Filed 10/15/20 (review denied 1/27/21; reposted to include Supreme Court statement 

upon denial of review)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

GIOVANNY MONTELONGO,

Defendant and Appellant.

 B294095

 (Los Angeles County

 Super. Ct. No. NA101415)

APPEAL from a judgment of the Superior Court of Los

Angeles County, Gary J. Ferrari, Judge. Affirmed with 

directions. 

Patricia A. Scott, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Acting Supervising 

Deputy Attorney General, and David A. Voet, Deputy Attorney 

General, for Plaintiff and Respondent.
2

INTRODUCTION

When he was 18 years old, Giovanny Montelongo stabbed 

and killed 15-year-old Keshawn Brooks while trying to take 

Brooks’s backpack and a bag containing football gear. A jury 

convicted Montelongo of robbery and felony murder with a special 

circumstance finding under Penal Code section 190.2, 

subdivision (a)(17), which mandates a sentence of death or life in 

prison without the possibility of parole. On the murder 

conviction, the trial court sentenced Montelongo to life in prison 

without the possibility of parole, plus one year for using a deadly 

or dangerous weapon. The trial court also imposed various fines 

and assessments, including a restitution fine of $10,000.

Montelongo challenges his sentence as violating the Due 

Process Clause of, and the Eighth and Fourteenth Amendments 

to, the United States Constitution. He argues that, as applied to 

him, the felony murder special circumstance statute is void for 

vagueness, that his sentence is cruel and unusual because the 

trial court failed to take his youth into account before sentencing 

him to prison for life without the possibility of parole for a crime 

he committed when he was 18 years old, and that the trial court 

failed to consider his ability to pay the fines and assessments the 

court imposed. Because none of Montelongo’s arguments has 

merit, we affirm the judgment. We also direct the trial court to 

correct the minute order following the sentencing hearing and the 

abstract of judgment to strike the parole revocation fine. 
3

FACTUAL AND PROCEDURAL BACKGROUND

A. Montelongo Kills Brooks

On March 12, 2015 Brooks and Lance Coleman-Davis 

walked home together from school. They were both 15 years old. 

Brooks had two bags: a backpack containing his schoolwork and 

an equipment bag for football practice. Brooks and ColemanDavis saw Montelongo down an alley. Montelongo made the 

shape of an “L” with his hand, which the boys knew was a gang 

sign for the Westside Longo street gang. Montelongo began 

jogging toward the boys and asked them where they were from. 

The boys said they did not “bang,” meaning they were not gang 

members. 

Montelongo reached for one of Brooks’s bags, and ColemanDavis pushed Montelongo away. Montelongo reached for the bag 

again and said “‘Give me your bag,’” and Brooks punched him in 

the face. As Montelongo and Brooks struggled, Montelongo 

stabbed Brooks once in the chest with a six-inch knife. Brooks 

dropped his bags. Montelongo picked up one of the bags, said

“Fuck Crabs,”1 and walked back down the alley. Brooks collapsed 

near a barbershop, where a nurse tried to stop his bleeding with 

a towel while waiting for an ambulance. Brooks died at the 

hospital. 

1 “Crabs” is a disrespectful reference to the West Coast 

Crips, a criminal street gang with which Montelongo apparently 

believed Brooks was affiliated. 
4

B. The Police Arrest Montelongo, and the People Charge 

Him with Robbery and Special Circumstance Murder

A police officer arrived, questioned Coleman-Davis, and 

retrieved Brooks’s backpack. Another officer found Brooks’s 

equipment bag outside an apartment building near the end of the 

alley. Police found Montelongo in the backyard of a house nearby 

and arrested him. 

The People charged Montelongo with robbery (Pen. Code, 

§ 211)2 and murder (§ 187, subd. (a)) and alleged the special 

circumstance that Montelongo committed murder during the 

commission of a robbery, within the meaning of section 190.2, 

subdivision (a)(17). As to both counts the People alleged 

Montelongo personally used a deadly or dangerous weapon 

(§ 12022, subd. (b)(1)) and committed the offenses for the benefit 

of, at the direction of, or in association with a criminal street 

gang with the specific intent to promote, further, or assist in 

criminal conduct by gang members, within the meaning of section 

186.22, subdivision (b). 

C. A Jury Convicts Montelongo, and the Trial Court 

Sentences Him

A jury convicted Montelongo on both counts and found true 

the allegations Montelongo committed murder while engaged in 

the commission of robbery, personally used a deadly or dangerous 

weapon, and committed the offenses for the benefit of, at the 

direction of, or in association with a criminal street gang with the 

specific intent to promote, further, or assist in criminal conduct 

by gang members. The People asked the court to sentence 

Montelongo to life in prison without the possibility of parole, as 

2 Undesignated statutory references are to the Penal Code.
5

required by section 190.2, subdivision (a)(17), plus an additional 

year for the weapon enhancement under section 12022, 

subdivision (b)(1). 

Montelongo argued that, because he was 18 years old when 

he committed the crimes, a sentence of life without the possibility 

of parole was cruel and unusual punishment under the United 

States and California Constitutions and that he was not 

“irretrievably depraved.” Montelongo acknowledged that the 

United States Supreme Court’s decision in Miller v. Alabama 

(2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller) prohibited 

mandatory sentences of life without the possibility of parole only 

for juvenile offenders under the age of 18. Nevertheless, he 

argued that “there has been a sea change in what is 

constitutionally acceptable in the sentencing of youth offenders” 

and that “the state of research and the need for corresponding 

action have changed rapidly.” Citing scientific advancements in 

brain research, Montelongo urged the court to consider the 

factors mandated by Miller to determine whether his crimes 

reflected “‘unfortunate yet transient immaturity’” or “‘irreparable 

corruption’” before sentencing him to life without the possibility 

of parole. (See id. at pp. 477-480; People v. Gutierrez (2014) 58 

Cal.4th 1354, 1388-1389.) 

With regard to the Miller factors, Montelongo described his 

upbringing and home environment as chaotic, abusive, and 

neglectful, and he argued the crimes he committed demonstrated 

impetuous acts of a teenager, not “extreme viciousness or 

incurable depravity.” Montelongo also contended sentencing him 

to life without the possibility of parole violated his right to equal 

protection under the Fourteenth Amendment because section 

3051 denied him a parole hearing after his 25th year of 
6

imprisonment, while giving that benefit to other 18-year-old 

offenders.3

The trial court sentenced Montelongo on the murder 

conviction to a prison term of life without the possibility of parole,

plus one year for the weapon enhancement.4 In response to 

Montelongo’s argument that a sentence of life without the 

possibility of parole as applied to him violated the United States 

and California Constitutions, the court stated: “I reviewed the 

Miller factors that you point out. But with respect to that, I 

would like to say that a lot of people grow up in families that 

aren’t perfect and they don’t go around killing little 15-year-old 

kids.” On the robbery conviction, the court sentenced Montelongo 

to the middle term of three years, plus 10 years for the gang 

enhancement and one year for the weapon enhancement, 

execution of which the court stayed under section 654. 

The court also ordered Montelongo to pay a $10,000 

restitution fine (at $300 “per year”) (§ 1202.4), a $40 court 

operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court 

facilities assessment (Gov. Code, § 70373). Montelongo did not 

object to the restitution fine or the assessments. Although the 

3 Section 3051 establishes special parole eligibility guidelines 

for young adult offenders up to age 25, but excludes a defendant

“sentenced to life in prison without the possibility of parole for a 

controlling offense that was committed after the person had 

attained 18 years of age.” (§ 3051, subd. (h).)

4 At the sentencing hearing, the court stated it was imposing

“an additional year for the firearm allegation,” but the only 

weapon enhancement alleged in connection with the murder 

count was for personal use of a deadly or dangerous weapon (a 

“sharp instrument”).
7

court did not mention a parole revocation fine at the sentencing 

hearing, the court’s minute order and the abstract of judgment 

indicate the court also ordered Montelongo to pay a parole 

revocation fine of $10,000 (§ 1202.45), which the court stayed 

“unless parole, postrelease, community supervision or mandatory 

supervision is revoked.” Montelongo timely appealed. 

