Filed 6/30/16 P. v. Itehua CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B265575

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA128373)
         v.

ISRAEL LORENZO ITEHUA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
John A. Torribio, Judge. Affirmed as modified.


         Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell,
Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
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          A jury convicted Israel Lorenzo Itehua (defendant) of two counts of attempted
murder, and the trial court sentenced him to prison for 85 years to life. On appeal,
defendant argues that his sentence should be reduced (1) because the five-year
enhancement imposed under Penal Code section 12022.7,1 subdivision (b) is duplicative
of the 25-year enhancement under section 12022.53, subdivision (d) and (2) because 85
years is a de facto life sentence, which constitutes cruel and unusual punishment for
juveniles and for adults who are close to the age of majority. Defendant’s first argument
has merit; his second does not. We accordingly vacate the five-year enhancement and,
due to a mathematical error, order that defendant receive two additional days of custody
credit.
                          FACTS AND PROCEDURAL HISTORY
          Defendant is a member of the 18th Street gang. In November 2012, defendant and
two other gang members approached an apartment complex during a child’s birthday
party. When one of the attendees told them that children were present, one of
defendant’s cohorts told her, “I don’t give a fuck, bitch . . . . We’re from 18th Street,” and
punched her in the face. A few moments later, defendant pulled out a gun and opened
fire on the attendee’s adult sister; one of the bullets permanently paralyzed her from the
chest down. As defendant and the others fled, defendant shot a homeless man who was
in front of the apartment complex four times.
          The People charged defendant with the willful, deliberate and premeditated
attempted murder of (1) the party attendee (§§ 187, subd. (a) & 664), and (2) the
homeless man (ibid.).2 The People further alleged that defendant personally and
intentionally discharged a firearm and proximately caused great bodily injury
(§ 12022.53, subd. (d)), that he personally inflicted great bodily injury (§ 12022.7,




1         All further statutory references are to the Penal Code unless otherwise indicated.

2      The People also charged defendant’s two cohorts with both attempted murders and
one of his cohorts with robbery (§ 211). Only defendant’s case is before us now.

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subd. (b)), and that the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(4)).
       A jury convicted defendant of both counts of willful, deliberate and premeditated
attempted murder and also found true the firearm allegation, the great bodily injury
allegation and the gang allegation.
       The trial court imposed a prison sentence of 85 years to life. Specifically, the
court imposed a prison sentence of 45 years to life on the first attempted murder count,
comprised of 15 years to life on the attempted murder (§ 186.22, subd. (b)(5) [requiring
minimum 15-year term for any crime punishable by life in prison]), plus an additional 25
years for the personal and intentional discharge of a firearm causing great bodily injury
(§ 12022.53, subd. (d)), plus another five years for personally inflicting great bodily
injury (§ 12022.7, subd. (b)). The court then imposed a consecutive prison sentence of
40 years to life on the second attempted murder count, comprised of 15 years to life on
the attempted murder plus 25 years for the intentional discharge enhancement.
       Defendant timely appeals.
                                       DISCUSSION
I.     Must the Section 12022.7 Enhancement Be Stayed?
       Defendant argues that the trial court erred in imposing the five-year enhancement
for personally inflicting great bodily injury under section 12022.7, subdivision (b) and
imposing the 25-year enhancement for personally and intentionally discharging a firearm
causing great bodily injury under section 12022.53, subdivision (d). As the People
concede, defendant is correct. Section 12022.53, subdivision (f) explicitly provides that
“[a]n enhancement for great bodily injury as defined in Section 12022.7 . . . shall not be
imposed on a person in addition to an enhancement imposed pursuant to [section
12022.53,] subdivision (d).” (§ 12022.53, subd. (f).) As a result, the court should have
imposed but stayed the section 12022.7 enhancement. (See People v. Gonzalez (2008)
43 Cal.4th 1118, 1129-1130 [noting that a stay of the second enhancement is
appropriate].) Defendant’s sentence on the first attempted murder count should be
reduced to 40 years to life, and his total sentence revised to 80 years to life.

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II.   Does Defendant’s 80-Year Sentence Constitute Cruel and Unusual
Punishment?

