability” (§ 3041.5, subd. (a)), the
Attorney General argues that “they necessarily therefore apply to parole
consideration under the Elderly Parole Program.”
       But it is questionable whether the Board is reviewing an inmate’s suitability
for parole “pursuant to Section 3041.5” (§ 4801, subd. (c)) when it conducts an
elderly parole hearing. The elderly parole statute contains a provision that makes
applicable section 3041.5, subdivision (b)(3)’s schedule for a subsequent parole
hearing in the event of a parole denial (§ 3055, subd. (f)) and another provision
stating that “when considering a request for an advance hearing pursuant to
subdivision (d) of Section 3041.5, the board shall consider whether the inmate
meets or will meet the criteria [for the Elderly Parole Program]” (§ 3055,
subd. (d)). These provisions, which appear to treat section 3041.5’s parole
procedures as separate and distinct from those in section 3055, suggest that an
elderly parole hearing is conducted pursuant to section 3055, not pursuant to
section 3041.5.
       The Chief Justice does not endorse the Attorney General’s interpretation of
the statute and instead asserts that “the decision whether to grant elderly parole is
concerned with the same question of public safety that governs conventional
parole hearings.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 25.) At
conventional parole hearings, “ ‘[a]ll relevant, reliable information available to the
panel shall be considered in determining suitability for parole. Such information
shall include the circumstances of the prisoner’s: social history; past and present
mental state; . . . past and present attitude toward the crime; . . . and any other
information which bears on the prisoner’s suitability for release.’ (Cal. Code

                                           28
Regs., tit. 15, § 2281, subd. (b).)” (Id. at p. 26, fn. omitted.) She contends that
“[a]lthough in an elderly parole hearing ‘special consideration’ is given to the
three factors specified in section 3055, subdivision (c), there is no suggestion that
these ‘special’ considerations somehow skew the basic question before the panel.”
(Id. at p. 27.)
       But the Chief Justice’s interpretation is not the only plausible reading of the
elderly parole statute, and we decline to issue a definitive interpretation less than
five months after the statute’s enactment, before any Court of Appeal has filed a
published opinion applying it in the context of juvenile sentencing, and before
CDCR has adopted any implementing regulations. We are not certain, for
example, that the statute would preclude CDCR from adopting regulations that
focus the Elderly Parole Program on identifying those inmates who no longer pose
a risk of future violence primarily because of their age, illness, or other physical
incapacitation, while leaving all other inmates age 60 or older who may be suitable
for parole to the ordinary parole process. Such an interpretation does not appear
foreclosed by the statutory text, and it seems consistent with the Legislature’s
purpose of reducing costs of geriatric care and providing compassionate release
for elderly inmates. Yet it is questionable whether such a parole hearing would
provide juvenile offenders with a “meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75,
italics added.) The record before us contains no information on how the Elderly
Parole Program actually operates or what considerations, apart from the “special
considerations” set forth in the statute (§ 3055, subd. (c)), guide the Board’s
determination of suitability for elderly parole. This information may be developed
on remand.
       The Chief Justice says such development is unnecessary, noting that we
required no similar information before finding the availability of a youth offender

                                          29
parole hearing sufficient to moot the Eighth Amendment claim in Franklin. (Dis.
opn. of Cantil-Sakauye, C. J., post, at pp. 30–31, citing Franklin, supra, 63 Cal.4th
at pp. 284–286.) But Franklin addressed legislation whose explicit and specific
purpose is “to establish a parole eligibility mechanism that provides a person
serving a sentence for crimes that he or she committed as a juvenile the
opportunity to obtain release when he or she has shown that he or she has been
rehabilitated and gained maturity, in accordance with the decision of the California
Supreme Court in [Caballero] and the decisions of the United States Supreme
Court in Graham . . . and Miller . . . . It is the intent of the Legislature to create a
process by which growth and maturity of youthful offenders can be assessed and a
meaningful opportunity for release established.” (Sen. Bill No. 260 (2013–2014
Reg. Sess.) § 1.) As noted, the statute expressly mandates consideration of youth-
related factors in youth offender parole hearings. (§§ 3051, subd. (e), 4801,
subd. (c).) For this reason, and because the statutes contemplate that “juvenile
offenders [must] have an adequate opportunity to make a record of factors,
including youth-related factors, relevant to the eventual parole determination,” we
were assured “at this point” that a juvenile offender eligible for such a hearing has
a meaningful opportunity for release within the meaning of Graham. (Franklin, at
p. 286.) Neither the text nor history of the elderly parole statute contains any
indication that the Legislature intended elderly parole hearings to be responsive to
the Eighth Amendment concerns raised by lengthy juvenile sentences.
       Even assuming that elderly parole hearings consider normal parole factors,
it is not clear that elderly parole eligibility after 44 years in prison would provide
the 16-year-old nonhomicide offenders in this case with the “hope of restoration”
and realistic opportunity to reintegrate into society that Graham requires.
(Graham, supra, 560 U.S. at p. 70.) The Chief Justice notes that Bear Cloud v.
State, supra, 334 P.3d 132 invalidated a 45-year sentence for a 16-year-old

                                           30
nonhomicide offender, but that three other state high courts have held that parole
eligibility at or around age 60 passes constitutional muster. (Dis. opn. of Cantil-
Sakauye, C. J., post, at pp. 33–34.) Among them, only Angel v. Commonwealth
(Va. 2011) 704 S.E.2d 386 (Angel) concluded that a geriatric release program for
inmates who are 60 or older satisfies Graham. The Virginia Supreme Court’s
holding was premised on its understanding that “the factors used in the normal
parole consideration process apply to conditional release decisions under
[Virginia’s geriatric release] statute.” (Angel at p. 402.)
       Notably, in Virginia v. LeBlanc (2017) 582 U.S. __ [137 S.Ct. 1726]
(LeBlanc), the high court considered on habeas review whether Virginia’s geriatric
release program provides a meaningful opportunity for a juvenile nonhomicide
offender to obtain release based on demonstrated maturity and rehabilitation. The
trial court in LeBlanc, relying on Angel, rejected the defendant’s Eighth
Amendment challenge, and the high court held that the trial court’s ruling was not
objectively unreasonable. (LeBlanc, at p. __ [137 S.Ct. at p. 1729.) In so doing,
the high court emphasized that it was applying the deferential standard of review
required by the federal Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) (28 U.S.C. § 2254(d)(1)) and that “ ‘[t]here are reasonable arguments
on both sides.’ ” (LeBlanc, at p. __ [137 S.Ct. at p. 1729].) On one hand, because
Virginia’s geriatric release program considers “normal parole factors,” it “could
allow the Parole Board to order a former juvenile offender’s conditional release in
light of his or her ‘demonstrated maturity and rehabilitation.’ ” (Ibid.) On the
other hand, there were concerns “that the Parole Board’s substantial discretion to
deny geriatric release deprives juvenile nonhomicide offenders a meaningful
opportunity to seek parole and that juveniles cannot seek geriatric release until
they have spent at least four decades in prison.” (Ibid.) The high court thus
recognized there is a reasonable argument that even an elderly parole process that

                                          31
considers normal parole factors could, in practice, fail to provide a meaningful
opportunity for release and that incarcerating a juvenile nonhomicide offender for
40 years or more without parole eligibility is simply too long under Graham.
       Defendants here raise an additional concern: Juvenile offenders for whom
the Elderly Parole Program provides the first opportunity for release will
invariably spend more time in prison before parole eligibility compared to adult
inmates who committed the same crime and served at least 25 years before age 60
— a result at odds with the high court’s “conclusion in Roper v. Simmons, 543
U.S. 551 (2005), that juvenile offenders are generally less culpable than adults
who commit the same crimes.” (Graham, supra, 560 U.S. at p. 86 (conc. opn. of
Roberts, C. J.); see Roper, supra, 543 U.S. at p. 570.) In Graham, the high court
reasoned that “[l]ife without parole is an especially harsh punishment for a
juvenile” because “a juvenile offender will on average serve more years and a
greater percentage of his life in prison than an adult offender.” (Graham, at p. 70.)
Defendants contend the same reasoning applies to a sentence of more than 40
years without parole eligibility. (Id. at p. 71 [“This reality cannot be ignored.”].)
       These issues are novel and substantial, and we leave them for the lower
courts to address in the first instance. Like the high court in LeBlanc, we decline
to resolve in this case whether the availability of an elderly parole hearing at age
60 for a juvenile nonhomicide offender satisfies the Eighth Amendment concerns
set forth in Graham.
                                          B.
       Apart from defendants’ eligibility for elderly parole, the Chief Justice
claims that “simply by maximizing the good-conduct credits that are available” to
them under Proposition 57, Rodriguez can advance his initial parole date to age 57
and Contreras can advance his initial parole date to age 64. (Dis. opn. of Cantil-
Sakauye, C. J., post, at p. 36.) But as with elderly parole, no Court of Appeal has

                                          32
filed a published opinion addressing the relevance of Good Conduct Credit to the
constitutionality of a juvenile sentence, and the regulations, promulgated less than
one year ago, remain in emergency form. (Cal. Code Regs., tit. 15, § 3043.2.) In
addition, the record before us contains no information on how Good Conduct
Credit operates in practice.
       The Chief Justice rests her calculations on defendants’ ability to earn the
maximum amount of Good Conduct Credit, but neither she nor Justice Kriegler
makes any mention of the myriad ways inmates can lose such credit. Good
Conduct Credit is subject to forfeiture upon “a finding of guilt of a serious rule
violation in accordance with section 3323.” (Cal. Code Regs., tit. 15, § 3043.2,
subd. (c).) The activities that can constitute a “serious rule violation” span a broad
range of conduct. (Id., §§ 3315, 3323.) A “credit forfeiture of 61-90 days” is
assessed for, among other violations, “[l]ate return from a temporary community
leave” or “[f]ighting.” (Id., § 3323, subds. (f)(7), (f)(9).) A “credit forfeiture of
31-60 days” is assessed for, among other violations, “damage to . . . state property
valued at less than $400,” “[p]ossession of alcoholic beverages or intoxicating
substances in a community-access facility under the jurisdiction of CDCR,” or
“[g]ambling.” (Id., § 3323, subds. (g)(1), (g)(2), (g)(5).) A “credit forfeiture of 0-
30 days” is assessed for, among other violations, “[m]isuse, alteration,
unauthorized acquisition, or exchange of personal property, state funds, or state
property” or “[h]arassment of another person, group, or entity.” (Id., § 3323,
subds. (h)(4), (h)(11); see also id., § 3315, subd. (a)(3) [listing 27 offenses that
qualify as a “serious rule violation,” including “(G) Possession of five dollars or
more without authorization” and “(H) Acts of . . . disrespect which by reason of
intensity or context create a potential for violence . . . .”].)
       In positing an initial parole date at age 57 for Rodriguez and at age 64 for
Contreras, our dissenting colleagues assume that correctional authorities will not

                                            33
revoke any Good Conduct Credit that defendants earn while incarcerated for 40-
plus years, citing select cases of inmates who have demonstrated good prison
behavior (though none of them served anything close to 40 years). (See dis. opn.
of Kriegler, J., post, at pp. 9–10.) But the record before us contains no
information on how likely it is that an inmate can achieve a spotless prison record
over a span of four or more decades. Nor is it clear that Graham’s requirement of
a “meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation” (id. at p. 75) would be satisfied by a parole eligibility date that is
contingent upon a perfect or near-perfect record in prison. (See Graham, supra,
560 U.S. at p. 70 [“the remote possibility” of release does not satisfy the Eighth
Amendment].) As with elderly parole, we leave these novel issues for the lower
courts to address in the first instance.

                                           IV.
       For the reasons above, we agree with the Court of Appeal that defendants’
sentences violate the Eighth Amendment under the standards articulated in
Graham. We affirm the judgment of the Court of Appeal and remand these
matters for resentencing. The sentencing court is directed to consider, in light of
this opinion, any mitigating circumstances of defendants’ crimes and lives, and the
impact of any new legislation and regulations on appropriate sentencing. The
sentencing court is further directed to impose a time by which defendants may
seek parole, consistent with this opinion.
       Justice Kriegler says this disposition “is likely to leave the trial judge
mystified” because the trial court already considered any mitigating circumstances
of defendants’ crime and lives in imposing their original sentences. (Dis. opn. of
Kriegler, J., post, at p. 3.) But the trial court did not undertake its sentencing
analysis with the benefit of our opinion today. In addition, the trial court appeared
to stray from the fundamental teaching of Graham when it said at Contreras’s

                                           34
sentencing: “So somebody with that kind of psychology is not somebody I feel
confident is going to rehabilitate, change, and become a different person
regardless of his brain development. I think his brain is developed into who he is
and who he was demonstrated on that whole event where he raped those two
girls.” (Cf. dis. opn. of Kriegler, J., post, at p. 5 [asserting that defendants’ crimes
“reveal[] the actions of violent sexual predators, not that of rogue youths
misbehaving on a lark”].)
       The trial court in Graham had similarly concluded that the 16-year-old
defendant, a recidivist felon, was not capable of rehabilitation: “ ‘I don’t see
where I can do anything to help you any further. You’ve evidently decided this is
the direction you’re going to take in life, and it’s unfortunate that you made that
choice. [¶] . . . Given your escalating pattern of criminal conduct, it is apparent to
the Court that you have decided that this is the way you are going to live your life
and that the only thing I can do now is to try and protect the community from your
actions.’ ” (Graham, supra, 560 U.S. at p. 57.) But the key holding of Graham is
that “in light of a juvenile nonhomicide offender’s capacity for change and limited
moral culpability” (id. at p. 74), no sentencing court is permitted to render a
judgment “at the outset” that a juvenile nonhomicide offender is incorrigible (id. at
pp. 73, 75). On remand, the sentencing of each defendant must be guided by the
“central intuition” of the high court’s case law in this area — “that children who
commit even heinous crimes are capable of change.” (Montgomery, supra, 577
U.S. at p. __ [136 S.Ct. at p. 736]; see Miller, supra, 567 U.S. at p. 473 [“none of
what [Graham] said about children . . . is crime-specific”].)
       In so holding, we do not minimize the gravity of defendants’ crimes or their
lasting impact on the victims and their families. No one reading the disturbing
facts of this case could disagree with the trial court that the crimes were “awful
and shocking.” The Court of Appeal was correct to observe that “[w]hatever their

                                           35
final sentences, Rodriguez and Contreras will need to do more than simply bide
their time in prison to demonstrate parole suitability. . . . The record before us
indicates Rodriguez and Contreras have much work ahead of them if they hope to
one day persuade the Board they no longer present a current danger to society and
should be released on parole.”
       Our dissenting colleagues further assert that our decision today provides
“virtually no guidance” (dis. opn. of Cantil-Sakauye, C. J., post, at p. 3) and “not a
whiff of direction” (dis. opn. of Kriegler, J., post, at p. 1) on what length of
sentence below 50 years will satisfy Graham. But in this context, we find it
prudent to follow a “cardinal principle of judicial restraint — if it is not necessary
to decide more, it is necessary not to decide more.” (PDK Laboratories Inc. v.
U.S. Drug Enforcement Admin. (D.C. Cir. 2004) 362 F.3d 786, 799 (conc. opn. of
Roberts, J.).)
       Today’s decision, building on Caballero, elucidates Graham’s applicability
to a term-of-years sentence, and our reasoning will inform the application of
Graham by California courts going forward. Our disposition takes the approach
we took in Caballero, where we unanimously declared the defendant’s 110-years-
to-life sentence unconstitutional and remanded for the sentencing court to
“consider all mitigating circumstances attendant in the juvenile’s crime and
life . . . so that it can impose a time when the juvenile offender will be able to seek
parole from the parole board.” (Caballero, supra, 55 Cal.4th at pp. 268–269; see
id. at p. 273 (conc. opn. of Werdegar, J.).) No member of this court suggested that
we should provide further guidance on what would constitute a lawful sentence.
Instead, the court’s opinion expressly stated that “we will not provide trial courts
with a precise timeframe for setting these future parole hearings in a nonhomicide
case.” (Id. at p. 269.)



