Filed 8/16/12




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                           S190647
           v.                        )
                                     )                         Ct.App. 2/4
RODRIGO CABALLERO,                   )                      B217709/B221833
                                     )
           Defendant and Appellant.  )
____________________________________)
                                     )                    Los Angeles County
In re RODRIGO CABALLERO,             )                  Super. Ct. No. MA043902
                                     )
           on Habeas Corpus          )
____________________________________)


        In Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011] (Graham), the
high court held that the Eighth Amendment prohibits states from sentencing a
juvenile convicted of nonhomicide offenses to life imprisonment without the
possibility of parole. (Id. at p. ___ [130 S.Ct. at p. 2030].)1 We must determine
here whether a 110-year-to-life sentence imposed on a juvenile convicted of
nonhomicide offenses contravenes Graham‟s mandate against cruel and unusual
punishment under the Eighth Amendment. We conclude it does.




1     The Eighth Amendment applies to the states. (Robinson v. California
(1962) 370 U.S. 660.)


                                         1
                   FACTUAL AND PROCEDURAL BACKGROUND
       On the afternoon of June 6, 2007, 16-year-old defendant, Rodrigo
Caballero, opened fire on three teenage boys who were members of a rival gang.
Adrian Bautista, Carlos Vargas, and Vincent Valle, members of the Val Verde
Park Gang, were rounding a street corner on foot when defendant jumped out of a
green Toyota and yelled out the name of his gang, either “Vario Lancas” or
“Lancas.” Vargas responded by shouting “Val Verde.” Defendant began shooting
at the group. Neither Vargas nor Valle were hit by the gunfire; Bautista was hit in
the upper back, near his shoulder blade.
       A jury convicted defendant of three counts of attempted murder (Pen.
Code, §§ 664, 187, subd. (a)).2 The jury found true that defendant personally and
intentionally discharged a firearm (§ 12022.53, subds. (c)-(d)) and inflicted great
bodily harm on one victim (§ 12022.7), and that defendant committed the crimes
for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant, a
diagnosed schizophrenic, testified in his own behalf after he was treated with
antipsychotic medication. He told the jury both that he “was straight trying to kill
somebody” and that he did not intend to kill anyone. The trial court sentenced
defendant to 15 years to life for the first attempted murder count, plus a
consecutive 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).)
For the second attempted murder, the court imposed an additional consecutive
term of 15 years to life, plus 20 years for the firearm enhancement on that count.
(§ 12022.53, subd. (c).) On the third attempted murder count, the court sentenced
defendant to another consecutive term of 15 years to life, plus 20 years for the
corresponding firearm enhancement. (§ 12022.53, subd. (c)). Defendant‟s total



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


                                           2
sentence was 110 years to life. The Court of Appeal affirmed the trial court‟s
judgment in its entirety.
       We granted defendant‟s petition for review to determine whether Graham
prohibits imposition of the sentence here.
                                        DISCUSSION
       In Graham, the 16-year-old defendant, Terrance Graham, committed armed
burglary and attempted armed robbery, was sentenced to probation, and
subsequently violated the terms of his probation when he committed other crimes.
(Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2020].) The trial court
revoked his probation and sentenced him to life in prison for the burglary. (Ibid.)
Graham‟s sentence amounted to a life sentence without the possibility of parole
because Florida had abolished its parole system, leaving Graham with no
possibility of release unless he was granted executive clemency. (Id. at p. ___
[130 S.Ct. at p. 2015].)
       The high court stated that nonhomicide crimes differ from homicide crimes
in a “moral sense” and that a juvenile nonhomicide offender has a “twice
diminished moral culpability” as opposed to an adult convicted of murder — both
because of his crime and because of his undeveloped moral sense. (Graham,
supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].) The court relied on studies
showing that “developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds. For example, parts of
the brain involved in behavior control continue to mature through late
adolescence. [Citations.] Juveniles are [also] more capable of change than are
adults, and their actions are less likely to be evidence of „irretrievably depraved
character‟ than are the actions of adults.” (Id. at p. ___ [130 S.Ct. at p. 2026],
quoting Roper v. Simmons (2005) 543 U.S. 551, 570.) No legitimate penological



