People v. Caballero

Filed 8/16/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S190647

v. )

) Ct.App. 2/4

RODRIGO CABALLERO, ) B217709/B221833

)

Defendant and Appellant. )

____________________________________)

) Los Angeles County

In re RODRIGO CABALLERO, ) Super. Ct. No. MA043902

)

on Habeas Corpus )

____________________________________)

In Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011] (Graham), the

high court held that the Eighth Amendment prohibits states from sentencing a

juvenile convicted of nonhomicide offenses to life imprisonment without the

possibility of parole. (Id. at p. ___ [130 S.Ct. at p. 2030].)1 We must determine

here whether a 110-year-to-life sentence imposed on a juvenile convicted of

nonhomicide offenses contravenes Graham‟s mandate against cruel and unusual

punishment under the Eighth Amendment. We conclude it does.

1 The Eighth Amendment applies to the states. (Robinson v. California

(1962) 370 U.S. 660.)

1

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of June 6, 2007, 16-year-old defendant, Rodrigo

Caballero, opened fire on three teenage boys who were members of a rival gang.

Adrian Bautista, Carlos Vargas, and Vincent Valle, members of the Val Verde

Park Gang, were rounding a street corner on foot when defendant jumped out of a

green Toyota and yelled out the name of his gang, either “Vario Lancas” or

“Lancas.” Vargas responded by shouting “Val Verde.” Defendant began shooting

at the group. Neither Vargas nor Valle were hit by the gunfire; Bautista was hit in

the upper back, near his shoulder blade.

A jury convicted defendant of three counts of attempted murder (Pen.

Code, §§ 664, 187, subd. (a)).2 The jury found true that defendant personally and

intentionally discharged a firearm (§ 12022.53, subds. (c)-(d)) and inflicted great

bodily harm on one victim (§ 12022.7), and that defendant committed the crimes

for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant, a

diagnosed schizophrenic, testified in his own behalf after he was treated with

antipsychotic medication. He told the jury both that he “was straight trying to kill

somebody” and that he did not intend to kill anyone. The trial court sentenced

defendant to 15 years to life for the first attempted murder count, plus a

consecutive 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).)

For the second attempted murder, the court imposed an additional consecutive

term of 15 years to life, plus 20 years for the firearm enhancement on that count.

(§ 12022.53, subd. (c).) On the third attempted murder count, the court sentenced

defendant to another consecutive term of 15 years to life, plus 20 years for the

corresponding firearm enhancement. (§ 12022.53, subd. (c)). Defendant‟s total

2 All statutory references are to the Penal Code unless otherwise indicated.

2

sentence was 110 years to life. The Court of Appeal affirmed the trial court‟s

judgment in its entirety.

We granted defendant‟s petition for review to determine whether Graham

prohibits imposition of the sentence here.

DISCUSSION

In Graham, the 16-year-old defendant, Terrance Graham, committed armed

burglary and attempted armed robbery, was sentenced to probation, and

subsequently violated the terms of his probation when he committed other crimes.

(Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2020].) The trial court

revoked his probation and sentenced him to life in prison for the burglary. (Ibid.)

Graham‟s sentence amounted to a life sentence without the possibility of parole

because Florida had abolished its parole system, leaving Graham with no

possibility of release unless he was granted executive clemency. (Id. at p. ___

[130 S.Ct. at p. 2015].)

The high court stated that nonhomicide crimes differ from homicide crimes

in a “moral sense” and that a juvenile nonhomicide offender has a “twice

diminished moral culpability” as opposed to an adult convicted of murder — both

because of his crime and because of his undeveloped moral sense. (Graham,

supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2027].) The court relied on studies

showing that “developments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds. For example, parts of

the brain involved in behavior control continue to mature through late

adolescence. [Citations.] Juveniles are [also] more capable of change than are

adults, and their actions are less likely to be evidence of „irretrievably depraved

character‟ than are the actions of adults.” (Id. at p. ___ [130 S.Ct. at p. 2026],

quoting Roper v. Simmons (2005) 543 U.S. 551, 570.) No legitimate penological

3

interest, the court concluded, justifies a life without parole sentence for juvenile

nonhomicide offenders. (Id. at p. ___ [130 S.Ct. at p. 2030].)

