Filed 1/22/14

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



                                                   D063181
In re FRANK ELI HEARD on Habeas
Corpus.

                                                   (Super. Ct. No. SCD193832)


        Original proceeding on a petition for writ of habeas corpus. Relief granted.



        Law Offices of Kurt David Hermansen, under appointment by the Court of

Appeal, for Petitioner.

        Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Respondent.



        A jury convicted Frank Eli Heard of two counts of attempted willful, deliberate

and premeditated murder. (Pen. Code,1 § 664, 187, subd. (a).) The jury found true that

Heard committed the offenses for the benefit of a street gang. (§ 186.22, subd. (b)(1).)

The jury also found true certain firearm use enhancements under section 12022.53,


1       Statutory references are to the Penal Code unless otherwise specified.
subdivisions (c) and (d) and section 12022.5. Heard subsequently pled guilty to

voluntary manslaughter (§ 192, subd. (a)) based on a shooting unrelated to the counts for

attempted murder. He also admitted that he committed that offense for the benefit of a

street gang (§ 186.22, subd. (b)(1)) and discharged a firearm causing great bodily injury

and death within the meaning of section 12022.5, subdivision (a).

       The superior court sentenced Heard to prison for a determinate term of 23 years

for the manslaughter count and a consecutive indeterminate term of 80 years to life for

the two counts of attempted murder. Heard was 15 years old when he committed the two

counts of attempted murder and 16 years old when he committed the voluntary

manslaughter.

       Heard brings this petition for writ of habeas corpus, contending that his sentence is

equivalent to a sentence of life without the possibility of parole, and thus, violates the

holding of People v. Caballero (2012) 55 Cal.4th 262 (Caballero). In Caballero, our

high court "conclude[d] 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." (Id. at p. 268.)

       The Attorney General does not dispute that Heard's sentence is the equivalent to

life without the possibility of parole, but counters that Caballero, supra, 55 Cal.4th 262

only applies to nonhomicide crimes and because Heard pled guilty to voluntary

manslaughter, Caballero is distinguishable from the instant matter. As such, the

Attorney General asserts Heard's sentence does not violate the Eighth Amendment, citing

                                               2
the United States Supreme Court's recent case Miller v. Alabama (2012) 567 U.S. ___,

132 S.Ct. 2455, 2464, 2469 (Miller) (concluding "mandatory life-without-parole

sentences for juveniles violate the Eighth Amendment[,]" but noting a life-without-parole

sentence is permissible for homicide offenses (although "uncommon") in the sentencing

court's discretion).

       The Attorney General is correct that Heard was sentenced, in part, for committing

a homicide. Our high court in Caballero, supra, 55 Cal.4th 262 did not address such a

situation. Instead, it left Miller, supra, 132 S.Ct. 2455 to be applied in the homicide

context. (Caballero, supra, at p. 268, fn. 4.) Yet, this case does not present the same

issue as the one addressed in Miller, supra, 132 S.Ct. 2455, namely the

unconstitutionality of a mandatory life without the possibility of parole sentence for a

homicide offense. Here, Heard did not receive such a sentence, and the portion of his

sentence attributable to his homicide crime is 23 years, hardly the "harshest possible

penalty" that concerned the Supreme Court in Miller. (See id. at p. 2469.)

       Despite this matter not falling directly under the ambit of either Miller, supra, 132

S.Ct. 2455 or Caballero, supra, 55 Cal.4th 262, we remain concerned by Heard's

sentence. Ironically, it is not the homicide that leads to the troubling nature of Heard's

sentence, but the nonhomicide offenses, which account for the majority of Heard's prison

term. When added to the determinate sentence Heard received for voluntary

manslaughter, the 80-year-to-life indeterminate sentence for the nonhomicide offenses

results in a de facto life without the possibility of parole sentence. Also, the homicide

offense occurred six months after Heard's two attempted murder offenses. Additionally,

                                              3
Heard's homicide offense was for voluntary manslaughter, a crime the Legislature has not

seen fit to punish with a life sentence. Under these unique circumstances, we follow

Caballero, supra, 55 Cal.4th 262 and conclude Heard's sentence violates the Eighth

Amendment.

