Filed 4/5/19
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION TWO


In re WILLIAM M. PALMER II,                        A154269
       on Habeas Corpus.
                                                   (Riverside County
                                                   Super. Ct. No. CR29074)


        William Palmer, serving a sentence of life in prison with the possibility of parole,
filed this petition for writ of habeas corpus to challenge his continued incarceration for a
crime committed in 1988 as cruel and unusual punishment under article 1, section 17, of
the California Constitution and the Eighth Amendment to the United States Constitution.
Such challenges based on the length of prison time already served are rare: Most claims
of constitutionally excessive punishment challenge sentences when first imposed, looking
prospectively at the time the offender will serve. Such challenges rarely succeed, as
courts generally defer to determinations of the punishments appropriate to particular
offenses made by legislative representatives of the People. Indeterminately sentenced
inmates, however, serve terms whose length is fixed not by the Legislature but by the
decisions of the Board of Parole Hearings (Board) as to whether and when the prisoner
has become “suitable” for release on parole. As will be seen, the serial denials of parole
Palmer experienced resulted in punishment so disproportionate to his individual
culpability for the offense he committed, that it must be deemed constitutionally
excessive.
                                         BACKGROUND
        Palmer’s incarceration began in 1988, when, at age 17, he pled guilty to
kidnapping for robbery and was sentenced to life with the possibility of parole. He


                                              1
became eligible for parole in 1996 and, over the next 19 years, had 10 parole suitability
hearings at which parole was denied. The present petition was filed against the backdrop
of ongoing litigation challenging the denial of parole at a hearing in 2015: We initially
granted Palmer’s petition for writ of habeas corpus on a ground that was subsequently
rejected by the California Supreme Court in In re Butler (2018) 4 Cal.5th 728 (Butler),
then subsequently granted the petition on the alternative ground we had originally not
addressed. (In re Palmer (Sept. 13, 2018, A147177).) The Supreme Court granted
review on January 16, 2019, and ordered the Reporter of Decisions not to publish our
opinion. (In re Palmer (Jan. 16, 2019, S252145).) The case remains pending in the
Supreme Court.1
       Palmer filed the present writ petition on May 11, 2018, shortly after the Supreme
Court issued its decision in Butler and before it directed us to reconsider our initial
decision on Palmer’s first petition. We issued an order to show cause on August 14,
2018, the Attorney General filed his return on September 24, and Palmer filed his
traverse on October 24.
       On December 6, 2018, the Board held a new parole suitability hearing as directed
in our September 13, 2018 decision. This time, the panel found Palmer suitable for
release on parole. We have been advised that he was recently released on parole.




       1
         Palmer’s 2015 writ petition alleged that the Board of Parole Hearings (Board)
failed to comply with our decision in In re Butler (May 15, 2015, A139411) regarding the
setting of his base term of imprisonment, and also failed to comply with a statutory
mandate to give “great weight” to certain factors related to his having been a minor when
he committed his crime. Our initial opinion granted the petition on the first of these
grounds. The California Supreme Court granted the Attorney General’s petition for
review and subsequently transferred the case back to us with directions to vacate our
opinion and reconsider the matter in light of Butler, supra, 4 Cal.5th 728, which reversed
our In re Butler, supra, A139411 decision. We then turned to Palmer’s alternative
ground and agreed that the Board had failed to give “great weight” to youth offender
factors as statutorily required.


                                              2
                                         DISCUSSION2
                                                 I.
         Preliminarily, Palmer’s release on parole does not render his petition moot because
parolees remain in constructive state custody and are subject to constraints on their
liberty. (In re Wells (1975) 46 Cal.App.3d 592, 596; In re Sturm (1974) 11 Cal.3d 258,
265.) As noted in Berman v. Cate (2010) 187 Cal.App.4th 885, 892, a parolee “is not
free from legal restraint by the authorities” and “habeas corpus is the appropriate method
for challenging the legality of the restraint.” (Id. at p. 892; Pen. Code, § 1473, subd.
(a).)3
         Nor is Palmer’s petition untimely, as respondent maintains. In re Clark (1993) 5
Cal.4th 750 (Clark), which set forth the procedural bars respondent relies upon,
“explained that procedural rules barring delayed and successive writs ‘are necessary both
to deter use of the writ to unjustifiably delay implementation of the law, and to avoid the
need to set aside final judgments of conviction when retrial would be difficult or
impossible.’ (Clark, . . . at p. 764.) Such rules ‘are simply manifestations of this court’s
resolve to balance the state’s weighty interest in the finality of judgments in criminal
cases with the individual’s right—also significant—to a fair trial under both the state and
federal Constitutions.’ (In re Harris (1993) 5 Cal.4th 813, 830.)” (Gomez v. Superior
Court (2012) 54 Cal.4th 293, 308–309.) But “[c]ourts have not strictly applied Clark’s
formulation of the rules regarding timeliness and their limited exceptions to cases in
which the habeas corpus petition does not attempt to collaterally attack the petitioner’s
conviction or sentence. (See In re Espinoza (2011) 192 Cal.App.4th 97 [petition
challenging prison policies regarding visitation]; In re Burdan (2008) 169 Cal.App.4th 18
[petition challenging parole decision].)” (Gomez, at p. 309.)



         2
         We have had several occasions to recite the facts related to Palmer’s offense,
prior background, and subsequent conduct in prison. We will discuss those facts as
appropriate to discussion of his legal arguments.
         3
             Further statutory references will be to the Penal Code unless otherwise indicated.


                                                 3
       The concerns underlying the timeliness requirement certainly are not at issue in a
habeas petition raising a claim of constitutionally excessive punishment based on the
length of time the inmate has already spent in prison. As the In re Burdan court noted in
the context of a challenge to a decision denying parole, “[f]inality of the conviction . . . is
not an issue,” and “[t]he only one potentially prejudiced by a delay . . . is the inmate
himself,” for whom delay means remaining in prison for a longer time. (In re Burdan,
supra, 169 Cal.App.4th at p. 31; see, People v. Miller (1992) 6 Cal.App.4th 873, 877
[claim of excessive punishment reviewable on habeas despite delay “because a
defendant’s delay in raising the issue of excessive sentencing ‘works primarily to his own
disadvantage’ ”].) We agree with Palmer’s assertion that it would be absurd and unjust to
bar “an inmate’s challenge to his continued incarceration as unconstitutionally excessive
cruel and unusual punishment” on the basis that it was brought “too late into his
confinement.”4


       4
          Respondent’s assertion of untimeliness is particularly inapt in the present case.
Respondent suggests that Palmer should have raised his excessive punishment challenge,
at the latest, when he challenged his 2015 parole denial. At that time, respondent argues,
Palmer had served 27 years in prison and knew the five-year denial would result in him
serving more than 30 years. Respondent thus appears to take the position that Palmer
was required to decide in advance the point at which he would claim his prison term had
become constitutionally disproportionate, and present this claim as soon as he realized he
would in fact serve that length of time. This position ignores the difficulty faced by a
prisoner serving an indeterminate life term. Historically, it was the absence of any
yardstick by which to gauge the proportionality of a given inmate’s sentence (within the
permissible statutory range under the former indeterminate sentencing law) that led the
California Supreme Court to require the Board to set a maximum term, based solely on
the circumstances of the crime and not postconviction factors, to facilitate prisoners’
ability to seek, and courts’ ability to provide, meaningful review. (In re Rodriguez,
(1975) 14 Cal.3d 639, 654, fn. 18 (Rodriguez); see People v. Wingo (1975) 14 Cal.3d
169, 182-183 (Wingo).) Although the view of this court was subsequently rejected by the
California Supreme Court in In re Butler (2018) 4 Cal.5th 728, at the time of Palmer’s
2015 parole hearing, we had explained that requiring the Board to set base terms of
confinement based on individual culpability for a given offense played a similar role in
defining the parameters of a constitutionally proportionate sentence, and Palmer’s
challenge to the parole denial in 2015 was based on the Board’s failure to set his base
term of confinement, as was then required by the Board’s settlement in In re Butler,