Although the state is by no means required to guarantee eventual freedom

to a juvenile convicted of a nonhomicide offense, Graham holds that the Eighth

Amendment requires the state to afford the juvenile offender a “meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation,”

and that “[a] life without parole sentence improperly denies the juvenile offender a

chance to demonstrate growth and maturity.” (Graham, supra, 560 U.S. at p. ___

[130 S.Ct. at pp. 2029-2030].) The court observed that a life without parole

sentence is particularly harsh for a juvenile offender who “will on average serve

more years and a greater percentage of his life in prison than an adult offender.”

(Id. at p. ___ [130 S.Ct. at p. 2028].) Graham likened a life without parole

sentence for nonhomicide offenders to the death penalty itself, given their youth

and the prospect that, as the years progress, juveniles can reform their deficiencies

and become contributing members of society. (Ibid.)

The People assert that Graham‟s ban on life without parole sentences does

not apply to juvenile offenders who commit attempted murder, with its requisite

intent to kill. The People also claim that a cumulative sentence for distinct crimes

does not present a cognizable Eighth Amendment claim, concluding that each of

defendant‟s sentences was permissible individually because each included the

possibility of parole within his lifetime.3 In addition, the Court of Appeal

3 The People also rely on Lockyer v. Andrade (2003) 538 U.S. 63 for the

proposition that a juvenile offender may receive consecutive mandatory terms

exceeding his or her life expectancy without implicating the prohibition against

cruel and unusual punishment. In our view, no such conclusion may be drawn. In

fact, in Lockyer the high court noted that it has never provided specific guidance

“in determining whether a particular sentence for a term of years can violate the

Eighth Amendment,” observing that it had “not established a clear or consistent

path for courts to follow.” (Id. at p. 72.) We note that the term “life expectancy”

4

reasoned that Graham applied a categorical rule specifically limited to juvenile

nonhomicide offenders receiving an explicitly designated life without parole

sentence: “[I]f [Graham] had intended to broaden the class of offenders within the

scope of its decision, it would have [included] . . . any juvenile offender who

received the functional equivalent of a life sentence without the possibility of

parole for a nonhomicide offense.” The Court of Appeal found support for its

conclusion in Justice Alito‟s dissent from Graham: “nothing in the Court‟s

opinion affects the imposition of a sentence to a term of years without the

possibility of parole.” (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2058]

(dis. opn. of Alito, J.).) Graham‟s scope and application, however, were recently

clarified in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).)

In Miller, the United States Supreme Court extended Graham’s reasoning

(but not its categorical ban) to homicide cases, and, in so doing, made it clear that

Graham‟s “flat ban” on life without parole sentences for juvenile offenders in

nonhomicide cases applies to their sentencing equation regardless of intent in the

crime‟s commission, or how a sentencing court structures the life without parole

sentence. (Miller, supra, 567 U.S. ___ [132 S.Ct. at pp. 2465, 2469].) The high

court was careful to emphasize that Graham‟s “categorical bar” on life without

parole applied “only to nonhomicide crimes.” (Id. at p. ___ [132 S.Ct. at p.2465].)

But the court also observed that “none of what [Graham] said about children —

about their distinctive (and transitory) mental traits and environmental

vulnerabilities — is crime-specific. Those features are evident in the same way,

and to the same degree, when . . . a botched robbery turns into a killing. So

Graham‟s reasoning implicates any life-without-parole sentence imposed on a

means the normal life expectancy of a healthy person of defendant‟s age and

gender living in the United States.

5

juvenile, even as its categorical bar relates only to nonhomicide offenses.”

