Filed 8/30/16 Certified for Publication 9/22/16 (unmodified version attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                                  G050927

        v.                                                     (Super. Ct. No. 12WF0669)

JOSHUA PEREZ,                                                  ORDER MODIFYING OPINION AND
                                                               DENYING PETITION FOR
    Defendant and Appellant.                                   REHEARING; CHANGE IN
                                                               JUDGMENT


                 It is ordered that the opinion filed on August 1, 2016, be modified in the
following particulars:
                 On page 1, first paragraph, the second sentence is modified to read in full,
“Affirmed and remanded with directions.”
                 On page 2, the first full paragraph is deleted and replaced with the
following:
                 “Joshua Perez appeals from a judgment after a jury convicted him of three
counts of attempted premeditated murder, discharging a firearm with gross negligence,
and vandalism and found true firearm enhancements. Perez argues his 86-years-to-life
sentence constitutes cruel and unusual punishment. Although we disagree his 86-years-
to-life sentence constitutes cruel and unusual punishment, we must remand the matter for
further proceedings consistent with this opinion. We affirm the judgment and order a
limited remand.”
              On page 3, second full paragraph, the third sentence is modified to read in
full, “Both the prosecution and Perez‟s defense counsel filed sentencing briefs; Perez
argued, among other things, that although he was not a juvenile, his youth meant the
maximum sentence would constitute cruel and unusual punishment.”
              On page 6, first full paragraph is deleted and replaced with the following:
              “Perez was 20 years old when he committed the offenses and, therefore, he
was not a juvenile. Thus, pursuant to the factors articulated in Miller, supra, 567 U.S.
___ [132 S.Ct. at pp. 2468-2469], and adopted in Gutierrez, supra, 58 Cal.4th at pages
1388-1390, Perez‟s sentence of 86-years-to-life sentence did not constitute cruel and
unusual punishment. That does not end our inquiry however.
              In response to Graham, Miller, and Caballero, the California Legislature
passed Senate Bill No. 260, which became effective January 1, 2014, and enacted
sections 3051, 3046, subdivision (c), and 4801, subdivision (c), to provide a parole
eligibility mechanism for juvenile offenders. Section 3051, subdivision (b), requires the
Board of Parole Hearings to conduct a “youth offender parole hearing” during the 15th,
20th, or 25th year of a juvenile offender‟s incarceration depending on the controlling
offense. (§ 3051, subd. (b).) A juvenile offender whose controlling offense carries a
term of 25 years to life or greater is “eligible for release on parole by the board during his
or her 25th year of incarceration at a youth offender parole hearing, unless previously
released or entitled to an earlier parole consideration hearing pursuant to other statutory
provisions.” (§ 3051, subd. (b)(3).) Section 3051, subdivision (h), excludes several
categories of juvenile offenders, none of which are applicable here. (§ 3051, subd. (h).)
In October 2015, the Legislature amended section 3051, and effective January 1, 2016,
anyone who committed his or her controlling offense before reaching 23 years of age is

                                              2
entitled to a youth offender parole hearing. (§ 3051, subd. (a)(1), Stats. 2015, ch. 471, §
1, pp. 4174-4176.)
              A few months ago, the California Supreme Court filed its opinion in People
v. Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, the trial court sentenced
defendant to two mandatory terms of 25 years to life for offenses committed when he was
16 years old. The court held defendant‟s constitutional challenge to the sentence had
been mooted by the enactment of sections 3051 and 4801, which gave defendant the
possibility of release after 25 years of imprisonment. (Franklin, supra, 63 Cal.4th at p.
268.) The court concluded that although resentencing was unnecessary, the court had to
remand the matter because it could not determine whether defendant had sufficient
opportunity in the trial court “to put on the record the kinds of information that sections
3051 and 4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63
Cal.4th at p. 284.) The court concluded as follows: “If the trial court determines that
[defendant] did not have sufficient opportunity, then the court may receive submissions
and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule
4.437 of the California Rules of Court, and subject to the rules of evidence. [Defendant]
may place on the record any documents, evaluations, or testimony (subject to cross-
examination) that may be relevant at his eventual youth offender parole hearing, and the
prosecution likewise may put on the record any evidence that demonstrates the juvenile
offender‟s culpability or cognitive maturity, or otherwise bears on the influence of youth-
related factors.” (Franklin, supra, 63 Cal.4th at p. 284.)1
              Here, the trial court sentenced Perez in October 2014. Effective January 1,
2016, section 3051 provided youth offender parole hearings for those who committed

1             In his petition for rehearing, Perez argues the Legislature‟s amendment of
section 3051 and the Supreme Court‟s decision in Franklin, supra, 63 Cal.4th 261, both
of which occurred after briefing was complete in this case, require a limited remand. We
invited the Attorney General to file an answer to Perez‟s petition for rehearing. The
Attorney General declined our invitation.

