Filed 10/31/14 P. v. Madrid CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B246626

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA090086)
         v.

MICHAEL MADRID et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County. Tia
Fisher, Judge. The judgments are affirmed as modified.
         Mark S. Givens, under appointment by the Court of Appeal, for Defendant and
Appellant Michael Madrid.
         Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant Francisco Ramos.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for
Plaintiff and Respondent.
                                        _________________________
       Appellant Michael Madrid was convicted by jury of five counts of attempted
murder. The jury found gun use allegations under Penal Code section 12022.53,
subdivisions (b), (c), (d) and (e) to be true, as well as a gang allegation under Penal Code
section 186.22, subdivision (b)(4).
       Codefendant, Francisco Ramos, was convicted by jury of two counts of attempted
murder. The jury found the same gun use and gang allegations to be true as to Ramos.
       Both appellants contend their right to due process was violated by the giving of
instructions on a kill zone theory that was not supported by the evidence. Additionally,
Madrid contends that his sentence of 50 years to life constitutes cruel and unusual
punishment under the Eighth Amendment to the United States Constitution.
                                      BACKGROUND
       On March 13, 2010, around 10:30 or 11:00 p.m., a group of people were standing
outside in a corridor between two apartment buildings on South Buena Vista in Pomona.
They had been guests at a baby shower for Crystal Medrano that had just ended. The
group included Crystal Medrano, Deanna Campos (Medrano’s sister), David Campos
(Deanna’s husband), and Javier Acevedo.
       There was a driveway on one side of the corridor and a walkway with a fence and
bushes on the other.
       Crystal Mejia drove to the location with her sister, Candace Salazar, and her uncle,
Jaime Arellano. They joined the group in the corridor. Crystal Medrano was sitting with
her sister, Mejia and Salazar while the three men were standing a short distance away.
Mejia saw someone come up the driveway wearing a black baseball cap with a yellow
letter “P” on it. (In court she identified the person as codefendant Michael Madrid.) She
heard him say “‘This is Happy Town. Fuck Twat Street.’” She saw Madrid pull a gun
out of his waistband and she immediately started running. As Mejia was running she
heard about five gunshots. About 10 seconds later, she saw Madrid pointing the gun at
her so she turned the other way and shielded her face with her arm. A few seconds later,
she started hearing shots again so she turned back toward Madrid and saw him walking
down the walkway shooting toward the other people in the group who were running

                                             2
away. Madrid was about 10 feet from Crystal Medrano and Deanna Campos when he
shot at them as they ran down the corridor.
      Mejia testified that she heard about 14 gunshots that sounded as if they were
coming from different guns. One was very loud, “like a loud boom” while the other was
more of a “popping noise.”
      After Mejia heard the gunshots stop, she saw Madrid run around the back of the
apartment building.
      Later that night, Mejia told an officer who responded to the location that she was
unsure she could identify the shooter. She was scared and feared for her safety. The day
after the shootings she was shown a series of photographs but was unable to make an
identification. About 10 days later she was shown more photographs and identified
Madrid as the shooter. At the preliminary hearing both Mejia and Medrano identified
Madrid as the gunman.
      Crystal Medrano was sitting with the other women when she noticed someone
outside the fence looking at them. The person came up the driveway and said to the
group of men, “‘Fuck 12th Street, Happy Town,’” or “‘Happy Town, Fuck 12th Street.’”
Medrano turned to look at him and saw him pull out something from his waistband, point
a gun at the group and begin shooting.
      As soon as she saw the gun, Medrano started to run toward her sister’s apartment
which was located in the middle of the apartment building to the left of the corridor. As
she was running she saw another person at the back of the building pointing a gun; she
could not actually see the person, but she could see “sparks coming out of a gun.” She
heard between 14 and 16 gunshots and was hit in her stomach.
      Deanna Campos1 saw a person walk by who gave the group “an ugly look.”
Seconds later, she saw that same person come around the corner, approach them and say
“Fuck 12th Street. This is Happy Town.” She saw that he was struggling with something
in his waistband and thinking it was probably a gun, she took off running along with her