                                               4
       Similarly, it is not reasonable to view the present petition as a successive,
“piecemeal” presentation of a claim that was or should have been presented sooner.
(Clark, supra, 5 Cal.4th at p. 774.) Palmer has never before argued that his term of
confinement had become constitutionally excessive, and to say he is barred from doing so
now because he could have done so before would be both illogical and unfair.
                                                  II.
       When a defendant challenges the imposition of a sentence as constitutionally
excessive punishment, “[t]he judicial inquiry commences with great deference to the
Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in
the best position to evaluate the gravity of different crimes and to make judgments among
different penological approaches. (Harmelin v. Michigan [(1991)] 501 U.S. [957,] 998
(conc. opn. of Kennedy, J.); People v. Dillon [(1983)] 34 Cal.3d [441,] 477.) Only in the
rarest of cases could a court declare that the length of a sentence mandated by the
Legislature is unconstitutionally excessive. (People v. Weddle [(1991)] 1 Cal.App.4th
[1190,] 1196–1197; People v. Mora (1995) 39 Cal.App.4th 607, 615–616.)” (People v.
Martinez (1999) 76 Cal.App.4th 489, 494.)
       Palmer presents a different question, as he challenges not the indeterminate life
term to which he was sentenced but the actual term of years he was required to serve.
The punishment for Palmer’s offense, kidnapping for robbery, is not a legislatively
specified number of years; it is simply “imprisonment in the state prison for life with the
possibility of parole.”5 (§ 209.) The number of years an inmate actually serves under
such a sentence is determined not by the Legislature but by the Board’s decision whether
to grant or deny release on parole. For indeterminately sentenced life prisoners, the
Legislative direction is only that the Board “shall normally grant parole” unless

supra, A139411. In other words, in the habeas petition respondent claims should have
presented an excessive punishment challenge, Palmer was attempting to correct the
Board’s failure to provide him with the measure this court had said would facilitate just
such a challenge.
       5
         The punishment is life in prison without possibility of parole where the victim
suffers bodily injury.


                                              5
“consideration of the public safety requires a more lengthy period of incarceration for this
individual.” (§ 3041, subds. (a)(2) & (b)(1).) The Board decides whether to grant release
on parole based on its determination of the prisoner’s “suitability” for release (§§ 3041,
3041.5), a determination that focuses on the inmate’s current dangerousness, and is
largely governed by postconviction conduct and personal development. (In re Stoneroad
(2013) 215 Cal.App.4th 596, 617.) The Board does not consider whether denial of an
application for parole may result in constitutionally excessive punishment.
       Our Supreme Court has recognized, however, that “even if sentenced to a life-
maximum term, no prisoner can be held for a period grossly disproportionate to his or her
individual culpability for the commitment offense. Such excessive confinement . . .
violates the cruel or unusual punishment clause (art. I, § 17) of the California
Constitution.” (In re Dannenberg (2005) 34 Cal.4th 1061, 1096 (Dannenberg).) “The
proportionality of a sentence turns entirely on the culpability of the offender as measured
by “circumstances existing at the time of the offense.” (Rodriguez, supra, 14 Cal.3d at
p. 652, italics added.) Where an inmate’s sentence is disproportionate to his or her
individual culpability for the offense, the Supreme Court has acknowledged, “section
3041, subdivision (b) cannot authorize such an inmate’s retention, even for reasons of
public safety, beyond the constitutional maximum period of confinement.” (Dannenberg,
at p. 1096, citing Rodriguez, at pp. 646-656, italics added & Wingo, supra, 14 Cal.3d at
pp. 175-183; accord, Butler, supra, 4 Cal.5th at p. 744.) “[I]nmates may bring their
claims directly to court through petitions for habeas corpus if they ‘believe, because of
the particular circumstances of their crimes, that their confinements have become
constitutionally excessive as a result.’ ” (Butler, at p. 745, quoting Dannenberg at
p. 1098.) In this sort of challenge, deference to the legislatively prescribed penalty is no
longer a relevant factor, as the actual term of years served is a function of the Board’s




                                              6
parole decisions, not the Legislature’s determination of the appropriate penalty in this
particular case.6



       6
         Prior to the enactment of the determinate sentencing law (DSL) in 1976, when
almost all prisoners served indeterminate sentences, our Supreme Court expressed
concern over the difficulty of assessing the constitutional proportionality of an
indeterminate sentence when, as here, the offense encompassed a wide range of conduct.
(Rodriguez, supra, 14 Cal.3d at p. 654, fn. 18; Wingo, supra, 14 Cal.3d at pp. 182–183.)
In order to facilitate that assessment, the court required the Board to set a maximum term
based solely on the circumstances of the crime. (Rodriguez, at p. 654, fn. 18.) The court
has since held that under the DSL, constitutional considerations no longer imposed on the
Board this “general obligation to fix actual maximum terms, tailored to individual
culpability, for indeterminate life inmates,” because once California “largely abandoned”
indeterminate sentencing, only a “narrower category” of serious offenders receive
indeterminate life terms. (Butler, supra, 4 Cal.5th at pp. 733, 745; Dannenberg, supra,
34 Cal.4th at pp. 1078, 1097.)
        The absence of a maximum term by which to measure the proportionality of
punishment visited on an indeterminately sentenced life prisoner is not an issue in the
present case because Palmer’s challenge is to his sentence as defined by the number of
years he has already served. But it is worth noting that the character of the present
California prison population raises some question whether indeterminate sentencing has
been “largely abandoned.” In December 2017, when reliable estimates were most
recently made, our total prison population consisted of 130,263 inmates. Of that figure,
34,388 inmates (27,431 lifers and 6,957 third-strikers) were indeterminately sentenced
life prisoners. (Cal. Dept. of Corrections and Rehabilitation, Offender Data Points
(2017), Div. of Internal Oversight & Research, Offender Data Points (2017) Populations,
p. 6.) In other words, over one-quarter (26.4%) of the total prison population are lifers,
whose punishment is determined by the Board. The number of indeterminately sentenced
prisoners now confined in California prisons is therefore now twice the size of the entire
population of indeterminately sentenced prisoners in 1975, when Wingo and Rodriguez
were decided, which was 17,296 inmates. (Bureau of Justice Statistics, U.S. Dept. of
Justice, Historical Statistics on Prisoners in State and Federal Institutions, Yearend 1925-
86 (May 1988) p. 12.) The statements in Dannenberg and Butler that the present
sentencing regime “reflects the Legislature’s design to reduce the number of offenders
receiving indeterminate [life] sentences” with the possibility of parole and “thereby
limit[] the possibility that these serious offenders will suffer constitutionally excessive
punishment” (Butler, supra, 4 Cal.5th at p. 745; Dannenberg, supra, 34 Cal.4th at
p. 1097), is hard to square with the large percentage of our prison population made up of
indeterminately sentenced life prisoners. In 2016, that percentage, then 31.3 percent, was
the highest in the nation and more than twice or thrice those of most other states. (Nellis

