Filed 11/16/15 P. v. Barbarin CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068066

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF1203746)

JAMES BARBARIN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Riverside, Christian F.

Thierbach, Judge. Affirmed.

         Melissa Hill, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

Arlene A. Sevidal and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and

Respondent.

         Appellant James Barbarin (Appellant) was 16 years old when he was convicted by

a jury of the attempted murder of Tony Adame, who was known in Appellant's
community as a dropout from a gang of which some of Appellant's family were members.

(Pen. Code, §§ 664/187, subd. (a); all further statutory references are to this code unless

noted.) The jury found true the charged enhancements, that Appellant personally used a

firearm and inflicted great bodily injury upon the victim (§ 12022.53, subd. (d);

§ 12022.7, subd. (a); § 1192.7, subd. (c)(8)), and that the crime was committed for the

benefit of a gang. (§ 186.22, subd. (b).)

       The trial court sentenced Appellant to 40 years to life in prison, consisting of 15

years to life as the sentence for attempted murder, and a consecutive sentence of 25 years

to life for personal discharge of a firearm causing great bodily injury, in the commission

of a gang-related offense. (§ 186.22, subd. (b)(5); § 12022.53, subd. (d).) The

enhancement under section 12022.7 was stricken. (§§ 12022.53, subd. (f), 1170.1,

subd. (g).) He appeals.

       We first address Appellant's argument that no substantial evidence supports his

conviction for attempted murder because, in his view, Adame's testimony was "inherently

incredible" and improbable, due to conflicts in different accounts he gave about the

events surrounding the shooting, and because a prosecution witness, in rebuttal, did not

support parts of Adame's testimony. As we will explain, the jury heard Adame's

eyewitness identification of Appellant as the person who shot him five times in the back

and leg, and who kept clicking the gun as he tried to shoot him in the head. Adame

testified that he was familiar with Appellant's family, many of whom were members of

the East Side Riva (ESR) gang that he left. Adame only knew Appellant as "Happy."

Despite some inconsistencies in Adame's and others' accounts of the events, overall, our

                                             2
review of the record persuades us that Appellant's attempted murder conviction is

sufficiently supported by the evidence.

       We then turn to Appellant's arguments that his lengthy sentence is in violation of

constitutional protections against cruel and unusual punishment, because it arguably

amounts to a de facto sentence of life without possibility of parole ("LWOP") that was

imposed on him for a crime committed when he was 15 years of age. (U.S. Const., 8th

Amend.; Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).) He further

claims the trial court had the discretion to consider relevant factors concerning his age, as

outlined in Miller, but it failed to do so. He alternatively contends he was deprived of

equal protection of the law, since there is a statutory procedure applicable to most

juveniles sentenced to LWOP, allowing them to seek recall of their sentences and

resentencing pursuant to section 1170, subdivision (d)(2)(A)(i). He argues he is similarly

situated to them and should receive the benefits of that provision.

       We are mindful that many issues concerning juvenile sentencing in light of

constitutional prohibitions of cruel or unusual punishment are now before the California

Supreme Court in a number of cases, including In re Alatriste (review granted Feb. 19,

2014, S214652), In re Bonilla (review granted Feb. 19, 2014, S214960), and People v.

Franklin (review granted June 11, 2014, S217699).1 We apply existing law and



1      The Supreme Court order granting review identifies these juvenile sentencing
issues currently before it: "(1) Did [section 3051], which includes provisions for a parole
suitability hearing after a maximum of 25 years for most juvenile offenders serving life
sentences, render moot any claim that such a sentence violates the Eighth Amendment to
the federal Constitution and that the petitioner is entitled to a new sentencing hearing
                                              3
conclude that Appellant did not receive a de facto life sentence, because he has not been

denied an opportunity to seek release on parole within a meaningful portion of his natural

lifetime. (§ 3051, subd. (b)(3) [parole suitability hearing allowed for juvenile offender

sentenced to 25 years to life term, after 25 years have been served]; § 2933.1 [work time

credits affect timing of prisoner's entitlement to a parole hearing].) Eighth Amendment

prohibitions were not triggered, the sentence is not constitutionally defective and we

affirm the judgment.

                                              I

                            SUBSTANTIAL EVIDENCE CLAIM

                                  A. Standards of Review

       Appellant's main defense at trial was a lack of confirming identification of him, as

the assailant, by a third party. ESR, a branch of the Mexican Mafia or Sureno, has

numerous members in Riverside, including family members of Appellant to whom he

bears a resemblance. Appellant points out that many gang members presumably had a

motive to shoot Adame, since a decision to drop out of a gang is the type of act that

exacts retaliation in that culture. Appellant argues that Adame, a convicted felon, was

applying the mitigating factors for such juvenile offenders set forth in Miller [132 S.Ct.
2455]? If not: (2) Does Miller apply retroactively on habeas corpus to a prisoner who
was a juvenile at the time of the commitment offense and who is presently serving a
sentence that is the functional equivalent of life without the possibility of parole? (3) Is a
total term of imprisonment of 77 years to life (Alatriste) or 50 years to life (Bonilla) for
murder committed by a 16-year-old offender the functional equivalent of life without
possibility of parole by denying the offender a meaningful opportunity for release on
parole? (4) If so, does the sentence violate the Eighth Amendment absent consideration
of the mitigating factors for juvenile offenders set forth in Miller?" (In re Alatriste, order
granting review Feb. 19, 2014, S214652; In re Bonilla, review granted Feb. 19, 2014,
S214960 [referred to here as Alatriste et al.].)
                                              4
extremely unreliable as a witness in identifying the perpetrator, so his testimony cannot

amount to substantial evidence in support of the judgment. The trial court acknowledged

at sentencing that Adame "is not on the Chamber of Commerce man of the year finalist

list." Appellant also claims Adame had developed such a bias and desire for revenge that

he would likely have blamed anyone who might be associated with the ESR gang,

however unfair or inaccurate it might be for him to do so.

       In reviewing such claims of insufficient evidence to support a conviction, we

apply familiar substantial evidence standards of review. We review the entire record in

the light most favorable to the trial court decision, drawing all reasonable inferences in

favor of the trial court decision. (People v. Johnson (1980) 26 Cal.3d 557, 576-577;

People v. Zamudio (2008) 43 Cal.4th 327, 357.) To the extent that an appellant seeks to

reargue the evidence on appeal, the reviewing court is not authorized to reassess the

credibility of the witnesses. (People v. Thompson (2010) 49 Cal.4th 79, 124-125

(Thompson).) We determine whether there is substantial evidence in the record from

which a reasonable jury could find each element of the offense to have been proved

beyond a reasonable doubt. (Zamudio, supra, at p. 357.)

       Even where an alternative theory of events was argued to the jury, if " ' "the

circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing

court that the circumstances might also reasonably be reconciled with a contrary finding

does not warrant a reversal of the judgment." ' " (People v. Rodriguez (1999) 20 Cal.4th

1, 11.) A jury is best able to evaluate inconsistencies in testimony, in order to determine

which facts have been shown to be true. (See People v. Barnes (1986) 42 Cal.3d 284,

                                              5
306; see People v. Mincey (1992) 2 Cal.4th 408, 444.) A single witness's testimony may

be sufficient to support a conviction unless it must be rejected because the events

described were impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th

1149, 1181 (Young).) A defendant may not reargue the evidence on appeal, and we do

not reassess witness credibility. (Thompson, supra, 49 Cal.4th at pp. 124-125.)