      1   For clarity, we will refer to David and Deanna Campos by their first names.

                                              3
sister. As she was running she saw a second person on the walkway. She heard 12 to 15
gunshots that did not sound as if they all came from the same gun. Deanna was unable to
identify either person.
       Deanna was shot twice, once in her left elbow and the other in her knee. She fell
to the ground after her leg was hit. She was in the hospital almost a month due to her
injuries. She has had two surgeries on her knee and still does not have full use of her leg.
Her elbow was shattered in four places and also required two surgeries. She does not
have full use of her left arm and because she is left-handed, she had to learn to do things
with her right hand. She is in constant pain because two nerves in her arm were hit.
       David Campos saw two individuals come up the walkway. He noticed that one of
them “was reaching for his waistband struggling to pull something out.” Although he
had a lot of beer that night and was intoxicated, he ran. He saw flashes of light reflected
on the apartment as he was running away and heard several gunshots. He also heard
them saying “Fuck Happy Town, 12th Street.” David was shot three times, once in his
chest, once in his lower abdomen and once in his left hand. He was unable to bend two
of the fingers on his left hand as a result of the gunshot wounds.
       Javier Acevedo did not see the person walk up to the group. He was shot four to
five times. He was struck twice in the chest and once on his right hand. He was in the
hospital for about a month and had surgery to remove rounds or shrapnel from his body.
       Jaime Arrellano was shot in the right hip.
       Andrew Bebon, a homicide detective with the Pomona Police Department was
assigned to investigate the shooting at the apartments on South Buena Vista. He found
bullet fragments and saw bullet strikes on the walls, but did not find any bullet strikes on
the ground.
       Detective Bebon put together a packet of six photographs containing Madrid’s
photo and showed them to Crystal Mejia the day after the shooting. She looked at two
photos specifically, one of which was Madrid’s photo, focusing on skin color, eyebrows,
mustache and shape of face. Mejia concluded that “[she] can’t be sure” and did not make
an identification.

                                              4
       About 10 days later, Detective Bebon showed Mejia a set of 18 photographs, again
containing Madrid’s photo. She went through them one by one and put aside a couple
that she wanted to look at again more closely. When she saw Madrid’s photo (a different
photo from the one in the first set) she immediately set it aside, saying “‘Oh, yeah.’”
When she looked at the photo later she told Bebon “it made her sick to her stomach
looking at it.” She initialed the photo, identifying Madrid as the shooter she saw.
       Detective Bebon eventually interviewed Madrid and Ramos. Madrid identified
himself as a member of the Happy Town Pomona gang with the gang moniker of Gizmo.
He told Bebon that he had been in the gang four years, i.e., since he was 11 years old.
Ramos also identified himself as a member of Happy Town with the moniker Slow.
Ramos admitted to the March 13 shooting, stating that he “stayed up near the corner of
the building” and fired approximately three to four rounds “towards the ground” so “as to
                              2
not be shooting at anybody.” Bebon had not found any ricochet marks on the ground
during his investigation of the location.
       Michael Lange, a detective with the Pomona Police Department, testified as a
gang expert. After working on various gang task forces with the Los Angeles Police
Department, Lange transferred to the Pomona Police Department in 2000. In 2002, he
became a gang unit officer, investigating street level gangs, developing intelligence and
providing expertise. He was promoted to detective in 2005 and was appointed a gang
detective. He was also assigned to work with the FBI on violent street gangs. Detective
Lange was familiar with the Happy Town gang through his interactions with gang
members and investigation of crimes in which Happy Town gang members were suspects
or victims.
       Detective Lange indicated that gang members are identified by their own
admission, through investigation, who they are with, tattoos or wearing a symbol
associated with a gang. The membership of a gang included both members and



       2
           Ramos’s statements were admitted against him alone.

                                             5
associates. Associates are not allowed to have gang tattoos if they “haven’t been fully
jumped in.”
        Detective Lange testified about Happy Town’s tattoos, hand signals and primary
activities. The gang was known for “simple assaults, batteries, possessions of weapons,
narcotics, sales of narcotics, assault with deadly weapons, attempt[ed] murders, murders,
carjacking and witness intimidation.” He further testified about two murders committed
by Happy Town members in 2007 and 2008. He identified the apartment complex where
the shootings occurred as the border between the Happy Town street gang and Pomona
12th Street gang.
        Detective Lange was familiar with Madrid. Madrid admitted being a member of
Happy Town. Lange testified about the various tattoos that Madrid had, including a large
“H” with the word “Town” within it. He also looked at photographs of Ramos’s tattoos
and identified them as gang-associated.
        Based on his tattoos, his admissions and who he had associated with in the past,
Lange opined that Madrid was an active Happy Town gang member. Similarly, based on
his tattoos and his admission, Lange opined that Ramos was an active member of that
gang.
        Using a hypothetical based on the facts in this case, the prosecutor asked Lange
whether it was his opinion that the crimes had been committed for the benefit of a gang.
Lange replied “that it not only benefits Happy Town gang, but it also benefits each
individual that participated.”
        He explained that “[r]espect is the most important thing as a gang member and to a
gang,” along with fear, intimidation and retaliation. Gangs need respect from the
community in which they live and from other gang members in order to operate their
criminal enterprise. “They utilize respect and fear to not only conduct themselves as a
criminal enterprise but also to flourish.” If someone disrespects them, there would be
some form of retaliation.
        Lange further explained that a gang member that called out his gang’s name and
used a firearm would gain more respect within the gang and his stature “would rise