                                             7
       A sentence must be invalidated as unconstitutional under the California
Constitution if it is “ ‘ “grossly disproportionate to the defendant’s individual
culpability” ’ ” (People v. Leonard (2007) 40 Cal.4th 1370, 1427 (Leonard), quoting
People v. Dillon, supra, 34 Cal.3d at p. 479 (Dillon)) or “ ‘ “ ‘shocks the conscience and
offends fundamental notions of human dignity.’ ” ’ ” (Leonard, quoting People v. Hines
(1997) 15 Cal.4th 997, 1078.) Pursuant to the three techniques described in In re Lynch
(1972) 8 Cal.3d 410 (Lynch), “[a] petitioner attacking his sentence as cruel or unusual
must demonstrate his punishment is disproportionate in light of (1) the nature of the
offense and defendant’s background, (2) the punishment for more serious offenses, or (3)
punishment for similar offenses in other jurisdictions.” (In re Nunez (2009) 173
Cal.App.4th 709, 725.)
       Under the first of the Lynch techniques, we examine the “ ‘nature of the offense
and/or the offender, with particular regard to the degree of danger both present to
society.’ ” (Dillon, supra, 34 Cal.3d at p. 479, quoting Lynch, supra, 8 Cal3d at p. 479.)
We must consider “not only the offense in the abstract . . . but also ‘the facts of the crime
in question’ ” (Dillon, at p. 479, quoting In re Foss (1974) 10 Cal.3d 910, 919),
“ ‘including its motive, the extent of the defendant’s involvement in the crime, the
manner in which the crime was committed, and the consequences of the defendant’s
acts.’ ” (Leonard, supra, 40 Cal.4th at p. 1426, quoting People v. Hines, supra, 15
Cal.4th at p. 1078.)
       As we have previously described, Palmer committed his life offense in 1988. His
face covered with a ski mask, Palmer lay in wait in a parking garage in an apartment
complex with which he was familiar (having previously committed burglaries there). He
had taken a bus to this location because he ‘knew rich people lived there.’ Brandishing
an unloaded .357-caliber revolver he had stolen in a previous burglary, Palmer confronted
Randy Compton, and ordered him to turn over his wallet. Compton said he did not have


et al., The Sentencing Project, Still Life: America’s Increasing Use of Life and Long-
Term Sentences (2017) at p. 10.)


                                              8
one, and Palmer ‘spur of the moment’ decided to ask if he had a bank card; Compton said
he did, and Palmer ordered him to drive to an ATM and withdraw $200. When they
arrived at the bank, Compton, an off-duty police officer, drew his gun and fired 15 rounds
at Palmer, who was hit in the knee and fled. Palmer was captured shortly thereafter,
waived his Miranda rights, and confessed to the crime in an account fully corroborated
by Compton.
       Respondent argues that a potential life sentence is not grossly disproportionate to
the crime of kidnap for robbery, pointing out that “kidnapping is one of the most serious
of all crimes.” (In re Maston (1973) 33 Cal.App.3d 559, 563 (Maston).) It has been
observed that “[b]y its very nature [kidnapping] involves violence or forcible restraint”
(ibid.) and that transporting the victim poses “dangers, not inherent in robbery, that an
auto accident might occur or that the victim might attempt to escape from the moving car
or be pushed therefrom.” (In re Earley (1975) 14 Cal.3d 122, 132.)
       But the question here is not whether a life sentence for the offense of kidnapping
for robbery is proportionate in the abstract. “[A] punishment which is not
disproportionate in the abstract is nevertheless constitutionally impermissible if it is
disproportionate to the defendant’s individual culpability.” (Dillon, supra, 34 Cal.3d at
p. 480.) In Rodriguez, the California Supreme Court found that a potential life sentence
for a conviction of committing a lewd and lascivious act upon a child was not
constitutionally excessive because of the wide range of conduct within the ambit of the
statute. (Rodriguez, supra, 14 Cal.3d at pp. 647–648.) The court recognized, however,
that “the offense described in section 288 encompasses conduct for which life might be a
permissible punishment in some cases but excessive in others” and found that the 22
years served by the defendant in that case was constitutionally excessive. (Id. at pp. 647,
653.) Rodriguez explained: “The offense committed here is by no means ‘trivial,’ but
the method of its commission involved no violence and caused no physical harm to the
victim. The episode lasted only a few minutes. No weapon was involved and petitioner
attempted none of the dangerous offenses sometimes associated with violations of section
288.” (Id. at pp. 654–655.)


                                              9
       Similar points apply to the present case. The offense was undoubtedly serious and
traumatic for Compton. But it was of relatively short duration,7 the distance travelled
was short, Palmer intentionally used an unloaded gun to avoid the risk of hurting
anyone,8 and the only person in fact injured was Palmer, who was shot by Compton—by
chance, an armed off-duty police officer. With respect to the danger posed by Palmer’s
conduct, the manner in which this particular kidnapping for robbery was committed was
considerably less egregious than it might have been.
       Under the first Lynch technique, “ ‘[t]he court must also consider the personal
characteristics of the defendant, including age, prior criminality, and mental
capabilities.’ ” (Leonard, supra, 40 Cal.4th at p. 1426, quoting People v. Hines, supra,
15 Cal.4th at p. 1078.) Palmer was 17 years old when he committed his offense. Age has
long been one of the variables recognized as bearing on whether punishment is
proportional to an offender’s individual culpability. (Dillon, supra, 34 Cal.3d at p. 479.)
Its significance has become all the more apparent in light of current judicial and
legislative recognition that “the distinctive attributes of youth diminish the penological
justifications for imposing the harshest sentences on juvenile offenders, even when they
commit terrible crimes.” (Miller v. Alabama (2012) 567 U.S. 460, 472 (Miller); Graham
v. Florida (2010) 560 U.S. 48; Roper v. Simmon (2005) 543 U.S. 551; §§ 3051, subd.
(f)(1), 4801, subd. (c).) As the United States Supreme Court has explained, this
recognition is based “not only on common sense—on what ‘any parent knows’—but on
science and social science as well.” (Miller, at p. 471.) Miller noted scientific findings

       7
       The episode lasted less than 20 minutes: The victim told the police he left his
apartment for the garage at 9:05 p.m. and the police responded to the reported robbery at
approximately 9:22 p.m.
       8
         In People v. Mendez (2010) 188 Cal.App.4th 47, 50, 65 (Mendez), in finding a
sentence of 84 years to life excessive for a juvenile tried as an adult and convicted of
carjacking, assault with a firearm and multiple counts of second degree robbery with
gang and firearm enhancements, the court noted that while Mendez increased the risk of
injury or death by brandishing a loaded gun at several victims, he did not inflict physical
injury or fire the weapon. Appellant’s culpability is surely further reduced by his
decision to use an unloaded gun.


                                             10
the court had previously cited—of youths’ “transient rashness, proclivity for risk, and
inability to assess consequences”—and observed that evidence before the court indicated
the “science and social science” supporting its conclusions about “ ‘differences between
juvenile and adult minds’ ” had since “become even stronger.” (Id. at pp. 471–472,
fn. 5.)
          The characteristics of youth that have been accorded constitutional significance
with respect to culpability for crime last beyond legal majority into early adulthood. In
accordance with Miller and related cases, the California Legislature enacted statutes that
require the Board, at parole suitability hearings for “youth offenders,” to “give great
weight” to the diminished culpability of youth as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the prisoner in
accordance with relevant case law (§§ 4801, subd. (c), 3051, subd. (d), (e)). These
statutes apply to offenders who were 25 years of age or younger at the time of the
controlling offense. (§ 3051, subd. (a)(1), 4801, subd. (c).) Significantly, since first
enacted, the youth offender statutes have increased the age of the offenders to whom they
apply from 18 years, to 23 years, to the current 25 years. (Stats. 2015, ch. 471, § 1; Stats.
2017, ch. 674, §§ 1, 2.) The legislative history reflects awareness of scientific evidence
that brain development continues beyond age 18—specifically, that “the prefrontal cortex
doesn’t have nearly the functional capacity at age 18 as it does at age 25.” (Assem. Com.
on Pub. Safety, analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended
Mar. 30, 2017.)9 Thus, regardless of the specific crime at issue, juvenile offenders are