                                          36
       As it turns out, our restraint in Caballero proved well-advised. Our opinion
concluded with a footnote “urg[ing] the Legislature to enact legislation
establishing a parole eligibility mechanism that provides a defendant serving a de
facto life sentence without possibility of parole for nonhomicide crimes that he or
she committed as a juvenile with the opportunity to obtain release on a showing of
rehabilitation and maturity.” (Caballero, supra, 55 Cal.4th at p. 269, fn. 5.) The
Legislature responded the following year with Senate Bill No. 260. This
legislation made it unnecessary for us to decide Eighth Amendment challenges to
sentences of 25 years or more for a broad range of juvenile homicide and
nonhomicide offenses; juvenile offenders serving such sentences are now entitled
to a youth offender parole hearing during their 25th year of incarceration. (§ 3051,
subd. (b)(3); see Franklin, supra, 63 Cal.4th at pp. 277–280; cf. id. at pp. 284–286
[leaving undecided whether youth offender parole hearings, “in practice,” will
conform to applicable statutory and constitutional law].) In addition, whereas
Senate Bill No. 260 made youth offender parole hearings available for juveniles
who committed their controlling offense before age 18 (Stats. 2013, ch. 312, § 5),
the Legislature has since amended the age threshold to age 23 (Stats. 2015, ch.
471, § 2) and now to age 25 (Stats. 2017, ch. 684, § 2.5 [eff. Jan. 1, 2018]).
Moreover, the Legislature’s enactment of Senate Bill 394 just a few months ago
extended youth offender parole hearings in the 25th year of incarceration to
juveniles serving an LWOP sentence. (§ 3051, subd. (b)(4).) One Strike
offenders remain ineligible for youth offender parole hearings. (§ 3051, subd.
(h).) But in light of the changing statutory landscape, we see no reason to opine
here on constitutional and statutory issues that may be rendered moot by further
legislative action.
       Finally, we note defendants’ contention that the current treatment of
juvenile One Strike offenders is anomalous given that juveniles convicted of

                                         37
special circumstance murder and sentenced to LWOP are now eligible for parole
during their 25th year in prison. This scheme appears at odds with the high court’s
observation that “defendants who do not kill, intend to kill, or foresee that life will
be taken are categorically less deserving of the most serious forms of punishment
than are murderers. . . . Although an offense like robbery or rape is ‘a serious
crime deserving serious punishment,’ those crimes differ from homicide crimes in
a moral sense.” (Graham, supra, 560 U.S. at p. 69, citations omitted.) In the
death penalty context, the high court has said “there is a distinction between
intentional first-degree murder on the one hand and nonhomicide crimes against
individual persons, even including child rape, on the other. The latter crimes may
be devastating in their harm, as here, but ‘in terms of moral depravity and of the
injury to the person and to the public,’ they cannot be compared to murder in their
‘severity and irrevocability.’ ” (Kennedy v. Louisiana (2008) 554 U.S. 407, 438,
citation omitted.)
       The parties point to no other provision of our Penal Code, and we are aware
of none, that treats a nonhomicide offense more harshly than special circumstance
murder. (Compare § 190.2 [prescribing penalty of death or LWOP for special
circumstance murder] with § 667.61 [prescribing maximum penalty of 25 years to
life or, when the victim is under age 14, LWOP for aggravated rape offenses].)
We are also unaware of any other jurisdiction that punishes juveniles for
aggravated rape offenses more severely than for the most aggravated forms of
murder. Further, we note the concern raised by amicus curiae PJDC that if
defendants had killed their victims after the sexual assaults and had been
sentenced to LWOP, they would have been eligible for a youth offender parole
hearing after 25 years of incarceration. (Cf. Kennedy v. Louisiana, supra, 554
U.S. at p. 445 [“[B]y in effect making the punishment for child rape and murder



                                          38
equivalent, a State that punishes child rape by death may remove a strong
incentive for the rapist not to kill the victim.”].)
       Defendants contend that this treatment of juvenile One Strike offenders
violates principles of equal protection and the Eighth Amendment. There is also a
colorable claim that it constitutes “unusual punishment” within the meaning of
article I, section 17 of the California Constitution. As with the other issues arising
from new legislation, we decline to resolve these contentions here. It suffices to
note, as we did in Caballero, that the current penal scheme for juveniles may
warrant additional legislative attention.




                                            39
                                  CONCLUSION
       We affirm the judgment of the Court of Appeal and remand these matters
for resentencing. The sentencing court is directed to consider, in light of this
opinion, any mitigating circumstances of defendants’ crimes and lives, and the
impact of any new legislation and regulations on appropriate sentencing. The
sentencing court is further directed to impose a time by which defendants may
seek parole, consistent with this opinion.
                                                         LIU, J.

WE CONCUR:

CHIN, J.
CUÉLLAR, J.
KRUGER, J.




                                         40
               DISSENTING OPINION BY CANTIL-SAKAUYE, C. J.


       I respectfully dissent. The majority’s erroneous interpretation and extension of
Graham v. Florida (2010) 560 U.S. 48 (Graham) yield a result the Graham court did not
intend — the categorical condemnation of all sentences in which juvenile offenders
convicted of nonhomicide crimes will serve a term of 50 years or greater. At the same
time, the majority fails to properly account for legislation and regulations that afford
defendants William Rodriguez and Leonel Contreras an initial opportunity for parole no
later than when they reach the age of 60. These measures take defendants’ sentences
outside of Graham’s purview even under the majority’s mistaken approach to that
decision. Defendants’ sentences do not violate the Eighth Amendment to the United
States Constitution, and I would so hold.
       In Graham, supra, 560 U.S. 48, the high court invalidated a particular type of
prison sentence — one of life imprisonment without the possibility of parole (life without
parole) — when imposed upon a juvenile convicted only of a nonhomicide crime or
crimes. The court took great care in describing the type of sentence it considered “cruel
and unusual” under the Eighth Amendment. (U.S. Const., 8th Amend.) The majority in
Graham characterized life without parole as “ ‘the second most severe penalty permitted
by law.’ ” (Graham, at p. 69, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001
(conc. opn. of Kennedy, J.).) A life without parole sentence, the court stressed, “alters
the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most
basic liberties without giving hope of restoration, except perhaps by executive
clemency.” (Graham, at pp. 69-70.) Such a sentence “ ‘means that . . . [the convict] will
remain in prison for the rest of his days.’ ” (Id., at p. 70, quoting Naovarath v. State
(Nev. 1989) 779 P.2d 944, 944.) “Life in prison without the possibility of parole,” the
Graham court emphasized, “gives no chance for fulfillment outside prison walls, no
chance for reconciliation with society, no hope.” (Graham, at p. 79.)
       Today, the majority declares unconstitutional a range of sentences that most
certainly are not the second most severe penalty permitted by law; that do offer hope of
restoration of basic liberties; that do not necessarily mean that defendants will remain in
prison for the rest of their days; and that do give a chance for fulfillment outside prison
walls, do give a chance for reconciliation with society, and do offer hope. In short, the
majority extends Graham to invalidate an array of sentences that are qualitatively
different from the sort of punishment that Graham was concerned with.
       The majority asserts, unconvincingly, that behind Graham’s cautious and
consistent phrasing lies a more far-reaching intent to invalidate all sentences that do not
provide juvenile offenders convicted of nonhomicide crimes with an opportunity for
parole at an age when release would, in the majority’s view, be sufficiently conducive to
their full reintegration into society. This reading of Graham is flawed on several levels.
It is inconsistent with the careful, incremental approach the high court has taken when
addressing categorical Eighth Amendment challenges to sentencing practices. It defies
the Graham court’s articulations of its subject and holding, and represents an
inadequately justified extension of that decision. It departs from this court’s prior
description of Graham as demanding that a juvenile offender convicted of a nonhomicide
crime must receive “ ‘some realistic opportunity to obtain release’ from prison during his
or her expected lifetime.” (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero),
italics added, quoting Graham, supra, 560 U.S. at p. 82.) And it unnecessarily premises a
constitutional rule on the majority’s subjective and speculative views regarding the time
frame necessary to have a meaningful postcustodial life. The result is a dubious judicial

                                              2
incursion into the legislative sphere, pitched at such a high level of abstraction that it
provides sentencing courts with virtually no guidance for determining whether a lengthy
prison sentence of less than 50 years will be held lawful.
       The majority’s rendering of Graham is not only wrong; it is also unnecessary.
The majority’s analysis assumes that defendants will first become eligible for parole at
ages 66 and 74, after serving terms of 50 and 58 years, respectively. That assumption is
incorrect. Both defendants will be eligible for parole no later than age 60 under the
Elderly Parole Program recently codified by the Legislature. (See Pen. Code, § 3055.)1
Defendants may be eligible for parole even sooner due to recently expanded programs for
earning good conduct and other credits. (Cal. Code Regs., tit. 15, §§ 3043.2 [Good
Conduct Credits], 3043.3 [Milestone Completion Credits], 3043.4 [Rehabilitative
Achievement Credits], 3043.5 [Educational Merit Credits].) A sentence that affords a
meaningful opportunity for parole at age 60 or earlier cannot properly be characterized as
a sentence of life without parole or its functional equivalent, even under the majority’s
unwarranted extension of Graham.
       In sum, the majority opinion gives short shrift to the limited nature of the holding
in Graham, to our prior understanding of that decision, and to the steps California has
taken toward ensuring that juvenile offenders convicted of nonhomicide offenses receive
“some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” (Graham, supra, 560 U.S. at p. 75.) And in significantly expanding the
Graham rule, the majority ultimately condemns as unconstitutional sentences that are
materially different from the ones defendants actually will serve. Therefore, I
respectfully dissent.




1      Subsequent statutory references are to the Penal Code except as otherwise
indicated.

                                               3
                       I. FACTUAL AND PROCEDURAL BACKGROUND
       The Court of Appeal offered this recitation of the facts presented at trial regarding
the brutal series of sexual assaults that led to the sentences before us:
       “[Jane] Doe 2, then 15, accompanied [Jane] Doe 1, then 16, and Doe 1’s parents to
a party for one of Doe 1’s relatives. The party was at the relative’s house. At dusk, while
the party was still going on, the girls went for a walk and sat down by a tree in an open
space area. Contreras, then 16, and Rodriguez, then 16, walked past them. Both boys
wore dark clothing with hoods covering their heads. Rodriguez wore a red and black cap,
a dark-colored Padres T-shirt, and a long-sleeve, plaid or checkered jacket with a gray
hood. Contreras wore a long-sleeve, dark-colored, hooded jacket.
       “A short time later, Contreras and Rodriguez tackled the girls from behind.
Contreras tackled Doe 1 and Rodriguez tackled Doe 2. Both boys wore bandanas
covering their noses and mouths. Contreras held a knife to Doe 1’s throat. One of boys
asked for the girls’ cell phones.
       “The boys pulled the girls up and started taking them toward a street. Rodriguez
covered Doe 2’s mouth with his hand as she struggled to get away. Contreras repeatedly
told Doe 1 to tell Doe 2 to ‘shut the fk up.’ The boys forced the girls to walk across
the street, up an embankment, and into a wooded area. As they started going up the
embankment, Doe 2 continued to struggle and threw her weight backward, causing both
her and Rodriguez to stumble. Doe 2 bit Rodriguez’s hand and tried to get away.
However, Doe 1, at Contreras’s direction, told Doe 2 to be quiet and stop resisting.
       “When Doe 2 got up off the ground, Rodriguez tied his bandana around her mouth
and told her he would hurt her if she screamed. He took her to a clearing. Contreras took
Doe 1 to a different location nearby. The area was not lighted and was not visible from
the street.
       “Rodriguez took off Doe 2’s shorts and underwear. He told her to get down. As
she lay on her back, he got on top of her, put his penis in her vagina, and started thrusting

                                              4
in and out. He pulled down the bandana and kissed her, putting his tongue in her mouth.
He told her not to scream or he would hurt Doe 1. He asked her if she liked what he was
doing. She was wearing a purity ring and had never had sexual intercourse before. His
actions were painful and caused her to wince.
       “After what seemed like a long time to Doe 2, Rodriguez made her flip over. As
she lay on her stomach, he put his penis in her anus and started thrusting in and out.
       “As Rodriguez was assaulting Doe 2, Contreras had Doe 1 lay down. He took off
her shorts, underwear, and shoes, had her help him take off her dress, and had her take off
her bra. He touched her breasts and tried to push his penis into her vagina, but his penis
was soft. He asked her whether she was a virgin and she told him she was. He put his
fingers in her vagina for a couple of seconds, which was painful for her. He told her to
keep her legs open and pushed his now erect penis into her, which was also painful for
her. He then started thrusting in and out.
       “After awhile, he took his penis out of her vagina, stood up, told her to suck it, and
warned her he did not want to feel any teeth. He put his penis in her mouth and pushed
her head back and forth. She gagged and threw up. He then pushed his penis back into
her vagina. He told her to keep quiet and keep her legs open. She tried to keep quiet, but
made some noise because she was uncomfortable. He told her to shut up. He kept the
knife in his pocket during the sex acts.
       “Around this time, Rodriguez called over to Contreras and the two boys switched
places. Rodriguez kissed Doe 1 and bit her cheek and neck. He put his penis in her
vagina and thrust in and out. He then put his penis in her mouth and pushed her head
back and forth. She gagged and threw up again. He lay down on the ground, had her get
on top of him, pushed his penis into her anus, and had her “hump” him by moving up and
down. After a couple of minutes, he had her sit back down. He put his penis in her
mouth again and pushed her head back and forth. She gagged and threw up again.



