People v. Contreras

Filed 2/26/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) S224564

Plaintiff and Respondent, )

) Ct.App. 4/1 D063428

v. )

) San Diego County

LEONEL CONTRERAS and ) Super. Ct. No. SCD236438

WILLIAM STEVEN RODRIGUEZ, )

)

Defendants and Appellants. )

____________________________________)

Defendants Leonel Contreras and William Rodriguez were convicted in a

joint trial of kidnapping and sexual offenses they committed as 16 year olds.

Rodriguez was sentenced to a term of 50 years to life, and Contreras was

sentenced to a term of 58 years to life. We granted review to determine whether

the sentences imposed on these juvenile nonhomicide offenders violate the Eighth

Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268

(Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham). We hold that

these sentences are unconstitutional under the reasoning of Graham.

I.

On September 3, 2011, Jane Doe 1 and Jane Doe 2 attended a birthday

party for Doe 1’s uncle in the Rancho Peñasquitos area of San Diego County. Doe

1 was 16 years old, and Doe 2 was 15 years old. In the evening, Doe 1 and Doe 2

went for a walk to a greenbelt nearby and sat near a tree to talk. Two teenagers,

later identified as Contreras and Rodriguez, walked past them dressed in dark

SEE DISSENTING OPINIONS

clothing and with their hoods up. Shortly thereafter, defendants walked up behind

Doe 1 and Doe 2, tackled them, and forced them to walk across the street, up an

embankment, and into a vegetated area. Contreras held a knife to Doe 1’s neck

and told her to tell Doe 2 to “shut the fuck up” multiple times. Rodriguez covered

Doe 2’s mouth with his hand, tied a bandana around her mouth, and threatened to

hurt her if she screamed. Doe 2 repeatedly tried to get away, fell once from

struggling, and at one point bit Rodriguez’s hand.

Rodriguez raped and sodomized Doe 2. Contreras raped Doe 1 and forced

her to orally copulate him. Rodriguez then raped and sodomized Doe 1 and forced

her to orally copulate him. Contreras put a knife to Doe 2’s neck, raped her, and

forced her to orally copulate him. Rodriguez forced Doe 2 and then Doe 1 to

orally copulate him. Defendants then told Doe 1 and Doe 2 to get dressed.

Rodriguez told Doe 1 and Doe 2 not to tell anyone what happened. One of the

defendants said they would follow Doe 1 and Doe 2 home and come after them

and one of Doe 1’s family members if they told anyone what had happened. Doe

1 and Doe 2 walked to the street and saw Doe 1’s parents, who had been searching

for them.

In 2012, defendants were charged as adults under former Welfare and

Institutions Code section 707, subdivisions (d)(1) and (d)(2)(A) (amended by

Prop. 57, § 4.2, eff. Nov. 9, 2016) and were jointly tried before separate juries. A

jury convicted Contreras of conspiracy to commit kidnapping and forcible rape

(Pen. Code, § 182, subd. (a)(1); all undesignated statutory references are to this

code), rape by foreign object (§ 289, subd. (a)(1)(A)), two counts of kidnapping

(§ 207, subd. (a)), seven counts of forcible rape (§ 261, subd. (a)(2)), eight counts

of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by

use of force (§ 286, subd. (c)(2)(A)). The jury found true allegations that

Contreras committed the crimes with use of a knife (§ 12022.3, subd. (a)) as well

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as allegations that many of the sexual assault crimes were committed during a

kidnapping, against more than one victim, and with a knife within the meaning of

subdivisions (d)(2), (e)(1), (e)(3), and (e)(4) of section 667.61, the “One Strike”

law.

On the same day, a jury convicted Rodriguez of two counts of kidnapping

(§ 207, subd. (a)), two counts of forcible rape (§ 261, subd. (a)(2)), four counts of

forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by

use of force (§ 286, subd. (c)(2)(A)). The jury found true allegations that

Rodriguez had committed the sexual assault crimes during a kidnapping and

against multiple victims within the meaning of subdivisions (d)(2) and (e)(4) of

section 667.61.

At defendants’ sentencing hearings, the parties and the trial court agreed

that the court could not impose the statutory maximum sentences of several

hundred years, as those sentences would fall outside of defendants’ natural life

expectancies. At Rodriguez’s hearing, defense counsel noted that Rodriguez had

no criminal history, and the court acknowledged his “very difficult upbringing.”

But the court said, “I have to weigh that against the horrible scars that you have

left on these two girls.” The court then sentenced Rodriguez to two consecutive

terms of 25 years to life. The court observed that it was required to sentence

Rodriguez to additional consecutive terms of 25 years to life under section 667.61,

subdivision (i) but reasoned that doing so would violate Graham and Caballero.

At Contreras’s hearing, defense counsel noted that Contreras had no arrests

and one prior misdemeanor for vandalism. The court said, “I think that Mr.

Rodriguez was a follower. Mr. Contreras was the shot caller.” The trial judge

identified the “brutal and callous and ruthless” nature of the crimes and expressed

skepticism about Contreras’s ability to rehabilitate: “I think his brain is developed

into who he is . . . .” Based on these factors, among others, the court stated, “I

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think that it’s only appropriate that he suffer the same punishment that Mr.

Rodriguez did and plus he used a knife, so he should get a little bit more.” The

court sentenced Contreras to two consecutive terms of 25 years to life in addition

to two four-year terms and imposed many additional concurrent or stayed

sentences. The trial judge concluded by noting, “If I could sentence you to 640

years to life, I would have. . . . Because you were a minor, you were spared that

sentence.”

Defendants appealed their convictions and sentences on multiple grounds.

The Court of Appeal affirmed the convictions but reversed defendants’ sentences.

It held that the sentences “preclude any possibility of parole until [defendants] are

near the end of their lifetimes” and thus “fall[] short of giving them the realistic

chance for release contemplated by Graham.” The Court of Appeal remanded the

matter to the trial court for resentencing, with instructions to consider the

circumstances of the crimes, including the existence of multiple victims, together

with all mitigating circumstances, and to impose a parole eligibility date consistent

with the holding in Graham.

We granted review and deferred briefing pending our decision in People v.

Franklin (2016) 63 Cal.4th 261 (Franklin). In Franklin, we held that juvenile

homicide offenders may not be sentenced to the functional equivalent of life

without parole (LWOP) without certain protections afforded by the Eighth

Amendment as interpreted in Miller v. Alabama (2012) 567 U.S. 460 (Miller).

(Franklin, at p. 276.) The defendant there had been sentenced to 50 years to life

for first degree murder, and he claimed that his sentence was the functional

equivalent of LWOP and was imposed in violation of Miller. We held that

because section 3051 entitles Franklin to a youth offender parole hearing during

his 25th year of incarceration, his sentence “is neither LWOP nor its functional

equivalent” and thus gives rise to “no Miller claim.” (Franklin, at p. 280.)

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A youth offender parole hearing is not available to juveniles convicted

under the One Strike law, as defendants were here. (§ 3051, subd. (h).) Because

Franklin does not resolve this case, we ordered briefing to address whether

Rodriguez’s sentence of 50 years to life or Contreras’s sentence of 58 years to life

violates the Eighth Amendment.

II.

The Eighth Amendment ban on cruel and unusual punishment “flows from

the basic ‘ “precept of justice that punishment for crime should be graduated and

proportioned to [the] offense. [Citation.]” ’ ” (Roper v. Simmons (2005) 543 U.S.

551, 560 (Roper).) “By protecting even those convicted of heinous crimes, the

Eighth Amendment reaffirms the duty of the government to respect the dignity of

all persons.” (Ibid.; see Robinson v. California (1962) 370 U.S. 660, 667 [Eighth

Amendment applies to the states].)

The United States Supreme Court has interpreted the Eighth Amendment to

impose unique constraints on the sentencing of juveniles who commit serious

crimes. This case law reflects the principle that “children are constitutionally

different from adults for purposes of sentencing.” (Miller, supra, 567 U.S. at

p. 471.) “From this principle, the high court has derived a number of limitations

on juvenile sentencing: (1) no individual may be executed for an offense

committed when he or she was a juvenile (Roper, [supra,] 543 U.S. at p. 578); (2)

no juvenile who commits a nonhomicide offense may be sentenced to LWOP

(Graham, supra, 560 U.S. at p. 74); and (3) no juvenile who commits a homicide

offense may be automatically sentenced to LWOP (Miller, at p. [465]).”

(Franklin, supra, 63 Cal.4th at pp. 273–274; see Montgomery v. Louisiana (2016)

577 U.S. __, __ [136 S.Ct. 718, 734] (Montgomery) [“Miller announced a

substantive rule of constitutional law” that applies retroactively].) The second

limitation is relevant here: Because Contreras and Rodriguez committed

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nonhomicide offenses, the Eighth Amendment does not permit them to be

sentenced to LWOP. Although they may be punished with long sentences, they

must have “some meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” (Graham, at p. 75.)

In Caballero, we held that a juvenile defendant’s sentence of 110 years to

life for three counts of attempted murder was the functional equivalent of LWOP

and, under Graham, violated the Eighth Amendment. (Caballero, supra, 55

Cal.4th at p. 268.) We rejected the argument that Graham’s prohibition on LWOP

does not apply to aggregated sentences for distinct crimes where each sentence

individually provides for the possibility of parole within a juvenile’s expected

lifespan. (Id. at pp. 267–268.) We said: “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.” (Id. at p. 268.)

Graham and Caballero together hold that the Eighth Amendment does not

allow juveniles who commit nonhomicide crimes to be sentenced to LWOP or to a

term of years well in excess of natural life expectancy. But neither Graham nor

Caballero considered whether a lengthy sentence short of LWOP or its equivalent

would likewise violate the Eighth Amendment in this context. The question here

is whether Rodriguez’s sentence of 50 years to life or Contreras’s sentence of 58

years to life for nonhomicide offenses violates the same Eighth Amendment

principles that bar the imposition of LWOP for their crimes.

A.

The Attorney General says we “should adopt the following rule: any term

of imprisonment that provides a juvenile offender with an opportunity for parole

within his or her expected natural lifetime is not the functional equivalent of

LWOP . . . .” The Attorney General urges us to determine natural life expectancy

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by looking to a report published by the Centers for Disease Control (CDC), based

on 2010 data, providing the life expectancies of various age and gender cohorts

living in the United States. (See Arias, United States Life Tables, 2010, National

Vital Statistics Reports, vol. 63, no. 7 (Nov. 6, 2014) p. 1 (2010 Life Tables).)

According to that report, a 16-year-old boy in the United States is expected to live

an additional 60.9 years, for a total life expectancy of 76.9 years. (Id. at p. 11,

table 2.) Noting that “Rodriguez will be 66 years old when first eligible for

parole, and Contreras will be 74 years old when first eligible for parole,” the

Attorney General contends that “[b]ecause it affords appellants an opportunity for

parole within their expected natural lifetimes, a sentence of 50 years to life and 58

years to life is not the functional equivalent of LWOP and therefore may be

constitutionally imposed.” As explained below, this actuarial approach urged by

the Attorney General is practically and conceptually problematic.

As an initial matter, we find unpersuasive the Attorney General’s claim that

we already decided in Caballero that a term-of-years sentence does not violate the

Eighth Amendment if it allows the possibility of parole at some point during the

juvenile offender’s natural life expectancy. Caballero held 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 punishment in violation of the Eighth Amendment.”

(Caballero, supra, 55 Cal.4th at p. 268.) But the defendant in Caballero

challenged a sentence allowing for parole eligibility “over 100 years from now.”

(Ibid.) In that context, it was enough to note that the parole eligibility date “falls

outside the juvenile offender’s natural life expectancy.” (Ibid.) We had no

occasion to consider whether a term-of-years sentence violates the Eighth

Amendment only if it exceeds a juvenile defendant’s natural life expectancy. (See

Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [“ ‘It is axiomatic that

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language in a judicial opinion is to be understood in accordance with the facts and

issues before the court. An opinion is not authority for propositions not

considered.’ ”].)

Taken on its own terms, the Attorney General’s actuarial approach gives

rise to a tangle of legal and empirical difficulties. In defining life expectancy, the

Attorney General relies on our statement in Caballero that “the term ‘life

expectancy’ means the normal life expectancy of a healthy person of defendant’s

age and gender living in the United States.” (Caballero, supra, 55 Cal.4th at

p. 267, fn. 3, italics added.) But this passing statement was unnecessary to our

decision because the 110-years-to-life sentence at issue clearly exceeded the

defendant’s life expectancy under any definition. Although a gender-specific

approach to determining life expectancy reflects the reality that females generally

live longer than males (see 2010 Life Tables, supra, at p. 2 [“The difference in life

expectancy between the sexes was 4.8 years in 2010 . . . .”]), we did not examine

in Caballero whether it would be constitutional to authorize lengthier sentences

for girls than for boys in determining the parameters of lawful punishment for

juvenile nonhomicide offenders.

“We long ago concluded that discrimination based on gender violates the

equal protection clause of the California Constitution (art. I, § 7, subd. (a)) and

triggers the highest level of scrutiny. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1,

17–20.)” (Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32

Cal.4th 527, 564.) “In order to satisfy that standard, the state must demonstrate

not simply that there is a rational, constitutionally legitimate interest that supports

the differential treatment at issue, but instead that the state interest is a

constitutionally compelling one that justifies the disparate treatment prescribed by

the statute in question. [Citation.]” (In re Marriage Cases (2008) 43 Cal.4th 757,

847.) And “the state must demonstrate that the distinctions drawn by the statute

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(or statutory scheme) are necessary to further that interest. [Citation.]” (Id. at

p. 848.)

It is unclear whether sentencing juveniles based on gender-specific life

expectancies would satisfy strict scrutiny. But assuming it would, there would

then be no reason why the definition of life expectancy should not also account for

well-documented racial differences, since racial classifications are evaluated under

the same constitutional standard. (See Johnson v. California (2005) 543 U.S. 499,

505; Coral Construction, Inc. v. City and County of San Francisco (2010) 50

Cal.4th 315, 337.) According to the CDC report on which the Attorney General

relies, life expectancy in 2010 was 83.8 years for Hispanic females, 81.3 years for

non-Hispanic white females, 78.0 years for black females, 78.7 years for Hispanic

males, 76.5 years for white males, and 71.8 years for black males. (2010 Life

Tables, supra, at p. 5.) These differences present a conundrum: Although persons

of different races and genders are not similarly situated in terms of life expectancy,

it seems doubtful that considering such differences in juvenile sentencing would

pass constitutional muster.

Moreover, were we to adopt the Attorney General’s proposed rule, it is not

obvious why the definition of life expectancy should ignore other group-based

differences that may be relevant to a particular juvenile defendant. The Pacific

Juvenile Defender Center (PJDC), as amicus curiae, notes that life expectancy is

affected by many “ ‘variables that have long been studied by social scientists but

are not included in U.S. Census or vital statistics reports — income, education,

region, type of community, access to regular health care, and the like . . . .’ ” (See

Cummings & Colling, There is No Meaningful Opportunity in Meaningless Data:

Why It Is Unconstitutional to Use Life Expectancy Tables in Post-Graham

Sentences (2014) 18 U.C. Davis J. Juvenile L. & Policy 267, 282.)

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Defendants and PJDC highlight the relevance of one variable in particular:

incarceration. PJDC cites studies showing that incarceration accelerates the aging

process and results in life expectancies substantially shorter than estimates for the

general population. (See Patterson, The Dose-Response of Time Served in Prison

on Mortality: New York State, 1989–2003 (2013) 103 Am. J. Pub. Health 523, 526

[finding each year of incarceration correlated with a 15.6 percent increase in odds

of death for parolees and a two-year decline in life expectancy]; U.S. Dept. of

Justice, Nat. Inst. of Corrections, Correctional Health Care: Addressing the Needs

of Elderly, Chronically Ill, and Terminally Ill Inmates (2004) pp. 9–10

(Correctional Health Care) [stresses of incarceration intensify the health problems

of elderly inmates and accelerate aging processes]; see also Spaulding et al.,

Prisoner Survival Inside and Outside of the Institution: Implications for Health-

Care Planning (2011) 173 Am. J. Epidemiology 479, 484 [currently and formerly

incarcerated individuals in Georgia have “overall heightened mortality . . . over 15

years of follow-up relative to the general Georgia population,” with significant

differences by race, gender, and time incarcerated].) One state high court has

taken such evidence into account in determining whether a term-of-years sentence

violates the Eighth Amendment. (See Casiano v. Commissioner of Correction

(Conn. 2015) 115 A.3d 1031, 1046 (Casiano).)

