Filed 2/21/14

                             CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                  STATE OF CALIFORNIA



THE PEOPLE,                                     D064350

        Petitioner,                             (San Diego County
                                                Super. Ct. No. CR110487)
        v.

THE SUPERIOR COURT OF
SAN DIEGO COUNTY,

        Respondent;


MANUEL FLORES,

        Real Party in Interest.


        Petition for writ of mandate/prohibition from an order of the Superior Court of

San Diego County. Charles G. Rogers, Judge. Petition granted.

        Bonnie M. Dumanis, District Attorney, Laura E. Tanney, James E. Atkins and

Linh Lam, Deputy District Attorneys for Petitioner.

        No appearances for Respondent.

        Laura R. Sheppard for Real Party in Interest.
          In this case, we consider whether Penal Code section 1170, subdivision (d)(2)

(section 1170(d)(2)), regarding a juvenile offender's ability to petition for recall of his or

her sentence, applies to a juvenile offender serving a long-term sentence that is not

technically life without parole (LWOP). We conclude that it does not. We further reject

real party in interest's contention that, so interpreted, section 1170(d)(2) violates his right

to equal protection. (Undesignated statutory references are to the Penal Code.)

                                      BACKGROUND

          To provide background, we summarize the facts that led to Manuel Flores's

convictions from our prior opinion (People v. Flores (Mar. 24, 1993, D014326) [nonpub.

opn.]).

          In 1989, Flores and Christopher Box killed April Gilhousen, her three-year-old

son, Bryan, and Kevin Chandler during a robbery. They also attempted to kill Rodney

Almond who arrived at Gilhousen's home when the other crimes were taking place.

Flores admitted that he cut Chandler's throat with a box cutter and stabbed Gilhousen

with a knife.

          Flores was approximately 17 and one-half years old when he committed the

crimes. He was convicted of three counts of first degree murder, premeditated attempted

murder, robbery, burglary and conspiracy to commit robbery. Flores was sentenced to

three consecutive terms of 25 years to life in prison for the first degree murder

convictions plus one year for a knife allegation. He was also sentenced to a term of life

in prison for the attempted murder. The court stayed all other determinate term sentences



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pursuant to section 654. Box, an adult when the crimes were committed, was sentenced

to death.

       After serving approximately 22 years in prison, Flores petitioned the trial court to

recall his sentence under section 1170(d)(2). The People opposed Flores's petition,

contending section 1170(d)(2) was inapplicable because he was not sentenced to LWOP.

Flores argued the statute was applicable to him because his sentence of 76 years to life

was the functional equivalent of LWOP.

       The trial court granted Flores's petition and thereby recalled his sentence. The

court also set the matter for a resentencing hearing.

       The People filed a petition for writ of mandate/prohibition in this court, arguing

that the trial court acted in excess of its jurisdiction because section 1170(d)(2) does not

apply to Flores. We stayed the trial court's resentencing hearing and subsequently issued

an order to show cause why the relief the People requested should not be granted.

                                       DISCUSSION

                                   I. Section 1170(d)(2)

A. Issue Presented and Standard of Review

       The People's petition presents the legal question of whether section 1170(d)(2)

applies to long-term sentences that are not technically LWOP. The question presented

involves statutory interpretation, which presents a question of law subject to de novo

review. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 76-77.) Our goal is

to ascertain and carry out the Legislature's intent (Code Civ. Proc., § 1859), looking first

to the words of the statute, giving them their usual and ordinary meaning. (People v.

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Garcia (2002) 28 Cal.4th 1166, 1172.) If the language of the statute is susceptible to

more than one reasonable construction, we can look to the legislative history to aid in

ascertaining the legislative intent. (Diamond Multimedia Systems, Inc. v. Superior Court

(1999) 19 Cal.4th 1036, 1055.) "We are guided by the fundamental rule 'that the

objective sought to be achieved by a statute as well as the evil to be prevented is of prime

consideration in its interpretation.' " (People v. United Nat'l Life Ins. Co. (1967) 66

Cal.2d 577, 596, quoting Rock Creek Water Dist. v. County of Calaveras (1946) 29

Cal.2d 7, 9.)