       However, recently the Legislature enacted Senate Bill No. 260 (SB 260), which

amends the California Penal Code to address the sentencing concerns expressed in Miller,

supra, 132 S.Ct. 2455, Caballero, supra, 55 Cal.4th 262, and Graham v. Florida (2010)

560 U.S. 48 (Graham). SB 260, which took effect January 1, 2014, provides almost

every juvenile offender an "opportunity parole hearing" whereby the juvenile would be

given a "meaningful opportunity" for release during his or her lifetime. The Attorney

General maintains that this new law essentially moots Heard's petition because he will

have the opportunity to be released during his lifetime. Despite SB 260 offering the

possibility of release during Heard's lifetime, we nevertheless conclude a sentencing

court must comply with Graham, Miller, and Cabarello in sentencing juvenile offenders.

Accordingly, we grant the requested relief.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Heard was charged in an amended indictment with two counts of attempted

murder and a third count of murder. The two attempted murders occurred about six

months before the homicide. The amended indictment further alleged certain

enhancements related to each count, including that the offenses were committed for the

benefit of a criminal street gang (§ 186.22, subd.(b)(1)) and a variety of firearm use

enhancements (§ 12022.53, subds. (c), (d) & (e)(1)).

                                              4
       The attempted murder charges stemmed from Heard's participation in a drive-by

criminal gang style shooting in which two victims, alleged rival gang members, were

injured.2 The murder charge allegedly involved Heard shooting a minor whom he

thought was selling drugs in Heard's criminal street gang's territory.3

       The trial court granted Heard's motion to sever counts 1 and 2 from count 3.

Counts 1 and 2 proceeded to a jury trial. At that trial, the jury found Heard guilty of both

counts of attempted murder. The jury also found true the firearm allegations as well as

the gang allegations.

       After the verdict, Heard entered into a plea agreement on count 3. He pled guilty

to the lesser included offense of voluntary manslaughter and admitted to committing the

offense for the benefit of a criminal street gang under section 186.22, subdivision (b)(1)

and personally using a firearm under section 12022.5, subdivision (a).

       Prior to Heard's sentencing hearing, Heard's counsel filed a sentencing

memorandum arguing it would be cruel and unusual punishment in violation of the

Eighth Amendment to impose a life sentence on Heard. In the memorandum, Heard

urged the court to consider Heard's age, family situation, exposure to violence at an early

age, limited intelligence, and introduction to criminal street gangs as a toddler.



2      A detailed summary of the facts of Heard's two counts of attempted murder are
contained in People v. Heard (Feb. 24, 2009, D052492) [nonpub. opn.]), review denied
May 20, 2009, S171378. The extent of the victims' injuries is not described in that
opinion or in the record before us.

3      We take the description of the homicide leading to the murder charge from Heard's
probation report. This offense, however, was never tried.
                                            5
       During the sentencing hearing, Heard's attorney continued to advance a

constitutional argument that the court should not sentence Heard to life in prison. The

court was not convinced, commenting: "Clearly, objectively there's no constitutional

infirmity for the imposing of a life sentence for an attempted premeditated murder. That

is the desire of the Legislature. It has been confirmed by the court."4 The court

proceeded to explain that the issue that it must determine in sentencing Heard, was

whether a "subjective analysis" "of Mr. Heard personally renders such a sentence

constitutional[ly] infirm."

       The court explained that Heard was the "poster child for the legislative

intervention with regard to gangs." Considering the Legislature's focus on gang violence

and the statutes enacted to address it, the court found "no constitutional infirmity in the

application of either a life sentence as to the counts or a life sentence as to the

enchancements." Accordingly, the court sentenced Heard to prison for a total of 80 years

to life plus 23 years comprised of the following: 15 years to life for count 1 (attempted

murder), 25 years to life for the firearm enhancement under section 12022.53,

subdivision (d) on count 1; 15 years to life for count 2 (attempted murder), 25 years to

life for the firearm enhancement under section 12022.53, subdivision (d) on count 2; and

23 years for count 3 (voluntary manslaughter). The court stayed additional 20-year

enhancements under section 12022.53, subdivision (c) and section 12022.5 for counts 1

and 2. The court elected to run the sentences for counts 1, 2, and 3 consecutively.


4     Heard was sentenced prior to Caballero, supra, 55 Cal.4th 262 and Miller, supra,
132 S.Ct. 2455.
                                          6
       Heard appealed his conviction and sentence, and this court affirmed the judgment

in People v. Heard (Feb. 24, 2009, D052492) [nonpub. opn.], review denied May 20,

2009, S171378. Heard filed a petition for a writ of habeas corpus with the superior court,

claiming, among other things, his prison sentence is excessive because he will not be

eligible for parole during his lifetime. The superior court denied the petition.