          9
         The committee report states: “According to the author, ‘AB 1308 would align
public policy with scientific research. This measure would expand eligibility of the youth
parole hearing process to certain individuals who were 25 or under when they committed
a crime for which they received a lengthy or life sentence for a youth offender parole
hearing. Scientific evidence on adolescence and young adult development and
neuroscience shows that certain areas of the brain, particularly those affecting judgement
and decisionmaking, do not develop until the early-to-mid-20s. Research has shown that
the prefrontal cortex doesn’t have nearly the functional capacity at age 18 as it does at 25.
The prefrontal cortex is responsible for a variety of important functions of the brain
including: attention, complex planning, decisionmaking, impulse control, logical

                                               11
categorically less culpable than adult offenders (Miller, supra, 567 U.S. at pp. 471–472;
People v. Gutierrez (2014) 58 Cal.4th 1354, 1371–1372), and “the chronological age of a
minor is itself a relevant mitigating factor of great weight.” (Eddings v. Oklahoma
(1982) 455 U.S. 104, 116.) Palmer was only 17 years old when he committed the crime
for which he was imprisoned, well within this category of juvenile offenders.
       Moreover, “youth is more than a chronological fact. It is a time and condition of
life when a person may be most susceptible to influence and to psychological damage.”
(Eddings v. Oklahoma, supra, 455 U.S. at p. 115.) Mitigating evidence of factors such as
“a difficult family history” or “emotional disturbance” is therefore “particularly relevant”
in the case of a juvenile offender. (Ibid.) In Dillon, supra, 34 Cal.3d 441, for example,
the court emphasized the immaturity of the 17-year-old defendant in finding it
constitutionally disproportionate to punish him for first degree murder and therefore
reducing his sentence to that for second degree murder. (Id. at pp. 450, 488.) The
defendant had set out with a group of friends, several armed with shotguns and defendant
armed with a semiautomatic rifle, to rob a marijuana farm the defendant knew to be
guarded by a man who had previously threatened to shoot him. (Id. at p. 451.) After one
of the group accidentally fired a weapon, upon seeing the man approach with a shotgun,
the defendant rapidly fired at him. (Id. at p. 452.) Finding a first degree murder sentence
“excessive in relation to [the] defendant’s true culpability,” the Dillon court explained:
“[A]t the time of the events herein defendant was an unusually immature youth. He had
had no prior trouble with the law, and . . . was not the prototype of a hardened criminal
who poses a grave threat to society. The shooting in this case was a response to a
suddenly developing situation that defendant perceived as putting his life in immediate
danger. To be sure, he largely brought the situation on himself, and with hindsight his
response might appear unreasonable; but there is ample evidence that because of his


thinking, organized thinking, personality development, risk management, and short-term
memory. These functions are highly relevant to criminal behavior and culpability.’ ”
(Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.)
as amended Mar. 30, 2017.)


                                             12
immaturity he neither foresaw the risk he was creating nor was able to extricate himself
without panicking when that risk seemed to eventuate.” (Id. at p. 488.)
       As we have previously described, Palmer was raised primarily by his mother.
After the family moved from a low-income area to one with “predominantly wealthier
kids,” Palmer’s self-esteem suffered and he committed crimes and used drugs in order to
be accepted by his peers, “have the things that they had” and “do the things they were
doing.” He admitted his first offense, driving without a license, in July 1985. In
February 1986, at age 15, he admitted a felony violation of section 288a, but later insisted
he was not guilty of this offense; psychological reports indicate that Palmer
acknowledged having observed masturbation by younger boys whom his mother was
supervising in foster care, but he insisted he did not touch them as they alleged. He was
placed on probation, which he then violated with two charges of robbery, burglary, and
attempted burglary. Palmer committed the life offense after being fired from a job in
Palm Springs that he had valued, explaining afterward that he needed money quickly, had
no other way to get it because he could not find a friend to drive him to Palm Springs to
pick up a paycheck, and considered selling drugs but thought it would be “easier to just
take the money from someone else.” At a parole hearing years later, Palmer called this a
“poor decision.”
       A psychological report from 1988 stated that Palmer’s “unstable family situation”
and “chronic substance abuse” appeared to be factors contributing to his delinquency.
Testing indicated he was “easily aroused by emotionally loaded situations” and “likely to
respond in an impulsive and at times aggressive manner,” had “poor behavior controls”
and had “not identified with an adult male figure.” According to one report, testing
showed him to be a “self-serving, egocentric, assertive, forceful personality with
sociopathic tendencies who lacks a strong internalized value system and sensitivity to
other persons and who views the acquisition of money as the panacea for all of his
problems,” and “a self-conscious personality with narcissistic traits and strong affiliative
and social needs for approval and dominance to compensate for underlying feelings of
weak self-esteem and insecurity.” Appellant stated at his 2013 parole hearing that while


                                             13
he had been a “leader” in his old environment, after the move he “started at the bottom”
and “did whatever it took to fit in,” committing thefts and burglaries rather than working
to get the things he wanted because his “low self-esteem” and “wanting to be accepted by
others” overcame the values he had been raised with.
       The impulsiveness, low esteem and need for social acceptance reflected in
appellant’s self-evaluation and others’ evaluations of him is consistent with the United
States Supreme Court’s observations about juveniles’ culpability compared to that of
adults. “Inexperience, less education, and less intelligence make the teenager less able to
evaluate the consequences of his or her conduct while at the same time he or she is much
more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons
why juveniles are not trusted with the privileges and responsibilities of an adult also
explain why their irresponsible conduct is not as morally reprehensible as that of an
adult.” (Thompson v. Oklahoma (1988) 487 U.S. 815, 835.)
       The circumstances of Palmer’s life offense “exemplify the ‘ “hallmark features” ’
of youth—‘ “immaturity, impetuosity, and failure to appreciate risks and consequences” ’
(Franklin, supra, 63 Cal.4th at p. 283, quoting Miller, supra, 567 U.S. at p. 477)—that
diminish youth offenders’ culpability. As a 17-year-old high school dropout, Palmer
made an impulsive ‘spur of the moment’ decision to turn an attempted robbery with an
unloaded gun into a kidnapping for robbery, during the course of which Palmer was shot
by the victim. Years later at his 2013 parole hearing, Palmer reflected that asking the
victim if he had a bank card “didn’t make any sense. Because if you don’t have a wallet,
you don’t have any credit cards in your [pocket], why would you have a bank card just
sitting in your pocket? But later you have the time to figure that part out. But he said
yes. And he had it in his car. So I said, Okay. Well, let’s just all go to the—let’s both go
to the bank, and you can get it out and give me the money.”
       That Palmer, at the time, had no idea of the consequences of his conduct is
demonstrated by his question to the police officer who waited with him at the emergency
room: “ ‘What will I get for doing this, six months or a year in custody?’ ” As appellant
points out, had he not made the on the spot decision to make Compton drive to the ATM,


                                             14
he would have faced at most a sentence of seven years (five years for second degree
robbery or three years for attempted robbery, plus a two-year firearm enhancement).10
As with the defendant in Dillon, the characteristic immaturity and impulsiveness of youth
is evident here. Palmer’s crime was by no means trivial, but more than 30 years in prison
is a consequence far out of proportion to the danger he posed or actual harm he inflicted
as a 17 year old.
       Respondent’s assessment of the nature of the offender aspect of the Lynch analysis
is devoid of any recognition of the significance of Palmer’s youth at the time of the
offense, or of any of the circumstances of his background other than his criminal conduct.
Respondent argues that “[d]espite being 17, Palmer admittedly had a criminal, adult mind
set,” citing examples such as Palmer saying he committed the commitment offense
because he needed money and getting it honestly had not worked out, telling his mother
after his arrest that he had tried it one too many times, and telling a counselor, “I will
make the change from a criminal to a law abiding citizen.” Respondent fails to explain
how such statements by a 17 year old demonstrate “adult” thinking rather than juvenile
failure to appreciate and weigh consequences and exercise judgment in the face of
perceived inequities and misguided desire to achieve social status. Similarly, respondent
points to Palmer’s admission of having committed a number of burglaries for which he
was not caught as evidence of his culpability, but does not address the fact that these
offenses were committed before Palmer was even 17 years of age, for the same
misguided reasons as the commitment offense. To be sure, Palmer acted to achieve the

       10
          Palmer’s 1988 guilty plea itself could have been influenced by the same
“hallmark features” of youth that reduced his culpability for the offense. (Miller, supra,
567 U.S. at p. 477.) As the United States Supreme Court has noted, “the features that
distinguish juveniles from adults also put them at a significant disadvantage in criminal
proceedings” (Graham v. Florida, supra, 560 U.S. at p. 78); Miller noted the possibility
that a juvenile “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.” (Miller, at p. 477.) Palmer entered a plea of guilty to the most serious
offense with which he could have been charged.


