Filed 5/14/14 (unmodified opn. attached)




                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                          G047199

        v.                                             (Super. Ct. No. 11ZF0111)

JAIME GUADALUPE GONZALEZ,                             MODIFICATION ORDER; NO
                                                      CHANGE IN JUDGMENT
    Defendant and Appellant.



                 The opinion filed April 30, 2014 is modified on page 11 so that the citation,
“(People v. Martin (2013) 222 Cal.App.4th 98, 103, review granted on Mar. 26, 2014,
S216139.),” is deleted.
                 The modification does not change the judgment.




                                                    ARONSON, ACTING P. J.

I CONCUR:



THOMPSON, J.
Filed 4/30/14 (unmodified version)




                             CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                       G047199

       v.                                           (Super. Ct. No. 11ZF0111)

JAIME GUADALUPE GONZALEZ,                           OPINION

    Defendant and Appellant.


               Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed.
               Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
               Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff
and Respondent.
              A jury convicted Jaime Guadalupe Gonzalez of first degree murder
(count 1; Pen. Code, § 187, subd. (a); all further undesignated statutory references are to
this code) and street terrorism (count 2; § 186.22 ,subd. (a)) for killing 20-year-old Juan
Carlos Cena. The jury found true a special circumstance allegation that Gonzalez, who
was 15 years old at the time of the offense, intentionally committed the murder for a
criminal street gang purpose (§ 190.2, subd. (a)(22)), and found true a gang penalty
enhancement allegation (§ 186.22, subd. (b)(1)). The jury also found Gonzalez was a
principal in committing a gang offense involving the intentional discharge of a firearm
causing death (§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced Gonzalez to a
term of 50 years to life for count 1, consisting of 25 years to life for first degree murder
and a consecutive 25-years-to-life term for the firearm use enhancement. The court
stayed under section 654 Gonzalez’s street terrorism sentence on count 2. Gonzalez now
contends his youth at the time of the offense renders his lengthy sentence cruel and
unusual punishment in violation of the federal and state Constitutions. (U.S. Const., 8th
Amend.; Cal. Const., art. 1, § 17.)
              He relies on Miller v. Alabama (2012) __ U.S. __, 132 S.Ct. 2455 (Miller),
which precludes for juvenile offenders a mandatory sentence of life in prison without the
possibility of parole (LWOP). Gonzalez argues the mandatory term the trial court
imposed is tantamount to an LWOP sentence based on actuarial tables showing a life
expectancy in his mid-70’s, which he asserts is overstated given the dangers of prison
life. In any event, he contends his sentence is unconstitutional because it denies him the
possibility of any meaningful period outside prison on parole if he demonstrates
rehabilitation. His core premise is mistaken, however. He does not face LWOP. New
legislation effective January 1, 2014,1 provides for a parole hearing for juvenile offenders

       1       Senate Bill No. 260 (2013-2014 Reg. Sess.) September 16, 2013 (SB 260),
codified at § 3051.

                                              2
like Gonzalez in the 25th year of their incarceration, usually within their life expectancy
by a matter of decades and therefore well within constitutional norms. We also find no
merit in Gonzalez’s as-applied, disproportional punishment challenge or his ineffective
assistance of counsel claim. We therefore affirm the judgment.
                                                I

                    FACTUAL AND PROCEDURAL BACKGROUND
               On December 8, 2003, Gonzalez shot and killed Cena in a second
encounter after two of Cena’s friends dropped him off near an Anaheim intersection.
According to Cena’s friends, Cena planned to sell shampoo they had stolen from a store
so they could use the proceeds to buy drugs. The trio belonged to the Kodiak criminal
street gang, while Gonzalez belonged to Kodiak’s rival, the Underhill gang. In an initial
encounter, Cena’s friends saw Gonzalez and a companion engage Cena in a conversation
that did not appear friendly, “but there was no yelling.” Cena returned safely to his
friends’ truck, and they dropped him off at the Balsom and Curtis intersection. Before
the truck could make a u-turn to retrieve Cena, two shots rang out, felling Cena. The
police and an ambulance responded, but Cena never regained consciousness and bled to
death from his injuries.
               More than a year later, Gonzalez’s mother discovered a firearm in his
possession and turned it over to the police. A ballistics test at the time did not connect
the weapon, which had a damaged barrel, to Cena’s shooting. Gonzalez admitted in a
police interview only that he had received the gun as an Underhill gang member trying to
earn his “stripes,” and that he had used it to fire shots in the air to scare off rival La Jolla
gang members in a different incident.
               In 2009, a fellow gang member identified Gonzalez as the person who shot
Cena and agreed to wear a recording device while he briefly shared a jail cell with
Gonzalez, who was incarcerated on other charges. But Gonzalez admitted in the



                                                3
recording only that he possessed the handgun his mother discovered. The gang associate,
however, also identified Gonzalez’s accomplice on the day of the shooting, Ricardo
Castaneda.
              In May 2011, officers arrested Castaneda on an outstanding traffic warrant,
he admitted his role in the shooting, and at trial in May 2012, Castaneda identified
Gonzalez as the shooter. A new ballistics test conducted with the aid of 3-D printing
technology to account for the damaged barrel on Gonzalez’s gun confirmed the weapon
matched the bullet retrieved when Cena died on a hospital gurney. The jury convicted
Gonzalez as noted, and the trial court held a sentencing hearing in July 2012.
              At the time of sentencing, Gonzalez was 23 years old and already serving
an 11-year sentence for assaulting a police officer with a firearm. The trial court imposed
a 50-years-to-life sentence and ordered it to run concurrently with Gonzalez’s 11-year
assault sentence. The trial court credited Gonzalez with just over a year of pretrial
incarceration, 372 days, and Gonzalez now appeals his 50-years-to-life sentence.
                                              II