       Heard then filed a petition for a writ of habeas corpus with this court, raising again

the argument that his sentence was excessive. We requested an informal response to the

petition from the Attorney General. After the Attorney General filed an informal

response, Heard filed a reply. After considering the papers, we issued an order to show

cause why relief should not be granted.

       Counsel was appointed for Heard, and Heard filed a supplemental petition for a

writ of habeas corpus. The attorney general filed a return, to which Heard filed a

traverse. Shortly before oral arguments were scheduled in this matter, the Attorney

General, by way of letter with an attached supplemental return, requested permission to

file a supplemental return based on the Legislature's passage of SB 260. The Attorney

General argued that SB 260 addressed Heard's concerns in his petition, and thus, this

court should discharge the order to show cause.

       We granted the Attorney General's request and filed the supplemental return.

After doing so, we requested Heard file a response to the supplemental return, and we

vacated oral argument in this case, which was to be rescheduled at a future date.

       Heard filed his response to the supplemental return, and we recalendered oral

argument in this matter.

                                              7
                                      DISCUSSION

       The instant matter presents two issues for our consideration. The first is whether

Heard's sentence constitutes cruel and unusual punishment in violation of the Eighth

Amendment of the United States Constitution.5 If we determine Heard's sentence

violates the Eighth Amendment, we next must consider whether SB 260 cures the

constitutional violation.

                                             I

                HEARD'S SENTENCE AND THE EIGHTH AMENDMENT

       Over the past several years, the United States Supreme Court has addressed the

constitutional limits of punishment for a juvenile's criminal offenses. In Roper v.

Simmons (2005) 543 U.S. 551, the United States Supreme Court held the imposition of

capital punishment on juvenile offenders for any offense whatsoever violated the Eighth

Amendment. (Id. at pp. 578-579.) The court explained that because juveniles have

lessened culpability they are less deserving of the most severe punishments. (Id. at

p. 569.) The court noted that, as compared to adults, juveniles have a " 'lack of maturity

and an underdeveloped sense of responsibility' "; they "are more vulnerable or susceptible

to negative influences and outside pressures, including peer pressure"; and their

characters are "not as well formed." (Id. at pp. 569-570.)

       In Graham, supra, 560 U.S. 48, the United States Supreme Court continued to

limit the scope of punishment applicable to juvenile offenders. Applying much of the


5     The Eighth Amendment applies to the states. (Robinson v. California (1962) 370
U.S. 660, 666-667.)
                                        8
reasoning it found persuasive in Roper, supra, 543 U.S. 551, the court held that the

Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide

offenses to life imprisonment without the possibility of parole (LWOP). (Graham, supra,

at p. 75.) 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. (Id. at p. 56-57.)

The trial court revoked his probation and sentenced him to life in prison for the burglary.

(Id. at p. 57.) Graham's sentence amounted to an LWOP because Florida had abolished

its parole system, leaving Graham with no possibility of release unless he was granted

executive clemency. (Ibid.)

       The Supreme 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. 69.) 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 [also] 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." (Id. at p. 68, quoting Roper, supra, 543 U.S. at p. 570.) No legitimate

penological interest, the court concluded, justifies an LWOP sentence for juvenile

nonhomicide offenders. (Graham, supra, at pp. 74-75.)

                                              9
       Most recently, the Supreme Court applied the holding of Graham, supra, 560

U.S. 48 to homicide crimes, decreeing that the prohibition of cruel and unusual

punishment set forth in the Eighth Amendment prohibits the imposition of a mandatory

LWOP sentence on a juvenile offender. (Miller, supra, 132 S.Ct. at p. 2469.) Citing

Roper, supra, 543 U.S. 551 and Graham, the court explained that in homicide cases

involving juvenile offenders, the sentencing court is required "to take into account how

children are different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison." (Miller, supra, at p. 2469, fn. omitted.) The court

elaborated:

          "Mandatory life without parole for a juvenile precludes
          consideration of his 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 surrounds him--and from which he cannot
          usually extricate himself--no matter how brutal or dysfunctional. It
          neglects the circumstances of the homicide offense, including the
          extent of his participation in the conduct and the way familial and
          peer pressures may have affected him. Indeed, it ignores that he
          might have been charged and convicted of a lesser offense if not for
          incompetencies associated with youth--for example, his inability to
          deal with police officers or prosecutors (including on a plea
          agreement) or his incapacity to assist his own attorneys." (Id. at p.
          2468.)