                                             5
       “As Rodriguez was engaging in sex acts with Doe 1, Contreras took off Doe 2’s
dress and had her help him take off her bra. Once all of her clothes were off, he had her
lay on her back. While holding the knife to her neck, he told her to open her legs ‘really
wide.’ He then put his penis into her vagina and started thrusting. The action was
painful to her. He asked whether she was a virgin and she told him she was. He also
asked whether she had a boyfriend and where she went to school. She told him she did
not have a boyfriend and what school she attended.
       “After some period of time, Contreras moved further up on Doe 2. While holding
the knife in his hand, he put his penis in her mouth and told her to suck it. She turned her
head away and told him she could not breathe. He put his penis back in her mouth and
told her to try. She turned her head away again. He changed their positions so he lay on
his back and she was on top of him. He told her to put his penis in her vagina. She told
him she did not know how, so he put it in himself. He told her to jump up and down, but
she did not know what he meant. He thrust up and down while fondling her breasts. His
knife was on the ground nearby. When they were in this position, Contreras’s bandana
slipped and Doe 2 got a good look at his face.
       “At some point, Contreras asked Doe 2, ‘Did [Rodriguez] fk your mouth?’ She
told him no. Rodriguez then brought Doe 1 over to the same place as Doe 2. Once more,
Rodriguez put his penis in Doe 1’s mouth and pushed her head back and forth. Once
more, she threw up. Afterwards, the two boys switched again.
       “Rodriguez had Doe 2 get on her back and he put his penis in her mouth. She
turned her head away and told him she could not breathe, but he put his penis back in her
mouth. While this was occurring, Contreras put his penis in Doe 1’s mouth. He moved
her head back and forth and warned her he did not want to feel any teeth. She gagged yet
again. Neither Contreras nor Rodriguez wore a condom during any of the sex acts.
       “When the boys decided to stop, they had the girls put their clothes back on. As
Doe 2 was getting dressed, Rodriguez kissed Doe 2, touched her legs, put his finger in

                                             6
her vagina, and told her she was beautiful. Before Doe 1 got dressed, Rodriguez also
kissed her and asked her if she liked what had happened. He told her she was beautiful
and that, if they had known each other before, she would have been his girlfriend.
       “Meanwhile, Contreras pulled a bicycle from the bushes. The boys then directed
the girls which way to go and told them not to say anything to anyone. One of the boys
said they would follow the girls home and come after the girls if they ever told anyone.
Contreras also threatened to find and hurt one of Doe 1’s young relatives.
       “The girls walked down the slope and across the street, where they met up with
Doe 1’s parents, who had been looking for them. They got in Doe 1’s parents’ car and
left. Doe 1’s mother asked where they had been and what had happened to them.
       “At first, the girls did not say anything. Doe 2 did not say anything because she
thought the boys were still close by and she just wanted to get away. However, Doe 1’s
mother asked them directly if they had been raped and they acknowledged they had been.
Doe 1’s parents took them back to Doe 1’s relative’s home, where someone called the
police.”
       The case was tried before two juries. One convicted Rodriguez of two counts of
forcible rape (§ 261, subd. (a)(2)), two counts of kidnapping (§ 207, subd. (a)), four
counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by
use of force (§ 286, subd. (c)(2)(A)). The jury also found true allegations that Rodriguez
had committed the sexual assault crimes during a kidnapping and against multiple victims
(§ 667.61, subds. (d)(2) & (e)(4)). The other jury convicted Contreras of seven counts of
forcible rape (§ 261, subd. (a)(2)), conspiracy to commit kidnapping and forcible rape
(§ 182, subd. (a)(1)), rape by foreign object (§ 289, subd. (a)(1)(A)), two counts of
kidnapping (§ 207, subd. (a)), eight counts of forcible oral copulation (§ 288a, subd.
(c)(2)(A)), and two counts of sodomy by use of force (§ 286, subd. (c)(2)(A)). This jury
returned true findings on allegations that Contreras committed the crimes with use of a
knife (§ 12022.3, subd. (a)), as well as other allegations bringing Contreras’s case, like

                                              7
Rodriguez’s, within the purview of the “One Strike” law for sentencing purposes
(§ 667.61, subds. (d)(2), (e)(1), (3), & (4)).
       These convictions and findings meant that under the One Strike law, defendants
faced sentences whereby their first opportunity for parole would not arise until long after
their natural lifespans had elapsed. (See §§ 667.6, subd. (d), 667.61, subd. (i).) At the
time of sentencing, however, the trial court recognized that in Caballero, supra, 55
Cal.4th 262, this court had construed Graham as directing that a juvenile offender
convicted of a nonhomicide crime receive “ ‘some realistic opportunity to obtain release’
from prison during his or her expected lifetime.” (Caballero, supra, 55 Cal.4th at
p. 268.) The court advised Rodriguez that had he been an adult, it would have had “no
problem” sentencing him to the maximum term of 200 years to life. The court observed,
however, that it “couldn’t give [Rodriguez] 75 years to life because that would probably
take him outside of this life expectancy. . . . So probably the most I could give him is 50
to life,” which Rodriguez’s attorney conceded was a lawful sentence under Caballero.
The court imposed this sentence on Rodriguez, sentencing him to two consecutive terms
of 25 years to life on the two forcible rape counts, and running the terms on all other
counts concurrently. With regard to Contreras, the court acknowledged a prospective
statutory sentence of 620 years to life. To comply with Graham, the court imposed a
sentence of 58 years to life. This sentence was comprised of two consecutive terms of 25
years to life on two forcible rape counts and an eight-year term on the knife enhancement,
with all other terms to run concurrently.
                                     II.     DISCUSSION
       As explained below, the majority adopts a faulty, overbroad construction of
Graham, and extends that decision well beyond the boundaries marked by the high court.
And it does so needlessly, because the sentences here are quite different from the ones
condemned by the majority. Defendants will become eligible for parole not at ages 66
and 74, as the majority generally assumes, but no later than age 60. These sentences

                                                 8
comport with the Eighth Amendment even under the majority’s unjustified extrapolation
from Graham, making it unnecessary to announce a general standard in today’s decision.
       A. The Majority Misconstrues Graham
          1. Graham is concerned only with sentences of life without parole and
             functionally equivalent sentences
       In Graham, supra, 560 U.S. 48, the United States Supreme Court considered
whether the Eighth Amendment to the United States Constitution absolutely prohibits the
imposition of a sentence of life without the possibility of parole on a juvenile offender
convicted only of a nonhomicide offense. In resolving this question, the court applied its
“categorical” strain of Eighth Amendment jurisprudence. (See id., at pp. 60-62.) This
approach evaluates whether a particular type of punishment is “cruel and unusual” (U.S.
Const., 8th Amend.) in all of its applications, or is categorically prohibited with regard to
a certain class of offenders. (Graham, at pp. 60-61.) Prior to Graham, the high court had
applied this form of analysis only to sentences of death. (Id., at p. 60.)
       As befits the categorical approach, Graham, supra, 560 U.S. 48, ultimately
invalidated a narrowly defined, specific type of sentence — one that does not afford a
juvenile offender convicted of a nonhomicide crime “some realistic opportunity to obtain
release.” (Id., at p. 82.)2 Again and again in its analysis, the Graham court stressed the
distinctive characteristics of a sentence of life without parole that made it vulnerable to an
Eighth Amendment challenge. The court described life without parole as “ ‘the second


2       The court in Graham, supra, 560 U.S. 48, began its categorical analysis by
considering whether there were “ ‘objective indicia of society’s standards, as expressed in
legislative enactments and state practice’ to determine whether there [was] a national
consensus against the sentencing practice at issue.” (Id., at p. 61; see also id., at pp. 62-
67.) The court acknowledged that a substantial majority of states, and the District of
Columbia, allowed juveniles to be sentenced to life without parole for a nonhomicide
crime. (Id., at p. 62.) The court emphasized, however, that at the time of its decision,
there were only 123 juvenile nonhomicide offenders serving “life without parole”
sentences nationwide, 77 of whom were serving sentences in Florida. (Id., at p. 64.) The
court did not conduct any similar canvass of juvenile nonhomicide offenders serving
lengthy terms other than “life without parole,” or states that authorized such sentences.

                                              9
most severe penalty permitted by law,’ ” and observed that “life without parole sentences
share some characteristics with death sentences that are shared by no other sentences.”
(Id., at p. 69.) A life without parole sentence, the court emphasized, “alters the offender’s
life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties
without giving hope of restoration, except perhaps by executive clemency.” (Id., at pp.
69-70.) Such a sentence “ ‘means that . . . [the convict] will remain in prison for the rest
of his days.’ ” (Id., at p. 70.) “Life in prison without the possibility of parole,” the court
emphasized, “gives no chance for fulfillment outside prison walls, no chance for
reconciliation with society, no hope.” (Id., at p. 79.) Even if the defendant in Graham
were to spend “the next half century attempting to atone for his crimes and learn from his
mistakes,” the court observed, his “sentence guarantees he will die in prison.” (Ibid.)
       Graham, supra, 560 U.S. 48, concluded that for a juvenile offender convicted of a
nonhomicide crime, a sentence that guarantees death in prison was unjustified by any
prevailing penological rationale, be it retribution, deterrence, incapacitation, or
rehabilitation. (Id., at pp. 71-74.) The court thus believed it necessary to draw a “clear
line” that prohibits the imposition of life without parole sentences on juvenile offenders
who commit only nonhomicide offenses. (Id., at p. 74.) It articulated this line as follows:
“[a] State is not required to guarantee eventual freedom to a juvenile offender convicted
of a nonhomicide crime. What the State must do, however, is give defendants like
Graham some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation. It is for the State, in the first instance, to explore the means and
mechanisms for compliance.” (Id., at p. 75.) Later, the court reiterated, “A State need
not guarantee the offender eventual release, but if it imposes a sentence of life it must
provide him or her with some realistic opportunity to obtain release before the end of that
term.” (Id., at p. 82.)
       Graham, supra, 560 U.S. 48, was an extension of the Supreme Court’s prior
Eighth Amendment jurisprudence, but a limited one. The restrained nature of the

                                              10
Graham holding, and the deference it afforded states to “in the first instance . . . explore
the means and mechanisms for compliance” (id., at p. 75), were consistent with the
careful, incremental approach the high court has taken when addressing Eighth
Amendment questions. The court has been properly mindful that it is the legislature, not
the judiciary, that the public anticipates will define the parameters of permissible criminal
sentences. (See Rummel v. Estelle (1980) 445 U.S. 263, 274 [“one could argue without
fear of contradiction by any decision of this Court that for crimes concededly classified
and classifiable as felonies, that is, as punishable by significant terms of imprisonment in
a state penitentiary, the length of the sentence actually imposed is purely a matter of
legislative prerogative”].) We have expressed similar views. (People v. Wingo (1975) 14
Cal.3d 169, 174 [“The doctrine of separation of powers is firmly entrenched in the law of
California, and a court should not lightly encroach on matters which are uniquely in the
domain of the Legislature. Perhaps foremost among these are the definition of crime and
the determination of punishment.”].)
            2. Subsequent judicial application of Graham
         Some courts have regarded the Graham holding as very narrowly circumscribed.
To these courts, Graham’s reach does not extend to aggregate sentences arising out of
convictions for multiple nonhomicide crimes imposed as a specific term of years, or a
specific term of years to life, even if the initial opportunity for parole appears outside of
the juvenile offender’s life expectancy. (E.g., Bunch v. Smith (6th Cir. 2012) 685 F.3d
546, 552; Lucero v. People (Colo. 2017) 394 P.3d 1128, 1133; State v. Brown (La. 2013)
118 So.3d 332, 342; Willbanks v. Dept. of Corrections (Mo. 2017) 522 S.W.3d 238, 246-
247.)3




3       A subset of this line of precedent finds Graham applicable to a term of years
sentence for a single crime, but inapplicable when multiple offenses are involved. (State
ex rel. Morgan v. State (La. 2016) 217 So.3d 266, 271-277.)

                                              11
       Other courts — including our own court — have concluded that a juvenile
offender convicted of a nonhomicide crime or crimes does not have the “realistic
opportunity to obtain release” (Graham, supra, 560 U.S. at p. 82) that Graham requires
when he or she is sentenced to a term of years in which the initial opportunity for parole
plainly arises outside of normal life expectancy, even when multiple convictions are
involved. (Caballero, supra, 55 Cal.4th at p. 268; see also Budder v. Addison (10th Cir.
2017) 851 F.3d 1047, 1059; Moore v. Biter (9th Cir. 2014) 725 F.3d 1184, 1192; Henry
v. State (Fla. 2015) 175 So.3d 675, 679-680, State v. Boston (Nev. 2015) 363 P.3d 453,
458-459.) Like a sentence explicitly imposed as “life without parole,” an aggregate
sentence of a term of years in which the initial opportunity for release certainly will come
only after the inmate’s death — in other words, one that is the functional equivalent of
life without parole — “ ‘means that . . . [the convict] will remain in prison for the rest of
his days.’ ” (Graham, at p. 70.)
       When this court adopted the latter interpretation of Graham, we related our view
of what that decision holds. In Caballero, supra, 55 Cal.4th 262, we concluded that a
sentence of 110 years to life fell within Graham’s strictures. We observed that
“[d]efendant in the present matter will become parole eligible over 100 years from now.
[Citation.] Consequently, he would have no opportunity to ‘demonstrate growth and
maturity’ to try to secure his release, in contravention of Graham’s dictate. [Citations.]
Graham’s analysis does not focus on the precise sentence meted out. Instead, as noted
above, it holds that a state must provide a juvenile offender ‘with some realistic
opportunity to obtain release’ from prison during his or her expected lifetime.” (Id., at
p. 268, italics added.) We later reiterated, “Consistent with the high court’s holding in
Graham [], we conclude that sentencing a juvenile offender for a nonhomicide offense to
a term of years with a parole eligibility date that falls outside the juvenile offender’s
natural life expectancy constitutes cruel and unusual punishment in violation of the
Eighth Amendment.” (Ibid.) Significantly, these descriptions of Graham in Caballero

                                              12
represented a positive articulation of the Supreme Court’s holding, not merely an
application of Graham to a particular sentence that left our view regarding the scope of
that ruling unclear.
        Caballero thus interpreted Graham in a manner comporting with the high court’s
focus and phrasing — unlike the majority here. The language used within Graham itself
establishes, and our precedent has recognized, that the Graham court was concerned with
prohibiting a relatively discrete class of sentences that do not afford a prisoner “ ‘some
realistic opportunity to obtain release’ from prison during his or her expected lifetime”
(Caballero, supra, 55 Cal.4th at p. 268, quoting Graham, supra, 560 U.S. at p. 82).
These, and only these, sentences involve “ ‘the second most severe penalty permitted by
law.’ ” (Graham, at p. 69.) These, and only these, sentences “share some characteristics
with death sentences that are shared by no other sentences.” (Ibid.) And these, and only
these sentences mean that a defendant “ ‘will remain in prison for the rest of his days.’ ”
(Id., at p. 70.)
            3. The majority offers an overbroad construction of Graham
        Compare the careful and consistent language used in Graham with the holding
today. The majority provides that “[a] lawful sentence must recognize ‘a juvenile
nonhomicide offender’s capacity for change and limited moral culpability.’ [Citation.]
A lawful sentence must offer ‘hope of restoration’ [citation], ‘a chance to demonstrate
maturity and reform’ [citation], a ‘chance for fulfillment outside prison walls,’ and a
‘chance for reconciliation with society’ [citation]. A lawful sentence must offer ‘the
opportunity to achieve maturity of judgment and self-recognition of human worth and
potential.’ [Citation.] A lawful sentence must offer the juvenile offender an ‘incentive to