                                              15
goal of obtaining money, as respondent says, despite the consequences his action would
have for Compton, but respondent ignores the possibility—supported by the science
discussed above—that his conduct and mindset could reflect impulsivity and
underdeveloped judgment and sense of responsibility rather than a necessarily entrenched
criminal mindset. The evaluations conducted in 1988 to which respondent points, which
discuss Palmer’s antisocial tendencies outweighing his motivation to improve, suffer the
same flaw; these evaluations, of course, predate the relatively recent increased scientific
and judicial recognition of the degree to which juvenile and adult brain function differs.11



       11
          Although not directly relevant in the present case, as Palmer has now been
released on parole, we have previously commented upon a similar lack of serious
consideration of the diminished culpability of youth offenders by the Board. (In re Perez
(2016) 7 Cal.App.5th 65, 93 [“lip service” to consideration of statutory factors].) The
Board’s published statistics raise some question as to how the Board applies the
constitutional, statutory and scientific recognition of this diminished culpability to its
parole suitability determinations, as youth offenders do not appear to have been granted
parole more frequently than adult offenders. According to the Board’s “2017 Report of
Significant Events,” of 2,586 youth offender hearings scheduled by the Board in 2017,
458 resulted in parole being granted—17.7 percent. (Board of Parole Hearings, 2017
Report of Significant Events (May 14, 2018) p. 1.) This rate is not much different than
the rate for adults during the same period: Parole was granted in 457 of the 2,748 adult
offender cases scheduled for hearing—16.6 percent. Looked at conversely, 1,033 youth
offenders were denied parole (about 40 percent), while 1,184 adult offenders were denied
(43 percent).
       Along similar lines, it has been noted that some of the factors viewed by the Board
as tending to favor denial of parole, such as “a history of being abused and living in a
criminogenic environment as a child,” while “the law flowing from Miller is clear that a
history of abuse, a criminogenic environment, and negative peer influence are mitigating
factors in considering culpability and the appropriate sentence for a juvenile.” (Bell, A
Stone of Hope: Legal and Empirical Analysis of Juvenile Lifer Parole Decisions (2018),
forthcoming in Harvard Civil Rights-Civil Liberties L.Rev., vol. 54; Corrections &
Sentencing L. & Policy eJournal, p. 75 (Corrections & Sentencing) <https://
papers.ssrn.com/sol3/papers.cfm? Abstract _id=3228681> [as of Apr. 5, 2019].) An
empirical study of 426 parole decisions among juvenile lifers in California found that “[a]
history of abuse, trauma, or other instability in childhood was cited as a reason supporting
the denial of parole in fifty-nine percent of the Board’s decisions to deny parole.”
(Corrections & Sentencing, at p. 76.)

                                             16
        It is telling that Palmer did not remain in prison for 30-plus years because of any
assessment that his culpability for the crime he committed warranted such lengthy
incarceration.12 Palmer became eligible for parole over 20 years ago. As we have
described in our prior opinions, he was subsequently denied parole not because of the
seriousness of his offense or criminal history, or even because of violent conduct in
prison13 (which would not, in any case, bear on the proportionality of his punishment),
but because of minor disciplinary issues seen as bearing on his judgment and impulse
control.14
        We are convinced that in light of Palmer’s age at the time of the offense and
attendant diminishment of his culpability, and the facts that he attempted to minimize the
danger he posed by using an unloaded weapon and did not physically injure his victim,
that his continued incarceration has become so disproportionate to his individual
culpability as to be “constitutionally excessive.” (Butler, supra, 4 Cal.5th at p. 745.)
        As any one of the three Lynch factors may be sufficient to demonstrate the
disproportionality of a sentence (Mendez, supra, 188 Cal.App.4th at pp. 64–65; In re
Nunez, supra, 173 Cal.App.4th at p. 725), our analysis need not go further. The second
Lynch technique, however, strikingly demonstrates the disproportionality of the
punishment Palmer has suffered.


        12
          The Board set Palmer’s adjusted base term of confinement—determined
pursuant to a biaxial matrix presenting factors related solely to the manner in which his
crime was committed and harm done to the victim (Cal. Code Regs., tit. 15, § 2282,
subd. (c))—at 12 years. Although the California Supreme Court has determined that base
term calculations are not constitutionally required (Butler, supra, 4 Cal.5th 728), this
calculation is nevertheless a useful indication of the Board’s view of the seriousness of
Palmer’s crime as compared to other kidnappings for robbery.
        13
             The record reflects only one physical altercation in prison, which occurred in
1990.
        14
           The most recent of these was in 2014, when, in the visiting room, Palmer gave
his girlfriend the shirt he wears when he paints; the other violation discussed at the parole
hearing in 2015 occurred in 2012, when Palmer was cited for possession of a cell phone
that he said he used to speak with his family after his mother died.


                                               17
       This technique compares the challenged punishment with punishment prescribed
by California law for more serious offenses. Palmer offers various examples of crimes
more serious in terms of dangerousness, resulting harm and/or moral reprehensibility for
which the maximum prison term is less than half the 30 years he has already served.
These include: 11 years for voluntary manslaughter (unlawfully killing a person without
malice, upon a sudden quarrel or heat of passion) (§ 193, subd. (a)); eight years for
mayhem (unlawfully and maliciously maiming, disabling or disfiguring a person)
(§§ 203, 204); 12 years for assault with a machine gun (§ 245, subd. (a)(3)); six years for
assault with intent to commit mayhem, rape, sodomy or oral copulation (§ 220, subd.
(a)(1)); four years for assault with caustic chemicals or flammable substances (§ 244);
seven years for shooting at an inhabited building or vehicle (§ 246); five years for
poisoning or adulterating food, drink, medicine, pharmaceutical product, or water supply
(or eight years if involving use of substance that may cause death if ingested or that
causes great bodily injury) (§ 347, subd. (a)); 13 years for rape of a child under 14 years
of age (§ 264, subd. (c)(1)); or 14 years if acting in concert with another person (§ 264.1,
subd. (b)(1)); 11 years for rape of a minor over 14 years of age (§ 264, subd. (c)(2)).
       Respondent takes the view that comparing sentences for “unlike” crimes is not
helpful because “ ‘[t]he selection of a proper penalty for a criminal offense is a legislative
function involving an appraisal of the evils to be corrected, the weighing of practical
alternatives and responsiveness to the public will.’ (In re Lynch, supra, 8 Cal.3d at
p. 423.)” Minor discrepancies from the actual wording of this passage aside,15 the Lynch
court was simply acknowledging that because “it is the function of the legislative branch
to define crimes and prescribe punishments” (id. at p. 414), the judiciary “should not
interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the


       15
          The precise language Lynch used was this: “The choice of fitting and proper
penalties is not an exact science, but a legislative skill involving an appraisal of the evils
to be corrected, the weighing of practical alternatives, consideration of relevant policy
factors, and responsiveness to the public will; in appropriate cases, some leeway for
experimentation may also be permissible.” (Lynch, supra, 8 Cal.3d at p. 423.)