On the other hand, it has been suggested that inmates who “have aged in

place are generally the best adapted to prison life because they have been in prison

since their youth and have adjusted to it.” (Correctional Health Care, supra, at

p. 10.) Further, although incarceration has its stresses, it may shield inmates from

other stresses that would afflict them outside of prison, including violence,

accidents, and poor access to health care. (See Spaulding et al., supra, at pp. 482–

485; Rosen et al., All-Cause and Cause-Specific Mortality Among Black and White

North Carolina State Prisoners, 1995–2005 (2011) 21 Ann. Epidemiology 719,

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725–726 [average death rates for currently incarcerated black men in North

Carolina prisons are significantly lower than for the black population in the state

overall, but currently incarcerated white men have slightly higher average death

rates than white men in the state].) In addition, the Attorney General asserts that

although race, region, and economic status may affect death rates outside prison,

such findings are not necessarily true “for those inside prison, where living

conditions, medical treatment, and wealth are roughly the same for all.”

The record in this case contains no findings by the trial court on these

matters. At sentencing, the prosecution introduced evidence of statistical life

expectancies, and neither defendant presented evidence demonstrating shorter life

expectancy in prison. But we decline to adopt a constitutional rule that employs a

concept of life expectancy whose meaning depends on the facts presented in each

case. Determining the validity of lengthy term-of-years sentences under the

Eighth Amendment through a case-by-case inquiry into competing evidence of the

life expectancy most pertinent to a particular juvenile defendant would lead to

problems of disparate sentencing. Moreover, even if there were a legally and

empirically sound approach to estimating life expectancy, it must be noted that a

life expectancy is an average. (2010 Life Tables, supra, at p. 2.) In a normal

distribution, about half of a population reaches or exceeds its life expectancy,

while the other half does not. Under Graham, juvenile nonhomicide offenders

must be given “some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75; see

id. at p. 82 [the state must give juvenile nonhomicide offenders “some realistic

opportunity to obtain release before the end of [a life] term”].) An opportunity to

obtain release does not seem “meaningful” or “realistic” within the meaning of

Graham if the chance of living long enough to meet that opportunity is roughly the

same as a coin toss. Of course, there can be no guarantee that every juvenile

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offender who suffers a lengthy sentence will live until his or her parole eligibility

date. But we do not believe the outer boundary of a lawful sentence can be fixed

by a concept that by definition would not afford a realistic opportunity for release

to a substantial fraction of juvenile offenders.

B.

In addition to raising legal and empirical difficulties, the actuarial approach

proposed by the Attorney General is misguided at a more fundamental level.

When evaluating a sentence that clearly exceeds natural life expectancy, like the

110-years-to-life sentence in Caballero, it is straightforward to conclude that the

sentence is “functionally equivalent” to LWOP as an actuarial matter. (Caballero,

supra, 55 Cal.4th at p. 268.) But the issue of functional equivalence in this

context is not limited to determining whether a term-of-years sentence is

actuarially equivalent to LWOP. Although the Attorney General trains his inquiry

on that question, there is a separate and distinct question whether a lengthy term-

of-years sentence, though not clearly exceeding a juvenile offender’s natural

lifespan, may nonetheless impinge on the same substantive concerns that make the

imposition of LWOP on juvenile nonhomicide offenders impermissible under the

Eighth Amendment. This latter notion of functional equivalence — that a term-of-

years sentence may function like LWOP with respect to the Eighth Amendment

concerns that constrain lawful punishment for juvenile nonhomicide offenders —

is what we must address in this case. (See State v. Null (Iowa 2013) 836 N.W.2d

41, 71 [“[W]e do not believe the determination of whether the principles of Miller

or Graham apply in a given case should turn on the niceties of epidemiology,

genetic analysis, or actuarial sciences in determining precise mortality dates.”].)

To resolve this question, the proper starting point is not a life expectancy table but

the reasoning of the high court in Graham.

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The defendant in Graham, at age 16, was charged in Florida as an adult for

armed burglary with assault or battery, which carried a maximum sentence of

LWOP, and attempted armed robbery, which carried a maximum sentence of 15

years. (Graham, supra, 560 U.S. at pp. 53–54.) Graham pleaded guilty to both

charges and, in a letter to the trial court, said “ ‘this is my first and last time getting

in trouble’ ” and “ ‘I’ve decided to turn my life around.’ ” (Id. at p. 54.) The trial

court withheld adjudication of guilt and sentenced him to probation. (Ibid.) Less

than six months later, 34 days before his 18th birthday, Graham participated in a

home invasion robbery and afterward admitted he had violated his probation

conditions. (Id. at pp. 54–55.) At that point, the trial court found Graham guilty

of the earlier armed burglary and attempted armed robbery. (Id. at pp. 55–57.)

At sentencing, the trial court said: “ ‘Mr. Graham, as I look back on your

case, yours is really candidly a sad situation. You had, as far as I can tell, you

have quite a family structure. You had a lot of people who wanted to try and help

you get your life turned around including the court system, and you had a judge

who took the step to try and give you direction through his probation order to give

you a chance to get back onto track. And at the time you seemed through your

letters that that is exactly what you wanted to do. And I don’t know why it is that

you threw your life away. . . . [¶] But you did, and that is what is so sad about this

today . . . . [¶] . . . [¶] And I don’t understand why you would be given such a

great opportunity to do something with your life and why you would throw it

away. The only thing that I can rationalize is that you decided that this is how you

were going to lead your life and that there is nothing that we can do for you. And

as the state pointed out, that this is an escalating pattern of criminal conduct on

your part and that we can’t help you any further. We can’t do anything to deter

you. This is the way you are going to lead your life . . . . [¶] . . . [¶] . . . I don’t

see where any further youthful offender sanctions would be appropriate. Given

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your escalating pattern of criminal conduct, it is apparent to the Court that you

have decided that this is the way you are going to live your life and that the only

thing I can do now is to try and protect the community from your actions.’ ”

(Graham, supra, 560 U.S. at pp. 56–57.) The trial court sentenced Graham to the

maximum penalty for both crimes: LWOP for the armed burglary and 15 years in

prison for the attempted armed robbery. (Id. at p. 57.) The high court held that

the Eighth Amendment categorically “prohibits the imposition of a life without

parole sentence on a juvenile offender who did not commit homicide.” (Id. at

p. 82.)

Central to the high court’s analysis was its “consideration of the culpability

of the offenders at issue in light of their crimes and characteristics, along with the

severity of the punishment in question.” (Graham, supra, 560 U.S. at p. 67.) As

for culpability, the high court reiterated its observations in Roper that “[a]s

compared to adults, juveniles have a ‘ “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.’ [Citation.] These salient characteristics mean that ‘[i]t is

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.’ ” (Graham, at

p. 68, quoting Roper, supra, 543 U.S. at pp. 569–570, 573.) Further, the high

court underscored that “defendants who do not kill, intend to kill, or foresee that

life will be taken are categorically less deserving of the most serious forms of

punishment than are murderers. . . . Although an offense like robbery or rape is ‘a

serious crime deserving serious punishment,’ those crimes differ from homicide

crimes in a moral sense.” (Graham, at p. 69, citations omitted.)

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As for the punishment, the high court noted that a sentence of LWOP

“deprives the convict of the most basic liberties without giving hope of

restoration.” (Graham, supra, 560 U.S. at pp. 69–70; see id. at p. 70 [“this

sentence ‘means denial of hope; it means that good behavior and character

improvement are immaterial . . . .’ ”].) In addition, “[l]ife without parole is an

especially harsh punishment for a juvenile. Under this sentence a juvenile

offender will on average serve more years and a greater percentage of his life in

prison than an adult offender. . . . This reality cannot be ignored.” (Ibid.)

The high court then evaluated the sentence against the penological goals of

“retribution, deterrence, incapacitation, and rehabilitation.” (Graham, supra, 560

U.S. at p. 71.) Linking retribution to culpability, the high court said “ ‘the case for

retribution is not as strong with a minor as with an adult’ ” and “becomes even

weaker with respect to a juvenile who did not commit homicide.” (Ibid.) As for

deterrence, the high court said that “[b]ecause juveniles’ ‘lack of maturity and

underdeveloped sense of responsibility . . . often result in impetuous and ill-

considered actions and decisions,’ [citation], they are less likely to take a possible

punishment into consideration when making decisions.” (Id. at p. 72.)

As for incapacitation, the high court acknowledged that “[r]ecidivism is a

serious risk to public safety, and so incapacitation is an important goal.”

(Graham, supra, 560 U.S. at p. 72.) But the “characteristics of juveniles” make it

“questionable” to conclude that a juvenile offender is incorrigible; indeed,

“ ‘incorrigibility is inconsistent with youth.’ ” (Id. at pp. 72–73.) A sentencing

authority may not make a judgment “at the outset” that a juvenile nonhomicide

offender will “be a risk to society for the rest of his life.” (Id. at p. 73.) This was

true even for Graham, who had violated the terms of his probation “despite his

own assurances of reform” and had engaged in “what the trial court described as

an ‘escalating pattern of criminal conduct.’ ” (Ibid.) “A life without parole

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sentence improperly denies the juvenile offender a chance to demonstrate growth

and maturity.” (Ibid.)

The high court then discussed rehabilitation and explained that LWOP

“forswears altogether the rehabilitative ideal. By denying the defendant the right

to reenter the community, the State makes an irrevocable judgment about that

person’s value and place in society. This judgment is not appropriate in light of a

juvenile nonhomicide offender’s capacity for change and limited moral

culpability.” (Graham, supra, 560 U.S. at p. 74.) The high court also noted that

inmates sentenced to LWOP “are often denied access to vocational training and

other rehabilitative services that are available to other inmates,” making “all the

more evident” the disproportionality of LWOP when imposed on “juvenile

offenders, who are most in need of and receptive to rehabilitation.” (Ibid.) “In

sum,” Graham concluded, “penological theory is not adequate to justify life

without parole for juvenile nonhomicide offenders.” (Ibid.)

C.

What emerges from Graham is not a constitutional prohibition on harsh

sentences for juveniles who commit serious crimes. (Graham, supra, 560 U.S. at

p. 71 [“Society is entitled to impose severe sanctions on a juvenile nonhomicide

offender to express its condemnation of the crime and to seek restoration of the

moral imbalance caused by the offense.”].) Nor does Graham “require the State to

release [a juvenile nonhomicide] offender during his natural life. Those who

commit truly horrifying crimes as juveniles may turn out to be irredeemable, and

thus deserving of incarceration for the duration of their lives.” (Id. at p. 75.) But

Graham “does prohibit States from making the judgment at the outset that those

offenders never will be fit to reenter society.” (Ibid.) “What the State must do . . .

is give defendants like Graham some meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation.” (Ibid.)

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While finding LWOP impermissible for juvenile nonhomicide offenders,

the high court did not define the maximum length of incarceration before parole

eligibility that would be permissible in light of the concerns it set forth in Graham.

But the high court made clear the nature of its concerns: A lawful sentence must

recognize “a juvenile nonhomicide offender’s capacity for change and limited

moral culpability.” (Graham, supra, 560 U.S. at p. 74.) A lawful sentence must

offer “hope of restoration” (id. at p. 70), “a chance to demonstrate maturity and

reform” (id. at p. 79), a “chance for fulfillment outside prison walls,” and a

“chance for reconciliation with society” (ibid.). A lawful sentence must offer “the

opportunity to achieve maturity of judgment and self-recognition of human worth

and potential.” (Ibid.) A lawful sentence must offer the juvenile offender an

“incentive to become a responsible individual.” (Ibid.)

Although the Attorney General says a penalty is not invalid under Graham

unless it “is tantamount to [a] sentence of death,” he does not seriously contend

that a term-of-years sentence with parole eligibility at any point before the end of

life expectancy — whether it is one year, one month, or one day — would satisfy

the Eighth Amendment. Even assuming defendants’ parole eligibility dates are

within their expected lifespans, the chance for release would come near the end of

their lives; even if released, they will have spent the vast majority of adulthood in

prison. We agree with the Court of Appeal that these sentences “tend to reflect a

judgment Rodriguez and Contreras are irretrievably incorrigible” and “fall[] short

of giving them the realistic chance for release contemplated by Graham.”

Several considerations support this conclusion. First, although the high

court has not defined what it means for a juvenile offender “to rejoin society”

(Graham, supra, 560 U.S. at p. 79), the language of Graham suggests that the high

court envisioned more than the mere act of release or a de minimis quantum of

time outside of prison. Graham spoke of the chance to rejoin society in qualitative

17

terms — “the rehabilitative ideal” (id. at p. 74) — that contemplate a sufficient

period to achieve reintegration as a productive and respected member of the

citizenry. The “chance for reconciliation with society” (id. at p. 79), “the right to

reenter the community” (id. at p. 74), and the opportunity to reclaim one’s “value

and place in society” (ibid.) all indicate concern for a measure of belonging and

redemption that goes beyond mere freedom from confinement. It is also

significant that Graham said juvenile nonhomicide offenders should not be denied

access to “vocational training” and “education,” among other rehabilitative

services. (Id. at pp. 74, 79.) Presumably one purpose of such programming is to

enable a juvenile offender to hold a job or otherwise participate as a productive

member of society if released. Graham’s directive that “[t]he juvenile should not

be deprived of the opportunity to achieve . . . self-recognition of human worth and

potential” implies that the juvenile may someday have the opportunity to realize

that “potential.” (Id. at p. 79.) For any individual released after decades of

incarceration, adjusting to ordinary civic life is undoubtedly a complex and

gradual process. Confinement with no possibility of release until age 66 or age 74

seems unlikely to allow for the reintegration that Graham contemplates.

Second, in underscoring the capacity of juveniles to change, Graham made

clear that a juvenile offender’s prospect of rehabilitation is not simply a matter of

outgrowing the transient qualities of youth; it also depends on the incentives and

opportunities available to the juvenile going forward. (See, e.g., Graham, supra,

560 U.S. at p. 79 [prison system may “become[] complicit in the lack of

development” of a juvenile offender by “withhold[ing] counseling, education, and

rehabilitation programs”].) Importantly, Graham said “[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.” (Ibid.) We believe the same is true

18

here: A young person who knows he or she has no chance to leave prison for 50

years “has little incentive to become a responsible individual.” (Ibid.)

Third, a sentence of 50 years to life imprisonment bears an attenuated

relationship to legitimate penological goals under the reasoning of Graham. Such

a sentence, though less harsh than LWOP, is still “an especially harsh punishment

for a juvenile,” who “will on average serve more years and a greater percentage of

his life in prison than an adult offender.” (Graham, supra, 560 U.S. at p. 70.) It is

also a highly severe punishment for a juvenile nonhomicide offender who, “when

compared to an adult murderer,” has “a twice diminished moral culpability.” (Id.

at p. 69; cf. § 190, subd. (a) [penalty for adult who commits first degree murder

simpliciter is 25 years to life].) The retributive case for a 50-years-to-life

sentence, as for LWOP, is weakened by the juvenile nonhomicide offender’s “age

. . . and the nature of the crime.” (Graham, at p. 69.) As for deterrence, Graham’s

observation that juveniles have limited ability to consider consequences when

making decisions (id. at p. 72) applies to a sentence of 50 years to life just as it

does to a sentence of LWOP. And as for incapacitation, a judgment that a juvenile

offender will be incorrigible for the next 50 years is no less “questionable” than a

judgment that the juvenile offender will be incorrigible “forever.” (Id. at pp. 72–

73; see Montgomery, supra, 577 U.S. at p. __ [136 S.Ct. at p. 736] [“Miller’s

central intuition” is “that children who commit even heinous crimes are capable of

change”].) Finally, as noted, a sentence of 50 years to life “cannot be justified by

the goal of rehabilitation” because it offers a juvenile offender “little incentive to

become a responsible individual.” (Graham, at pp. 74, 79.)

Fourth, our conclusion that a sentence of 50 years to life is functionally

equivalent to LWOP is consistent with the decisions of other state high courts.

Setting aside courts that have disagreed with our case law holding that Graham

and Miller apply to aggregated sentences (see Franklin, supra, 63 Cal.4th at

19

p. 276; Caballero, supra, 55 Cal.4th at pp. 267–268), we are not aware of any

state high court that has found incarceration of a juvenile for 50 years or more

before parole eligibility to fall outside the strictures of Graham and Miller. (See

State v. Zuber (N.J. 2017) 152 A.3d 197, 212 [110-year sentence with parole

eligibility after 55 years “is the practical equivalent of life without parole”];

Casiano, supra, 115 A.3d at p. 1044 [same for 50-year sentence]; Bear Cloud v.

State of Wyoming (Wyo. 2014) 334 P.3d 132, 142 [same for 45-years-to-life

sentence]; Null, supra, 836 N.W.2d at p. 71 [same for 75-year sentence with

parole eligibility after 52.5 years]; but cf. Collins v. State (Fla.Ct.App. 2016) 189

So.3d 342, 343 [55-year sentence with parole eligibility after 52 years does not

violate Graham]; United States v. Mathurin (11th Cir. 2017) 868 F.3d 921, 934–

936 [57-year sentence, which defendant could reduce to a near-50-year sentence

by earning good-time credits, does not violate Graham].)