                B. Background Information about Appellant and Adame

       In 2013, Appellant lived in Riverside with his father Manuel Barbarin and other

relatives, some of whom were members of ESR. For a few years before the shooting,

Appellant was in the habit of socializing at a local park that was an ESR gang hangout,

and he admitted to police officers who asked him that he was a gang member. Field

investigation cards from 2011-2013 indicated Appellant sometimes wore gang-type

clothing (distinctive belt buckle/baggy, large dark clothing), and officers believed he was

affiliated with a gang, based on his companionship with known ESR gang members.

Appellant spent time with his younger cousin, Isaac Sanchez, who was related to him on

his Hispanic mother's side. Appellant also hung out with his older half-brother Daniel

Valadez, who had a different father, a Black man.

       Adame, age 44 at the time of the shooting, went to school with Appellant's father

and uncles. For some time, Adame was a fellow ESR member with Appellant's relatives.

Adame began his gang involvement as a young teenager, and until around 2005, he was

an active "soldier" in ESR's 14th Street clique. Adame served prison terms for felonies

beginning in 1991 (shooting at an occupied vehicle), in 1995 (robbery), and in 2005



                                             6
(transporting controlled substance). While active in the gang, he also committed

numerous other offenses for which he was not charged.

       During his prison sentence for the 2005 drug conviction, Adame decided to drop

out of ESR, feeling he "was getting older," and some of its younger members did not

appear to have discipline and focus. He also left in recognition of the needs of his wife

and young children. He began the "debriefing" process by contacting prison authorities.

He was placed in solitary confinement and then protective custody (PC) in the sensitive

needs yard, in compliance with the prison's safety protocol for protecting dropouts.

Later, Adame was paroled, but he did not report to his parole officer and was returned to

prison. He was again paroled in December 2011.

       Adame knew that in ESR culture, dropouts like him are considered "dead" or

"dead [men] walking." Although he realized he would be in danger of gang retaliation in

ESR territory, he moved to the home of his 83-year-old grandmother, located there. He

had separated from his wife and felt that his grandmother's house was the only place he

could call home, and also, she could use his help. He had a job and was avoiding drugs

due to drug testing requirements at work. He socialized with other dropouts at times,

even though that was against gang protocol.

       It was not unusual for Adame, whose background was known in the neighborhood,

to be attacked, cursed and called names by ESR gang members. A bystander would call

him a dropout or say things like "Hey, PC" (referring to his protective custody status in

prison). One day, he was going to the store when someone fired a gun at him and hit his

car. Sometimes, when gang members tried to "jump" and attack him, he was able to

                                              7
"spank them" or beat them up, protecting himself. He had seen Appellant's family

members around in the neighborhood, but he did not know Appellant personally. Adame

thought that the Barbarin family members looked distinctive, "like Eskimos."

      Adame was aware that ESR members have a serious rivalry with a local black

gang, and he was surprised when he saw people of African-American descent in ESR

neighborhoods. Valadez appeared to him to be such a person.

                                  C. Events of Shooting

      At trial, Adame testified that on September 4, 2013, he went home from work

around 5:00 p.m.-6:00 p.m. and found other family members at the house. Relaxing for

the upcoming weekend, he was sitting on the porch drinking beer when his friend Jesse

Rodriguez dropped by. Adame left his beer with Rodriguez and went to clean his work

tools in the back of his truck. He noticed Rodriguez talking to several young men,

including Appellant, near the side of the house. He heard someone in the crowd call him

"PC," so he cursed back at the men, yelling, "What's up? You want some?"

      Appellant's half-brother Valadez testified for the defense that he, Appellant, and

Sanchez were visiting with Rodriguez at Adame's house, when Adame came up and

started trying to go through Sanchez's pockets. Valadez objected, saying that Adame was

older and bigger than Sanchez, and Adame responded by taunting him about looking like

a black man and calling him racial slurs. Suddenly, Adame punched Valadez and people

started gathering. Valadez said at trial that he was not sure whether Adame might have

been reaching toward a weapon at his belt line. Sanchez got scared and wanted to leave,

and he and his companions left.

                                            8
       Adame asked Rodriguez who had been cursing at him, and Rodriguez told him

one of the young men was Appellant, called "Happy," a member of the Barbarin family.

Rodriguez said another of them was Valadez, Appellant's half-brother. When Adame

started drinking his beer again, he noticed that it tasted like methamphetamine. He told

Rodriguez that he was "not cool with that," since he was regularly tested for drugs at

work and was not using them. Adame started walking to the store to replace the beer, but

the record is not clear whether Rodriguez went with him. Adame testified that he did, but

Rodriguez testified that he did not remember much of what happened that day.

Eventually, Rodriguez got a call and left the area.

       Around 9:30 p.m., Adame continued walking home, drinking a beer and talking to

his wife on his cell phone. He took a shortcut through a vacant house, toward a

neighbor's breezeway, since it was a quicker way to go and then, he "[didn't] have to see

any of the other guys from east side." He looked up and saw Appellant next to him with

a gun, "with [his] eyes close up right in front of me." As they stood face to face,

Appellant pointed his gun at Adame's head and said, "I got you. That's it, PC. What's

up?" Appellant pulled Adame down the breezeway.

       Adame suddenly began to run away, and Appellant shot him with a .22-caliber

handgun. Adame fell to the ground, staring at Appellant who was still shooting. Adame

"just felt like [he] was just floating in the air," felt a burning sensation, and cursed and

yelled at Appellant. Appellant held his gun close to Adame's face and head, clicking and

clicking, but the gun "didn't go" (misfired or no bullets left). Adame heard Appellant

curse and flee.

                                               9
       Adame could not feel his legs and thought he was dying. He dragged himself

toward a hiding place in some bushes and found his cell phone, but discovered the screen

was cracked and not usable. The phone's redial feature worked and he called home, and

told his father what happened. Rushing out, his father called 911 and told the dispatcher

when and where he found Adame, who was bleeding heavily. While they waited for

paramedics, the 911 dispatcher told Adame's father to ask him whether he knew who shot

him. Adame's father repeated to her what Adame told him: "Some guy named Happy,

something like that."

       Another witness next door heard gunshots and cursing, and also called 911 at 9:30

that evening. When police officers and paramedics arrived at the scene, Adame told an

officer that he was shot by "Happy," who was part of the Barbarin family. He did not

know Appellant's first name, but described him as a 15-to 17-year-old light-skinned

Hispanic male, about 5'10" tall and 180 pounds, wearing all black clothing. Adame was

still bleeding while he told officers that "Happy" probably lived in the Barbarins' house

on the corner of 11th and Victoria Avenue. He also said that "Happy" made him snort a

line of white powder before the shooting.

                                D. Investigation and Trial

       At the scene, investigators found four used .22-caliber casings, a partly empty beer

bottle, and bloodshed all around. The day after the shooting, Adame was interviewed at

the hospital, where a detective showed him a set of six photographs that included

Appellant's high school picture. Adame identified Appellant in the third photo as his

attacker. He told the detective that he got into an argument and fistfight with Valadez by

                                            10
asking him about his parents and which one of them was black, explaining to the

detectives that he believed it was a "no-no" in the neighborhood (or "shameful") for

different races to associate in that way.