(Miller, supra, 567 U.S. ___ [132 S.Ct. at p. 2465].) Miller therefore made it clear

that Graham‟s “flat ban” on life without parole sentences applies to all

nonhomicide cases involving juvenile offenders, including the term-of-years

sentence that amounts to the functional equivalent of a life without parole sentence

imposed in this case.4

Defendant in the present matter will become parole eligible over 100 years

from now. (§ 3046, subd. (b) [requiring defendant serve a minimum of 110 years

before becoming parole eligible].) Consequently, he would have no opportunity to

“demonstrate growth and maturity” to try to secure his release, in contravention of

Graham‟s dictate. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2029]; see

People v. Mendez (2010) 188 Cal.App.4th 47, 50-51 [holding that a sentence of 84

years to life was the equivalent of life without parole under Graham, and therefore

cruel and unusual punishment].) Graham‟s analysis does not focus on the precise

sentence meted out. Instead, as noted above, it holds that a state must provide a

4 Although Miller concluded that Graham‟s categorical ban on life without

parole sentences applies only to all nonhomicide offenses, the court emphasized

that in homicide cases, states are forbidden from imposing a “[m]andatory life

without parole for a juvenile.” (Miller, supra, 567 U.S. ___ [132 S.Ct. at p.

2464].) The high court noted that such mandatory sentences preclude

consideration of juveniles‟ chronological age and its hallmark features — among

them, immaturity, impetuosity, and failure to appreciate risks and consequences.

It prevents taking into account the family and home environment that surround

them — no matter how brutal or dysfunctional. (Ibid.) Thus, in Miller the high

court did “not foreclose a sentencer‟s ability” to determine whether it was dealing

with homicide cases and the “ „rare juvenile offender whose crime reflects

irreparable corruption.‟ ” (Id. at p. 2469, quoting Roper, supra, 543 U.S. at p. 573;

Graham, supra, 560 U.S. ___ [130 S.Ct. at p. 2026].) The court requires

sentencers in homicide cases “to take into account how children are different, and

how those differences counsel against irrevocably sentencing them to a lifetime in

prison.” (Miller, supra, 567 U.S. ___ [132 S.Ct. at p. 2469].) We leave Miller‟s

application in the homicide context to a case that poses the issue.

6

juvenile offender “with some realistic opportunity to obtain release” from prison

during his or her expected lifetime. (Graham, supra, 560 U.S. at p. ___ [130 S.Ct.

at p. 2034].)

CONCLUSION

Consistent with the high court‟s holding in Graham, supra, 560 U.S. ___

[130 S.Ct. 2011], 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. Although proper

authorities may later determine that youths should remain incarcerated for their

natural lives, the state may not deprive them at sentencing of a meaningful

opportunity to demonstrate their rehabilitation and fitness to reenter society in the

future. Under Graham‟s nonhomicide ruling, the sentencing court must consider

all mitigating circumstances attendant in the juvenile‟s crime and life, including

but not limited to his or her chronological age at the time of the crime, whether the

juvenile offender was a direct perpetrator or an aider and abettor, and his or her

physical and mental development, so that it can impose a time when the juvenile

offender will be able to seek parole from the parole board. The Board of Parole

Hearings will then determine whether the juvenile offender must be released from

prison “based on demonstrated maturity and rehabilitation.” (Id. at p. ___ [130

S.Ct. at p. 2030].) Defendants who were sentenced for crimes they committed as

juveniles who seek to modify life without parole or equivalent defacto sentences

already imposed may file petitions for a writ of habeas corpus in the trial court in

order to allow the court to weigh the mitigating evidence in determining the extent

of incarceration required before parole hearings. Because every case will be

different, we will not provide trial courts with a precise time frame for setting

these future parole hearings in a nonhomicide case. However, the sentence must

7

not violate the defendant‟s Eighth Amendment rights and must provide him or her

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

rehabilitation” under Graham‟s mandate.

We reverse the judgment of the Court of Appeal and remand the matter for

reconsideration in light of this opinion.5

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CORRIGAN, J.

5 We urge 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.

8

CONCURRING OPINION BY WERDEGAR, J.

As the majority recognizes, the United States Supreme Court held in

Graham v. Florida (2010) 560 U.S. ___, ___ [130 S.Ct. 2011, 2034] (Graham)

that “[t]he Constitution prohibits the imposition of a life without parole sentence

on a juvenile offender who did not commit homicide. A State need not guarantee

the offender eventual release, but if it imposes a sentence of life it must provide

him or her with some realistic opportunity to obtain release before the end of that

term.” Consequently, I concur in the majority‟s holding that, consistent with

Graham, “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.” (Maj. opn., ante, at p. 7.) In so holding, however, we are extending

the high court‟s jurisprudence to a situation that court has not had occasion to

address.