Finally, our conclusion is also consistent with state legislation adopted in

the wake of Graham and Miller, assuming that the parole hearings in these

statutory schemes provide for meaningful consideration of the inmate’s age at the

time of the offense and demonstrated maturity and rehabilitation. (See Ark. Code

Ann. § 16-93-621(a)(1) [juvenile nonhomicide offenders eligible for parole after

20 years]; Colo. Rev. Stat. Ann. § 18-1.3-401(4)(c)(I)(B) [juvenile offenders

sentenced to LWOP for a crime other than first degree murder resentenced to life

with opportunity for parole after 40 years]; Conn. Gen. Stat. Ann. § 54-125a(f)(1)

[juvenile offenders sentenced to over 50 years eligible for parole after 30 years,

and juvenile offenders sentenced to between 10 and 50 years eligible for parole

after the greater of 12 years or 60% of the sentence]; Del. Code Ann. tit. 11,

§ 4204A(d) [juvenile offender convicted of a crime other than first degree murder

eligible for resentencing after 20 years]; D.C. Code Ann. § 24-403.03(a) [juvenile

offenders eligible for sentence reduction after 20 years]; Fla. Stat. Ann.

20

§ 921.1402(2)(d) [juvenile offenders convicted of offenses other than murder

entitled to review of sentence after 20 years]; La. Rev. Stat. § 15:574.4(D)(1)

[juvenile offenders sentenced to life for crimes other than first or second degree

murder eligible for parole after 30 years]; Sen. Bill No. 16 (La. 2017 Reg. Sess.)

[juvenile offenders sentenced to life for crimes other than first or second degree

murder eligible for parole after 25 years, effective August 2017]; Mo. Ann. Stat.

§ 558.047(1) [juvenile offenders sentenced to LWOP eligible for review of

sentence after 25 years]; Nev. Rev. Stat. Ann. § 213.12135 [juvenile nonhomicide

offenders eligible for parole after 15 years]; House Bill No. 1195 (N.D. 2017 Reg.

Sess.) [juvenile offenders eligible for sentence reduction after 20 years]; W.Va.

Code § 61-11-23(b) [juvenile offenders eligible for parole after 15 years]; Wyo.

Stat. Ann. § 6-10-301(c) [juvenile offenders sentenced to life eligible for parole

after 25 years]; but see Wash. Rev. Code § 9.94A.730(1) [juvenile offenders

eligible for release after 20 years, except for those serving sentences for

aggravated first degree murder or certain sex offenses].) In enacting these

sentencing reforms, these state legislatures observed that sentencing juvenile

nonhomicide offenders to 50 or more years of incarceration without parole

eligibility is not consistent with Graham. (See, e.g., Sen. Bill No. 294 (Ark. 2017

Reg. Sess.) § 2; Colo. Rev. Stat. Ann. § 16-13-1001; Sen. Judiciary Com.,

Summary of Sen. Bill No. 796 (Conn. 2015 Reg. Sess.) § 1; Synopsis of Sen. Bill

No. 9 (Del. 2013–2014 Reg. Sess.); House Judiciary Com., Crim. J. Subcom.,

Analysis of Sen. Bill No. 384 (Fla. 2014 Reg. Sess.) Jan. 3, 2014, pp. 1–4; Resume

Dig. for Sen. Bill No. 317 (La. 2012 Reg. Sess.); Resume Dig. for Sen. Bill No. 16

(La. 2017 Reg. Sess.).)

21

D.

The Chief Justice criticizes our decision today as an “unwarranted

extension of Graham.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 3.) She

observes that “Graham . . . invalidated a narrowly defined, specific type of

sentence” for juvenile nonhomicide offenders — namely, life without parole,

“ ‘ “the second most severe penalty permitted by law.” ’ ” (Id. at p. 9, quoting

Graham, supra, 560 U.S. at p. 69.) Our decision, she contends, ignores “the

limited nature of the holding in Graham” and disregards the “ ‘clear line’ ” that

Graham drew in demarcating the type of sentence that violates the Eighth

Amendment. (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 3, 10, 20, 21 & fn. 7,

23, quoting Graham, at 74).

But what exactly is the “clear line” that Graham drew? Here is the passage

where those words appear in Graham: “[P]enological theory is not adequate to

justify life without parole for juvenile nonhomicide offenders. This determination;

the limited culpability of juvenile nonhomicide offenders; and the severity of life

without parole sentences all lead to the conclusion that the sentencing practice

under consideration is cruel and unusual. This Court now holds that for a juvenile

offender who did not commit homicide the Eighth Amendment forbids the

sentence of life without parole. This clear line is necessary to prevent the

possibility that life without parole sentences will be imposed on juvenile

nonhomicide offenders who are not sufficiently culpable to merit that punishment.

Because ‘[t]he age of 18 is the point where society draws the line for many

purposes between childhood and adulthood,’ those who were below that age when

the offense was committed may not be sentenced to life without parole for a

nonhomicide crime.” (Graham, supra, 560 U.S. at pp. 74–75.)

The Chief Justice reads the phrase “clear line” to distinguish between

LWOP and other types of sentences. But in context, the phrase more sensibly

22

refers to two other distinctions: (1) between homicide and nonhomicide offenses,

and (2) between juvenile and adult offenders. The “line” that Graham made

“clear” is that LWOP may not be imposed on juveniles who commit nonhomicide

offenses, even if it may be imposed (rarely) on juveniles who commit homicide

offenses or on adults who commit nonhomicide offenses. In drawing this line, the

majority in Graham was rejecting Chief Justice Roberts’s view that the Eighth

Amendment does not support a “categorical rule that juveniles may never receive

a sentence of life without parole for nonhomicide crimes” and instead “allow[s]

courts . . . to consider the particular defendant and particular crime at issue.”

(Graham, supra, 560 U.S. at pp. 89, 86 (conc. opn. of Roberts, C. J.); see id. at

pp. 93–95 [arguing that some juvenile nonhomicide offenders may deserve an

LWOP sentence].) Graham does not hold or suggest that only LWOP sentences,

and no sentences other than LWOP, violate the Eighth Amendment when imposed

on a juvenile nonhomicide offender.

Indeed, our dissenting colleagues do not contend that the reasoning of

Graham is limited to LWOP sentences, for we have already rejected that

proposition in Caballero. The Attorney General argued in Caballero that “a

cumulative sentence for distinct crimes does not present a cognizable Eighth

Amendment claim . . . . In addition, the Court of Appeal reasoned that Graham

applied a categorical rule specifically limited to juvenile nonhomicide offenders

receiving an explicitly designated life without parole sentence . . . .” (Caballero,

supra, 55 Cal.4th at p. 267.) At the time we decided Caballero, several appellate

courts had held that Graham applies only to LWOP sentences and not to any

individual or aggregate term-of-years sentences. (See Bunch v. Smith (6th Cir.

2012) 685 F.3d 546, 552; Henry v. State (Fla.Ct.App. 2012) 82 So.3d 1084, 1089;

State v. Kasic (Ariz.Ct.App. 2011) 265 P.3d 410, 415.) Notwithstanding these

arguments and authorities, we unanimously held that Graham’s reasoning applies

23

to a “term-of-years sentence that amounts to the functional equivalent of a life

without parole sentence.” (Caballero, supra, 55 Cal.4th at p. 268; see id. at

pp. 271–273 (conc. opn. of Werdegar. J.).)

As the Chief Justice acknowledges, the “line” that Graham actually drew

between lawful and unlawful sentences for juvenile nonhomicide offenders is not

between LWOP and other sentences, but between sentences that do and sentences

that do not provide “ ‘some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’ ” (Dis. opn. of Cantil-Sakauye, C. J.,

post, at p. 10, quoting Graham, supra, 560 U.S. at p. 75.) Whatever “abstraction,”

“vagueness,” or “subjectiv[ity]” (dis. opn. of Cantil-Sakauye, C. J., post, at p. 22)

there may be in analyzing whether a particular sentence provides “some

meaningful opportunity to obtain release” (Graham, at p. 75), we are obligated to

apply the rule stated by the high court, and that is what our opinion today does.

The Chief Justice would hold that a sentence provides a meaningful

opportunity for release if it allows for parole eligibility within a defendant’s life

expectancy. (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 15.) This approach is

problematic for reasons we have explained above. (Ante, at pp. 6–12.) The Chief

Justice does not dispute that the life expectancy tables she relies on show

significant disparities by race and gender. Her response is that apart from race,

sex, and custodial status, “juvenile defendants belong to a nearly infinite number

of cohorts” with varying life expectancies. (Dis. opn. of Cantil-Sakauye, C. J.,

post, at p. 17.) She then says: “Given that a defendant could be placed within any

of many peer groups for purposes of assessing his or her life expectancy, and

given as well the need to use some conception of life expectancy as a benchmark,

reliance on general population life expectancies makes good sense as providing an

administrable rule of decision that is consistent with Graham.” (Id. at p. 17.) This

is a non-sequitur. Why does reliance on general-population life expectancies

24

make good sense when it is acknowledged that life expectancies vary by race, sex,

custodial status, and other traits as well? Such an approach seems quite arbitrary.

Even if general-population life expectancies were relevant to evaluating

whether a particular sentence provides a meaningful opportunity for release, the

Chief Justice does not answer the crucial question of how many years before the

end of a defendant’s life expectancy must parole eligibility be provided in order to

satisfy Graham. The Chief Justice believes five years is sufficient. (Dis. opn. of

Cantil-Sakauye, C. J., post, at pp. 15, 17 [parole eligibility at age 74 falls “well

within” the general life expectancy of 79 years for 15- to 16-year-olds].) But why

is five years sufficient? Why not require 10, 15, or 25 years? And if five years is

sufficient, then what about four years? three? two? or one?

Ultimately, any line-drawing must depend on a considered judgment as to

whether the parole eligibility date of a lengthy sentence offers a juvenile offender

a realistic hope of release and a genuine opportunity to reintegrate into society.

Reasonable minds may disagree on such judgments, but it is specious to contend

that an approach based on life expectancy would avoid “subjective and quite likely

divergent assessments of what constitutes adequate reintegration into society, and

the time necessary to accomplish this reentry.” (Dis. opn. of Cantil-Sakauye, C. J.,

post, at p. 23.) In the end, the Chief Justice’s conclusion that defendants’

sentences are lawful rests on her view that “profound life experiences still may lie

ahead of someone released from prison at age 66 or 74.” (Id. at p. 22.) Whatever

the merits of this view, the analysis that underlies it is not more “objective,” more

“workable,” or more conducive to drawing a “ ‘clear line’ ” (id. at pp. 20, 23) than

the analysis set forth in our opinion today. Indeed, the Chief Justice’s approach

calls for the very sort of line-drawing she purports to disavow: Under her

approach as under ours, the controlling inquiry is not simply whether defendants’

sentences provide for parole eligibility within their life expectancies, but whether

25

the sentences “impinge on the same substantive concerns that make the imposition

of LWOP on juvenile nonhomicide offenders impermissible under the Eighth

Amendment.” (Ante, at p. 12.)

III.

After oral argument in this case, the Governor on October 11, 2017, signed

into law Assembly Bill No. 1448 and Senate Bill No. 394. Assembly Bill 1448

codifies the Elderly Parole Program, under which prisoners age 60 or older who

have served at least 25 years in prison are entitled to a parole hearing. (Assem.

Bill No. 1448 (2017–2018 Reg. Sess.) § 3.) Senate Bill 394 extends eligibility for

a youth offender parole hearing after 25 years of incarceration to a person who

was convicted of certain controlling offenses committed before 18 years of age

and sentenced to life without the possibility of parole. (Sen. Bill No. 394 (2017–

2018 Reg. Sess.) § 1.) In addition, upon the passage of Proposition 57 in the

November 2016 elections, the California Department of Corrections and

Rehabilitation (CDCR) issued new regulations governing the ability of inmates to

earn custody credit to advance their parole dates. We vacated submission of this

case and ordered supplemental briefing from the parties on what bearing, if any,

Assembly Bill 1448, Senate Bill 394, or the regulations codified at sections 3043,

3043.2, 3043.3, 3043.4, 3043.5, and 3043.6 of title 15 of the California Code of

Regulations have on the question presented.

The Chief Justice contends that regardless of whether defendants’ original

sentences are valid, the recent legislation authorizing elderly parole means “both

defendants will have an opportunity for parole at age 60,” and “[a] sentence

offering an opportunity for parole no later than age 60 is not invalid under

Graham.” (Dis. opn. of Cantil-Sakauye, C. J., post, at pp. 24–25.) Further, she

asserts, “even without the Elderly Parole Program, Rodriguez may be eligible for

parole when he is 57 years old, simply by earning good-conduct credits” (id. at

26

pp. 24–25), and “Contreras could advance his initial parole date to age 64 through

good conduct” (id. at p. 36). As explained below, we decline to resolve whether

the newly enacted legislation and regulations affect the validity of defendants’

sentences and instead leave these novel issues for the lower courts to address in

the first instance.

A.

The elderly parole statute provides that when considering the release of an

eligible inmate, the Board of Parole Hearings (Board) “shall give special

consideration to whether age, time served, and diminished physical condition, if

any, have reduced the elderly inmate’s risk for future violence.” (§ 3055,

subd. (c).) A key question is whether an elderly parole hearing offers a juvenile

offender a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75, italics added.)

The legislative history of Assembly Bill 1448 indicates that the legislation’s

main purpose was to curb rising medical costs of the geriatric inmate population

and to provide a “compassionate” release for those elderly individuals. (Assem.

Concurrence in Sen. Amends. to Assem. Bill No. 1448 (2017–2018 Reg. Sess.)

Sept. 11, 2017.) In contrast to the statute authorizing youth offender parole

hearings, the text of the elderly parole statute does not mention youth-related

considerations or rehabilitation. (Compare § 3051, subd. (f)(1) with § 3055.)

The Attorney General contends that elderly parole hearings are governed by

section 4801, subdivision (c) and are thus required to consider youth-related

factors associated with the controlling offense. Section 4801, subdivision (c) says:

“When a prisoner committed his or her controlling offense, as defined in

subdivision (a) of Section 3051, when he or she was 25 years of age or younger,

the board, in reviewing a prisoner’s suitability for parole pursuant to Section

3041.5, shall give great weight to the diminished culpability of youth as compared

27

to adults, the hallmark features of youth, and any subsequent growth and increased

maturity of the prisoner in accordance with relevant case law.” Noting that the

provisions for parole hearings set forth in section 3041.5 apply to “all hearings for

the purpose of reviewing an inmate’s parole suitability” (§ 3041.5, subd. (a)), the

Attorney General argues that “they necessarily therefore apply to parole

consideration under the Elderly Parole Program.”

But it is questionable whether the Board is reviewing an inmate’s suitability

for parole “pursuant to Section 3041.5” (§ 4801, subd. (c)) when it conducts an

elderly parole hearing. The elderly parole statute contains a provision that makes

applicable section 3041.5, subdivision (b)(3)’s schedule for a subsequent parole

hearing in the event of a parole denial (§ 3055, subd. (f)) and another provision

stating that “when considering a request for an advance hearing pursuant to

subdivision (d) of Section 3041.5, the board shall consider whether the inmate

meets or will meet the criteria [for the Elderly Parole Program]” (§ 3055,

subd. (d)). These provisions, which appear to treat section 3041.5’s parole

procedures as separate and distinct from those in section 3055, suggest that an

elderly parole hearing is conducted pursuant to section 3055, not pursuant to

section 3041.5.

The Chief Justice does not endorse the Attorney General’s interpretation of

the statute and instead asserts that “the decision whether to grant elderly parole is

concerned with the same question of public safety that governs conventional

parole hearings.” (Dis. opn. of Cantil-Sakauye, C. J., post, at p. 25.) At

conventional parole hearings, “ ‘[a]ll relevant, reliable information available to the

panel shall be considered in determining suitability for parole. Such information

shall include the circumstances of the prisoner’s: social history; past and present

mental state; . . . past and present attitude toward the crime; . . . and any other

information which bears on the prisoner’s suitability for release.’ (Cal. Code

28

Regs., tit. 15, § 2281, subd. (b).)” (Id. at p. 26, fn. omitted.) She contends that

“[a]lthough in an elderly parole hearing ‘special consideration’ is given to the

three factors specified in section 3055, subdivision (c), there is no suggestion that

these ‘special’ considerations somehow skew the basic question before the panel.”

(Id. at p. 27.)

