Filed 8/28/14 P. v. Caballero CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR

THE PEOPLE,                                                         B248232

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA043902)

         v.                                                          ORDER MODIFYING OPINION
                                                                     [NO CHANGE IN JUDGMENT]
RODRIGO CABALLERO,

         Defendant and Appellant.



THE COURT:*

         It is ordered that the unpublished opinion filed August 19, 2014, be modified as
follows:
         On page 1, in the first sentence the judge’s name is corrected to read: “Hayden
Zacky, Judge.”
         There is no change in judgment.




*EPSTEIN, P. J.                            WILLHITE, J.                               MANELLA, J.
Filed 8/19/14 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                         B248232

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA043902)

         v.

RODRIGO CABALLERO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden
Zackey, Judge. Affirmed.
         Verna Wefald, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.




                          _________________________________________
       This is an appeal after remand for resentencing. Appellant, who was 16 years old
at the time of his crimes, was originally sentenced to 110 years to life in prison. After
this court affirmed his conviction, he successfully challenged his sentence as cruel and
unusual punishment. The Supreme Court reversed, and we then remanded to the trial
court for resentencing. He was sentenced to 40 years to life. He again claims this
sentence violates the Eighth Amendment prohibition against cruel and unusual
punishment because, he argues, the trial court failed to consider mitigating evidence, and
that this sentence does not give him a meaningful opportunity for release based on
demonstrated maturity and rehabilitation, as required under Graham v. Florida (2010)
560 U.S. 48 (Graham) and Miller v. Alabama (2012) 567 U.S. ___ [132 S. Ct. 2455].
                                                                           1
He asserts recently enacted Penal Code section 3051, subdivision (b)(2), which provides
for a parole hearing within 25 years for a juvenile offender sentenced to a term of 25
years to life, does not avoid the Eighth Amendment violation. He also argues these
claims were not forfeited by his counsel’s failure to object at the sentencing hearing.
       In the interest of judicial efficiency, we address the sentencing claims to forestall a
later claim of ineffective assistance of counsel, despite counsel’s lack of objection. The
opinions in this case by the Supreme Court and by this court detailed appellant’s mental
illness and background, and the trial court acknowledged on the record that it had read
these opinions. From this, we infer the trial court considered the relevant mitigating
factors before imposing a greatly reduced sentence. We also conclude the 40 years to life
sentence is not the functional equivalent of a sentence of life without possibility of
parole, and that the provision for a parole hearing within 25 years under section 3051
provides appellant with a meaningful opportunity for release based on maturity and
rehabilitation. His sentence does not violate the Eighth Amendment, and we affirm the
judgment.




1      All statutory references are to the Penal Code.
                                              2
                    FACTUAL AND PROCEDURAL SUMMARY
        In June 2007, appellant Rodrigo Caballero, then 16 years old, opened fire on three
teenage boys who were members of a rival gang. One was hit in the upper back, the
other two were not hit. A juvenile petition alleged three counts of attempted murder
(§§ 664, 187, subd. (a)) and three counts of assault with a semiautomatic weapon (§ 245,
subd. (b)), with gang and weapon enhancements. The court and counsel declared a doubt
as to appellant’s mental competence to proceed. Examining psychologists were of the
opinion that appellant suffered from “Schizophrenia, Paranoid Type” and that he lacked
competence to waive his fitness hearing to determine if his case should remain in juvenile
court. Based on the reports and stipulation of counsel, the juvenile court found appellant
mentally incompetent and criminal proceedings were suspended.
        A year later, after treatment with antipsychotic medication, appellant was found
competent, and then found unfit to remain in juvenile court. The petition was dismissed
and a complaint was filed in adult court. Appellant was convicted of three counts of
attempted murder. The jury found true the allegations that appellant personally and
intentionally discharged a firearm (§ 12022.53, subds. (c), (d)), inflicted great bodily
harm on one victim (§ 12022.7), and committed the crimes for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)(C)). Appellant was sentenced to 15 years to life for
the first attempted murder count, plus a consecutive 25 years to life for the firearm
enhancement. For the second attempted murder, the court imposed an additional
consecutive term of 15 years to life, plus 20 years for the firearm enhancement. For the
third attempted murder, the court imposed another consecutive term of 15 years to life,
plus 20 years for the firearm enhancement. Appellant’s total sentence was 110 years to
life.
        On appeal (People v. Caballero (Nov. 27, 2012, B217709) [nonpub. opn.]),
appellant claimed his mental illness rendered the trial and ensuing punishment
fundamentally unfair, he was denied effective assistance of counsel, and instruction on
lesser included offenses would have affected the outcome of the trial. Appellant also
filed a habeas petition (In re Rodrigo Caballero (Nov. 27, 2012, B221833 [nonpub.

