PEOPLE v. CABALLEROAppellant's Petition for ReviewCal.February 23, 2011519U647 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA The People of the State of California, PlaintiffandRespondent SUPREME Cager Rodrigo Caballero, F \ L E Defendant and Appellant | FEB 23 201! Case No. B 217709 erederick K. Ohirich Clerk oem Deputy In re Rodrigo Caballero, on Habeas Corpus Case No. B 221833 Court of Appeal, Second Appellate District, Division 4 Appeal from Superior Court, Los Angeles County, Hon. Hayden Zacky, Judge (LASC Case No. MA043902) PETITION FOR REVIEW David E. Durchfort SBN 110543 Kosnett & Durchfort 11255 W. Olympic Blvd. Suite 300 Los Angeles, CA 90064 310 444-8898 310 444-8878 (fax) David.durchfort@verizon.net Attorneys for Defendant and Appellant IN THE SUPREME COURTOF THESTATE OF CALIFORNIA The People of the State of California, Plaintiffand Respondent v. Rodrigo Caballero, Defendant and Appellant Case No. B 217709 In re Rodrigo Caballero, on Habeas Corpus Case No. B 221833 Court of Appeal, Second Appellate District, Division 4 Appeal from Superior Court, Los Angeles County, Hon. Hayden Zacky, Judge (LASC Case No. MA043902) PETITION FOR REVIEW David E. Durchfort SBN 110543 Kosnett & Durchfort 11255 W. Olympic Blvd. Suite 300 Los Angeles, CA 90064 310 444-8898 310 444-8878 (fax) David.durchfort@verizon.net Attorneys for Defendant and Appellant IN THE SUPREME COURTOF THE STATE OF CALIFORNIA The People of the State of California, Plaintiffand Respondent v. Rodrigo Caballero, Defendant and Appellant Case No. B 217709 In re Rodrigo Caballero, on Habeas Corpus Case No. B 221833 Court of Appeal, Second Appellate District, Division 4 Appeal from Superior Court, Los Angeles County, Hon. Hayden Zacky, Judge (LASC Case No. MA043902) PETITION FOR REVIEW To the Honorable Chief Justice of California and the Associate Justices of the Supreme Court of California: Rodrigo Caballero, defendant and appellant, respectfully petitions this court for review following the decision of the Court of Appeal, Second Appellate District, Division Four, filed on January 18, 2011, affirming his conviction for attempted murder. A copy of the opinion of the Court of Appealis attached to this petition. A petition for rehearing wasnot filed by appellant in the Court of Appeal. Table of Contents Table of Authorities 2.00.2... cccccccsscscssessecscsscsscsscssecsecssesesevsceaceeseseteneeses 2 Issues Presented for REVICW ........cscescssescessesesssessesecsssssscscesecssensveressneaes 3 1. Does Graham v. Florida invalidate as cruel and unusual punishment only the convictions of juveniles sentenced to life with no possibility of parole for NOnhomicide Offenses?...............cccceseeceecsesesseeceecsececeecceserseceecececcecceeee 3 2. Are all juvenile sentences unconstitutional wheneverparole eligibility exceeds life expectancy? ........ccceeeee 3 Necessity for REVIOW ..0....ccccsccssssscsscseesscsecsessessecsscsaessecsscssvasensensenarersras 3 A. The Conflict in the Court of Appeal .......ccccccccceseceeeeceseeeens 4 B. Questions Presented .........ccccccscsccsscsscessecssccssessscsessevsnesaseeeeraes 4 C. The Potential Impact of Graham in California seseeseeveseneterseesneess 5 D. This Case Contains Legal Issues Commonto Juveniles Tried as Adults ......ccccc ecceescccceccececessseeseessstssuasececcesecessereeeeans 7 Statement of the Case and Facts .0.......ccccccesssccccccceccccececsscssesetsauseccceseeees 8 ATQUMEMNE..eeeccceeeeeeeeeneesseeseeceesesacsascaessesecssecsecssessecsusaecaeeecaterareneas 9 I. THE SEVERITY OF PETITIONER’S SENTENCE AND THE MANNERIT WAS IMPOSED VIOLATES THE EIGHTH AMENDMENT............cccceceeseereeee 9 If. THE IMPACT OF THE ADULT CRIMINAL JUSTICE SYSTEM ON JUVENILES WITH SERIOUS DISABILITIES IS DISPROPORTIONATE......ecceececccceeseeeseeseeseeseeeseeseeeeenseseeesees 11 Certification........cccccccccsssssccccecsesscceceesctssccecessesecccecersrsascuucentnseucecseuenens 13 Table of Authorities Cases Graham v. Florida (2010) 130 S.Ct. 2011, 176 L.Ed.2d 825....ccccccccccccececcceccecesees passim People v. Mendez (2010) 188 CalApp.4th 47 ooo ccccccsccsscsscssesccsesesccscseveescvecceceececes 4 Statutes Penal Code 6 SLQBccccesscesssccsnecsesscesseceseresssesssscsasesssssessesseneeccsesseseessces 6 § 209... ccccccsccesscecssccssssscessuevsesesuessesuasevssevssssssseessceaesertececscescecee. 