But the Chief Justice’s interpretation is not the only plausible reading of the

elderly parole statute, and we decline to issue a definitive interpretation less than

five months after the statute’s enactment, before any Court of Appeal has filed a

published opinion applying it in the context of juvenile sentencing, and before

CDCR has adopted any implementing regulations. We are not certain, for

example, that the statute would preclude CDCR from adopting regulations that

focus the Elderly Parole Program on identifying those inmates who no longer pose

a risk of future violence primarily because of their age, illness, or other physical

incapacitation, while leaving all other inmates age 60 or older who may be suitable

for parole to the ordinary parole process. Such an interpretation does not appear

foreclosed by the statutory text, and it seems consistent with the Legislature’s

purpose of reducing costs of geriatric care and providing compassionate release

for elderly inmates. Yet it is questionable whether such a parole hearing would

provide juvenile offenders with a “meaningful opportunity to obtain release based

on demonstrated maturity and rehabilitation.” (Graham, supra, 560 U.S. at p. 75,

italics added.) The record before us contains no information on how the Elderly

Parole Program actually operates or what considerations, apart from the “special

considerations” set forth in the statute (§ 3055, subd. (c)), guide the Board’s

determination of suitability for elderly parole. This information may be developed

on remand.

The Chief Justice says such development is unnecessary, noting that we

required no similar information before finding the availability of a youth offender

29

parole hearing sufficient to moot the Eighth Amendment claim in Franklin. (Dis.

opn. of Cantil-Sakauye, C. J., post, at pp. 30–31, citing Franklin, supra, 63 Cal.4th

at pp. 284–286.) But Franklin addressed legislation whose explicit and specific

purpose 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 [Caballero] and the decisions of the United States Supreme

Court in Graham . . . and Miller . . . . 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 established.” (Sen. Bill No. 260 (2013–2014

Reg. Sess.) § 1.) As noted, the statute expressly mandates consideration of youth-

related factors in youth offender parole hearings. (§§ 3051, subd. (e), 4801,

subd. (c).) For this reason, and because the statutes contemplate that “juvenile

offenders [must] have an adequate opportunity to make a record of factors,

including youth-related factors, relevant to the eventual parole determination,” we

were assured “at this point” that a juvenile offender eligible for such a hearing has

a meaningful opportunity for release within the meaning of Graham. (Franklin, at

p. 286.) Neither the text nor history of the elderly parole statute contains any

indication that the Legislature intended elderly parole hearings to be responsive to

the Eighth Amendment concerns raised by lengthy juvenile sentences.

Even assuming that elderly parole hearings consider normal parole factors,

it is not clear that elderly parole eligibility after 44 years in prison would provide

the 16-year-old nonhomicide offenders in this case with the “hope of restoration”

and realistic opportunity to reintegrate into society that Graham requires.

(Graham, supra, 560 U.S. at p. 70.) The Chief Justice notes that Bear Cloud v.

State, supra, 334 P.3d 132 invalidated a 45-year sentence for a 16-year-old

30

nonhomicide offender, but that three other state high courts have held that parole

eligibility at or around age 60 passes constitutional muster. (Dis. opn. of Cantil-

Sakauye, C. J., post, at pp. 33–34.) Among them, only Angel v. Commonwealth

(Va. 2011) 704 S.E.2d 386 (Angel) concluded that a geriatric release program for

inmates who are 60 or older satisfies Graham. The Virginia Supreme Court’s

holding was premised on its understanding that “the factors used in the normal

parole consideration process apply to conditional release decisions under

[Virginia’s geriatric release] statute.” (Angel at p. 402.)

Notably, in Virginia v. LeBlanc (2017) 582 U.S. __ [137 S.Ct. 1726]

(LeBlanc), the high court considered on habeas review whether Virginia’s geriatric

release program provides a meaningful opportunity for a juvenile nonhomicide

offender to obtain release based on demonstrated maturity and rehabilitation. The

trial court in LeBlanc, relying on Angel, rejected the defendant’s Eighth

Amendment challenge, and the high court held that the trial court’s ruling was not

objectively unreasonable. (LeBlanc, at p. __ [137 S.Ct. at p. 1729.) In so doing,

the high court emphasized that it was applying the deferential standard of review

required by the federal Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) (28 U.S.C. § 2254(d)(1)) and that “ ‘[t]here are reasonable arguments

on both sides.’ ” (LeBlanc, at p. __ [137 S.Ct. at p. 1729].) On one hand, because

Virginia’s geriatric release program considers “normal parole factors,” it “could

allow the Parole Board to order a former juvenile offender’s conditional release in

light of his or her ‘demonstrated maturity and rehabilitation.’ ” (Ibid.) On the

other hand, there were concerns “that the Parole Board’s substantial discretion to

deny geriatric release deprives juvenile nonhomicide offenders a meaningful

opportunity to seek parole and that juveniles cannot seek geriatric release until

they have spent at least four decades in prison.” (Ibid.) The high court thus

recognized there is a reasonable argument that even an elderly parole process that

31

considers normal parole factors could, in practice, fail to provide a meaningful

opportunity for release and that incarcerating a juvenile nonhomicide offender for

40 years or more without parole eligibility is simply too long under Graham.

Defendants here raise an additional concern: Juvenile offenders for whom

the Elderly Parole Program provides the first opportunity for release will

invariably spend more time in prison before parole eligibility compared to adult

inmates who committed the same crime and served at least 25 years before age 60

— a result at odds with the high court’s “conclusion in Roper v. Simmons, 543

U.S. 551 (2005), that juvenile offenders are generally less culpable than adults

who commit the same crimes.” (Graham, supra, 560 U.S. at p. 86 (conc. opn. of

Roberts, C. J.); see Roper, supra, 543 U.S. at p. 570.) In Graham, the high court

reasoned that “[l]ife without parole is an especially harsh punishment for a

juvenile” because “a juvenile offender will on average serve more years and a

greater percentage of his life in prison than an adult offender.” (Graham, at p. 70.)

Defendants contend the same reasoning applies to a sentence of more than 40

years without parole eligibility. (Id. at p. 71 [“This reality cannot be ignored.”].)

These issues are novel and substantial, and we leave them for the lower

courts to address in the first instance. Like the high court in LeBlanc, we decline

to resolve in this case whether the availability of an elderly parole hearing at age

60 for a juvenile nonhomicide offender satisfies the Eighth Amendment concerns

set forth in Graham.

B.

Apart from defendants’ eligibility for elderly parole, the Chief Justice

claims that “simply by maximizing the good-conduct credits that are available” to

them under Proposition 57, Rodriguez can advance his initial parole date to age 57

and Contreras can advance his initial parole date to age 64. (Dis. opn. of Cantil-

Sakauye, C. J., post, at p. 36.) But as with elderly parole, no Court of Appeal has

32

filed a published opinion addressing the relevance of Good Conduct Credit to the

constitutionality of a juvenile sentence, and the regulations, promulgated less than

one year ago, remain in emergency form. (Cal. Code Regs., tit. 15, § 3043.2.) In

addition, the record before us contains no information on how Good Conduct

Credit operates in practice.

The Chief Justice rests her calculations on defendants’ ability to earn the

maximum amount of Good Conduct Credit, but neither she nor Justice Kriegler

makes any mention of the myriad ways inmates can lose such credit. Good

Conduct Credit is subject to forfeiture upon “a finding of guilt of a serious rule

violation in accordance with section 3323.” (Cal. Code Regs., tit. 15, § 3043.2,

subd. (c).) The activities that can constitute a “serious rule violation” span a broad

range of conduct. (Id., §§ 3315, 3323.) A “credit forfeiture of 61-90 days” is

assessed for, among other violations, “[l]ate return from a temporary community

leave” or “[f]ighting.” (Id., § 3323, subds. (f)(7), (f)(9).) A “credit forfeiture of

31-60 days” is assessed for, among other violations, “damage to . . . state property

valued at less than $400,” “[p]ossession of alcoholic beverages or intoxicating

substances in a community-access facility under the jurisdiction of CDCR,” or

“[g]ambling.” (Id., § 3323, subds. (g)(1), (g)(2), (g)(5).) A “credit forfeiture of 0-

30 days” is assessed for, among other violations, “[m]isuse, alteration,

unauthorized acquisition, or exchange of personal property, state funds, or state

property” or “[h]arassment of another person, group, or entity.” (Id., § 3323,

subds. (h)(4), (h)(11); see also id., § 3315, subd. (a)(3) [listing 27 offenses that

qualify as a “serious rule violation,” including “(G) Possession of five dollars or

more without authorization” and “(H) Acts of . . . disrespect which by reason of

intensity or context create a potential for violence . . . .”].)

In positing an initial parole date at age 57 for Rodriguez and at age 64 for

Contreras, our dissenting colleagues assume that correctional authorities will not

33

revoke any Good Conduct Credit that defendants earn while incarcerated for 40-

plus years, citing select cases of inmates who have demonstrated good prison

behavior (though none of them served anything close to 40 years). (See dis. opn.

of Kriegler, J., post, at pp. 9–10.) But the record before us contains no

information on how likely it is that an inmate can achieve a spotless prison record

over a span of four or more decades. Nor is it clear that Graham’s requirement of

a “meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation” (id. at p. 75) would be satisfied by a parole eligibility date that is

contingent upon a perfect or near-perfect record in prison. (See Graham, supra,

560 U.S. at p. 70 [“the remote possibility” of release does not satisfy the Eighth

Amendment].) As with elderly parole, we leave these novel issues for the lower

courts to address in the first instance.

IV.

For the reasons above, we agree with the Court of Appeal that defendants’

sentences violate the Eighth Amendment under the standards articulated in

Graham. We affirm the judgment of the Court of Appeal and remand these

matters for resentencing. The sentencing court is directed to consider, in light of

this opinion, any mitigating circumstances of defendants’ crimes and lives, and the

impact of any new legislation and regulations on appropriate sentencing. The

sentencing court is further directed to impose a time by which defendants may

seek parole, consistent with this opinion.

Justice Kriegler says this disposition “is likely to leave the trial judge

mystified” because the trial court already considered any mitigating circumstances

of defendants’ crime and lives in imposing their original sentences. (Dis. opn. of

Kriegler, J., post, at p. 3.) But the trial court did not undertake its sentencing

analysis with the benefit of our opinion today. In addition, the trial court appeared

to stray from the fundamental teaching of Graham when it said at Contreras’s

34

sentencing: “So somebody with that kind of psychology is not somebody I feel

confident is going to rehabilitate, change, and become a different person

regardless of his brain development. I think his brain is developed into who he is

and who he was demonstrated on that whole event where he raped those two

girls.” (Cf. dis. opn. of Kriegler, J., post, at p. 5 [asserting that defendants’ crimes

“reveal[] the actions of violent sexual predators, not that of rogue youths

misbehaving on a lark”].)

The trial court in Graham had similarly concluded that the 16-year-old

defendant, a recidivist felon, was not capable of rehabilitation: “ ‘I don’t see

where I can do anything to help you any further. You’ve evidently decided this is

the direction you’re going to take in life, and it’s unfortunate that you made that

choice. [¶] . . . Given your escalating pattern of criminal conduct, it is apparent to

the Court that you have decided that this is the way you are going to live your life

and that the only thing I can do now is to try and protect the community from your

actions.’ ” (Graham, supra, 560 U.S. at p. 57.) But the key holding of Graham is

that “in light of a juvenile nonhomicide offender’s capacity for change and limited

moral culpability” (id. at p. 74), no sentencing court is permitted to render a

judgment “at the outset” that a juvenile nonhomicide offender is incorrigible (id. at

pp. 73, 75). 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.” (Montgomery, supra, 577

U.S. at p. __ [136 S.Ct. at p. 736]; see Miller, supra, 567 U.S. at p. 473 [“none of

what [Graham] said about children . . . is crime-specific”].)

In so holding, we do not minimize the gravity of defendants’ crimes or their

lasting impact on the victims and their families. No one reading the disturbing

facts of this case could disagree with the trial court that the crimes were “awful

and shocking.” The Court of Appeal was correct to observe that “[w]hatever their

35

final sentences, Rodriguez and Contreras will need to do more than simply bide

their time in prison to demonstrate parole suitability. . . . The record before us

indicates Rodriguez and Contreras have much work ahead of them if they hope to

one day persuade the Board they no longer present a current danger to society and

should be released on parole.”

Our dissenting colleagues further assert that our decision today provides

“virtually no guidance” (dis. opn. of Cantil-Sakauye, C. J., post, at p. 3) and “not a

whiff of direction” (dis. opn. of Kriegler, J., post, at p. 1) on what length of

sentence below 50 years will satisfy Graham. But in this context, we find it

prudent to follow a “cardinal principle of judicial restraint — if it is not necessary

to decide more, it is necessary not to decide more.” (PDK Laboratories Inc. v.

U.S. Drug Enforcement Admin. (D.C. Cir. 2004) 362 F.3d 786, 799 (conc. opn. of

Roberts, J.).)

Today’s decision, building on Caballero, elucidates Graham’s applicability

to a term-of-years sentence, and our reasoning will inform the application of

Graham by California courts going forward. Our disposition takes the approach

we took in Caballero, where we unanimously declared the defendant’s 110-years-

to-life sentence unconstitutional and remanded for the sentencing court to

“consider all mitigating circumstances attendant in the juvenile’s crime and

life . . . so that it can impose a time when the juvenile offender will be able to seek

parole from the parole board.” (Caballero, supra, 55 Cal.4th at pp. 268–269; see

id. at p. 273 (conc. opn. of Werdegar, J.).) No member of this court suggested that

we should provide further guidance on what would constitute a lawful sentence.

Instead, the court’s opinion expressly stated that “we will not provide trial courts

with a precise timeframe for setting these future parole hearings in a nonhomicide

case.” (Id. at p. 269.)

36

As it turns out, our restraint in Caballero proved well-advised. Our opinion

concluded with a footnote “urg[ing] the Legislature to enact legislation

establishing a parole eligibility mechanism that provides a defendant serving a de

facto life sentence without possibility of parole for nonhomicide crimes that he or

she committed as a juvenile with the opportunity to obtain release on a showing of

rehabilitation and maturity.” (Caballero, supra, 55 Cal.4th at p. 269, fn. 5.) The

Legislature responded the following year with Senate Bill No. 260. This

legislation made it unnecessary for us to decide Eighth Amendment challenges to

sentences of 25 years or more for a broad range of juvenile homicide and

nonhomicide offenses; juvenile offenders serving such sentences are now entitled

to a youth offender parole hearing during their 25th year of incarceration. (§ 3051,

subd. (b)(3); see Franklin, supra, 63 Cal.4th at pp. 277–280; cf. id. at pp. 284–286

[leaving undecided whether youth offender parole hearings, “in practice,” will

conform to applicable statutory and constitutional law].) In addition, whereas

Senate Bill No. 260 made youth offender parole hearings available for juveniles

who committed their controlling offense before age 18 (Stats. 2013, ch. 312, § 5),

the Legislature has since amended the age threshold to age 23 (Stats. 2015, ch.

471, § 2) and now to age 25 (Stats. 2017, ch. 684, § 2.5 [eff. Jan. 1, 2018]).

Moreover, the Legislature’s enactment of Senate Bill 394 just a few months ago

extended youth offender parole hearings in the 25th year of incarceration to

juveniles serving an LWOP sentence. (§ 3051, subd. (b)(4).) One Strike

offenders remain ineligible for youth offender parole hearings. (§ 3051, subd.

(h).) But in light of the changing statutory landscape, we see no reason to opine

here on constitutional and statutory issues that may be rendered moot by further

legislative action.

Finally, we note defendants’ contention that the current treatment of

juvenile One Strike offenders is anomalous given that juveniles convicted of

37

special circumstance murder and sentenced to LWOP are now eligible for parole

during their 25th year in prison. This scheme appears at odds with the high court’s

observation that “defendants who do not kill, intend to kill, or foresee that life will

be taken are categorically less deserving of the most serious forms of punishment

than are murderers. . . . Although an offense like robbery or rape is ‘a serious

crime deserving serious punishment,’ those crimes differ from homicide crimes in

a moral sense.” (Graham, supra, 560 U.S. at p. 69, citations omitted.) In the

death penalty context, the high court has said “there is a distinction between

intentional first-degree murder on the one hand and nonhomicide crimes against

individual persons, even including child rape, on the other. The latter crimes may

be devastating in their harm, as here, but ‘in terms of moral depravity and of the

injury to the person and to the public,’ they cannot be compared to murder in their

‘severity and irrevocability.’ ” (Kennedy v. Louisiana (2008) 554 U.S. 407, 438,

citation omitted.)

The parties point to no other provision of our Penal Code, and we are aware

of none, that treats a nonhomicide offense more harshly than special circumstance

murder. (Compare § 190.2 [prescribing penalty of death or LWOP for special

circumstance murder] with § 667.61 [prescribing maximum penalty of 25 years to

life or, when the victim is under age 14, LWOP for aggravated rape offenses].)