                                           3
interest, the court concluded, justifies a life without parole sentence for juvenile
nonhomicide offenders. (Id. at p. ___ [130 S.Ct. at p. 2030].)
       Although the state is by no means required to guarantee eventual freedom
to a juvenile convicted of a nonhomicide offense, Graham holds that the Eighth
Amendment requires the state to afford the juvenile offender a “meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation,”
and that “[a] life without parole sentence improperly denies the juvenile offender a
chance to demonstrate growth and maturity.” (Graham, supra, 560 U.S. at p. ___
[130 S.Ct. at pp. 2029-2030].) The court observed that a life without parole
sentence is particularly harsh for a juvenile offender who “will on average serve
more years and a greater percentage of his life in prison than an adult offender.”
(Id. at p. ___ [130 S.Ct. at p. 2028].) Graham likened a life without parole
sentence for nonhomicide offenders to the death penalty itself, given their youth
and the prospect that, as the years progress, juveniles can reform their deficiencies
and become contributing members of society. (Ibid.)
       The People assert that Graham‟s ban on life without parole sentences does
not apply to juvenile offenders who commit attempted murder, with its requisite
intent to kill. The People also claim that a cumulative sentence for distinct crimes
does not present a cognizable Eighth Amendment claim, concluding that each of
defendant‟s sentences was permissible individually because each included the
possibility of parole within his lifetime.3 In addition, the Court of Appeal

3       The People also rely on Lockyer v. Andrade (2003) 538 U.S. 63 for the
proposition that a juvenile offender may receive consecutive mandatory terms
exceeding his or her life expectancy without implicating the prohibition against
cruel and unusual punishment. In our view, no such conclusion may be drawn. In
fact, in Lockyer the high court noted that it has never provided specific guidance
“in determining whether a particular sentence for a term of years can violate the
Eighth Amendment,” observing that it had “not established a clear or consistent
path for courts to follow.” (Id. at p. 72.) We note that the term “life expectancy”

                                           4
reasoned that Graham applied a categorical rule specifically limited to juvenile
nonhomicide offenders receiving an explicitly designated life without parole
sentence: “[I]f [Graham] had intended to broaden the class of offenders within the
scope of its decision, it would have [included] . . . any juvenile offender who
received the functional equivalent of a life sentence without the possibility of
parole for a nonhomicide offense.” The Court of Appeal found support for its
conclusion in Justice Alito‟s dissent from Graham: “nothing in the Court‟s
opinion affects the imposition of a sentence to a term of years without the
possibility of parole.” (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2058]
(dis. opn. of Alito, J.).) Graham‟s scope and application, however, were recently
clarified in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).)
       In Miller, the United States Supreme Court extended Graham’s reasoning
(but not its categorical ban) to homicide cases, and, in so doing, made it clear that
Graham‟s “flat ban” on life without parole sentences for juvenile offenders in
nonhomicide cases applies to their sentencing equation regardless of intent in the
crime‟s commission, or how a sentencing court structures the life without parole
sentence. (Miller, supra, 567 U.S. ___ [132 S.Ct. at pp. 2465, 2469].) The high
court was careful to emphasize that Graham‟s “categorical bar” on life without
parole applied “only to nonhomicide crimes.” (Id. at p. ___ [132 S.Ct. at p.2465].)
But the court also observed that “none of what [Graham] said about children —
about their distinctive (and transitory) mental traits and environmental
vulnerabilities — is crime-specific. Those features are evident in the same way,
and to the same degree, when . . . a botched robbery turns into a killing. So
Graham‟s reasoning implicates any life-without-parole sentence imposed on a


means the normal life expectancy of a healthy person of defendant‟s age and
gender living in the United States.


