1

Filed 11/1/16 (unmodified opn. attached) CERTIFIED FOR PUBLI CATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JAVANTE MARQUIS SCOTT , Defendant and Appellant. E06 0028 (Super.Ct.No. RIF148527 ) ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

THE COURT The opinion filed in this matter on October 12 , 2016 is modified as follows: On page 19 , in the second full paragraph, delete the fourth and fifth full sentences, beginning with “Although the dissent

. . .” and replace them with the following :

Graham mandates the chance to obtain release based on demonstrated maturity and rehabilitation

.2

On page 20, in the paragraph beginning with “Third, Miller

. . ., ” the sixth sentence beginning with, “We disagree with the dissent.

. .” is now modified to read as follows:

Miller requires the trial court to make an individualized sentencing decision as to juvenile offenders before imposing

a de facto LWOP sentence in a nonhomicide case.
E xcept for th ese modification s , the opinion remains unchanged. This modification does not effect a change in judgment.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.

We concur: HOLLENHORST J. McKINSTER J.1

Filed 10/12/16 (unmodi fied version) On remand CERTIFIED FOR PUBLI CATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JAVANTE MARQUIS SCOTT, Defendant and Appellant. E060028 (Super.Ct.No. RIF148527) OPINION

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions

. Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr . and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent. Defendant and appellant Javante Marquis Scott appeals after the trial court, at a resentencing hearing, imposed the same 120

- years - to

- life term as at his original2

sentencing . Defendant was a minor at the time he committed his crimes, but was tried as an adult and convicted of three counts of attempted murder with firearm enhancements

. Defendant contends the sentence is cruel and unusual because it imposes a de facto life

se ntence on him as a juvenile offender. The People argue that a new statute, Penal Code section 3051, 1 which guarantees defendant a future parole eligibility hearing, renders the sentence constitutional. We hold that section 3051 complies with the central constitutional requirement that the State provide a juvenile offender with a meaningful opportunity to obtain release within his or her expected lifetime. For this reason we affirm , with directions that the trial court determine whether defendant was affo rded an adequate opportunity to make a record that complies with the requirements set forth in People v. Franklin (2016) 63 Cal.4th 261 , 283

- 284

. 2
F ACTS AND P ROCEDURAL H ISTORY On February 13, 2 009, defendant was 16 years old

. Around 10:00 that night, defendant was riding in a car driven by an adult friend. He told the friend that he wanted to “dump” some Mexicans, meaning he wanted to shoot or kill someone. Defendant told the friend where to drive, pulled a gun from his pocke t, and said “Watch this, watch these

1 All section references are to the Penal Code unless otherwise indicated.

2 We deny defendant’s motion for judicial notice, filed September 1, 2016. The probation report and minutes from the initial sentencing are not relevant to this court’s very narrow role in making a limited remand to the trial court following People v. Frank lin, supra, 63 Cal.4th at pages 283

- 284. (Evid. Code, § 350)3

dicks run.” 3 At this time, three Hispanic youths were walking on University Avenue in Riverside on their way to a fast food restaurant. None of the youths were gang members. Defendant fired four shots at the youths, hitting one in the lower back and seriously injuring him. At trial, defendant admitted firing the shots, but testified that he did so only because the driver of the car told him to and that he “didn’t intend to hit nobody.”
Evidence at trial showed that d efendant’s father and older brother were or had been member s of a local Crips gang. Defendant’s father was known by the moniker “Tiptoe.” Defendant’s brother was known by the moniker “Lil’ Tiptoe.” Although defendant himself did not have any gang tattoo s, and he denied gang membership, he had come to be known as “ Baby T iptoe.” A gang expert testified at trial that defendant committed the shootings for gang purposes. Defendant wrote rap lyrics about cruising around in a car and shooting rival gang membe rs. His cell phone identified him as “Baby Duke Killa.”
On September 15 , 2010, the jury convicted defendant of a number of charges and found true a number of enhancement allegations , as follows. First, the jury convicted defendant of three counts of atte mpted murder ( §§ 664/187, subd. (a)) , each with a firearm enhancement (§ 12022.53 , subds. (d) & (e) ) and a gang enhancement (§186.22, subd. (b)). Second, the jury convicted defendant of one count of gang participation

3 Defendant and other members of his gang referred to members of the Hispanic gang, the Tiny Dukes, as “Tiny Diccs” or just “Diccs.”4

