In re Aguilar

Filed 4/30/15 In re Aguilar CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re ALEXIS AGUILAR,
on Habeas Corpus.
H040784
(Monterey County
Super. Ct. No. HC7945)
I. INTRODUCTION
Petitioner Alexis Aguilar was convicted of first degree murder (Pen. Code, § 187,
subd. (a))1 and active participation in a criminal street gang (§ 186.22, subd. (a)) during
jury trials held in 2008 and 2009. As to the murder conviction, the jury found true
allegations that petitioner personally used and discharged a firearm, causing death
(§§ 12022.5, subd. (a), 12022.53, subd. (d)) and an allegation that he committed the
offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to the
conviction of active participation in a criminal street gang, the trial court found true the
allegation that petitioner used a firearm in the commission of the offense. (§ 12022.5,
subd. (a).)
The trial court sentenced petitioner, who was 17 years old at the time he
committed the offenses, to an aggregate term of 56 years to life, which included
consecutive terms of 25 years to life for the murder and the allegation that petitioner
personally discharged a firearm causing death, a consecutive two-year term for active
1 All further statutory references are to the Penal Code unless otherwise indicated.

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participation in a criminal street gang, and a consecutive four-year term for the firearm
use allegation associated with that count. Petitioner appealed his convictions and this
court affirmed the judgment. (People v. Aguilar (Jan. 27, 2011, H034072) [nonpub.
opn.].)2
In the present petition for a writ of habeas corpus, petitioner contends he is entitled
to be resentenced. He contends that his 56 years-to-life sentence represents a de facto life
without possibility of parole (LWOP) term in violation of the United States Supreme
Court decision in Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), which
held that “mandatory life without parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’ ” (Id. at p. __ [132 S.Ct. at p. 2460].) For reasons that we shall explain,
we will vacate petitioner’s sentence and remand the matter for resentencing.
II. BACKGROUND
A. Facts of the Underlying Offenses3
At about 8:00 p.m. on the evening of March 4, 2007, Jose Mexicano, a Sureño
gang member, went to find his son, who was playing soccer with friends at a field near
Acosta Plaza in Salinas. Acosta Plaza was located in territory claimed by a Norteño gang
named Salinas Acosta Plaza (SAP), of which petitioner was a member.
After locating his son, Mexicano and his son began walking back to Mexicano’s
parents’ apartment. Petitioner began walking behind them. Petitioner said, “Aey,” which
caused them to turn around. Petitioner told Mexicano to take off his blue Yankees hat
and told Mexicano’s son to leave. Mexicano and his son both ran. Petitioner fired five
shots and then fled. Mexicano’s son ran for help. Mexicano was discovered on the
ground at the scene of the shooting and taken to the hospital, where he was declared dead.
2 Petitioner’s request for judicial notice of the appellate record and this court’s
opinion in petitioner’s direct appeal is granted.
3 The factual background is taken from People v. Aguilar, supra, H034072.

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Rey L., who was associated with SAP, testified that after the shooting, petitioner
said that he needed to get rid of a gun, then gave Rey a .38-caliber revolver wrapped in a
towel. Petitioner explained that he had let someone “have it,” which Rey understood to
refer to a shooting. A bullet recovered from Mexicano’s chest was from a .38- or .357-
caliber handgun.
Israel R., a member of SAP, testified that petitioner had stopped by his residence
the night of the crime, sounding out of breath. Petitioner told Israel that someone “just
got smoked in the hood.” Petitioner first denied being involved but later admitted being
the shooter.
Police searched petitioner’s house and seized, among other things, a photograph of
someone wearing a memorial jacket on the back of which was stitched, “In Love And
Memory Of Jose Mexicano Dec. 31, 1981-Mar. 4, 2007.” A gang expert explained that
gang members often keep memorial-type memorabilia of enemies who have been killed,
and he opined that petitioner’s photograph constituted a “trophy” of Mexicano’s killing.
B. Convictions, Sentencing, and Appeal
At a jury trial held in 2008, petitioner was convicted of active participation in a
criminal street gang (§ 186.22, subd. (a)) but a mistrial was declared as to the charge of
first degree murder (§ 187, subd. (a)) and two other counts, which were later dismissed.
The jury was also unable to reach a verdict on the allegation that petitioner used a firearm
in the commission of the gang offense. (§ 12022.5, subd. (a)).
At a second jury trial held in 2009, petitioner was convicted of first degree murder
(§ 187, subd. (a)), and the jury found true allegations that petitioner personally used and
discharged a firearm causing death (§§ 12022.5, subd. (a), 12022.53, subd. (d)) and an
allegation that he committed the offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). Petitioner waived jury trial as to the allegation that he used a
firearm in the commission of the gang offense, and the trial court found that allegation
true. (§ 12022.5, subd. (a).)