                                             6
significantly as a result.” Additionally, people in the community would talk about the
incident, raising the level of respect and fear of that gang in the community. As a result,
“a lot of people don’t want to come forward and talk to the police . . . .”
       Madrid and Ramos were tried together, but with separate juries. Madrid was
found guilty on all five counts of attempted murder while Ramos was convicted of two
counts. The jury was deadlocked on the remaining counts against Ramos so the trial
court declared a mistrial as to them and then dismissed them pursuant to plea
negotiations. Gun use and gang allegations were found true as to both defendants.
Madrid, a minor at the time of the offense, was sentenced to 50 years to life with the
possibility of parole; Ramos was sentenced to two consecutive life terms with the
possibility of parole, plus 50 years to life. Each filed a timely appeal.
                                       DISCUSSION
1.     Kill Zone Jury Instruction
       Appellants argue insufficient evidence supported the trial court’s instruction on
                                                  3
attempted murder based on a kill zone theory. This argument is without merit.
       “A trial court must instruct the jury on every theory that is supported by
substantial evidence, that is, evidence that would allow a reasonable jury to make a
determination in accordance with the theory presented under the proper standard of proof.
[Citation.] We review the trial court’s decision de novo. In so doing, . . . we must
determine whether a reasonable trier of fact could have found beyond a reasonable
doubt” that appellants committed attempted murder based on a kill zone theory. (People



       3
         The jury was given the following instruction: “To prove that the defendant is
guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least
one direct but ineffective step toward killing another person; [¶] AND 2. The defendant
intended to kill a person. [¶] . . . [¶] A person who primarily intends to kill one person,
may also concurrently intend to kill other persons within a particular zone of risk. This
zone of risk is termed the ‘kill zone.’ The intent is concurrent when the nature and scope
of the attack, while directed at a primary victim, are such that it is reasonable to infer the
perpetrator intended to kill the primary victim by killing everyone in that victim’s
vicinity.”

                                              7
v. Cole (2004) 33 Cal.4th 1158, 1206; Pen. Code, § 1093.) That determination must be
made without reference to the credibility of the evidence. (People v. Marshall (1996) 13
Cal.4th 799, 847.)
       We first consider the mental state required for attempted murder, which “has long
differed from that required for murder itself. Murder does not require the intent to kill.
Implied malice—a conscious disregard for life—suffices.” (People v. Bland (2002) 28
Cal.4th 313, 327 (Bland).) “In contrast, ‘[a]ttempted murder requires the specific intent
to kill and the commission of a direct but ineffectual act toward accomplishing the
intended killing.’” (People v. Smith (2005) 37 Cal.4th 733, 739.) “The mental state
required for attempted murder is further distinguished from the mental state required for
murder in that the doctrine of ‘transferred intent’ applies to murder but not attempted
murder.” (Id. at pp. 739-740.) “In its classic form, the doctrine of transferred intent
applies when the defendant intends to kill one person but mistakenly kills another. The
intent to kill the intended target is deemed to transfer to the unintended victim so that the
defendant is guilty of murder.” (Bland, supra, 28 Cal.4th at p. 317.) In contrast, “‘[t]o be
guilty of attempted murder, the defendant must intend to kill the alleged victim, not
someone else.’” (People v. Smith, supra, 37 Cal.4th at pp. 739-740.)
       Under a concurrent intent or kill zone theory, however, a defendant may be guilty
of the attempted murder of victims who were not the defendant’s primary target but were
located within the kill zone. (People v. McCloud (2012) 211 Cal.App.4th 788, 798,
review den. Mar. 13, 2013.) This occurs “‘when the nature and scope of the attack, while
directed at a primary victim, are such that we can conclude the perpetrator intended to
ensure harm to the primary victim by harming everyone in that victim’s vicinity. For
example, an assailant who places a bomb on a commercial airplane intending to harm a
primary target on board ensures by this method of attack that all passengers will be killed.
Similarly, consider a defendant who intends to kill A and, in order to ensure A’s death,
drives by a group consisting of A, B, and C, and attacks the group with automatic weapon
fire or an explosive device devastating enough to kill everyone in the group. The
defendant has intentionally created a “kill zone” to ensure the death of his primary