                                             13
become a responsible individual.’ ” (Maj. opn., ante, at p. 17, quoting Graham, supra,
560 U.S. at pp. 69-70, 74, 79.)4
       The majority thus invalidates sentences in which an initial opportunity for parole
(or another possible avenue for release) arises even well within a defendant’s life
expectancy. What Graham, supra, 560 U.S. 48, meant to say, the majority professes —
notwithstanding the limiting language interwoven throughout that opinion — is that a


4       In describing what a lawful sentence entails, the majority offers several quotations
from Graham (maj. opn., ante, at p. 17), but omits accompanying language that the high
court used to frame and limit its holding, some of which appears elsewhere in the
majority opinion. The text below shows how the words and phrases quoted by the
majority in articulating its holding actually appeared within the Graham opinion:
        “A sentence of life imprisonment without parole, however, cannot be justified by
the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By
denying the defendant the right to reenter the community, the State makes an irrevocable
judgment about that person’s value and place in society. This judgment is not
appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited
moral culpability.” (Graham, supra, 560 U.S. at p. 74, italics added.) Here the majority
omits the high court’s constraining language regarding the penalty it was concerned with
— one that “forswears altogether the rehabilitative ideal,” and makes an “irrevocable
judgment” about the offender (ibid.), which the sentences before us do not.
        “The State does not execute the offender sentenced to life without parole, but the
sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the
convict of the most basic liberties without giving hope of restoration, except perhaps by
executive clemency — the remote possibility of which does not mitigate the harshness of
the sentence.” (Graham, supra, 560 U.S. at pp. 69-70, italics added.) Here, the majority
omits Graham’s use of “irrevocable” in describing the forfeiture at issue. To similar
effect, the majority also does not include the fact that the “hope of restoration” Graham
addressed involved only the convict’s “most basic liberties.”
        “Life in prison without the possibility of parole gives no chance for fulfillment
outside prison walls, no chance for reconciliation with society, no hope.” (Graham,
supra, 560 U.S. at p. 79, italics added.) The majority here omits the word “no,” with its
obvious limiting force, notwithstanding the fact that Graham used this word on three
separate occasions.
        “[A] categorical rule gives all juvenile nonhomicide offenders a chance to
demonstrate maturity and reform. The juvenile should not be deprived of the opportunity
to achieve maturity of judgment and self-recognition of human worth and potential.”
(Graham, supra, 560 U.S. at p. 79, italics added.) Here, the majority omits the fact that
the Graham court viewed itself as announcing a “categorical rule.”

                                             14
lawful sentence must provide more than a “meaningful” (id., at p. 75) or “realistic
opportunity to obtain release” (id., at p. 82). According to the majority, the state also
must structure prison sentences to offer an initial opportunity for release at a juncture that
affords sufficient time for the inmate to fully reintegrate into society. Although the
majority declines to explain what constitutes an adequate postcustodial buffer, today’s
ruling makes clear that in the majority’s view, an initial opportunity for release at age 66
or 74 does not provide enough time.
       Today’s ruling thus declares unconstitutional a range of sentences that are
qualitatively different from the sentences of life without parole that Graham addressed.
Neither Rodriguez’s sentence of 50 years to life nor Contreras’s sentence of 58 years to
life represents “ ‘the second most severe penalty permitted by law.’ ” (Graham, supra,
560 U.S. at p. 69.) Neither sentence ensures an “irrevocable” forfeiture of the inmate’s
liberties “without giving hope of restoration.” (Id., at pp. 69-70.) Neither sentence means
that the defendant “ ‘will remain in prison for the rest of his days.’ ” (Id., at p. 70.)
Neither sentence “gives no chance for fulfillment outside prison walls, no chance for
reconciliation with society, no hope.” (Id., at p. 79, italics added.) Neither sentence
“guarantees” the defendant “will die in prison.” (Ibid.)
       On the contrary, the sentences here afford defendants a “meaningful” (Graham,
supra, 560 U.S. at p. 75) and “realistic” (id., at p. 82) opportunity for parole within their
lifetimes. Both defendants will be eligible for parole well within prevailing life
expectancies for people their age. (Nat. Vital Statistics System, U.S. Dept. of Health &
Human Services, United States Life Tables, 2010 (Nov. 6, 2014) p. 9 (National Vital
Statistics System Study) [projecting an average life expectancy of approximately 79 years
for persons aged 15-16 in the United States as of 2010],
<https://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_07.pdf> [as of Feb. 26, 2018].)
Furthermore, extrapolating a median age at death from average life-expectancy figures,
as the majority does (maj. opn., ante, at p. 11), in fact significantly underestimates the

                                              15
likelihood that a person will live to a certain age. (See Nat. Vital Statistics System Study,
at pp. 2, 9-10 [providing data and associated interpretive guidance forecasting that as of
2010, a 15-year-old member of the general public has a greater than 57 percent chance of
surviving to age 80, and a greater than 50 percent chance of surviving to age 82].)
       The majority refuses to consider these or any other empirical data for purposes of
determining when a sentence affords a “meaningful” (Graham, supra, 560 U.S. at p. 75)
or “realistic” (id., at p. 82) opportunity for release. The majority expresses concern that
use of such data would entail a choice between, on the one hand, disadvantaging
members of a cohort that may in the aggregate have a lower life expectancy than that of
the general public; or on the other, improperly relying on race, gender, or other
characteristics in assessing whether a sentence falls sufficiently within a defendant’s life
expectancy. (Maj. opn., ante, at pp. 8-12.)
       There are three responses. First, some reliance on lifespan data is not merely
recognized by our precedent (Caballero, supra, 55 Cal.4th at p. 268), but is unavoidable
when determining whether a sentence affords a “realistic opportunity to obtain release.”
(Graham, supra, 560 U.S. at p. 82, italics added.) In People v. Franklin (2016) 63
Cal.4th 261 (Franklin), for example, this court also considered an Eighth Amendment
challenge to a sentence of 50 years to life imposed on a juvenile, who characterized the
sentence as the functional equivalent of life without parole. We found this challenge
mooted by the Legislature’s then-recent enactment of a system of youth offender parole
hearings (see § 3051) that provides for a parole hearing no later than an eligible
offender’s twenty-fifth year of incarceration. (Franklin, at pp. 279-280.)5 Under this
program, the defendant in Franklin would be eligible for parole at the age of 41 years.
(Id., at p. 279.) A sentence affording a meaningful opportunity for parole at such a
juncture, we concluded, was not the functional equivalent of a sentence of life without

5     Defendants are not eligible for these hearings because they were sentenced under
the One Strike law. (See § 3051, subd. (h).)

                                              16
parole. (Ibid.) To have drawn this conclusion, we must have mapped the defendant’s
sentence against some conception of his life expectancy. And, truth be told, the majority
here must have engaged in comparable benchmarking. In invalidating defendants’
sentences on the ground that they provide insufficient time for reintegration into society
upon early parole, the majority must have some notion of defendants’ life expectancy in
mind. The majority, however, does not disclose this figure.
       Second, although the majority emphasizes its concerns with life expectancies
based on race, sex, and custodial status, juvenile defendants belong to a nearly infinite
number of cohorts. Some of these groups may have longer life expectancies than the
general population, others shorter. To assign more importance to a defendant’s
membership in one cohort than to his or her presence in another would be speculative.
Given that a defendant could be placed within any of many peer groups for purposes of
assessing his or her life expectancy, and given as well the need to use some conception of
life expectancy as a benchmark, reliance on general population life expectancies makes
good sense as providing an administrable rule of decision that is consistent with Graham.
       Third, and most fundamentally, the majority’s concerns derive from its
fundamental mischaracterization of what Graham, supra, 560 U.S. 48, requires. The
majority appears to impose upon the People the burden of showing that defendants do not
belong to any cohort in which the average member lacks a high probability of surviving
until well past the ages of 66 or 74. That is not what Graham holds, and is also
inconsistent with the general principle that the defendant bears a “ ‘considerable burden’
to show a punishment is cruel and unusual.” (People v. Meneses (2011) 193 Cal.App.4th
1087, 1092, quoting People v. Wingo, supra, 14 Cal.3d at p. 174.) As discussed ante,
Graham requires only a “meaningful” (Graham, at p. 75) or “realistic” (id., at p. 82)
opportunity for parole, not a certain one (which would be impossible to guarantee); and it
does not require the very substantial postcustodial period that the majority demands.



                                             17
A sentence that offers an initial parole hearing at age 66 or 74, well within prevailing
public life expectancies, offers the sort of opportunity that Graham contemplates.6
       B. The Majority Provides No Persuasive Rationale for Extending Graham
       The preceding discussion establishes that there is a basic disconnect between
Graham itself, and the majority’s interpretation of that decision. Graham, supra, 560
U.S. 48, condemned one type of sentence; the majority, another altogether. To bridge
this gap, the majority justifies its holding as a logical extension of aspects of Graham’s
reasoning. But the majority’s analysis on these points is unpersuasive.
          1. The majority’s discussion of penological objectives does not support its
             expansion of Graham
       The majority’s principal justification for extending Graham to the sentences here
is the cursory survey it conducts of the four penological rationales for sentencing
practices that Graham considered. (See Graham, supra, 560 U.S. at pp. 71-74.) The
majority perceives from this review inadequate justification for the sentences here.
(Maj. opn., ante, at p. 19.) But the majority’s discussion of these penological objectives
proves both too much and too little.
       The discussion proves too much, in that majority’s vague critiques of the prison
terms imposed on defendants as insufficiently justified by reference to these penological
objectives could be read to forbid any lengthy sentence imposed upon a juvenile offender.
We are told that “[t]he retributive case for a 50-years-to-life sentence, as for [life without
parole], is weakened by the juvenile nonhomicide offender’s ‘age . . . and the nature of
the crime.’ [Citation.] As for deterrence, Graham’s observation that juveniles have
limited ability to consider consequences when making decisions [citation] applies to a
sentence of 50 years to life just as it does to a sentence of [life without parole]. And as


6      The majority expresses concerns about a sentence that affords an opportunity for
release only a day, week, or month before an inmate’s death. (Maj. opn., ante, at p. 17.)
But such inopportune timing may be an issue with any prison sentence, no matter how
long or short it may be.

                                              18
for incapacitation, a judgment that a juvenile offender will be incorrigible for the next 50
years is no less ‘questionable’ than a judgment that the juvenile offender will be
incorrigible ‘forever.’ [Citations.] Finally, as noted, a sentence of 50 years to life
‘cannot be justified by the goal of rehabilitation’ because it offers a juvenile offender
little ‘incentive to become a responsible individual.’ [Citation.]” (Maj. opn., ante, at p.
19.) On each of these points, the majority offers no limiting principle that would
establish why similarly broad criticisms could not be lodged against the sentence we
upheld as lawful in Franklin, supra, 63 Cal.4th at pages 279-280, which afforded an
initial opportunity for parole only after 25 years of incarceration.
       Meanwhile, a more careful analysis establishes that the majority’s survey of
penological objectives proves too little, because the sentences here are better justified by
reference to penological aims than the life without parole sentences addressed in Graham
were. With regard to retribution, the Graham court was concerned with a perceived lack
of proportionality between a nonhomicide crime and imposition of “the second most
severe penalty” on a juvenile. (Graham, supra, 560 U.S. at p. 72; see also id., at p. 71.)
But the proportionality analysis is different here. The sentences here are not as severe as
one that “guarantees” the defendant “will die in prison.” (Id., at p. 79.) A sentence that
withholds any hope of release signifies a final determination that the juvenile will never
again be fit to reenter society. A sentence that affords some hope of parole within
prevailing life expectancies does not send a similar message. Such a sentence manifests a
belief that the offender can change. Consistent with this belief, it offers the prospect of
release. Likewise, a sentence that offers a “meaningful” (id., at p. 75) and “realistic” (id.,
at p. 82) chance of parole within the offender’s lifespan, as the sentences here do, does
not utterly foreswear the rehabilitative ideal, or demand incapacitation forever, regardless
of whether the inmate remains a threat to public safety. (See § 3041, subd. (b)(1)
[describing the standard for a grant of parole].) Instead, such a sentence recognizes that



                                             19
the offender may become an improved person while in prison, which may give him or her
the possibility of release.
       Finally, Graham, supra, 560 U.S. 48, perceived the fourth penological objective it
discussed, deterrence, as an insufficient justification for a sentence of life without parole
for a juvenile offender convicted only of a nonhomicide crime. (Id., at p. 72.) The
Graham court believed that juveniles may not be deterred by the prospect of a lifelong
prison term, particularly given how rarely such a term had been imposed for a
nonhomicide crime. (Ibid.) But Graham did not categorically cast lengthier terms of
incarceration as having no marginal deterrence value for juveniles, relative to shorter
terms. Nor did the court suggest that deterrence, together with other penological
rationales, would not provide an adequate justification for a sentence that does offer an
opportunity for parole within prevailing lifespans. (See ibid. [noting that “any limited
deterrent effect provided by life without parole is not enough to justify the sentence”].)
       In short, a proper review of the penological objectives of sentencing further
establishes that the majority has improperly extended Graham to an array of sentences
that are materially different from the type of sentence condemned by the Supreme Court.
           2. Graham did not endorse an approach as vague as the majority’s
       Lastly, regardless of whether the majority is better described as adopting an
erroneous interpretation of Graham, or as an improper extension of that decision, its
holding fails to heed the Supreme Court’s guidance regarding the need for workable,
objective rules in the Eighth Amendment sphere.
       In appropriate instances, the Supreme Court has drawn clear lines for the
administration of a constitutional rule. (See, e.g., County of Riverside v. McLaughlin
(1991) 500 U.S. 44, 56 [specifying 48 hours as the maximum period to fulfill the judicial
presentment and probable-cause determination requirement of Gerstein v. Pugh (1975)
420 U.S. 103]; cf. Maryland v. Shatzer (2010) 559 U.S. 98, 110.) The court has regarded
such an approach as preferable to a “vague standard” that fails to provide “sufficient

                                              20
guidance,” particularly when adoption of a rule would avoid having “judges in the role of
making legislative judgments.” (County of Riverside v. McLaughlin, at p. 56.) It would
represent a logical application of this general principle to rely on life expectancies in
ascertaining whether a sentence comports with Graham, particularly given the Graham
court’s express avowal that it was drawing a “clear line” with its decision. (Graham,
supra, 560 U.S. at p. 74.)7
       The majority’s approach, in contrast, turns on highly subjective impressions
regarding matters such what adequate postcustodial reintegration into society entails, and
the time necessary to accomplish this assimilation. It thus runs counter to the high
court’s stated view that “ ‘Eighth Amendment judgments should not be, or appear to be,
merely the subjective views of individual Justices; judgment should be informed by
objective factors to the maximum possible extent.’ ” (Rummel v. Estelle, supra, 445 U.S.
at pp. 274-275, quoting Coker v. Georgia (1977) 433 U.S. 584, 592 (plur. opn. of White,
J.).) Today’s decision instead announces precisely the sort of “vague standard” involving
“legislative judgments” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 56)
that the Supreme Court has told us to avoid.
       To repeat, the majority holds that under the Eighth Amendment, “[a] lawful
sentence must recognize ‘a juvenile nonhomicide offender’s capacity for change and
limited moral culpability.’ [Citation.] A lawful sentence must offer ‘hope of restoration’
[citation], ‘a chance to demonstrate maturity and reform’ [citation], a ‘chance for
fulfillment outside prison walls,’ and a ‘chance for reconciliation with society’ [citation].
A lawful sentence must offer ‘the opportunity to achieve maturity of judgment and self-

7      The majority asserts that the reference in Graham, supra, 560 U.S. 48, to drawing
a “clear line” (id., at p. 74) signified only that the court was distinguishing between
juvenile and adult offenders, and between homicide and nonhomicide crimes — not
describing the types of sentences it was prohibiting. (Maj. opn., ante, at pp. 22-23.) But
under the majority’s reading of Graham, which ignores the limiting language interlacing
that decision as a whole, the high court was not drawing a “clear line” at all with its
ruling — contrary to its assertion that it was.