                                       DISCUSSION
A.     General Principles and Standard of Review
              Punishment that is grossly disproportionate to the offender’s culpability
violates constitutional norms prohibiting “cruel and unusual” (U.S. Const., 8th amend.)
and “cruel or unusual” (Cal. Const., art. I, § 17 ) punishment. (See, e.g., Harmelin v.
Michigan (1991) 501 U.S. 957, 997 (Harmelin) (conc. opn. of Kennedy, J.) [8th Amend.
“encompasses a narrow proportionality principle”]; People v. Dillon (1983) 34 Cal.3d
441, 478 (Dillon) [“punishment may violate the constitutional prohibition not only if it is
inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the
offense for which it is imposed”].) Because “in our tripartite system of government it is
the function of the legislative branch to define crimes and prescribe punishments” (In re



                                              4
Lynch (1972) 8 Cal.3d 410, 414 (Lynch), a defendant bears a “considerable burden” to
show the requisite disproportionality. (People v. Wingo (1975) 14 Cal.3d 169, 174
(Wingo).) Consequently, such findings “have occurred with exquisite rarity in the case
law” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196).

B.     Categorical Rules Governing Punishment and Process in the Juvenile Context
                In the juvenile context, because “juvenile offenders cannot with reliability
be classified among the worst offenders” (Roper v. Simmons (2005) 543 U.S. 551, 569
(Roper)), certain “categorical rules” (Graham v. Florida (2010) 560 U.S. 48, 61
(Graham)) have emerged to mitigate the risk of disproportionate punishment. As
Graham explained, “The Court’s cases addressing the proportionality of sentences fall
within two general classifications. The first involves challenges to the length of term-of-
years sentences given all the circumstances in a particular case. The second comprises
cases in which the Court implements the proportionality standard by certain categorical
restrictions on the death penalty.” (Id. at p. 59.) In Graham, the high court extended its
categorical approach to bar LWOP sentences for juveniles in nonhomicide cases. (Id. at
p. 61 [“The present case involves an issue the Court has not considered previously: a
categorical challenge to a term-of-years sentence”].)
                The high court cautioned its categorical approach in Graham was not
“suited for considering a gross proportionality challenge to a particular defendant’s
sentence” on an as-applied basis, but instead applies “[w]here a sentencing practice itself
is in question.” (Graham, supra, 560 U.S. at p. 61 [“This case implicates a particular
type of sentence as it applies to an entire class of offenders who have committed a range
of crimes”].)
                The Supreme Court’s categorical line of cases has yielded several bright-
line rules. The death penalty may not be imposed on juvenile offenders. (Roper, supra,
543 U.S. at p. 578.) An LWOP sentence may not be imposed on a juvenile who commits



                                               5
a nonhomicide offense. (Graham, 560 U.S. at p. 82.) Similarly, our Supreme Court has
explained that a de facto LWOP sentence, including for example a sentence of 110-years-
to-life, is constitutionally barred in juvenile nonhomicide cases. (People v. Caballero
(2012) 55 Cal.4th 262, 268-269 (Caballero).)
              Miller recently established another bright-line rule in the juvenile context:
a mandatory LWOP sentence may not be imposed on a juvenile even in homicide cases
because the sentencing court must “take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in prison.”
(Miller, supra, 132 S.Ct. at p. 2469, italics added.) Gonzalez relies heavily on Miller,
and we therefore explore it in some depth.
              In Miller, the high court noted, “Our decision does not categorically bar a
penalty for a class of offenders or type of crime — as, for example, we did in Roper or
Graham.” (Miller, 132 S.Ct. at p. 2471.) The court emphasized it did not reach the
defendants’ “argument that the Eighth Amendment requires a categorical bar on life
without parole for juveniles, or at least for those 14 and younger.” (Id. at p. 2469.)
“Instead,” the court’s decision in Miller “mandates only that a sentencer follow a certain
process — considering an offender’s youth and attendant characteristics — before
imposing a particular penalty.” (Id. at p. 2471, italics added.)
              Miller’s emphasis on a constitutionally adequate process traces back to the
high court’s jurisprudence in death penalty cases, where the court held capricious
infliction of the state’s most severe penalty violates the Eighth Amendment. (See, e.g.,
Furman v. Georgia (1972) 408 U.S. 238, 309 (conc. opn. of Stewart, J.) [“These death
sentences are cruel and unusual in the same way that being struck by lightning is cruel
and unusual”]; see also Solem v. Helm (1983) 463 U.S. 277, 294 (Solem) [“the death
penalty is different from other punishments in kind rather than degree”].)
              Miller observed that just as the Eighth Amendment requires the heightened
procedural safeguard of individual sentencing consideration because “‘death is different,’