                                              8
victim, and the trier of fact may reasonably infer from the method employed an intent to
kill others concurrent with the intent to kill the primary victim.’” (Bland, supra, 28
Cal.4th at pp. 329-330.) “In a kill zone case, the defendant does not merely subject
everyone in the kill zone to lethal risk. Rather, the defendant specifically intends that
everyone in the kill zone die.” (People v. McCloud, supra, 211 Cal.App.4th at p. 798.) A
rational jury may infer this specific intent “from the facts that (1) the defendant targeted a
primary victim by intentionally creating a zone of harm, and (2) the attempted murder
victims were within that zone of harm.” (People v. Adams (2008) 169 Cal.App.4th 1009,
1023.)
         Substantial evidence supports the trial court’s instruction on attempted murder
based on a kill zone theory. Appellants, members of the Happy Town gang, approached
a group of people standing in a corridor next to an apartment complex located on the
border between the Happy Town gang’s and Pomona 12th Street gang’s territories.
Madrid approached the group from one end of the corridor via a driveway, while Ramos
approached the group from the other end of the corridor via a walkway. Madrid walked
up to the men in the group and said something like “Fuck 12th Street, Happy Town” or
“Fuck 12th Street. This is Happy Town.” He then pulled out a gun and started shooting
at the group. As the victims ran, they saw sparks flying from Ramos’s gun at the other
end of the corridor. Between 10 and 16 shots were fired, which hit five of eight people in
the corridor. No evidence indicated any of the bullets were fired at the ground rather than
at people, as one appellant contended. From this evidence, the jury could draw a
reasonable inference, in light of the direction of the shots, the number of shots, and the
way in which appellants approached the corridor each using a gun, that defendants
harbored a specific intent to kill every living being between them. (See People v. Vang
(2001) 87 Cal.App.4th 554, 563-564 [finding the jury “drew a reasonable inference, in
light of placement of the shots, the number of shots and the use of high-powered, wall-
piercing weapons that defendants harbored a specific intent to kill every living being
within the residences” at which they shot].)



                                               9
       Appellants argue the kill zone theory is inapplicable because no evidence
indicated a primary target existed. We disagree. A jury could reasonably infer that
Madrid’s act of approaching the men and saying “Fuck 12th Street. This is Happy
Town” suggested appellants specifically targeted the men in the group thought to be
associated with a rival gang.
       Appellants next argue the kill zone theory was inapplicable because Mejia
reported Madrid walked methodically down the corridor shooting directly at individuals,
and when he approached her, he pointed his gun at her but did not shoot, thereby
indicating appellants specifically targeted individuals rather than attempted to kill
everyone in the corridor to ensure they killed a specific individual. But Mejia reported
she saw Madrid walk down the corridor shooting at individuals after she heard five
gunshots. Other witnesses also testified Madrid approached, pointed a gun at the group,
and started shooting. As they ran away, they saw Ramos also shooting at the group.
Even if the jury found appellants primarily targeted certain individuals rather than
everyone in the corridor, it could reasonably also have found a concurrent intent to kill
everyone when appellants first approached from either end of the corridor and fired a
flurry of bullets, thereby creating a kill zone. (See Bland, supra, 28 Cal.4th at pp. 330-
331, fn. omitted.) Because the jury could infer appellants had the requisite specific intent
to kill five individuals at the time they fired at least five bullets at the group, it is of no
consequence that Madrid later only targeted specific individuals. (See People v.
Anderson (2007) 152 Cal.App.4th 919, 937 [requiring “a temporal concurrence between
the required mental state and the outward actions of the defendant”].)
       Appellants rely on People v. McCloud, supra, 211 Cal.App.4th 788 to argue the
evidence failed to establish appellants had the specific intent to kill everyone because
they specifically targeted individuals. McCloud is distinguishable. There, the
prosecution used the kill zone theory to support 46 attempted murder convictions where
defendants fired 10 shots into a party of over 400 people after one defendant had been
punched, contending defendants created a kill zone containing 46 people in the line of
fire. (Id. at pp. 793-795, 799-803.) Noting that the kill zone theory is inapplicable “if the