       Medical evidence showed that Adame had multiple gunshot wounds to his left

arm, left leg, and back. One bullet went through his chest and hit his diaphragm, spine,

and abdomen. Doctors inserted a titanium plate along his femur, and he is paralyzed

from the waist down.

       At trial, a gang detective testified that one of his sources told him that Appellant

was called "Happy," or "Big Happy." Graffiti by that name was found in local parks in

gang territory. A gang expert explained to the jury that one way for a young gang

member to earn respect from the gang is to assist in enforcing its rules, by violently

targeting its enemies. Of about 500 documented ESR members, about 100 are out and

about in the neighborhood at a given time.

       Adame knew he was risking his life by testifying at trial, and that "snitching" in

any way made him a bigger target to the gang. He spoke up because "I thought I was

dying, and I wanted my family to know who done it, because if I would have died, there

would have been something else happen." When asked who shot him, he said it was

Appellant, and "I will never forget that face, never."

       Adame told the jury that he did not call Valadez names or ask him who his father

was, although he admitted yelling at the three young men that day. He felt surprised to

see Valadez in the neighborhood, due to his non-Hispanic appearance. It was only after

the men started to yell at him and call him PC that Adame offered to fight them, and then

                                             11
they left. Adame testified he must have been hallucinating when he told police after the

shooting that he had just had an angry argument with Valadez. He admitted that "Happy"

did not make him snort a line of drugs, and said he was hallucinating when he said that to

police at the scene.2

       In the defense case, Valadez testified that Adame called him a "nigger," but he

managed to stay calm, which made Adame even madder. During the scuffle, he saw

Adame reach for what could have been a weapon at his belt line. However, Valadez

denied seeing Adame carrying a gun. Tapes from Valadez's interview with police after

the shooting were then played for the jury, in which Valadez was heard to say he was 100

percent sure that Adame had a black gun during their confrontation.

       Rodriguez was subpoenaed and testified as a rebuttal witness. He said he had

never seen Appellant or Valadez before. Rodriguez denied seeing other young men at

Adame's house that day, or spiking Adame's beer with methamphetamine, or walking to

the store with him to buy more beer. Rodriguez said he was a little drunk that day and

did not remember much about it.




2      At the hospital, Adame evidently tested positive for methamphetamine, although
the record does not show whether such evidence was admitted at trial. The prosecutor
brought a motion in limine to exclude the test results, unless used for impeachment
purposes, such as if Adame eventually admitted to ingesting a significant amount of
drugs that day. No such admission was made and no such impeachment followed.
However, Adame was asked whether he remembered testifying at Appellant's preliminary
hearing that he did not have any drugs that day. He replied that nobody asked him at that
time whether Rodriguez had spiked his beer. The reason why Adame tested positive for
drugs is not material or dispositive to the issues on appeal.
                                            12
                          E. Analysis of Sufficiency of Evidence

       Obviously, the jury heard different versions of the relevant circumstances from

different participants. Appellant first focuses on Adame's criminal history and suggests

that because of it, he could not have testified truthfully. Even if Adame had tried to be

truthful, he had admitted to the jury he was hallucinating around the time of the shooting.

Appellant argues this shows his recollections must have been adversely affected and

unreliable.

       Appellant also points out that Adame changed his story in several respects, such as

whether his assailant forced him to snort drugs before shooting him. At trial, Adame

denied using a racial slur toward Valadez, but Valadez testified otherwise. Rodriguez's

rebuttal testimony failed to support Adame's version that Rodriguez told Adame the

names of two of the young men that he argued with and fought. Rodriguez denied

putting a drug in Adame's beer, or that they went together to get more beer.

       Even in light of such inconsistencies, Appellant has not challenged the adequacy

of the jury instructions on how to evaluate the evidence offered at trial. The jurors were

instructed that they were to judge the credibility or believability of the witnesses, by

using their common sense and experience. (CALCRIM Nos. 226, 301, 302.) They were

told that the testimony of only one witness could suffice to prove any fact, in light of all

the evidence. The trial judge fully explained how to evaluate previous statements that a

witness made, how to judge the effect of a felony conviction, and how to consider

testimony from eyewitnesses and experts. (CALCRIM Nos. 315, 316, 318, 332.)



                                             13
       It was for the jury to decide which, if any, of the statements of the witnesses it

chose to believe. A witness's testimony is not disqualified simply because the jury finds

some aspects of that evidence to be untruthful. (People v. Mincey, supra, 2 Cal.4th at

p. 444.) The jury was given an accurate picture of the participants, from which it could

evaluate all the evidence in reaching its conclusions on guilt.

       Appellant alternatively argues the evidence was insufficient because there were no

other percipient witnesses and no physical evidence that connected him, individually, to

the shooting. Even though a gang motive for the crime evidently existed, due to Adame's

status as a gang dropout, Appellant looked like some of his relatives who were members.

Also, any one of about 100 ESR members around at the time could have done the

shooting with such an intent.

       The evidence as a whole included Valadez's testimony placing Appellant as one of

the young men at the house participating in the crucial confrontation, a few hours before

the shooting. The jury heard evidence about Appellant's lifestyle and frequent

association with gang members, and it could rationally have accepted the prosecution's

theory that Appellant had a gang-related motive to shoot Adame and that he was the one

who did so.

       The jury heard a lot of background evidence about Adame's credibility or lack

thereof. It nevertheless decided to believe his account that he saw Appellant during the

verbal confrontation among the three young men, and he recognized Appellant during the

shooting. The jury could reasonably have accepted this testimony that Adame



                                             14
remembered what happened, and he was able to identify his attacker and would "never

forget that face."

       It is not enough for Appellant to argue on appeal that the evidence supports

possibilities that the shooter might have been someone else. Together with the showing

that a motive existed, and the evidence of a likelihood that Appellant had such an motive,

he has not met his burden of showing that his participation in the events before and at the

time of the shooting was "physically impossible or inherently improbable." (Young,

supra, 34 Cal.4th at p. 1181.) On the entire record, sufficient evidence supports the

judgment of guilt.

                                             II

               AUTHORITY GOVERNING CHALLENGES TO SENTENCE
                    AS CRUEL AND UNUSUAL PUNISHMENT

       At sentencing, Appellant was 16 years old. His attorney requested the court to

refrain from "imposing any sort of life term" as it would constitute "cruel and unusual

punishment." Counsel referred to the immaturity of juvenile brains with respect to their

decisionmaking abilities, and he spoke about recent legislation that recognized the effect

of those factors (possibly referring to the 2012 enactment of § 1170, subd. (d)(2)(A)(i),

permitting petitions for recall and resentencing of juvenile offenders who received

LWOP sentences).

       The court responded that appeals to leniency were misguided, because the

Legislature had set forth mandatory sentences that apply to such crimes and

enhancements. The court said, "[T]o the extent that any of you think I have any


                                            15
discretion here, I don't, other than [what defense counsel mentioned, recall of LWOP

sentences]. And in order for me to do what he and you are suggesting, I would have to

conclude that the sentence required by law here is such that it is a de facto life without

parole sentence; and it isn't. When he is eligible for parole, he will be in his early 50's.

What a waste of a life."