                                              3
their controlling offense under 23 years of age, and in May 2016, the Supreme Court
decided Franklin, supra, 63 Cal.4th 261. The record establishes Perez did not have a
sufficient opportunity to put on the record the kinds of information that sections 3051 and
4801 deem relevant at a youth offender parole hearing. Thus, we order a limited remand
for both parties “to make an accurate record of the juvenile offender‟s characteristics and
circumstances at the time of the offense so that the Board, years later, may properly
discharge its obligation to „give great weight to‟ youth-related factors . . . in determining
whether the offender is „fit to rejoin society‟ despite having committed a serious crime . .
. .” (Franklin, supra, 63 Cal.4th at p. 284.)
                                       DISPOSITION
              The matter is remanded for the limited purpose of affording both parties the
opportunity to make an accurate record of Perez‟s characteristics and circumstances at the
time of the offense as set forth in Franklin, supra, 63 Cal.4th 261. In all other respects,
the judgment is affirmed.”


              The petition for rehearing is DENIED. This modification does effect a
change in judgment.




                                                    O‟LEARY, P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.


                                                4
Filed 8/1/16 (unmodifed version) Certified for Publication 9/22/16 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                      G050927

        v.                                                         (Super. Ct. No. 12WF0669)

JOSHUA PEREZ,                                                      OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                 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, Julie L. Garland, Assistant Attorney General, Collette Cavalier and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
              Joshua Perez appeals from a judgment after a jury convicted him of three
counts of attempted premeditated murder, discharging a firearm with gross negligence,
and vandalism and found true firearm enhancements. Perez argues his 86-years-to-life
sentence constitutes cruel and unusual punishment. We disagree and affirm the
judgment.
                                          FACTS
              One evening, “Mobbing our Professions Crew” (MOPC) gang member
Julio Diaz and MOPC associates Gregorio Ariza and Christian Rodriguez were in front of
Ariza‟s apartment. A dark colored car stopped in front of a nearby home. Two heavyset
Hispanics were in the car. Moments later, someone fired several shots at Diaz,
Rodriguez, and Ariza. The gunman yelled “EBK” and ran away. MOPC and the “Every
Body Killer” (EBK) gang were rival gangs, and they had recent skirmishes. Diaz
suffered gunshot wounds to his torso and lower back.
              The next day, officers interviewed 20-year-old Perez at the police
department. After waiving his rights pursuant to Miranda v. Arizona (1966) 384 U.S.
436, Perez admitted he had a “beef” with Diaz and they had fought in the past. Perez
initially denied any involvement in the shooting. Perez eventually admitted he “did it,”
claiming he did so because Diaz was going to “smoke” him. Perez claimed he “did it all
[him]self” because he was “tired of that guy.” Perez admitted he unloaded his weapon, a
.45 caliber handgun, at the three victims. He disposed of the gun in the ocean; officers
found .45 caliber ammunition in a box in his bedroom. Perez admitted he yelled “EBK”
after the shooting.
              An amended information charged Perez with three counts of attempted
premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a), all further statutory
references are to the Pen. Code) (counts 1-3), discharging a firearm with gross negligence
(§ 246.3, subd. (a)) (count 4), street terrorism (§ 186.22, subd. (a)) (count 5), vandalism
(§ 594, subds. (a) & (b)(1)) (count 6), and gang-related vandalism (§§ 186.22, subd. (d),

                                              2
594, subds. (a) & (b)(1)) (count 7).2 The information alleged Perez committed counts 1,
2, 3, 4, and 6 for the benefit of a criminal street gang (§ 186.22, subd. (b)). As to count 1,
the information alleged he personally discharged a firearm causing great bodily injury
(§ 12022.53, subd. (d)). With respect to counts 2 and 3, the information alleged he
personally discharged a firearm (§ 12022.53, subd. (c)).
              At trial, Perez testified that on the night of the shooting he drank two 40
ounce beers. Perez got his gun and walked to his friend‟s house. When Perez saw Diaz,
he shot in Diaz‟s direction to scare him. He did not shoot directly at him and was not
trying to kill anyone.
              The jury convicted Perez of counts 1, 2, 3, 4, and 6 but acquitted him of
counts 5 and 7. The jury found true the premeditation and firearm enhancements. Both
the prosecution and Perez‟s defense counsel filed sentencing briefs; Perez argued, among
other things, the maximum sentence would constitute cruel and unusual punishment.
              The trial court sentenced Perez to a determinant term of 40 years in prison
and an indeterminate term of 46 years to life in prison as follows: count 1-seven years to
life plus 25 years to life for the personal use of a firearm enhancement; count 2-seven
years to life plus 20 years for the personal use of a firearm enhancement; and
count 3-seven years to life plus 20 years for the personal use of a firearm enhancement.
The court imposed two-year consecutive sentences on counts 4 and 6.
                                       DISCUSSION
              The United States Supreme Court has made it clear that absent gross
disproportionality in the defendant‟s sentence, no Eighth Amendment violation will be
found. (See, e.g., Ewing v. California (2003) 538 U.S. 11 [upholding 25-years-to-life
sentence for grand theft with priors]; Lockyer v. Andrade (2003) 538 U.S. 63 [upholding
50-years-to-life sentence for petty thefts with priors].) Similarly, a sentence will not be

2             Counts 4, 5, 6, and 7 concern events that occurred on other occasions and
are not relevant to the issues presented in this appeal.