                                              6
children are different too.” (Miller, supra, 132 S.Ct. at p. 2470.) The court therefore
held individualized consideration is similarly necessary before an LWOP sentence may
be imposed on a juvenile. “[T]he Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.” (Id. at
p. 2469, italics added.) A sentencing process mandating a blind eye to the very factors
that make juveniles different is arbitrary and capricious in light of the irrevocable penalty
at stake. “By making youth (and all that accompanies it) irrelevant to imposition of that
harshest prison sentence, such a scheme poses too great a risk of disproportionate
punishment.” (Ibid.)
              The court in Miller acknowledged its precedent did not require
individualized sentencing in noncapital cases involving adults. (Miller, supra, 132 S.Ct.
at p. 2470, citing Harmelin, supra, 501 U.S. 957 [upholding mandatory life-without-
parole term for adult convicted of possessing more than 650 grams of cocaine].) But as
Miller explained, just as children are different from adults, an LWOP term is distinct
from other sentences in its severity for children. In Graham, for example, the court
recognized that for juveniles an LWOP “share[s] some characteristics with death
sentences that are shared by no other sentences,” primarily as a “forfeiture that is
irrevocable.” (Graham, supra, 560 U.S. at p. 69-70 [“this sentence ‘means denial of
hope’”].)
              While an LWOP sentence is for an adult “far more severe” than any other
term of years (Solem, supra, 463 U.S. at p. 297), it is even more so 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. A 16-year-old and a 75-year-old
each sentenced to life without parole receive the same punishment in name only.”
(Graham, 560 U.S. at p. 70.) Thus, while a defining characteristic of youth is its
malleability, an LWOP sentence “‘means that good behavior and character improvement



                                              7
are immaterial; it means that whatever the future might hold in store for the mind and
spirit of [the juvenile convict], he will remain in prison for the rest of his days.’” (Ibid.)
               Accordingly, observing “it is no surprise that the law relating to society’s
harshest punishments recognizes . . . a distinction” for children, the court in Miller held
that “a judge or jury must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles.” (Miller, supra, 132 S.Ct. at
pp. 2470, 2475.) Absent such consideration, the defendants in Miller gained an
automatic reversal of their LWOP sentences. As the court explained, “By requiring that
all children convicted of homicide receive lifetime incarceration without possibility of
parole, regardless of their age and age-related characteristics and the nature of their
crimes, the mandatory sentencing schemes before us violate this principle of
proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.”
(Id. at p. 2475.)
               In effect, Miller and Graham recognize that LWOP sentences are for
juveniles analogous to the death penalty for adults. Consequently, the Constitution
requires individualized consideration of the distinctive mitigating features of a minor’s
age and attendant circumstances, just as it requires an individualized assessment of a
death penalty defendant’s culpability and character.
               Miller, Graham, Roper, and Caballero all derive their bright-line rules
from the fundamental distinction that juveniles, “‘“particularly in the early and middle
teen years, are more vulnerable, more impulsive, and less self-disciplined than adults,”‘“
and therefore may “‘“deserve less punishment because adolescents may have less
capacity to control their conduct and to think in long-range terms . . . .”‘“ (Thompson v.
Oklahoma (1988) 487 U.S. 815, 834; see also In re Nunez (2009) 173 Cal.App.4th 709,
729 [noting supporting scholarly research, including that “‘the steepest inflection point in
the development curve occurs sometime between [age] 16 and 19 years’”].)



                                               8
              Based on these differences, the high court observed in Roper: “The
susceptibility of juveniles to immature and irresponsible behavior means ‘their
irresponsible conduct is not as morally reprehensible as that of an adult.’ [Citation.]
Their own vulnerability and comparative lack of control over their immediate
surroundings mean juveniles have a greater claim than adults to be forgiven for failing to
escape negative influences in their whole environment. [Citation.] The reality that
juveniles still struggle to define their identity means it is less supportable to conclude that
even a heinous crime committed by a juvenile is evidence of irretrievably depraved
character. From a moral standpoint it would be misguided to equate the failings of a
minor with those of an adult, for a greater possibility exists that a minor’s character
deficiencies will be reformed.” (Roper, supra, 543 U.S. at p. 570.)
              These observations also informed Graham, Caballero, and Miller, for as
the court explained in Miller, imposing “[m]andatory life without parole for a juvenile
precludes consideration of his chronological age and its hallmark features — among
them, immaturity, impetuosity, and failure to appreciate risks and consequences. It
prevents taking into account the family and home environment that surrounds him — and
from which he cannot usually extricate himself — no matter how brutal or dysfunctional.
It neglects the circumstances of the homicide offense, including the extent of his
participation in the conduct and the way familial and peer pressures may have affected
him.” (Miller, supra, 132 S.Ct. at p. 2468.)

C.     Gonzalez Is Not Entitled to Automatic Reversal under the Foregoing Rules
              Gonzalez relies principally on Miller, which was decided about a month
before his sentencing hearing. He claims he falls within Miller’s proscription against
mandatory LWOP sentences because the applicable sentencing and enhancement scheme
mandated his sentence of 50-years-to-life, and that sentence amounts to a de facto
LWOP. Specifically, he notes his sentence of 25 years to life for murder is mandatory.