       The court ordered that Appellant be "committed to state prison for the term

required by law, that's an indeterminate term of life in prison," with a total commitment

of 40 years to life (15 years to life for attempted murder; 25 years to life for the

enhancements, served consecutively; §§ 664/187, subd. (a); § 12022.53, subd. (d);

§ 186.22, subd. (b).) The court explained to Appellant that eventually, he would be

allowed to apply for parole, although he would no longer be a young man at that point.

             A. Issues Presented; Nonhomicide Juvenile Offender Approach

       Appellant contends that his mandatory sentence of 40 years to life in prison for

this crime, committed while he was a juvenile, amounts to a de facto life sentence that

violates the protections of the Eighth Amendment and likewise, article I, section 17 of the

California Constitution. In his view, the comments made by the trial court demonstrate

that it failed to exercise its existing discretion to consider relevant factors under leading

federal and state case law, and we must therefore reverse for resentencing. (Miller,

supra, 132 S.Ct. 2455; Graham v. Florida (2010) 560 U.S. 48, 74 (Graham); People v.

Caballero (2012) 55 Ca1.4th 262 (Caballero).)

       Appellant disagrees with any contention that section 3051, subdivision (b)(3),

which by its terms will provide him with an opportunity to seek a parole hearing after 25

                                              16
years of incarceration, can be construed to supplement or correct a defective sentencing

hearing, or to moot any other constitutional problems created at that time. Rather, he

argues that under Graham, supra, 560 U.S. at page 75, it is the sentencing court that must

take all youth-related factors into account "at the outset," and that a hearing 25 years later

before a parole board fails to meet that standard. (People v. Gutierrez (2014) 58 Cal.4th

1354, 1386 (Gutierrez) [quoting Graham, supra, at p. 75, on the issue of when a juvenile

offender's incorrigibility, if any, must be evaluated].)

       As a backup argument, Appellant claims that even if the sentence does not qualify

as a de facto life sentence (e.g., if § 3051, subd. (b)(3) would allow him a parole hearing

after 25 years of incarceration, or if a parole hearing becomes available when any

§ 2933.1 work time credits are applied), the mandatory nature of the 40-years-to-life

sentence still violates these constitutional protections and controlling cases. (Miller,

supra, 132 S.Ct. 2455; Graham, supra, 560 U.S. 48; Caballero, supra, 55 Ca1.4th 262,

268.) Appellant contends the trial court abused its discretion at the sentencing hearing,

because those principles and traditional Eighth Amendment analysis indicate that the trial

court could take into account his personal youth-related characteristics, but it declined to

do so or erroneously believed that it could not do so. (Gutierrez, supra, 58 Cal.4th 1354,

1391 [a juvenile offender is entitled to the exercise of informed discretion by the

sentencing court].) Appellant therefore argues the sentence is disproportionate and

unsupported, when all the appropriate factors are considered. (People v. Dillon (1983) 34

Cal.3d 441, 478 (Dillon).)



                                              17
       Finally, Appellant makes an equal protection argument based on the statutory

treatment of juveniles who were expressly sentenced to LWOP. Under section 1170,

subdivision (d)(2)(A)(i), they are entitled to seek recall and resentencing after 15 years of

incarceration.3 Appellant contends that he is similarly situated to juvenile offenders

sentenced to LWOP imprisonment, because of the lengthy mandatory sentence he

received, and he should receive the benefits of that procedure.

       Before addressing the merits of these contentions, we specify that under Graham,

supra, 560 U.S. 48 and Miller, supra, 132 S.Ct. 2455, we shall treat the attempted murder

conviction before us as a "nonhomicide" offense. In Caballero, supra, 55 Cal.4th 262, a

case of a juvenile sentenced to a 110-year-to-life prison term for attempted premeditated

murders, the court interpreted those federal authorities and held, "sentencing a juvenile

offender for a nonhomicide offense to a term of years with a parole eligibility date that

falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual

punishment in violation of the Eighth Amendment." (Caballero, supra, at p. 268; italics

added.) The characterization of the offense is not free from doubt, because of the intent

to kill found by the jury in its attempted murder verdict. However, we shall assume

without deciding that the convictions before us should be viewed as related nonhomicide

offenses. (Id. at pp. 270-271 (conc. opn. of Werdegar, J.).)




3      Section 1170, subdivision (d)(2)(A)(ii) exempts from this recall procedure those
juveniles sentenced to LWOP for killings of public safety officials (such as the other
defendant in Gutierrez (Moffett), or killings involving torture. (Gutierrez, supra, 58
Cal.4th at p. 1385.)
                                             18
       A de novo standard of review is applied to the questions of law presented, on

whether a punishment is objectively cruel or unusual. (People v. Em (2009) 171

Cal.App.4th 964, 971 (Em).) In light of the numerous pending cases before the

California Supreme Court on the proper interpretations of the holding in Miller, supra,

132 S.Ct. at pages 2457 to 2458 (that mandatory LWOP sentences are unconstitutional

for juvenile homicide offenders; Alatriste et al, supra.), we see no useful purpose in

setting forth any in depth analysis of the case law that has established current juvenile

sentencing parameters. We do, however, outline the bases of those holdings and apply

them to this record.

                            B. Governing Case Law: Federal

       In Graham, supra, 560 U.S. 48, 74, the high court decided that it is cruel and

unusual punishment to sentence a defendant who committed a nonhomicide offense, as a

juvenile, to an LWOP term. Under Graham, "[a] State is not required to guarantee

eventual freedom to a juvenile offender convicted of a nonhomicide crime" but it must

"give defendants . . . some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation." (Id. at p. 75.)

       In Miller, supra, 132 S.Ct. 2455, the high court explained how the Eighth

Amendment's prohibition on cruel and unusual punishment applies to a defendant who,

before reaching 18 years old, committed a homicide. Miller disapproved the imposition

of mandatory LWOP sentences on juvenile homicide offenders, and held that a

sentencing court has the duty to exercise its discretion to consider the juvenile offender's

age and youthful characteristics, before it may select a sentence of LWOP. (Id. at

                                             19
pp. 2469, 2475.) Under Miller, the factors that a sentencing court must consider before

imposing an LWOP sentence on a then-juvenile offender include: "consideration of his

chronological age and its hallmark features -- among them, immaturity, impetuosity, and

failure to appreciate risks and consequences . . . 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." (Id. at p. 2468.) Likewise, the sentencing court

must consider "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 . . . [and] 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," and "the possibility of rehabilitation . . . ." (Ibid.)

       In Miller the court explained that both Roper v. Simmons (2005) 543 U.S. 551, 575

(Roper)4 and Graham, supra, 560 U.S. 48, recognized the crucial issues are whether and

when a juvenile offender may be properly deemed incorrigible. There is admittedly a

great difficulty in "distinguishing at this early age between 'the juvenile offender whose

crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose

crime reflects irreparable corruption.' [Citations.] Although we do not foreclose a

sentencer's ability to make that judgment in homicide cases, we require it to take into




4      Roper, supra, 543 U.S. 551, 575, held that it is cruel and unusual punishment to
impose the death penalty on a defendant who committed a capital crime when under the
age of 18.
                                               20
account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison." (Miller, supra, 132 S.Ct. at p. 2469.)