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On March 26, 2009, petitioner was sentenced to an aggregate term of 56 years to
life, which included a term of 25 years to life for the murder conviction, a consecutive
term of 25 years to life for the associated allegation that petitioner personally used and
discharged a firearm causing death, a consecutive two-year term for active participation
in a criminal street gang, and a consecutive four-year term for the associated firearm use
allegation. At the time of sentencing, petitioner had 730 days of actual presentence
conduct credit.
Petitioner appealed his convictions to this court. On January 27, 2011, this court
affirmed the judgment. (People v. Aguilar, supra, H034072.)
C. Habeas Petitions
On January 22, 2014, the trial court denied petitioner’s habeas corpus petition
seeking relief under Miller, supra, 567 U.S. __ [132 S.Ct. 2455]. On March 13, 2014,
petitioner filed a petition for writ of habeas corpus in this court. On October 23, 2014,
this court issued an order to show cause and appointed counsel for petitioner. The
Attorney General subsequently filed a return, and petitioner thereafter filed a traverse.
III. DISCUSSION
Petitioner contends that his sentence of 56 years to life constitutes “a de facto
LWOP term that was imposed pursuant to a mandatory sentencing scheme,” in violation
of Miller, supra, 567 U.S. at __ [132 S.Ct. 2455].
The Attorney General contends that petitioner is not entitled to be resentenced, for
three reasons. First, the Attorney General argues that the Legislature’s enactment of
section 3051 renders petitioner’s claim moot, because that statute provides a meaningful
opportunity for petitioner to obtain release, effectively rendering his sentence not a de
facto LWOP sentence. Second, the Attorney General argues that Miller is not retroactive,
and therefore that relief is not available on collateral review. Third, the Attorney General
argues that petitioner’s sentence of 56 years to life is not a de facto LWOP sentence

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because he will have an opportunity for parole at about age 73, which is “well within his
natural life expectancy.”4
A. Graham, Miller, and Caballero
In Graham v. Florida (2010) 560 U.S. 48, 74 (Graham), the United States
Supreme Court held that the Eighth Amendment prohibits imposition of a life without the
possibility of parole sentence for juvenile nonhomicide offenders. Graham recognized
that such a sentence is especially harsh for a juvenile offender who will spend more years
and a greater percentage of his or her life in prison than a similarly sentenced adult.
(Id. at p. 70.) Graham concluded that a nonhomicide juvenile offender is entitled to a
sentence that provides “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” (Id. at p. 75.) “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.)
Two years later, the United States Supreme Court ruled that “mandatory life
without parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S.
at p. __ [132 S.Ct. at p. 2460].) In Miller, the Court explained that its prior cases,
including Graham, had “establish[ed] that children are constitutionally different from
adults for purposes of sentencing.” (Id. at p. __ [132 S.Ct. at p. 2464].) Specifically,
4 In In re Alatriste (2013) 220 Cal.App.4th 1232, review granted February 19,
2014, S214652, and In re Bonilla (2013) 220 Cal.App.4th 1232, review granted
February 19, 2014, S214960, the California Supreme Court may consider all of these
issues: whether section 3051 renders moot a claim that a juvenile’s life sentence violates
the Eighth Amendment, whether Miller applies retroactively on habeas corpus to a
prisoner who was a juvenile at the time of the commitment offense, and whether a term
of imprisonment of 77 years to life or 50 years to life is the functional equivalent of life
without possibility of parole.