       However, the Supreme Court in Miller, supra, 132 S.Ct. 2455, made clear that, in

homicide cases, it was "not foreclos[ing]" the ability of a sentencing court to impose "this

harshest possible penalty" of LWOP on " 'the rare juvenile offender whose crime reflects

irreparable corruption.' " (Id. at p. 2469, quoting Roper, supra, 543 U.S. at p. 573.)




                                             10
       With the guidance of Roper, supra, 543 U.S. 551, Graham, supra, 560 U.S. 48,

and Miller, supra, 132 S.Ct. 2455, the California Supreme Court recently determined

"sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole

eligibility date that falls outside the juvenile offender's natural life expectancy constitutes

cruel and unusual punishment in violation of the Eighth Amendment." (Caballero,

supra, 55 Cal.4th at p. 268.) The court in Caballero reasoned: "Miller . . . 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. [¶]

Defendant in the present matter will become parole eligible over 100 years from now.

[Citation.] Consequently, he would have no opportunity to 'demonstrate growth and

maturity' to try to secure his release, in contravention of Graham's dictate. [Citations.]

Graham's analysis does not focus on the precise sentence meted out. Instead . . . it holds

that a state must provide a juvenile offender 'with some realistic opportunity to obtain

release' from prison during his or her expected lifetime. [Citation.]" (Id. at pp. 267-268,

fn. omitted.)

       In reaching these conclusions, our high court in Caballero noted Miller, supra,

132 S.Ct. 2455 had "extended Graham's reasoning (but not its categorical ban) to

homicide cases . . . ." (Caballero, supra, 55 Cal.4th at p. 267.) The court pointed out

Miller "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

                                              11
botched robbery turns into a killing. So Graham's reasoning implicates any life-without-

parole sentence imposed on a juvenile, even as its categorical bar relates only to

nonhomicide offenses.' [Citation.]" (Caballero, supra, at p. 267.)6

       These cases provide clear rules for the sentencing of juveniles. A juvenile cannot

be sentenced to capital punishment for any crime. (Roper, supra, 543 U.S. at pp. 578-

579.) A sentencing court may not sentence a juvenile to prison for life without the

possibility of parole for nonhomicide offenses. (Graham, supra, 560 U.S. at p. 75.) A

sentence for a juvenile who committed a nonhomicide offense that consists of a term of

years with a parole eligibility date that falls outside the juvenile offender's natural life

expectancy is prohibited. (Caballero, supra, 55 Cal.4th at p. 268.) Mandatory life

without parole sentences for juveniles, even those who commit homicide, are not

permitted. (Miller, supra, 132 S.Ct. at p. 2464.) An LWOP sentence for juveniles who

committed a homicide offense is allowable only if the court considers the " 'mitigating

qualities of youth' " and limits "this harshest possible penalty" to those "rare juvenile

offender[s] whose crime[s] reflect[] irreparable corruption." (Id. at pp. 2467, 2469.) The

instant matter, however, does not neatly fit under any of these rules.

       Heard contends, and the Attorney General does not refute, that his sentence

amounts to LWOP. The parties' agreement in this matter ends there.

       The Attorney General argues that Graham, supra, 560 U.S. 48 and Caballero,

supra, 55 Cal.4th 262 are distinguishable because Heard committed a homicide. The

6       Like here, the nonhomicide offenses in Caballero, supra, 55 Cal.4th 262 were
attempted murders involving the defendant shooting at rival gang members. (Id. at
p. 65.)
                                            12
Attorney General further contends Heard's sentence is constitutional under Miller, supra,

132 S.Ct. 2455. We agree that Heard's commission of a homicide (here, voluntary

manslaughter) ostensibly distinguishes this matter from Graham and Caballero. Yet, we

are not persuaded that Miller somehow renders Heard's sentence constitutional. Further,

we are concerned that the majority of Heard's sentence was based on his nonhomicide

offenses, which raises the specter of the unconstitutional sentences prohibited by Graham

and Caballero.

       Miller, supra, 132 S.Ct. 2455 concerned two 14-year-old offenders. The first, a

juvenile in Arkansas, was convicted of capital felony murder and aggravated robbery.

Arkansas law required the juvenile be sentenced to prison for life without the possibility

of parole. (Id. at p. 2461.) The second, a juvenile in Alabama, was convicted of murder

in the course of arson, which carried a mandatory minimum punishment of life without

the possibility of parole. (Id. at p. 2463.) In contrast, here, Heard pled guilty to

voluntary manslaughter and was sentenced to prison for 23 years, the bulk of which

resulted from enhancements. California law did not require or even allow a mandatory

life without the possibility of parole sentence for Heard's homicide offense.