We are also unaware of any other jurisdiction that punishes juveniles for

aggravated rape offenses more severely than for the most aggravated forms of

murder. Further, we note the concern raised by amicus curiae PJDC that if

defendants had killed their victims after the sexual assaults and had been

sentenced to LWOP, they would have been eligible for a youth offender parole

hearing after 25 years of incarceration. (Cf. Kennedy v. Louisiana, supra, 554

U.S. at p. 445 [“[B]y in effect making the punishment for child rape and murder

38

equivalent, a State that punishes child rape by death may remove a strong

incentive for the rapist not to kill the victim.”].)

Defendants contend that this treatment of juvenile One Strike offenders

violates principles of equal protection and the Eighth Amendment. There is also a

colorable claim that it constitutes “unusual punishment” within the meaning of

article I, section 17 of the California Constitution. As with the other issues arising

from new legislation, we decline to resolve these contentions here. It suffices to

note, as we did in Caballero, that the current penal scheme for juveniles may

warrant additional legislative attention.

39

CONCLUSION

We affirm the judgment of the Court of Appeal and remand these matters

for resentencing. The sentencing court is directed to consider, in light of this

opinion, any mitigating circumstances of defendants’ crimes and lives, and the

impact of any new legislation and regulations on appropriate sentencing. The

sentencing court is further directed to impose a time by which defendants may

seek parole, consistent with this opinion.

LIU, J.

WE CONCUR:

CHIN, J.

CUÉLLAR, J.

KRUGER, J.

40

DISSENTING OPINION BY CANTIL-SAKAUYE, C. J.

I respectfully dissent. The majority’s erroneous interpretation and extension of

Graham v. Florida (2010) 560 U.S. 48 (Graham) yield a result the Graham court did not

intend — the categorical condemnation of all sentences in which juvenile offenders

convicted of nonhomicide crimes will serve a term of 50 years or greater. At the same

time, the majority fails to properly account for legislation and regulations that afford

defendants William Rodriguez and Leonel Contreras an initial opportunity for parole no

later than when they reach the age of 60. These measures take defendants’ sentences

outside of Graham’s purview even under the majority’s mistaken approach to that

decision. Defendants’ sentences do not violate the Eighth Amendment to the United

States Constitution, and I would so hold.

In Graham, supra, 560 U.S. 48, the high court invalidated a particular type of

prison sentence — one of life imprisonment without the possibility of parole (life without

parole) — when imposed upon a juvenile convicted only of a nonhomicide crime or

crimes. The court took great care in describing the type of sentence it considered “cruel

and unusual” under the Eighth Amendment. (U.S. Const., 8th Amend.) The majority in

Graham characterized life without parole as “ ‘the second most severe penalty permitted

by law.’ ” (Graham, at p. 69, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001

(conc. opn. of Kennedy, J.).) A life without parole sentence, the court stressed, “alters

the offender’s life by a forfeiture that is irrevocable. It deprives the convict of the most

basic liberties without giving hope of restoration, except perhaps by executive

clemency.” (Graham, at pp. 69-70.) Such a sentence “ ‘means that . . . [the convict] will

remain in prison for the rest of his days.’ ” (Id., at p. 70, quoting Naovarath v. State

(Nev. 1989) 779 P.2d 944, 944.) “Life in prison without the possibility of parole,” the

Graham court emphasized, “gives no chance for fulfillment outside prison walls, no

chance for reconciliation with society, no hope.” (Graham, at p. 79.)

Today, the majority declares unconstitutional a range of sentences that most

certainly are not the second most severe penalty permitted by law; that do offer hope of

restoration of basic liberties; that do not necessarily mean that defendants will remain in

prison for the rest of their days; and that do give a chance for fulfillment outside prison

walls, do give a chance for reconciliation with society, and do offer hope. In short, the

majority extends Graham to invalidate an array of sentences that are qualitatively

different from the sort of punishment that Graham was concerned with.

The majority asserts, unconvincingly, that behind Graham’s cautious and

consistent phrasing lies a more far-reaching intent to invalidate all sentences that do not

provide juvenile offenders convicted of nonhomicide crimes with an opportunity for

parole at an age when release would, in the majority’s view, be sufficiently conducive to

their full reintegration into society. This reading of Graham is flawed on several levels.

It is inconsistent with the careful, incremental approach the high court has taken when

addressing categorical Eighth Amendment challenges to sentencing practices. It defies

the Graham court’s articulations of its subject and holding, and represents an

inadequately justified extension of that decision. It departs from this court’s prior

description of Graham as demanding that a juvenile offender convicted of a nonhomicide

crime must receive “ ‘some realistic opportunity to obtain release’ from prison during his

or her expected lifetime.” (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero),

italics added, quoting Graham, supra, 560 U.S. at p. 82.) And it unnecessarily premises a

constitutional rule on the majority’s subjective and speculative views regarding the time

frame necessary to have a meaningful postcustodial life. The result is a dubious judicial

2

incursion into the legislative sphere, pitched at such a high level of abstraction that it

provides sentencing courts with virtually no guidance for determining whether a lengthy

prison sentence of less than 50 years will be held lawful.

The majority’s rendering of Graham is not only wrong; it is also unnecessary.

The majority’s analysis assumes that defendants will first become eligible for parole at

ages 66 and 74, after serving terms of 50 and 58 years, respectively. That assumption is

incorrect. Both defendants will be eligible for parole no later than age 60 under the

Elderly Parole Program recently codified by the Legislature. (See Pen. Code, § 3055.)1

Defendants may be eligible for parole even sooner due to recently expanded programs for

earning good conduct and other credits. (Cal. Code Regs., tit. 15, §§ 3043.2 [Good

Conduct Credits], 3043.3 [Milestone Completion Credits], 3043.4 [Rehabilitative

Achievement Credits], 3043.5 [Educational Merit Credits].) A sentence that affords a

meaningful opportunity for parole at age 60 or earlier cannot properly be characterized as

a sentence of life without parole or its functional equivalent, even under the majority’s

unwarranted extension of Graham.

In sum, the majority opinion gives short shrift to the limited nature of the holding

in Graham, to our prior understanding of that decision, and to the steps California has

taken toward ensuring that juvenile offenders convicted of nonhomicide offenses receive

“some meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.” (Graham, supra, 560 U.S. at p. 75.) And in significantly expanding the

Graham rule, the majority ultimately condemns as unconstitutional sentences that are

materially different from the ones defendants actually will serve. Therefore, I

respectfully dissent.

1 Subsequent statutory references are to the Penal Code except as otherwise

indicated.

3

I. FACTUAL AND PROCEDURAL BACKGROUND

The Court of Appeal offered this recitation of the facts presented at trial regarding

the brutal series of sexual assaults that led to the sentences before us:

“[Jane] Doe 2, then 15, accompanied [Jane] Doe 1, then 16, and Doe 1’s parents to

a party for one of Doe 1’s relatives. The party was at the relative’s house. At dusk, while

the party was still going on, the girls went for a walk and sat down by a tree in an open

space area. Contreras, then 16, and Rodriguez, then 16, walked past them. Both boys

wore dark clothing with hoods covering their heads. Rodriguez wore a red and black cap,

a dark-colored Padres T-shirt, and a long-sleeve, plaid or checkered jacket with a gray

hood. Contreras wore a long-sleeve, dark-colored, hooded jacket.

“A short time later, Contreras and Rodriguez tackled the girls from behind.

Contreras tackled Doe 1 and Rodriguez tackled Doe 2. Both boys wore bandanas

covering their noses and mouths. Contreras held a knife to Doe 1’s throat. One of boys

asked for the girls’ cell phones.

“The boys pulled the girls up and started taking them toward a street. Rodriguez

covered Doe 2’s mouth with his hand as she struggled to get away. Contreras repeatedly

told Doe 1 to tell Doe 2 to ‘shut the fk up.’ The boys forced the girls to walk across

the street, up an embankment, and into a wooded area. As they started going up the

embankment, Doe 2 continued to struggle and threw her weight backward, causing both

her and Rodriguez to stumble. Doe 2 bit Rodriguez’s hand and tried to get away.

However, Doe 1, at Contreras’s direction, told Doe 2 to be quiet and stop resisting.

“When Doe 2 got up off the ground, Rodriguez tied his bandana around her mouth

and told her he would hurt her if she screamed. He took her to a clearing. Contreras took

Doe 1 to a different location nearby. The area was not lighted and was not visible from

the street.

“Rodriguez took off Doe 2’s shorts and underwear. He told her to get down. As

she lay on her back, he got on top of her, put his penis in her vagina, and started thrusting

4

in and out. He pulled down the bandana and kissed her, putting his tongue in her mouth.

He told her not to scream or he would hurt Doe 1. He asked her if she liked what he was

doing. She was wearing a purity ring and had never had sexual intercourse before. His

actions were painful and caused her to wince.

“After what seemed like a long time to Doe 2, Rodriguez made her flip over. As

she lay on her stomach, he put his penis in her anus and started thrusting in and out.

“As Rodriguez was assaulting Doe 2, Contreras had Doe 1 lay down. He took off

her shorts, underwear, and shoes, had her help him take off her dress, and had her take off

her bra. He touched her breasts and tried to push his penis into her vagina, but his penis

was soft. He asked her whether she was a virgin and she told him she was. He put his

fingers in her vagina for a couple of seconds, which was painful for her. He told her to

keep her legs open and pushed his now erect penis into her, which was also painful for

her. He then started thrusting in and out.

“After awhile, he took his penis out of her vagina, stood up, told her to suck it, and

warned her he did not want to feel any teeth. He put his penis in her mouth and pushed

her head back and forth. She gagged and threw up. He then pushed his penis back into

her vagina. He told her to keep quiet and keep her legs open. She tried to keep quiet, but

made some noise because she was uncomfortable. He told her to shut up. He kept the

knife in his pocket during the sex acts.

“Around this time, Rodriguez called over to Contreras and the two boys switched

places. Rodriguez kissed Doe 1 and bit her cheek and neck. He put his penis in her

vagina and thrust in and out. He then put his penis in her mouth and pushed her head

back and forth. She gagged and threw up again. He lay down on the ground, had her get

on top of him, pushed his penis into her anus, and had her “hump” him by moving up and

down. After a couple of minutes, he had her sit back down. He put his penis in her

mouth again and pushed her head back and forth. She gagged and threw up again.

5

“As Rodriguez was engaging in sex acts with Doe 1, Contreras took off Doe 2’s

dress and had her help him take off her bra. Once all of her clothes were off, he had her

lay on her back. While holding the knife to her neck, he told her to open her legs ‘really

wide.’ He then put his penis into her vagina and started thrusting. The action was

painful to her. He asked whether she was a virgin and she told him she was. He also

asked whether she had a boyfriend and where she went to school. She told him she did

not have a boyfriend and what school she attended.

“After some period of time, Contreras moved further up on Doe 2. While holding

the knife in his hand, he put his penis in her mouth and told her to suck it. She turned her

head away and told him she could not breathe. He put his penis back in her mouth and

told her to try. She turned her head away again. He changed their positions so he lay on

his back and she was on top of him. He told her to put his penis in her vagina. She told

him she did not know how, so he put it in himself. He told her to jump up and down, but

she did not know what he meant. He thrust up and down while fondling her breasts. His

knife was on the ground nearby. When they were in this position, Contreras’s bandana

slipped and Doe 2 got a good look at his face.

“At some point, Contreras asked Doe 2, ‘Did [Rodriguez] fk your mouth?’ She

told him no. Rodriguez then brought Doe 1 over to the same place as Doe 2. Once more,

Rodriguez put his penis in Doe 1’s mouth and pushed her head back and forth. Once

more, she threw up. Afterwards, the two boys switched again.

“Rodriguez had Doe 2 get on her back and he put his penis in her mouth. She

turned her head away and told him she could not breathe, but he put his penis back in her

mouth. While this was occurring, Contreras put his penis in Doe 1’s mouth. He moved

her head back and forth and warned her he did not want to feel any teeth. She gagged yet

again. Neither Contreras nor Rodriguez wore a condom during any of the sex acts.

“When the boys decided to stop, they had the girls put their clothes back on. As

Doe 2 was getting dressed, Rodriguez kissed Doe 2, touched her legs, put his finger in

6

her vagina, and told her she was beautiful. Before Doe 1 got dressed, Rodriguez also

kissed her and asked her if she liked what had happened. He told her she was beautiful

and that, if they had known each other before, she would have been his girlfriend.

“Meanwhile, Contreras pulled a bicycle from the bushes. The boys then directed

the girls which way to go and told them not to say anything to anyone. One of the boys

said they would follow the girls home and come after the girls if they ever told anyone.

Contreras also threatened to find and hurt one of Doe 1’s young relatives.

“The girls walked down the slope and across the street, where they met up with

Doe 1’s parents, who had been looking for them. They got in Doe 1’s parents’ car and

left. Doe 1’s mother asked where they had been and what had happened to them.

“At first, the girls did not say anything. Doe 2 did not say anything because she

thought the boys were still close by and she just wanted to get away. However, Doe 1’s

mother asked them directly if they had been raped and they acknowledged they had been.

Doe 1’s parents took them back to Doe 1’s relative’s home, where someone called the

police.”

The case was tried before two juries. One convicted Rodriguez of two counts of

forcible rape (§ 261, subd. (a)(2)), two counts of kidnapping (§ 207, subd. (a)), four

counts of forcible oral copulation (§ 288a, subd. (c)(2)(A)), and two counts of sodomy by

use of force (§ 286, subd. (c)(2)(A)). The jury also found true allegations that Rodriguez

had committed the sexual assault crimes during a kidnapping and against multiple victims

(§ 667.61, subds. (d)(2) & (e)(4)). The other jury convicted Contreras of seven counts of

forcible rape (§ 261, subd. (a)(2)), conspiracy to commit kidnapping and forcible rape

(§ 182, subd. (a)(1)), rape by foreign object (§ 289, subd. (a)(1)(A)), two counts of

kidnapping (§ 207, subd. (a)), eight counts of forcible oral copulation (§ 288a, subd.

(c)(2)(A)), and two counts of sodomy by use of force (§ 286, subd. (c)(2)(A)). This jury

returned true findings on allegations that Contreras committed the crimes with use of a

knife (§ 12022.3, subd. (a)), as well as other allegations bringing Contreras’s case, like

7

Rodriguez’s, within the purview of the “One Strike” law for sentencing purposes

(§ 667.61, subds. (d)(2), (e)(1), (3), & (4)).

These convictions and findings meant that under the One Strike law, defendants

faced sentences whereby their first opportunity for parole would not arise until long after

their natural lifespans had elapsed. (See §§ 667.6, subd. (d), 667.61, subd. (i).) At the

time of sentencing, however, the trial court recognized that in Caballero, supra, 55

Cal.4th 262, this court had construed Graham as directing that a juvenile offender

convicted of a nonhomicide crime receive “ ‘some realistic opportunity to obtain release’

from prison during his or her expected lifetime.” (Caballero, supra, 55 Cal.4th at

p. 268.) The court advised Rodriguez that had he been an adult, it would have had “no

problem” sentencing him to the maximum term of 200 years to life. The court observed,

however, that it “couldn’t give [Rodriguez] 75 years to life because that would probably

take him outside of this life expectancy. . . . So probably the most I could give him is 50

to life,” which Rodriguez’s attorney conceded was a lawful sentence under Caballero.

The court imposed this sentence on Rodriguez, sentencing him to two consecutive terms

of 25 years to life on the two forcible rape counts, and running the terms on all other

counts concurrently. With regard to Contreras, the court acknowledged a prospective

statutory sentence of 620 years to life. To comply with Graham, the court imposed a

sentence of 58 years to life. This sentence was comprised of two consecutive terms of 25

years to life on two forcible rape counts and an eight-year term on the knife enhancement,

with all other terms to run concurrently.

II. DISCUSSION

As explained below, the majority adopts a faulty, overbroad construction of

Graham, and extends that decision well beyond the boundaries marked by the high court.

And it does so needlessly, because the sentences here are quite different from the ones

condemned by the majority. Defendants will become eligible for parole not at ages 66

and 74, as the majority generally assumes, but no later than age 60. These sentences

8

comport with the Eighth Amendment even under the majority’s unjustified extrapolation

from Graham, making it unnecessary to announce a general standard in today’s decision.

A. The Majority Misconstrues Graham

1. Graham is concerned only with sentences of life without parole and

functionally equivalent sentences

In Graham, supra, 560 U.S. 48, the United States Supreme Court considered

whether the Eighth Amendment to the United States Constitution absolutely prohibits the

imposition of a sentence of life without the possibility of parole on a juvenile offender

convicted only of a nonhomicide offense. In resolving this question, the court applied its

“categorical” strain of Eighth Amendment jurisprudence. (See id., at pp. 60-62.) This

approach evaluates whether a particular type of punishment is “cruel and unusual” (U.S.