(§ 186.22, subd. (a)). Third, the ju ry convicted defendant of t wo counts of assault with a firearm (§ 245, subd. (b)) , each with a firearm enhancement (§ § 12022.5, subd. (a), 12022.55) and a gang enhancement (§ 186.22, subd. (b)), and one with a great bodily injury enhancement (§ 12022.7, su bd. (a)). On November 5, 2010, t he trial court sentence defendant to 1 20 years to life in prison, as follows: 15 years to life for each of the three attempted murders, plus 25 years to life for each of the three firearm enhancements , all to run consecutively . The court imposed a concurrent sentence of three years for the gang participation and imposed but stayed the sentences for the assault counts pursuant to section 654. Defendant appealed, and in opinion E052276, dated May 17, 2012, this court modified the sentence to stay the term for gang participation pursuant to section 654. On April 22, 2013, defendant filed a petition for writ of habeas corpus . Defendant sought resentencing, arguing that the imposition of an indeterminate sentence of 120 years to life is a de facto life sentence, which recent case law from the California Supreme Court held violated the Eight Amendment prohibition against cruel and unusual punishment when imposed on a juvenile for a non homicid e crime

. On June 28, 2013, the Riverside Superior Court granted the petition , vacated defendant’s sentence and o rdered the trial court to hold a resentencing hearing. While the hearing was pending, the Legislature passed, and the governor signed, legisl ation enacting section 3051, which provides for juvenile offenders in defendant’s5

position to be afforded a parole hearing after a maximum wait of 25 years , depending on the sentence imposed

. At the r esentencing hearing held on September 20, 2013 , the pro secutor took the position that the enactment of section 3051 cured the constitutional deficiency posed by defendant’s sentence. Defense counsel essentially conceded, stating “So he appears to fall within this legislation, and I’ll submit to the Court’s di scretion, Your Honor, as to whether this issue was moot .” The trial court accepted th e People’s argument, found that defendant would be eligible for a parole review in 25 years under section 3051 , and

resentence d defendant to 120 years to life

. Defendan t now appeals.
D ISCUSSION I. Standard of Review The issue presented is whether defendant’s sentence violates the constitutional prohibitions against cruel and unusual punishment, as explained in Graham v. Florida (2010) 560 U.S. 48 ( Graham ) , Miller v. Alabama (2012) 567 U.S. ___, 132, S.Ct. 2455 ( Miller ), and People v. Caballero (2012) 55 Cal.4th 262 ( Caballero ) , or whether the constitutional concerns have been addressed by section 3051. Because the issue is one of constitutional and statutory inte rpretation, it presents a question of law, which we review de novo. (See Finberg v. Manset (2014) 223 Cal.App.4th 529, 532 [“We review de novo questions of interpretation and constitutionality of a statute”]; see also Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49 Cal.4th 277, 287 [“We6

review questions of law about the meaning of Proposition 218 [adopting provisions of the California Constitution], as other questions of law, de novo”].)

II. Background: Graham , Miller , and Cab allero We first examine the salient United States and California Supreme Court precedents on the issue of life sentences without parole , both for juveniles convicted of nonhomicide offenses and those convicted of homicide offenses

. In Graham , the defenda nt was convicted of armed burglary with assault or battery, and attempted armed robbery , both committed when he was 16 years old. Although the trial court initially sentenced the defendant to probation, the court later revoked his probation after he viola ted its terms by committing other crimes. The trial court then imposed the maximum sentence on each count: life imprisonment for the armed burglary, and 15 years for the attempted armed robbery. ( Graham , supra , 560 U.S. at
p. 57 .) “Because Florida has abolished its parole system, [citation] a life sentence gives a defendant no possibility of release unless he is granted executive clemency.” ( Ibid .) The United States Supreme Court held that “‘the task of interpreting the Eighth Amendment remains [the court’s] responsibility.’” ( Graham , supra , 560 U.S. at p. 67. ) “The judicial exercise of independent judgment requires consideration of the culpability
of the offenders .