       Defendant next contends that a sentence of 80 years to life is a de facto life
sentence without the possibility of parole; that the imposition of such a sentence upon a
juvenile constitutes cruel and unusual punishment under People v. Caballero (2012)
55 Cal.4th 262 (Caballero); and that he should be treated as a juvenile—and we
accordingly should apply Caballero to him—because he committed the attempted
murders just 14 months after his 18th birthday. “Whether a punishment is cruel and/or
unusual is a question of law subject to our independent review.” (People v. Palafox
(2014) 231 Cal.App.4th 68, 82-83 (Palafox).)
       Both the United States and California Constitution prohibit the imposition of
excessive sentences: The United States Constitution bars the imposition of “cruel and
unusual punishments” (U.S. Const., 8th Amend., italics added), while our state
Constitution decries any “[c]ruel or unusual punishment” (Cal. Const., art. I, § 17, italics
added). In the context of evaluating the constitutionality of juvenile sentences, the
difference in language does not translate to a difference in analysis. (See Palafox, supra,
231 Cal.App.4th at p. 83; People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7.)
Under both standards, courts look to the “‘evolving standards of decency that mark the
progress of a maturing society.’” (Estelle v. Gamble (1976) 429 U.S. 97, 102, quoting
Trop v. Dulles (1958) 356 U.S. 86, 101 (plur. opn. of Warren, J.); People v. Clark (1970)
3 Cal.3d 97, 99.)
       Over the last decade, the United States and California Supreme Courts have
construed the constitutional guarantee against cruel and unusual punishment to place
ever-greater limits on the range of sentences that may be imposed upon juvenile
offenders. In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the Court held that a
person who was a juvenile at the time of his or her crime could not be sentenced to death.
(Id. at p. 568.) Five years later, the Court in Graham v. Florida (2010) 560 U.S. 48
(Graham) held that a person who was a juvenile at the time of committing a crime other
than homicide could not be sentenced to life without the possibility of parole. (Id. at

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p. 74.) Unlike adult offenders, Graham reasoned, juvenile offenders are entitled to
“some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation,” and a sentence of life without the possibility of parole denies them such
an opportunity. (Id. at p. 75.) Two years later, the Court in Miller v. Alabama (2012)
132 S.Ct. 2455 (Miller) extended Graham to homicides, ruling that any person who was a
juvenile at the time he committed any crime could not be sentenced to life without the
possibility of parole. (Id. at p. 2464; see also Montgomery v. Louisiana (2016) 136 S.Ct.
718, 735-736 (Montgomery) [ruling that Miller applies retroactively to cases on collateral
review].) Seven weeks after Miller was handed down, our Supreme Court in Caballero
held that Miller’s rule applied to a determinate term of years if that term was so long that
it “falls outside the juvenile offender’s natural life expectancy” and thus amounts to a “de
facto” sentence of life without the possibility of parole. (Caballero, supra, 55 Cal.4th at
pp. 265, 268-269.)
       This line of authority has repeatedly cited three reasons for its differential
treatment of juveniles: (1) “children have a ‘“lack of maturity and an underdeveloped
sense of responsibility,”’ leading to recklessness, impulsivity, and heedless risk-taking
[citation]”; (2) “children ‘are more vulnerable . . . to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘contro[l] over their
own environment’ and lack the ability to extricate themselves from horrific, crime-
producing settings [citation]”; and (3) “a child’s character is not as ‘well formed’ as an
adult’s; his traits as ‘less fixed’ and his actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity]’ [citation].” (Miller, supra, 132 S.Ct. at p. 2464, quoting
Roper, supra, 543 U.S. at pp. 569-570; see also Montgomery, supra, 136 S.Ct. at p. 733;
Graham, supra, 560 U.S. at p. 68; Caballero, supra, 55 Cal.4th at p. 266.)
       This line of authority has also steadfastly used the same definition of a juvenile
offender—namely, a person who was under the age of 18 when he committed his
crime(s). (Miller, supra, 132 S.Ct. at p. 2460; Graham, supra, 560 U.S. at pp. 74-75;
Roper, supra, 543 U.S. at p. 568; see also Caballero, supra, 55 Cal.4th at p. 266
[applying cases to a 16-year-old defendant].)