B. Analysis

       In September 2012, California enacted Senate Bill No. 9 (SB 9), which amended

section 1170 by adding subdivision (d)(2). (Stats. 2012, ch. 828, § 1.) That subdivision

provides: "When a defendant who was under 18 years of age at the time of the

commission of the offense for which the defendant was sentenced to imprisonment for

life without the possibility of parole has served at least 15 years of that sentence, the

defendant may submit to the sentencing court a petition for recall and resentencing."

(§ 1170, subd. (d)(2)(A)(i), italics added.)

       One year later, California enacted Senate Bill No. 260 (SB 260), which added

section 3051, providing that "any prisoner who was under 18 years of age at the time of

his or her controlling offense" shall be afforded a "youth offender parole hearing." (Stats.

2013, ch. 312 (S.B. 260); § 3051, subds. (a)(1), (d).) Under the new law, a juvenile

offender with a determinate sentence of any length shall be eligible for release on parole

at a hearing during his or her 15th year of incarceration; a juvenile sentenced to an

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indeterminate term of less than 25 years to life would be eligible for release on parole at a

hearing during his or her 20th year of incarceration; and a juvenile sentenced to an

indeterminate term of 25 years to life would be eligible for release on parole at a hearing

during his or her 25th year of incarceration. (§ 3051, subd. (b).) Section 3051 does not

apply to individuals sentenced to life in prison without the possibility of parole. (§ 3051,

subd. (h).)

       SB 260 was a direct response to People v. Caballero (2012) 55 Cal.4th 262

(Caballero). (Stats. 2013, ch. 312 (S.B. 260), § 1.) In that case, our high court concluded

"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, at p. 268.) The court "urge[d] the Legislature to enact legislation establishing

a parole eligibility mechanism that provides a defendant serving a de facto life sentence

without the 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." (Id. at fn. 5.)

       In enacting SB 260, "[t]he Legislature recognize[d] 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." (Stats. 2013, ch. 312 (S.B. 260), § 1.) The Legislature expressly

stated that the purpose of the law "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

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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[, supra,] 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 (S.B. 260), § 1.) Thus, "[t]he

youth offender parole hearing to consider release shall provide a meaningful opportunity

to obtain release" and any psychological assessments utilized by the board in making its

parole determination must "take into consideration the diminished culpability of juveniles

as compared to that of adults, the hallmark features of youth, and any subsequent growth

and increased maturity of the individual." (§ 3051, subds. (e), (f)(1).)

       Despite the enactment of SB 260, Flores argues that the Legislature responded to

Caballero, supra, 55 Cal.4th 262 through SB 9 and intended to treat de facto LWOP

sentences the same as technical LWOP sentences. The language and legislative history

of section 1170(d)(2) do not support Flores's contention.

       The plain language of section 1170(d)(2) provides that it applies to juvenile

offenders "sentenced to imprisonment for life without the possibility of parole." (§ 1170,

subd. (d)(2)(A)(i), italics added.) There is nothing in the language that indicates the

Legislature intended for the statute to also apply to sentences that may be the functional

equivalent of life without the possibility of parole. Had the Legislature intended that

effect, we presume it would have expressly stated so. It is not "the province of this court

to rewrite the statute to imply an intent left unexpressed by the Legislature. . . . The

courts may not speculate that the legislature meant something other than what it said.

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Nor may they rewrite a statute to make it express an intention not expressed therein."

(People v. Burgio (1993) 16 Cal.App.4th 769, 778.)

       Even if we conclude that the language of the statute is susceptible to more than

one reasonable construction, its legislative history does not support Flores's argument that

the legislature responded to our high court's decision in Caballero with SB 9. SB 9 was

introduced in December 2010, which was nearly two years before the Caballero decision.

The bill went through multiple revisions with the last amendment on July 2, 2012, which

was more than a month before Caballero. The Senate passed SB 9 four days after the

decision in Caballero; however, there is no indication that they or the governor

responded to the Caballero decision.