DISCUSSION

A. The Felony Murder Special Circumstance Statute Is 

Not Unconstitutionally Vague as Applied to 

Montelongo

Montelongo argues the “mode of culpability” established by 

sections 187, 189, and 190.2, subdivision (a)(17), is 

unconstitutionally vague under the Fourteenth Amendment to 

the United States Constitution because where, as here, intent to 

kill is not an element of murder, “there is no meaningful 

distinction between first degree felony murder based on robbery 

and the robbery-murder special circumstance.” Montelongo’s 

argument fails because two statutes that criminalize the same 

conduct but impose different penalties are not, for that reason,

unconstitutionally vague. 

1. Robbery Felony Murder vs. Robbery Murder 

Special Circumstance

Section 187, subdivision (a), defines murder as “the 

unlawful killing of a human being . . . with malice aforethought.” 

Section 189 defines first degree murder to include “willful, 

deliberate, and premeditated killing,” as well as murder 

“committed in the perpetration of, or attempt to perpetrate,” 
8

certain felonies, including robbery. (§ 189, subd. (a).) A killing in 

the latter circumstance need not be intentional, according to the 

felony murder doctrine, when the defendant is the actual killer.

(See People v. Gonzalez (2012) 54 Cal.4th 643, 654 [“Felony 

murder liability does not require an intent to kill, or even implied 

malice, but merely an intent to commit the underlying felony.”]; 

People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 904

[same]; see also People v. Chun (2009) 45 Cal.4th 1172, 1184 

[“‘The felony-murder rule imputes the requisite malice for a 

murder conviction to those who commit a homicide during the 

perpetration of a felony inherently dangerous to human life.’”]; 

People v. Johns (2020) 50 Cal.App.5th 46, 57-58 [“The felonymurder rule made ‘a killing while committing certain felonies 

murder without the necessity of further examining the 

defendant’s mental state.’”].)5 First degree murder is punishable 

by death, life without the possibility of parole, or 25 years to life 

(§ 190, subd. (a)), “with the penalty to be determined as provided 

in certain statutory provisions, including the felony-murder 

special-circumstance statute.” (People v. Andreasen (2013) 214 

Cal.App.4th 70, 80 (Andreasen).) 

The special circumstance statute lists over two dozen 

circumstances in which the court must sentence a defendant 

5 Senate Bill No. 1437, effective January 1, 2019,

added section 189, subdivision (e), which now limits liability for 

felony murder to a person who was (1) the actual killer; (2) not 

the actual killer but who, “with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted 

the actual killer in the commission of murder in the first degree”; 

or (3) not the actual killer but who was a “major participant in 

the underlying felony and acted with reckless indifference to 

human life . . . .”
9

convicted of first degree murder to death or to life in prison 

without the possibility of parole. (§ 190.2, subd. (a).) These 

special circumstances include when the “murder was committed 

while the defendant was engaged in, or was an accomplice in, the 

commission of, attempted commission of, or the immediate flight 

after committing, or attempting to commit,” certain felonies, 

including robbery. (§ 190.2, subd. (a)(17); see Andreasen, supra,

214 Cal.App.4th at p. 80 [“Once the jury finds the defendant has 

committed first degree murder, the felony-murder special 

circumstance applies if the murder was committed during the 

commission or attempted commission of a statutorily enumerated 

felony, and subjects the defendant to a sentence of death or of life 

without the possibility of parole.”].) 

Under the applicable statutes, there is little semantic 

difference between felony murder based on robbery under 

section 189 (a killing “committed in the perpetration of . . . 

robbery”) and the robbery murder special circumstance under 

section 190.2, subdivision (a)(17) (a killing “committed while the 

defendant was engaged in . . . the commission of” robbery). But 

courts have fashioned a distinction between the two based on the 

legislative history of former section 190.2, which imposed the 

death penalty or life without the possibility of parole on the most 

serious offenders. (See People v. Green (1980) 27 Cal.3d 1, 61-62 

(Green), disapproved on another ground in People v. Aldemat

(2019) 8 Cal.5th 1, 13; see also People v. Kimble (1988) 44 Cal.3d 

480, 500-501.) “[T]o find true a felony-murder special 

circumstance” under section 190.2, courts require the defendant 

to have had “‘“an independent purpose for the commission of the 

felony, that is, the commission of the felony was not merely 

incidental”’” to the murder. (People v. Jackson (2016) 1 Cal.5th 
10

269, 345; accord, People v. Brooks (2017) 3 Cal.5th 1, 117-118; see 

People v. Riccardi (2012) 54 Cal.4th 758, 836 [“Pursuant to our 

decision in People v. Green, supra, 27 Cal.3d 1, a felony-murder 

special circumstance is inapplicable if the underlying felony is 

merely ‘incidental’ or ‘ancillary’ to the murder; instead, the 

evidence must demonstrate an independent or concurrent 

felonious purpose distinct from any intent to kill.”], disapproved 

on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 

1216.)6 This “independent felonious purpose rule” is not an 

6 In People v. Robertson (1982) 33 Cal.3d 21 the Supreme 

Court explained: “[W]e concluded [in Green] that the 

circumstances of that case did not constitute ‘a murder in the 

commission of a robbery but the exact opposite, a robbery in the 

commission of a murder.’ [Citation.] Recognizing that ‘[a]t the 

very least . . . the Legislature must have intended that each 

special circumstance provide a rational basis for distinguishing 

between those murderers who deserve to be considered for the 

death penalty and those who do not,’ we concluded that such a 

goal ‘is not achieved . . . when the defendant’s intent is not to 

steal but to kill and the robbery is merely incidental to the 

murder . . . because its sole object is to facilitate or conceal the 

primary crime.’ [Citation.] In holding that such an ‘incidental’ 

robbery would not provide a proper basis for a special 

circumstance finding, we specifically contrasted that case with 

one in which a defendant ‘[kills] in cold blood in order to advance 

an independent felonious purpose, e.g., . . . [carries] out an 

execution-style slaying of the victim of or witness to a holdup, 

kidnaping, or a rape.’” (Robertson, at p. 52.) The version of

section 190.2 at issue in Green reserved sentences of death and 

life without the possibility of parole for defendants who both 

intended to kill and intended to commit certain independent 

felonies, including robbery. (See Robertson, at p. 48, fn. 14.) In 

1978 the voters added section 190.2 by initiative to make more 

defendants eligible for death and life without the possibility of
11

element of the crime, but instead “‘merely clarifies the scope of 

the requirement that the murder must have taken place “during 

the commission” of a felony.’” (Brooks, at p. 117.) A court must 

instruct a jury, “on its own motion, that the felony cannot have 

been merely incidental to the murder when there is evidence 

from which the jury could have inferred that the defendant did 

not have an independent felonious purpose for committing the 

felony.” (Id. at p. 118.) The trial court in this case instructed the 

jury on the independent felonious purpose rule. 

2. Montelongo Had Notice of the Conduct 

Proscribed by Section 190.2, and He Does Not 

Claim Discriminatory Prosecution

“[A] penal statute must be drafted with sufficient clarity to 

give fair notice of what conduct is proscribed.” (People v. 

Brown (2017) 14 Cal.App.5th 320, 336; see Kolender v. 

Lawson (1983) 461 U.S. 352, 357-358 [103 S.Ct. 1855] (Kolender)

[a penal statute must “define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary 

and discriminatory enforcement”]; United States v. Batchelder

(1979) 442 U.S. 114, 123 [99 S.Ct. 2198] (Batchelder) [“[a] 

parole, including defendants like Montelongo who intended to 

commit robbery but may not have intended to kill. (Former 

§ 190.2, repealed and added by Prop. 7, as approved by voters, 

Gen. Elec. (Nov. 7, 1978).) Courts nevertheless continue to apply 

the interpretation of the version of section 190.2 in Green to the 

current version of the statute. (See, e.g., People v. Riccardi, 

supra, 54 Cal.4th at p. 836; see generally People v. Anderson

(1987) 43 Cal.3d 1104, 1138-1148 [discussing the 1978 

amendments to section 190.2].)
12

criminal statute is . . . invalid if it ‘fails to give a person of 

ordinary intelligence fair notice that his contemplated conduct is 

forbidden’”].) The Constitution, however, does not prohibit two 

statutes from proscribing the same or similar conduct, so long as 

the defendant has notice of what conduct is prohibited and the 

prosecutor does not decide which statute to charge “for invidious 

reasons (e.g., race, gender, etc.).” (Brown, at pp. 339-340; see 

Batchelder, at pp. 123-124 [“This Court has long recognized that 

when an act violates more than one criminal statute, the 

Government may prosecute under either so long as it does not 

discriminate against any class of defendants.”].)