       In addition, Heard was sentenced well before Miller, supra, 132 S.Ct. 2455 was

decided. The court in Miller determined a mandatory life without the possibility of

parole sentence for a juvenile unconstitutional, among other reasons, because it did not

allow the sentencing courts to consider the juvenile's: (1) age and its hallmark features--

among them, immaturity, impetuosity, and failure to appreciate the risks and

consequences; and (2) family and home environment. (Id. at p. 2468.) The court in

                                              13
Miller emphasized that the sentencing court must "take into account how children are

different, and how those differences counsel against irrevocably sentencing them to a

lifetime in prison." (Id. at p. 2469.) Here, it is unclear from the record to what extent, if

any, the sentencing court considered these factors in determining Heard's sentence.

Indeed, the court emphasized its lack of discretion during the sentencing hearing and

focused on Heard's gang involvement in figuring Heard's sentence.

       Also, the Attorney General's argument overlooks the fact that the lion's share of

Heard's sentence (80 years to life) stems from two nonhomicide offenses unrelated to

Heard's homicide offense. No such concern was present in Miller. For this reason as

well, we are not persuaded that Heard's sentence is constitutional under Miller, supra,

132 S.Ct. 2455.

       Yet, although we determine that Heard's sentence should not be analyzed under

Miller, supra, 132 S.Ct. 2455, the question remains whether Heard's homicide offense

negates the constitutional protections provided to Heard under Graham, supra, 560 U.S.

48 and Caballero, supra, 55 Cal.4th 262. Under the novel circumstances before us, we

conclude that Heard's particular homicide offense does not take this case outside the

safety of Graham and Caballero. Paradoxically, our conclusion to apply both Graham

and Caballero here is buttressed by Miller, supra, 132 S.Ct. 2455.

       In Miller, supra, 132 S.Ct. 2455, the Supreme Court stopped short of applying

Graham's categorical ban on LWOP sentences for juveniles. (Id. at p. 2469.) It did so

because the juveniles there were convicted of homicide crimes. The court, however,



                                              14
expressed its belief that very few juveniles, even those convicted of homicide offenses,

would be sentenced to life without the possibility of parole:

          "But given all we have said in Roper, Graham, and this decision
          about children's diminished culpability and heightened capacity for
          change, we think appropriate occasions for sentencing juveniles to
          this harshest possible penalty will be uncommon. That is especially
          so because of the great difficulty we noted in Roper and Graham of
          distinguishing at this early age between 'the juvenile offender whose
          crime reflects unfortunate yet transient immaturity, and the rare
          juvenile offender whose crime reflects irreparable corruption.'
          [Citations.] Although we do not foreclose a sentencer's ability to
          make that judgment in homicide cases, we require it to take into
          account how children are different, and how those differences
          counsel against irrevocably sentencing them to a lifetime in prison."
          (Miller, supra, at p. 2469.)

       Thus, Miller, supra, 132 S.Ct. 2455 leaves open the possibility that a court could

sentence a juvenile to life without the possibility of parole, but may only do so if it

considers certain factors and the circumstances of the crime to determine the juvenile is

that "rare . . . offender whose crime reflects irreparable corruption." (Id. at p. 2469,

italics added.) However, the court made clear in Graham, supra, 560 U.S. 48 that a

nonhomicide crime cannot serve as the basis for an LWOP sentence. Accordingly, under

Graham and Miller, the justification for an LWOP sentence must come from the

homicide crime itself. (See Miller, supra, at p. 2469; cf. Graham, supra, at p. 75.)

       Here, Heard pleaded guilty to voluntary manslaughter. In California, voluntary

manslaughter is punishable by imprisonment of three, six, or 11 years. (§ 193, subd. (a).)

Heard also admitted to enhancements under sections 186.22, subdivision (b)(1)(C) and

12022.5, subdivision (a). These allowed for additional prison terms of 10 years and

three, four, or 10 years respectively. Thus, at most, the court could have sentenced Heard

                                              15
to prison for 31 years for the voluntary manslaughter offense. Instead, it sentenced Heard

to 23 years, far short of the length of sentence that concerned the Supreme Court in

Miller, supra, 132 S.Ct. 2455. Simply put, the homicide crime here could not have

subjected Heard to an LWOP sentence, and Heard's sentence for voluntary manslaughter

is not a sentence that implicates the constitutional protections of Miller. Put differently,

considering the maximum sentence for the specific homicide crime, the offense of

voluntary manslaughter cannot be a crime that reflects "irreparable corruption" as

required by Miller. (See id. at p. 2469.)