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“juveniles have diminished culpability and greater prospects for reform,” making them
“ ‘less deserving of the most severe punishments.’ ” (Ibid.)
In Miller, the issue arose in two companion cases, both involving 14-year-old
defendants, Jackson and Miller, who were convicted of murder and sentenced to LWOP.
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2460].) Jackson’s case arose on appeal
from the dismissal of a petition for writ of habeas corpus; Miller’s case arose on direct
appeal. (Id. at p. __ [132 S.Ct. at pp. 2461-2463].)
The Miller court summarized its holding as follows: “Mandatory life without
parole for a juvenile precludes consideration of his [or her] 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
surrounds him [or her]—and from which he [or she] cannot usually extricate himself [or
herself]—no matter how brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his [or her] participation in the conduct and the
way familial and peer pressures may have affected him [or her]. Indeed, it ignores that he
[or she] might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his [or her] inability to deal with
police officers or prosecutors (including on a plea agreement) or his [or her] incapacity to
assist his [or her] own attorneys. [Citations.] And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most suggest it.”
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2468].)
While Miller held “that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders,” the court did
not decide “that the Eighth Amendment requires a categorical bar on life without parole
for juveniles . . . .” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2469].) However,
the court indicated it believed that LWOP sentences for juveniles would be “uncommon”
and limited to “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’

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[Citations.]” (Ibid.) The court specified that before such a sentence is imposed on a
juvenile in a homicide case, the sentencing court must “take into account how children
are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” (Ibid., fn. omitted.)
In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme
Court held—in the context of a juvenile non-homicide offense—that a sentence of “a
term of years with a parole eligibility date that falls outside the juvenile offender’s natural
life expectancy” is the “functional equivalent” of an LWOP sentence. (Id. at p. 268.)
The court held that “Graham’s ‘flat ban’ on life without parole sentences applies to all
nonhomicide cases involving juvenile offenders, including [a] term-of-years sentence that
amounts to the functional equivalent of a life without parole sentence.” (Id. at pp. 267-
268)5
The term imposed in Caballero was 110 years to life. (Caballero, supra, 55
Cal.4th at p. 265.) The defendant had been convicted of three counts of attempted
murder, and the jury had found true various enhancement allegations. (Ibid.) The
defendant’s sentence was comprised of consecutive terms for the attempted murders and
firearm enhancements. The Caballero court explained that the “functional equivalent” of
an LWOP sentence is one in which the parole eligibility date “falls outside the juvenile
offender’s natural life expectancy,” such that the juvenile offender has no “meaningful
5 Courts from other jurisdictions have split on the question of whether Graham
and Miller apply to “consecutive, fixed terms resulting in an aggregate sentence that
exceeds the defendant’s life expectancy.” (Bunch v. Smith (6th Cir. 2012) 685 F.3d 546,
552; compare State v. Brown (La. 2013) 118 So.3d 332, 341 [“In our view, Graham does
not prohibit consecutive term of year sentences for multiple offenses committed while a
defendant was under the age of 18, even if they might exceed a defendant’s lifetime”]
with Henry v. State (Fla., Mar. 19, 2015) __ So.3d __ [2015 Fla. Lexis 533, *10]
[“Graham is implicated when a juvenile nonhomicide offender’s sentence does not afford
any ‘meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation’ ”].)

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opportunity to demonstrate [his or her] rehabilitation and fitness to reenter society.” (Id.
at p. 268.)
The Caballero court explained how its holding would apply when a juvenile
offender is facing a potential de facto LWOP sentence: “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.’ [Citation.]” (Caballero, supra, 55 Cal.4th at pp. 268-269.)
The Caballero court also explained how its holding would apply to juvenile
offenders who were previously sentenced to LWOP or de facto LWOP sentences:
“Defendants who were sentenced for crimes they committed as juveniles who seek to
modify life without parole or equivalent de facto sentences already imposed may file
petitions for writs 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.” (Caballero, supra, 55 Cal.4th at p. 269.)
B. Does Section 3051 Render Moot Petitioner’s Claim?
After the Miller and Caballero cases were decided, the Legislature enacted
section 3051, which, inter alia, requires the Board of Parole Hearings to conduct youth
offender parole hearings and makes youth offenders eligible for release on parole by at
least the 25th year of incarceration. The Legislature specified that the purpose of the new