. . in light of their crimes and characteristics, along with the severity of the p unishment in question.” ( Ibid .) The court held that it was clearly established that juveniles have lessened culpability compared to adult offenders. Consequently, they are less deserving of the most severe punishments. “As compared to adults, juveniles have a7

‘lack of maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters are ‘not as well formed.’” ( Id

. at p. 68. ) The court found it “‘difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” ( Ibid .) Juve nile offenders cannot therefore be reliably classified as among the worst offenders. ( Ibid .) As to the culpability of the offenders in terms of the crimes and characteristics under review, nonhomicide crimes that do not involve killing, intent to kill, or foreseeing that death could occur “are categorically less deserving of the most serious forms of punishment than are murderers.” ( Graham , supra , 560 U.S. at p. 69 .) Some nonhomicide crimes do involve very serious harm, but such crimes are not as mora lly depraved as murder, because of a murder’s “‘severity and irrevocability.’” ( Ibid .) “This is because ‘[l]ife is over for the victim of the murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life .

. . is not over and normally is not beyond repair.’” ( Ibid .) A juvenile offender “who did not kill or intend to kill has a twice diminished moral culpability,” because of both the age of the offender and the nature of the crime. ( Ibid .) With respect to punishment, life without the possibility of parole (LWOP) is the second most severe penalty allowed under the law. “Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average8

serve more years of his life in prison th an an adult offender. A 16

- year - old and a 75

- year - old each sentenced to life without parole receive the same punishment in name only.” ( Graham , supra , 560 U.S. at p. 70 .) The Supreme Court found the penological justifications for such a sentence somewha t lacking with respect to juvenile offenders. The objective of retribution should be directly related to personal culpability. The case for retribution is weaker with a minor as compared to an adult; it is weaker still if the minor did not commit a homic ide. ( Id

. at pp. 71

- 72. ) Deterrence also does not justify such a severe sentence. Juveniles are less likely to understand or to be able to take account of deterrence, because of their lack of maturity, underdeveloped sense of responsibility, and lesser ability to consider consequences. “This is particularly so when [the most severe] punishment is rarely imposed.” ( Id . at p. 72. ) Incapacitation, a third possible penological goal, also did not justify an LWOP sentence for juvenile nonhomicide offenders. “To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentence r to make a judgment that the juvenile is incorrigible. ” The court remarked that such a judgment is questionable, even for expert psychologists, and noted that “‘incorrigibility is inconsistent with youth.’” ( Id

. at pp. 72

- 73. ) A penalty of life without parole “forswears altogether the rehabilitative ideal,” by “denying the defendant the right to reenter the community,” and making “an irrevocable judgment about [the] person’s value and place in society.” ( Id . at p. 74 .) An LWOP sentence for a juvenile nonhomicide offender is incompatible with rehabilitation as a penological goal. LWOP prisoners are, for example, forecl osed9

from vocational training or other programs and rehabilitative services that are available to other prisoners. In light of a juvenile’s reduced culpability and capacity for change, an LWOP sentence, and concomitant exclusion from rehabilitative opport unities, is inappropriate for juvenile nonhomicide offenders. ( Id

. at p. 74. ) The United States Supreme Court ruled that, although a state is not required to guarantee eventual release to a juvenile nonhomicide offender , “What the State must do,
howeve r, is give [juvenile] defendants .

. . some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.” ( Graham , supra , 560 U .S. at p. 75 .) The court observed that some juvenile nonhomicide defendants might actually turn out to be incarcerated for life. “Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration f or the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.” ( Ibid .) The court fashioned a categorical rule that “gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunit y to achieve maturity of judgment and self

- recognition of human worth and potential.

. . . Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection10

which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life’s end has little incentive to become a responsible individual. In some prisons, moreover, the system itself becomes complicit in the lack of development. As noted above, .

. . it is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole considera tion. A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender’s crime is reinforced by the prison term.” ( Id . at p. 79 .) The United States Supreme Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it mu st provide him or her with some realistic opportunity to obtain release before the end of that term.” ( Id . at p. 82 .)
In Miller , the United States Supreme Court addressed the imposition of LWOP terms for juveniles who were convicted of homicide offenses. The court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” ( Miller , supra , 132 S.Ct. at p. 2460 .) The court began with the principle that “children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, ‘they are less deserving of the most11

severe punishments.’” ( Miller , supra , 132 S.Ct. at p. 2464.) The United States Supreme Court line of precedents on that issue set out “three significant gaps between juveniles and adults. First, children have a ‘“lack of maturity and an underdeveloped sense of responsibility,” ’ leading to recklessness, impulsivity, and heedless risk

- taking. [Citation.] Second, children ‘are more vulnerable .

. . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own

en vironment’ and lack the ability to extricate themselves from horrific, crime

- producing settings. [Citation.] And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ [Citation.]” ( Ibid .) The Miller court stated, “To be sure, [the] flat ban on life without parole applied [in Graham , supra , 560 U.S. 48] only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm. [Citation.] But none of what it said about children

— about their distinctive (and transitory) mental traits and environmental vulnerabilities

— is crime

- specific. Those features are evident i n the same way, and to the same degree, when [e.g.,] a botched robbery turns into a killing. So Graham ’s reasoning implicates any life

- without

- parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” ( Mill er , supra , 132 S.Ct. 2455 at p. 2465.) Sentencing schemes that mandate LWOP for juveniles tried as adults “prevent the sentence from taking account of these central considerations. By removing youth from the balance

—

by subjecting a juvenile to the same life

- without

- parole sentence applicable12

to an adult

— these laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender. That

contravenes Graham ’s

. . . foundational princ iple : that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” ( Miller , supra , 132 S.Ct. 2455 at p. 2466.) In making its categorical rule, that LWOP sentences cannot be imposed upon juv eniles, Graham analogized the effect of the LWOP sentence on juveniles to the death penalty. That analogous correspondence made relevant “a second line of our precedents, demanding individualized sentencing when imposing the death penalty.” ( Miller , supr a , 132 S.Ct. 2455 at p. 2467.) The United States Supreme Court found of special significance “that a sentencer have the ability to consider the ‘mitigating qualities of youth.’ [Citation.]” ( Ibid .) Mandatory LWOP sentencing was flawed because it, “by [ its] nature, preclude[d] a sentence r from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other

— the 17

- year - old and the 14

- year old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile .

. . will receive the same sentence as the vast majority of adults committing similar homicide offen ses

— but really,

as Graham noted, a greater sentence than those adults will serve.” ( Miller , supra , 132 S.Ct. 2455 at pp. 2467

- 2468.) The court declined to make a categorical bar on LWOP sentences for juveniles who commit homicide crimes, but, given its relevant decisions in13

other cases, the court opined that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty .

. . of distinguishing at this early age be tween ‘the juvenile offender whos e crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” ( Id . at p. 2469.) Individualized sentencing is required when imposing the harsh est penalties. The court stated, in its conclusion, that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” ( Id . at p. 2475.)
In Caballero , supra , 55 Cal.4th 26 2, the California Supreme Court considered the sentence for a 16

- year - old juvenile who had fired a gun at three members of a rival gang. Two of the victims were unhurt; the third was injured but survived. The defendant was convicted of three counts of at tempted murder, plus enhancements for personal discharge of a firearm, gang enhancements, and a great bodily injury enhancement as to one victim. He received a sentence of 15 years to life for the first attempted murder, plus 25 years to life for the fire arm enhancement. He was sentenced to a consecutive term of 15 years to life for the second attempted murder count, plus 20 years for the firearm enhancement. He was sentenced to another consecutive term of 15 years to life on the third attempted14

murder c ount, plus 20 years for the firearm enhancement. The defendant’s total term was 110 years to life. ( Id . at p. 265.) The California Supreme Court determined that the sentence of 110 years to life was the functional equivalent of an LWOP sentence, and w as governed by Graham ’s ban on LWOP sentences for juveniles in nonhomicide cases. ( Caballero , supra , 55 Cal.4th at
pp. 267, fn. 3, 268.) The defendant would become parole

- eligible only after serving 110 years according to section 3046, subdivision (b). ( Id . at p. 268.) “ Graham ’s analysis does not focus on the precise sentence meted out. Instead .

. . it holds that a state must provide a juvenile offender ‘with some realistic opportunity to obtain release’ from prison during his or her expected lifetime .” ( Ibid .) The S upreme C ourt concluded that “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy constitutes cruel and unusual punis hment in violation of the Eighth Amendment. Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehab ilitation and fitness to reenter society in the future. Under Graham ’s nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile’s crime and life, including but not limited to his or her chronological ag e at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek15

parole from the parole board.” ( Id . at pp. 268

- 269.) The court ordered that juvenile offenders who had received LWOP or de facto equivalent sentences for nonhomicide crimes would be eligible to petition for writs of habeas corpus, “in order to allow the [trial] court to weigh the mitigating evidence in determining the extent of incarceration required before parole hearings. Because every case will be different, we will not provide trial courts with a precise timeframe for setting these future parole hearings in a nonhomicide c ase. However, the sentence must not violate the defendant’s Eighth Amendment rights and must provide him or her a ‘meaningful opportunity to obtain
release base d on demonstrated maturity and rehabilitation’ under Graham ’s mandate.” ( Id . at p. 269.)
III