                           C. Governing Case Law in California

       In Caballero, supra, 55 Cal.4th 262, our Supreme Court analyzed sentencing

issues for juvenile nonhomicide offenders, and applied the holding in Graham, supra,

560 U.S. 48. Caballero concluded that a sentence of 110 years to life, imposed on a

defendant who was a juvenile when committing nonhomicide crimes, should be treated as

a de facto LWOP sentence. There would be no opportunity for such a defendant to be

released from prison during his natural lifetime. (Cabellero, supra, at p. 268.)

       For juvenile homicide offenders, the court in Gutierrez, supra, 58 Cal.4th 1354,

concluded that section 190.5, subdivision (b) (setting the penalty for 16- or 17-year-old

juveniles who committed special circumstance murders as LWOP, "or, at the discretion

of the court, 25 years to life") should not properly be interpreted as creating a

presumption for an LWOP term. Instead, the sentencing court must conduct the

discretionary analysis described in Miller, of the " 'distinctive attributes of youth,' " in

deciding what sentence to impose upon such a juvenile offender. (Gutierrez, supra, at

pp. 1360-1361.) Miller recognizes that children are different from adults, even when they

commit terrible crimes or when they are being sentenced to prison. (Miller, supra, 132

S.Ct. at p. 2465; Gutierrez, supra, at p. 1380.)

       Based on these authorities, we next consider Appellant's claims he received a de

facto life sentence, or if he did not, his Eighth Amendment rights were nevertheless

violated by the manner in which this sentencing took place. (Gutierrez, supra, 58 Cal.4th

                                              21
at pp. 1391-1392 [informed discretion required of sentencing court].) We then reach his

proportionality analysis on whether the sentence is excessive and he is entitled to

resentencing. (Dillon, supra, 34 Cal.3d 441, 478; pt. IV, post.) We can then discuss his

equal protection claims. (Pt. V, post.)

                                              III

                         "DE FACTO" LIFE SENTENCE CLAIMS

                   A. Availability of Meaningful Opportunity for Parole

       Miller, supra, 132 S.Ct. at page 2469 establishes that the prohibition of cruel and

unusual punishment precludes the imposition of a mandatory LWOP sentence on a

juvenile offender. Where nonhomicide juvenile offenders are concerned, Graham

requires the state courts to give the juvenile offender a realistic parole opportunity to

demonstrate maturity and reform. (Graham, supra, 560 U.S. at pp. 75, 79, 82.)

Caballero, supra, 55 Cal.4th at page 268, indicates that not only expressly imposed

LWOP sentences, but also aggregate sentences that are functionally equivalent to LWOP,

are disallowed, such as where the first parole eligibility date would fall beyond the

offender's natural life expectancy.

       Although Appellant's aggregate sentence of 40 years to life is otherwise statutorily

authorized, he argues it amounts to such an inappropriate de facto, functional LWOP

sentence, when viewed in light of his youth at the time of the commission of the offense.

This claim of a de facto LWOP sentence has several aspects, which we address in turn.

First, what is the appropriate measure for his life expectancy? What are the possible

parole eligibility dates he can anticipate, and will they fall within his natural lifetime, to

                                              22
avoid these Eighth Amendment problems? This requires consideration of whether the

provisions of section 3051, subdivision (b) cure or moot any potential unconstitutionality

in the proceedings.

                                     B. Life Expectancy

       The statement in mitigation that Appellant presented to the trial court did not

address any statistical methods of estimating life expectancy. He merely argued he was

entitled to an opportunity at parole while he is still young enough to have a life outside of

prison. However, Appellant's opening brief presents new statistical analyses that point

out that life expectancy for an incarcerated individual is lower than the life expectancy

for a free person. Specifically, a male California inmate's average life expectancy is

around 55-57 years, while an average American male born in 1997, when Appellant was

born, can expect to live around 73-76 years. In the respondent's brief, the attorney

general likewise presents actuarial life tables and case authority discussing varying life

expectancies.

       The initial problem with these arguments is that they are not supported by this

record. In Caballero the Supreme Court analyzed life expectancy issues for juvenile

offenders who were sentenced to long prison terms, and defined that term as "the normal

life expectancy of a healthy person of defendant's age and gender living in the United

States." (Caballero, supra, 55 Cal.4th at p. 267, fn. 3.) The federal cases do not yet

provide guidance on what constitutes a meaningful opportunity for parole within a

lifetime, and the state courts are in the process of addressing those issues. (Graham,

supra, 560 U.S. at p. 75; Alatriste et al, supra.)

                                              23
       On de novo review of these sentencing and constitutional issues, we could

appropriately consider new authorities if necessary and if properly presented. However,

such data are not now before us and it is not necessary to go beyond this record. Other

factors, as we next explain, lead us to conclude that Appellant's sentence is not so harsh

as to amount to a de facto life sentence without a meaningful opportunity for parole.

       Under this developing Eighth Amendment approach, we are required to evaluate

the harshness of the challenged sentence, in terms of whether any meaningful

opportunities for parole, within the natural lifetime of the juvenile offender, are allowed

by it. Only a few juvenile offenders can properly be identified at sentencing as those

" 'whose crime reflects irreparable corruption,' " and who must therefore receive the

harshest penalty, a true LWOP. (Gutierrez, supra, 58 Cal.4th 1354, 1379; Miller, supra,

132 S.Ct. at p. 2469.)

     C. Release Possible after Less than 40-year Term; Work Time Credit Potential

       Appellant was first incarcerated at the age of 15, then sentenced at age 16 to a

term of 40 years to life in prison. Existing parole provisions would allow his 40-year

term to be reduced by credits for work time served, that will enable him to seek parole

when he reaches age 49 or 50. (§ 2933.1 [15 percent credit toward sentence is possible].)

The trial court appropriately recognized that despite a regrettably long term of future

imprisonment, Appellant will still have a decade or two remaining in his normal life

expectancy, in which he will be able to seek and possibly obtain release on parole. That

fact distinguishes this case from Caballero in which it would have been impossible for



                                             24
the defendant to become eligible for parole within his natural life expectancy (110-years-

to-life sentence). (Caballero, supra, 55 Cal.4th at pp. 265-268.)

       We agree with the trial court that Appellant will physically be able to reach

eligibility for parole within his natural lifetime, in less than 40 years. Even though he is

"exposed" to the possibility of a lifetime in prison, his is not effectively an LWOP

sentence. The U.S. Supreme Court in Graham and Miller stated that the Eighth

Amendment issues before it arose only in the context of juvenile offenders who were

sentenced to life in prison without the possibility of parole. As Graham explained, "[a]

State is not required to guarantee eventual freedom to a juvenile offender convicted of a

nonhomicide crime[,]" but "must . . . give defendants . . . some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation." (Graham, supra, 560

U.S. at p. 75, italics added.) Like Graham, Miller also applies only to "lifetime

incarceration without possibility of parole." (Miller, supra, 132 S.Ct. at p. 2475, italics

added.) In deciding that Appellant has not been sentenced to "the harshest possible

penalty" (see id. at p. 2469), either expressly or in a de facto manner, we do not reach the

issue of how many years of life expectancy must remain to a defendant after parole

eligibility is developed; is one decade or two decades enough? (See People v. Perez

(2013) 214 Cal.App.4th 49, 58 (Perez) ["How much life expectancy must remain at the

time of eligibility for parole of course remains a matter for future judicial

development . . . ."; italics omitted].) We decide only that Appellant's case falls within

existing constitutional parameters of a permissible sentence to be imposed upon a

juvenile offender.