6 9 O64... cecccssccsssccsssscscssecessssacesseessssssesssessssseaseetustuessetnecsecessseces 6 § 667.61. cceccceccscccssccescecerecsevessesesssevssevsescvaseeseesseseeececeseceecces 6 § 6067.75. ccccesccsccccscsccsssesscsssseessecessseetsscsssesesesseetecstceeeecsecececsee, 6 California Rules of Court Rule 8.500(b) (1).....cccccececccseecesecssessecsccssscssessscvseseceeuseveseeeeeeses 4 Rulle 8.500) ooo. eeccessescceseseecesesescscsvsvecsssesvecetstaesassssecasseses 9 Other Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law & Practice, 42 ULS.F. L. Rev. 983 (2008)....cccccceccsesseseesecsscsceeceeestseesstacseesesees 5 Lindsay M.Hayes, U.S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Suicide in Confinement: A National Survey 1- 2 (2009). ecceeccscscscseeesseseeesssesescsesssesscssvscsvscevsceceevevacavevseeavavscaesees 12 SeenaFazel, Mental Disorders Among Adolescents in Juvenile Detention and Correctional Facilities: A Systematic Review and Metaregression Analysis of 25 Surveys, 47 J. Am. Acad. Child Adolescent Psych. (2008) eeeee csceeeseeccesesecsesesecsesesscsssssecsevevseeevsesaesevatvavavsuesasecesess 11 Issues Presented for Review l. Does Graham v. Florida invalidate as cruel and unusual punishmentonly the convictions ofjuveniles sentencedto life with no possibility of parole for nonhomicide offenses? 2. Are all juvenile sentences unconstitutional whenever parole eligibility exceedslife expectancy? Necessity for Review Last year the Supreme Court ruled that the Eighth Amendment prohibits sentencing a juvenile who did not commit homicideto life without parole. Graham v. Florida, U.S. , 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010) (Graham). Such minors must now receive “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Jd. at 2030. The Court left it to the states to decide when juveniles sentenced to life should be considered for parole. Jd. California’s attempt to implement this mandate has been inconsistent and conflicting. A bill to provide periodic parole consideration for juveniles serving life was defeated in the Legislature. Two decisions from the Court of Appeal applying Graham are in conflict. Review should be granted to resolve which juvenile sentences are unconstitutional. A. The Conflict in the Court of Appeal Petitioner is a 16-year-old schizophrenic who was sentenced to 110 years to life on three counts of attempted murder. He will not become eligible for parole until age 122. Petitioner challenged his lengthy sentence, but, in a published opinion, the Second District (Div. 4) denied all relief maintaining that Graham only applies to juveniles sentenced to life with no possibility of parole. (Opin. 17- 20.) However, in another recent published decision, the Second District (Div. 2) concluded the opposite—a juvenile’s 84-year-to-life sentence wascruel and unusual because paroleeligibility exceeded his life expectancy. People v. Mendez (2010) 188 Cal.App.4" 47, 64 (Mendez). “{C]lommon sense dictates that a juvenile who is not eligible for parole until after he is expected to die does not have a meaningful, or as the Court also putit, ‘realistic,’ opportunity of release.” Mendez, supra at 63 [quoting] Graham. B. Questions Presented In the absenceofa legislative solution, this Court should grant review under Cal. Rules of Court, R. 8.500(b) (1) to determine Graham’s scope and which nonhomicide convictions are entitled to post-conviction review as follows: 1, Does Graham v. Florida only apply to juveniles whoare sentencedto life with no possibility of parole? 2. Is a sentence unconstitutional whenever a juvenile’s parole eligibility exceedshis life expectancy? C. The Potential Impact of Graham in California Petitioner contends his 110-year-to-life sentence is cruel and unusual becauseit assures hewill die in prison. Children who do not commit murder, but receive adult high fixed terms that extend parole eligibility beyond life expectancy, are functionally deprived of the chance to demonstrate fitness to reenter society. This is Graham’s central rationale and it should apply regardless of whether youthful offenders receive life, life without possibility of parole, or any extreme sentence. As of 2007, there were 227 juveniles serving terms oflife without possibility of parole in California. De la Vega, 42 Univ. of San Francisco Law Rev. 993, Global Law and Practice (2008). The numbers ofjuvenile offenders sentencedto life or near-life terms in California for nonhomicide offenses is not easy to obtain. In 2009 alone, 363 minors were tried in California’s adult courts for serious, nonhomicide offenses including forcible rape, robbery, assault, and kidnapping. California DOJ, Juvenile Justice in California, Adult Court Dispositions for Felony Offenses, Table 31 (July 2010). Over 60% were sentencedto prison. Jd. It’s likely many such convictions implicate life or near-life terms becauseofthe interplay of highinitial sentences, enhancements, special