                                          5
juvenile, even as its categorical bar relates only to nonhomicide offenses.”
(Miller, supra, 567 U.S. ___ [132 S.Ct. at p. 2465].) Miller therefore made it clear
that Graham‟s “flat ban” on life without parole sentences applies to all
nonhomicide cases involving juvenile offenders, including the term-of-years
sentence that amounts to the functional equivalent of a life without parole sentence
imposed in this case.4
       Defendant in the present matter will become parole eligible over 100 years
from now. (§ 3046, subd. (b) [requiring defendant serve a minimum of 110 years
before becoming parole eligible].) Consequently, he would have no opportunity to
“demonstrate growth and maturity” to try to secure his release, in contravention of
Graham‟s dictate. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2029]; see
People v. Mendez (2010) 188 Cal.App.4th 47, 50-51 [holding that a sentence of 84
years to life was the equivalent of life without parole under Graham, and therefore
cruel and unusual punishment].) Graham‟s analysis does not focus on the precise
sentence meted out. Instead, as noted above, it holds that a state must provide a


4       Although Miller concluded that Graham‟s categorical ban on life without
parole sentences applies only to all nonhomicide offenses, the court emphasized
that in homicide cases, states are forbidden from imposing a “[m]andatory life
without parole for a juvenile.” (Miller, supra, 567 U.S. ___ [132 S.Ct. at p.
2464].) The high court noted that such mandatory sentences preclude
consideration of juveniles‟ chronological age and its hallmark features — among
them, immaturity, impetuosity, and failure to appreciate risks and consequences.
It prevents taking into account the family and home environment that surround
them — no matter how brutal or dysfunctional. (Ibid.) Thus, in Miller the high
court did “not foreclose a sentencer‟s ability” to determine whether it was dealing
with homicide cases and the “ „rare juvenile offender whose crime reflects
irreparable corruption.‟ ” (Id. at p. 2469, quoting Roper, supra, 543 U.S. at p. 573;
Graham, supra, 560 U.S. ___ [130 S.Ct. at p. 2026].) The court requires
sentencers in homicide cases “to take into account how children are different, and
how those differences counsel against irrevocably sentencing them to a lifetime in
prison.” (Miller, supra, 567 U.S. ___ [132 S.Ct. at p. 2469].) We leave Miller‟s
application in the homicide context to a case that poses the issue.


                                         6
juvenile offender “with some realistic opportunity to obtain release” from prison
during his or her expected lifetime. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct.
at p. 2034].)
                                    CONCLUSION
       Consistent with the high court‟s holding in Graham, supra, 560 U.S. ___
[130 S.Ct. 2011], we conclude 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. Although proper
authorities may later determine that youths should remain incarcerated for their
natural lives, the state may not deprive them at sentencing of a meaningful
opportunity to demonstrate their rehabilitation and fitness to reenter society in the
future. Under Graham‟s nonhomicide ruling, 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, so that it can impose a time when the juvenile
offender will be able to seek parole from the parole board. The Board of Parole
Hearings will then determine whether the juvenile offender must be released from
prison “based on demonstrated maturity and rehabilitation.” (Id. at p. ___ [130
S.Ct. at p. 2030].) Defendants who were sentenced for crimes they committed as
juveniles who seek to modify life without parole or equivalent defacto sentences
already imposed may file petitions for a writ of habeas corpus in the trial court in
order to allow the court to weigh the mitigating evidence in determining the extent
of incarceration required before parole hearings. Because every case will be
different, we will not provide trial courts with a precise time frame for setting
these future parole hearings in a nonhomicide case. However, the sentence must

                                          7
not violate the defendant‟s Eighth Amendment rights and must provide him or her
a “meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation” under Graham‟s mandate.
       We reverse the judgment of the Court of Appeal and remand the matter for
reconsideration in light of this opinion.5
                                                        CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CORRIGAN, J.




5      We urge 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.


                                             8
                CONCURRING OPINION BY WERDEGAR, J.



       As the majority recognizes, the United States Supreme Court held in
Graham v. Florida (2010) 560 U.S. ___, ___ [130 S.Ct. 2011, 2034] (Graham)
that “[t]he Constitution prohibits the imposition of a life without parole sentence
on a juvenile offender who did not commit homicide. A State need not guarantee
the offender eventual release, but if it imposes a sentence of life it must provide
him or her with some realistic opportunity to obtain release before the end of that
term.” Consequently, I concur in the majority‟s holding that, consistent with
Graham, “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.” (Maj. opn., ante, at p. 7.) In so holding, however, we are extending
the high court‟s jurisprudence to a situation that court has not had occasion to
address.
       Recently, the United States Supreme Court addressed a different aspect of
this issue: juvenile offenders who commit homicide offenses. (Miller v. Alabama
(2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).) Miller concluded that even for
juvenile homicide offenders, a mandatory sentence of life imprisonment without
the possibility of parole violates the proportionality requirement of the Eighth
Amendment to the United States Constitution because it requires “that all children