Recently, the United States Supreme Court addressed a different aspect of

this issue: juvenile offenders who commit homicide offenses. (Miller v. Alabama

(2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).) Miller concluded that even for

juvenile homicide offenders, a mandatory sentence of life imprisonment without

the possibility of parole violates the proportionality requirement of the Eighth

Amendment to the United States Constitution because it requires “that all children

1

convicted of homicide receive lifetime incarceration without possibility of parole,

regardless of their age and age-related characteristics and the nature of their crimes

. . . .” (Miller, 567 U.S. at p. ___ [132 S.Ct. at p. 2475].) For homicide offenses,

then, Miller eschewed the “categorical bar” on life without parole sentences

imposed in Graham (Miller, 567 U.S. at p. ___ [132 S.Ct. at p. 2465]), and instead

left open the possibility that juvenile murderers could, in a sentencing court‟s

discretion, be sentenced to spend the rest of their lives in prison with no hope of

parole (short of a grant of executive clemency).

Defendant Rodrigo Caballero was 16 years old, and thus a juvenile, when

he committed his crimes. In light of Miller, we must first decide whether he

committed a homicide or a nonhomicide offense. The jury convicted defendant of

three counts of attempted premeditated and deliberate murder. (Pen. Code, § 664,

subd. (a).) Two of his victims escaped physical injury completely, while one was

injured but survived the shooting. As Graham explains, such “[s]erious

nonhomicide crimes „may be devastating in their harm . . . 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.” ‟ [Citing Kennedy v.

Louisiana (2008) 554 U.S. 407, 438.] This is because „[l]ife is over for the victim

of the murderer,‟ but for the victim of even a very serious nonhomicide crime, „life

. . . is not over and normally is not beyond repair.‟ [Citing Coker v. Georgia

(1977) 433 U.S. 584, 598 (plur. opn.).] Although an offense like robbery or rape

is „a serious crime deserving serious punishment,‟ [citation], those crimes differ

from homicide crimes in a moral sense.” (Graham, supra, 560 U.S. at p. ___ [130

S.Ct. at p. 2027].) Because the crime of attempted murder, even when

premeditated and deliberate, does not rise to the severity or irrevocability of

actually taking another‟s life, it must be classified as a nonhomicide offense within

2

the meaning of Graham.1 (See Manuel v. State (Fla. 2010) 48 So.3d 94, cert. den.

sub nom. Florida v. Manuel (2011) ___ U.S. ___ [132 S.Ct. 446] [finding

attempted murder a nonhomicide offense under Graham].) Like the majority,

therefore, I conclude this case falls within Graham‟s categorical bar prohibiting

life without parole sentences for juveniles who commit nonhomicide offenses.

Because Graham imposes a “flat ban” on such sentences (Miller, supra,

567 U.S. at p. ___ [132 S.Ct. at p. 2465]), we must next determine whether

defendant‟s sentence of 110 years to life is the legal equivalent of life without

parole. Although respondent appears to concede that defendant‟s sentence is the

1 Graham itself is not crystal clear on this point. As respondent points out,

Graham at one point says “[t]he Court has recognized 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.” (Graham, supra,

560 U.S. at p. ___ [130 S.Ct. at p. 2027], italics added.) Here, defendant‟s

convictions for attempted murder necessarily demonstrate the jury found he acted

with the intent to kill. (People v. Gonzalez (2012) 54 Cal.4th 643, 653.)

Graham also relied heavily on a scholarly paper to conclude that

“nationwide there are only 109 juvenile offenders serving sentences of life without

parole for nonhomicide offenses” (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at

p. 2023]), but that paper defined homicide crimes to include attempted murder

(Annino et al., Juvenile Life Without Parole for Non-Homicide Offenses: Florida

Compared to Nation, Fla. St. U., Pub. Int. L. Center, Sept. 14, 2009, p. 4 [for

purposes of the study, “[i]ndividuals convicted of attempted homicide . . . are defined as

homicide offenders”]). Finally, in recognizing the worldwide consensus against

imprisoning juveniles for life with no chance of parole, Graham noted that only

two countries—the United States and Israel—impose that sentence in practice, and

that “all of the seven Israeli prisoners whom commentators have identified as

serving life sentences for juvenile crimes were convicted of homicide or attempted

homicide.” (Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2033], italics

added.)