Montelongo does not argue that he did not have notice of 

what conduct would subject him to sentencing under section 

190.2 or that the prosecutor decided to allege a special 

circumstance under section 190.2 based on Montelongo’s race or

gender or for some other “invidious” reason. Instead, Montelongo 

argues the felony murder statute and the felony murder special 

circumstance statute give prosecutors “an unconstitutional 

amount of power” to “pick the penalty—life with the possibility of 

parole, on one hand, or the finality of [life without the possibility 

of parole], on the other.” Decisions by the United States Supreme 

Court and the California Supreme Court, however, foreclose this 

argument. (See Batchelder, supra, 442 U.S. at p. 123 [rejecting a 

vagueness challenge to statutes that overlapped in prohibiting 

felons from receiving firearms but authorized different maximum 

penalties]; Davis v. Municipal Court (1988) 46 Cal.3d 64, 88-89 

[citing Batchelder to reject a challenge to rules giving the district 

attorney the authority to decide whether to charge a crime as a 

misdemeanor or a felony]; cf. People v. Wilkinson (2004) 

33 Cal.4th 821, 834-835 [citing Batchelder to reject an equal 
13

protection challenge to statutes allowing more severe punishment 

for battery on a custodial officer without injury than for battery 

on a custodial officer with injury]; People v. Superior 

Court (Caswell) (1988) 46 Cal.3d 381, 395 [“the Legislature may 

criminalize the same conduct in different ways”].) 

Montelongo cites Kolender, supra, 461 U.S. 352 for the 

proposition that a statute that fails to describe with sufficient 

particularity what a suspect must do to fall within the statute 

“encourages arbitrary enforcement.” (Id. at pp. 361-362.) 

Kolender involved a facial challenge to a single statute that 

required people “who loiter or wander on the streets to provide a 

‘credible and reliable’ identification and to account for their 

presence when requested by a peace officer.” (Id. at p. 353.) The 

United States Supreme Court held the statute was 

unconstitutionally vague because it did not contain sufficient 

standards to determine whether a suspect complied with the 

identification requirement, thus conferring on police “‘a virtually 

unrestrained power to arrest and charge persons with a 

violation.’” (Id. at pp. 360-361.) 

Montelongo does not identify any language in sections 189 

or 190.2 that police officers or prosecutors can interpret at will 

and enforce against “‘“particular groups deemed to merit their 

displeasure.”’” (Kolender, supra, 461 U.S. at p. 360.) In fact, 

Montelongo faced prosecution under two statutes that clearly 

identified the conduct they proscribed, but subjected him to 

different penalties. These are the same circumstances the 

Supreme Court in Batchelder condoned: “The [two] provisions in 

issue here . . . unambiguously specify the activity proscribed and 

the penalties available upon conviction. . . . Although the 

statutes create uncertainty as to which crime may be charged
14

and therefore what penalties may be imposed, they do so to no 

greater extent than would a single statute authorizing various 

alternative punishments.” (Batchelder, supra, 442 U.S. at 

p. 123.) “[T]here is no appreciable difference between the 

discretion a prosecutor exercises when deciding whether to 

charge under one of two statutes with different elements and the 

discretion he [or she] exercises when choosing one of two statutes 

with identical elements. In the former situation, once he [or she]

determines that the proof will support conviction under either 

statute, his [or her] decision is indistinguishable from the one he

[or she] faces in the latter context. The prosecutor may be 

influenced by the penalties available upon conviction, but this 

fact, standing alone, does not give rise to a violation of the Equal 

Protection or Due Process Clause.” (Id. at p. 125; see Andreasen, 

supra, 214 Cal.App.4th at p. 80 [“The mere fact that the 

prosecution has discretion to select which punishment it will seek 

does not render a statute unconstitutionally vague or create an 

improper risk of arbitrary enforcement of a criminal statute.”].) 

The prosecutor in this case could have charged Montelongo

with felony murder under section 189, pursuant to which 

Montelongo would have been eligible for a sentence that included

the possibility of parole, but the prosecutor elected to allege a 

special circumstance under section 190.2. That the prosecutor

had discretion to charge Montelongo under two statutes with 

different penalties does not render the statutory scheme 

unconstitutional. (See People v. Brown, supra, 14 Cal.App.5th at 

pp. 337-338 [human trafficking statute was not void for 

vagueness as applied to the defendant merely because the 

prosecutor could have charged the defendant with pandering, 

which provided a lesser penalty than human trafficking].) 
15

Without addressing Batchelder or its progeny, Montelongo

argues that, for the statutory scheme to “give notice and prevent

arbitrary enforcement,” the felony murder statute and the felony

murder special circumstance statute must apply to distinct

conduct. To support this argument, however, Montelongo cites

cases that apply the standard for determining whether death

penalty eligibility standards are unconstitutionally vague under

the Eighth Amendment, not the Fourteenth Amendment. 

(See People v. Combs (2004) 34 Cal.4th 821, 868; Morales v.

Woodford (9th Cir. 2004) 388 F.3d 1159, 1174-1175.)7 For death

penalty eligibility standards to satisfy the Eighth Amendment,

they must provide “‘a meaningful basis for distinguishing the few

cases in which the penalty is imposed from the many cases in

which it is not.’” (Morales, at p. 1174; see Combs, at p. 868 [“The

lying-in-wait special circumstance adequately distinguishes

between first degree murders that are death eligible and those

that are not.”].) The People did not seek the death penalty for

Montelongo, and his vagueness challenge arises under the

Fourteenth Amendment, not the Eighth Amendment. And even

if the Eighth Amendment vagueness standard applied to 

Montelongo’s challenge, in People v. Winbush (2017) 2 Cal.5th 

402 the Supreme Court held that the robbery special 

circumstance statute is not unconstitutionally vague under the 

Eighth Amendment. (Id. at p. 488.)

Two other cases Montelongo cites, People v. Superior Court 

(Bradway) (2003) 105 Cal.App.4th 297 and Houston v. Roe (9th 

Cir. 1999) 177 F.3d 901, applied the vagueness standard under

7 Montelongo nevertheless acknowledges that the standards 

for vagueness under the Eighth and Fourteenth Amendments are 

different. 
16

the Fourteenth Amendment, but held the lying-in-wait special

circumstance statute (§ 190.2, subd. (a)(15)) is not

unconstitutionally vague. (See Bradway, at p. 309; Houston, at 

pp. 907-908.) Although these cases acknowledged the lying-inwait special circumstance statute is distinct from the lying-inwait felony murder statute, they do not stand for the proposition 

that due process requires any such distinction. Instead, both 

cases repeat the standard established in Kolender and Batchelder

that due process challenges “‘rest[ ] on the lack of notice, and 

hence may be overcome in any specific case where reasonable 

persons would know that their conduct is at risk.’” (Bradway, at 

p. 309; see Houston, at p. 907.)

Finally, Montelongo argues the court in Andreasen, supra, 

214 Cal.App.4th 70 wrongly held the robbery murder special 

circumstance statute was not unconstitutionally vague on the 

ground it is not sufficiently distinct from the robbery felony 

murder statute. (See id. at pp. 80-81.) According to Montelongo, 

had the court in Andreasen applied the law correctly, it would 

have concluded the statutes are identical and therefore

unconstitutionally vague. But the court in Andreasen first 

rejected the defendant’s constitutional challenge to the robbery 

murder special circumstance statute under Batchelder, just as we 

do here, and only in the alternative addressed whether 

sections 189 and 190.2 were sufficiently distinct. (See Andreasen, 

at p. 80 [“even assuming arguendo that constitutional due 

process requires a distinction between the felony-murder offense 

and the felony-murder special circumstance, . . . there is such a 

distinction”].) Thus, even if the court in Andreasen reached the 

wrong conclusion on that point, an issue we need not address, it 

would not have changed the outcome of that case.
17

B. Montelongo’s Sentence Is Not Cruel and Unusual 

Under the Eighth Amendment

Montelongo contends his sentence of life in prison without 

the possibility of parole is cruel and unusual punishment under 

the Eighth Amendment to the United States Constitution 

because the trial court failed to consider his youth before 

sentencing him.8 For purposes of evaluating this argument, we 

assume the trial court’s cursory finding that Montelongo’s 

upbringing did not reduce his culpability did not comply with 

Miller, which requires a court to consider multiple factors to 

determine whether a youthful offender is “irreparabl[y] 

corrupt[ ]” before sentencing him or her to life in prison without 

the possibility of parole. (Miller, supra, 567 U.S. at pp. 479-480; 

see People v. Gutierrez, supra, 58 Cal.4th at pp. 1388-1389 

[listing factors a court must consider to comply with Miller].)