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statute was “to establish a parole eligibility mechanism that provides a person serving a
sentence for crimes that he or she committed as a juvenile the opportunity to obtain
release when he or she has shown that he or she has been rehabilitated and gained
maturity, in accordance with [Caballero and Miller].” (Sen. Bill No. 260 (2013-2014
Reg. Sess.) ch. 312, § 1.)
As noted, the Attorney General asserts that section 3051 renders moot petitioner’s
cruel and unusual punishment claim because it provides a “meaningful opportunity for
release on parole” during petitioner’s lifetime. Petitioner disagrees. He argues that
section 3051 is “insufficient to address the concerns set forth in Miller and Graham,”
because at the time petitioner will become eligible for parole under that statute, “there
would be no reliable way to measure his cognitive abilities, maturity, and other youth
factors at the time he committed his offense 25 years earlier.” Petitioner contends that
“[a]n accurate evaluation of the youth factors in Miller and Graham can only be done at
the time of the initial sentencing hearing – not 25 years in the future.” He also contends
that “there is no guarantee that the statute will not be altered or removed entirely before
petitioner is eligible for parole.”
We conclude that the enactment of section 3051 does not render petitioner’s claim
moot. Caballero establishes that it is the trial court’s role to consider “all mitigating
circumstances attendant in the juvenile’s crime and life,” thus enabling the Board of
Parole Hearings to later determine “whether the juvenile offender must be released from
prison ‘based on demonstrated maturity and rehabilitation.’ [Citation.]” (Caballero,
supra, 55 Cal.4th at pp. 268-269.) Likewise, Miller establishes that the sentencing court
must consider particular factors prior to imposing sentence. (Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2468].) In cases like this, where sentencing preceded Miller, the
trial court generally will not have developed the Miller facts, which would not only be
pertinent to the appropriate sentence but helpful to the Board of Parole Hearings when it

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makes the later determination of whether the defendant has demonstrated sufficient
maturity and rehabilitation to warrant release on parole.
Our conclusion is buttressed by the California Supreme Court’s resolution of a
similar issue in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). In Gutierrez, the
court considered the impact of Miller on section 190.5, subdivision (b), which had
previously been interpreted “as establishing a presumption in favor of life without parole
for juvenile offenders who were 16 years of age or older when they committed special
circumstance murder.” (Gutierrez, supra, at p. 1369.) The California Supreme Court
concluded that “section 190.5[, subdivision ](b), properly construed, confers discretion on
a trial court to sentence a 16- or 17-year-old juvenile convicted of special circumstance
murder to life without parole or to 25 years to life, with no presumption in favor of life
without parole.” (Id. at p. 1360.) The Gutierrez court further held that “consideration of
the Miller factors” is required when a sentencing court is determining whether to impose
an LWOP sentence pursuant to section 190.5, subdivision (b). (Gutierrez, supra, at
p. 1387.)
The Gutierrez court considered whether section 1170, subdivision (d)(2)
provided a substitute for the resentencing process mandated by Miller. (Gutierrez,
supra, 58 Cal.4th at p. 1386.) Section 1170, subdivision (d)(2) provides a procedural
mechanism for resentencing to defendants who were under the age of 18 at the time of
the commission of their offenses and who were given LWOP sentences. If the defendant
has served at least 15 years of the LWOP sentence, he or she may “submit to the
sentencing court a petition for recall and resentencing” (§ 1170, subd. (d)(2)(A)(i)), so
long as the LWOP sentence was not imposed for certain enumerated offenses (id.,
subd. (d)(2)(A)(ii)).
The Gutierrez court rejected the Attorney General’s argument that the
“potential mechanism for resentencing” provided by section 1170, subdivision (d)(2)
“mean[s] that the initial sentence ‘is thus no longer effectively a sentence of life without