Despite these slight inconsistencies in Graham‟s analysis, the main thrust

of its reasoning is that crimes resulting in the death of another human being are

qualitatively different from all others, both in their severity, moral depravity, and

irrevocability, and the Eighth Amendment to the United States Constitution

demands courts take cognizance of that fact when sentencing those who

committed their crimes while still children.

3

functional equivalent of a life without parole term, they nevertheless argue his

sentence is distinguishable from the sentence prohibited in Graham because it is

comprised of component parts that only when added together constitute a term

longer than a person can serve in a normal lifetime. For this purported distinction

they cite comments from the Graham dissenters. (See Graham, supra, 560 U.S. at

p. ___, fn. 11 [130 S.Ct. at p. 2052, fn. 11] (dis. opn. of Thomas, J.) [opining that

the Graham majority “excludes from its analysis all juveniles sentenced to lengthy

term-of-years sentences (e.g., 70 or 80 years‟ imprisonment)”]; id. at p. ___ [130

S.Ct. at p. 2058] (dis. opn. of Alito, J.) [“Nothing in the Court‟s opinion affects the

imposition of a sentence to a term of years without the possibility of parole.”].)

Characterization by the Graham dissenters of the scope of the majority

opinion is, of course, dubious authority (see Glover v. Board of Retirement (1989)

214 Cal.App.3d 1327, 1337 [the “ „majority opinion of the Supreme Court states

the law and . . . a dissenting opinion has no function except to express the private

view of the dissenter.‟ ”]), but in any event the purported distinction between a

single sentence of life without parole and one of component parts adding up to

110 years to life is unpersuasive. The gist of Graham is not only that life

sentences for juveniles are unusual as a statistical matter, they are cruel as well

because “developments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds” (Graham, supra, 560

U.S. at p. ___ [130 S.Ct. at p. 2026]), “[j]uveniles are more capable of change than

are adults, and their actions are less likely to be evidence of „irretrievably

depraved character‟ than are the actions of adults” (ibid.), and that accordingly,

“ „a greater possibility exists that a minor‟s character deficiencies will be

reformed‟ ” (id. at pp. ___ [130 S.Ct. at pp. 2026-2027]).

Further, the high court in Graham noted that, “[w]ith respect to life without

parole for juvenile nonhomicide offenders, none of the goals of penal sanctions

4

that have been recognized as legitimate—retribution, deterrence, incapacitation,

and rehabilitation [citation]—provides an adequate justification.” (Graham,

supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2028].) First, although “ „[t]he heart of

the retribution rationale is that a criminal sentence must be directly related to the

personal culpability of the criminal offender‟ ” (ibid.), this concern applies equally

whether the sentence is one of life without parole or a term of years that cannot be

served within the offender‟s lifetime. Second, society‟s interest in deterring

socially unacceptable behavior by imposing long sentences does not justify

sentences of life without parole for juvenile nonhomicide offenders “[b]ecause

juveniles‟ „lack of maturity and underdeveloped sense of responsibility . . . often

result in impetuous and ill-considered actions and decisions,‟ [citation], [such that]

they are less likely to take a possible punishment into consideration when making

decisions.” (Id. at pp. ___-___ [130 S.Ct. at pp. 2028-2029].) Third, although

lifetime incapacitation will admittedly prevent criminals from reoffending,

imposing that severe punishment on juvenile nonhomicide offenders labels them

as incorrigible and incapable of change, and thus denies to them “a chance to

demonstrate growth and maturity.” (Id. at p. ___ [130 S.Ct. at p. 2029.) These

concerns remain true whether the sentence is life without parole or a term of years

exceeding the offender‟s life expectancy.