                                              18
offense’ [citation], i.e., so severe in relation to the crime as to violate the prohibition
against cruel and unusual punishment.” (Id. at p. 424.)
       Respondent urges that a comparison with the sentence for kidnap for robbery with
injury compels the conclusion that Palmer’s sentence was not excessive. Whereas
Palmer was sentenced to life imprisonment with the possibility of parole, the statute
under which he was convicted and sentenced calls for a sentence of life without
possibility of parole where the victim “suffers death or bodily harm, or is intentionally
confined in a manner which exposes that person to a substantial likelihood of death.”
(§ 209, subd. (a).)
       Respondent relies upon Maston, supra, 33 Cal.App.3d 559, which rejected a
defendant’s argument that his mandatory sentence of life without possibility of parole for
kidnap for robbery with injury was grossly disproportionate because it was greater than
the sentences prescribed for premeditated murder, robbery where the perpetrator kills but
does not kidnap the victim, or rape where the perpetrator kidnaps and injures but does not
rob the victim. According to respondent, because a victim sustaining lacerations
requiring stitches has been held sufficient to constitute the bodily injury supporting a
conviction for kidnap with robbery with injury (People v. Dacy (1970) 5 Cal.App.3d 216,
220), and a sentence of life without possibility of parole has been upheld as constitutional
punishment for this offense (Maston, at p. 566), Palmer’s sentence must also be
constitutional because “the only difference is the victim miraculously surviving
physically unscathed.”16

       16
         We are perplexed by Palmer’s assertion that life without possibility of parole is
no longer the penalty for kidnapping for robbery with bodily harm. Palmer cites People
v. McKinney (1979) 95 Cal.App.3d 712, 745, in which the court stated the following:
“On October 12, 1975, and continuing until July 1, 1977, the statutory penalty for
kidnapping to commit robbery with bodily harm was either death or life imprisonment
without the possibility of parole. Effective July 1, 1977, Penal Code section 209 was
amended to provide a penalty of life imprisonment with the possibility of parole, whether
bodily harm was inflicted or not. (Stats. 1976, ch. 1139, § 136.5.)”
       Contrary to the above, according to information available on the website of the
California State Assembly Office of the Chief Clerk, the 1976 amendment to section 209

                                               19
       Maston reviewed the constitutionality of the penalty for kidnap for robbery with
injury in the abstract; the court noted that the defendants “d[id] not claim
disproportionate punishment in relationship to their individual offense,” and that such a
claim was “unavailable” to them on the facts—“[b]eyond abducting their victim, raping
and robbing her they forcibly transported her for many miles and severely beat her.”
(Maston, supra, 33 Cal.App.3d at p. 565.) Maston acknowledged that the aggravated
kidnapping statute “is part of an anomalous substructure of California penal law” under
which “[p]remeditated kidnapping which injures but does not kill elicits a heavier penalty
than premeditated murder” and a “robber who kills but does not kidnap retains hope of
eventual parole” while one “who abducts and merely injures is deprived of that hope.”
(Id. at p. 564.) The court noted that these anomalies “acutely need legislative attention.”
(Id. at p. 565.) More importantly, for our purposes, Maston expressly commented that it
was addressing the “maximum statutory punishment, not its fitness as applied to the
individual offense and offender,” and that “[u]nusual twists of fact occur where, for lack


cited in McKinney as reducing the punishment to life in prison with the possibility of
parole regardless of whether the victim suffered injury (Stats. 1976, ch. 1139, § 136.5) in
fact describes the punishment as death where the victim suffered death, life in prison
without possibility of parole where the victim suffered bodily harm, and life with
possibility of parole where the victim did not suffer death or bodily injury. (<https://
clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1976/
76Vol3.PDF#page=3> [as of Apr. 5, 2019].) Section 209 was next amended in 1977;
that version of the statute removed reference to the death penalty and provided for life
imprisonment without possibility of parole where the victim suffered death or bodily
harm and life imprisonment with the possibility of parole where the victim did not suffer
such injury. (Stats. 1977, ch. 316, § 15; <https://clerk.assembly.ca.gov/sites/
clerk.assembly.ca.gov/files/archive/Statutes/1977/77Vol1_Chapters.pdf#page=3> [as of
Apr. 5, 2019].)
       Under the version of section 209 in effect when Palmer committed his offense, as
under the current version, the punishment was life imprisonment without possibility of
parole where victim suffered death or bodily harm or was “intentionally confined in a
manner which expose[d] such person to a substantial likelihood of death, or life with the
possibility of parole where the victim did not suffer such injury. (Stats. 1982, ch. 4, § 1;
<https://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statues/1982/
82Vol1_Chapters.pdf#page=3> [as of Apr. 5, 2019].)


                                             20
of a sentencing alternative, the offender’s punishment is grossly disproportionate to the
circumstances.” (Ibid.)
       Maston’s reasons for rejecting a facial excessive punishment challenge to the
sentence of life without parole do not hold up when applied to the particular
circumstances of the crime Palmer committed. Maston’s observation that “kidnapping is
one of the most serious of all crimes” (Maston, supra, 33 Cal.App.3d at p. 565), is
certainly true as an abstract principle, but in assessing Palmer’s culpability for the offense
he committed, the relevant question is what danger and injury he in fact subjected his
victim to, not what danger, force and violence may be present in a kidnapping for
robbery. Maston found that the “augmented” penalty for a kidnapping for robbery in
which the victim is injured served a “rational” “legislative hope” that it “may in some
cases prevent physical harm.” (Id. at p. 563.) Here, of course, the augmented penalty is
not at issue. More importantly, with respect to culpability in this case, Palmer used an
unloaded gun in an effort to avoid inflicting injury. This fact also bears on Maston’s
statement that “[b]y its very nature [kidnapping] involves violence or forcible restraint.”
(Ibid.) In using an unloaded weapon to compel his victim’s compliance, Palmer clearly
caused the victim to fear for his safety and life; the victim did not know the gun was not
loaded. But compared to a similar offense committed with a loaded gun or other weapon
capable of inflicting deadly injury, Palmer’s intentional attempt to reduce the potential
for injury obviously lessens his culpability. He could not have anticipated that his victim
would be an off-duty police officer armed with his own weapon—and Palmer himself
was the only person injured in the course of the offense. While the asportation element
of the offense entailed an inherent risk of harm such as a traffic accident (In re Earley,
supra, 14 Cal.3d at pp. 132–133), such harms did not materialize. “[T]he consequences
of the defendant’s actions inform the nature of the offense and are important in assessing
the constitutional penalty the state may impose.” (In re Nunez, supra, 173 Cal.App.4th at
p. 726.)
       Maston also reasoned that because kidnapping for robbery requires movement of
the victim that is more than “incidental to the robbery” and increases the risk of bodily


                                             21
harm, kidnapping for robbery “possesses elements of deliberation comparable to those of
kidnapping for ransom,” which the court described as “coldly planned deliberate
schemes.” (Maston, supra, 33 Cal.App.3d at p 563.) Regardless of the accuracy of that
conclusion in general, in the present case, while the robbery component of Palmer’s
offense was obviously premeditated and planned, the kidnapping was not; it was a
spontaneous response to the victim telling Palmer he did not have money.
       Respondent’s comparison to the penalty for kidnapping for robbery with bodily
harm ignores the actual circumstances of Palmer’s offense. Moreover, it has no
relevance with respect to a juvenile offender: Whatever the constitutionality of section
209’s augmented penalty for an adult offender, a juvenile offender cannot be subjected to
a mandatory sentence of life without parole. (Miller, supra, 567 U.S. at p. 470.)17
       Respondent makes no attempt to address the various offenses Palmer has
identified that involve greater actual harm or risk of harm than the offense Palmer
committed yet carry maximum terms of imprisonment far shorter than what Palmer has
already served. Palmer understates the potential maximum penalties some of these
offenses would carry by ignoring the additional sentence they would carry for a
perpetrator using a firearm in commission of the offense. Even taking enhancement for
firearm use into account, however, the 30-plus years Palmer has served greatly exceeds
the maximum sentence possible for these offenses. Voluntary manslaughter is an
unlawful killing of a human being (albeit without malice), but, with the maximum
firearm enhancement, can be punished with no more than 21 years imprisonment; assault
with a machine gun threatens extreme danger but subjects the perpetrator to no more than
22 years; rape of a child under age 14, with firearm use, carries a maximum of 23 years;
poisoning a water supply with a potentially deadly substance could expose any number of


       17
          Here, if Compton had been physically injured and Palmer sentenced to life
without parole, that sentence would now be found unconstitutional. (Miller, supra, 567
U.S. at p. 470 [mandatory sentence of life without parole for juvenile violates Eighth
Amendment]; Montgomery v. Alabama (2016) ___ U.S. ___, 136 S.Ct. 718, 729 [Miller
retroactive].)