                                                10
evidence shows only that the defendant intended to kill a particular targeted
individual . . . in a manner that subjected other nearby individuals to a risk of fatal
injury,” the court held the trial court erred in instructing the jury on the kill zone because
no evidence indicated defendants tried to kill the person who punched one defendant by
killing all 46 people in the area where the assailant was located. (Id. at pp. 798-800.)
Unlike in McCloud in which it would have been unreasonable for a jury to infer
defendants had the specific intent to kill 46 people by firing only 10 bullets, here the jury
could reasonably infer that appellants had the specific intent to kill five of eight people in
the corridor by firing 10 to 16 bullets at them. The kill zone instruction was therefore
proper.
2.      Cruel and Unusual Punishment Under the Eighth Amendment
        A.    Madrid’s Sentence of 50 Years to Life Affording Him an Initial Parole
        Hearing at 66 Violates the Eighth’s Amendment Prohibition on Cruel and
        Unusual Punishment
        Appellant Madrid, a minor age 15 at the time of the offense, argues his sentence of
50 years to life constitutes the functional equivalent of life without parole amounting to
cruel and unusual punishment under the Eighth Amendment of the United States
Constitution. We agree, but conclude newly enacted Penal Code section 3051 cures this
constitutional violation.
        The Eighth Amendment’s prohibition on cruel and unusual punishment prohibits
punishment that is grossly disproportionate to the offender’s culpability. (U.S. Const.,
8th Amend.) In the context of juvenile offenders, because they “cannot with reliability be
classified among the worst offenders,” categorical rules have developed to prevent the
imposition of disproportionate punishment. (Roper v. Simmons (2005) 543 U.S. 551,
569.)
        In Graham v. Florida (2010) 560 U.S. 48 (Graham), the Supreme Court held a
nonhomicide juvenile offender may not be sentenced to life without parole (hereafter
LWOP). (Id. at p. 74.) The Court required juvenile offenders be given “some



                                              11
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation” absent exceptional circumstances. (Id. at p. 75.)
       In Miller v. Alabama (2012) 132 S.Ct. 2455 (Miller), the Supreme Court
prohibited sentencing a juvenile homicide offender to mandatory LWOP and required the
sentencing court to consider the mitigating qualities of youth, including: (1) age and its
hallmark features such as immaturity, impetuosity, and failure to appreciate risk and
consequences; (2) family and home environment; and (3) circumstances of the homicide
offense, including the extent of participation and familial or peer pressure. (Id. at pp.
2467-2468, 2475.)
       Following Graham and Miller, in People v. Caballero (2012) 55 Cal.4th 262
(Caballero), the California Supreme Court prohibited a term-of-years sentence that
amounts to the “functional equivalent” of LWOP for juvenile nonhomicide offenders.
(Id. at pp. 267-268.) The court explained the Eighth Amendment requires that at
sentencing, a juvenile nonhomicide offender must be provided with “a meaningful
opportunity to demonstrate their rehabilitation and fitness to reenter society in the
future,” and “the sentencing court must consider all mitigating circumstances attendant in
the juvenile’s crime and life, including but not limited to his or her chronological age at
the time of the crime, whether the juvenile offender was a direct perpetrator or an aider
and abettor, and his or her physical and mental development.” (Id. at pp. 268-269.)
       In developing these rules, the courts relied on three fundamental differences
between juveniles and adults to conclude juveniles are constitutionally different from
adults for sentencing purposes. (Graham, supra, 560 U.S. at p. 68.) First, as compared
to adults, “children have a ‘“lack of maturity and an underdeveloped sense of
responsibility,”’ leading to recklessness, impulsivity, and heedless risk-taking. [Citation.]
Second, 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 third, a child’s character is not as ‘well formed’ as an adult’s;



                                             12
his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e]
deprav[ity].’” (Miller, supra, 132 S.Ct. at p. 2464.)
         Because of these characteristics, “‘juvenile offenders cannot with reliability be
classified among the worst offenders.’ [Citation.] A juvenile is not absolved of
responsibility for his actions, but his transgression ‘is not as morally reprehensible as that
of an adult.’” (Graham, supra, 560 U.S. 48, 68.) Yet, “a juvenile offender will on
average serve more years and a greater percentage of his life in prison than an adult
offender.” (Id. at p. 70.) Accordingly, “appropriate occasions for sentencing juveniles to
[LWOP or its functional equivalent] will be uncommon.” (Miller, supra, 132 S.Ct. at p.
2469.)
         In the wake of these recent cases, “[t]he issue of how long someone under the age
of 18 may be sentenced to prison has been the subject of considerable judicial attention.”
(People v. Perez (2013) 214 Cal.App.4th 49, 55.) A long sentence with eligibility for
parole will be constitutional “if there is some meaningful life expectancy left when the
offender becomes eligible for parole.” (Id. at p. 57 [no case has struck “down as cruel
and unusual any sentence against anyone under the age of 18 where the perpetrator still
has substantial life expectancy left at the time of eligibility for parole”].) How much life
expectancy must remain at the time of parole eligibility remains unclear. (See People v.
Solis (2014) 224 Cal.App.4th 727, 819, review granted June 11, 2014, S218757 [sentence
allowing for parole eligibility at age 68 constituted the functional equivalent of LWOP];
People v. Perez, supra, 214 Cal.App.4th at pp. 57-58 [sentence allowing for parole
eligibility at age 47 did not constitute the functional equivalent of LWOP].)
         It is undisputed that Madrid committed the crime when he was 15 years old and
under his sentence, he would first become eligible for parole at the age of 66. Madrid
                                                                                             4
argues his sentence offers him no realistic opportunity for release during his lifetime.
He contends that, considering the reduced life expectancy that results from incarceration,


         4
        At sentencing, the parties stipulated that the Social Security actuarial table
indicated Madrid’s life expectancy was 81.7 years.