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the possibility of parole.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1386.) The Gutierrez
court reasoned: “A sentence of life without parole under section 190.5[, subdivision ](b)
remains fully effective after the enactment of section 1170[, subdivision ](d)(2). That is
why section 1170[, subdivision ](d)(2) sets forth a scheme for recalling the sentence and
resentencing the defendant.” (Ibid.)
The Gutierrez court further rejected the Attorney General’s claim that
section 1170, subdivision (d)(2) “removes life without parole sentences for juvenile
offenders from the ambit of Miller’s concerns because the statute provides a meaningful
opportunity for such offenders to obtain release.” (Gutierrez, supra, 58 Cal.4th at
p. 1386.) The court held that what Miller required for juvenile offenders sentenced to
LWOP was not a “ ‘meaningful opportunity to obtain release’ ” but a sentencing court’s
exercise of discretion “ ‘at the outset.’ ” (Ibid.)
Based on our careful review of Miller, Caballero, and Gutierrez, we conclude that
the enactment of section 3051 does not render moot petitioner’s claim that his sentence is
a de facto LWOP sentence that violates the Eighth Amendment.
C. Is Miller Retroactive?
The Attorney General next argues that petitioner is not entitled to relief by way of
a petition for writ of habeas corpus because Miller is not retroactive. This court recently
held that Miller is retroactive—that “under Miller, habeas corpus relief is available in a
case that is no longer pending on direct appeal.” (In re Willover (2015) __ Cal.App.4th
__, __ [2015 Cal.App. Lexis 322, *14] (Willover).)
In Willover, we applied the retroactivity test of Teague v. Lane (1989) 489 U.S.
288, as refined by Schriro v. Summerlin (2004) 542 U.S. 348 (Schriro), in which the
United States Supreme Court “defined the key distinction in the retroactivity analysis as
whether the new rule is substantive or procedural.” (Willover, supra, __ Cal.App.4th at
p. __ [2015 Cal.App. Lexis 322 at p. *15].) We agreed with other courts “that have
found Miller to be a new substantive rule rather than a new procedural rule.” (Id. at p. __

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[2015 Cal.App. Lexis 322 at p. *20].) We explained: “The Miller case effectively
‘alter[ed] the range of conduct or the class of persons that the law punishes’ (Schriro,
supra, 542 U.S. at p. 353), in that it barred LWOP sentences for juvenile homicide
offenders unless the sentencing court determines, after a consideration of a number of
case-specific substantive factors, that the defendant is ‘ “the rare juvenile offender whose
crime reflects irreparable corruption . . .” [citations]’ (Miller, supra, 567 U.S. at p. __
[132 S.Ct. at p. 2469]). Miller did not simply set forth a new rule regulating ‘the manner
of determining the defendant’s culpability,’ but a rule that sets forth the specific
considerations to be made during a sentencing decision. (Schriro, supra, 542 U.S. at
p. 353.)” (Willover, supra, __ Cal.App.4th at p. __ [2015 Cal.App. Lexis322 at pp. *20-
21].)
In Willover, we also agreed “with the courts finding it significant that Miller
granted relief in the companion case, Jackson v. Hobbs, which arose on collateral
review.” (Willover, supra, __ Cal.App.4th at p. __ [2015 Cal.App. Lexis 322 at p. *21].)
We explained: “While the Supreme Court did not analyze the issue, it did direct that the
defendant in Jackson be given a new sentencing hearing. (See Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2475].) ‘There would have been no reason for the Court to direct
such an outcome if it did not view the Miller rule as applying retroactively to cases on
collateral review.’ [Citation.] And, as another out-of-state court noted, it would be
incongruous ‘to refuse to apply the rule announced in Miller to a defendant before us on
collateral review when the Court has already applied the rule to a defendant before it on
collateral review.’ [Citations.]” (Willover, supra, __ Cal.App.4th at p. __ [2015
Cal.App. Lexis 322 at pp. *21-22].)
As we held in Willover, supra, __ Cal.App.4th at p. __ [2015 Cal.App. Lexis 322
at p. *22], “Miller’s new rules concerning the imposition of LWOP sentences on juvenile
homicide offenders are retroactive.”