The fourth consideration mentioned by the Graham court—rehabilitation—

is perhaps the most salient factor as applied to underage offenders. As Graham

explained: “A sentence of life imprisonment without parole . . . 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

5

pp. ___-___ [130 S.Ct. at pp. 2029-2030].) Like a sentence of life without parole,

a prison sentence of such length that it cannot be served within an offender‟s

lifetime similarly denies his or her “right to reenter the community” (ibid.), and so

equally implicates Graham‟s reasoning that concerns over rehabilitation cannot

justify a lifetime of imprisonment for nonhomicide juvenile offenders.

Although the facts of this case differ from those in Graham in that

defendant was not sentenced to a single term of life without parole, I agree with

the majority that Graham applies. Because defendant committed three

nonhomicide crimes while still a juvenile and was sentenced to the functional

equivalent of life in prison with no possibility of parole, he is entitled to the

benefit of what Miller termed Graham‟s “categorical bar” (Miller, supra, 567 U.S.

at p. ___ [132 S.Ct. at p. 2465]) on sentences of life in prison with no “meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation”

(Graham, supra, 560 U.S. at p. ___ [130 S.Ct. at p. 2030]). I also agree that the

Legislature is an appropriate body to establish a mechanism to implement

Graham‟s directives for the future (maj. opn., ante, at p. 9, fn. 5), and that “every

case will be different” (id. at p. 7). But irrespective of whether the Legislature, in

the future, steps in to enact procedures under which juveniles in defendant‟s

position may be resentenced, the trial court in this case must resentence defendant

to a term that does not violate his rights. (See In re Hawthorne (2005) 35 Cal.4th

40 [affording the defendant relief under Atkins v. Virginia (2002) 536 U.S. 304

when his case did not qualify for the preconviction proceedings set forth in Pen.

Code, § 1376].)2 Accordingly, I would provide the lower court greater guidance

on remand in this case, for we have before us a defendant on whom an

unconstitutional sentence was pronounced. That violation must be remedied.

2 Because the constitutionality of any new sentence may be challenged on

appeal, this court may be called upon to provide further guidance.

6

Graham does not require defendant be given a parole hearing sometime in the

future; it prohibits a court from sentencing him to such a term lacking that

possibility at the outset. Therefore, I would remand the case to the trial court with

directions to resentence defendant to a term that does not violate his constitutional

rights, that is, a sentence that, although undoubtedly lengthy, provides him with a

“meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation.” (Graham, 560 U.S. at p. ___ [130 S.Ct. at p. 2030].)

With those caveats in mind, I concur in the majority‟s decision to reverse

the judgment of the Court of Appeal.

WERDEGAR, J.

I CONCUR:

LIU, J.

7

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Caballero

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 191 Cal.App.4th 1248

Rehearing Granted

__________________________________________________________________________________

Opinion No. S190647

Date Filed: August 16, 2012

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Hayden A. Zacky

__________________________________________________________________________________

Counsel:

Kosnett & Durchfort and David E. Durchfort for Defendant and Appellant.

L. Richard Braucher, Susan L. Burrell, Corene Thaedra Kendrick and Jonathan Laba for Pacific Juvenile

Defender Center as Amicus Curie on behalf of Defendant and Appellant.

Constance de la Vega, Kyra Millich; Jessica R. Feierman, Marsha Levick, Emily Keller, Joanna Visser;

Maureen Pacheco; Elizabeth M. Calvin; Sheryl Gordon McCloud; Paula Pearlman and Shawna Parks for

Juvenile Law Center, Human Rights Advocates, Human Rights Watch, Loyola Law School Center for Law

and Policy, the National Association of Criminal Defense Attorneys and the Disability Rights Legal Center

as Amici Curie on behalf of Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar, Lauren E. Dana,

Jaime L. Fuster and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

David E. Durchfort

Kosnett & Durchfort

11355 W. Olympic Blvd., Suite 300

Los Angeles, CA 90064

(310) 444-8898

Marsha Levick

Juvenile Law Center

1315 Walnut Street, 4th Floor

Philadelphia PA 19107

(215) 625-0551

Lawrence M. Daniels

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2288