                                               13
he will have no meaningful chance at life after parole before he reaches his life
expectancy, assuming he even survives long enough to reach his first parole eligibility
date. (See People v. Solis, supra, 224 Cal.App.4th at p. 819.)
       “[L]ife expectancy projections derived on appeal [have varied] widely in recent
juvenile LWOP cases,” from as high as 80 years for an 18-year-old defendant to as low
as 64.6 years for a 17-year-old defendant. (See People v. Gonzalez (2014) 225
Cal.App.4th 1296, 1307, review granted July 23, 2014, S219167; People v. Mendez
(2010) 188 Cal.App.4th 47, 63 [life expectancy for an 18-year-old male is 76 years]
[citing National Center for Health Statistics, Centers for Disease Control, National Vital
Statistics Reps. (June 28, 2010) table 2, vol. 58, No. 28 and People v. Romero (2002) 99
Cal.App.4th 1418, 1427-1428]; People v. Solis, supra, 224 Cal.App.4th at p. 734, fn. 2
[life expectancy for a 17-year-old is 72 years based on actuarial tables].)
       Assuming a mid-range life expectancy of 76, Madrid’s initial parole hearing at age
66 is too late to ensure a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75.) Madrid’s
sentence offering him his first chance at parole in his mid-sixties affords him little
opportunity to become a contributing member of society. Rather, it constitutes an
impermissible judgment on his value and place in society that deprives him of a
meaningful opportunity to demonstrate his rehabilitation and fitness to reenter society in
the future. (Id. at p. 74; Caballero, supra, 55 Cal.4th at p. 268.) Madrid’s sentence
therefore conflicts with the mandate of Graham, Miller, and Caballero that absent
exceptional circumstances, juvenile offenders must be afforded a realistic possibility of
life outside of prison as a reformed individual. “Although proper authorities may later
determine that [Madrid] should remain incarcerated for [his] natural [life],” standing
alone Madrid’s sentence of 50 years to life constitutes the functional equivalent of LWOP
in violation of the Eighth Amendment. (Caballero, supra, 55 Cal.4th at p. 268.)




                                             14
       B.     Newly Enacted Penal Code Section 3051 Cures the Constitutional
       Violation
       Although we conclude Madrid’s sentence violates the Eighth Amendment, newly
enacted Penal Code section 3051 cures this constitutional deficiency. In response to
Graham, Miller, and Caballero, the Legislature enacted Senate Bill No. 260 (Sen. Bill
260) to establish Penal Code section 3051 addressing juvenile sentencing concerns,
                          5
effective January 1, 2014. Section 1 of Senate Bill 260 states in relevant part: “The
Legislature finds and declares that, as stated by the United States Supreme Court in
[Miller], ‘only a relatively small proportion of adolescents’ who engage in illegal activity
‘develop entrenched patterns of problem behavior,’ and that ‘developments in
psychology and brain science continue to show fundamental differences between juvenile
and adult minds,’ including ‘parts of the brain involved in behavior control.’ 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 [Caballero]
and the decisions of the United States Supreme Court in [Graham] and [Miller].” (Legis.
Counsel’s Dig., Sen. Bill No. 260 (2013-2014 Reg. Sess.) § 1, pp. 2-3.) The Legislature
declared its intent “to create a process by which growth and maturity of youthful
offenders can be assessed and a meaningful opportunity for release established.” (Ibid.)


       5
         Senate Bill 260 was passed after the California Supreme Court in Caballero
urged “the Legislature to enact legislation establishing a parole eligibility mechanism that
provides a defendant serving a de facto life sentence without possibility of parole for
nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain
release on a showing of rehabilitation and maturity.” (Caballero, supra, 55 Cal.4th at p.
269, fn. 5.)