Const., 8th Amend.) in all of its applications, or is categorically prohibited with regard to

a certain class of offenders. (Graham, at pp. 60-61.) Prior to Graham, the high court had

applied this form of analysis only to sentences of death. (Id., at p. 60.)

As befits the categorical approach, Graham, supra, 560 U.S. 48, ultimately

invalidated a narrowly defined, specific type of sentence — one that does not afford a

juvenile offender convicted of a nonhomicide crime “some realistic opportunity to obtain

release.” (Id., at p. 82.)2 Again and again in its analysis, the Graham court stressed the

distinctive characteristics of a sentence of life without parole that made it vulnerable to an

Eighth Amendment challenge. The court described life without parole as “ ‘the second

2 The court in Graham, supra, 560 U.S. 48, began its categorical analysis by

considering whether there were “ ‘objective indicia of society’s standards, as expressed in

legislative enactments and state practice’ to determine whether there [was] a national

consensus against the sentencing practice at issue.” (Id., at p. 61; see also id., at pp. 62-

67.) The court acknowledged that a substantial majority of states, and the District of

Columbia, allowed juveniles to be sentenced to life without parole for a nonhomicide

crime. (Id., at p. 62.) The court emphasized, however, that at the time of its decision,

there were only 123 juvenile nonhomicide offenders serving “life without parole”

sentences nationwide, 77 of whom were serving sentences in Florida. (Id., at p. 64.) The

court did not conduct any similar canvass of juvenile nonhomicide offenders serving

lengthy terms other than “life without parole,” or states that authorized such sentences.

9

most severe penalty permitted by law,’ ” and observed that “life without parole sentences

share some characteristics with death sentences that are shared by no other sentences.”

(Id., at p. 69.) A life without parole sentence, the court emphasized, “alters the offender’s

life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties

without giving hope of restoration, except perhaps by executive clemency.” (Id., at pp.

69-70.) Such a sentence “ ‘means that . . . [the convict] will remain in prison for the rest

of his days.’ ” (Id., at p. 70.) “Life in prison without the possibility of parole,” the court

emphasized, “gives no chance for fulfillment outside prison walls, no chance for

reconciliation with society, no hope.” (Id., at p. 79.) Even if the defendant in Graham

were to spend “the next half century attempting to atone for his crimes and learn from his

mistakes,” the court observed, his “sentence guarantees he will die in prison.” (Ibid.)

Graham, supra, 560 U.S. 48, concluded that for a juvenile offender convicted of a

nonhomicide crime, a sentence that guarantees death in prison was unjustified by any

prevailing penological rationale, be it retribution, deterrence, incapacitation, or

rehabilitation. (Id., at pp. 71-74.) The court thus believed it necessary to draw a “clear

line” that prohibits the imposition of life without parole sentences on juvenile offenders

who commit only nonhomicide offenses. (Id., at p. 74.) It articulated this line as follows:

“[a] State is not required to guarantee eventual freedom to a juvenile offender convicted

of a nonhomicide crime. What the State must do, however, is give defendants like

Graham 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.” (Id., at p. 75.) Later, the court reiterated, “A State need

not guarantee the offender eventual release, but if it imposes a sentence of life it must

provide him or her with some realistic opportunity to obtain release before the end of that

term.” (Id., at p. 82.)

Graham, supra, 560 U.S. 48, was an extension of the Supreme Court’s prior

Eighth Amendment jurisprudence, but a limited one. The restrained nature of the

10

Graham holding, and the deference it afforded states to “in the first instance . . . explore

the means and mechanisms for compliance” (id., at p. 75), were consistent with the

careful, incremental approach the high court has taken when addressing Eighth

Amendment questions. The court has been properly mindful that it is the legislature, not

the judiciary, that the public anticipates will define the parameters of permissible criminal

sentences. (See Rummel v. Estelle (1980) 445 U.S. 263, 274 [“one could argue without

fear of contradiction by any decision of this Court that for crimes concededly classified

and classifiable as felonies, that is, as punishable by significant terms of imprisonment in

a state penitentiary, the length of the sentence actually imposed is purely a matter of

legislative prerogative”].) We have expressed similar views. (People v. Wingo (1975) 14

Cal.3d 169, 174 [“The doctrine of separation of powers is firmly entrenched in the law of

California, and a court should not lightly encroach on matters which are uniquely in the

domain of the Legislature. Perhaps foremost among these are the definition of crime and

the determination of punishment.”].)

2. Subsequent judicial application of Graham

Some courts have regarded the Graham holding as very narrowly circumscribed.

To these courts, Graham’s reach does not extend to aggregate sentences arising out of

convictions for multiple nonhomicide crimes imposed as a specific term of years, or a

specific term of years to life, even if the initial opportunity for parole appears outside of

the juvenile offender’s life expectancy. (E.g., Bunch v. Smith (6th Cir. 2012) 685 F.3d

546, 552; Lucero v. People (Colo. 2017) 394 P.3d 1128, 1133; State v. Brown (La. 2013)

118 So.3d 332, 342; Willbanks v. Dept. of Corrections (Mo. 2017) 522 S.W.3d 238, 246-

247.)3

3 A subset of this line of precedent finds Graham applicable to a term of years

sentence for a single crime, but inapplicable when multiple offenses are involved. (State

ex rel. Morgan v. State (La. 2016) 217 So.3d 266, 271-277.)

11

Other courts — including our own court — have concluded that a juvenile

offender convicted of a nonhomicide crime or crimes does not have the “realistic

opportunity to obtain release” (Graham, supra, 560 U.S. at p. 82) that Graham requires

when he or she is sentenced to a term of years in which the initial opportunity for parole

plainly arises outside of normal life expectancy, even when multiple convictions are

involved. (Caballero, supra, 55 Cal.4th at p. 268; see also Budder v. Addison (10th Cir.

2017) 851 F.3d 1047, 1059; Moore v. Biter (9th Cir. 2014) 725 F.3d 1184, 1192; Henry

v. State (Fla. 2015) 175 So.3d 675, 679-680, State v. Boston (Nev. 2015) 363 P.3d 453,

458-459.) Like a sentence explicitly imposed as “life without parole,” an aggregate

sentence of a term of years in which the initial opportunity for release certainly will come

only after the inmate’s death — in other words, one that is the functional equivalent of

life without parole — “ ‘means that . . . [the convict] will remain in prison for the rest of

his days.’ ” (Graham, at p. 70.)

When this court adopted the latter interpretation of Graham, we related our view

of what that decision holds. In Caballero, supra, 55 Cal.4th 262, we concluded that a

sentence of 110 years to life fell within Graham’s strictures. We observed that

“[d]efendant in the present matter will become parole eligible over 100 years from now.

[Citation.] Consequently, he would have no opportunity to ‘demonstrate growth and

maturity’ to try to secure his release, in contravention of Graham’s dictate. [Citations.]

Graham’s analysis does not focus on the precise sentence meted out. Instead, as noted

above, 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.” (Id., at

p. 268, italics added.) We later reiterated, “Consistent with the high court’s holding in

Graham [], we conclude 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 punishment in violation of the

Eighth Amendment.” (Ibid.) Significantly, these descriptions of Graham in Caballero

12

represented a positive articulation of the Supreme Court’s holding, not merely an

application of Graham to a particular sentence that left our view regarding the scope of

that ruling unclear.

Caballero thus interpreted Graham in a manner comporting with the high court’s

focus and phrasing — unlike the majority here. The language used within Graham itself

establishes, and our precedent has recognized, that the Graham court was concerned with

prohibiting a relatively discrete class of sentences that do not afford a prisoner “ ‘some

realistic opportunity to obtain release’ from prison during his or her expected lifetime”

(Caballero, supra, 55 Cal.4th at p. 268, quoting Graham, supra, 560 U.S. at p. 82).

These, and only these, sentences involve “ ‘the second most severe penalty permitted by

law.’ ” (Graham, at p. 69.) These, and only these, sentences “share some characteristics

with death sentences that are shared by no other sentences.” (Ibid.) And these, and only

these sentences mean that a defendant “ ‘will remain in prison for the rest of his days.’ ”

(Id., at p. 70.)

3. The majority offers an overbroad construction of Graham

Compare the careful and consistent language used in Graham with the holding

today. The majority provides that “[a] lawful sentence must recognize ‘a juvenile

nonhomicide offender’s capacity for change and limited moral culpability.’ [Citation.]

A lawful sentence must offer ‘hope of restoration’ [citation], ‘a chance to demonstrate

maturity and reform’ [citation], a ‘chance for fulfillment outside prison walls,’ and a

‘chance for reconciliation with society’ [citation]. A lawful sentence must offer ‘the

opportunity to achieve maturity of judgment and self-recognition of human worth and

potential.’ [Citation.] A lawful sentence must offer the juvenile offender an ‘incentive to

13

become a responsible individual.’ ” (Maj. opn., ante, at p. 17, quoting Graham, supra,

560 U.S. at pp. 69-70, 74, 79.)4

The majority thus invalidates sentences in which an initial opportunity for parole

(or another possible avenue for release) arises even well within a defendant’s life

expectancy. What Graham, supra, 560 U.S. 48, meant to say, the majority professes —

notwithstanding the limiting language interwoven throughout that opinion — is that a

4 In describing what a lawful sentence entails, the majority offers several quotations

from Graham (maj. opn., ante, at p. 17), but omits accompanying language that the high

court used to frame and limit its holding, some of which appears elsewhere in the

majority opinion. The text below shows how the words and phrases quoted by the

majority in articulating its holding actually appeared within the Graham opinion:

“A sentence of life imprisonment without parole, however, cannot be justified by

the goal of rehabilitation. The penalty forswears altogether the rehabilitative ideal. By

denying the defendant the right to reenter the community, the State makes an irrevocable

judgment about that person’s value and place in society. This judgment is not

appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited

moral culpability.” (Graham, supra, 560 U.S. at p. 74, italics added.) Here the majority

omits the high court’s constraining language regarding the penalty it was concerned with

— one that “forswears altogether the rehabilitative ideal,” and makes an “irrevocable

judgment” about the offender (ibid.), which the sentences before us do not.

“The State does not execute the offender sentenced to life without parole, but the

sentence alters the offender’s life by a forfeiture that is irrevocable. It deprives the

convict of the most basic liberties without giving hope of restoration, except perhaps by

executive clemency — the remote possibility of which does not mitigate the harshness of

the sentence.” (Graham, supra, 560 U.S. at pp. 69-70, italics added.) Here, the majority

omits Graham’s use of “irrevocable” in describing the forfeiture at issue. To similar

effect, the majority also does not include the fact that the “hope of restoration” Graham

addressed involved only the convict’s “most basic liberties.”

“Life in prison without the possibility of parole gives no chance for fulfillment

outside prison walls, no chance for reconciliation with society, no hope.” (Graham,

supra, 560 U.S. at p. 79, italics added.) The majority here omits the word “no,” with its

obvious limiting force, notwithstanding the fact that Graham used this word on three

separate occasions.

“[A] categorical rule gives all juvenile nonhomicide offenders a chance to

demonstrate maturity and reform. The juvenile should not be deprived of the opportunity

to achieve maturity of judgment and self-recognition of human worth and potential.”

(Graham, supra, 560 U.S. at p. 79, italics added.) Here, the majority omits the fact that

the Graham court viewed itself as announcing a “categorical rule.”

14

lawful sentence must provide more than a “meaningful” (id., at p. 75) or “realistic

opportunity to obtain release” (id., at p. 82). According to the majority, the state also

must structure prison sentences to offer an initial opportunity for release at a juncture that

affords sufficient time for the inmate to fully reintegrate into society. Although the

majority declines to explain what constitutes an adequate postcustodial buffer, today’s

ruling makes clear that in the majority’s view, an initial opportunity for release at age 66

or 74 does not provide enough time.

Today’s ruling thus declares unconstitutional a range of sentences that are

qualitatively different from the sentences of life without parole that Graham addressed.

Neither Rodriguez’s sentence of 50 years to life nor Contreras’s sentence of 58 years to

life represents “ ‘the second most severe penalty permitted by law.’ ” (Graham, supra,

560 U.S. at p. 69.) Neither sentence ensures an “irrevocable” forfeiture of the inmate’s

liberties “without giving hope of restoration.” (Id., at pp. 69-70.) Neither sentence means

that the defendant “ ‘will remain in prison for the rest of his days.’ ” (Id., at p. 70.)

Neither sentence “gives no chance for fulfillment outside prison walls, no chance for

reconciliation with society, no hope.” (Id., at p. 79, italics added.) Neither sentence

“guarantees” the defendant “will die in prison.” (Ibid.)

On the contrary, the sentences here afford defendants a “meaningful” (Graham,

supra, 560 U.S. at p. 75) and “realistic” (id., at p. 82) opportunity for parole within their

lifetimes. Both defendants will be eligible for parole well within prevailing life

expectancies for people their age. (Nat. Vital Statistics System, U.S. Dept. of Health &

Human Services, United States Life Tables, 2010 (Nov. 6, 2014) p. 9 (National Vital

Statistics System Study) [projecting an average life expectancy of approximately 79 years

for persons aged 15-16 in the United States as of 2010],

<https://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_07.pdf> [as of Feb. 26, 2018].)

Furthermore, extrapolating a median age at death from average life-expectancy figures,

as the majority does (maj. opn., ante, at p. 11), in fact significantly underestimates the

15

likelihood that a person will live to a certain age. (See Nat. Vital Statistics System Study,

at pp. 2, 9-10 [providing data and associated interpretive guidance forecasting that as of

2010, a 15-year-old member of the general public has a greater than 57 percent chance of

surviving to age 80, and a greater than 50 percent chance of surviving to age 82].)

The majority refuses to consider these or any other empirical data for purposes of

determining when a sentence affords a “meaningful” (Graham, supra, 560 U.S. at p. 75)

or “realistic” (id., at p. 82) opportunity for release. The majority expresses concern that

use of such data would entail a choice between, on the one hand, disadvantaging

members of a cohort that may in the aggregate have a lower life expectancy than that of

the general public; or on the other, improperly relying on race, gender, or other

characteristics in assessing whether a sentence falls sufficiently within a defendant’s life

expectancy. (Maj. opn., ante, at pp. 8-12.)

There are three responses. First, some reliance on lifespan data is not merely

recognized by our precedent (Caballero, supra, 55 Cal.4th at p. 268), but is unavoidable

when determining whether a sentence affords a “realistic opportunity to obtain release.”

(Graham, supra, 560 U.S. at p. 82, italics added.) In People v. Franklin (2016) 63

Cal.4th 261 (Franklin), for example, this court also considered an Eighth Amendment

challenge to a sentence of 50 years to life imposed on a juvenile, who characterized the

sentence as the functional equivalent of life without parole. We found this challenge

mooted by the Legislature’s then-recent enactment of a system of youth offender parole

hearings (see § 3051) that provides for a parole hearing no later than an eligible

offender’s twenty-fifth year of incarceration. (Franklin, at pp. 279-280.)5 Under this

program, the defendant in Franklin would be eligible for parole at the age of 41 years.

(Id., at p. 279.) A sentence affording a meaningful opportunity for parole at such a

juncture, we concluded, was not the functional equivalent of a sentence of life without

5 Defendants are not eligible for these hearings because they were sentenced under

the One Strike law. (See § 3051, subd. (h).)

16

parole. (Ibid.) To have drawn this conclusion, we must have mapped the defendant’s

sentence against some conception of his life expectancy. And, truth be told, the majority

here must have engaged in comparable benchmarking. In invalidating defendants’

sentences on the ground that they provide insufficient time for reintegration into society

upon early parole, the majority must have some notion of defendants’ life expectancy in

mind. The majority, however, does not disclose this figure.

Second, although the majority emphasizes its concerns with life expectancies

based on race, sex, and custodial status, juvenile defendants belong to a nearly infinite

number of cohorts. Some of these groups may have longer life expectancies than the

general population, others shorter. To assign more importance to a defendant’s

membership in one cohort than to his or her presence in another would be speculative.

Given that a defendant could be placed within any of many peer groups for purposes of

assessing his or her life expectancy, and given as well the need to use some conception of

life expectancy as a benchmark, reliance on general population life expectancies makes

good sense as providing an administrable rule of decision that is consistent with Graham.