. Legislative Response: Senate Bill No. 260 (2013

– 2014 Reg. Sess.) The Legislature, in response, enacted Senate Bill No. 260 (2013

– 2014 Reg. Sess.). The bill, which became effective January 1, 2014, added section 3051, which provides an opportunity for most juvenile offenders to obtain a parole hearing within their expected lifetimes.
S ection 3051, subdivision (b)(1) , provides that a youth offender sentenced to a determinate sentence, “shall be eligible for release on parole at a youth offender parol e hearing by the board during his or her 15th year of incarceration, unless previously released pursuant to other statutory provisions.” S ection 3051, subdivision (b)(2) , provides that a youth offender sentenced to a life term of less than 25 years to lif e, “shall be eligible for release on parole by the board during his or her 20th year of incarceration16

at a youth offender parole hearing,” unless otherwise released or entitled to earlier parole consideration under other provisions. And section 3051, subd ivision (b)(3) , provides that a youth offender sentenced to a term of 25 years to life, “shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing,” unless otherwise released or is eligible for an earlier parole hearing date under other provisions. As a result of this new provision, most youth offenders would be eligible for a parole hearing after a maximum of 25 years of incarceration, within the normal life expectancy of a juvenile. It does not apply, however, to three strikes sentences, one strike sentences, or LWOP sentences, or to those who commit certain additional offenses after reaching the age of 18. (§ 3051, subd. (h).)
Se ction 3051, subdivision (e) , states that, “The youth offender parole hearing to consider release shall provide for a meaningful opportunity to obtain release. The board shall review and, as necessary, revise existing regulations and adopt new regulations regarding determinations of suitability m ade pursuant to this section, subdivision (c) of Section 4801, and other related topics, consistent with relevant case law, in order to provide that meaningful opportunity for release.” S ection 4801, subdivision (c), in turn, provides: “(c) When a prison er committed his or her controlling offense .

. . prior to attaining 18 years of age, the board, in reviewing a prisoner’s suitability for parole pursuant to Section 3041.5, shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent17

growth and increased maturity of the prisoner in accordance with relevant case law.”
S ection 3051, subdivision (f) , echoes and expands on the requirements of section 4801, subdivision (c): “ (1) I n assessing growth and maturity, psychological evaluations and risk assessment instruments, if used by the board, shall be administered by licensed psychologists employed by the board and shall take into consideration the diminished culpability of juvenile s as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. [¶] (2) Family members, friends, school personnel, faith leaders, and representatives from community

based organizations with knowledge about the individual before the crime or his or her growth and maturity since the time of the crime may submit statements for review by the board. [¶] (3) Nothing in this section is intended to alter the rights of victims at parole hearing s.” (§ 3051, subd. (f).) In enacting section 3051, the Legislature made the following declaration of intent: “The Legislature finds and declares that, as stated by the United States Supreme Court in Miller v. Alabama (2012) 183 L.Ed.2d 407, ‘only a re latively small proportion of adolescents’ who engage in illegal activity ‘develop entrenched patterns of problem behavior,’ and that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,’ i ncluding ‘parts of the brain involved in behavior control.’ The Legislature recognizes that youthfulness both lessens a juvenile ’ s moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, thes e individuals can become contributing18

members of society. The purpose of this act is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions of the United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48, and Miller v. Alabama (2012) 183 L.Ed.2d 407. Nothing in this act is intended to undermine the California Supreme Court ’ s holdings in In re Shaputis (2011) 53 Cal.4th 192, In re
Lawrence (2008) 44 Cal.4th 1181, and subsequen t cases. It is the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release establishe d.” (Stats. 2013, ch. 312, § 1 .) The People urge that the enactment of section 3051 moots defendant’s claim that his Eighth Amendment rights were violated, because there are no longer any de facto sentences of life imprisonment without parole for most youthful offenders, inasmuch as some meaningful parole opportunity will be offered after a maximum of 25 years ’ imprisonment. Defendant argues that section 3051 does not obviate the requirements set forth in Graham , Miller and Caballero that the trial court must take account of the offender’s status as a juvenile in selecting the sentence to be imposed.19

IV. Sentencing for Juvenile Offenders Must Satisfy the Central Constitutional Requirement Set Forth in the United States Supreme Court and California Supreme Court Precedents