       Therefore, we are left with Heard's sentence for his nonhomicide crimes, which is

80 years to life. Having determined that Heard's homicide crime is not of the caliber that

triggers Miller, supra, 132 S.Ct. 2455, we must evaluate this case under Graham, supra,

560 U.S. 48 and Caballero, supra, 55 Cal.4th 262. In light of this precedent, we

determine that Heard's sentence constitutes cruel and unusual punishment in violation of

the Eighth Amendment. We do so, however, based on the unique circumstances before

us.

       Heard committed the attempted murders at age 15 and the voluntary manslaughter

at age 16. The nonhomicide offenses and the homicide offense were unrelated, having

occurred almost six months apart. Heard's homicide offense is voluntary manslaughter.7

For that crime, including the enhancements that he admitted true, the sentencing court

could have sentenced Heard to a total of 31 years, but sentenced him to 23 years instead.


7      The fact that Heard pled guilty to the voluntary manslaughter charge as part of a
plea bargain does not impact our analysis.
                                             16
The majority of Heard's sentence is attributable to his nonhomicide crimes, comprising

two 40-year-to-life sentences. The court ordered Heard to serve those sentences

consecutively after serving his 23-year sentence on the manslaughter offense. The

presence of the specific homicide crime here is not the talisman that protects Heard's

sentence from constitutional scrutiny. In other words, we do not believe the Constitution

allows for the sentencing judge to ignore the holdings of Graham, supra, 560 U.S. 48 and

Caballero, supra, 55 Cal.4th 262 because of a homicide that carries a maximum sentence

far short of life without the possibility of parole. Under these distinctive facts, we

determine that Heard's sentence violates the Eighth Amendment.

                                              II

                                           SB 260

       Having determined that Heard's sentence violates the Eighth Amendment, we next

consider whether SB 260 negates the need to remand this matter back to the trial court for

resentencing. Section 1 of SB 260 states in relevant part: "The Legislature finds and

declares that, as stated by the United States Supreme Court in Miller v. Alabama (2012)

183 L.Ed.2d 407, '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

                                             17
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 People v.

Caballero (2012) 55 Cal.4th 262 and the decisions of the United States Supreme Court in

Graham v. Florida (2010) 560 U.S. 48, and Miller v. Alabama (2012) 183 L.Ed.2d

407."8 (Legis. Counsel's Dig., SB 260 (2013-2014 Reg. Sess.) § 1, pp. 2-3.)

       New section 3051, subdivision (a)(1), provides that "any prisoner who was under

18 years of age at the time of his or her controlling offense" shall be afforded a "youth

offender parole hearing." Juvenile offenders with determinate sentences of any length

shall receive a hearing during the 15th year of incarceration. (New § 3051, subd. (b)(l).)

Juvenile offenders sentenced to life terms of less than 25 years to life shall receive a

hearing during the 20th year of incarceration. (New § 3051, subd. (b)(2).) Juveniles

sentenced to an indeterminate base term of 25 years to life will receive a hearing during

the 25th year of incarceration. (New § 3051, subd. (b)(3).) The youth offender parole

hearing "shall provide for a meaningful opportunity to obtain release." (New § 3051,

subd. (e).) Any psychological evaluations and risk assessments used by the Board of

Parole Hearings "shall be administered by licensed psychologists employed by the board

8       SB 260 exempts from its provisions "inmates who were sentenced pursuant to the
Three Strikes law or Jessica's Law, or sentenced to life in prison without the possibility of
parole." SB 260 also is not applicable to "an individual to whom the bill would otherwise
apply, but who, subsequent to attaining 18 years of age, commits an additional crime for
which malice aforethought is a necessary element of the crime or for which the individual
is sentenced to life in prison." (Legis. Counsel's Dig., SB 260 (2013–2014 Reg. Sess.)
p. 2.)
                                             18
and shall 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." (New § 3051, subd. (f)(1).)

       The Attorney General maintains that SB 260 provides Heard with the possibility

of parole within his life expectancy; therefore, the new law addresses "the specific

concern expressed in Caballero[,]" supra, 55 Cal.4th 262. Consequently, the Attorney

General argues the purpose of Heard's petition has been achieved, and we should

discharge the order to show cause.