                                             25
       In Perez, supra, 214 Cal.App.4th 49, the court evaluated constitutional challenges

to a sentence of 30 years to life that was imposed for nonhomicide crimes the juvenile

offender committed at age 16. The court concluded that such a sentence did not offend

cruel and unusual punishment prohibitions. The youthful defendant would become

eligible for release from prison at age 47, and therefore the court disagreed that his

sentence was "a 'functional' or 'de facto' " LWOP sentence, to which Miller, supra, 132

S.Ct. 2455, Graham, supra, 560 U.S. 48, or Caballero, supra, 55 Cal.4th 262 would

apply. (Perez, supra, at p. 58.) Rather, the court found a meaningful distinction between

LWOPs and very long sentences that nevertheless include an eligibility for parole. The

court opined that in the latter situations, "there is some meaningful life expectancy left

when the offender becomes eligible for parole. We are aware of—and have been cited

to—no case which has used the Roper–Graham–Miller–Caballero line of jurisprudence

to strike down as cruel and unusual any sentence against anyone under the age of 18

where the perpetrator still has substantial life expectancy left at the time of eligibility for

parole. [¶] . . . [W]e can safely say that in the case before us there is plenty of time left

for Perez to demonstrate, as the Graham court put it, 'some meaningful opportunity to

obtain release based on demonstrated maturity and rehabilitation.' " (Perez, supra, at

p. 58; note that case was decided in 2013, before the effective date of § 3051 et seq.; see

pt. III.D, post.)

       Even under the sentence as imposed, it remains possible that Appellant will be

eligible for parole when he reaches age 49 or 50, before he is very close to the end of his

normal life expectancy. (§ 2933.1 [15 percent credit toward sentence is possible].) For

                                              26
these reasons, Eighth Amendment prohibitions were not triggered for this nonhomicide

offender, and the sentencing court was not placed under a constitutional obligation to

conduct the analysis described in Miller, supra, 132 S.Ct. 2455, before imposing this

sentence, even as to the mandatory terms.

         D. Release Possible After 25-year Term; Section 3051, Subdivision (b)

       The sentencing in this case was conducted before the effective date of Senate Bill

No. 260, which enacted section 3051 and related sections. (Stats. 2013, ch. 312, § 4,

pp. 2660-2662, eff. Jan. 2014.) With certain exceptions not applicable here, section 3051

provides an opportunity for a juvenile offender to be released on parole irrespective of the

sentence imposed by the trial court. The statute requires the Board of Parole Hearings to

conduct "youth offender parole hearings" on a schedule that depends on the length of the

defendant's sentence. As relevant here, youth offender parole hearings are held during

the 25th year of incarceration for a prisoner serving a life term of 25 years to life (§ 3051,

subd. (b)(3)).

       Since Appellant began his incarceration at age 15, it appears that he will be

entitled to seek a youth offender parole hearing under section 3051, subdivision (b)(3),

when he reaches the age of 40. He continues to argue that such an administrative type

hearing is inadequate, and he was entitled to an exercise of judicial discretion to consider

the factors outlined in Miller, supra, 132 S.Ct. 2455, in imposing sentence, and at the

"outset" of his incarceration. (Graham, supra, 560 U.S. at p. 75.) He claims that

separation of powers principles should prevent the Legislature from interfering with his

rights to the exercise of informed discretion by the sentencing court, by enacting such a

                                             27
statute that may replace it. (Gutierrez, supra, 58 Cal.4th at p. 1391 [informed discretion

requirement].)

       In Gutierrez the court was considering a statutory issue, whether a presumption

under section 190.5, subdivision (b) should govern the imposition of LWOP sentences on

juvenile homicide offenders. (Gutierrez, supra, 58 Cal.4th at pp. 1385-1387.) Although

the Legislature had addressed a similar problem by enacting section 1170, subdivision

(d)(2), to provide eventual relief to some such offenders, the court ruled that the LWOP

sentences before it had been incorrectly imposed under a belief that the presumption set

forth in section 190.5, subdivision (b) required that sentence, and the court disapproved

previous mistaken case law. (Gutierrez, supra, at pp. 1386-1387.) Because those

juvenile offenders were exposed to the harshest possible penalties under section 190.5,

subdivision (b), the high court decided that they could not be imposed without a judicial

exercise of allowable discretion under Miller, supra, 132 S.Ct. 2455, together with the

applicable statutory provisions (§ 190.5, subd. (b); Gutierrez, supra, at pp. 1390-1391.)

That is not this case, because Appellant's current sentence still allows for a meaningful

opportunity for parole within his natural life time, which does not amount to the harshest

possible penalty that would trigger such a Miller inquiry.

       Unlike the sentence in Caballero, supra, 55 Cal.4th 262, of 110 years to life, the

sentencing court did not impose such a lengthy sentence as to impliedly preclude

Appellant from ever becoming eligible for parole. (Id. at p. 268.) No judgment has been

made, expressly or impliedly by the number of years imposed, that Appellant can never



                                            28
be released on parole. His sentence is subject to statutory parole provisions that will

become available within his natural life expectancy.

    E. Comparison: Administrative Parole System versus Initial Judicial Sentencing

       Appellant further argues there is no assurance that current parole provisions will

not be repealed or replaced in the future, and therefore they cannot be viewed as a

potential solution to his claims of unconstitutionality of his sentence. He relies on the

discussion in Gutierrez, supra, 58 Cal.4th 1354, concerning the invalidity of a

mandatory, nondiscretionary LWOP sentence imposed on a juvenile homicide offender.

There, the court said the identified constitutional problem, the omission of LWOP

sentencing discretion concerning a juvenile offender, could not be remedied by the

application of a statute that allows a potential mechanism for recall and resentencing after

15 to 24 years (in that case, § 1170, subd. (d)(2) [to allow LWOP sentences imposed on

juveniles to be recalled and corrected]). (Gutierrez, supra, at pp. 1384-1387.)

       In Gutierrez, the court explained: "Graham spoke of providing juvenile offenders

with a 'meaningful opportunity to obtain release' as a constitutionally required alternative

to—not as an after-the-fact corrective for—'making the judgment at the outset that those

offenders never will be fit to reenter society.' [Citation.] . . . Neither Miller[, supra, 132

S.Ct. at p. 2469] nor Graham[, supra, 560 U.S. at p. 75] indicated that an opportunity to

recall a sentence of life without parole 15 to 24 years into the future would somehow

make more reliable or justifiable the imposition of that sentence and its underlying

judgment of the offender's incorrigibility 'at the outset.' " (Gutierrez, supra, 58 Cal.4th at

p. 1386; italics omitted.)