allegations, consecutive terms, aggravating factors, and multiple counts.! But the number of juvenile offenders that may be affected by this case is not the only reason for granting review. Review will secure sentencing uniformity and settle important questions that will affect the trajectory of juvenile justice in California for generations.” Petitioner’s 110-year-to-life sentence was imposed without regard to his mentalillness, lack of prior record, or potential for growth and maturity. Juvenile offenders tried as adults are subjected to mandatory sentencing schemesthat render the offender’s personal circumstancesirrelevant. This practice was deemed cruel and unusual in Graham because, “[b]y denying the defendant the right to reenter Life imprisonment can be imposed for offenses not involving homicide in several instances: attempted murder (Penal Code § 664(a)), multiple drug offenses (§ 667.75), aggravated sex offenses (§ 667.61), assault with a deadly weapon while undergoing a life sentence (§ 4500), kidnapping (§ 209), subornation ofperjury (§ 128), and treason against California (§ 37) to name a few. * SB 399 wasintroduced in the California Senate on February 26, 2009 and defeated August 31, 2010. It would have amended Penal Code § 1170 to provide periodic sentence review of juveniles imprisoned forlife without the possibility of parole after 10, 15, 20, and 24 years’ confinement. A portion of the bill is attached to this petition and follows the published decision of the Court of Appeal. 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, 130 S. Ct. at 2030. California must reshape its juvenile sentencing landscape to comply with the implications of the Supreme Court’s landmark decision. D. This Case Contains Legal Issues Common to Juveniles Tried as Adults Petitioner’s case is particularly suited for review because his sentence is entwined with claims of mentalillness, incompetency, inadequate medical treatment, and ineffective assistance of counsel. These issues are common to juveniles who are tried as adults in California and implicate Graham’s core concerns. Teenagers like Rodrigo Caballero are at a peculiar disadvantage in adult court because they possess neither the maturity nor intelligence to meaningfully participate in criminal proceedings. Rodrigo couldn’t remember where he wentto elementary school or where he attended 9" grade high school. He had no prior felony convictions and believed a misdemeanor was more serious than a felony. Shortly after arrest, petitioner began hearing voices. (Opin. 4, 13.) Within 3 months of the shooting, Rodrigo was diagnosed with schizophrenia. Two medical experts appointed by the Juvenile court declared petitioner delusional and mentally incompetent. (Opin. 3, 13.) Petitioner wasintelligent, but incapable of cooperating with his lawyer. (Opin. 3, 13.) Petitioner believed his lawyer was working against him. (Opin. 13.) Petitioner received the antipsychotic medication Risperdal to treat Paranoid Schizophrenia. (Opin. 3, 4, 11.) With Risperdal, the voices stopped. (Opin.3, 4.) Petitioner regained competence 13 months of arrest and was eventually tried in adult court one year later. (Opin. 4.) Four percipient witnesses refused to identify him as the shooter in court. Before he took the stand, Rodrigo was asked if he would like to testify or remain silent. Counsel told the court petitioner elected not to testify. (Opin. 9.) Rodrigo told the judge he wanted to do both. Jd He took the stand and confessed. (Opin. 7-8.) After Graham v. Florida, no moral or legal justification exists to imprison young offenders for life for nonhomicide crimes. Where, as here, youthful offenders are diagnosed with serious mental disorders that interfere with their ability to comprehendorparticipate in the proceedings, doubt over the reliability of the verdict and the appropriatenessofa life sentence increases. Statement of the Case and Facts A direct appeal and an original petition for writ of habeas corpus were filed in the Court of Appeal. The published decision on January 18, 2011 affirmed the judgment and denied the petition without issuance of an order to show cause. (Opin. 1, 21, n 8.) No petition for rehearing wasfiled. Accordingly, Rodrigo Caballero files this petition to review the issues in the direct appeal and has filed a separate petition for review of denial of the petition for writ of habeas corpus. Cal. Rules of Court, R. 8.500(d). For purposesofthis petition, the statement of facts contained in the court of appeal’s opinion is adopted. Argument I. THE SEVERITY OF PETITIONER’S SENTENCE AND THE MANNERIT WAS IMPOSED VOLATES THE EIGHTH AMENDMENT Petitioner’s 