                                               9
(§§ 190, 190.2, subd. (a)(22), 190.5; see People v. Demirdjian (2006) 144 Cal.App.4th
10, 17 (Demirdjian) [“For juveniles under 16 who were 14 or 15 when the crime was
committed, a life term without the possibility of parole is not permitted, leaving a term of
25 years to life with possibility of parole”].) And the consecutive enhancement of
25 years to life for discharging a firearm causing death is also mandatory. (§ 12022.53,
subd. (d).) Because the mandatory length of his sentence amounts to an LWOP term,
Gonzalez asserts he is entitled to reversal and on remand an individualized sentencing
determination, as in Miller.
              While Miller involved an actual LWOP sentence and not as here an
assertedly de facto LWOP term, Miller acknowledged the reasoning in Graham
“implicates any life-without-parole sentence imposed on a juvenile,” including a sentence
imposed on a juvenile convicted of murder. (Miller, supra, 132 S.Ct. at pp. 2465-2466,
italics added; cf. accord, Caballero, supra, 55 Cal.4th at p. 268-269 [applying Graham’s
rationale to bar de facto LWOP sentences for juveniles in nonhomicide cases].) Indeed,
while the high court in Miller was careful to emphasize Graham’s “categorical bar”
against juvenile LWOP sentences applied “only to nonhomicide crimes” (Miller, at
p. 2465), the court also observed that “none of what [Graham] said about children —
about their distinctive (and transitory) mental traits and environmental vulnerabilities —
is crime-specific. . . . So Graham’s reasoning implicates any life-without-parole sentence
imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.”
(Miller, at p. 2465, italics added; accord, Caballero, at p. 267.) Thus, Caballero held a
de facto LWOP term implicates the same constitutional considerations that barred in
Graham an actual LWOP sentence for juveniles in nonhomicide cases. (Caballero, at
p. 267.)
              We see no reason the same analysis should not apply to bar mandatory
de facto juvenile LWOP terms in homicide cases. The reasoning in Miller extends not



                                             10
just to mandatory sentences that impose an actual LWOP term on a juvenile, but also to
mandatory sentences tantamount to an LWOP term.
              Gonzalez contends his sentence amounts to a de facto LWOP term. He
argues that because he was sentenced at age 23, with credit for a year of time served, then
even assuming he is eligible for parole after serving 50 years will, at age 72, push him
close to the brink of a life expectancy of 76 years. He obtains this figure from People v.
Mendez (2010) 188 Cal.App.4th 47, 63, involving the projected life expectancy of an 18-
year-old defendant. We note that life expectancy projections derived on appeal vary
widely in recent juvenile LWOP cases. In another recent case the projected life
expectancy of a 17-year-old male defendant was only 64.6 years. (People v. Martin
(2013) 222 Cal.App.4th 98, 103, review granted on Mar. 26, 2014, S216139.) In People
v. Solis (2014) __ Cal.App.4th __ [2014 WL 935319, *4, fn. 2], another 17-year-old
defendant requested and was granted judicial notice on appeal of actuarial tables showing
a life expectancy of 72 years. Other actuarial projections are as high as 80 years. (See
National Center for Health Statistics, Centers for Disease Control and Prevention,
National Vital Statistics Reps. (Jan. 11, 2012) vol. 60, no. 4, table 6, p. 28.) Had
Gonzalez faced trial and the consequences of his conviction promptly at age 15, he would
be eligible for parole under a 50-year sentence around age 65, well within an 80-year life
span.
              Gonzalez contends all actuarial estimates overstate his life expectancy
“because he is incarcerated,” and therefore his life span “in reality . . . may be
considerably shorter.” (See Solis, supra, __ Cal.App.4th __ [2014 WL 935319, *4]
[“considering the health hazards associated with prison life,” an estimated life expectancy
of 72 years “may actually be optimistic”].) Gonzalez cites a source “discussing persistent
problems in United States prisons of ‘rape, gang violence, the use of excessive force by
officers, [and] contagious diseases’” (The Commission on Safety and Abuse in America’s



                                              11
Prisons, Confronting Confinement (June 2006) p. 11 <www.vera.org/pubs/confronting-
confinement> [as of March 21, 2014].)
              Gonzalez also suggests that life prisoners rarely obtain parole on their first
opportunity and therefore, based on his asserted life expectancy of 76 years, an initial
parole hearing at age 72 is too late to ensure a “meaningful” chance “to obtain release
based on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75.)
As Gonzalez phrases it, “A handful of years is not substantial.” Absent a meaningful
period of potential release on parole, Gonzalez argues his sentence is tantamount to an
LWOP. (See People v. Perez (2013) 214 Cal.App.4th 49, 57 (Perez) [“There is a bright
line between LWOPs and long sentences with eligibility for parole if there is some
meaningful life expectancy left when the offender becomes eligible for parole,” original
italics].)
              Gonzalez further argues his minimum 50-year sentence does not accurately
reflect the time he will serve before he is eligible for parole because the Board of Parole
Hearings (Parole Board) calculates a “base term” (Cal. Code Regs., tit. 15, § 2403(a)) for
parole eligibility that “adds several more years to the determinate portion of the sentence
based on the nature of the murder and the victim involved.” According to Gonzalez,
“Depending on where the particular offense falls in the matrix of base terms, [a Parole
Board] panel fixes the base term, typically . . . considering mitigating and aggravating
circumstances. Here, the murder of a person not well known to appellant and whose
death was fairly immediate” yields under “the matrix of base terms for first degree
murder” (see Cal. Code Regs., tit. 15, § 2403(b)) a “base term range [of] 28-29-30 years.”
Gonzalez elaborates: “Assuming the panel would select the middle term of 29 years for
appellant’s case, added to which is the additional minimum term of 25 years for the gun
use, that is a minimum of 54 years appellant will be required to serve before being
considered eligible to actually be released on parole. So in reality, appellant will be
about 78 years old at that point, two years past an optimistic life expectancy of 76 years.”

