People v. Lozano

Filed 11/9/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B278663

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. NA023984)

v.

ELIZABETH LOZANO,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of Los

Angeles County, Richard R. Romero, Judge. Dismissed.

Post-Conviction Justice Project, University of Southern

California, Gould School of Law, Heidi L. Rummel, Michael J.

Brennan, Anna Faircloth Feingold, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief

Assistant Attorney General, Lance E. Winters, Senior Assistant

Attorney General, Shawn McGahey Webb, Supervising Deputy

Attorney General, Michael Katz, Deputy Attorney General, for

Plaintiff and Respondent.

Prior to a recent amendment to Penal Code section

3051,1 juvenile homicide offenders who were sentenced to life

in prison without the possibility of parole (LWOP), such as

defendant and appellant Elizabeth Lozano, would die in

prison without the opportunity for a parole suitability

hearing. On October 11, 2017, Governor Brown signed

Senate Bill No. 394 (SB 394), which amends section 3051 to

expressly provide a youth offender parole hearing to Lozano

and others similarly situated, meaning Lozano will receive a

parole suitability hearing after 25 years of incarceration.

With the amendment to section 3051, Lozano’s argument

that her LWOP sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment is moot.

The appeal is dismissed.

PROCEDURAL HISTORY

Lozano was sentenced to LWOP in 1996 following her

conviction of first degree murder with a robbery-murder

special circumstance. (§§ 187, 190.2, subd. (a)(17).)2 She

was 16 years old at the time of the commitment offense. In

1997, this court affirmed the judgment as modified, leaving

1Statutory references are to the Penal Code unless

otherwise indicated.

2 Lozano was also convicted of second degree robbery

(§ 211) and the jury found a principal was armed with a

firearm (§ 12022, subd. (a)(1)).

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intact the LWOP sentence. (People v. Lozano (June 12, 1997,

B106665) [nonpub. opn.].)

Fifteen years after Lozano’s conviction was affirmed as

modified, the Supreme Court decided Miller v. Alabama

(2012) 567 U.S. 460 (Miller), holding that “the Eighth

Amendment forbids a sentencing scheme that mandates life

in prison without possibility of parole for juvenile offenders.”

(Id. at p. 479.) Sentencing of juvenile homicide offenders

must take into account “youth (and all that accompanies it),”

as well as a juvenile’s “diminished culpability and

heightened capacity for change.” (Ibid.) With the

concurrence of the prosecution, Lozano was afforded a new

sentencing hearing in 2015 to consider the holding in Miller.

The trial court again sentenced Lozano to LWOP. In doing

so the court refused to consider Lozano’s conduct in prison in

the intervening 19 years. Lozano’s initial performance in

prison was dismal, including a conviction for conspiracy to

transport a controlled substance, but as the years passed her

conduct improved significantly, earning Lozano the support

of various prison officials. We reversed on appeal and

remanded with directions to the trial court to conduct a new

sentencing hearing at which the court would consider

Lozano’s post-conviction conduct in prison, both good and

bad, in determining whether Lozano was “‘the rare juvenile

offender whose crime reflects irreparable corruption,’” as

required by Miller, supra, at pages 479–480, in order to

justify an LWOP sentence. (People v. Lozano (2016) 243

Cal.App.4th 1126, 1137–1138.)

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The trial court held Lozano’s third sentencing hearing

in 2016. After consideration of briefing, exhibits, victim

impact statements, expert testimony, and evidence of a

recent violation of prison rules (Lozano’s unlawful possession

of a cell phone), the court again sentenced Lozano to LWOP.

DISCUSSION

Lozano contends her LWOP sentence violates the

Eighth Amendment. After briefing was complete, we invited

the parties to address whether newly enacted section 3051,

subdivision (b)(4), renders Lozano’s Eighth Amendment

claim moot. In accord with the holding in People v. Franklin,

(2016) 63 Cal.4th 261 (Franklin), and the reasoning in

Montgomery v. Louisiana (2016) 136 S.Ct. 718

(Montgomery), we conclude the issue is moot because Lozano

is no longer subject to an LWOP sentence.

Prior to the passage of SB 394, Lozano’s LWOP

sentence meant she was not eligible for a parole suitability

hearing. SB 394 amends section 3051 to add subdivision

(b)(4) as follows: “A person who was convicted of a

controlling offense that was committed before the person had

attained 18 years of age and for which the sentence is life

without the possibility of parole 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

previously released or entitled to an earlier parole

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consideration hearing pursuant to other statutory

provisions.”

We agree with the parties that under SB 394, Lozano is

now eligible for parole suitability hearing during her 25th

year of incarceration. In our view, this renders Lozano’s

appeal moot, as her situation is not materially different from

that of the defendant in Franklin. Franklin, a juvenile

homicide offender, “would first become eligible for parole at

age 66” under his mandatory 50-year-to-life sentence

imposed by the trial court. (Franklin, supra, 63 Cal.4th at

p. 276.) After Franklin was sentenced, the Legislature

enacted section 3051, creating a youth offender parole

hearing process. “[S]ection 3051 has superseded Franklin’s

sentence so that notwithstanding his original term of 50

years to life, he is eligible for a ‘youth offender parole

hearing’ during the 25th year of his sentence. Crucially, the

Legislature’s recent enactment also requires the Board not

just to consider but to ‘give great weight to the diminished

culpability of juveniles as compared to adults, the hallmark

features of youth, and any subsequent growth and increased

maturity of the prisoner in accordance with relevant case

law.’ (§ 4801, subd. (c).) For those juvenile offenders eligible

for youth offender parole hearings, the provisions of Senate

Bill No. 260 are designed to ensure they will have a

meaningful opportunity for release no more than 25 years

into their incarceration.” (Franklin, supra, 63 Cal.4th at p.