Third, and most fundamentally, the majority’s concerns derive from its

fundamental mischaracterization of what Graham, supra, 560 U.S. 48, requires. The

majority appears to impose upon the People the burden of showing that defendants do not

belong to any cohort in which the average member lacks a high probability of surviving

until well past the ages of 66 or 74. That is not what Graham holds, and is also

inconsistent with the general principle that the defendant bears a “ ‘considerable burden’

to show a punishment is cruel and unusual.” (People v. Meneses (2011) 193 Cal.App.4th

1087, 1092, quoting People v. Wingo, supra, 14 Cal.3d at p. 174.) As discussed ante,

Graham requires only a “meaningful” (Graham, at p. 75) or “realistic” (id., at p. 82)

opportunity for parole, not a certain one (which would be impossible to guarantee); and it

does not require the very substantial postcustodial period that the majority demands.

17

A sentence that offers an initial parole hearing at age 66 or 74, well within prevailing

public life expectancies, offers the sort of opportunity that Graham contemplates.6

B. The Majority Provides No Persuasive Rationale for Extending Graham

The preceding discussion establishes that there is a basic disconnect between

Graham itself, and the majority’s interpretation of that decision. Graham, supra, 560

U.S. 48, condemned one type of sentence; the majority, another altogether. To bridge

this gap, the majority justifies its holding as a logical extension of aspects of Graham’s

reasoning. But the majority’s analysis on these points is unpersuasive.

1. The majority’s discussion of penological objectives does not support its

expansion of Graham

The majority’s principal justification for extending Graham to the sentences here

is the cursory survey it conducts of the four penological rationales for sentencing

practices that Graham considered. (See Graham, supra, 560 U.S. at pp. 71-74.) The

majority perceives from this review inadequate justification for the sentences here.

(Maj. opn., ante, at p. 19.) But the majority’s discussion of these penological objectives

proves both too much and too little.

The discussion proves too much, in that majority’s vague critiques of the prison

terms imposed on defendants as insufficiently justified by reference to these penological

objectives could be read to forbid any lengthy sentence imposed upon a juvenile offender.

We are told that “[t]he retributive case for a 50-years-to-life sentence, as for [life without

parole], is weakened by the juvenile nonhomicide offender’s ‘age . . . and the nature of

the crime.’ [Citation.] As for deterrence, Graham’s observation that juveniles have

limited ability to consider consequences when making decisions [citation] applies to a

sentence of 50 years to life just as it does to a sentence of [life without parole]. And as

6 The majority expresses concerns about a sentence that affords an opportunity for

release only a day, week, or month before an inmate’s death. (Maj. opn., ante, at p. 17.)

But such inopportune timing may be an issue with any prison sentence, no matter how

long or short it may be.

18

for incapacitation, a judgment that a juvenile offender will be incorrigible for the next 50

years is no less ‘questionable’ than a judgment that the juvenile offender will be

incorrigible ‘forever.’ [Citations.] Finally, as noted, a sentence of 50 years to life

‘cannot be justified by the goal of rehabilitation’ because it offers a juvenile offender

little ‘incentive to become a responsible individual.’ [Citation.]” (Maj. opn., ante, at p.

19.) On each of these points, the majority offers no limiting principle that would

establish why similarly broad criticisms could not be lodged against the sentence we

upheld as lawful in Franklin, supra, 63 Cal.4th at pages 279-280, which afforded an

initial opportunity for parole only after 25 years of incarceration.

Meanwhile, a more careful analysis establishes that the majority’s survey of

penological objectives proves too little, because the sentences here are better justified by

reference to penological aims than the life without parole sentences addressed in Graham

were. With regard to retribution, the Graham court was concerned with a perceived lack

of proportionality between a nonhomicide crime and imposition of “the second most

severe penalty” on a juvenile. (Graham, supra, 560 U.S. at p. 72; see also id., at p. 71.)

But the proportionality analysis is different here. The sentences here are not as severe as

one that “guarantees” the defendant “will die in prison.” (Id., at p. 79.) A sentence that

withholds any hope of release signifies a final determination that the juvenile will never

again be fit to reenter society. A sentence that affords some hope of parole within

prevailing life expectancies does not send a similar message. Such a sentence manifests a

belief that the offender can change. Consistent with this belief, it offers the prospect of

release. Likewise, a sentence that offers a “meaningful” (id., at p. 75) and “realistic” (id.,

at p. 82) chance of parole within the offender’s lifespan, as the sentences here do, does

not utterly foreswear the rehabilitative ideal, or demand incapacitation forever, regardless

of whether the inmate remains a threat to public safety. (See § 3041, subd. (b)(1)

[describing the standard for a grant of parole].) Instead, such a sentence recognizes that

19

the offender may become an improved person while in prison, which may give him or her

the possibility of release.

Finally, Graham, supra, 560 U.S. 48, perceived the fourth penological objective it

discussed, deterrence, as an insufficient justification for a sentence of life without parole

for a juvenile offender convicted only of a nonhomicide crime. (Id., at p. 72.) The

Graham court believed that juveniles may not be deterred by the prospect of a lifelong

prison term, particularly given how rarely such a term had been imposed for a

nonhomicide crime. (Ibid.) But Graham did not categorically cast lengthier terms of

incarceration as having no marginal deterrence value for juveniles, relative to shorter

terms. Nor did the court suggest that deterrence, together with other penological

rationales, would not provide an adequate justification for a sentence that does offer an

opportunity for parole within prevailing lifespans. (See ibid. [noting that “any limited

deterrent effect provided by life without parole is not enough to justify the sentence”].)

In short, a proper review of the penological objectives of sentencing further

establishes that the majority has improperly extended Graham to an array of sentences

that are materially different from the type of sentence condemned by the Supreme Court.

2. Graham did not endorse an approach as vague as the majority’s

Lastly, regardless of whether the majority is better described as adopting an

erroneous interpretation of Graham, or as an improper extension of that decision, its

holding fails to heed the Supreme Court’s guidance regarding the need for workable,

objective rules in the Eighth Amendment sphere.

In appropriate instances, the Supreme Court has drawn clear lines for the

administration of a constitutional rule. (See, e.g., County of Riverside v. McLaughlin

(1991) 500 U.S. 44, 56 [specifying 48 hours as the maximum period to fulfill the judicial

presentment and probable-cause determination requirement of Gerstein v. Pugh (1975)

420 U.S. 103]; cf. Maryland v. Shatzer (2010) 559 U.S. 98, 110.) The court has regarded

such an approach as preferable to a “vague standard” that fails to provide “sufficient

20

guidance,” particularly when adoption of a rule would avoid having “judges in the role of

making legislative judgments.” (County of Riverside v. McLaughlin, at p. 56.) It would

represent a logical application of this general principle to rely on life expectancies in

ascertaining whether a sentence comports with Graham, particularly given the Graham

court’s express avowal that it was drawing a “clear line” with its decision. (Graham,

supra, 560 U.S. at p. 74.)7

The majority’s approach, in contrast, turns on highly subjective impressions

regarding matters such what adequate postcustodial reintegration into society entails, and

the time necessary to accomplish this assimilation. It thus runs counter to the high

court’s stated view that “ ‘Eighth Amendment judgments should not be, or appear to be,

merely the subjective views of individual Justices; judgment should be informed by

objective factors to the maximum possible extent.’ ” (Rummel v. Estelle, supra, 445 U.S.

at pp. 274-275, quoting Coker v. Georgia (1977) 433 U.S. 584, 592 (plur. opn. of White,

J.).) Today’s decision instead announces precisely the sort of “vague standard” involving

“legislative judgments” (County of Riverside v. McLaughlin, supra, 500 U.S. at p. 56)

that the Supreme Court has told us to avoid.

To repeat, the majority holds that under the Eighth Amendment, “[a] lawful

sentence must recognize ‘a juvenile nonhomicide offender’s capacity for change and

limited moral culpability.’ [Citation.] A lawful sentence must offer ‘hope of restoration’

[citation], ‘a chance to demonstrate maturity and reform’ [citation], a ‘chance for

fulfillment outside prison walls,’ and a ‘chance for reconciliation with society’ [citation].

A lawful sentence must offer ‘the opportunity to achieve maturity of judgment and self-

7 The majority asserts that the reference in Graham, supra, 560 U.S. 48, to drawing

a “clear line” (id., at p. 74) signified only that the court was distinguishing between

juvenile and adult offenders, and between homicide and nonhomicide crimes — not

describing the types of sentences it was prohibiting. (Maj. opn., ante, at pp. 22-23.) But

under the majority’s reading of Graham, which ignores the limiting language interlacing

that decision as a whole, the high court was not drawing a “clear line” at all with its

ruling — contrary to its assertion that it was.

21

recognition of human worth and potential.’ [Citation.] A lawful sentence must offer the

juvenile offender an ‘incentive to become a responsible individual.’ ” (Maj. opn., ante, at

p. 17.) One could regard all of these as worthwhile objectives, and certainly Graham

condemned sentences of life without parole, as imposed on juvenile offenders who

committed only nonhomicide crimes, on grounds that included the perception that they

offered no hope of freedom, no chance to demonstrate that they had matured, and no

opportunity for fulfillment outside prison. But this aspect of Graham simply makes the

Supreme Court’s limiting language, which the majority omits in relating its holding, all

the more important. What the Supreme Court in Graham appreciated — but today’s

decision does not — is the need for coherent rules for application in specific cases.

The courts of this state, capable though they are, undoubtedly will struggle to

apply standards presented at the majority holding’s high level of abstraction. The

inevitable disagreements will be resolved only by another set of highly subjective

judgments on appeal, and so forth. Even as applied here, the vagueness inherent in the

majority’s approach makes it unclear that defendants’ sentences are unlawful. We know

that the sentences are unconstitutional only because the majority tells us as much. Yet I

anticipate that even the majority would concede that profound life experiences still may

lie ahead of someone released from prison at age 66 or 74. The majority describes these

ages as falling “near the end” of a person’s life, language that suggests that fulfillment at

such a juncture is well-nigh impossible. (Maj. opn., ante, at p. 17.) The millions of

productively employed senior citizens would beg to differ (see State v. Smith (Neb. 2017)

892 N.W.2d 52, 66 [“in today’s society, it is not unusual for people to work well into

their seventies”]), as would the millions more who have retired from the workforce, or

perhaps never entered it, but represent valued contributors to their families and

communities. And, I anticipate, many inmates who are freed from custody at these ages

also would disagree with the assessment that they are “near the end” of their lives. True,

prisoners who are released from prison after serving lengthy terms will need to adjust to

22

their changed circumstances. But substantial fulfillment — whether in the form of

rapprochement or reunions with friends and family, community service, continuing

education, employment, or otherwise — does not necessarily arrive only after many years

outside of custody, particularly for those who already have demonstrated maturity and

the capacity to reform.

Given the degree of subjectivity entailed in applying the majority’s approach to

sentences of 50 years to life and 58 years to life, how these standards apply to sentences

of less than 50 years to life presents even more difficult questions. (See, e.g., People v.

Bell (2016) 3 Cal.App.5th 865, review granted Jan. 11, 2017, S238339.) Here again, I

doubt this is what Graham, supra, 560 U.S. 48, intended: a series of judicial decisions

upholding or invalidating sentences affording an opportunity for parole at age 65, 64, 63,

62, or younger, based on judges’ subjective and quite likely divergent assessments of

what constitutes adequate reintegration into society, and the time necessary to accomplish

this reentry. The Graham court said it was drawing a “clear line.” (Id., at p. 74.)

I would not obfuscate what the high court sought to clarify.

The majority opinion asserts that using life expectancy as a measure for the

constitutionality of a sentence under Graham, supra, 560 U.S. 48, implicates as much

vagueness and subjectivity as its own approach does. (Maj. opn., ante, at pp. 24-26.)

This false equivalence once again mischaracterizes Graham. The majority asserts that

both approaches “depend on a considered judgment as to whether the parole eligibility

date of a lengthy sentence offers a juvenile offender a realistic hope of release and a

genuine opportunity to reintegrate into society.” (Id., at p. 25.) But, as the foregoing text

makes clear, only the first half of this rule comes from Graham. The second half (“and a

genuine opportunity to reintegrate into society”) is the majority’s own creation. (Ibid.)

This modification effectively displaces the relatively straightforward and objective

Graham inquiry into whether sentence affords a “meaningful opportunity to obtain

23

release” (Graham, at p. 75), with a far more idiosyncratic inquiry into whether a sentence

offers what the majority considers a sufficiently meaningful period of release.8

The majority’s revision of the Graham rule also infiltrates its errant assessment

that the “crucial question” in this case is how long a defendant can expect to live after his

or her first opportunity for parole arrives (maj. opn., ante, at p. 25), and its attempt to

characterize the disagreement here as concerned only with the length of this period

(ibid.). The truly crucial question, of course, is what Graham, supra, 560 U.S. 48, holds.

As discussed above, and as recognized in Caballero, the core of the Graham holding is

that a defendant must receive a “meaningful” (id., at p. 75) and “realistic” (id., at p. 82)

opportunity to obtain release. A defendant made eligible for parole at an age within

general population life expectancies receives such an opportunity. Many defendants who

earn parole at such a juncture will have a robust postcustodial period of freedom. Some

will not, as would be true of any sentence. But it is the opportunity for release, not the

precise length of postcustodial period, that lies at the heart of the Graham ruling. The

majority errs in shifting the law toward a different position.

C. Even Under the Majority’s Approach, the Sentences Here Satisfy Graham

The majority’s holding is doubly misguided because it presumes that defendants

will not have a “meaningful opportunity to obtain release based on demonstrated maturity

and rehabilitation” (Graham, supra, 560 U.S. at p. 75) until they reach the ages of 66 and

74. But this too is wrong. Under the state’s Elderly Parole Program for prison inmates

(§ 3055), both defendants will have an opportunity for parole at age 60. Furthermore,

even without the Elderly Parole Program, Rodriguez may be eligible for parole when he

8 The majority also mischaracterizes this dissent’s critique of the vague and

overbroad nature of its holding as somehow implicitly endorsing the view that a

substantial postcustodial period is constitutionally required under Graham. (Maj. opn.,

ante, at pp. 25-26.) To the contrary, in observing that defendants’ sentences in fact afford

them an opportunity for reintegration into society, this dissent merely explains how the

majority’s analysis is flawed even when taken on its own terms.

24

is 57 years old, simply by earning good-conduct credits. (Cal. Code Regs., tit. 15,

§ 3043.2.) A sentence offering an opportunity for parole no later than age 60 is not

invalid under Graham, even under the majority’s flawed construction of that decision.

1. The Elderly Parole Program offers defendants a meaningful opportunity

for parole at age 60

In 2014, the State of California instituted the Elderly Parole Program in response

to a long-running prison-population lawsuit in federal court (Case No. 3:01-cv-01351-

JST, N.D. Cal.), which now bears the title Brown v. Plata. The program was codified by

the Legislature last year. (See Assem. Bill No. 1448 (2017-2018 Reg. Sess.).) Aside

from certain exceptions not pertinent here, the program is available to any state inmate

who is “60 years of age or older and has served a minimum of 25 years of continuous

incarceration on his or her current sentence.” (§ 3055, subd. (a).)

Under the Elderly Parole Program, an eligible inmate “shall meet with the [Board

of Parole Hearings] pursuant to subdivision (a) of Section 3041. If [the] inmate is found

suitable for parole under the Elderly Parole Program, the [Board of Parole Hearings] shall

release the individual on parole as provided in Section 3041.” (§ 3055, subd. (e).) The

elderly parole statute also directs that “[w]hen considering the release of an inmate

specified by subdivision (a) pursuant to Section 3041, the [Board of Parole Hearings]

shall give special consideration to whether age, time served, and diminished physical

condition, if any, have reduced the elderly inmate’s risk for future violence.” (§ 3055,

subd. (c).)9

As reflected in the statutory reference to an inmate’s “risk for future violence”

(§ 3055, subd. (c)), the decision whether to grant elderly parole is concerned with the

same question of public safety that governs conventional parole hearings. (See § 3041,

9 If parole is not granted, the Board of Parole Hearings shall set the time for a

subsequent elderly parole hearing in accordance with general statutory provisions

regarding the setting of next parole hearings. (§ 3041.5, subd. (b)(3).)

25

subd. (b)(1) [“The panel or the board, sitting en banc, shall grant parole to an inmate

unless it determines that the gravity of the current convicted offense or offenses, or the

timing and gravity of current or past convicted offense or offenses, is such that

consideration of the public safety requires a more lengthy period of incarceration for this

individual.”]; Cal. Code Regs., tit. 15, § 2281, subd. (a) [“[r]egardless of the length of

time served, a life prisoner shall be found unsuitable for and denied parole if in the

judgment of the panel the prisoner will pose an unreasonable risk of danger to society if

released from prison”].)10 In making this determination, “[a]ll relevant, reliable

information available to the panel shall be considered in determining suitability for

parole. Such information shall include the circumstances of the prisoner’s: social history;

past and present mental state; . . . past and present attitude toward the crime; . . . and any

other information which bears on the prisoner’s suitability for release.” (Cal. Code

Regs., tit. 15, § 2281, subd. (b).)11

10 This court has explained that “changes in a prisoner’s maturity, understanding, and

mental state” that come with “the passage of time” are “highly probative to the

determination of current dangerousness” in a parole hearing. (In re Lawrence (2008) 44

Cal.4th 1181, 1219-1220.) We also have noted that “[a]t some point . . . when there is

affirmative evidence, based upon the prisoner’s subsequent behavior and current mental

state, that the prisoner, if released, would not currently be dangerous, his or her past

offense may no longer realistically constitute a reliable or accurate indicator of the

prisoner’s current dangerousness.” (Id., at p. 1219.)