                                              21
recognition of human worth and potential.’ [Citation.] A lawful sentence must offer the
juvenile offender an ‘incentive to become a responsible individual.’ ” (Maj. opn., ante, at
p. 17.) One could regard all of these as worthwhile objectives, and certainly Graham
condemned sentences of life without parole, as imposed on juvenile offenders who
committed only nonhomicide crimes, on grounds that included the perception that they
offered no hope of freedom, no chance to demonstrate that they had matured, and no
opportunity for fulfillment outside prison. But this aspect of Graham simply makes the
Supreme Court’s limiting language, which the majority omits in relating its holding, all
the more important. What the Supreme Court in Graham appreciated — but today’s
decision does not — is the need for coherent rules for application in specific cases.
       The courts of this state, capable though they are, undoubtedly will struggle to
apply standards presented at the majority holding’s high level of abstraction. The
inevitable disagreements will be resolved only by another set of highly subjective
judgments on appeal, and so forth. Even as applied here, the vagueness inherent in the
majority’s approach makes it unclear that defendants’ sentences are unlawful. We know
that the sentences are unconstitutional only because the majority tells us as much. Yet I
anticipate that even the majority would concede that profound life experiences still may
lie ahead of someone released from prison at age 66 or 74. The majority describes these
ages as falling “near the end” of a person’s life, language that suggests that fulfillment at
such a juncture is well-nigh impossible. (Maj. opn., ante, at p. 17.) The millions of
productively employed senior citizens would beg to differ (see State v. Smith (Neb. 2017)
892 N.W.2d 52, 66 [“in today’s society, it is not unusual for people to work well into
their seventies”]), as would the millions more who have retired from the workforce, or
perhaps never entered it, but represent valued contributors to their families and
communities. And, I anticipate, many inmates who are freed from custody at these ages
also would disagree with the assessment that they are “near the end” of their lives. True,
prisoners who are released from prison after serving lengthy terms will need to adjust to

                                             22
their changed circumstances. But substantial fulfillment — whether in the form of
rapprochement or reunions with friends and family, community service, continuing
education, employment, or otherwise — does not necessarily arrive only after many years
outside of custody, particularly for those who already have demonstrated maturity and
the capacity to reform.
       Given the degree of subjectivity entailed in applying the majority’s approach to
sentences of 50 years to life and 58 years to life, how these standards apply to sentences
of less than 50 years to life presents even more difficult questions. (See, e.g., People v.
Bell (2016) 3 Cal.App.5th 865, review granted Jan. 11, 2017, S238339.) Here again, I
doubt this is what Graham, supra, 560 U.S. 48, intended: a series of judicial decisions
upholding or invalidating sentences affording an opportunity for parole at age 65, 64, 63,
62, or younger, based on judges’ subjective and quite likely divergent assessments of
what constitutes adequate reintegration into society, and the time necessary to accomplish
this reentry. The Graham court said it was drawing a “clear line.” (Id., at p. 74.)
I would not obfuscate what the high court sought to clarify.
       The majority opinion asserts that using life expectancy as a measure for the
constitutionality of a sentence under Graham, supra, 560 U.S. 48, implicates as much
vagueness and subjectivity as its own approach does. (Maj. opn., ante, at pp. 24-26.)
This false equivalence once again mischaracterizes Graham. The majority asserts that
both approaches “depend on a considered judgment as to whether the parole eligibility
date of a lengthy sentence offers a juvenile offender a realistic hope of release and a
genuine opportunity to reintegrate into society.” (Id., at p. 25.) But, as the foregoing text
makes clear, only the first half of this rule comes from Graham. The second half (“and a
genuine opportunity to reintegrate into society”) is the majority’s own creation. (Ibid.)
This modification effectively displaces the relatively straightforward and objective
Graham inquiry into whether sentence affords a “meaningful opportunity to obtain



                                             23
release” (Graham, at p. 75), with a far more idiosyncratic inquiry into whether a sentence
offers what the majority considers a sufficiently meaningful period of release.8
       The majority’s revision of the Graham rule also infiltrates its errant assessment
that the “crucial question” in this case is how long a defendant can expect to live after his
or her first opportunity for parole arrives (maj. opn., ante, at p. 25), and its attempt to
characterize the disagreement here as concerned only with the length of this period
(ibid.). The truly crucial question, of course, is what Graham, supra, 560 U.S. 48, holds.
As discussed above, and as recognized in Caballero, the core of the Graham holding is
that a defendant must receive a “meaningful” (id., at p. 75) and “realistic” (id., at p. 82)
opportunity to obtain release. A defendant made eligible for parole at an age within
general population life expectancies receives such an opportunity. Many defendants who
earn parole at such a juncture will have a robust postcustodial period of freedom. Some
will not, as would be true of any sentence. But it is the opportunity for release, not the
precise length of postcustodial period, that lies at the heart of the Graham ruling. The
majority errs in shifting the law toward a different position.
       C. Even Under the Majority’s Approach, the Sentences Here Satisfy Graham
       The majority’s holding is doubly misguided because it presumes that defendants
will not have a “meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation” (Graham, supra, 560 U.S. at p. 75) until they reach the ages of 66 and
74. But this too is wrong. Under the state’s Elderly Parole Program for prison inmates
(§ 3055), both defendants will have an opportunity for parole at age 60. Furthermore,
even without the Elderly Parole Program, Rodriguez may be eligible for parole when he

8      The majority also mischaracterizes this dissent’s critique of the vague and
overbroad nature of its holding as somehow implicitly endorsing the view that a
substantial postcustodial period is constitutionally required under Graham. (Maj. opn.,
ante, at pp. 25-26.) To the contrary, in observing that defendants’ sentences in fact afford
them an opportunity for reintegration into society, this dissent merely explains how the
majority’s analysis is flawed even when taken on its own terms.


                                              24
is 57 years old, simply by earning good-conduct credits. (Cal. Code Regs., tit. 15,
§ 3043.2.) A sentence offering an opportunity for parole no later than age 60 is not
invalid under Graham, even under the majority’s flawed construction of that decision.
          1. The Elderly Parole Program offers defendants a meaningful opportunity
              for parole at age 60
       In 2014, the State of California instituted the Elderly Parole Program in response
to a long-running prison-population lawsuit in federal court (Case No. 3:01-cv-01351-
JST, N.D. Cal.), which now bears the title Brown v. Plata. The program was codified by
the Legislature last year. (See Assem. Bill No. 1448 (2017-2018 Reg. Sess.).) Aside
from certain exceptions not pertinent here, the program is available to any state inmate
who is “60 years of age or older and has served a minimum of 25 years of continuous
incarceration on his or her current sentence.” (§ 3055, subd. (a).)
       Under the Elderly Parole Program, an eligible inmate “shall meet with the [Board
of Parole Hearings] pursuant to subdivision (a) of Section 3041. If [the] inmate is found
suitable for parole under the Elderly Parole Program, the [Board of Parole Hearings] shall
release the individual on parole as provided in Section 3041.” (§ 3055, subd. (e).) The
elderly parole statute also directs that “[w]hen considering the release of an inmate
specified by subdivision (a) pursuant to Section 3041, the [Board of Parole Hearings]
shall give special consideration to whether age, time served, and diminished physical
condition, if any, have reduced the elderly inmate’s risk for future violence.” (§ 3055,
subd. (c).)9
       As reflected in the statutory reference to an inmate’s “risk for future violence”
(§ 3055, subd. (c)), the decision whether to grant elderly parole is concerned with the
same question of public safety that governs conventional parole hearings. (See § 3041,


9      If parole is not granted, the Board of Parole Hearings shall set the time for a
subsequent elderly parole hearing in accordance with general statutory provisions
regarding the setting of next parole hearings. (§ 3041.5, subd. (b)(3).)


                                             25
subd. (b)(1) [“The panel or the board, sitting en banc, shall grant parole to an inmate
unless it determines that the gravity of the current convicted offense or offenses, or the
timing and gravity of current or past convicted offense or offenses, is such that
consideration of the public safety requires a more lengthy period of incarceration for this
individual.”]; Cal. Code Regs., tit. 15, § 2281, subd. (a) [“[r]egardless of the length of
time served, a life prisoner shall be found unsuitable for and denied parole if in the
judgment of the panel the prisoner will pose an unreasonable risk of danger to society if
released from prison”].)10 In making this determination, “[a]ll relevant, reliable
information available to the panel shall be considered in determining suitability for
parole. Such information shall include the circumstances of the prisoner’s: social history;
past and present mental state; . . . past and present attitude toward the crime; . . . and any
other information which bears on the prisoner’s suitability for release.” (Cal. Code
Regs., tit. 15, § 2281, subd. (b).)11




10      This court has explained that “changes in a prisoner’s maturity, understanding, and
mental state” that come with “the passage of time” are “highly probative to the
determination of current dangerousness” in a parole hearing. (In re Lawrence (2008) 44
Cal.4th 1181, 1219-1220.) We also have noted that “[a]t some point . . . when there is
affirmative evidence, based upon the prisoner’s subsequent behavior and current mental
state, that the prisoner, if released, would not currently be dangerous, his or her past
offense may no longer realistically constitute a reliable or accurate indicator of the
prisoner’s current dangerousness.” (Id., at p. 1219.)

11      Specific circumstances tending to show suitability for parole include “reasonably
stable relationships with others” (Cal. Code Regs., tit. 15, § 2281, subd. (d)(2)); “[s]igns
of [r]emorse,” including “indications that [the inmate] understands the nature and
magnitude of the offense” (id., subd. (d)(3)); the “[m]otivation for [the] [c]rime” (id.,
subd. (d)(4)); whether “[t]he prisoner’s present age reduces the probability of recidivism”
(id., subd. (d)(7)); the fact that “[t]he prisoner has made realistic plans for release or has
developed marketable skills that can be put to use upon release” (id., subd. (d)(8)); and
whether the inmate’s “[i]nstitutional activities indicate an enhanced ability to function
within the law upon release” (id., subd. (d)(9)).


                                              26
       Although in an elderly parole hearing “special consideration” is given to the three
factors specified in section 3055, subdivision (c), there is no suggestion that these
“special” considerations somehow skew the basic question before the panel. In other
words, there is no indication that within the elderly parole process, an inmate for whom
“consideration of the public safety” does not require “a more lengthy period of
incarceration” (§ 3041, subd. (b)(1)) would nevertheless be denied parole because he or
she is too healthy or robust. On the contrary, the statutory reference to “special
consideration” being given to “time served” in Elderly Parole Program proceedings
corroborates that these hearings are to take into account the enhanced maturity that may
come from time in custody, along with all other relevant facts. (§ 3055, subd. (c).)12
       The Elderly Parole Program thus offers a meaningful vehicle for juvenile
offenders who have been sentenced to lengthy terms to secure their release at age 60.
Inexplicably, even though we requested and received supplemental briefing on this
program, the majority declines to address its impact on defendants’ Eighth Amendment
claims. The majority instead remands the matter for the sentencing court and the parties
to develop a record “on how the Elderly Parole Program actually operates,” along with
other matters. (Maj. opn., ante, at p. 29.) This remand is both regrettable and wholly
unnecessary.
       The majority’s rationale for remanding the matter is not entirely clear. Defendants
express concerns that in practice, the Elderly Parole Program may not give “great weight
to the diminished culpability of youth as compared to adults, the hallmark features of
youth, and any subsequent growth and increased maturity of the prisoner in accordance

12      The majority asserts that this “is not the only plausible reading of the elderly
parole statute,” and “decline[s] to issue a definitive interpretation less than five months
after the statute’s enactment.” (Maj. opn., ante, at p. 29.) But as Justice Kriegler
observes (dis. opn. of Kriegler, J., post, at p. 7), it is our job as judges to interpret the law.
This responsibility does not depend on whether the law is of ancient vintage, or newly
enacted.


                                               27
with relevant case law.” (§ 4801, subd. (c).) But as noted, “[a]ll relevant, reliable
information” (Cal. Code Regs., tit. 15, § 2281, subd. (b)) is to be considered in a parole
hearing, including an elderly parole hearing. There is no reason to believe that salient
facts regarding the diminished culpability of juveniles, hallmark features of youth, and an
inmate’s subsequent growth and increased maturity, where pertinent, are somehow
excluded from consideration in an elderly parole hearing, or given short shrift. Unless the
prospect of parole at age 60 comes too late to satisfy the Eighth Amendment — a point
discussed below — the Constitution requires no more.13




13      The ruling in Graham, supra, 560 U.S. 48 cannot reasonably be understood as
formalistically demanding that state parole laws be rewritten to explicitly identify a
juvenile offender’s youth at the time of the crime of commitment, and related
considerations, as factors to be accorded weight in the parole decision. Indeed, several of
the statutes that the majority points toward as adequate responses to Graham (maj. opn.,
ante, at pp. 20-21) lack such language.
        Moreover, the high court’s subsequent case law is inconsistent with any such
view. In Virginia v. LeBlanc (2017) 582 U.S. ___ [137 S.Ct. 1726] (LeBlanc), discussed
in greater detail post, the high court regarded a Virginia geriatric parole program’s
application of “ normal parole factors ” as tending to show that the program represented
an adequate avenue for release under Graham. (Id., at p. ___ [137 S.Ct. at p. 1729].)
Similarly, in Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718], the United
States Supreme Court drew attention to Wyoming’s parole statute (Wyo. Stat. Ann. § 6–
10–301(c)), which provides juvenile offenders sentenced to life without parole with an
opportunity for parole after 25 years of incarceration. The high court cast the statute as
an adequate postconviction remedy for a violation of Miller v. Alabama (2012) 567 U.S.
460, 470 (Miller), which forbade mandatory sentences of life without parole on juveniles
convicted of homicide crimes. (Montgomery v. Louisiana, 577 U.S. at p. ___ [136 S.Ct.
at p. 736].) The Wyoming statute does not explicitly provide for any special
consideration to be given to the hallmark features of youth in connection with the parole
decision. Nor do the Wyoming Board of Parole’s policies and procedures, which provide
only that “[p]arole may be granted to an eligible inmate at the sole discretion of the Board
when in the opinion of the Board there is a reasonable probability that an inmate of a
correctional facility can be released without a detriment to the community or
himself/herself.” (Wyoming Board of Parole, Policy and Procedure Manual (2018)
p. 36.)