8 In his reply brief Montelongo argues for the first time that 

his sentence also violates article I, section 17 of the California 

Constitution and deprived him of equal protection under the 

Fourteenth Amendment to the United States Constitution and 

article I, section 7 and article IV, section 16 of the California 

Constitution. “‘Withholding a point until the reply brief deprives 

the respondent of an opportunity to answer it . . . . Hence, a point 

raised for the first time therein is deemed waived and

will not be considered, unless good reason is shown for failure to 

present it before.’” (People v. Selivanov (2016) 5 Cal.App.5th 726, 

794; see People v. Silveria and Travis (2020) 10 Cal.5th 195, 255

[“‘“[i]t is axiomatic that arguments made for the first time in a 

reply brief will not be entertained because of the unfairness to 

the other party”’”].) Montelongo provides no explanation for why 

he raised these arguments for the first time in his reply brief and 

offers no substantive discussion of these issues. Therefore, we do 

not address them.
18

The Eighth Amendment to the United States Constitution 

“guarantees individuals the right not to be subjected to excessive 

sanctions” and “flows from the basic ‘“precept of justice that 

punishment for crime should be graduated and proportioned to 

[the] offense.”’” (Roper v. Simmons (2005) 543 U.S. 551, 560 

[125 S.Ct. 1183] (Roper).) To determine whether a punishment is 

cruel and unusual, “courts must look beyond historical 

conceptions to ‘“the evolving standards of decency that mark the 

progress of a maturing society.”’” (Graham v. Florida

(2010) 560 U.S. 48, 58 [130 S.Ct. 2011] (Graham).) “This is 

because ‘[t]he standard of extreme cruelty is not merely 

descriptive, but necessarily embodies a moral judgment. The 

standard itself remains the same, but its applicability must 

change as the basic mores of society change.’” (Kennedy v. 

Louisiana (2008) 554 U.S. 407, 419 [128 S.Ct. 2641]; see People v. 

Gutierrez, supra, 58 Cal.4th at p. 1374.)

In 2012 the United States Supreme Court held “the Eighth 

Amendment forbids a sentencing scheme that mandates life in 

prison without possibility of parole for juvenile offenders.” 

(Miller, supra, 567 U.S. at p. 479.) Based on two lines of 

precedent, one holding that juvenile offenders are less culpable 

and more susceptible to reform than adults and the other that 

imposing the harshest punishment on a juvenile requires 

individualized sentencing that takes into account an offender’s 

youth, the Supreme Court in Miller precluded a court from 

sentencing a juvenile to life without the possibility of parole 

without first considering a range of factors, including the 

juvenile’s “chronological age and its hallmark features—among 

them, immaturity, impetuosity, and failure to appreciate risks 

and consequences.” (Id. at p. 477.) Relying on cases establishing 
19

that “children are constitutionally different from adults for 

purposes of sentencing,” the Supreme Court in Miller observed

that “‘developments in psychology and brain science continue to 

show fundamental differences between juvenile and adult minds’” 

and that “those findings—of transient rashness, proclivity for 

risk, and inability to assess consequences—both lessened a child’s 

‘moral culpability’ and enhanced the prospect that, as the years 

go by and neurological development occurs, his ‘“deficiencies will 

be reformed.”’” (Id. at pp. 471-472, quoting Graham, supra,

560 U.S. at p. 68 and Roper, supra, 543 U.S. at p. 570.) The 

Supreme Court also stated that “the science and social science 

supporting [these] conclusions have become even stronger” in 

recent years. (Miller, at p. 472, fn. 5.)

The Supreme Court in Miller addressed the 

constitutionality of imposing mandatory sentences of life without 

the possibility of parole on offenders under the age of 18, and the 

cases on which the Supreme Court relied also considered Eighth 

Amendment challenges by juvenile offenders. (Miller, supra, 

567 U.S. at p. 465; see Graham, supra, 560 U.S. at p. 79 [Eighth 

Amendment prohibits life without the possibility of parole for 

juvenile offenders who do not commit homicide]; Roper, supra, 

543 U.S. at pp. 574-575 [Eighth Amendment prohibits execution 

of juvenile offenders].) For this reason, courts have limited the 

holdings of Miller to cases involving defendants under the age of 

18. (See, e.g., People v. Gamache (2010) 48 Cal.4th 347, 405 [the 

United States Constitution prohibits the death penalty for 

defendants under 18 years old, but not for those 18 years of age 

and older]; People v. Edwards (2019) 34 Cal.App.5th 183, 190 [the 

functional equivalent of life without the possibility of parole is 

constitutional for a 19-year-old defendant]; People v. Perez (2016) 
20

3 Cal.App.5th 612, 617-618 [the functional equivalent of life 

without the possibility of parole is constitutional for a 20-year-old 

defendant]; People v. Abundio (2013) 221 Cal.App.4th 1211, 

1220-1221 [life without the possibility of parole is constitutional 

for an 18-year-old defendant]; People v. Argeta (2012) 210 

Cal.App.4th 1478, 1482 [the functional equivalent of life without 

the possibility of parole is constitutional for an 18-year-old 

defendant]; see also People v. Gutierrez, supra, 58 Cal.4th at 

p. 1380 [rejecting a presumption in favor of life without the 

possibility of parole for 16- to 17-year-old defendants convicted of 

special circumstance murder].) As the United States Supreme 

Court explained in Roper: “Drawing the line at 18 years of age is 

subject, of course, to the objections always raised against 

categorical rules. The qualities that distinguish juveniles from 

adults do not disappear when an individual turns 18. By the 

same token, some under 18 have already attained a level of 

maturity some adults will never reach. For the reasons we have 

discussed, however, a line must be drawn.[9]. . . The age of 18 is 

the point where society draws the line for many purposes 

between childhood and adulthood. It is, we conclude, the age at 

which the line for death eligibility ought to rest.” (Roper, supra, 

543 U.S. at p. 574.) 

9 These “reasons” included the inability of jurors or even 

experts to differentiate on a case-by-case basis between “the 

juvenile offender whose crime reflects unfortunate yet transient 

immaturity,” and whose execution would therefore violate the 

Eighth Amendment, and “the rare juvenile offender whose crime 

reflects irreparable corruption” and whose execution therefore 

would not violate the Eighth Amendment. (Roper, supra, 543 

U.S. at p. 573.) 
21

Citing a bevy of recent scientific and legal developments, 

Montelongo argues the line the United States Supreme Court 

created in Roper between juvenile and adult offenders is 

arbitrary and, at a minimum, should be extended to 19 or older,

as “[s]cience determines.” But that is not our call to make. (See 

People v. Perez, supra, 3 Cal.App.5th at p. 617 [“Our nation’s, and 

our state’s, highest court have concluded 18 years old is the 

bright-line rule and we are bound by their holdings.”]; People v. 

Argeta, supra, 210 Cal.App.4th at p. 1482 [“[w]e respect the line 

our society has drawn and which the United States Supreme 

Court has relied on for sentencing purposes”]; United States v. 