                                             15
       Penal Code section 3051 provides in pertinent part that subject to inapplicable
exceptions, “[a] person who was convicted of a controlling offense that was committed
before the person had attained 18 years of age and for which the sentence is a life term of
25 years to life shall be 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.”
(Pen. Code, § 3051, subds. (b)(3), (h).) “The youth offender parole hearing to consider
release shall provide for a meaningful opportunity to obtain release” and “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.” (Pen. Code, § 3051, subds. (e), (f)(1).)
       California Courts of Appeal disagree as to the effect of Penal Code section 3051
                                                        6
on sentences in violation of the Eighth Amendment. In In re Alatriste, supra, 220
Cal.App.4th 1232, the court reasoned that “Graham, Miller and Caballero merely hold
that a juvenile defendant may not be incarcerated for life or its functional equivalent

       6
         Of nine published cases addressing the issue, five conclude Penal Code section
3051 cures any constitutional violation. (See In re Alatriste (2013) 220 Cal.App.4th
1232, review granted Feb. 19, 2014, S214960; People v. Martin (2013) 222 Cal.App.4th
98, review granted Mar. 26, 2014, S216139; People v. Franklin (2014) 224 Cal.App.4th
296, review granted June 11, 2014, S217699; People v. Gonzalez, supra, 225 Cal.App.4th
1296, review granted July 23, 2014, S219167; People v. Saetern (2014) 227 Cal.App.4th
1456.) Furthermore, as of the time of this writing, seven unpublished cases have
concluded Penal Code section 3051 cures any constitutional deficiencies. (See People v.
Bautista (Jan. 10, 2014, B244063); People v. Patton (May 8, 2014, B246498); People v.
Recarte (June 17, 2014, B245867); People v. Hart (June 25, 2014, G047156); People v.
Gutierrez (Mar. 27, 2014, B244448); People v. Sandoval (Apr. 30, 2014, G047431);
People v. Caballero (Aug. 19, 2014, B248232).)
       On the other hand, four published cases and one unpublished case conclude Penal
Code section 3051 fails to ameliorate any constitutional deficiency in sentencing. (See In
re Heard (2014) 223 Cal.App.4th 115, review granted Apr. 30, 2014, S216772; In re
Rainey (2014) 224 Cal.App.4th 280, review granted June 11, 2014, S217567 [approving
of In re Heard, supra, 223 Cal.App.4th 115 in dicta]; People v. Solis, supra, 224
Cal.App.4th 727, review granted June 11, 2014, S218757; People v. Garrett (2014) 227
Cal.App.4th 675; People v. Espinoza (Jan. 31, 2014, H038508).)

                                             16
without some meaningful opportunity for release on parole during his or her lifetime.
These cases do not require that the time when that meaningful opportunity might occur
should be determined at the time of sentencing.” (Id. at p. 1240.) The new procedure
under Penal Code section 3051 therefore provides juveniles with the requisite opportunity
compelled by these judicial decisions by affording them a meaningful chance to obtain
release based on demonstrated maturity and rehabilitation. (In re Alatriste, supra, 220
Cal.App.4th at p. 1240; accord, People v. Martin, supra, 222 Cal.App.4th 98.)
       Similarly, in People v. Franklin, supra, 224 Cal.App.4th 296, the court concluded
that “[w]hile an effective LWOP sentence imposed prior to the enactment of Penal Code
section 3051 may have violated constitutional restrictions when rendered, the new section
has provided the parole opportunity that was constitutionally lacking.” (Id. at p. 306.)
The court agreed with the court in In re Alatriste, supra, that Graham, Miller, and
Caballero do not require “the trial judge at the time of initial sentencing to make a
determination as to when a particular juvenile offender should become eligible for parole
consideration,” and noted the procedure under section 3051 allowed parole eligibility to
be considered more intelligently and more fairly than if predicted at the time of
sentencing. (People v. Franklin, supra, 224 Cal.App.4th at p. 306; see People v.
Gonzalez, supra, 225 Cal.App.4th at pp. 1310-1311 [application of section 3051, which
makes the defendant eligible for parole at age 46, results in a sentence that does not
constitute the functional equivalent of LWOP and therefore Graham, Miller, and
Caballero do not apply].)
       In contrast, the court in In re Heard, supra, 223 Cal.App.4th 115 disagreed with
the conclusion of these opinions on the ground that it allowed the sentencing court to
disregard its constitutional duty at sentencing to consider the differences between
juveniles and adults established in Graham, Miller, and Caballero. (In re Heard, supra,
223 Cal.App.4th at pp. 130-131.) The court interpreted Penal Code section 3051 as a
“‘safety net’ to guarantee a juvenile offender the opportunity for a parole hearing during
his or her lifetime” that did not relieve the sentencing court of its duty to impose a
constitutional sentence for a juvenile defendant. The court reasoned its conclusion was