                                            22
people to a mortal threat but can be punished with a sentence no longer than eight years,
or 18 if a firearm were somehow used in such an offense. Moreover, these are examples
of sentences for adult perpetrators, and maximum enhancement sentences, which would
be difficult to justify for an unloaded firearm. Considering the far more serious effect of
or danger posed by these offenses, a sentence of more than 30 years for an impulsive 17
year old’s attempt to commit robbery by using an unloaded gun to force a man to drive to
an ATM is so clearly disproportionate that it “shocks the conscience.” (Dillon, supra, 34
Cal.3d at p. 478.)
       The third Lynch technique calls for comparison of Palmer’s punishment that he
would be subjected to in other jurisdictions for the same offense. The assumption
underlying an interjurisdictional comparison “ ‘is that the vast majority of those
jurisdictions will have prescribed punishments for this offense that are within the
constitutional limit of severity; and if the challenged penalty is found to exceed the
punishments decreed for the offense in a significant number of those jurisdictions, the
disparity is a further measure of its excessiveness.’ ” (People v. Martinez (1999) 71
Cal.App.4th 1502, 1516, quoting Lynch, supra, 8 Cal.3d at p. 427.)
       Aside from being unnecessary to our analysis (Dillon, supra, 34 Cal.3d at p. 487,
fn. 38), an interstate comparison is also the least useful means of assessing
proportionality in the present case because it is so difficult to determine what sentence a
like crime—considering all circumstances related to the offense and offender—would
receive in other jurisdictions. The fact that—as will be discussed—many states authorize
punishment of up to life in prison for a kidnapping in facially similar circumstances (i.e.,
for the purpose of robbery, with use of a firearm and without injury to the victim) is of
limited significance without knowing whether and how such states would account for
matters such as the facts that the firearm was not loaded and appellant was 17 years old.
In general, reliance upon an interstate comparison may be subject to the criticism leveled
by respondent here, that even if California imposes the harshest penalty for a given
offense, this does not necessarily demonstrate the penalty is constitutionally excessive.



                                             23
(People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) Nevertheless, a few points are
worth making.
       Palmer has compiled information on the sentence prescribed for his offense in all
50 states, the accuracy of which respondent expressly declines to challenge, and we rely
upon it for purposes of this discussion. (See Rodriguez, supra, 14 Cal.3d at p. 656.)
According to this information, the 30 years Palmer has spent in prison equals or exceeds
the maximum sentence applicable to his offense (taking into account his use of a firearm)
in 21 states. Over half of these (12) impose a maximum of 20 years or fewer and five of
which impose a maximum of 15 years or fewer. These maximums are for sentences
imposed on adults. Thus, even without accounting for Palmer’s youth—which, at the risk
of tiresome repetition, is of crucial importance in analyzing his culpability for the
offense—Palmer has already served a decade more than the longest term permitted for
his offense in 12 states, and at least five years more than the longest permissible term in
another five states.
       Twenty-eight states permit a maximum penalty greater than 30 years for the
offense of kidnapping for robbery, at least where a firearm is used. In eight of these, the
maximum is a term of years—35 years in one state, 40 years in two states, 45 years in
two others, 50 in two, 60 in two, and 99 in two others. Sixteen states allow up to a life
sentence. Notably, however, none of these states require imposition of the maximum
permissible term. Some allow a life term only in certain circumstances and otherwise
specify a significantly lower sentence. For example, in one state a life term can be
imposed only if the court finds there are “substantial and compelling reasons justifying an
exceptional sentence” (Wash. Rev. Code § 9.94A.535), and the standard sentencing range
appears to be roughly five to seven years. (Wash. Rev. Code, §§ 9.94A.510, 9.94A.515
[level X]).18 In another, the specified sentence is 11 to 40 years unless a unanimous jury


       18
         Sentences in Washington are determined by reference to a grid based on the
category of seriousness for the offense and an “offender score” based on various statutory
factors. For the category including Palmer’s offense, the associated sentence range runs
from a low of 51 months (four years three months) to a high of 198 months (16 years six

                                             24
selects a life sentence. (Miss. Code Ann. §§ 97-3-53, 97-37-37(2).) Most of the states
specify a range of permissible terms (e.g., five to 60 years) or a term of “up to” life.
Among states prescribing a specific range, the minimum terms vary from a low of three
(one state), five (six states) or six years (one state) to a high of 40 years (one state), with
nine states in between, requiring minimum terms of 10 (two states), 15 (two states) or 20
years (five states). Unlike California, the states that permit sentences as long or longer
than the term Palmer has served so far allow the actual length of the sentence for this
offense to be determined as appropriate in an individual case—and appear to contemplate
terms far short of 30 years in nonaggravated cases.
       Respondent’s argument that Palmer’s information shows California is not out of
step with the majority of the country is necessarily based on a comparison of maximum
allowable sentences, not actual sentences imposed, and therefore misses the point.
Another of respondent’s arguments—that because many states permit sentences of life
without parole for nonviolent offenses,19 “California is not an outlier”—misses the point
for a different reason. As we have said, no state can constitutionally impose a sentence of
life without possibility of parole upon a juvenile offender. (Miller, supra, 567 U.S. at
p. 470.) Respondent’s attempt to demonstrate the proportionality of Palmer’s sentence by
comparing it to a sentence to which Palmer could not be subjected completely ignores
“the circumstances existing at the time of the offense”—precisely the circumstances that
are the measure of individual culpability and therefore constitutional proportionality.
(Rodriguez, supra, 14 Cal.3d at p. 652.)

months). (Wash. Rev. Code, § 9.94A.510.) For purposes of this discussion, we have not
attempted to verify Palmer’s calculation of the appropriate offender score.
       19
          Respondent relies upon a 2013 publication by the American Civil Liberties
Union reporting that 22 states permit sentences of life without parole for nonviolent
felonies, seven of them permitting such sentences for first-time nonviolent offenses, 15
mandating life without parole for certain nonviolent offenses and 19 allowing life without
parole for nonviolent offenses pursuant to habitual offender laws. (ACLU, A Living
Death: Life Without Parole for Nonviolent Offenses (Nov. 2013) at pp. 39, 74, 98
<www.aclu.org/sites/default/files/assets/ 111213a-lwop-complete-report.pdf> [as of Apr.
5, 2019].)