Sierra (2d Cir. 2019) 933 F.3d 95, 97 [“Since the Supreme Court 

has chosen to draw the constitutional line at the age of 18 for 

mandatory minimum life sentences, [citation] the defendants’ 

age-based Eighth Amendment challenges to their sentences must 

fail.”]; United States v. Williston (10th Cir. 2017) 862 F.3d 1023, 

1040 [“The Supreme Court’s decision to separate juvenile and 

adult offenders using the crude, but practicable, tool of an age 

cutoff, as opposed to a more painstaking case-by-case analysis, 

necessitates some element of arbitrariness in Eighth Amendment 

jurisprudence in this area. But such is the law.”].) Unless and 

until the United States Supreme Court, the California Supreme 

Court, the Legislature, or the voters by initiative change the law, 

we are bound to apply it. 

 
22

C. Montelongo Forfeited His Right To Challenge the 

Restitution Fine and Assessments

1. Montelongo Forfeited His Challenge to the 

$10,000 Restitution Fine

Section 1202.4, subdivision (b), states: “In every case 

where a person is convicted of a crime, the court shall impose a 

separate and additional restitution fine, unless it finds 

compelling and extraordinary reasons for not doing so and states 

those reasons on the record.” A restitution fine under section 

1202.4, subdivision (b), “is intended to be, and is recognized as, 

additional punishment for a crime.” (People v. Dueñas (2019) 

30 Cal.App.5th 1157, 1169 (Dueñas); accord, People v. Belloso

(2019) 42 Cal.App.5th 647, 655 (Belloso), review granted Mar. 11, 

2020, S259755.) Under section 1202.4, subdivision (c), the trial 

court may not consider a defendant’s ability to pay when 

imposing the minimum restitution fine of $300, but the court may 

consider the defendant’s ability to pay if the court imposes a 

restitution fine above the minimum. (People v. Miracle (2018) 

6 Cal.5th 318, 356; see § 1202.4, subd. (d) [“[i]n setting the 

amount of the [restitution] fine . . . in excess of the minimum 

fine,” the court “shall consider any relevant factors, including, but 

not limited to, the defendant’s inability to pay”]; Dueñas, at 

p. 1170, fn. 6 [“a trial court may . . . consider a defendant’s ability 

to pay if the court is considering imposing a restitution fine in 

excess of the statutory minimum amount”].) 

Because the $10,000 restitution fine the trial court imposed

far exceeded the statutory minimum of $300, Montelongo had the 

opportunity to argue he was unable to pay it, but he did not. By 

failing to object and argue he did not have the ability to pay the 

$10,000 restitution fine, Montelongo forfeited the argument the 
23

court violated his constitutional rights by imposing the fine

without considering his ability to pay. (See People v. Miracle, 

supra, 6 Cal.5th at p. 356 [“[b]ecause [the] defendant did not 

object to the [restitution] fine at his sentencing hearing, he has 

forfeited his challenge”]; People v. Avila (2009) 46 Cal.4th 680, 

729 [“in not adducing evidence of his inability to pay” a $10,000 

restitution fine, the defendant “forfeited the argument”]; People v. 

Smith (2020) 46 Cal.App.5th 375, 395 [“a defendant forfeits a 

challenge to the trial court’s imposition of a restitution fine above 

the statutory minimum for failing to consider his or her ability to 

pay if the defendant did not object in the trial court”]; People v. 

Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant “forfeited 

any ability-to-pay argument regarding the restitution fine by 

failing to object”].)

2. Montelongo Also Forfeited His Challenge to the 

Assessments Under Section 1465.8 and 

Government Code Section 70373

Section 1465.8, subdivision (a)(1), provides, in part: “To 

assist in funding court operations, an assessment of forty dollars 

($40) shall be imposed on every conviction for a criminal offense.” 

Government Code section 70373, subdivision (a)(1), provides, in 

part: “To ensure and maintain adequate funding for court 

facilities, an assessment shall be imposed on every conviction for 

a criminal offense . . . in the amount of thirty dollars ($30) for 

each misdemeanor or felony.” In Dueñas this court held that “the 

assessment provisions of Government Code section 70373 

and . . . section 1465.8, if imposed without a determination that 

the defendant is able to pay, are . . . fundamentally unfair,” that 

“imposing these assessments upon indigent defendants without a 
24

determination that they have the present ability to pay violates 

due process under both the United States Constitution and the 

California Constitution,” and that “due process of law requires 

the trial court to conduct an ability to pay hearing and ascertain 

a defendant’s present ability to pay before it imposes [these] 

assessments.” (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1168; 

accord, Belloso, supra, 42 Cal.App.5th at pp. 654-655.)

Montelongo, however, forfeited his argument the court 

violated his constitutional rights by imposing the assessments 

without determining his ability to pay. Montelongo argues he 

could not have anticipated Dueñas, which was decided after the 

trial court sentenced him, and thus he did not forfeit his 

challenge to the assessments. (See People v. Castellano (2019) 

33 Cal.App.5th 485, 489 [defendant did not forfeit his contention 

the trial court violated due process in imposing assessments 

under section 1465.8 and Government Code section 70373 

without determining his ability to pay by failing to object]; see 

also Belloso, supra, 42 Cal.App.5th at p. 662; People v. Santos

(2019) 38 Cal.App.5th 923, 932; People v. Johnson (2019) 

35 Cal.App.5th 134, 137-138.) By failing to object to the $10,000 

restitution fine, however, Montelongo left no doubt he would not 

have challenged the much lower assessments even if he knew he 

had a right under Dueñas to request a hearing on his ability to 

pay. (See People v. Smith, supra, 46 Cal.App.5th at p. 395 

[defendant forfeited his challenge to the assessments and fines 

because he “did not object in the trial court on the grounds that 

he was unable to pay, even though the trial court ordered him to 

pay the $10,000 statutory maximum restitution fine”]; People v. 

Gutierrez, supra, 35 Cal.App.5th at p. 1033 [“[a]s a practical 

matter, if [the defendant] chose not to object to a $10,000 
25

restitution fine based on an inability to pay, he surely would not 

complain on similar grounds regarding an additional $1,300 in 

fees”]; but see People v. Taylor (2019) 43 Cal.App.5th 390, 

400-401 [defendant did not forfeit Dueñas challenge to the court 

operations and facilities assessments, even though he did not 

object to the maximum $10,000 restitution fine, because the 

“defendant’s inability to pay is just one among many factors the 

court should consider in setting the restitution fine above the 

minimum”].)

D. The Court’s Sentencing Minute Order and the 

Abstract of Judgment Must Be Corrected

The trial court did not impose a parole revocation fine 

under section 1202.45, subdivision (a), at the sentencing hearing. 

The November 16, 2018 minute order for that hearing, however, 

stated the court imposed a parole revocation fine on the murder 

count, despite Montelongo’s sentence of life in prison without the 

possibility of parole. The abstract of judgment indicates the court 

imposed and stayed a $10,000 parole revocation fine, but it does 

not identify a specific count. Montelongo argues, the People 

concede, and we agree the court erred in imposing a parole 

revocation fine because the only sentence the court executed was

a sentence of life without the possibility of parole. (See People v. 

Gonzalez (2016) 246 Cal.App.4th 1358, 1386 [because the 

defendants “were sentenced to life imprisonment without the 

possibility of parole, parole revocation fines are inapplicable”]; 

People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184 [where 

the defendant is “sentenced to life without the possibility of 

parole, there can be no parole, and therefore the parole 

revocation fine was improperly assessed”].) Even though the 
26

court sentenced Montelongo to a term of three years on the 

conviction for robbery, the court stayed execution of that sentence 

under section 654. Thus, “the parole revocation fine, even though 

suspended, is unauthorized and must be stricken.” (People v. 

Carr (2010) 190 Cal.App.4th 475, 482, fn. 6; see People v. 

Ybarra (2008) 166 Cal.App.4th 1069, 1097, disapproved on 

another ground in People v. Gutierrez, supra, 58 Cal.4th at 

p. 1370.) 

DISPOSITION

The judgment is affirmed. The trial court is directed to

correct the November 16, 2018 minute order and the abstract of

judgment to strike the parole revocation fine under section 

1202.45 and to forward a copy of the corrected abstract of

judgment to the Department of Corrections and Rehabilitation.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.
SEGAL, J., Concurring.

As explained in the court’s opinion, Montelongo’s 

constitutional arguments fail. I write separately to highlight the 

tension between Penal Code section 3051,1 which Montelongo 

cites in support of his Eighth Amendment argument, and the 

United States Supreme Court’s decisions in Miller v. Alabama 

(2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller), Graham v. Florida

(2010) 560 U.S. 48 [130 S.Ct. 2011] (Graham), and Roper v. 

Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183] (Roper).

As discussed, the United States Supreme Court in Miller

relied in part on Graham and Roper in holding that juvenile 

offenders are less blameworthy and more amendable to 

rehabilitation than their adult counterparts, thus making 

juveniles “‘less deserving of the most severe punishments,’” 

including life in prison without the possibility of parole. (See 

Miller, supra, 567 U.S. at p. 471, quoting Graham, supra, 560 

U.S. at p. 68.) The Supreme Court in Miller identified three 

“significant gaps” distinguishing juveniles from 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 

environment’ 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].’” (Miller, at p. 471.) The Supreme Court based these

1 Statutory references are to the Penal Code.
2

conclusions on “what ‘any parent knows,’” scientific research, and

social science. (Ibid.) For example, in its 2005 decision in Roper

the Supreme Court quoted a 2003 study observing that “‘[o]nly a 

relatively small proportion of adolescents who experiment in 

risky or illegal activities develop entrenched patterns of problem 

behavior that persist into adulthood.’” (Roper, supra, 543 U.S. at 

p. 570.) In 2010 the Supreme Court in Graham cited more recent 

developments in psychology and brain science showing 

“fundamental differences between juvenile and adult minds” that 

caused juveniles to lack the same “behavior control” as adults. 

(Graham, at p. 68.) And, as stated in the court’s opinion, in 2012 

the Supreme Court in Miller recognized that the evidence 

discussed in Roper and Graham had “become even stronger.” 

(Miller, at p. 472, fn. 5.)

The Supreme Court in Graham observed that the state, by 

denying a juvenile nonhomicide offender the right to ever reenter 

the community, makes an irrevocable judgment about the

offender’s “value and place in society” that is not appropriate in 

light of a juvenile’s capacity for change and limited moral 

culpability. (Graham, supra, 560 U.S. at p. 74.) The Supreme 

Court in Miller extended this reasoning to homicide offenders and 

emphasized that “the distinctive attributes of youth diminish the 

penological justifications for imposing the harshest sentences on 

juvenile offenders, even when they commit terrible crimes.” 

(Miller, supra, 567 U.S. at p. 472.) In particular, the Supreme 

Court in Miller stated that nothing about juveniles’ “distinctive 

(and transitory) mental traits and environmental vulnerabilities” 

was “crime-specific.” (Id. at p. 473.) “Those features are evident 

in the same way, and to the same degree,” when a juvenile 
3

commits robbery or “when (as in [Miller]) a botched robbery turns 

into a killing.” (Ibid.) 

After Graham, but before Miller, the California Legislature 

added subdivision (d)(2) to section 1170 to address “concerns 

regarding sentences of life without parole for juvenile offenders.” 

(In re Kirchner (2017) 2 Cal.5th 1040, 1049; see Assem. Com. on 

Appropriations, Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.) 

as amended Aug. 15, 2011, pp. 3-6.) Section 1170, subdivision 

(d)(2), “provides an avenue for juvenile offenders serving terms of 

life without parole to seek recall of their sentences and 

resentencing to a term that includes an opportunity for parole.” 

(Kirchner, at p. 1049; see People v. Franklin (2016) 63 Cal.4th 

261, 281 [section 1170, subdivision (d)(2), “instructs the court to 

consider a variety of factors addressing [the defendant’s] 

culpability for the original offense and efforts toward 

rehabilitation”].) 

Following Miller, the Legislature enacted section 3051 to 

establish parole eligibility guidelines for juvenile offenders 

sentenced to lengthy prison terms. (Former § 3051, subd. (a)(1), 

added by Stats. 2013, ch. 312, § 4; see In re Jones (2019) 

42 Cal.App.5th 477, 484 (conc. opn. of Pollak, J.) (Jones) [“Section 

3051 was enacted in response to [Miller and Graham] and in 

recognition that ‘[e]xisting sentencing laws do not distinguish 

youth from adults.’”]; People v. Jones (2017) 7 Cal.App.5th 787, 

817 [the Legislature enacted section 3051 in response to Graham

and Miller].) In enacting section 3051, “the Legislature explained 

that ‘youthfulness both lessens a juvenile’s moral culpability and 

enhances the prospect that, as a youth matures into an adult and 

neurological development occurs, these individuals can become 

contributing members of society.’” (In re Jenson (2018) 
4

24 Cal.App.5th 266, 276.) “Thus, the bill’s purpose was ‘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.’” (Id. at pp. 276-277; see Stats. 2013, ch. 312, § 1.) As 

enacted in 2013, section 3051, subdivision (h), excluded juvenile 

offenders sentenced to life without the possibility of parole 

because they were already eligible for resentencing under 

section 1170. (See Sen. Com. on Appropriations, Rep. on Sen. Bill 

No. 260 (2013-2014 Reg. Sess.) Aug. 14, 2013, p. 2.)

Meanwhile, the science and social science on which the 

United States Supreme Court relied in Miller and Graham

showed that some differences between juvenile and adult brains 

persisted into the late teenage years and early 20s. (Brief for the 

American Psychological Association et al. as Amici Curiae filed in 

Miller, pp. 9-10, 28; Brief for the American Medical Association 

et al. as Amici Curiae filed in Graham, pp. 18, 20-22; Brief for the 

American Psychological Association et al. as Amici Curiae filed in 

Graham, p. 27.) In 2015 the Legislature acknowledged these 

advancements in the understanding of brain development and 

amended section 3051 to apply to offenders who committed 

crimes before they reached the age of 23. (Former § 3051, 

subd. (a)(1), added by Stats. 2015, ch. 471, § 1.) The 2015 

amendments were based on “‘[r]ecent scientific evidence on 

adolescent and young adult development and neuroscience 

show[ing] that certain areas of the brain—particularly those 

affecting judgment and decision-making—do not fully develop 

until the early- to mid-20s.’” (Jones, supra, 42 Cal.App.5th at 

pp. 484-485 (conc. opn. of Pollak, J.); see Sen. Com. on Public 
5

Safety, Analysis of Sen. Bill No. 261 (2015-2016 Reg. Sess.) 

Apr. 28, 2015, p. D.) The author of the 2015 amendments cited 

“[v]arious studies by researchers from Stanford University 

(2009), University of Alberta (2011), and the National Institute of 

Mental Health (2011) all confirm[ing] that the process of brain 

development continues well beyond age 18.” (Sen. Com. on Public 

Safety, Analysis of Sen. Bill No. 261, supra, p. D.) The legislative 

history of the 2015 amendments also cited other California laws 

recognizing that young adults are different from older adults. 

For example, the Health and Human Services Agency 

Department of Youth and Community Restoration (previously the 

Department of Juvenile Justice) must detain and provide services 

and programming to some young adults until age 23. (Sen. Com. 

on Public Safety, Analysis of Sen. Bill No. 261, supra, p. D.) 

California also extends foster care support up to age 21 and 

provides special protections and opportunities for young adults 

entering prison through age 22. (Id. at p. E.) 

Senate Bill No. 261, which amended section 3051 in 2015 

and raised the age of eligible youth offenders to 23, did not 

include corresponding amendments to section 1170 to allow for 

the recall and resentencing of 18- to 23-year-old offenders 

sentenced to life in prison without the possibility of parole. 

Senate Bill No. 261 also did not amend relevant portions of 

section 3051, subdivision (h), which excluded from the class of 

eligible offenders those sentenced to life in prison without the 

possibility of parole.2 Thus, despite the Supreme Court’s 

2 As amended by Senate Bill No. 261, the current version of 

section 3051, subdivision (h), also excludes offenders sentenced 

under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), sex 

offenders sentenced under Jessica’s Law (§ 667.61), and 
6

pronouncement in Miller that the differences between fully 

developed and youthful brains are not “crime-specific,” the 

Legislature excluded from the benefits of sections 1170 and 3051 

young adult offenders who committed certain specific crimes; 

namely, those crimes subjecting them to life in prison without the 

possibility of parole.