                                             28
       Nor is a remand necessary for any other reason. Again, the majority seeks to
develop a record concerning “how the Elderly Parole Program actually operates.”
(Maj. opn., ante, at p. 29.) Yet there is nothing in the record to suggest that elderly parole
hearings function differently from how they have been described above.14 Even
Contreras, in his supplemental brief, acknowledges that parole decisions under the
Elderly Parole Program are based on an assessment of whether the inmate’s release
would threaten public safety. Likewise, in a filing with the federal court overseeing the
Brown v. Plata litigation, the State has explained that in an elderly parole hearing, the
Board of Parole Hearings “will give special consideration to eligible inmates’ advanced
age, long-term confinement, and diminished physical condition, if any. The board will
also consider all other relevant information when determining whether or not there is a
reasonable likelihood that consideration of the public and victim’s safety does not
require the additional period of incarceration of the inmate.” (Board of Parole Hearings,
Elderly Parole Program (June 16, 2014) p. 1,
<https://www.cdcr.ca.gov/BOPH/docs/Policy/Elderly_Parole_Program_Overview.pdf>
[as of Feb. 26, 2018], italics added.) A remand order should be based on something more
substantive than an inchoate concern that a duly enacted government program isn’t what
the relevant statutes and regulations say it is, and what the parties tell us it is.
       Similarly, the majority speculates that the California Department of Corrections
and Rehabilitation someday might adopt “regulations that focus the Elderly Parole
Program on identifying those inmates who no longer pose a risk of future violence
primarily because of their age, illness, or other physical incapacitation, while leaving all
other inmates age 60 or older who may be suitable for parole to the ordinary parole


14     Nor does the majority specify with any precision the additional facts that the
parties are supposed to develop on remand, to guide any future assessment whether the
Elderly Parole Program adequately addresses the constitutional flaw perceived in
defendants’ sentences.


                                               29
process.” (Maj. opn., ante, at p. 29.) But this a strawperson argument, for no such
regulations exist, or are on the horizon. Although one can always conjure up what-if
scenarios about future changes in the law, such conjecture does not provide a basis for
ignoring our responsibility to interpret the law as it presently stands.
       In fact, we have declined to indulge this sort of speculation under similar
circumstances. In Franklin, supra, 63 Cal.4th 261, an amicus curiae asserted that the
youth offender parole hearing program (§ 3051) would not operate in practice as the
governing statutes said it would, and therefore would not provide the defendant and those
similarly situated with a meaningful opportunity for release. (Franklin, at pp. 284-285.)
Unlike here, however, we did not treat such a possibility as providing a basis to decline to
apply a statute as written. Instead, in concluding that the youth offender parole hearing
program mooted the defendant’s Eighth Amendment challenge, we noted the “absence of
any concrete controversy in this case concerning” the actual functioning of the program.
(Id., at p. 286.)
       The majority claims that the situation in Franklin differed from the one here in
that the “explicit and specific purpose” of the statute that created the youth offender
parole hearing program at issue in Franklin was to provide an early opportunity for
juvenile offenders to seek parole. (Maj. opn., ante, at p. 30.) Here, by comparison,
“[n]either the text nor history of the elderly parole statute contains any indication that the
Legislature intended elderly parole hearings to be responsive to the Eighth Amendment
concerns raised by lengthy juvenile sentences.” (Ibid.) But this purported distinction,
which says nothing about how the Elderly Parole Program actually functions, does not
provide a basis to avoid our duty to construe the law.15 If the majority takes the view that


15     That the Elderly Parole Program originally may have been developed to
ameliorate crowded prison conditions does not connote that it fails to provide a
meaningful opportunity for parole. As discussed above, the pertinent statutes and
regulations establish that the program provides such an opportunity, and there is no
contrary indication. (See also Cal. Dept. of Corrections and Rehabilitation, December

                                              30
the Elderly Parole Program does not provide juvenile offenders with a “meaningful
opportunity to obtain release” under Graham, supra, 560 U.S. at page 75, it should
simply say so, and explain why, rather than engage in statutory interpretation in order to
avoid statutory interpretation.16

          2. A sentence that provides a juvenile offender convicted of a nonhomicide
             crime a meaningful opportunity for release at age 60 is constitutional
             under Graham
       The majority’s decision to remand this matter means that it does not consider
whether Graham prohibits a sentence that offers an opportunity for parole no later than


15, 2017 Update to the Three-Judge Court (Dec. 15, 2017) p. 5 [reflecting that inmates
received parole in more than 25 percent of all elderly parole hearings]
<https://www.cdcr.ca.gov/News/docs/3JP-Dec-2017.pdf> [as of Feb. 26, 2018].)
Furthermore, in codifying the program, the Legislature had in mind more than merely
prison headcounts and related expenses. Repeatedly, legislative analyses of the measure
enacting the program referenced the fact that inmates eligible for elderly parole pose less
of a threat to public safety than other inmates if released. (See, e.g., Assem. Conc. Sen.
Amends. to Assem. Bill No. 1448 (2017-2018 Reg. Sess.) as amended Sept. 6, 2017, p. 5
[noting the lower recidivism rate of inmates released from prison at ages 60 and older];
Assem. Com. on Appropriations, May 15, 2017 Analysis of Assem. Bill No. 1448 (2017-
2018 Reg. Sess.) as amended Mar. 28, 2017, p. 1 [same].)

16       Here, the majority tries to synchronize its holding with that in Caballero, supra,
55 Cal.4th 262, by identifying a similarity in style, if not substance. The majority states
that in Caballero, “[n]o member of this court suggested that we should provide further
guidance on what would constitute a lawful sentence.” (Maj. opn., ante, at p. 36.) That
is because the court provided sufficient guidance within the Caballero majority opinion
itself, in its description of Graham’s holding and its relationship to life expectancy.
         The majority also claims that its approach reflects “ ‘judicial restraint.’ ” (Maj.
opn., ante, at p. 36.) Coming as it does within an opinion that dubiously extends Graham
to new frontiers, this is an unwarranted assertion. Notably, shortly after claiming to
exercise restraint, the majority unnecessarily opines on the supposedly “anomalous”
nature of the parole status of One Strike offenders in light of recent changes in the law.
(Id., at p. 37.) This comment is hardly an exercise of restraint, suggesting instead a view
toward the merits of an equal protection challenge to the sentences here — an issue that
lies beyond the scope of review in this case.



                                            31
age 60. I would address this question, and conclude that it does not. As explained below,
even under the majority’s view that a sentence that affords an initial opportunity for
parole at the age of 66 or 74 is unlikely to provide a juvenile offender with a sufficient
period to adequately reintegrate into society, and is therefore unconstitutional (maj. opn.,
ante, at pp. 17-18), the same cannot be said of a sentence that affords an opportunity for
parole at age 60.17
       A sentence affording an opportunity for parole at age 60 offers a juvenile offender
a substantial likelihood of spending not just a few, but many productive years outside of
custody, if he or she demonstrates sufficient maturity to secure parole. During this time,
a juvenile offender who has been released on parole because his or her personal
development confirmed Graham’s intuitions can participate in the workforce,18 develop



17     It is true that a juvenile offender whose first opportunity for parole comes through
an elderly parole hearing may serve a longer term before being eligible for a parole
hearing than an adult offender who committed the same crime, and received the same
sentence, would serve. But — even putting aside the fact that a juvenile offender may be
in a better position than an adult offender who committed the same offense to secure
elderly parole — no theory of the Eighth Amendment demands that, regardless of the
length of a juvenile’s sentence (be it one year, ten years, or more), he or she must serve a
shorter term than a similarly situated adult defendant, or an equivalent term. The concern
expressed in Graham, supra, 560 U.S. at page 70, about life without the possibility of
parole representing an “especially harsh punishment for a juvenile” because he or she
would “on average serve more years and a greater percentage of his life in prison than an
adult offender” represented an additional reason to condemn life without parole
sentences, in particular — not a more far-reaching impeachment of sentencing practices
generally.

18      According to the Bureau of Labor Statistics, in 2017 there were 10,930,000 people
in the United States workforce between the ages of 60 and 64, representing more than
half of the entire civilian noninstitutional population cohort within this age range.
(Bureau of Labor Statistics, U.S. Dept. Labor, Labor Force Statistics from the Current
Population Survey, Employment status of the civilian noninstitutional population by age,
sex, and race (Jan. 19, 2018) <https://www.bls.gov/cps/cpsaat03.htm> [as of Feb. 26,
2018].)


                                             32
interpersonal relationships, and otherwise seek and obtain the degree of personal
fulfillment contemplated by the majority.
       Indeed, many of the majority opinion’s arguments for invalidating sentences that
afford an initial opportunity for parole at ages 66 and 74 lose their force, or cut in the
opposite direction, when applied to sentences that afford an initial opportunity for parole
at age 60. For example, the majority opinion relies on the fact that all state high courts to
have considered sentences of 50 years to life or longer, when imposed on juvenile
offenders convicted of nonhomicide crimes, have struck those sentences as
unconstitutional. (Maj. opn., ante, at p. 20.)19 But the balance of the case law from even
this highly refined subset of courts shifts when what is being considered is a sentence that
affords an opportunity for parole at age 60. The weight of authority regards such a
sentence as passing muster under Graham. (See State v. Smith, supra, 892 N.W.2d at pp.

19      I recognize the existence of these decisions regarding lengthy sentences that afford
a juvenile offender an initial opportunity for release in his or her mid-to-late 60s, or later,
as infirm under either Graham or Miller. (Maj. opn., ante, at p. 20 [listing cases].) The
majority also recognizes contrary precedent, however — such as that of the federal court
of appeals in U.S. v. Mathurin (11th Cir. 2017) 868 F.3d 921, 934-935 (Mathurin), which
held that a sentence affording an initial opportunity for parole at age 67 was not
prohibited by Graham. In addition, intermediate appellate courts in other states have
regarded sentences affording an opportunity for parole in a juvenile offender’s mid- to-
late 60s, or which involved a term of 50 years, as lawful under Graham or Miller,
depending on the offense involved. (See People v. Lehmkuhl (Colo.Ct.App. 2013) 369
P.3d 635, 637 [sentence offering initial possibility of parole at age 67 not invalid under
Graham, given the defendant’s life expectancy]; People v. Jackson (Ill.Ct.App. 2016) 65
N.E.3d 864, 875-876 [50-year sentence not a de facto life sentence under Miller];
McCullough v. State (Md.Ct.Spec.App. 2017) 168 A.3d 1045, 1069, cert. granted (Md.
2017) 171 A.3d 612 [regarding a sentence offering an opportunity for parole at 67 as
lawful under Graham]; but see State v. Buffer (Ill.Ct.App. 2017) 75 N.E.3d 470, 482
[sentence offering first possibility of release at age 66 a de facto life sentence].)
Moreover, some state supreme courts that have found sentences of shortly less than 50
years to life to be valid under Graham or Miller have not ruled on whether a sentence of
50 years to life or 58 years to life would be invalid under the high court’s rulings. (E.g.,
State v. Smith, supra, 892 N.W.2d at pp. 64-66; State v. Charles (S.D. 2017) 892 N.W.2d
915, 921.)


                                              33
64-66 [holding that a nonhomicide sentence affording an opportunity for release at 62
comports with Graham]; Angel v. Commonwealth (Va. 2011) 704 S.E.2d 386, 401-402
[rejecting an Eighth Amendment claim in light of a state geriatric release program
affording an opportunity for release at 60, where “the factors used in the normal parole
consideration process apply to conditional release decisions under [the] statute”]; cf. State
v. Charles, supra, 892 N.W.2d at p. 921 [finding a sentence lawful under Miller, noting
that “[b]ecause [defendant] has the opportunity for release at age 60, his sentence does
not ‘guarantee[] he will die in prison without any meaningful opportunity to obtain
release’ ”]; but see Bear Cloud v. State (Wyo. 2014) 334 P.3d 132, 147 [regarding a 45-
year sentence with parole eligibility at age 61 as subject to Miller].)
       Recognizing the lack of authority for its position, the majority searches for support
from an unlikely source: LeBlanc, supra, 582 U.S. ___ [137 S.Ct. 1726], a recent high
court decision that denied habeas corpus relief under circumstances similar to those
present here. The court in LeBlanc determined that lower federal courts had overstepped
their authority under the federal Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) (28 U.S.C. § 2254(d)(1)) in granting habeas corpus relief to a petitioner who
claimed that his sentence, which offered an opportunity for geriatric parole at age 60,
violated Graham, supra, 560 U.S. 48. The Supreme Court stated that it was expressing
“ ‘no view on the merits of the underlying’ Eighth Amendment claim,” but concluded
that a Virginia state court’s determination that the inmate’s sentence comported with
Graham was not “objectively unreasonable in light of this Court’s current case law.”
(LeBlanc, at p. ___ [137 S.Ct. at p. 1729].)
       The court in LeBlanc, supra, 582 U.S. ___ [137 S.Ct. 1726] also noted that
“ ‘[p]erhaps the logical next step from’ Graham would be to hold that a geriatric release
program does not satisfy the Eighth Amendment, but ‘perhaps not.’ ” [Citation.] (Id., at
p. ___ [137 S.Ct. at p. 1729].) The court observed that “ ‘[T]here are reasonable
arguments on both sides.’ [Citation.]” (Ibid.) With respect to the state, these arguments

                                               34
included the fact that “the geriatric release program employed normal parole factors,”
consideration of which “could allow the Parole Board to order a former juvenile
offender’s conditional release in light of his or her ‘demonstrated maturity and
rehabilitation.’ ” (Ibid.) With respect to the habeas corpus petitioner, the arguments to
the contrary included “the contentions that the Parole Board’s substantial discretion to
deny geriatric release deprives juvenile nonhomicide offenders a meaningful opportunity
to seek parole and that juveniles cannot seek geriatric release until they have spent at
least four decades in prison.” (Ibid.)
       Properly understood, LeBlanc, supra, 582 U.S. ___ [137 S.Ct. 1726] undermines
the majority’s position. First, the high court’s analysis further confirms that the
employment of “ normal parole factors ” in the parole process (id., at p. ___ [137 S.Ct. at
p. 1729]), as the Elderly Parole Program does, affords a juvenile offender a “meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.”
(Graham, supra, 560 U.S. at p. 75.) Second, LeBlanc perceived any invalidation of a
sentence such as the one imposed upon the habeas corpus petitioner before it as a
potential “ ‘next step’ ” from Graham — but not compelled by Graham itself. (LeBlanc,
at p. ___ [137 S.Ct. at p. 1729], italics added.) Our job is not to anticipate the infinite
array of possible next steps that the Supreme Court may take that would break new
ground in the law, but to apply the law as it stands. Third, to the extent that the court
identified “ ‘reasonable arguments’ ” suggesting that the sentence before it might be
subject to close review as a “ ‘next step’ ” from Graham, this discussion was dicta,20 as
underscored by the LeBlanc court’s reminder that it was expressing no view on the merits
of the issue. (Ibid.) Fourth, and finally, the LeBlanc court’s determination that the


20     When a federal court reviews a state court judgment under AEDPA, what is
decisive is whether there are reasonable arguments in support of the state court’s
application of Supreme Court holdings, not whether contrary arguments may exist. (See
White v. Woodall (2014) 572 U.S. ___, ___ [134 S.Ct. 1697, 1702].)