— A Meaningful Opportunity To Obtain Release Within the Expected Lifetime

Based on Demonstrated Maturity and Rehabilitation. We have examined the relevant foundational precedents (e.g., Graham , Miller , and Caballero ), and we discern the following rules or standards with respect to imposing
LWOP sentences on offenders whose commitment offense occu rred when they were a juvenile. First, Graham imposed a categorical ban on LWOP sentences for nonhomicide offenses committed by juveniles. The State must provide such juvenile defendants “ some meaningful opportun ity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.” ( Graham , supra , 560 U.S. 48 at p. 75 .) Although the dissent cites Graham as mandati ng an individualized sentencing decision by the trial court, this requirement is in fact nowhere to be found in Graham

. What Graham actually mandates is, as stated above, the chance to obtain release base on demonstrated maturity and rehabilitation . This crucial determination cannot in most cases be achieved at sentencing because the juvenile offender will not yet have had to opportunity to exhibit these traits. Rehabilitation and maturity await the passage of time before they can reliably reveal themsel ves, and this is precisely what Graham directs. Further, as it considers whether LWOP sentences can constitutionally be imposed on juveniles for20

nonhomicide offenses, the Graham court actually discounts the general reliability of an individualized sentencing determination at trial as opposed to a guaranteed parole hearing for a juvenile defender in the future

. The court points to the following deficiencies risked by case

- by

- case consideration at sentencing: ( 1) the accuracy and reliability of a sentencing choice are compromised when the brutality of a particular crime overpowers the considerations of youth, immaturity and vulnerability; ( 2) the immaturity of the juvenile, descri bed in detail in Graham is “likely to impair the quality of a juvenile defendant’s representation”; and ( 3) the juvenile nonhomicide offender must be given “a chance to demonstrate maturity and reform.” ( Id

. at pp.77

- 79) Graham simply does not mandate an individual sentencing determination at trial. Rather, Graham stresses the central importance of allowing a juvenile offender to demonstrate his or her rehabilitation and maturity , after the passage of time, at a guaranteed parole hearing. This is the

re medy provided by section 3051. Second, Caballero extended the Graham ban to include not only explicit LWOP sentences but also de facto LWOP sentences. A de facto LWOP sentence is one that is not explicitly designated a life sentence, but in which a juvenile offender’s “parole eligibility date

. . . ` falls outside his or her natural life expectancy

. ” ( Caballero, supra, 55 Cal.4th at pp. 262, 291.) Defendant’s sentence in this case, 120 years to life, is a de facto
LWOP sentence. Third, M iller imposes a ban on mandatory LWOP for homicide crimes committed by juveniles . To implement this ban, Miller requires the sentencing court to provide an21

individualized sentencing determination, “considering an offender’s youth and attendant
characteris tics” before imposing LWOP in homicide cases. The Miller court decline s to extend Graham’s categorical ban on LWOP sentences to juvenile homicide offenders , choosing instead to mandate the individualized sentencing to safeguard a juvenile offender’s Eight h Amendment Rights

. ( Miller, supra, 132 S.Ct. 2455 at p. 2465

. ) We note that Miller does not state that its holding applies to nonhomicide cases. This is not surprising because, as Miller acknowledges, Graham bans LWOP in nonhomicide cases.
W e disagree with the dissent ’s conclusion that Miller requires the trial court to make an individualized sentencing decision as to juvenile offenders before imposing a de facto LWOP sentence in a nonhomicide case. Miller devised its individualized sentencing scheme to safeguard juvenile defendants convicted of homicide offenses from receiving a mandatory LWOP sentence. Miller does not impose such a scheme as a constitutional requirement where , after Caballero, a juvenile nonhomicide offender can no longer receive an LWOP sentence. To reiterate, after Graham and Caballero, both LWOP and de facto LWOP have been eliminated as possible sentencing choices for juveniles who commit nonhomicide crimes. The possibility that a juvenile can receive the “State’s harshest penal ties” is the
Miller court’s clearly stated rationale for the individualized sentencing mandate. This possibility no longer exists in California for a juvenile convicted of a nonhomicide crime. For this reason, section 3051 is fully consistent with Miller

.22

Fourth, while Caballero does envision an individualized determination at sentencing like the one set forth for homicide cases in Miller , the focal point of Caballero is the end result required by Graham and by the Eight Amendment