In 2017 the Legislature again amended section 3051 to 

raise the age of eligible youth offenders to 25. (See § 3051, 

subd. (a)(1).) According to the author of Assembly Bill No. 1308, 

the legislation “‘align[ed] public policy with scientific research . . . 

[that] show[ed] that certain areas of the brain, particularly those 

affecting judgment and decision-making, do not develop until the 

early-to-mid-20s.’” (Assem. Com. on Public Safety, Analysis of 

Assem. Bill No. 1308, as amended Mar. 30, 2017 (2017-2018 

Reg. Sess.) Apr. 25, 2017, pp. 2-3.) Again, however, the 

Legislature did not amend section 3051, subdivision (h), which 

continues to deny a youthful offender parole hearing to young 

adults who committed their offenses when they were between 18 

and 25 years of age and were sentenced to life without the 

possibility of parole. Thus, under section 3051, a young adult 

sentenced to an indeterminate prison term for premeditated first 

degree murder has an opportunity for parole, whereas 

Montelongo, who may not have intended to kill Brooks but was 

subject to a mandatory sentence of life without the possibility of

parole (because the People did not seek the death penalty), does 

not. (Cf. Graham, supra, 560 U.S. at p. 70 [a sentence of life 

individuals to whom the section would otherwise apply “but who, 

subsequent to attaining 26 years of age, commit[ ] an additional 

crime for which malice aforethought is a necessary element of the 

crime.” (See In re Jenson, supra, 24 Cal.App.5th at pp. 277-278.)
7

without the possibility of parole “‘means denial of hope; it means 

that good behavior and character improvement are immaterial’”]; 

People v. Contreras (2018) 4 Cal.5th 349, 366 (Contreras) [“a 

sentence of [life without parole] ‘deprives the convict of the most 

basic liberties without giving hope of restoration,’” quoting 

Graham, at pp. 69-70].) 

I believe section 3051’s current treatment of young adult 

offenders like Montelongo conflicts with the California Supreme 

Court decisions that adopted and extended Miller. Shortly after 

the United States Supreme Court decided Miller, the California 

Supreme Court held in People v. Caballero (2012) 55 Cal.4th 262 

(Caballero) that sentencing a juvenile offender for a nonhomicide 

offense to a term functionally equivalent to life in prison without 

the possibility of parole violated the Eighth Amendment. 

(Caballero, at p. 268.) Citing Miller, the California Supreme 

Court in Caballero held the Eighth Amendment’s proscription on 

sentences for juvenile offenders that do not allow them “to 

‘demonstrate growth and maturity’ to try to secure [their] 

release” is not “‘crime-specific.’” (Caballero, at pp. 267-268.) 

In 2014 the California Supreme Court held in People v. 

Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) that the special 

circumstances murder statute “confers discretion on a trial court 

to sentence a 16- or 17-year-old juvenile convicted of special 

circumstance murder to life without parole or to 25 years to life, 

with no presumption in favor of life without parole.” (Id. at 

p. 1360.) In interpreting section 190.5, subdivision (b), the 

California Supreme Court stated: “Miller made clear that its 

concerns about juveniles’ lessened culpability and greater 

capacity for reform have force independent of the nature of their 

crimes. . . . Graham and Roper likewise indicated that the 
8

mitigating features of youth can be dispositively relevant, 

whether the crime is a nonhomicide offense or a heinous murder 

punishable by death if committed by an adult. [Citation.] 

Although section 190.5(b) does not apply to every murder offense, 

it applies to a broad and diverse range of first degree murder 

offenses. [Citations.] To presume that all such offenses 

committed by 16 and 17 year olds merit a presumptive penalty of 

life without parole cannot be easily reconciled with Miller’s 

principle that ‘the distinctive attributes of youth [that] diminish 

the penological justifications for imposing the harshest sentences 

on juvenile offenders’ are not ‘crime-specific.’” (Gutierrez, at 

pp. 1380-1381.) 

And in 2018 the California Supreme Court held in 

Contreras that a functional sentence of life without the possibility

of parole is unconstitutional for nonhomicide crimes committed 

by juveniles. (Contreras, supra, 4 Cal.5th at p. 380.) In response 

to a dissenting justice’s argument that the trial court had taken 

the defendants’ youth into account in sentencing them, 

respectively, to 50 and 58 years to life, the Supreme Court stated: 

“[T]he key holding of Graham is that ‘in light of a juvenile 

nonhomicide offender’s capacity for change and limited moral 

culpability’ [citation], no sentencing court is permitted to render a 

judgment ‘at the outset’ that a juvenile nonhomicide offender is 

incorrigible [citation]. On remand, the sentencing of each 

defendant must be guided by the ‘central intuition’ of the high 

court’s case law in this area—‘that children who commit even 

heinous crimes are capable of change.’” (Id. at p. 380; see 

Montgomery v. Louisiana (2016) 577 U.S. , [136 S.Ct. 718, 

736].)
9

As Montelongo points out, the changes in the legal and 

scientific landscape since the United States Supreme Court 

decided Roper in 2005 suggest we should reconsider the 

propriety, wisdom, and perhaps even the constitutionality of 

imposing a mandatory sentence of life without the possibility of 

parole on an 18-year-old. (See Graham, supra, 560 U.S. at p. 58; 

Gutierrez, supra, 58 Cal.4th at p. 1374.) Citing the scientific 

advancements identified in Miller and discussed in the legislative 

history of section 3051, other states have joined California in 

moving “the point where society draws the line” between 

juveniles and adults. (Roper, supra, 543 U.S. at p. 574; see Cruz 

v. United States (D.Conn. Mar. 29, 2018, Civ. A. No. 11-CV-787 

(JCH)) [2018 WL 1541898, p. 19] [collecting state laws similar to 

section 3051 that provide youthful parole hearings for offenders 

over the age of 18].) Laws in California (and other states) treat 

18- to 21- year-old persons differently from persons over the age 

of 21, including laws that govern drinking alcohol, smoking 

cigarettes, buying and possessing firearms and ammunition, and 

protecting the welfare of children. (See Sen. Com. on Public 

Safety, Analysis of Sen. Bill No. 261, supra, pp. D-E; see 

generally Blume et. al., Death by Numbers: Why Evolving 

Standards Compel Extending Roper’s Categorical Ban Against 

Executing Juveniles from Eighteen to Twenty-one (2020) 98 Tex. 

L.Rev. 921, 935 [collecting state laws].) 

And yet we are stuck with the line that the United States 

Supreme Court drew at 18 years old in Roper in 2005 and that 

the Legislature imported into section 3051. (See Roper, supra, 

543 U.S. at p. 574; § 3051, subd. (b)(4); court’s opn., ante, at 

pp. 20-21].) Whether and where the Legislature should draw a 

new line in section 3051 is not for us to say, but it may be time 
10

for the Legislature to rethink the old Roper line.3 As the United 

States Supreme Court and the California Supreme Court have 

recognized, a juvenile offender’s eligibility for a youthful parole 

hearing should not hinge on the crime he or she committed, the 

statute under which the prosecutor elected to charge him or her, 

or the sentence mandated by statute. None of those factors is 

relevant to determining whether a young adult offender is 

irreparably corrupt. (See Miller, supra, 567 U.S. at pp. 479-480; 

Gutierrez, supra, 58 Cal.4th at p. 1388.) 

SEGAL, J.

3 In his concurring opinion in Jones, supra, 42 Cal.App.5th 

477 Justice Pollak, joined by one of his colleagues, suggested that 

section 3051 may deny equal protection to defendants who, like 

Montelongo, are similarly situated to other 18- to 25-year-olds for 

purposes of determining whether their brains are capable of 

outgrowing “the youthful impulses that led to the commission of 

their offenses,” but who are nonetheless denied access to a 

youthful offender parole hearing because they were sentenced to 

life without the possibility of parole instead of a sentence with 

the possibility of parole. (See Jones, at pp. 485-486 (conc. opn. of 

Pollak, J.).) “The presumptive fact that the [life without the 

possibility of parole] sentence was based on a more serious 

offense provides no rational basis for the distinction because 

[section 3051] is not designed to determine the degree of 

appropriate punishment but to determine whether the individual 

has outgrown his or her criminality. There is no reason to 

conclusively presume that one such person is more likely to have 

satisfactorily matured than the other.” (Jones, at p. 486.) This is 

particularly true where, as here, intent to kill is not an element 

of the crime that subjected the defendant to life in prison without 

the possibility of parole.
Filed 1/27/21

Court of Appeal, Second Appellate District, Division Seven - No. B294095

S265597

IN THE SUPREME COURT OF CALIFORNIA

En Banc

________________________________________________________________________

THE PEOPLE, Plaintiff and Respondent,

v.