                                              29
       Although Appellant claims that such a statutory remedy, a future youth offender

parole hearing (§ 3051, subd. (b)(3)), is insufficient to protect his Eighth Amendment

rights, he cannot make such a showing unless the initial lengthy sentence he received was

imposed defectively, i.e., without essential consideration of the Miller factors. However,

he cannot show that the court imposed such a lengthy term as would prevent his

becoming eligible for parole within his natural lifetime and that would accordingly

invoke the Miller rubric. He is not in the position of a juvenile offender who was entitled

to the exercise of judicial discretion in sentencing under Miller, supra, 132 S.Ct. 2455,

before the selection of any LWOP term. Moreover, we cannot speculate that he will

incur prejudice in the future, due to any possibility that some relevant evidence about his

youthful characteristics may become unavailable at a future parole hearing. The point is

that he is not entitled to recall and judicial resentencing, because the sentence imposed

was not unlawful.5

       Since Appellant does not have an LWOP sentence, section 3051, subdivision (b)

provisions will become available to him. (See § 3051, subd. (h) [the procedures in

§ 3051, subd. (b) are inapplicable to LWOP sentences].) Under section 3051, subdivision

(g), an offender may seek a subsequent hearing, if initial applications for parole are

denied. Whatever potential release dates may eventually apply for Appellant, pursuant to

statute and the circumstances of this case, they appear to fall within his natural lifetime,



5      In his reply brief, Appellant cites to People v. Hernandez (S224383), in which a
petition for review was granted on April 1, 2015. Further action in that case was deferred
pending consideration and disposition of Alatriste et al.
                                             30
and to comport with due process requirements. Eighth Amendment protections were not

triggered by the manner in which this sentence was imposed.

                                              IV

  CLAIMS AGAINST SENTENCE THAT IS LENGTHY BUT NOT "DE FACTO LWOP"

                          A. Was Sentence Incorrectly Imposed?

       Appellant next argues that the trial court failed to understand that it retained some

degree of discretion in sentencing, and that Miller would authorize such an inquiry in his

case. He contends the mandatory sentence of 40 years to life, even if not a de facto life

term, offends constitutional principles, because in the exercise of an informed discretion,

a sentencing court must " 'take into account how children are different.' " (Gutierrez,

supra, 58 Cal.4th at p. 1390.) The factors identified in Miller, supra, 132 S.Ct. 2455,

pertain to the " 'distinctive attributes of youth,' " as they affect culpability and punishment

for homicide, and presumably for other offenses. (Gutierrez, supra, at pp. 1360-1361.)

       Appellant's argument that the sentencing court had inherent discretion and the duty

to consider the Miller factors may be based on the high court's language in Graham, to

the effect that juvenile offenders must have "a 'meaningful opportunity to obtain release'

as a constitutionally required alternative to—not as an after-the-fact corrective for—

'making the judgment at the outset that those offenders never will be fit to reenter

society.' " (Gutierrez, supra, 58 Cal.4th at p. 1386; italics omitted.) Miller prohibits

imposing the harshest of prison sentences (LWOP) as a mandatory scheme, and it thus

requires some discretion to be exercised by the trial court in sentencing. (Miller, supra,

132 S.Ct. at p. 2469.)

                                              31
         We disagree that the mandatory nature of Appellant's sentence, alone, requires that

the Eighth Amendment prohibitions apply. A sentence of 40 years to life may eventually

become a true life sentence, but not in every case, because of any available credits and

parole opportunities. The length of the terms required by statute did not add up to such a

mandatory time period of incarceration as to place all parole opportunities beyond

Appellant's normal lifespan, even when his age at the time of the commission of the

offense is taken into account. (§§ 664/187, subd. (a); 12022.53, subd. (d).)

         The court at sentencing was made aware of relevant youth-related factors about

Appellant. It was not making an express or implied determination that Appellant was

incorrigible and would never be entitled to be released. His exposure to a potential life

term was not of the magnitude that required a discretionary evaluation, at sentencing, of

the factors that would potentially justify imposition of the harshest possible punishment

under Miller. Appellant has no basis to claim that the trial court omitted to exercise

required discretion in imposing the sentence. (Gutierrez, supra, 58 Cal.4th at pp. 1379,

1391.)

                        B. Is Sentence Disproportionate to the Crime?

         Appellant next describes his sentence as disproportionate in light of earlier

authorities arising out of cruel or unusual punishment prohibitions, such as Dillon, supra,

34 Cal.3d 441, 478 and In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch). These cases stand

for the proposition that a punishment violates the California Constitution where it is "so

disproportionate to the crime for which it is inflicted that it shocks the conscience and

offends fundamental notions of human dignity." (Ibid.; People v. Carmony (2005) 127

                                              32
Cal.App.4th 1066, 1085.) To show a sentence is relatively cruel or unusual under that

disproportionality approach, comparisons are required of "(1) the nature of the offense

and the 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.)

       In Graham, supra, 560 U.S. at pages 59 to 60, the Supreme Court acknowledged

the Eighth Amendment has a " 'narrow proportionality principle,' that 'does not require

strict proportionality between crime and sentence' but rather 'forbids only extreme

sentences that are "grossly disproportionate" to the crime.' " Also, in "determining

whether a sentence for a term of years is grossly disproportionate for a particular

defendant's crime, [a] court must begin by comparing the gravity of the offense and the

severity of the sentence. [Citation.] '[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. [Citation.] If this comparative analysis 'validate[s] an initial judgment that

[the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Graham,

supra, 560 U.S. at p. 60.) "The gross disproportionality principle reserves a

constitutional violation for only the extraordinary case." (Lockyer v. Andrade (2003) 538

U.S. 63, 77.)

       In the disproportionality analysis factor that considers a defendant's background,

youth is a valid consideration. (Graham, supra, 560 U.S. at pp. 60-61; Dillon, supra, 34

                                             33
Cal.3d at p. 479 [identifying factors such as a defendant's "age, prior criminality, personal

characteristics, and state of mind"].) However, "Successful challenges based on the

traditional Lynch–Dillon line are extremely rare." (Perez, supra, 214 Cal.App.4th 49,

60.) In Perez, the court rejected an argument by the 16-year-old defendant that his

sentence of 30 years to life, for forcible sex offenses, must be reduced under basic Eighth

Amendment principles. The court declined to rule that his sentence was unconstitutional

or grossly disproportionate. (Perez, supra, at pp. 57-58.) The court deemed it significant

that Perez would become eligible for parole by age 47, and thus his sentence was not

among the "most severe" of penalties that would amount to de facto LWOP

imprisonment or be disproportionate to the offense.

       Appellant attempts to distinguish Perez, supra, 214 Cal.App.4th 49, saying it

wrongly failed to acknowledge that under Graham, supra, 560 U.S. 48 and Miller, the

courts recognize that juveniles are fundamentally different from adults and should be

treated differently than adults, for purposes of imposing punishment. (See Miller, supra,

132 S.Ct. at p. 2470.) However, in neither Perez's case nor in this case were the outer

limits imposed by Miller on punishment violated. The sentences imposed in each

instance still allowed the juvenile offenders to have future meaningful opportunities to

seek parole, within a natural lifetime. (Id. at p. 2469.)

       Appellant next relies on evidence about his personal characteristics to say that the

lengthy sentence is not roughly proportionate to his culpability. He points to the record

showing that many of his immediate and extended family members were ESR-affiliated,

and that his "prior criminal record was relatively benign considering the familial and peer

                                              34
pressures at play. Prior to the instant offense, he had not been convicted in adult court, or

adjudicated guilty in juvenile court, of any prior crimes." He told the probation officer

before sentencing that he was not gang affiliated.