— that a juvenile offender must have a reasonable opportunity to obtain parole within his or her lifetime upon a showing of rehabilitation

. In fact, the Caballero court emphasizes that Graham was not focused on “the preci s e sentence meted out,” but rather o n the opportunity to obtain release from prison during the juvenile’s expected lifetime. ( Caballer o, supra, 55 Cal.4th a t p. 268 .) Section 3051, as described in detail above, provides just this opportunity no later than 25 years into the sentence, while the typical defendant is in his or her early forties. We recognize that Caballero sees the Graham ruling be ing implemented by the trial court at sentencing; that the sentencing court would consider the defendant’s individual circumstances to impose a sent ence that would allow for parole review within the defendant’s expected lifetime. “Under Graham’s nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile’s crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development

. . . . ” ( Caballero at p p . 268

- 269

. ) However, in the very same sentence Caballero very clearly identifies the whole point of this entire endeavor: “[S]o that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison ‘based on23

demonstrated maturity and rehabilitation.’ [ C itation

. ] ” ( Id. at p. 269

. ) T his is precisely what section 3051 accomplishes, following the directive of Graham that “ It is for the State, in the first instanc e, to explore the means and mechanisms for compliance.” ( Graham , supra , 560 U.S. 48 at p. 75 .)
V. Section 3051 Is a Valid and Efficient Mechanism f or Providing a Juvenile Nonhomicide Offender w ith a Meaningful Opportunity for Release For the following reasons, and based on the case law set forth above, we conclude that the definite parole eligibility schedule , devised by the Legislature , as requested by the Caballero court, and described in section 3051 , is both constitutionally permis sible and a n or derly mechanism to provide juvenile s convicted as adults of serious

no n homicide crimes with a meaningful opportunity for release within their lifetime. First, section 3051 has abolished de facto life sentences

. Caballero , supra , 55 Cal.4th 262, define s a de facto life sentence as “ a term of years with a parole eligibility date that falls outside the juvenile offender’s natural life

. . . .” ( Id. at p. 268.) Section 3051 eliminates such sentences altogether by virtue of its provision for m andatory parole eligibility hearings after no more than 25 years in prison. Second, t he California Supreme Court in Caballero specifically asked the Legislature to enact a law that works precisely as does section 3051 for prisoners like defendant who are already serving a de facto life term: “We urge the Legislature to enact legislation establishing a parole eligibility mechani sm that provides a defendant serving a de facto life sentence without possibility of parole for nonhomicide crimes that he or she24

committed as a juvenile with the opportunity to obtain release on a showing of rehabilitation and maturity.” ( Caballero, supr a, 55 Cal.4th at p. 269, fn. 5

. ) Again, section 3051 answer s this request from the Caballero court. Section 3051 “establish [es] a parole eligibility mechanism” that allows such prisoners to obtain parole if they can show “rehabilitation and maturity” aft er a maximum of 25 years in prison. Third, section 3051 provides certainty and predictability to both juvenile offenders and sentencing courts. T he individualized determination at sentencing that defendant advocates would in practice be far mo re problema tic than section 3051’s uniform opportunity for p arole after the number of years specified

. Section 3051 frees the sentencing courts to follow the existing, familiar if convoluted , sentencing laws that can result in sentences such as defendant’s 120

- years - to

- life term. Without section 3051, sentencing courts tasked with avoiding de facto LWOP sentences would in some instances have to resort to imposing sentences that are not authorized by statute in order to engineer a parole eligibility date that is constitutionally permissible. Section 3051 allows the current sentencing scheme to continue without uph eaval. The statute simply and clearly makes the current sentencing scheme constitutional by providing each juvenile offender, universally and on a specified schedule, with the meaningful opportunity for release within their lifetime that the Eighth Amend ment demands. This analysis is consistent with t he recent California Supreme Court decision in People v. Franklin, supra, 63 Cal.4th 268. In addition, the Franklin court recognized that, in or der to fulfill the requirements of sections 3051 and 4801 , th e defendant must be25

“ afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing” at the time of sentencing. ( Franklin, supra, at p p . 283

- 284.)
D ISPOSITION The judgment is affirmed. We remand t o the trial court for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the California Board of Parole Hearings as it fulfills its statutory obligations under sections 3051 and 4801.
CERTIFIED FOR PUBLI CATION RAMIREZ P. J.

We concur: HOLLENHORST J. McKINSTER J.