GIOVANNY MONTELONGO, Defendant and Appellant.

________________________________________________________________________

The petition for review is denied.

______________________________

 Chief Justice
PEOPLE v. MONTELONGO

S265597

Concurring Statement by Justice Liu

In 2013, the Legislature passed Senate Bill No. 260 (2013–

2014 Reg. Sess.), which enacted Penal Code section 3051. (All 

undesignated statutory references are to the Penal Code.) The 

bill required the Board of Parole Hearings to conduct youth 

offender parole hearings and consider release of offenders who 

committed specified crimes before the age of 18. (Legis. 

Counsel’s Dig., Sen. Bill No. 260 (2013–2014 Reg. Sess.).) In 

establishing this parole eligibility mechanism, the Legislature 

sought to account for the fact that “youthfulness both lessens a 

juvenile’s moral culpability and enhances the prospect that, as 

a youth matures into an adult and neurological development 

occurs, these individuals can become contributing members of 

society.” (Stats. 2013, ch. 312, § 1.) It was “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 established.” (Ibid.) 

Soon thereafter, the Legislature amended the age 

threshold for youth offenders to age 23 (Stats. 2015, ch. 471, § 2) 

and then age 25 (Stats. 2017, ch. 684, § 2.5). The Legislature 

made these changes in light of scientific evidence that “certain 

areas of the brain, particularly those affecting judgment and 

decision-making, do not develop until the early-to-mid-20s.” 

(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 

(2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2.) The 

Legislature also extended parole hearings in the 25th year of 
PEOPLE v. MONTELONGO

Liu, J., concurring statement upon denial of review

2

incarceration to youth offenders sentenced to life imprisonment 

without the possibility of parole, but only for an offense 

committed before age 18. (People v. Contreras (2018) 4 Cal.5th 

349, 381 (Contreras), citing § 3051, subd. (b)(4), as amended by 

Stats. 2017, ch. 684, § 1.5.) 

I write to underscore that section 3051’s parole eligibility 

scheme — specifically, its exclusion of persons sentenced to life 

without parole for offenses committed between ages 18 and 25 

— stands in “tension” with Miller v. Alabama (2012) 567 U.S. 

460 (Miller). (People v. Montelongo (2020) 55 Cal.App.5th 1016, 

1036 (conc. opn. of Segal, J.) (Montelongo).)

Miller identified three significant differences between 

juveniles and adults that bear on culpability. “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 environment’ 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].’ ” (Miller, supra, 

567 U.S. at p. 471, citing Roper v. Simmons (2005) 543 U.S. 551, 

569–570 (Roper).) “The Supreme Court based these conclusions 

on ‘what “any parent knows,” ’ scientific research, and social 

science.” (Montelongo, supra, 55 Cal.App.5th at p. 1036 (conc. 

opn. of Segal, J.), citing Miller, at p. 471.)

Crucially, Miller explained that in this context “none of 

what [high court precedent has] said about children . . . is crime-
PEOPLE v. MONTELONGO

Liu, J., concurring statement upon denial of review

3

specific.” (Miller, supra, 567 U.S. at p. 473.) The distinctive 

attributes of youth that mitigate culpability — transitory 

mental traits and environmental vulnerabilities — “ ‘are evident 

in the same way, and to the same degree,’ when a juvenile 

commits robbery or ‘when (as in [Miller]) a botched robbery 

turns into a killing.’ ” (Montelongo, supra, 55 Cal.App.5th at 

p. 1037 (conc. opn. of Segal, J.).)

The Legislature has recognized that Miller’s observations 

about juveniles also apply to young adults up to age 25. (Stats. 

2017, ch. 684, § 2.5.) Yet it has excluded certain youth offenders 

from parole hearings based on the type of crime they committed. 

In particular, section 3051 does not allow for resentencing of 18-

to 25-year-old offenders convicted of special circumstance 

murder and sentenced to life in prison without the possibility of 

parole. (§ 3051, subd. (h).) I agree with Justice Segal that “a 

juvenile offender’s eligibility for a youthful parole hearing 

should not hinge on the crime he or she committed, the statute 

under which the prosecutor elected to charge him or her, or the 

sentence mandated by statute. None of those factors is relevant 

to determining whether a young adult offender is irreparably 

corrupt.” (Montelongo, supra, 55 Cal.App.5th at p. 1041 (conc. 

opn. of Segal, J.).) In light of the high court’s clear statement 

that the mitigating attributes of youth are not “crime-specific” 

(Miller, supra, 567 U.S. at p. 473) and our Legislature’s 

recognition that those attributes are found in young adults up 

to age 25, it is questionable whether there is a rational basis for 

section 3051’s exclusion of 18- to 25-year-olds sentenced to life 

without parole.

The Court of Appeal declined to resolve whether 

section 3051 violates equal protection because defendant raised 

this argument for the first time in his reply brief. (See 
PEOPLE v. MONTELONGO

Liu, J., concurring statement upon denial of review

4

Montelongo, supra, 55 Cal.App.5th at p. 1030, fn. 8.) But, as 

Justice Segal noted, “under section 3051, a young adult 

sentenced to an indeterminate prison term for premeditated 

first degree murder has an opportunity for parole, whereas 

Montelongo, who may not have intended to kill Brooks but was 

subject to a mandatory sentence of life without the possibility of 

parole (because the People did not seek the death penalty), does 

not.” (Id. at p. 1039 (conc. opn. of Segal, J.).) Indeed, the 

evidence in this case supported a finding of felony murder, 

which qualifies as first degree murder but does not require an 

intent to kill. (§ 189, subd. (a).)

As we observed in Contreras, there is a colorable claim 

that section 3051’s exclusion of certain juvenile offenders based 

on their controlling offense “violates principles of equal 

protection and the Eighth Amendment” or “constitutes ‘unusual 

punishment’ within the meaning of article I, section 17 of the 

California Constitution.” (Contreras, supra, 4 Cal.5th at p. 382; 

see People v. Williams (2020) 47 Cal.App.5th 475, review 

granted July 22, 2020, S262669; People v. Edwards (2019) 

34 Cal.App.5th 183, 197, 199 [“section 3051’s carve-out for One 

Strike defendants violates principles of equal protection” and is 

“unconstitutional on its face”].) Because there is a substantial 

question whether section 3051’s exclusion of 18- to 25-year-olds 

sentenced to life without parole violates equal protection, “there 

is good reason for legislative reconsideration” of the statute. (In 

re Jones (2019) 42 Cal.App.5th 477, 486–487 (conc. opn. of 

Pollak, J.).)

Further, in light of “changes in the legal and scientific 

landscape,” I join Justice Segal’s suggestion that the Legislature 

“reconsider the propriety, wisdom, and perhaps even the 

constitutionality of imposing a mandatory sentence of life 
PEOPLE v. MONTELONGO

Liu, J., concurring statement upon denial of review

5

without the possibility of parole on an 18-year-old.” 

(Montelongo, supra, 55 Cal.App.5th at p. 1040 (conc. opn. of 

Segal, J.); see id. at p. 1041 [“it may be time for the Legislature 

to rethink the old Roper line”].) Advances in scientific 

understanding have revealed that the ordinary process of 

neurological and cognitive development continues for several 

years past age 18, and our Legislature recognized as much when 

it extended youth offender parole eligibility to persons who 

committed their controlling offense at or before age 25. That 

recognition calls into question whether it is tenable, without an 

individualized showing of irreparable corruption, to lock up 

young adult offenders and throw away the key. If what the high 

court has said about juveniles also applies to young adults, then 

so does “the truth of Miller’s central intuition” that such 

offenders “who commit even heinous crimes are capable of 

change.” (Montgomery v. Louisiana (2016) 577 U.S. __, __ 

[136 S.Ct. 718, 736].)

LIU, J.