       Further, the history of SB 9 shows the Legislature knew that in certain instances,

courts found long-term sentences for juvenile offenders constituted de facto LWOP

sentences. For example, in the analysis by the Assembly Committee on Public Safety,

the author referenced a case in which the court found a juvenile's sentence was cruel and

unusual punishment because it was a "de facto LWOP" sentence in that it did not provide

a meaningful opportunity for release during the offender's lifetime. (Assem. Com. on

Public Safety, Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.) as amended May 27,

2011, p. 10.) Despite its recognition of "de facto LWOP" sentences, the Legislature did

not include such language in SB 9.

       The legislative history of recently enacted SB 260 further supports the conclusion

that the Legislature did not intend for section 1170(d)(2) (the subject of SB 9) to apply to

long term sentences that are not technically LWOP. As stated in the analysis by the

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Assembly Committee on Appropriations, "[c]urrent law [(section 1170(d)(2))] allows an

inmate who was under 18 at the time of an offense that resulted in a term of life-without-

the-possibility-of parole (LWOP) (first-degree murder) to petition the court for

resentencing after 15 years. [SB 260] addresses the situation, the subject of People v[.]

Caballero, in which a youth is sentenced to life-with-the-possibility of parole, which may

serve as a de facto life sentence." (Assem. Com. on Appropriations, Analysis of Sen. Bill

No. 260 (2012-2013 Reg. Sess.) as amended Aug. 12, 2013, p. 2.) Accordingly, SB 260

filled the gap left after SB 9 and addressed Caballero.

       Based on the foregoing, we conclude section 1170(d)(2) does not apply to

offenders sentenced to long-term indeterminate sentences that are not technically LWOP.

Rather, section 3051 applies to those offenders, including Flores. Thus, the trial court

erred in granting Flores's petition under section 1170(d)(2).

                                    II. Equal Protection

       Flores argues that interpreting section 1170(d)(2) to apply only to offenders with

technical LWOP sentences violates his right to equal protection because with a de facto

LWOP sentence, he is similarly situated. We reject this argument.

       The Fourteenth Amendment to the United States Constitution provides that no

state shall "deny to any person within its jurisdiction the equal protection of the laws." A

similar requirement appears in the California Constitution, article I, section 7.




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       " ' " 'The first prerequisite to a meritorious claim under the equal protection clause

is a showing that the state has adopted a classification that affects two or more similarly

situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether

persons are similarly situated for all purposes, but 'whether they are similarly situated for

purposes of the law challenged.' " ' " (People v. Jeha (2010) 187 Cal.App.4th 1063,

1073, quoting People v. McKee (2010) 47 Cal.4th 1172, 1218-1219.)

       Here, Flores cannot show that he is similarly situated to offenders sentenced to

LWOP because his sentence is not the functional equivalent of LWOP. As previously

noted, after the enactment of section 3051 (SB 260), Flores has " 'some meaningful

opportunity to obtain release based on maturity and rehabilitation.' " (People v. Martin

(2013) 222 Cal.App.4th 98, 105 [finding that a sentence of 45 years plus two consecutive

life terms was not the functional equivalent of LWOP because newly enacted section

3051 provided him a meaningful opportunity for parole]; In re Alatriste (2013) 220

Cal.App.4th 1232, 1240 [finding that sentences of 77 years to life and 55 years to life did

not constitute cruel and unusual punishment because the sentences were not the

functional equivalent of LWOP where the Legislature subsequently enacted section 3051,

providing defendants a meaningful opportunity to obtain release on parole].) Thus,

Flores is not similarly situated to offenders with LWOP sentences and his equal

protection argument fails.




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                                       DISPOSITION

       Let a writ issue directing the superior court to vacate its order recalling Flores's

sentence under section 1170(d)(2) and setting a resentencing hearing. The trial court is

directed to enter a new order dismissing Flores's petition for recall and resentencing. The

stay issued by this court on August 8, 2013 is vacated.



                                                                              McINTYRE, J.

WE CONCUR:


HUFFMAN, J.


BENKE, Acting P. J.




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