                                             12
               Gonzalez’s calculation, however, ignores the eight years he escaped
accountability and defied justice. This is particularly true given he demonstrated no hint
of remorse or reform in that time. To the contrary, he promptly reoffended by pointing a
firearm at a peace officer and continued to menace society by committing other felonies.
It would be a perverse incentive indeed to count that period towards Gonzalez’s release
instead of against it.
               In any event, Gonzalez’s calculations are fatally flawed for another reason,
as we explain.

D.     SB 260
               Gonzalez’s challenge under Miller fails because SB 260 effectively
modifies his sentence to afford him a parole date well within his life expectancy. SB 260
specifies in its preamble: “The Legislature recognizes that youthfulness both lessens a
juvenile’s moral culpability and enhances the prospect that, as a youth matures into an
adult and neurological development occurs, these individuals can become contributing
members of society. The purpose of this act 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 People v. Caballero (2012) 55 Cal.4th 262 and the decisions of the
United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48, and Miller v.
Alabama (2012) 183 L.Ed.2d 407.” (Stats. 2013, ch. 312, § 1.)
               Specifically, SB 260 provides in new section 3051, subdivision (b)(3), for a
parole hearing in the 25th year of incarceration for juvenile offenders like Gonzalez,
sentenced to prison for a term of 25 years-to-life or longer. Gonzalez will enter his 25th
year of incarceration and receive under the statute a parole hearing when he is 46 years
old. That affords Gonzalez a substantial parole period outside prison if he demonstrates



                                             13
reform, even under the earliest end-of-life projections. Consequently, Gonzalez’s
incarceration, although lengthy and under a mandatory sentence, does not implicate
Miller’s per se ban on mandatory LWOP terms for juveniles. He similarly falls outside
Caballero’s holding that de facto LWOP terms may be tantamount to an LWOP for
constitutional purposes. Simply put, under the new legislation, Gonzalez does not face
the prospect of life in prison without the possibility of parole. Therefore, Miller does not
apply, and neither does Caballero’s recognition that a lengthy term of years may amount
to an LWOP sentence.
              The court in In re Heard (2014) 223 Cal.App.4th 115 (Heard) recently
reached a contrary conclusion concerning the relevance of SB 260. There, the trial court
sentenced a juvenile defendant to 80 years to life for two nonhomicide offenses he
committed when he was 15 years old, plus a consecutive 23-year term for an unrelated
voluntary manslaughter he committed at age 16. On appeal, the Heard court explained
SB 260 did not alleviate its constitutional concerns about the length of the juvenile’s
sentence. The court found persuasive the defendant’s contentions “he is not guaranteed
to receive an opportunity to avail himself of SB 260,” given it could be repealed, and
“SB 260’s passage does not remedy the sentencing court’s failure to consider the




                                             14
mitigating circumstances of Heard’s youth, as required by Miller, supra, 132 S.Ct.
2455.”2 (Heard, supra, 223 Cal.App.4th at pp. 128-129.)
              In our view, these contentions in Heard do not suffice to disregard the
parole opportunity SB 260 affords to juvenile offenders. First, while SB 260
theoretically may be repealed or modified in the future, that is true of all legislation. It is
speculative to suppose the law may change before Gonzalez’s parole hearing, and we
therefore must consider the law and its constitutional effect as we find it, according to its
present terms. Notably, SB 260 is a statutory provision, and therefore does not establish
its 25-year parole hearing date as a constitutional minimum or maximum. If the
Legislature later liberalizes parole consideration for youthful offenders still further with
an earlier hearing date (cf. § 1170, subd. (d)(2) [providing for recall of juvenile LWOP
sentences at 15, 20, or 24 years, upon specified showing]), or if the Legislature instead

       2       We note Heard may not have needed to address the effect of the homicide
sentence in that case under Miller, since the 80-year sentence for the juvenile’s
nonhomicide offenses constituted a de facto LWOP and therefore ran afoul of Caballero.
(See Caballero, supra, 55 Cal.4th at p. 268 [“‘flat ban’ on life without parole sentences
applies to all nonhomicide cases”]; id. at pp. 270-271 (conc. opn. of Werdeger, J.)
[explaining that attempt offenses fall outside bright line of homicide, and therefore the
nonhomicide offense of attempted murder may not subject juvenile to a de facto
LWOP].)
               Of course, had the court in Heard remanded for resentencing solely on the
nonhomicide offenses, there remained the possibility the trial court might impose a still-
lengthy sentence that, in combination with the 23-year determinate homicide term, would
result in a de facto LWOP. For example, if the trial court halved the 80-year
indeterminate term to 40 years to life, that sentence plus the 23-year term would render
the defendant ineligible for parole for 63 years, if the trial court exercised its discretion to
run the homicide and nonhomicide sentences consecutively.
               That discretion, however, would distinguish the case from Miller, where the
mandatory nature of the LWOP required per se reversal. As noted, Miller did not bar
discretionary imposition of an LWOP for homicide offenses, and the question on appeal
in such a case would therefore be whether the trial court in imposing an LWOP abused its
discretion in concluding the juvenile was irrevocably depraved. (See Miller, supra,
132 S.Ct. at p. 2469 [noting “the great difficulty . . . of distinguishing at this early age
between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects irreparable corruption’”].)