277.)

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As originally enacted, section 3051, subdivision (h),

“exclude[d] several categories of juvenile offenders from

eligibility for a youth offender parole hearing,” including

those, like Lozano, “who [were] sentenced to life without

parole.” (Franklin, supra, 63 Cal.4th at pp. 277–278.) The

Franklin court “express[ed] no view on Miller claims by

juvenile offenders who are ineligible for such a hearing

under section 3051, subdivision (h).” (Id. at p. 280.) As now

amended, section 3051 expressly affords Lozano, a juvenile

homicide offender sentenced to LWOP, a chance to

participate in a youth offender parole hearing, which

provides “some meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.”

(Graham v. Florida (2010) 560 U.S. 48, 75.) This legislative

remedy is consistent with the Supreme Court’s conclusion in

Graham that “[i]t is for the State, in the first instance, to

explore the means and mechanisms for compliance” with the

commands of the Eighth Amendment for juvenile offenders.

(Ibid.)

The Supreme Court, in Montgomery, supra, 136 S.Ct.

718, employed the same approach as the Franklin court did

in considering a state’s ameliorative efforts to comply with

the Eighth Amendment. “Giving Miller retroactive effect,

moreover, does not require States to relitigate sentences, let

alone convictions, in every case where a juvenile offender

received mandatory life without parole. A State may remedy

a Miller violation by permitting juvenile homicide offenders

to be considered for parole, rather than by resentencing

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them. See, e.g., Wyo. Stat. Ann. § 6–10–301(c) (2013)

(juvenile homicide offenders eligible for parole after 25

years). Allowing those offenders to be considered for parole

ensures that juveniles whose crimes reflected only transient

immaturity—and who have since matured—will not be

forced to serve a disproportionate sentence in violation of the

Eighth Amendment.” (Id. at p. 736.)

Lozano argues SB 394 does not render moot her

contention that the most recent LWOP sentence imposed by

the trial court violates the Eighth Amendment. She

contends that although SB 394 may have mooted “the

disproportionality concern for juvenile life without parole,”

“she will face adverse collateral consequences unless the

errors in her sentence are corrected.” The only error

identified by Lozano is that the trial court did not sentence

her to 26 years-to-life (25 years-to-life for first degree murder

and the one-year enhancement for use of a weapon by a

principle).

Lozano reasons that although she is now entitled to

parole hearing after 25 years of incarceration under the

procedures established by SB 394, her earliest opportunity

for release will be between January and November 2020.

She contrasts those dates to what would have happened if

the trial court had imposed a 26-year-to-life sentence instead

of LWOP. Had that lesser sentence been imposed, Lozano

calculates that her minimum eligible parole date would have

been in December 2012. Lozano argues that the delay in

parole eligibility “affects her meaningful opportunity for

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release, a constitutional right that the U.S. Supreme Court,

and subsequently the California Legislature, has afforded

youth offenders.”

We need not determine if Lozano’s calculations are

correct, because her argument rests on the faulty premise

that the only remedy for the asserted Eighth Amendment

violation is resentencing her to no more than 26-years-to-life

for her conviction of first degree murder with special

circumstances. Montgomery, as we have explained, permits

the states to remedy a Miller violation by providing

meaningful parole consideration—as afforded by SB 394—

rather than resentencing. Moreover, the sentence cap of 26-

years-to-life urged by Lozano is not required by the Eighth

Amendment. (See People v. Garcia (2017) 7 Cal.App.5th

941, 949–50 [juvenile sentence of 32 years to life does not

violate the Eighth Amendment]; People v. Perez (2013) 214

Cal.App.4th 49, 57 [no case has been cited in which a court

struck down a juvenile’s sentence as cruel and unusual

where “the perpetrator still has substantial life expectancy

left at the time of eligibility for parole”].)

What Lozano is entitled to under the Eighth

Amendment is a prison term that reflects “‘some meaningful

opportunity to obtain release based on demonstrated

maturity and rehabilitation’” (Miller, supra, 136 S.Ct. at

p. 479), while recognizing that “prisoners who have shown

an inability to reform will continue to serve life sentences”

(Montgomery, supra, 136 S.Ct. at p. 736.) The Legislature

has made the determination in SB 394 that neither Lozano,

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nor any other similarly situated California juvenile homicide

offender, will face a sentence that possibly runs afoul of the

Eighth Amendment as interpreted in Miller. The

Constitution does not require that Lozano be resentenced or

receive any additional reduction in punishment. (Franklin,

supra, 63 Cal.4th at p. 277.)

DISPOSITION

The appeal is dismissed as moot.

KRIEGLER, Acting P.J.

We concur:

BAKER, J.

DUNNING, J.

 Judge of the Orange Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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