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       Defendant asks us to redefine a juvenile offender—and thereby to extend the
constitutional protections afforded to such an offender—as anyone, regardless of age,
who possesses the same lack of maturity, vulnerability to negative influences, and lack of
fully formed character as a juvenile. Defendant makes two arguments in support of his
position.
       First, defendant asserts that “‘youth is more than a chronological fact’” (Miller,
supra, 132 S.Ct. at p. 2467, quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 115), and
that many persons over the age of 18 at the time they commit a crime suffer from the
same psychological and developmental infirmities as juveniles. Defendant argues that
age is like IQ, and the United States Supreme Court has refused to limit the Eighth
Amendment’s bars on the execution of persons with “intellectual disabilit[ies]” to only
those whose IQ’s are 70 or lower. (Hall v. Florida (2014) 134 S.Ct. 1986, 1990 (Hall).)
Defendant also cites People v. Clark (Ill.App.Ct. 2007) 869 N.E.2d 1019, 1036, 1038-
1039, 1041-1042 (Clark), in which the Illinois Court of Appeal reduced an 18-year-old’s
sentence.
       The chief defect with defendant’s argument is that its premise has already been
rejected by the United States and California Supreme Courts. In Roper, the Court
explained: “Drawing the line at 18 years of age is subject, of course, to the objections
always raised against categorical rules. The qualities that distinguish juveniles from
adults do not disappear when an individual turns 18. By the same token, some under 18
have already attained a level of maturity some adults will never reach. . . . The age of 18
is the point where society draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”
(Roper, supra, 543 U.S. at p. 574; Graham, supra, 560 U.S. at pp. 74-75 [same]; People
v. Gutierrez (2014) 58 Cal.4th 1354, 1380 [same]; see also People v. Gamache (2010)
48 Cal.4th 347, 404-405 [declining to extend protections granted to juvenile offenders to
an 18 year old]; People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221 [same];
People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 [same].) Even if we were at liberty
to ignore this binding precedent (which we are not), neither Hall nor Clark dictates a

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different result. Hall held that the constitutional line for “intellectual disability” could
not be defined solely by one’s IQ. (Hall, supra, 134 S.Ct. at p. 1990.) Here, defendant is
not asking us to place limits on how we define the constitutional line for “juveniles”; he
is asking us to move that line to offenders of any age who have the psychological or
developmental make-up of juveniles. For its part, Clark merely held that a defendant’s
44-year sentence should be reduced to 36 years in light of certain mitigating factors; it
had nothing to do with the constitutional limits on juvenile sentences. (Clark, supra,
869 N.E.2d at pp. 1036, 1038-1039, 1041-1042.)
       Second, defendant points to the evolution of section 3051. In 2013, our
Legislature enacted that statute to grant persons who committed crimes while under the
age of 18 and who were sentenced to indeterminate life sentences or to determinate terms
of 15 years or longer the right to a “youth offender parole hearing” (§ 3051), ostensibly to
satisfy Graham’s requirement that juvenile offenders have a “meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation” (Graham, supra,
560 U.S. at p. 75).3 In 2015, our Legislature amended section 3051 to extend the right to
these hearings to anyone who was “under 23 years of age at the time of his or her
controlling offense.” (§ 3051, subd. (a)(1).) Defendant asserts that this expansion is
evidence of our Legislature’s view that offenders over the age of 18 (and under the age of
23) should be treated the same as chronologically juvenile offenders. This overlooks a
critical point: The protections our Legislature chooses to grant as a matter of legislative
grace do not alter the constitutional commands of the cruel and unusual punishment
provisions. (Accord, People v. Trujillo (2006) 40 Cal.4th 165, 174 [“‘that is a matter of
legislative grace, not constitutional command’”], quoting Monge v. California (1998)
524 U.S. 721, 734.) What is more, defendant is a beneficiary of our Legislature’s grace,
as he—an offender under the age of 23—will be entitled to a “youth offender parole
hearing.”


3      The constitutional adequacy of these alternative proceedings is pending before our
Supreme Court in In re Alatriste, review granted February 19, 2014, S214652 and In re
Bonilla, review granted February 19, 2014, S214960.

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       For all these reasons, we reject defendant’s argument that his sentence constitutes
cruel and unusual punishment.
III.   Is Defendant Entitled to Two More Days of Custody Credit?
       Defendant lastly argues that he was in custody from November 7, 2013, until his
sentencing hearing on May 21, 2015, and that the trial court committed a mathematical
error in giving him only 559 days of custody credit rather than 561 days. We agree. “A
defendant is entitled to actual custody credit for ‘all days of custody’ . . . including partial
days. [Citations.] Calculation of custody credit begins on the day of arrest and continues
through the day of sentencing.” (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48;
§ 2900.5, subd. (a).) Because there are 561 days between November 7, 2013 and May
21, 2015, including those first and last days, defendant is entitled to two more days of
custody credit. This does not alter his entitlement to good time/work time credits.
                                       DISPOSITION
       The judgment is ordered modified by staying the five-year sentence for personal
infliction of great bodily injury under section 12022.7, subdivision (b) and by awarding
defendant 561 days of actual custody credit. The clerk of the superior court is directed to
forward a certified copy of the corrected abstract of judgment to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                           _______________________, J.
                                                           HOFFSTADT
We concur:


________________________, P.J.
BOREN


________________________, J.
CHAVEZ




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