                                              35
procedural posture of that case meant that there was no need for it to resolve the
substantive merits of the habeas corpus petitioner’s Eighth Amendment claim provides
no support for this court avoiding its own responsibility to decide the Eighth Amendment
issue before it.
           3. Defendants’ eligibility for conduct credits further establishes that their
              sentences are lawful
       The majority also refuses to discuss the impact that conduct credits will have on
defendants’ sentences. (Maj. opn., ante, at pp. 32-33.) In fact, 60 represents the latest
age at which defendants will become eligible for parole. Rodriguez has it wholly within
his power to advance his parole hearing to age 57 simply by maximizing the good-
conduct credits that are available to him under state law. Contreras could advance his
initial parole date to age 64 through good conduct. (See Cal. Code Regs., tit. 15,
§ 3043.2.) Both defendants could receive even earlier parole hearings by earning other
types of conduct credits.21 Although the majority declines to acknowledge the impact of
any of these programs, the availability of these credits provides an additional,
independent basis for concluding that defendants are not serving unlawful sentences.
       In considering whether a juvenile offender is serving a life sentence under
Graham, it is appropriate to assume that the juvenile will maximize available good-

21       I agree with the majority that the parties have not developed a record that would
allow to us precisely predict whether or to what extent defendants will be able to take
advantage of the programs that generate Milestone Completion Credits (Cal. Code Regs.,
tit. 15, § 3043.3), Rehabilitative Achievement Credits (id., § 3043.4), and Educational
Merit Credits (id., § 3043.5). If the availability of credits under these programs were
dispositive of the constitutional question, a remand might be warranted. But it is not.
         These regulations, as well as title 15, section 3043.2 of the California Code of
Regulations, have been promulgated as emergency regulations by the Department of
Corrections and Rehabilitation to implement Proposition 57 (as approved by voters, Gen.
Elec. (Nov. 8, 2016)), The Public Safety and Rehabilitation Act of 2016. (See Cal.
Const., art. I, § 32, subds. (a)(2), (b); Gov. Code, § 11346.1 [describing emergency
regulations and the process through which they are adopted].) Formal rulemaking is in
progress to replace these emergency measures with permanent regulations with similar
terms. (Cal. Reg. Notice Register 2017, No. 28-Z, p. 1037.)

                                             36
conduct credits. After all, good conduct in prison merely substantiates Graham’s
intuitions regarding the possibility of maturation and redemption. In Mathurin, supra,
868 F.3d 921, for example, the court described as an “important additional factor that is
absolutely pivotal to [the] inquiry” into the lawfulness of a sentence under Graham the
fact that the defendant could “shorten his sentence by earning good-time credit.” (Id., at
p. 934.) The court in Mathurin acknowledged that “[i]t is true that [d]efendant may not
receive all of the [available] good-time credit if he misbehaves and thereby forfeits some
of that credit.” (Id., at p. 935.) That fact notwithstanding, the court determined that it
was proper to take the credits into account because “it is totally within [d]efendant’s own
power to shorten the sentence imposed.” (Ibid.) Furthermore, the court stressed that
“good-time credits provide a potent rehabilitative incentive for juvenile offenders subject
to lengthy sentences, which, according to the Supreme Court’s rationale in Graham is an
important objective. . . . Similar to parole, the ability to earn good-time credits . . . [gives]
the juvenile offender a reason to pursue and exhibit ‘maturity and rehabilitation.’ ” (Id.,
at p. 935, quoting Graham, supra, 560 U.S. at p. 75.) Consistent with Mathurin, other
courts have similarly factored an assumption of maximized good-conduct credits into an
assessment of a sentence’s length, for purposes of determining whether the sentence
comports with Graham. (E.g., State v. Smith, supra, 892 N.W.2d at p. 974; People v.
Evans (Ill.Ct.App. 2017) 86 N.E.3d 1054, 1057; see also Steilman v. Michael (Mont.
2017) 407 P.3d 313 [taking good-time credits into account in concluding that a sentence
imposed upon a juvenile for a homicide crime did not violate Miller]; cf. U.S. v. Tocco
(2d Cir. 1998) 135 F.3d 116, 132 [taking maximized good-conduct credits into account in
determining whether a sentence represented a life term under the 18 U.S.C. § 34]; but see
Johnson v. State (Fla. 2017) 215 So.3d 1237, 1242 [declining to consider the sentence-
reducing effect of “gain time” in connection with a Graham claim].)
       I too would take the availability of good-conduct credits into account in
determining whether defendants’ sentences violate the Eighth Amendment. Maximizing

                                               37
these credits, by itself, would not advance Contreras’s initial parole hearing before age 60,
but it would make Rodriguez eligible for parole at age 57. No plausible argument exists
that such a sentence is tantamount to a life term, or would offer an inadequate time for
reconciliation with society under the majority’s reasoning. And although good-conduct
credits, on their own, would not advance Contreras’s first opportunity for parole before
the time of his initial elderly parole hearing at age 60, the majority has not adequately
justified its failure to give effect to that recent legislation, nor has it explained how its
reasoning would apply to a sentence that affords a juvenile offender the possibility of
parole at age 64.
                                     III.    CONCLUSION
       Today’s decision opens the door to ill-advised and ill-informed incursions into
sentencing questions that have, to this point, properly been understood as the
Legislature’s domain. Had the Supreme Court in Graham directed this type of judicial
intervention, that would be one thing. But it did not, and the majority errs in expanding
Graham well beyond the more limited and more reasonable boundaries marked by the
high court. Moreover, the decision today does not even resolve the lawfulness of the
sentences that defendants actually will serve. I would not remand this matter for the
resolution of phantom issues of fact, or to punt the legal issues involved to other courts.
The victims of brutal and senseless crimes such as those committed by defendants
deserve better; so too do the trial courts of this state, the Legislature, and defendants
themselves. Therefore, I respectfully dissent.
                                                              CANTIL-SAKAUYE, C. J.
WE CONCUR:

CORRIGAN, J.
KRIEGLER, J.*
______________________
 Associate Justice of the Court of Appeal, Second Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6, of the California
Constitution.


                                               38
                      DISSENTING OPINION BY KRIEGLER, J.


         A trial court may reasonably expect that a reviewing court will (1) not direct it to
hold a hearing and make findings it has already made, and (2) provide some guidance
explaining how the trial court can avoid error upon remand. The disposition in this case
requires the trial court to consider issues it has already ruled on, and at the same time,
provides not a whiff of direction on how the lower court is expected to cure the
purported error. I respectfully dissent.
         The dissent of the Chief Justice, which I join without reservation, correctly
analyzes whether the sentences imposed on defendants Lionel Contreras and William
Steven Rodriguez violate the Eighth Amendment’s prohibition on cruel and unusual
punishment as interpreted in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) and
Graham v. Florida (2010) 560 U.S. 48 (Graham). I write separately on three points.
First, the factual issues on which the remand is based (consideration of mitigating
factors in the crimes or defendants’ lives) have already been resolved by the trial court,
and remand for those purposes is a futile act. Second, the alternative grounds for
remand—to create a factual record regarding the operation of the recently enacted
Elderly Parole Program (Pen. Code, § 3055)1 and the 2017 regulations issued by the
Department of Corrections and Rehabilitation pursuant to article I, section 32 of the




1   Statutory references are to the Penal Code unless otherwise indicated.
California Constitution, as added by Proposition 572—are issues this court can resolve
de novo as a matter of statutory interpretation. The new statute and Regulations provide
two ways to resolve this case with certainty, without prolonging the pain and suffering
of the young women horribly victimized by these defendants. Third, the remand
without meaningful guidance as to what the majority believes to be the constitutional
limits of one strike sentences imposed on juvenile sexual predators regrettably sets the
stage for years of continuing litigation on an issue that can and should be resolved in
this appeal.
       The reality is that since the time review was granted in this case, defendants’
sentences have been substantially altered by the new Elderly Parole Program (§ 3055)
and the conduct credit regulations generated under the authority of section 32,
subdivision (b) of article I of the California Constitution, as added by Proposition 57.
At the time of sentencing, it was understood that Contreras would receive his first
parole eligibility hearing at age 74, and Rodriguez’s first hearing would be at age 66.
These dates are no longer accurate, although the majority addresses the case as if the
dates continue to be operative. Under the elderly parole program, as a matter of law,
defendants will have their first parole suitability hearing at age 60. In addition,
defendants are eligible for a variety of conduct credits, which allow them to reduce their
sentences by as much as 50 percent per year. If defendants take advantage of the new
Regulations, they have the potential to advance their initial parole suitability hearings to
a date prior to age 60. I would hold that a parole eligibility at age 60 or younger is not a
de facto life sentence and does not otherwise violate the Eighth Amendment as to
juvenile violent sexual offenders.


2Cal. Code Regs., tit. 15, §§ 3043.2-3043.5 (Regulations or Proposition 57 Parole
Regulations). Proposition 57, known as the Public Safety and Rehabilitation Act, was
passed by the voters in November 2016. (See Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) § 1, p. 141 (Proposition 57); see also id., § 3, p. 141.)

                                             2
       A. The remand order requires the sentencing court to consider factors it has
           already taken into account.


       The language of the disposition is likely to leave the trial judge mystified. The
majority commands “[t]he sentencing court . . . to consider . . . any mitigating
circumstances of defendants’ crimes and lives, and the impact of any new legislation
and regulations on appropriate sentencing. The sentencing court is further directed to
impose a time by which defendants may seek parole, consistent with this opinion.”
(Maj. opn., ante, at p. 34.) As to the first portion of the remand order, the trial court at
the original sentencing hearings has already thoroughly considered “any mitigating
circumstances of defendants’ crimes and lives.” (Ibid.) No claim is made by
defendants that the court failed to consider any mitigating factors as to the crimes and
their life experiences. There is nothing left for the trial court to consider on this subject
other than to repeat itself.
       The trial court conducted separate sentencing hearings for the defendants,
beginning with Rodriguez. The court “read and considered the probation report” and
“read and considered the psychological evaluations” submitted on behalf of Rodriguez.
The court considered argument from counsel for Rodriguez, who emphasized that her
client fully acknowledged his responsibility for the crimes and has been “remorseful
about it from the beginning.” Counsel noted Rodriguez felt “a tremendous sense of
shame and guilt for what he did and for what he did to these girls,” pointing out that a
psychological evaluation stated Rodriguez would carry that shame and guilt for the rest
of his life. Counsel asked the court to consider Rodriguez’s age at the time of the
offenses (16), all the mitigating circumstances of his life (“unrelenting abuse throughout
his childhood,” as described by one reporting doctor), and the scientific evidence
relating to the development of the brain.



                                              3
       The sentencing court acknowledged that Graham and Caballero were the
controlling cases and that it “cannot give a juvenile offender the equivalent of life
without parole.” The court expressly recognized that the full statutory sentence required
under the one strike sentencing scheme (§ 667.61) was inconsistent with the Eighth
Amendment as to juvenile one strike offenders, and to impose a constitutional sentence,
it would have to disregard the mandatory consecutive sentences otherwise required by
the one strike sentencing scheme. The court agreed Rodriguez’s “background is
terrible,” but tempered that comment with, “this crime is terrible.” After considering
argument from the prosecutor, the court observed that Rodriguez “was not a passive
participant. He was a very active participant.” The court believed it could not
constitutionally impose a sentence of 75 years to life, “so probably the most I could give
him is 50 to life.” The court repeated that it had read the psychological report, which
showed that “Mr. Rodriguez has had a very difficult upbringing.” But the court
recounted that “it is awful and shocking how long this incident lasted even though these
girls were protesting and the great lengths Mr. Rodriguez and Mr. Contreras went to get
these girls to a secluded place so they could have their way with them.” The court
described one victim’s “heartbreaking” testimony that she asked the doctor performing
the sexual assault examination if she could still wear her chastity ring. The court was
understandably adamant that concurrent sentences were inappropriate, “because in my
thinking, you don’t get a free victim.” The court stated it would have had no problem
imposing a sentence of 200 years to life, “but the law says I can’t do that.” Rodriguez
was sentenced to two consecutive terms of 25 years to life.
       Given this record, there is no reason to remand Rodriguez’s case for
consideration of “any mitigating circumstances of defendants’ crimes and lives.” There
is no mitigating evidence attendant to Rodriguez’s crimes. Rodriguez has never had the
audacity to suggest there is anything remotely mitigating about the crimes. The
majority offers no clue as to what the mitigating evidence relating to the crimes might

                                             4
be. The victims will undoubtedly be shocked by the suggestion that there may be some
aspect of Rodriguez’s crimes that is mitigating. The court also considered the
mitigating circumstances personal to Rodriguez, but found them dwarfed by the
enormity of the offenses he committed. The court’s findings are amply supported by
the record. Rodriguez’s crimes were not the product of youthful indiscretion. The
brutality of the defendants’ conduct (see, dis. opn. of Cantil-Sakauye, C. J., ante, at
pp. 3-7) reveals the actions of violent sexual predators, not that of rogue youths
misbehaving on a lark.
       The record of the sentencing hearing as to Contreras essentially followed the
same pattern as that of Rodriguez. The court stated that it read all of Contreras’s
“submissions including the two psychological reports.” The court acknowledged it
could not impose, under decisions of the United States and California Supreme Courts,
the maximum sentence on the 21 guilty verdicts suffered by Contreras, which would
have generated a sentence of as much as 620 years to life. The prosecutor argued that a
minimum sentence of 50 years to life complied with Caballero, pointing out that
Caballero leaves the actual number of years up to the trial court. With remarkable
foresight, and anticipating this appeal, the trial court replied, “They are just going to tell
us, ‘you figure it out.’ Then they are going to tell us, ‘you are wrong’ when it goes up
to the Court of Appeals [sic].”
       The court expressed its understanding and agreement with the research on the
development of the juvenile brain. But the court questioned the honesty of Contreras,
who denied responsibility, despite the overwhelming evidence of his guilt. The court
discounted the value of the diagnoses of the psychologists, because they were based on
statements of a defendant who was not telling the truth. The court considered Contreras
the “shot caller” in the crimes because “[h]e was definitely the guy in charge of this
particular event. It was brutal and callous and ruthless.” The court pointed to
Contreras’s manipulative attitude during his interview with law enforcement as an

                                              5
indication that “his brain is developed into who he is [and] who he was demonstrated on
that whole event where he raped those girls. [¶] So he used a knife. He threatened
them. I don’t—I am not confident that people with that kind of psychology are
rehabilitatable.” The court imposed the same 50-year-to-life sentence given Rodriguez,
but enhanced it by eight years for Contreras’s use of a knife, again stating, “you don’t
get a free victim.” Although the court felt that Contreras deserved the full term required
by law “based on your attitude and your behavior in this case,” he “was spared that
sentence” under the Eighth Amendment.
       As with Rodriguez, there are no mitigating circumstances relating to the crimes
committed by Contreras for the trial court to consider on remand. The court considered
the psychological reports on Contreras, but understandably found them of little value
since he denied culpability. A remand to examine the mitigating circumstances of
Contreras’s crimes and his life experiences is an exercise in futility.
       As to the first portion of the order on remand, the disconnect between the
majority opinion and the reality of what has already occurred in the trial court is
startling. The trial court has made its findings on these issues. Those findings are
supported by substantial evidence and are unchallenged. There is nothing left for the
trial court to consider on these issues.