                                           1
convicted of homicide receive lifetime incarceration without possibility of parole,
regardless of their age and age-related characteristics and the nature of their crimes
. . . .” (Miller, 567 U.S. at p. ___ [132 S.Ct. at p. 2475].) For homicide offenses,
then, Miller eschewed the “categorical bar” on life without parole sentences
imposed in Graham (Miller, 567 U.S. at p. ___ [132 S.Ct. at p. 2465]), and instead
left open the possibility that juvenile murderers could, in a sentencing court‟s
discretion, be sentenced to spend the rest of their lives in prison with no hope of
parole (short of a grant of executive clemency).
       Defendant Rodrigo Caballero was 16 years old, and thus a juvenile, when
he committed his crimes. In light of Miller, we must first decide whether he
committed a homicide or a nonhomicide offense. The jury convicted defendant of
three counts of attempted premeditated and deliberate murder. (Pen. Code, § 664,
subd. (a).) Two of his victims escaped physical injury completely, while one was
injured but survived the shooting. As Graham explains, such “[s]erious
nonhomicide crimes „may be devastating in their harm . . . but “in terms of moral
depravity and of the injury to the person and to the public,” . . . they cannot be
compared to murder in their “severity and irrevocability.” ‟ [Citing Kennedy v.
Louisiana (2008) 554 U.S. 407, 438.] This is because „[l]ife is over for the victim
of the murderer,‟ but for the victim of even a very serious nonhomicide crime, „life
. . . is not over and normally is not beyond repair.‟ [Citing Coker v. Georgia
(1977) 433 U.S. 584, 598 (plur. opn.).] Although an offense like robbery or rape
is „a serious crime deserving serious punishment,‟ [citation], those crimes differ
from homicide crimes in a moral sense.” (Graham, supra, 560 U.S. at p. ___ [130
S.Ct. at p. 2027].) Because the crime of attempted murder, even when
premeditated and deliberate, does not rise to the severity or irrevocability of
actually taking another‟s life, it must be classified as a nonhomicide offense within


                                          2
the meaning of Graham.1 (See Manuel v. State (Fla. 2010) 48 So.3d 94, cert. den.
sub nom. Florida v. Manuel (2011) ___ U.S. ___ [132 S.Ct. 446] [finding
attempted murder a nonhomicide offense under Graham].) Like the majority,
therefore, I conclude this case falls within Graham‟s categorical bar prohibiting
life without parole sentences for juveniles who commit nonhomicide offenses.
       Because Graham imposes a “flat ban” on such sentences (Miller, supra,
567 U.S. at p. ___ [132 S.Ct. at p. 2465]), we must next determine whether
defendant‟s sentence of 110 years to life is the legal equivalent of life without
parole. Although respondent appears to concede that defendant‟s sentence is the