       In response, Heard contends: (1) he is not guaranteed to receive an opportunity to

avail himself of SB 260; (2) even if SB 260 remains in effect, he will not receive the

benefit of SB 260's two entitlements; (3) SB 260, as applied to Heard, violates his

Fourteenth Amendment right to equal protection; and (4) SB 260's passage does not

remedy the sentencing court's failure to consider the mitigating circumstances of Heard's

youth, as required by Miller, supra, 132 S.Ct. 2455. To resolve the issue before us, we

focus on Heard's first and fourth contentions.

       We are not the first court to address the effect of SB 260 on a juvenile's prison

sentence. In In re Alatriste (2013) 220 Cal.App.4th 1232 (Alatriste),9 the court


9       A petition for review was filed on December 3, 2013, in Alatriste, supra, 220
Cal.App.4th 1232, but our high court has not yet acted on the petition. In addition,
recently, another Court of Appeal cited with approval Alatriste in reaching the same
conclusion that SB 260 rendered an LWOP sentence constitutional because SB "260 . . .
insures that [petitioner] will be afforded a meaningful opportunity for release on parole
after a set number of years based upon fixed criteria." (People v. Martin (2013) 222
Cal.App.4th 98, 105.) As we discuss below, we disagree with the holdings of both
Alatriste and Martin.
                                              19
determined that the two petitioners' sentences for homicide (77 years to life and 50 years

to life) did not violate the Eighth Amendment because SB 260 provides both petitioners

with a meaningful opportunity to obtain release on parole during their respective

lifetimes. (Alatriste, supra, at pp. 1239-1240.) In reaching this conclusion, the court

noted the difficulties experienced by trial courts in attempting to follow Graham, supra,

560 U.S. 48, Miller, supra, 132 S.Ct. 2455, and Caballero, supra, 55 Cal.4th 262:

          "The Legislature has enacted statutes designed to ensure lengthy
          prison sentences for defendants who commit serious and/or violent
          felonies. These sentencing statutes, particularly those requiring trial
          courts to impose certain sentence enhancements, limit a trial court's
          sentencing options. When sentencing a juvenile defendant, a trial
          court, while accommodating this statutory framework, must consider
          objective factors such as the defendant's age, level of participation in
          the crime and, to a certain extent, life experiences. However, the
          court must also evaluate subjective factors, such as the defendant's
          'physical and mental development,' [citation] in order to determine
          when the defendant might attain a sufficient level of maturity to
          warrant release on parole. The court must then fashion a sentence
          that gives the defendant a meaningful opportunity for release on
          parole during his or her lifetime, and must utilize actuarial skills to
          determine how long the defendant's lifetime might be." (Alatriste,
          supra, 220 Cal.App.4th at p. 1238.)

       The court emphasized that SB 260 was a direct response to Graham, supra, 560

U.S. 48, Miller, supra, 132 S.Ct. 2455 and Caballero, supra, 55 Cal.4th 262 in that it

ensures prisoners, who "were juveniles at the time they committed their life crimes, will

have the benefit of the type of evaluation compelled by Miller, Graham and Caballero at

a point in time that gives them a meaningful opportunity to 'obtain release based on

demonstrated maturity and rehabilitation.' [Citation.]" (Alatriste, supra, 220 Cal.App.4th

at pp. 1239-1240.) In other words, SB 260 allows trial courts to avoid the type of


                                            20
evaluation of a juvenile defendant at the time of sentencing that is mandated by Graham,

Miller, and Caballero because the Board of Parole Hearings will engage in the required

assessment at a later time. In reaching this conclusion, the court emphasized that

Graham, Miller, and Caballero only hold that a juvenile may not be incarcerated for life

or its functional equivalent without some meaningful opportunity for release on parole

during his or her lifetime, but "[t]hese cases do not require that the time when that

meaningful opportunity might occur should be determined at the time of sentencing."

(Alatriste, supra, at p. 1240.)

       We respectfully disagree with the court's conclusion in Alatriste, supra, 220

Cal.App.4th 1232. Although SB 260 offers almost all10 juvenile offenders a

"meaningful opportunity" to obtain parole during their lifetimes, we do not share the

court's determination in Alatriste that SB 260 essentially allows a sentencing court to

ignore the requirements of Graham, Miller, and Caballero. These three cases focus on

the differences between adult offenders and juvenile offenders. (See Graham, supra, 560

U.S. at pp. 67-69; Miller, supra, 132 S.Ct. at p. 2469; Caballero, supra, 55 Cal.4th. at p.