                                              15
restricts SB 260 to afford a parole hearing after 35 years of incarceration instead of in the
25th year, reviewing courts will assess those changes in due course.
              Second and related, given the parole opportunity afforded by SB 260, the
state has not subjected Gonzalez to the penalty proscribed in Miller: mandatory life
imprisonment without the possibility of parole. In effect, the reversal in Heard compels
judicial fine tuning of a defendant’s sentence even though the Legislature in section 260
has set a parole date within constitutional norms. We therefore find too broad and
unmoored from high court authority the remedy of per se reversal adopted in Heard for a
“sentencing court’s failure to consider the mitigating circumstances of [the defendant]’s
youth, as required by Miller. . . .” (Heard, supra, 223 Cal.App.4th at p. 129.) As noted,
the bright-line rules resulting in reversal in Miller and its antecedents turned on the
constitutional danger of gross disproportionality in irrevocably subjecting juveniles to the
harshest penalties available by law: the death penalty in Roper, LWOP for nonhomicide
offenses in Graham, and mandatory LWOP in Miller. The same was true in Caballero
for a de facto LWOP in nonhomicide cases.
              Outside of these narrowly-defined contexts, the presumption applies that
the Legislature in enacting prescribed penalties and trial courts in imposing them have
each acted within constitutional bounds. (Wingo, supra, 14 Cal.3d at p. 174.) Reviewing
courts therefore do not have roving authority to order remand to fine tune a juvenile
defendant’s sentence with strict proportionality to his or her culpability and prospects for
reform. As a panel of this court explained in Perez, “There is no rule of constitutional
authority that requires discretion to reduce penalties when minors are sentenced for adult
crimes to periods which still leave them a substantial life expectancy after release from
prison.” (Perez, supra, 214 Cal.App.4th at p. 52, original italics.)
              In other words, Roper, Miller, Graham, and Caballero “do not apply to
sentences which leave the possibility of a substantial life expectancy after prison, i.e., are
not ‘de facto’ LWOP’s or ‘functional’ LWOP’s.” (Perez, supra, 214 Cal.App.4th at

                                              16
p. 52.) To conclude otherwise would put in question every mandatory sentencing
provision and effectively prohibit determinate sentencing in favor of judicially-calibrated
individualized sentencing, usurping the Legislature’s role. To the contrary, however,
reviewing courts must “grant substantial deference to the broad authority that legislatures
necessarily possess in determining the types and limits of punishments for crimes, as well
as to the discretion that trial courts possess in sentencing convicted criminal.” (Solem,
surpa, 463 U.S. at p. 290.)
              Perez did not involve the prospect of life in prison without parole because
the defendant’s two consecutive sentences of 15 years to life for offenses he committed at
age 16 made him eligible for parole no later than age 47. (Perez, supra, 214 Cal.App.4th
at pp. 51-52.) Accordingly, Perez held the per se rule of reversal in Miller and its line of
cases did not apply. Here, we similarly cannot ignore that under SB 260 Gonzalez will
be eligible for parole in his 25th year of incarceration when he is 46 years old. He does
not face the prospect of life in prison without the possibility of parole. Consequently,
Miller’s per se reversal based on imposition of a mandatory, irrevocable LWOP has no
applicability here. We therefore part company with Heard to the extent it required
remand for the trial court to fine tune the defendant’s sentence based on his youth, even
though under SB 260 his effective prison term was no longer tantamount to an LWOP.
              True, Gonzalez’s sentencing postdated Miller and predated SB 260.
Imposition of a mandatory LWOP at the time Gonzalez was sentenced, without
consideration of his youth and without the ameliorating effect of SB 260, constituted
error. SB 260, however, cured or rendered moot any error under Miller in the sentencing
hearing Gonzalez received.
              Gonzalez argues that if SB 260 is repealed, he will have lost the opportunity
“to present an accurate picture of his or her individual characteristics at the time of the
offense,” and even if there is no repeal or modification, it will be more difficult “years
down the road at a parole suitability hearing” to show his diminished culpability at the

                                              17
time of the offense based on his long-past youth. This challenge fails for two reasons.
First, the presentence or probation report, trial proceedings, and record of any pretrial
hearings or police investigation often describe a defendant’s youthful characteristics or
other mitigating circumstances. Moreover, it is the defendant’s responsibility to make a
record of mitigating circumstances and, if this is not done at trial or sentencing, to do so
in making a record for relief on habeas corpus. SB 260 does not alter the defendant’s
responsibility to make this record; nor would its repeal.3
              Second, we emphasize the particularized, as-applied considerations
Gonzalez raises are outside the domain of the bright-line challenges addressed in Roper,
Graham, Miller, and Caballero. As noted, SB 260 necessarily affects our review because
with the parole eligibility it affords, Gonzalez does not face the prospect of irrevocable
imprisonment that triggered reversal in those cases. Of course, the constitutional
prohibition against cruel and unusual punishment is not limited to the circumstances
identified in Miller and its antecedents. As noted in Perez: “[Q]uite apart from Miller,
Graham, Roper, or Caballero,” a defendant’s claim of disproportional punishment based
on the diminished culpability of youth may amount to a claim “his sentence must be
reduced under the older California Supreme Court jurisprudence of gross
disproportionality, as shown primarily in Lynch, supra, 8 Cal.3d 410 and Dillon, supra,
34 Cal.3d 441.” (Perez, supra, 214 Cal.App.4th at p. 60.) The federal Constitution
provides for a similar review for “‘extreme sentences that are “grossly disproportionate”