1        Graham itself is not crystal clear on this point. As respondent points out,
Graham at one point says “[t]he Court has recognized that defendants who do not
kill, intend to kill, or foresee that life will be taken are categorically less deserving
of the most serious forms of punishment than are murderers.” (Graham, supra,
560 U.S. at p. ___ [130 S.Ct. at p. 2027], italics added.) Here, defendant‟s
convictions for attempted murder necessarily demonstrate the jury found he acted
with the intent to kill. (People v. Gonzalez (2012) 54 Cal.4th 643, 653.)
         Graham also relied heavily on a scholarly paper to conclude that
“nationwide there are only 109 juvenile offenders serving sentences of life without
parole for nonhomicide offenses” (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at
p. 2023]), but that paper defined homicide crimes to include attempted murder
(Annino et al., Juvenile Life Without Parole for Non-Homicide Offenses: Florida
Compared to Nation, Fla. St. U., Pub. Int. L. Center, Sept. 14, 2009, p. 4 [for
purposes of the study, “[i]ndividuals convicted of attempted homicide . . . are defined as
homicide offenders”]). Finally, in recognizing the worldwide consensus against
imprisoning juveniles for life with no chance of parole, Graham noted that only
two countries—the United States and Israel—impose that sentence in practice, and
that “all of the seven Israeli prisoners whom commentators have identified as
serving life sentences for juvenile crimes were convicted of homicide or attempted
homicide.” (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2033], italics
added.)
         Despite these slight inconsistencies in Graham‟s analysis, the main thrust
of its reasoning is that crimes resulting in the death of another human being are
qualitatively different from all others, both in their severity, moral depravity, and
irrevocability, and the Eighth Amendment to the United States Constitution
demands courts take cognizance of that fact when sentencing those who
committed their crimes while still children.
                                            3
functional equivalent of a life without parole term, they nevertheless argue his
sentence is distinguishable from the sentence prohibited in Graham because it is
comprised of component parts that only when added together constitute a term
longer than a person can serve in a normal lifetime. For this purported distinction
they cite comments from the Graham dissenters. (See Graham, supra, 560 U.S. at
p. ___, fn. 11 [130 S.Ct. at p. 2052, fn. 11] (dis. opn. of Thomas, J.) [opining that
the Graham majority “excludes from its analysis all juveniles sentenced to lengthy
term-of-years sentences (e.g., 70 or 80 years‟ imprisonment)”]; id. at p. ___ [130
S.Ct. at p. 2058] (dis. opn. of Alito, J.) [“Nothing in the Court‟s opinion affects the
imposition of a sentence to a term of years without the possibility of parole.”].)
       Characterization by the Graham dissenters of the scope of the majority
opinion is, of course, dubious authority (see Glover v. Board of Retirement (1989)
214 Cal.App.3d 1327, 1337 [the “ „majority opinion of the Supreme Court states
the law and . . . a dissenting opinion has no function except to express the private
view of the dissenter.‟ ”]), but in any event the purported distinction between a
single sentence of life without parole and one of component parts adding up to
110 years to life is unpersuasive. The gist of Graham is not only that life
sentences for juveniles are unusual as a statistical matter, they are cruel as well
because “developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds” (Graham, supra, 560
U.S. at p. ___ [130 S.Ct. at p. 2026]), “[j]uveniles are more capable of change than
are adults, and their actions are less likely to be evidence of „irretrievably
depraved character‟ than are the actions of adults” (ibid.), and that accordingly,
“ „a greater possibility exists that a minor‟s character deficiencies will be
reformed‟ ” (id. at pp. ___ [130 S.Ct. at pp. 2026-2027]).
       Further, the high court in Graham noted that, “[w]ith respect to life without
parole for juvenile nonhomicide offenders, none of the goals of penal sanctions
                                           4
that have been recognized as legitimate—retribution, deterrence, incapacitation,
and rehabilitation [citation]—provides an adequate justification.” (Graham,
supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2028].) First, although “ „[t]he heart of
the retribution rationale is that a criminal sentence must be directly related to the
personal culpability of the criminal offender‟ ” (ibid.), this concern applies equally
whether the sentence is one of life without parole or a term of years that cannot be
served within the offender‟s lifetime. Second, society‟s interest in deterring
socially unacceptable behavior by imposing long sentences does not justify
sentences of life without parole for juvenile nonhomicide offenders “[b]ecause
juveniles‟ „lack of maturity and underdeveloped sense of responsibility . . . often
result in impetuous and ill-considered actions and decisions,‟ [citation], [such that]
they are less likely to take a possible punishment into consideration when making
decisions.” (Id. at pp. ___-___ [130 S.Ct. at pp. 2028-2029].) Third, although
lifetime incapacitation will admittedly prevent criminals from reoffending,
imposing that severe punishment on juvenile nonhomicide offenders labels them
as incorrigible and incapable of change, and thus denies to them “a chance to
demonstrate growth and maturity.” (Id. at p. ___ [130 S.Ct. at p. 2029.) These
concerns remain true whether the sentence is life without parole or a term of years
exceeding the offender‟s life expectancy.
       The fourth consideration mentioned by the Graham court—rehabilitation—
is perhaps the most salient factor as applied to underage offenders. As Graham
explained: “A sentence of life imprisonment without parole . . . cannot be justified
by the goal of rehabilitation. The penalty forswears altogether the rehabilitative
ideal. By denying the defendant the right to reenter the community, the State
makes an irrevocable judgment about that person‟s value and place in society.
This judgment is not appropriate in light of a juvenile nonhomicide offender‟s
capacity for change and limited moral culpability.” (Graham, supra, 560 U.S. at
                                           5
pp. ___-___ [130 S.Ct. at pp. 2029-2030].) Like a sentence of life without parole,
a prison sentence of such length that it cannot be served within an offender‟s
lifetime similarly denies his or her “right to reenter the community” (ibid.), and so
equally implicates Graham‟s reasoning that concerns over rehabilitation cannot
justify a lifetime of imprisonment for nonhomicide juvenile offenders.
       Although the facts of this case differ from those in Graham in that
defendant was not sentenced to a single term of life without parole, I agree with
the majority that Graham applies. Because defendant committed three
nonhomicide crimes while still a juvenile and was sentenced to the functional
equivalent of life in prison with no possibility of parole, he is entitled to the
benefit of what Miller termed Graham‟s “categorical bar” (Miller, supra, 567 U.S.
at p. ___ [132 S.Ct. at p. 2465]) on sentences of life in prison with no “meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation”
(Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2030]). I also agree that the
Legislature is an appropriate body to establish a mechanism to implement
Graham‟s directives for the future (maj. opn., ante, at p. 9, fn. 5), and that “every
case will be different” (id. at p. 7). But irrespective of whether the Legislature, in
the future, steps in to enact procedures under which juveniles in defendant‟s
position may be resentenced, the trial court in this case must resentence defendant
to a term that does not violate his rights. (See In re Hawthorne (2005) 35 Cal.4th
40 [affording the defendant relief under Atkins v. Virginia (2002) 536 U.S. 304
when his case did not qualify for the preconviction proceedings set forth in Pen.
Code, § 1376].)2 Accordingly, I would provide the lower court greater guidance
on remand in this case, for we have before us a defendant on whom an
unconstitutional sentence was pronounced. That violation must be remedied.