                                              3
opn.]) asserting that his incompetency rendered the trial and conviction fundamentally
unfair, and that his counsel was ineffective for failing to assert his mental incompetency.
At oral argument, appellant requested a remand for resentencing, in light of the United
States Supreme Court’s recent decision in Graham, supra, 560 U.S. 48, that it is
unconstitutional to impose a life without parole sentence on a juvenile offender who did
not commit murder. The parties were given an opportunity to brief the matter. In an
opinion filed January 18, 2011, this court rejected appellant’s claim that his sentence of
110 years to life is cruel and unusual punishment under Graham. We read Graham to be
limited to cases where a juvenile offender actually receives a sentence of life without the
possibility of parole for a nonhomicide offense, not to sentences like appellant’s. We
affirmed the judgment in its entirety and denied the habeas petition. The portion of the
opinion upholding the constitutionality of appellant’s sentence was certified for
publication.
       The Supreme Court granted review. In People v. Caballero (2012) 55 Cal.4th 262
(Caballero), the court held 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.) Under Graham, the sentencing court must
consider the mitigating circumstances in the juvenile’s crime and life, including age at the
time of the crime, the juvenile offender’s role in the crime, 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 based on maturity and rehabilitation. (Id. at pp. 268-
269.) The judgment was reversed and the case remanded to this court for
reconsideration.
       In the opinion filed November 27, 2012, we again rejected appellant’s challenges
to his conviction, but reversed the judgment and remanded the matter to the trial court for
resentencing. We instructed the trial court to “fashion a sentence that gives defendant
‘some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.’ (Graham, supra, 560 U.S. at p. [75].) This is not to say that defendant

                                               4
should not receive a sentence commensurate with the senseless violent shooting for
which he is solely responsible. However, the sentence cannot foreclose the possibility
that defendant may someday, within a reasonable timeframe considering his age and
circumstances, have the opportunity to convince a parole board that he no longer poses a
danger to society.”
        On remand, the People asked the court not to resentence appellant, but to set a
parole hearing date. The trial court sentenced defendant to 40 years to life, as follows:
on count one, 15 years to life with a consecutive 25 years to life for the firearm
enhancement; on counts two and three, 15 years to life plus 20 years for the firearm
enhancements, to run concurrent to the term for count one. Appellant filed a timely
appeal from the judgment.
                                       DISCUSSION
                                              I
        At his resentencing hearing, appellant did not object to his sentence on grounds
that it amounted to cruel and unusual punishment, nor did he ask the trial court to
consider evidence that he was diagnosed with schizophrenia as mitigating evidence.
Respondent correctly notes failure to raise these issues in the trial court forfeits the claims
on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353.) Although appellant has
technically forfeited the issues on appeal by not objecting in the trial court, “we ‘shall
reach the merits under the relevant constitutional standards, in the interest of judicial
economy to prevent the inevitable ineffectiveness-of-counsel claim.’ (People v. Norman
(2003) 109 Cal.App.4th 221, 229-230.)” (People v. Russell (2010) 187 Cal.App.4th 981,
993.)
                                              II
        Appellant claims the trial court failed to consider mitigation evidence, as required
under controlling Supreme Court law. In Graham, supra, 560 U.S. 48, the high court
held that “for a juvenile offender who did not commit homicide the Eighth Amendment
forbids the sentence of life without parole.” (Id. at p.74.) The court explained that as
compared to an adult murderer, “a juvenile offender who did not kill or intend to kill has

                                              5
a twice diminished moral culpability”—both because of his crime and because of his
undeveloped moral sense. (Id. at p. 69.) “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.’ [Roper v. Simmons (2005) 543 U.S. 551,] 569-
570. These salient characteristics mean that ‘[i]t is difficult even for expert psychologists
to differentiate between the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.’ Id. at 573. Accordingly, ‘juvenile offenders cannot with reliability be
classified among the worst offenders.’ Id. at 569.” (Graham, supra, at p. 68.)
          In Miller v. Alabama, supra, 567 U.S. ___ [132 S.Ct. 2455], the high court
extended Graham’s reasoning to homicide cases, holding that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders.” (Id. at p. *2469.) “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.) “And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most suggest it.”
(Ibid.)
          In Caballero, our Supreme Court found these precedents applicable to appellant,
noting that 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

                                               6
sentence that amounts to the functional equivalent of a life without parole sentence
imposed in this case.” (Caballero, supra, 55 Cal.4th at pp. 267-268.) As sentenced,
appellant would have to serve a minimum of 110 years before becoming parole eligible,
and thus would not have a “‘realistic opportunity to obtain release’” from prison during
his expected lifetime. (Ibid.) “[S]entencing 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.’ ([Graham, supra,] 560 U.S. at p. 75.)”
(Caballero, supra, 55 Cal.4th at pp. 268-269.)
       In challenging his sentence in this court and in the Supreme Court, the only
mitigating factors appellant has pointed to are his age and mental illness, both of which
were known to the trial court at his March 22, 2013 resentencing hearing. At appellant’s
request, we have taken judicial notice of the briefing before the Supreme Court in
Caballero. The appellate briefing, served on the trial court, described appellant’s mental
health problems and symptoms with specificity. The amicus curiae brief of Pacific
Juvenile Defender Center on appellant’s behalf describes appellant’s family life and
indicates his behavior was related to mental illness, not to an abusive family or life
history.