       3       We observe that the delayed consideration of a defendant’s youth under
SB 260 affords the juvenile time to build a mitigating record and demonstrate
rehabilitation. The delay also ameliorates the “great difficulty,” given the malleability of
youth, posed in accurately assessing at the outset in a sentencing hearing a youthful
offender’s prospects for reform. (Miller, supra, 132 S.Ct. at p. 2469 [noting problem “of
distinguishing at this early age between ‘the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption’”].)

                                             18
to the crime.’” (Ewing v. California (2003) 538 U.S. 11, 23.) We now turn to those
claims.

E.     As-Applied and IAC Challenges
              Gonzalez contends his LWOP sentence does not reflect his actual
culpability and prospects for reform. An as-applied challenge is subject to forfeiture,
however, and Gonzalez did not raise the issue of cruel and unusual or disproportionate
punishment below. Specifically, a challenge based on the particular characteristics of the
defendant or the offense may be forfeited by failing to raise it. (People v. DeJesus (1995)
38 Cal.App.4th 1, 27; Demirdjian, supra, 144 Cal.App.4th at p. 13 [correct term “is
forfeiture, not waiver”].) Forfeiture is particularly appropriate where resolution of factual
issues is necessary to determine whether the sentence is grossly disproportionate to the
offender’s culpability. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Nevertheless,
an appellate court may reach the issue on the record presented (Demirdijian, at p. 14),
often “‘in the interest of judicial economy to prevent the inevitable ineffectiveness-of-
counsel [IAC] claim.’” (People v. Em (2009) 171 Cal.App.4th, 964, 971, fn. 5.)
              Here indeed, Gonzalez asserts an IAC claim based on counsel’s failure to
object to “the statutorily-mandated sentence . . . in view of appellant’s individual
characteristics.” As Gonzalez phrases it: “Neither did counsel develop the record by
supplying evidence of appellant’s upbringing, family dynamics, educational difficulties,
or peer pressures, though some of that information is contained in the overall record from
the trial.” While Miller may have suggested to competent counsel the importance of
challenging even mandatory sentences for juvenile homicide defendants, we do not
resolve the IAC claim on that ground. To prevail on a claim counsel rendered
constitutionally defective assistance, the challenger must show his attorney’s
representation fell below an objective standard of reasonableness and that he suffered
prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland);



                                             19
People v. Ledesma (1987) 43 Cal.3d 171, 216.) Prejudice arises only if there is a
reasonable probability of a more favorable result absent counsel’s failings. (Strickland, at
p. 694.) We may first consider whether defendant suffered any prejudice from the
attorney’s alleged failings, without determining counsel failed to provide effective
representation. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
              The standard under the California Constitution for counsel to have obtained
a reduced sentence despite mandatory statutory provisions (see, e.g., Dillon) requires a
showing that Gonzalez’s punishment is “so disproportionate to the crime for which it is
inflicted that it shocks the conscience and offends fundamental notions of human
dignity.” (Lynch, supra, 8 Cal.3d at p. 424.) The showing must demonstrate the
punishment is grossly disproportionate in light of (1) the nature of the offense and the
defendant’s personal characteristics, (2) punishment for more serious offenses, and
(3) punishment for similar offenses in other jurisdictions. (Ibid.)
              The federal standard is virtually identical: “[A] court’s proportionality
analysis under the Eighth Amendment should be guided by objective criteria, including
(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed
on other criminals in the same jurisdiction; and (iii) the sentences imposed for
commission of the same crime in other jurisdictions.” (Solem, supra, 463 U.S. at p. 292.)
While Solem held “no one factor will be dispositive in a given case” (id. at p. 291,
fn. 17), Justice Kennedy has suggested the latter two factors need only be considered if
the defendant makes a threshold showing on the first factor that “comparison of the crime
committed and the sentence imposed leads to an inference of gross disproportionality.”
(Harmelin, supra, 501 U.S. at p. 1005 (conc. opn. of Kennedy, J.); but see Nunez, supra,
173 Cal.App.4th at p. 737, fn. 8 [noting this threshold requirement may be difficult to
assess in a vacuum, since it “excludes relevant evidence . . . in the judicial determination



                                             20
of contemporary standards of decency”].) In any event, Gonzalez does not seek judicial
notice of or discuss comparative intra- or interjurisdictional punishment.
              As before, SB 260 is relevant here in our analysis of Gonzalez’s as-applied
disproportionality challenge because his effective punishment does not include or even
approach life in prison without the possibility of parole. We conclude that even if
counsel had raised the challenge Gonzalez now faults him for omitting, there is no
possibility on the record presented on appeal he would have received in the trial court a
sentence with an earlier parole eligibility date than under SB 260. A direct perpetrator
acting without any provocation, he personally pulled the trigger to commit first degree
murder in a callous, senseless gang “turf” hit, tracking his defenseless victim down after
an initial encounter. His offense with enhancements ordinarily would preclude parole
eligibility for 50 years. Nothing in the record on appeal suggests he was an “unusually
immature youth” (Dillon, supra, 34 Cal.3d at p. 488) or that other mitigating
circumstances so diminished his culpability or showed such a likelihood of reform that
SB 260’s parole date was constitutionally insufficient. Gonzalez’s actions over the next
eight years after he murdered Cena demonstrated neither remorse, nor reform, but instead
a hardening criminality in committing additional felonies, including assaulting a peace
officer. His appellate challenge therefore fails.4




       4      Gonzalez has not filed a habeas petition, and we express no opinion on the
merits of such a petition.

                                             21
                                        III
                                  DISPOSITION
            The judgment is affirmed.