       B. This court can resolve the issues relating to the Elderly Parole Program by
           statutory construction.


       Because the trial court has already considered, and rejected, the notion of
mitigating circumstances as to the crimes and defendants’ lives, as a practical matter all
that is left of the remand order is for the sentencing court “to consider . . . the impact of
any new legislation and regulations on appropriate sentencing,” and “to impose a time
by which defendants may seek parole, consistent with this opinion.” (Maj. opn., ante, at


                                              6
p. 34.) The application of the new section 3055 presents a legal question, not a factual
one. No remand is needed.
        The majority is unwilling to address whether an initial parole hearing for these
defendants at age 60 violates the Eighth Amendment.3 The reluctance is understandable
from the majority’s point of view, because neither Graham, supra, 56 U.S. 48 (which
prohibits life without parole for nonhomicide juvenile offenders) nor Caballero, supra,
55 Cal.4th 262 (which prohibits a sentence in years exceeding a juvenile’s life
expectancy) support a categorical ban on initial parole suitability hearings for sexually
violent juvenile offenders at age 60.
        As the dissent of the Chief Justice demonstrates, the parole board at an elderly
parole hearing will consider all relevant circumstances, including defendants’ youth and
the attributes of youth, in determining parole suitability. The majority is uncertain how
the Elderly Parole Program will operate. But how the various parole statutes work in
pari materia is a legal issue which we address de novo. (See Lexin v. Superior Court
(2010) 47 Cal.4th 1050, 1072, 1090-1091 [“on issues of statutory interpretation, our
review is de novo,” and “[i]t is a basic canon of statutory construction that statutes in
pari materia should be construed together so that all parts of the statutory scheme are
given effect”].) There is no reason for this issue of law to be decided in the first
instance by the trial court.
        The majority is unwilling to resolve this (and other issues) because of the “novel
issues” (maj. opn., ante, at p. 27) associated with it. There is nothing novel about the
interpretation of the statutes relating to the evidence that may be considered at an initial
parole hearing. Certainly no evidentiary hearing is required to resolve that issue in this
case.

3 It is particularly troubling that the majority declines to resolve whether an initial
parole suitability hearing at age 60 for one strike juvenile offenders comes too late to
satisfy the Eighth Amendment. A lengthy hearing in the trial court upon remand to
consider the operation of the Elderly Parole Program will end up being a complete
waste of time if this court later determines that an initial suitability hearing at age 60 is
inconsistent with the reasoning in Graham.

                                              7
       C. The Proposition 57 Parole Regulations afford defendants an opportunity for
           an initial parole hearing prior to age 60.

       The Proposition 57 Parole Regulations adopted by the Department of Corrections
and Rehabilitation permit defendants to earn credits that approach 50 percent annually.
As the Chief Justice correctly notes, Rodriguez may reduce his initial parole suitability
date to age 57 simply by behaving in prison. (Regs., § 3043.2.) There are abundant
additional credits defendants may earn, including: (1) milestone completion credit of 12
weeks per 12 month period (Regs., § 3043.3); (2) rehabilitative achievement credit of
four weeks per year (Regs., § 3043.4); and (3) educational merit credit in increments of
90 days for a high school diploma or GED, and 180 days for the “Offender Mentor
Certification Program,” associate of arts or science degree, bachelor of arts or science
degree, or post-graduate degree (Regs., § 3043.5). While it may not be possible for
defendants to earn the full amount of credits, the fact remains both have the ability to
reduce their initial parole suitability date to below age 60.
       There is no reason to remand to the trial court to determine how the credits will
be awarded by prison officials. The Regulations have the force of law, and we should
presume that official duty will be regularly performed by the Department of Corrections
and Rehabilitation. (Evid. Code, § 664.) The majority’s characterization of how the
system of credits will operate as “novel” (maj. opn., ante, at p. 27) is again odd,
considering that conduct credits have long been a component of California’s sentencing
law, and this court has addressed entitlement to conduct credits as a matter of law in
various cases. (In re Martinez (2003) 30 Cal.4th 29, 34-37; In re Cervera (2001) 24
Cal.4th 1073, 1077-1080; People v. Thomas (1999) 21 Cal.4th 1122, 1125-1130; People
v. Sage (1980) 26 Cal.3d 498, 502-506.) The current Regulations were drafted to aid in
rehabilitation of inmates and reduction in the prison population through incentives.
There is no reason to doubt, at this point, that most if not all of the conduct credit
programs will be available to defendants. According to the Department of Corrections
and Rehabilitation, “the credit-earning opportunities for Milestone Completion,


                                              8
Rehabilitative Achievement, Educational Merit, and Extraordinary Conduct, [] went
into effect on August 1, 2017.” (<https://news.cdcr.ca.gov/news-
releases/2017/11/29/cdcr-issues-amended-proposition-57-regulations> [as of February
26, 2018].) The department has stated that it “gives inmates a strong incentive to
participate in and complete rehabilitative programs.” (Ibid.) The program is in place,
and no evidentiary hearing is required at this point to explore its operation.
       The majority faults the failure of the two dissents to consider that Contreras and
Rodriguez may commit misconduct in prison and forfeit their good conduct credits,
suggesting this is a reason why the Regulations do not help to solve the Eighth
Amendment issue presented. (Maj. opn., ante, at pp. 32-34.) According to the majority,
“the record before us contains no information on how likely it is that any inmate can
achieve a spotless prison record over a span of four or more decades.” (Maj. opn., ante,
at p. 34.) There is no need for an evidentiary record on this point, because abundant
California case law—including decisions of this court—demonstrate that inmates
convicted of the most serious offenses are capable of being incarcerated for extended
periods with no disciplinary actions, or only trivial violations not resulting in loss of
conduct credits. (In re Shaputis (2008) 44 Cal.4th 1241, 1249 [“Petitioner has remained
discipline-free throughout his incarceration” spanning two decades]; In re Rosenkrantz
(2002) 29 Cal.4th 616, 630, 682 [petitioner convicted of second degree murder engaged
in no disciplinary misconduct in prison over 16 years]; In re Morganti (2012) 204
Cal.App.4th 904, 909 [inmate “has functioned without behavioral problems for almost
20 years”]; In re McDonald (2010) 189 Cal.App.4th 1008, 1017 [inmate “had been a
model prisoner who had never been disciplined for serious misconduct in prison”]; In re
Cerny (2009) 178 Cal.App.4th 1303, 1305 [inmate convicted of second degree murder
in 1981 “has not been disciplined for violating prison rules”]; In re Scott (2004) 119
Cal.App.4th 871, 898 [inmate convicted of second degree murder in 1986 “ ‘has been
disciplinary-free’ in prison”]; see also In re Lawrence (2008) 44 Cal.4th 1181, 1199
[“petitioner had been counseled eight times for misconduct, including as recently as
2005, but . . . she has not been subject to any disciplinary actions”]; In re Stoneroad


                                              9
(2013) 215 Cal.App.4th 596, 605 [“petitioner has an exemplary prison history; his only
disciplinary citation was for ‘leaving an unattended hotpot in his cell’ in 1990”].)4
       I disagree with the majority’s speculative proposition that Contreras and
Rodriguez will suffer a forfeiture of credits due to misconduct. They have every reason
to comply and remain discipline free. The Regulations create an opportunity for
inmates to demonstrate rehabilitation and advance the initial parole suitability date, a
point the majority makes by citing Graham, supra, 560 U.S. at page 79, for the
proposition that rehabilitation “depends on the incentives and opportunities available to
the juvenile going forward.” (Maj. opn., ante, at p. 18.) If Contreras and Rodriguez
forfeit conduct credits due to serious misconduct, they will demonstrate a lack of parole
suitability. (In re Reed (2009) 171 Cal.App.4th 1071, 1085.) But speculation as to their
potential for misconduct in prison has no bearing on an Eighth Amendment analysis,
because as the majority recognizes, Contreras and Rodriguez may be held in prison for
life, and it is up to them to earn the right to release. (Maj. opn., ante, at pp. 35-36.)
       I would address the applicability of the Regulations now, rather than deferring to
some undefined fact finding hearing in the trial court.


       D. The remand order provides no guidance to the trial court on how the
           resentencing hearing should be conducted or how the court might formulate a
           sentence that does not violate the Eighth Amendment.



       The trial court predicted the result in this case. The court worked to craft
sentences that complied with Graham and Caballero, and now has been told it was
wrong, but the majority offers no description of what would solve the problem it
perceives. The trial judge did a commendable job performing the unpleasant


4 This list of citations is illustrative, not exhaustive. It does not take into account those
inmates who were granted parole without further litigation, or Court of Appeal
decisions not certified for publication. (Cal. Rules of Court, rule 8.1115(a).)

                                              10
assignment of presiding over a case involving violent sexual assaults on young women.
He is entitled to some suggestions as to how the majority wants to remedy the problem
it sees, particularly since any reduction of defendants’ sentences will trample on the
Legislature’s authority to fix the punishment for crimes.
       The Legislature has repeatedly determined that one strike juvenile offenders are
not entitled to a youth offender parole hearing under section 3051. An early version of
section 3051 did not exclude juvenile one strike offenders from a youth offender parole
hearing (Legis. Counsel’s Dig., Sen. Bill No. 260 (2013-2014 Reg. Sess.) as amended
June 27, 2013, p. 5), but the legislation was amended several months later to specifically
exclude this class of offenders (Legis. Counsel’s Dig., Sen. Bill No. 260 (2013-2014
Reg. Sess.) as amended Sept. 3, 2013, p. 9). Subsequent amendments to the statute have
maintained the exclusion of one strike juvenile offenders from section 3051 hearings.
Instead, the Legislature has provided for a parole hearing for one strike juvenile
offenders at age 60 under section 3055. Establishing a longer period of incarceration
before parole suitability hearings for juvenile one strike offenders is consistent with the
state’s long-standing policy recognizing the unique danger of recidivism posed by
violent sexual offenders. (See §§ 290 [registration requirement for sex offenders]; 6600
et seq. [civil commitment for sexually violent predators]; Evid. Code, § 1108 [in a
prosecution for a sexual offense evidence of defendant’s commission of another sexual
offense is not inadmissible to prove a disposition to commit the charged crime].) Case
law from this court is replete with examples of recidivism by sex offenders. (See
People v. Davis (2009) 46 Cal.4th 539, 602-603; People v. Falsetta (1999) 21 Cal.4th
903, 909-910; People v. Frank (1990) 51 Cal.3d 718, 724-725.)
       Any reduction in sentence in this case, or alteration of parole dates, will be
inconsistent with statutory law. If existing law must be ignored in order to satisfy the
Eighth Amendment as to an entire body of offenders, that is a policy decision best made
by this court rather than a single trial court judge, whose ruling will not be binding, or

                                             11
even citable, in any other court of the state. But at a minimum, the trial court is entitled
to some vision of how to accomplish the result desired by the majority.
       The majority’s nonspecific remand order sets the stage for an extended Socratic
dialogue between the trial court and the appellate court, in which the trial court whittles
away a de minimis portion of a one strike juvenile sentence, awaiting a response from
the appellate court. It is not difficult to imagine this case going through several cycles
of sentencing hearings and further remands on appeal. In the meantime, the victims of
these 2011 offenses endure additional delay, uncertainty, and a lack of finality, a result
inconsistent with the plain language of the California Constitution. “Victims of crime
are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment
proceedings that challenge criminal convictions, frequent and difficult parole hearings
that threaten to release criminal offenders, and the ongoing threat that the sentences of
criminal wrongdoers will be reduced, prolong the suffering of crime victims for many
years after the crimes themselves have been perpetrated. This prolonged suffering of
crime victims and their families must come to an end.” (Cal. Const., art. I, § 28, subd.
(a)(6).)
       The unguided remand also has the potential to lead to arbitrarily disparate parole
suitability dates for similarly situated one strike juvenile offenders. One judge might
order a parole suitability hearing at age 45, another based on identical commitment
offenses might order a hearing at age 50, and yet another might select age 55. The
potential for disparate parole dates for similar offenses is not only unfair to defendants
and an administrative nightmare for prison officials, it is inconsistent with the
categorical requirements of Graham, supra, 560 U.S. 48.




                                             12
      If a parole suitability hearing for juvenile one strike offenders at age 60 violates
the Eighth Amendment, this court should say so now, and explain the contours of what
the Eighth Amendment requires for this class of offenders. I respectfully dissent.




                                                                         KRIEGLER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CORRIGAN, J.




 Associate Justice of the Court of Appeal, Second Appellate District, Division Five,
assigned by the Chief Justice pursuant to article VI, section 6, of the California
Constitution.

                                            13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Contreras
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 1/14/15 – 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S224564
Date Filed: February 26, 2018
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Peter C. Deddeh

__________________________________________________________________________________

Counsel:

Nancy J. King, under appointment by the Supreme Court, for Defendant and Appellant Leonel Contreras.

Daniel J. Kessler, under appointment by the Supreme Court, for Defendant and Appellant William S.
Rodriguez.

L. Richard Braucher and Susan L. Burrell for Pacific Juvenile Defender Center as Amicus Curiae on behalf
of Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Joshua Klein, Deputy State Solicitor General, Julie L. Garland, Assistant Attorney General,
Arlene A. Sevidal, Meredith S. White, Steven T. Oetting and Tami Falkenstein Hennick, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Nancy J. King
1901 First Avenue, Suite 138
San Diego, CA 92101
(858) 755-5258

Daniel J. Kessler
Kessler & Seecof, LLP
3990 Old Town Avenue, Suite B-109
San Diego, CA 92110
(619) 325-0795

Steven T. Oetting
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2206