                                               25
                                             III.
       Palmer challenges his sentence under both the California Constitution and the
Eighth Amendment to the United States Constitution. The test of proportionality under
the latter, while stated slightly differently than the California one, considers the same
factors. (Mendez, supra, 188 Cal.App.4th at p. 64.) “A court must begin by comparing
the gravity of the offense and the severity of the sentence. [(Harmelin v. Michigan,
supra,] 501 U.S. [at p.] 1005 (opn. of Kennedy, J.).) ‘[I]n the rare case in which [this]
threshold comparison . . . leads to an inference of gross disproportionality’ the court
should then compare the defendant’s sentence with the sentences received by other
offenders in the same jurisdiction and with the sentences imposed for the same crime in
other jurisdictions. [(Ibid.)] If this comparative analysis ‘validate[s] an initial judgment
that [the] sentence is grossly disproportionate,’ the sentence is cruel and unusual.
[(Ibid.)]” (Graham v. Florida, supra, 560 U.S. at p. 60.) Our analysis above would yield
the same conclusions under the federal Constitution.
       Respondent’s argument that the Eighth Amendment challenge is foreclosed by
People v. Franklin (2016) 63 Cal.4th 261 (Franklin) has no merit. The defendant in
Franklin, sentenced to 50 years to life for a murder committed when he was 16 years old,
argued the sentence violated the Eighth Amendment as the functional equivalent of a
sentence of life without possibility of parole. (Franklin, at p. 268.) The California
Supreme Court found the challenge moot in light of recently enacted legislation that
would require parole consideration, with “ ‘great weight’ ” given to “ ‘the diminished
culpability of juveniles as compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the prisoner.’ ” (Id. at pp. 268, 277;
§§ 3051, 4801, subd,. (c).) Because the youth offender parole statutes would provide “a
meaningful opportunity for release no more than 25 years into [his] incarceration”—
when he was 41 years old—Franklin’s sentence was not the functional equivalent of life
without parole and his claim of constitutionally excessive punishment was moot.
(Franklin, at pp. 277, 279–280.)



                                             26
       It should be obvious that Franklin has no relevance to Palmer’s constitutional
claim, which does not challenge his original sentence, suggest his sentence is the
functional equivalent of life without parole, or suggest his sentence will become
excessive due to limitations on his eligibility for parole. His claim is that the number of
years he has already served is constitutionally disproportionate to his culpability for his
offense. Franklin has no bearing on this claim.
                                            IV.
       As we have said, Palmer has been released from custody but remains in
constructive custody under parole supervision. His petition argued he was entitled to
release on his own recognizance because he had already served a constitutionally
disproportionate term. The Attorney General’s return denied there was a lawful basis on
which to release Palmer on parole or on his own recognizance, but made no substantive
response to Palmer’s argument concerning constructive custody. At oral argument, the
Attorney General relied on In re Lira (2014) 58 Cal.4th 573 (Lira) as authority for us to
deny Palmer’s request for release on his own recognizance. In response to our invitation
for additional briefing on this point, the Attorney General argues that Palmer’s habeas
petition should be denied as moot because he has now been released from confinement.
The Attorney General further argues that Lira precludes us from ordering that Palmer be
released from parole, as well as from confinement in prison, and that eliminating
Palmer’s period of parole supervision would be contrary to his successful reintegration
into society.
       We disagree.
       As earlier stated, Palmer’s petition is unquestionably not moot, as he remains in
constructive custody. (In re Wells, supra, 46 Cal.App.3d at p. 596, quoting In re Sturm,
supra, 11 Cal.3d at p. 265; Berman v. Cate, supra, 187 Cal.App.4th at p. 892.) The cases
upon which the Attorney General relies dealt with entirely different circumstances. In re
Ponce (1966) 65 Cal.2d 341, 343, held that a challenge to the determination that the
petitioner was a habitual criminal was moot because the legal effect of that determination
was to make him ineligible for parole until he had served a minimum of nine years, and


                                             27
he had already served that minimum term, been released on parole, and returned to prison
for another crime. In Weinstein v. Bradford (1975) 423 U.S. 147, 148, an inmate’s
challenge to procedures governing the consideration of his eligibility for parole was
found moot because the inmate had since been released not only from prison but from
parole supervision. The Attorney General describes Frias v Superior Court (1975) 51
Cal.App.3d 919, 923 as holding that a petition requesting release was moot because the
petitioner had been released, noting the court’s statement that granting the petition would
“result in nothing for petitioner.” But the petition in Frias challenged the petitioner’s
being held in segregated custody; the “release” to which the court referred in finding the
petition moot was release to the general prison population. (Ibid.) In all of these cases,
courts found mootness where the particular restraint being challenged had been
eliminated and no further relief was possible. None are authority for the proposition that
a petition raising a claim of constitutionally excessive punishment is moot when the
petitioner is released from physical custody but remains in constructive custody on
parole.
          Lira, which the Attorney General maintains precludes us from ordering that
Palmer be released from parole supervision, is also inapposite. In that case, while a
petition challenging the Governor’s reversal of a parole grant was pending, the Board
again granted parole; the Governor did not review this decision and the prisoner was
released on parole. (Lira, supra, 58 Cal.4th at p. 577.) Subsequently, the habeas petition
was granted, reversing the Governor’s earlier decision, and the prisoner argued that the
time he spent in prison between the Governor’s erroneous reversal and his eventual
release should be credited against his period of parole. (Id. at p. 578.) Rejecting this
argument, Lira held (among other things) that the challenged period of imprisonment was
not unlawful, and that the determination whether a parole period is required, as well as its
duration and conditions, were matters for the Board with which a court could not
interfere under the principle of separation of powers. (Id. at pp. 582–584)
          The critical distinction between Lira and the present case, which the Attorney
General ignores, is that the prisoner in Lira was never serving an unlawful sentence. We


                                              28
have determined that Palmer was serving a prison sentence that had become
constitutionally excessive. Unlike the situation in Lira, his continued imprisonment was
unlawful. He is, therefore, “entitled to be freed from all custody, actual or constructive.”
(In re Wells, supra, 46 Cal.App.3d at p. 604.)
       The Attorney General’s invocation of the public interest in parole supervision to
monitor and assist with Palmer’s reintegration into society cannot supersede the effect of
his having served a prison term that exceeded constitutional bounds. The Attorney
General notes two of the conditions of Palmer’s parole—that he participate in a
transitional housing program for at least six months and that he attend a parole outpatient
clinic. However well such conditions might serve both Palmer himself and the public,
their existence as conditions of parole demonstrates that Palmer is not free from restraint.
And these are only two of 29 “Special Conditions of Parole” that affect most aspects of
Palmer’s life. Some of these are patently punitive, at least in the circumstances of this
case—such as “[y]ou shall not have contact with any minor male/female you know or
reasonably should know is under the age of 18,” “[y]ou shall not have contact with your
biological or adopted children” and “[y]ou shall not date, socialize or form a romantic
interest or sexual relationship with any person who has physical custody of a minor.”20 It
is difficult to comprehend how his release under such conditions can be seen as anything
other than continued restraint and punishment for his crime.
                                      DISPOSITION
       Petitioner has already served a prison term grossly disproportionate to his offense.
His continued constructive custody thus constitutes cruel and unusual punishment within
the meaning of article 1, section 17, of the California Constitution and the Eighth
Amendment to the United States Constitution. He is entitled to release from all forms of
custody, including parole supervision.



       20
          On our own motion, we take judicial notice of the “Notice and Conditions of
Parole” signed by Palmer and prison staff on March 12, 2019, which was submitted to
this court by Palmer as an exhibit to his letter brief filed March 21, 2019.


                                             29
       Respondent is directed to discharge petitioner from all forms of custody, physical
and constructive, upon the finality of this opinion.




                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




In re Palmer II on Habeas Corpus (A154269)




                                             30
Counsel:

O’Melveny & Myers, Geoffrey H. Yost, Melody Drummond Hansen, Megan Havstad,
Cara L. Gagliano, Micah Chavin for Petitioner.

Xavier Becerra, Attorney General, Phillip J. Lindsay, Senior Assistant Attorney General,
Sara J. Romano, Supervising Deputy Attorney General, Denise A. Yates, Deputy
Attorney General




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