                                              ARONSON, J.

I CONCUR:



THOMPSON, J.




                                        22
BEDSWORTH, Acting P.J., Dissenting:


               I respectfully dissent.
               This started out as a concurrence. I agree with my colleagues that
appellant’s sentence is unconstitutional because it is a functional life without possibility
of parole sentence. I concur in their assessment that Senate Bill No. 260 (SB 260) should
remedy the problem. My only point of disagreement is over how to apply that remedy.
That seemed like a concurrence.
               Unfortunately, what we cannot agree on is a point that seems to me to
threaten appellant with a de facto life without possibility of parole sentence. My
colleagues have settled for giving him a very fine legal argument in 25 years. If, when he
reaches that point, he is told he gets no parole hearing, his habeas petition should be a
very strong one . . . by our lights.
               But we will not be hearing the case. And even if we were, the Constitution
does not guarantee appellant a good argument; it guarantees him a constitutional
sentence. I do not believe the majority opinion provides a guarantee, so I think I have to
call this a dissent.
               Here’s the problem. We all agree appellant’s 50-life sentence is
unconstitutional. We all agree application of SB 260’s provision for a parole hearing in
25 years would make it constitutional. That’s a lot of agreement on some difficult issues.
               What we disagree about is how to get SB 260 into appellant’s sentence.
For reasons another panel of this court described in People v. Solis (2014) 224
Cal.App.4th 727, I believe the only way to make that sentence constitutional at
imposition – which is what I think the law requires – is to make it a part of his judgment.
I believe it has to be included as part of his sentence nunc pro tunc. Otherwise, we’re not



                                              1
giving him relief so much as telling him we think some future court will give him relief
so he shouldn’t worry about it. That’s more aspiration than resolution.
               I think an appellate court has the power to say, “The only way to make this
sentence – which is not yet final – constitutional is to apply SB 260 to it, and we
therefore order that be done . . . in writing.” I think we should do that. My colleagues
see it differently.
               As my colleagues see it, all legislation “may be repealed or modified in the
future” and appellant may even get lucky and benefit from a new law someday that
reduces the time before his hearing even further. As they put it, “reviewing courts will
assess those changes in due course.” (Maj. opn., p. 15.) But that is precisely my concern.
               Just last year, in Doe v. Harris (2013) 57 Cal.4th 64, our Supreme Court
held that, “[T]he general rule in California is that the plea agreement will be ‘“deemed to
incorporate and contemplate not only the existing law but the reserve power of the state
to amend the law or enact additional laws for the public good and in pursuance of public
policy. . . .”‘ (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070). That the parties
enter into a plea agreement thus does not have the effect of insulating them from changes
in the law that the Legislature has intended to apply to them.”
               That seems to me a rather clear statement that even if you have bargained
with the state for a particular sentence, you roll the dice on legislative changes. How
much more precarious the position of a defendant who did not bargain for a sentence, but
was merely accorded one by operation of law? I don’t think telling appellant “‘reviewing
courts will assess those changes in due course’ and as we see it, they should rule in your
favor” passes constitutional muster.
               Nor did the court in In re Heard (2014) 223 Cal.App.4th 115. They
correctly pointed out there was a problem here. My colleagues feel it is corrected by



                                             2
their confidence future courts will apply SB 260 and give appellant a parole hearing in 25
years. But confidence is not the same as a constitutional sentence.
              If SB 260 is repealed between now and the vanishingly distant year of
2039, I have little difficulty constructing an argument for the prosecutor in this case who,
after removing her jetpack outside the court and downloading her powerpoint onto the
teleprompter, will urge, “SB 260 had not been enacted when appellant committed his
crime, it was not enacted when he was sentenced, and – having been repealed – is not
applicable now. It simply never applied to him.” I think appellant deserves more
protection against that argument than my reassurance in a concurrence that it doesn’t
seem right.
              I think he deserves a sentence that is constitutional ab initio. And I think
we can give it to him by amending the judgment by applying present law to it before it
becomes final.
              My colleagues’ response seems to be that “Reviewing courts . . . do not
have roving authority to order remand to fine tune a juvenile defendant’s sentence with
strict proportionality . . . .” (Maj. opn., p. 6.) I assume that is a reference to Solis, supra,
in which we ordered the sentence modified to reflect appellant’s entitlement to a parole
hearing 25 years hence and a new abstract of judgment prepared reflecting that. But if
they are correct that we do not have the power to do that, and if they are correct that no
appellate court has the power to do that, then we should admit the sentence is
unconstitutional and reverse.




                                            BEDSWORTH, ACTING P. J.


                                               3