267.) They stress the importance of the sentencing court considering these differences

when sentencing the juvenile offender. The holding of Alatriste, supra, 220 Cal.App.4th

1232 allows the sentencing court to disregard Graham, Miller, and Caballero because of

the impact of SB 260 on a juvenile's sentence. In other words, Alatriste relieves the

sentencing court of its constitutional duty to consider the differences between juveniles

and adults when sentencing juvenile offenders because SB 260 is intended to provide a

10     See footnote 8.
                                             21
juvenile offender a "meaningful opportunity" to obtain release on parole during his or her

lifetime.

       We do not read SB 260 as a replacement of the sentencing court's execution of its

constitutional duties as required under Graham, supra, 560 U.S. 48, Miller, supra, 132

S.Ct. 2455 and Caballero, supra, 55 Cal.4th 262 to consider the differences between

juveniles and adults when sentencing a juvenile offender. Instead, we view SB 260 as a

"safety net" to guarantee a juvenile offender the opportunity for a parole hearing during

his or her lifetime. As a result, we conclude the sentencing court still must attempt to

prescribe the constitutionally appropriate sentence under Graham, Miller, and

Caballero.11

       SB 260 does not allay a sentencing court's duty to impose the appropriate sentence

for a juvenile offender. This is no easy task. (See Alatriste, supra, 220 Cal.App.4th at p.

1238 [noting "the directives of Graham, Miller, and Caballero have proved challenging

for trial courts."].) However, a sentencing court may not forgo its responsibility simply

because its charge under Graham, supra, 560 U.S. 48, Miller, supra, 132 S.Ct. 2455 and

Caballero, supra, 55 Cal.4th 262 may prove to be arduous.

       This is all the more true because there is no guarantee that SB 260 will remain in

existence when Heard would be eligible to benefit from it. We are troubled by the


11     During oral argument, the Attorney General agreed on this point, conceding that,
even with the passage of SB 260, the sentencing court must consider the factors discussed
in Graham, supra, 560 U.S. 48, Miller, supra, 132 S.Ct. 2455 and Caballero, supra, 55
Cal.4th 262. Because on the record before us we cannot determine whether the
sentencing court considered the relevant factors, SB 260 could not transform Heard's
sentence here from unconstitutional to constitutional.
                                            22
potential consequences if California trial courts begin to ignore the requirements of

Graham, supra, 560 U.S. 48, Miller, supra, 132 S.Ct. 2455 and Caballero, supra, 55

Cal.4th 262 in sentencing juvenile offenders only to have SB 260 replaced or repealed at

a later date. The prudent course remains for a sentencing court to abide by the

constitutional requirements of those cases in sentencing juvenile offenders.

       Even with the passage of SB 260, a sentencing court nonetheless remains

obligated to follow Graham, supra, 560 U.S. 48, Miller, supra, 132 S.Ct. 2455 and

Caballero, supra, 55 Cal.4th 262 when sentencing a juvenile offender. To this end, a

sentencing court must consider, at the very least, the differences between an adult and a

juvenile and how those differences should impact the sentence given to the juvenile

offender as required by Graham, Miller, and Caballero. SB 260 can help avoid some of

the inconsistencies in sentencing juveniles noted by the court in Alatriste, supra,

220 Cal.App.4th 1232 as well as provide some reassurance to the sentencing court that

the juvenile, except in the rarest of circumstances,12 will receive a "meaningful

opportunity" to be released on parole during his or her lifetime.

       Heard's sentence of 23 years and 80 years to life is reversed and the matter

remanded for resentencing consistent with this opinion. We express no opinion as to

what sentence should be imposed.

       Because we decide this issue based on only two of Heard's arguments (SB 260

does not relieve the sentencing court from considering the mitigating circumstances of

Heard's youth and SB 260 may not be in existence at the time Heard would benefit from

12     See footnote 8.
                                             23
it), we do not reach Heard's additional arguments raising constitutional challenges to the

application of SB 260 to his sentence.

                                      DISPOSITION

       We grant the requested relief. Heard's sentence of 23 years and 80 years to life is

reversed and the matter remanded for resentencing consistent with this opinion.



                                                                            HUFFMAN, J.

WE CONCUR:


             BENKE, Acting P. J.


                      HALLER, J.




                                            24