                                             17
made “all the more true because there is no guarantee that [section 3051] will remain in
existence when [a defendant] would be eligible to benefit from it.” (In re Heard, supra,
223 Cal.App.4th at pp. 130-131; see People v. Garrett, supra, 227 Cal.App.4th 675, 688-
689 [“[t]he statutory promise to have a future parole board review an improperly
considered sentence does not cure the constitutional error” because it cannot substitute
for the sentencing court’s required consideration of the factors of youth and maturity at
the time of sentencing].)
       Likewise, in People v. Solis, supra, 224 Cal.App.4th 727, the court agreed with In
re Heard that Penal Code section 3051 should act as “a safety net” rather than a “cure-
all” for juvenile sentences that violate the Eighth Amendment, for fear that trial courts
may forgo applying the principles of Graham, Miller, and Caballero. (People v. Solis,
supra, 224 Cal.App.4th at p. 736.) The court then determined that because the
defendant’s juvenile characteristics were considered at the sentencing hearing, it could
cure any constitutional defect by modifying the sentence to reflect the defendant was
entitled to a parole hearing after serving 25 years in prison. (Id. at pp. 736-737.)
       In our view, Penal Code section 3051 as applied to Madrid’s sentence satisfies the
constitutional mandates articulated in Graham, Miller, and Caballero. These judicial
decisions articulate that because of the differences between juveniles and adults, juveniles
are less deserving of the worst punishments. (Graham, supra, 560 U.S. at p. 68.)
Accordingly, in considering a juvenile’s sentence, the sentencing court must take into
account the characteristics of youth that may mitigate the justifications for imposing the
harshest penalties. (Miller, supra, 132 S.Ct. at p. 2468.) Absent exceptional
circumstances, a sentence will be overly harsh, and thus constitute cruel and unusual
punishment, when it acts as the functional equivalent to LWOP by affording no
meaningful opportunity for parole within the juvenile’s life expectancy. (Caballero,
supra, 55 Cal.4th at pp. 268-269.)
       Under Penal Code section 3051, Madrid will receive a parole hearing in his 25th
year of incarceration, at the age of 40. At his parole hearing, the Board of Parole
Hearings will “take into consideration the diminished culpability of juveniles as

                                             18
compared to that of adults, the hallmark features of youth, and any subsequent growth
and increased maturity of the individual” in considering Madrid’s release. (Pen. Code, §
3051, subds. (e), (f)(1).) Section 3051 thus provides Madrid with a meaningful
opportunity to obtain release based on demonstrated growth and rehabilitation by
affording him his first parole hearing well within his life expectancy. Therefore, under
the new legislation, Madrid’s sentence is not the functional equivalent of LWOP.
Without a sentence that amounts to the functional equivalent of LWOP, no harm exists
that constitutes cruel and unusual punishment under the Eighth Amendment.
       Moreover, the record reveals the trial court considered Madrid’s age, immaturity,
and history of substance abuse and gang involvement at sentencing. The sentencing court
indicated it considered Madrid’s probation report, handwritten letters from family
members, and the parties’ sentencing memorandum regarding Madrid’s background. In
determining Madrid’s sentence, the court considered Madrid’s difficult childhood and
early gang involvement, his criminal activity beginning at age 12, his educational
background and low IQ, and his drug use beginning at age 10. This alleviates any
concern that Madrid may be prejudiced by the lack of opportunity to develop a record at
sentencing regarding his youthful characteristics that may be considered at his parole
hearings in the future. (See People v. Garrett, supra, Cal.App.4th at p. 689 [without
proper evaluation by the sentencing court, a juvenile offender will be disadvantaged
when attempting to meet their burden to show growth and maturity during later youth
parole hearings].) The parole hearing procedure under Penal Code section 3051 will thus
permit a comprehensive evaluation of Madrid’s growth and maturity and provide him a
meaningful opportunity for release.
       We therefore conclude that with the imposition of Penal Code section 3051
affording Madrid the opportunity for a parole hearing in his 25th year of incarceration,
Madrid’s sentence will satisfy the constitutional requirements of Graham, Miller, and
Caballero because he will receive his first opportunity for parole well within his life
expectancy. However, we must ensure a defendant receives a constitutional sentence at
the time of sentencing. (See Caballero, supra, 55 Cal.4th at p. 268.) Accordingly, out of

                                             19
an abundance of caution, we will modify his sentence to include a minimum parole
eligibility date of 25 years. We can thus conclude with certainty that Madrid has been
provided with a sentence that passes constitutional muster.
                                      DISPOSITION
       Madrid’s sentence is modified to reflect he shall be entitled to a parole hearing
after serving 25 years in prison. The clerk of the trial court is directed to prepare a new
abstract of judgment with this modification and to send a certified copy thereof to the
Department of Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.
       NOT TO BE PUBLISHED.




                                                  CHANEY, J.


We concur:




       ROTHSCHILD, P. J.




       JOHNSON, J.




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