       This proportionality argument by Appellant does not adequately address "the

nature of the offense" as well as his background, nor does it analyze other relevant factors

(punishment for more serious offenses, compared to punishment for similar offenses in

other jurisdictions). (In re Nunez, supra, 173 Cal.App.4th 709, 725.) Attempted murder

is a serious and dangerous crime, and we cannot say the sentence imposed was grossly

disproportionate. Appellant has not shown the circumstances of the offense or of his

background were so unusual and mitigating that the statutorily mandated sentence is

unconstitutional. His sentence does not represent an Eighth Amendment constitutional

violation.

                                              V

                             EQUAL PROTECTION CLAIMS

                                    A. Issues Presented

       Both federal and state constitutional provisions protect the right to equal

protection of law. " ' " 'The first prerequisite to a meritorious claim under the equal

protection clause is a showing that the state has adopted a classification that affects two

or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry

is not whether persons are similarly situated for all purposes, but 'whether they are

similarly situated for purposes of the law challenged.' " ' " (People v. Jeha (2010) 187



                                             35
Cal.App.4th 1063, 1073, italics omitted; People v. McKee (2010) 47 Cal.4th 1172, 1218-

1219.)

         Appellant seeks to have us construe section 1170, subdivision (d)(2)(A)(i) in a

manner that would extend its terms to his situation, based on a strict scrutiny analysis.

Doing so might give him an earlier opportunity to seek parole (after 15 years) than that to

which he would otherwise be entitled. (See Gutierrez, supra, 58 Ca1.4th 1354, 1373 [if a

" ' "statute is susceptible of two constructions, one of which will render it constitutional

and the other unconstitutional in whole or in part, or raise serious and doubtful

constitutional questions, the court will adopt the construction which, without doing

violence to the reasonable meaning of the language used, will render it valid in its

entirety, or free from doubt as to its constitutionality, even though the other construction

is equally reasonable" ' "].)

         Section 1170, subdivision (d)(2)(A)(i) allows those juvenile offenders who were

sentenced to LWOP (but see fn. 3, ante, for exceptions), to seek recall and resentencing

after 15 years of incarceration: "When a defendant who was under 18 years of age at the

time of the commission of the offense for which the defendant was sentenced to

imprisonment for life without the possibility of parole has served at least 15 years of that

sentence, the defendant may submit to the sentencing court a petition for recall and

resentencing." (§ 1170, subd. (d)(2)(A)(i); italics added.)

         Appellant compares section 1170, subdivision (d)(2)(A)(i) to the parole provision

that will presumably apply to his case (i.e., § 3051, subd. (b)(3)), and suggests: "[B]oth

provisions were enacted in response to evolving Eighth Amendment jurisprudence . . . ,"

                                              36
and therefore the aim of both sections is to give those juvenile offenders who were

sentenced to life some opportunity to obtain release, by showing they have matured and

changed. His arguments are again premised on the contention that he received a de facto

LWOP sentence.

       Appellant thus argues that the terms of section 1170, subdivision (d)(2)(A)(i), as

they are written, infringe upon a fundamental right, his liberty interest. In such a case,

"the state bears the burden of establishing not only that it has a compelling interest which

justifies the law, but that the distinctions drawn by the law are necessary to further its

purpose." (People v. Olivas (1976) 17 Cal.3d 236, 243 (Olivas); italics omitted.)

Appellant argues that the statutory scheme impermissibly allows for disparate limitations

on parole and/or resentencing opportunities for different classes of life-sentenced juvenile

offenders, and states in his brief as follows: "Assuming strict scrutiny applies,

respondent cannot sustain its burden of establishing a compelling state interest to exclude

from the purview of section 1170, subdivision (d)(2) those juveniles who are sentenced

for arguably less serious crimes to indeterminate life sentences with the possibility of

parole." (Original italics.)

       Appellant further argues that even if the alternative "rational relationship" test for

equal protection analysis applies, the difference in treatment between these two

categories of juvenile offenders should not survive scrutiny under the equal protection

clause, in light of the similarity between the statutory purposes of section 1170,

subdivision (d) and section 3051, subdivision (b).



                                              37
                                         B. Analysis

        To evaluate these arguments, we apply rules of statutory interpretation for

resolving questions of law, on de novo review. (Bialo v. Western Mutual Ins. Co. (2002)

95 Cal.App.4th 68, 76-77.) We seek to ascertain and carry out the Legislature's intent, by

looking first to the words of the statute and giving them the usual and ordinary meaning.

(Code Civ. Proc., § 1859; People v. Garcia (2002) 28 Cal.4th 1166, 1172.) In case of

ambiguity in the text of the statute, we resort to its legislative history. (Gutierrez, supra,

58 Cal.4th at p. 1369.)

        We have already discussed above the reasons why we cannot accept Appellant's

contention that he received a sentence that is a de facto or "functional" equivalent to an

LWOP sentence. (Pt. III.C, ante.) Also with respect to his equal protection arguments,

the plain language of section 1170, subdivision (d)(2)(A)(i) does not support his claim

that he is entitled to the benefits described within it. The statutory language does not

suggest that the Legislature intended for its provisions, which provide a specific remedy

to the population of juvenile offenders who were expressly given LWOP terms, also to

become applicable to other types of sentences not mentioned (e.g., "de facto" equivalents

of LWOP). If the Legislature had intended that result, it could have so provided. It is not

"the province of this court to rewrite the statute to imply an intent left unexpressed [by

the Legislature.] . . . The courts may not speculate that the Legislature meant something

other than what it said. Nor may they rewrite a statute to make it express an intention not

expressed therein." (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402,

412.)

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       As already explained, Appellant's sentence, even considering its mandatory terms

before parole eligibility, will be administered under applicable parole provisions. Section

3051, subdivision (b)(3) will provide him with parole eligibility after 25 years of

incarceration. Alternatively, section 2933.1 may provide him with parole eligibility at a

later time. In either case, the sentence imposed will not preclude him from having an

opportunity to seek parole within his natural lifespan.

       Although section 1170, subdivision (d)(2)(A)(i) and section 3051, subdivision (b)

arose out of similar policy concerns, their purposes address differently situated prisoners

who were juvenile offenders. (Olivas, supra, 17 Cal.3d 236, 243.) We are not free to

add to the language of these sections or to construe them to apply to situations outside of

their stated scope. (Mutual Life Ins. Co. v. City of Los Angeles, supra, 50 Cal.3d 402,

412.) We apply the law as it now stands, and do not speculate on whether those

provisions may be changed in the future.

       Appellant's sentence, even though lengthy, does not have the main characteristic

of an LWOP sentence, i.e., that it would preclude him from any opportunity to seek

parole within his natural lifespan. He does not show that he is similarly situated to

offenders sentenced to LWOP, for purposes of the law challenged, section 1170,

subdivision (d)(2)(A)(i). (People v. McKee, supra, 47 Cal.4th 1172, 1218-1219.) We

again reject his argument that any remedies he may have under section 3051,

subdivision (b) or section 2933.1 are inadequate because they will involve administrative

action. The initial judicial sentencing that he received does not offend the Eighth

Amendment or equal protection principles.

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                                DISPOSITION

    The judgment is affirmed.




                                              HUFFMAN, Acting P. J.

WE CONCUR:


                   NARES, J.


              McDONALD, J.




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