                                               7
       The trial court indicated its familiarity with the Supreme Court opinion and the
opinion of this court remanding the matter for resentencing. The Supreme Court decision
noted appellant’s age at the time of the crimes, and described him as “a diagnosed
schizophrenic.” (Caballero, supra, 55 Cal.4th at p. 265.) This court’s opinion provided
far more detail about appellant’s mental disability, including the psychologist’s opinion
that he suffered from “Schizophrenia-Paranoid Type,” which caused him to be delusional
and rendered him incapable of cooperating with counsel. The opinion noted appellant
initially had been found mentally incompetent in juvenile court, and the proceedings only
resumed after he had regained competency through the use of antipsychotic medication.
The opinion quoted the portion of the trial when appellant gave inconsistent answers
regarding his desire to testify on his own behalf; the trial court was a party to that
exchange, which reflected on appellant’s understanding of the proceedings. The court
indicated it had discussed the matter of resentencing with counsel and “given them an
idea of where I was coming from here.”
       On this record, it is reasonable to infer the trial court gave the requisite
consideration to the factors set out in Graham and Caballero including appellant’s age,
maturity, and mental ability. Unless the record affirmatively indicates differently, the
trial court is deemed to have considered all relevant sentencing criteria, including
mitigating factors. (People v. King (2010) 183 Cal.App.4th 1281, 1322.) There is no
requirement that the trial court expressly recite the mitigating factors considered, or any
reasons for rejecting these factors. (Ibid.)
       The trial court expressed frustration with the guidance provided by the Supreme
Court and by this court: “I believe that both the Court of Appeal and the California
Supreme Court did not provide sufficient guidance to trial courts with respect to what to
do when re-sentencing a minor convicted of a non-homicide related offense. For
example, I think that if either of those courts had simply stated that the sentence may
remain but the court must set a parole hearing date, let’s say, within 25 years, that would
have been clear, it would have been express and explicit. But that’s not what happened in
either the Court of Appeal or Supreme Court decision.”

                                               8
       Without a direct indication that setting a parole hearing date would overcome the
constitutional problem, the trial court instead reduced appellant’s sentence significantly.
In place of his original sentence of 110 years to life, appellant was resentenced to 40
years to life. This reduced sentence is not the equivalent of life without parole.
Appellant was 16 at the time of his crimes. With a 40-year-to-life sentence, he would be
parole eligible by the age of 56; he presents no authority that this is outside his normal
life expectancy. In People v. Perez (2013) 214 Cal.App.4th 49, 57-58, the defendant
would be 47 at the time he became eligible for parole. Although “[h]ow much life
expectancy must remain at the time of eligibility for parole” to satisfy the Eighth
Amendment had not yet been fleshed out in the case law, the court concluded that at age
47, Perez would have plenty of time left for a meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation, as required by Graham. At age 56,
appellant also can expect to have sufficient normal life expectancy to permit a
meaningful opportunity to obtain release based on his demonstrated maturity and
rehabilitation, as required by Graham and Caballero.
                                             III
       Recent legislation assures appellant a parole hearing even sooner. Section 3051
(Stats. 2013, ch. 312, § 4), provides dates certain for parole hearings for youth offenders.
As pertinent to appellant, a juvenile offender sentenced to a life term of 25 years to life
shall receive a youth offender parole hearing during his or her 25th year of incarceration.
(§ 3051, subd. (b)(3).) The parole hearing “shall provide for a meaningful opportunity to
obtain release.” (§3051, subd. (e).) “In assessing growth and maturity, psychological
evaluations and risk assessment instruments, if used by the board, shall be administered
by licensed psychologists employed by the board 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.” (§3051,
subd. (f)(1).) This statute was enacted to satisfy the concerns expressed by the United
States Supreme Court in Miller and Graham, and by the California Supreme Court in


                                              9
Caballero. (See Stats. 2013, ch. 312, § 4.) Appellant will be entitled to a parole hearing
during his 25th year of incarceration; he will be 41 at that time.
       Appellant’s sentence on remand does not violate the Eighth Amendment
prohibition against cruel and unusual punishment.


                                      DISPOSITION
       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                                 EPSTEIN, P. J.


We concur:




WILLHITE, J.




MANELLA, J.




                                             10