                                              3
found unconstitutional under the California Constitution unless it is so disproportionate to
the defendant‟s crime and circumstances that it shocks the conscience or offends
traditional notions of human dignity. (See People v. Dillon (1983) 34 Cal.3d 441;
In re Lynch (1972) 8 Cal.3d 410, 424.)
              In Roper v. Simmons (2005) 543 U.S. 551, 575 (Roper), the Court held the
imposition of capital punishment on juvenile offenders for any offense whatsoever
violated the Eighth Amendment. In Graham v. Florida (2010) 560 U.S. 48, 74
(Graham), the Court held the imposition of a life-without-possibility-of-parole sentence
on a juvenile offender for a nonhomicide offense violated the Eighth Amendment.
Finally, in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 2464, 2469] (Miller),
the Court held “the Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders,” although a trial court could in
its discretion impose such a sentence after considering how children are different and
how the differences weigh against a life sentence.
              In People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero), the
California Supreme Court concluded that, under the reasoning of these United States
Supreme Court cases, “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.”
              Relying on Roper, Graham, Miller, and Caballero, Perez, who was
20 years old at the time of the offenses, argues their rationales although “not directly
applicable to him,” should “appl[y] equally to defendants of [his] age.” Perez
acknowledges two cases from the Second District, Division Four, People v. Argeta
(2012) 210 Cal.App.4th 1478 (Argeta), and People v. Abundio (2013) 221 Cal.App.4th
1211 (Abundio), rejected similar claims.



                                              4
               In Argeta, supra, 210 Cal.App.4th at page 1482, the court stated as follows:
“[Defendant] was 18 and was convicted of first-degree murder as a principal. His
counsel argue[d] that since the crime was committed only five months after [defendant‟s]
18th birthday the rationale applicable to the sentencing of juveniles should apply to him.
We do not agree. These arguments regarding sentencing have been made in the past, and
while „[d]rawing the line at 18 years of age is subject . . . to the objections always raised
against categorical rules . . . [, it] is the point where society draws the line for many
purposes between childhood and adulthood.‟ [Citations.] Making an exception for a
defendant who committed a crime just [five] months past his 18th birthday opens the
door for the next defendant who is only six months into adulthood. Such arguments
would have no logical end, and so a line must be drawn at some point. We respect the
line our society has drawn and which the United States Supreme Court has relied on for
sentencing purposes, and conclude [defendant‟s] sentence is not cruel and/or unusual
under Graham, Miller, or Caballero.” (See Abundio, supra, 221 Cal.App.4th at
pp. 1220-1221.)
               We conclude the reasoning in Argeta is persuasive and adopt it here. Thus,
because Perez was not a juvenile at the time of the offenses, Roper, Graham, Miller, and
Caballero are not applicable. We decline Perez‟s invitation to conclude new insights and
societal understandings about the juvenile brain require us to conclude the bright line of
18 years old in the criminal sentencing context is unconstitutional. Our nation‟s, and our
state‟s, highest court have concluded 18 years old is the bright line rule and we are bound
by their holdings. (People v. Bradley (1969) 1 Cal.3d 80, 86 [Courts of Appeal bound by
Supreme Court of United States on federal law matters]; Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455 [Courts of Appeal bound by Supreme Court
precedent].)
               Perez contends that if this court concludes Miller and Caballero “do not
categorically apply” to him, the considerations in those cases and others concerning

                                               5
juveniles do apply in a proportionally analysis. He cites to language from People v.
Gutierrez (2014) 58 Cal.4th 1354, 1380, where the court, citing to Miller, stated,
“[D]evelopmental immaturity persists through late adolescence. [Citations.]” Perez‟s
reliance on Gutierrez is misplaced. Gutierrez involved two 17-year-old offenders who
were sentenced to life without the possibility of parole. (Id. at p. 1360.) The Gutierrez
court considered the sentences in light of section 190.5, subdivision (b), a statute
concerning 16 and 17 year olds who commit special circumstances murder, and Miller.
(Gutierrez, supra, 58 Cal.4th at p. 1360.) None of the concerns present in Gutierrez are
present here.
                Perez was 20 years old when he committed the offenses and, therefore, he
was not a juvenile. Thus, the factors articulated in Miller, supra, 567 U.S. ___ [132 S.Ct.
at pp. 2468-2469] are not relevant here. Because we conclude the Miller factors are not
relevant here, to a non-juvenile, we need not remand the matter to the trial court to
consider those factors.
                                      DISPOSITION
                The judgment is affirmed.




                                                  O‟LEARY, P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




                                              6
Filed 9/22/16
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                           G050927

        v.                                              (Super. Ct. No. 12WF0669)

JOSHUA PEREZ,                                           ORDER GRANTING REQUEST
                                                        FOR PUBLICATION
    Defendant and Appellant.


                  The First District Appellate Project has requested that our opinion filed
August 1, 2016, as modified on August 30, 2016, be certified for publication. It appears
that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c).
The request is GRANTED.
                  The opinion is ordered published in the Official Reports.




                                                     O‟LEARY, P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.