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D. Is a sentence of 56 years to life a “de facto” LWOP sentence?
Petitioner’s sentence of 56 years to life will make him first eligible for parole
when he is approximately age 73. He claims his sentence is a de facto LWOP sentence
because he is not expected to live much longer than age 73. The Attorney General
contends that petitioner’s sentence is a not a de facto life sentence because age 73 is “well
within his natural life expectancy.”
Petitioner was born on June 16, 1989. He cites to a report indicating that the
average life expectancy for a male born in 1990 was 71.8 years at the time of birth.
Petitioner also cites to a report indicating that in 1997, when he was seven years old, the
remaining life expectancy for a non-white male was 68.4 years, meaning that at that time,
he was expected to live until about age 74. Finally, petitioner cites to a report stating that
due to conditions of prison confinement, inmates are significantly less healthy than the
general population. Petitioner contends that because he will be living in prison, his life
expectancy will therefore likely be “considerably shortened.”
The Attorney General argues that petitioner’s life expectancy could be as high as
79.3 years, based on different statistics. The Attorney General cites to data tables stating
that at birth in 1989, a male was expected to live until age 71.7, while in 2010, a Hispanic
20-year-old male was expected to live until age 79.3.
Petitioner’s reliance on data regarding his life expectancy at the time of his birth is
misplaced. The determination of whether a juvenile offender is facing a sentence that
will not provide him or her with “a meaningful opportunity to demonstrate rehabilitation
and fitness to reenter society” (Caballero, supra, 55 Cal.4th at p. 268) should be made at
the time of sentencing. Thus, the determination of whether a particular sentence is a de
facto LWOP sentence may be based in part upon life expectancy data concerning the
number of years the juvenile is expected to live at the time of sentencing. According to
the life expectancy tables that the parties cite, life expectancy increases as a person ages,

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and thus petitioner’s life expectancy at birth was shorter than his life expectancy at the
time of sentencing, when he was 19 years old.
In 2009, a 20-year-old male would be expected to live another 56.9 years, and a
20-year-old Hispanic male would be expected to live another 59.5 years. (National
Center for Health Statistics, Center for Disease Control, National Vital Statistics Reports
(January 6, 2014) table A, vol. 62, No. 7.) Petitioner was 19 years, nine months old at the
time of his sentencing hearing on March 26, 2009. At that time, he would have been
expected to live until about age 76 or, if he is Hispanic, about age 79.6 (See also People
v. Mendez (2010) 188 Cal.App.4th 47, 63 [in 2010, life expectancy for an 18-year-old
American male was 76 years].) Thus, at the time of sentencing, petitioner’s first parole
opportunity fell only about three to six years before his expected death, without
accounting for any reduction in life expectancy due to the health effects of spending
56 years incarcerated.
As noted above, the Caballero court indicated that the “functional equivalent” of
an LWOP sentence is one in which the juvenile offender has no “meaningful opportunity
to demonstrate [his or her] rehabilitation and fitness to reenter society.” (Caballero,
supra, 55 Cal.4th at p. 268.) Here, although petitioner might be eligible for parole a few
years before the end of his life expectancy, his sentence does not give him a meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation (Graham,
supra, 560 U.S. at p. 75; Caballero, supra, at p. 268), and his sentence “disregards the
possibility of rehabilitation” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2468]).
Petitioner’s sentence is therefore a de facto LWOP sentence. A juvenile who is not
eligible for parole until about the time he is expected to die does not have a meaningful or
realistic opportunity for release, “no matter what he might do to demonstrate that the bad
6 Petitioner has a Hispanic last name but the record does not reveal whether he is
in fact Hispanic.

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acts he committed as a teenager are not representative of his true character, even if he
spends the next half century attempting to atone for his crimes and learn from his
mistakes.” (Graham, supra, 560 U.S.at p. 79.)
Because petitioner’s sentence of 56 years to life is a de facto LWOP sentence, we
conclude he is entitled to resentencing under Graham, Miller, and Caballero.
IV. DISPOSITION
Petitioner’s sentence is vacated and the matter is remanded for resentencing.

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___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
__________________________
MIHARA, J.
__________________________
MÁRQUEZ, J.

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