11 Specific circumstances tending to show suitability for parole include “reasonably

stable relationships with others” (Cal. Code Regs., tit. 15, § 2281, subd. (d)(2)); “[s]igns

of [r]emorse,” including “indications that [the inmate] understands the nature and

magnitude of the offense” (id., subd. (d)(3)); the “[m]otivation for [the] [c]rime” (id.,

subd. (d)(4)); whether “[t]he prisoner’s present age reduces the probability of recidivism”

(id., subd. (d)(7)); the fact that “[t]he prisoner has made realistic plans for release or has

developed marketable skills that can be put to use upon release” (id., subd. (d)(8)); and

whether the inmate’s “[i]nstitutional activities indicate an enhanced ability to function

within the law upon release” (id., subd. (d)(9)).

26

Although in an elderly parole hearing “special consideration” is given to the three

factors specified in section 3055, subdivision (c), there is no suggestion that these

“special” considerations somehow skew the basic question before the panel. In other

words, there is no indication that within the elderly parole process, an inmate for whom

“consideration of the public safety” does not require “a more lengthy period of

incarceration” (§ 3041, subd. (b)(1)) would nevertheless be denied parole because he or

she is too healthy or robust. On the contrary, the statutory reference to “special

consideration” being given to “time served” in Elderly Parole Program proceedings

corroborates that these hearings are to take into account the enhanced maturity that may

come from time in custody, along with all other relevant facts. (§ 3055, subd. (c).)12

The Elderly Parole Program thus offers a meaningful vehicle for juvenile

offenders who have been sentenced to lengthy terms to secure their release at age 60.

Inexplicably, even though we requested and received supplemental briefing on this

program, the majority declines to address its impact on defendants’ Eighth Amendment

claims. The majority instead remands the matter for the sentencing court and the parties

to develop a record “on how the Elderly Parole Program actually operates,” along with

other matters. (Maj. opn., ante, at p. 29.) This remand is both regrettable and wholly

unnecessary.

The majority’s rationale for remanding the matter is not entirely clear. Defendants

express concerns that in practice, the Elderly Parole Program may not give “great weight

to the diminished culpability of youth as compared to adults, the hallmark features of

youth, and any subsequent growth and increased maturity of the prisoner in accordance

12 The majority asserts that this “is not the only plausible reading of the elderly

parole statute,” and “decline[s] to issue a definitive interpretation less than five months

after the statute’s enactment.” (Maj. opn., ante, at p. 29.) But as Justice Kriegler

observes (dis. opn. of Kriegler, J., post, at p. 7), it is our job as judges to interpret the law.

This responsibility does not depend on whether the law is of ancient vintage, or newly

enacted.

27

with relevant case law.” (§ 4801, subd. (c).) But as noted, “[a]ll relevant, reliable

information” (Cal. Code Regs., tit. 15, § 2281, subd. (b)) is to be considered in a parole

hearing, including an elderly parole hearing. There is no reason to believe that salient

facts regarding the diminished culpability of juveniles, hallmark features of youth, and an

inmate’s subsequent growth and increased maturity, where pertinent, are somehow

excluded from consideration in an elderly parole hearing, or given short shrift. Unless the

prospect of parole at age 60 comes too late to satisfy the Eighth Amendment — a point

discussed below — the Constitution requires no more.13

13 The ruling in Graham, supra, 560 U.S. 48 cannot reasonably be understood as

formalistically demanding that state parole laws be rewritten to explicitly identify a

juvenile offender’s youth at the time of the crime of commitment, and related

considerations, as factors to be accorded weight in the parole decision. Indeed, several of

the statutes that the majority points toward as adequate responses to Graham (maj. opn.,

ante, at pp. 20-21) lack such language.

Moreover, the high court’s subsequent case law is inconsistent with any such

view. In Virginia v. LeBlanc (2017) 582 U.S. ___ [137 S.Ct. 1726] (LeBlanc), discussed

in greater detail post, the high court regarded a Virginia geriatric parole program’s

application of “ normal parole factors ” as tending to show that the program represented

an adequate avenue for release under Graham. (Id., at p. ___ [137 S.Ct. at p. 1729].)

Similarly, in Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718], the United

States Supreme Court drew attention to Wyoming’s parole statute (Wyo. Stat. Ann. § 6–

10–301(c)), which provides juvenile offenders sentenced to life without parole with an

opportunity for parole after 25 years of incarceration. The high court cast the statute as

an adequate postconviction remedy for a violation of Miller v. Alabama (2012) 567 U.S.

460, 470 (Miller), which forbade mandatory sentences of life without parole on juveniles

convicted of homicide crimes. (Montgomery v. Louisiana, 577 U.S. at p. ___ [136 S.Ct.

at p. 736].) The Wyoming statute does not explicitly provide for any special

consideration to be given to the hallmark features of youth in connection with the parole

decision. Nor do the Wyoming Board of Parole’s policies and procedures, which provide

only that “[p]arole may be granted to an eligible inmate at the sole discretion of the Board

when in the opinion of the Board there is a reasonable probability that an inmate of a

correctional facility can be released without a detriment to the community or

himself/herself.” (Wyoming Board of Parole, Policy and Procedure Manual (2018)

p. 36.)

28

Nor is a remand necessary for any other reason. Again, the majority seeks to

develop a record concerning “how the Elderly Parole Program actually operates.”

(Maj. opn., ante, at p. 29.) Yet there is nothing in the record to suggest that elderly parole

hearings function differently from how they have been described above.14 Even

Contreras, in his supplemental brief, acknowledges that parole decisions under the

Elderly Parole Program are based on an assessment of whether the inmate’s release

would threaten public safety. Likewise, in a filing with the federal court overseeing the

Brown v. Plata litigation, the State has explained that in an elderly parole hearing, the

Board of Parole Hearings “will give special consideration to eligible inmates’ advanced

age, long-term confinement, and diminished physical condition, if any. The board will

also consider all other relevant information when determining whether or not there is a

reasonable likelihood that consideration of the public and victim’s safety does not

require the additional period of incarceration of the inmate.” (Board of Parole Hearings,

Elderly Parole Program (June 16, 2014) p. 1,

<https://www.cdcr.ca.gov/BOPH/docs/Policy/Elderly_Parole_Program_Overview.pdf>

[as of Feb. 26, 2018], italics added.) A remand order should be based on something more

substantive than an inchoate concern that a duly enacted government program isn’t what

the relevant statutes and regulations say it is, and what the parties tell us it is.

Similarly, the majority speculates that the California Department of Corrections

and Rehabilitation someday might adopt “regulations that focus the Elderly Parole

Program on identifying those inmates who no longer pose a risk of future violence

primarily because of their age, illness, or other physical incapacitation, while leaving all

other inmates age 60 or older who may be suitable for parole to the ordinary parole

14 Nor does the majority specify with any precision the additional facts that the

parties are supposed to develop on remand, to guide any future assessment whether the

Elderly Parole Program adequately addresses the constitutional flaw perceived in

defendants’ sentences.

29

process.” (Maj. opn., ante, at p. 29.) But this a strawperson argument, for no such

regulations exist, or are on the horizon. Although one can always conjure up what-if

scenarios about future changes in the law, such conjecture does not provide a basis for

ignoring our responsibility to interpret the law as it presently stands.

In fact, we have declined to indulge this sort of speculation under similar

circumstances. In Franklin, supra, 63 Cal.4th 261, an amicus curiae asserted that the

youth offender parole hearing program (§ 3051) would not operate in practice as the

governing statutes said it would, and therefore would not provide the defendant and those

similarly situated with a meaningful opportunity for release. (Franklin, at pp. 284-285.)

Unlike here, however, we did not treat such a possibility as providing a basis to decline to

apply a statute as written. Instead, in concluding that the youth offender parole hearing

program mooted the defendant’s Eighth Amendment challenge, we noted the “absence of

any concrete controversy in this case concerning” the actual functioning of the program.

(Id., at p. 286.)

The majority claims that the situation in Franklin differed from the one here in

that the “explicit and specific purpose” of the statute that created the youth offender

parole hearing program at issue in Franklin was to provide an early opportunity for

juvenile offenders to seek parole. (Maj. opn., ante, at p. 30.) Here, by comparison,

“[n]either the text nor history of the elderly parole statute contains any indication that the

Legislature intended elderly parole hearings to be responsive to the Eighth Amendment

concerns raised by lengthy juvenile sentences.” (Ibid.) But this purported distinction,

which says nothing about how the Elderly Parole Program actually functions, does not

provide a basis to avoid our duty to construe the law.15 If the majority takes the view that

15 That the Elderly Parole Program originally may have been developed to

ameliorate crowded prison conditions does not connote that it fails to provide a

meaningful opportunity for parole. As discussed above, the pertinent statutes and

regulations establish that the program provides such an opportunity, and there is no

contrary indication. (See also Cal. Dept. of Corrections and Rehabilitation, December

30

the Elderly Parole Program does not provide juvenile offenders with a “meaningful

opportunity to obtain release” under Graham, supra, 560 U.S. at page 75, it should

simply say so, and explain why, rather than engage in statutory interpretation in order to

avoid statutory interpretation.16

2. A sentence that provides a juvenile offender convicted of a nonhomicide

crime a meaningful opportunity for release at age 60 is constitutional

under Graham

The majority’s decision to remand this matter means that it does not consider

whether Graham prohibits a sentence that offers an opportunity for parole no later than

15, 2017 Update to the Three-Judge Court (Dec. 15, 2017) p. 5 [reflecting that inmates

received parole in more than 25 percent of all elderly parole hearings]

<https://www.cdcr.ca.gov/News/docs/3JP-Dec-2017.pdf> [as of Feb. 26, 2018].)

Furthermore, in codifying the program, the Legislature had in mind more than merely

prison headcounts and related expenses. Repeatedly, legislative analyses of the measure

enacting the program referenced the fact that inmates eligible for elderly parole pose less

of a threat to public safety than other inmates if released. (See, e.g., Assem. Conc. Sen.

Amends. to Assem. Bill No. 1448 (2017-2018 Reg. Sess.) as amended Sept. 6, 2017, p. 5

[noting the lower recidivism rate of inmates released from prison at ages 60 and older];

Assem. Com. on Appropriations, May 15, 2017 Analysis of Assem. Bill No. 1448 (2017-

2018 Reg. Sess.) as amended Mar. 28, 2017, p. 1 [same].)

16 Here, the majority tries to synchronize its holding with that in Caballero, supra,

55 Cal.4th 262, by identifying a similarity in style, if not substance. The majority states

that in Caballero, “[n]o member of this court suggested that we should provide further

guidance on what would constitute a lawful sentence.” (Maj. opn., ante, at p. 36.) That

is because the court provided sufficient guidance within the Caballero majority opinion

itself, in its description of Graham’s holding and its relationship to life expectancy.

The majority also claims that its approach reflects “ ‘judicial restraint.’ ” (Maj.

opn., ante, at p. 36.) Coming as it does within an opinion that dubiously extends Graham

to new frontiers, this is an unwarranted assertion. Notably, shortly after claiming to

exercise restraint, the majority unnecessarily opines on the supposedly “anomalous”

nature of the parole status of One Strike offenders in light of recent changes in the law.

(Id., at p. 37.) This comment is hardly an exercise of restraint, suggesting instead a view

toward the merits of an equal protection challenge to the sentences here — an issue that

lies beyond the scope of review in this case.

31

age 60. I would address this question, and conclude that it does not. As explained below,

even under the majority’s view that a sentence that affords an initial opportunity for

parole at the age of 66 or 74 is unlikely to provide a juvenile offender with a sufficient

period to adequately reintegrate into society, and is therefore unconstitutional (maj. opn.,

ante, at pp. 17-18), the same cannot be said of a sentence that affords an opportunity for

parole at age 60.17

A sentence affording an opportunity for parole at age 60 offers a juvenile offender

a substantial likelihood of spending not just a few, but many productive years outside of

custody, if he or she demonstrates sufficient maturity to secure parole. During this time,

a juvenile offender who has been released on parole because his or her personal

development confirmed Graham’s intuitions can participate in the workforce,18 develop

17 It is true that a juvenile offender whose first opportunity for parole comes through

an elderly parole hearing may serve a longer term before being eligible for a parole

hearing than an adult offender who committed the same crime, and received the same

sentence, would serve. But — even putting aside the fact that a juvenile offender may be

in a better position than an adult offender who committed the same offense to secure

elderly parole — no theory of the Eighth Amendment demands that, regardless of the

length of a juvenile’s sentence (be it one year, ten years, or more), he or she must serve a

shorter term than a similarly situated adult defendant, or an equivalent term. The concern

expressed in Graham, supra, 560 U.S. at page 70, about life without the possibility of

parole representing an “especially harsh punishment for a juvenile” because he or she

would “on average serve more years and a greater percentage of his life in prison than an

adult offender” represented an additional reason to condemn life without parole

sentences, in particular — not a more far-reaching impeachment of sentencing practices

generally.

18 According to the Bureau of Labor Statistics, in 2017 there were 10,930,000 people

in the United States workforce between the ages of 60 and 64, representing more than

half of the entire civilian noninstitutional population cohort within this age range.

(Bureau of Labor Statistics, U.S. Dept. Labor, Labor Force Statistics from the Current

Population Survey, Employment status of the civilian noninstitutional population by age,

sex, and race (Jan. 19, 2018) <https://www.bls.gov/cps/cpsaat03.htm> [as of Feb. 26,

2018].)

32

interpersonal relationships, and otherwise seek and obtain the degree of personal

fulfillment contemplated by the majority.

Indeed, many of the majority opinion’s arguments for invalidating sentences that

afford an initial opportunity for parole at ages 66 and 74 lose their force, or cut in the

opposite direction, when applied to sentences that afford an initial opportunity for parole

at age 60. For example, the majority opinion relies on the fact that all state high courts to

have considered sentences of 50 years to life or longer, when imposed on juvenile

offenders convicted of nonhomicide crimes, have struck those sentences as

unconstitutional. (Maj. opn., ante, at p. 20.)19 But the balance of the case law from even

this highly refined subset of courts shifts when what is being considered is a sentence that

affords an opportunity for parole at age 60. The weight of authority regards such a

sentence as passing muster under Graham. (See State v. Smith, supra, 892 N.W.2d at pp.

19 I recognize the existence of these decisions regarding lengthy sentences that afford

a juvenile offender an initial opportunity for release in his or her mid-to-late 60s, or later,

as infirm under either Graham or Miller. (Maj. opn., ante, at p. 20 [listing cases].) The

majority also recognizes contrary precedent, however — such as that of the federal court

of appeals in U.S. v. Mathurin (11th Cir. 2017) 868 F.3d 921, 934-935 (Mathurin), which

held that a sentence affording an initial opportunity for parole at age 67 was not

prohibited by Graham. In addition, intermediate appellate courts in other states have

regarded sentences affording an opportunity for parole in a juvenile offender’s mid- to-

late 60s, or which involved a term of 50 years, as lawful under Graham or Miller,

depending on the offense involved. (See People v. Lehmkuhl (Colo.Ct.App. 2013) 369

P.3d 635, 637 [sentence offering initial possibility of parole at age 67 not invalid under

Graham, given the defendant’s life expectancy]; People v. Jackson (Ill.Ct.App. 2016) 65

N.E.3d 864, 875-876 [50-year sentence not a de facto life sentence under Miller];

McCullough v. State (Md.Ct.Spec.App. 2017) 168 A.3d 1045, 1069, cert. granted (Md.

2017) 171 A.3d 612 [regarding a sentence offering an opportunity for parole at 67 as

lawful under Graham]; but see State v. Buffer (Ill.Ct.App. 2017) 75 N.E.3d 470, 482

[sentence offering first possibility of release at age 66 a de facto life sentence].)

Moreover, some state supreme courts that have found sentences of shortly less than 50

years to life to be valid under Graham or Miller have not ruled on whether a sentence of

50 years to life or 58 years to life would be invalid under the high court’s rulings. (E.g.,

State v. Smith, supra, 892 N.W.2d at pp. 64-66; State v. Charles (S.D. 2017) 892 N.W.2d

915, 921.)

33

64-66 [holding that a nonhomicide

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