2      Because the constitutionality of any new sentence may be challenged on
appeal, this court may be called upon to provide further guidance.
                                           6
Graham does not require defendant be given a parole hearing sometime in the
future; it prohibits a court from sentencing him to such a term lacking that
possibility at the outset. Therefore, I would remand the case to the trial court with
directions to resentence defendant to a term that does not violate his constitutional
rights, that is, a sentence that, although undoubtedly lengthy, provides him with a
“meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” (Graham, 560 U.S. at p. ___ [130 S.Ct. at p. 2030].)
       With those caveats in mind, I concur in the majority‟s decision to reverse
the judgment of the Court of Appeal.
                                                  WERDEGAR, J.
I CONCUR:
LIU, J.




                                          7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Caballero
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 191 Cal.App.4th 1248
Rehearing Granted

__________________________________________________________________________________

Opinion No. S190647
Date Filed: August 16, 2012
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Hayden A. Zacky

__________________________________________________________________________________

Counsel:

Kosnett & Durchfort and David E. Durchfort for Defendant and Appellant.

L. Richard Braucher, Susan L. Burrell, Corene Thaedra Kendrick and Jonathan Laba for Pacific Juvenile
Defender Center as Amicus Curie on behalf of Defendant and Appellant.

Constance de la Vega, Kyra Millich; Jessica R. Feierman, Marsha Levick, Emily Keller, Joanna Visser;
Maureen Pacheco; Elizabeth M. Calvin; Sheryl Gordon McCloud; Paula Pearlman and Shawna Parks for
Juvenile Law Center, Human Rights Advocates, Human Rights Watch, Loyola Law School Center for Law
and Policy, the National Association of Criminal Defense Attorneys and the Disability Rights Legal Center
as Amici Curie on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar, Lauren E. Dana,
Jaime L. Fuster and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

David E. Durchfort
Kosnett & Durchfort
11355 W. Olympic Blvd., Suite 300
Los Angeles, CA 90064
(310) 444-8898

Marsha Levick
Juvenile Law Center
1315 Walnut Street, 4th Floor
Philadelphia PA 19107
(215) 625-0551

Lawrence M. Daniels
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2288