110 yearto life sentence was imposed minutes after the jury announcedits verdict. Counsel waived time for sentencing. The judge was not presented—and did not consider—amitigating factors such as petitioner’s mental disease, his age, lack of prior record, or potential for growth and maturity. This makes the sentence unconstitutional because petitioner is serving life without having committed a homicide and he has no meaningful chanceofrelease. The Court of Appeal’s interpretation of Graham v. Florida, by strictly limiting Eighth Amendmentrelief to minors serving life with no possibility of parole (LWOP),is too rigid. (Opin. 17-20.) Florida abolished parole so all Florida life sentences carry a lifetime of incarceration unless executive clemency is granted. Graham, supra, 130 S.Ct. at 2020. There is no distinction in Florida betweenlife with no possibility of parole and life with possibility of parole as in California. Thus, Graham’s use of the term “life without parole” merely reflects a generic use of the term—Graham wassentencedto life and there is no parole in Florida. The Court of Appeal’s reliance on Justice Alito’s dissentis therefore misplaced. (Opin. 18.) However, other language in the Supreme Court’s decision seems to apply to all life sentences—not just LWOP. This is made clear by the broad holding: “A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with somerealistic opportunity to obtain release before the end of that term.” Jd. [emphasis added]. Hence, Graham applies to all life sentences for nonhomicide crimes—not just LWOP. Another reason the Court of Appeal’s attempt to distinguish Graham should be rejected is because defendants who are sentenced to LWOPare more culpable than defendants whoreceivelife with the possibility of parole. The Supreme Court excluded juvenile murderers from its decision because “a criminal sentence must be directly related to the personal culpability of the criminal offender.” Graham, supra at 2028[internal quote andcitation omitted]. If the Court of Appeal’s decision were allowed to stand, offenders who were imprisoned for more heinous crimes would be entitled to Eighth Amendment 10 protection, but juveniles who received “lighter”life sentences because they are morally less culpable would not. This stands the reasoning of the landmark decision onits head. Lastly, a narrow application of Graham would exclude a whole class of imprisoned youth who, like petitioner, are especially vulnerable to adult criminal prosecution. We develop this argument next. Il. THE IMPACT OF THE ADULT CRIMINAL JUSTICE SYSTEM ON JUVENILES WITH SERIOUS DISABILITIES IS DISPROPORTIONATE Petitioner has alleged the recurrence of his mental disease rendered him incompetent to stand trial. However, even if Risperdal had been administered without interruption, petitioner’s underlying schizophrenia makes a defacto life sentence inappropriate. If the law recognizes that “normal” children are less culpable than adults, surely mentally impaired juveniles are less blameworthystill. The incidence of disabled youth in prison is disproportionate. Imprisoned youth are up to twenty times more likely to have serious mental disorders than comparable teens. Seena Fazel et al., Mental Disorders Among Adolescents in Juvenile Detention and Correctional Facilities: A Systematic Review and Metaregression Analysis of 25 Surveys, 47 J. Am. Acad. Child Adolescent Psych. 1010, 1016 (2008). Confinement in adult lockup aggravates the condition of minors with 1] disabilities. They are at greater risk of depression and increased suicide. Lindsay M. Hayes, U.S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Suicide in Confinement: A National Survey 1-2 (2009). The constellation of symptoms petitioner displayed shortly after arrest including auditory hallucinations and paranoia, provestheclaim. As the Supreme Court noted, vocational training and rehabilitative services available to others are denied life inmates. For juvenile offenders, the absence of treatment makes the incarceration more disproportionate. Graham, supra at 2030. The samereasonsthat justify eliminating life without parole for nonhomicide youthful offenders make the imposition of extreme terms of imprisonment inappropriate for disabled children. Petitioner has alleged his mental disease casts significant doubt on the reliability of the verdict or the appropriateness of the sentence. But even if petitioner is wrong, the categorical rule announced in Graham mitigates the risk of over-incarcerating juvenile offenders who have fallen through the cracks. Review should be granted to construct a sentencing formula that accountsfor such disparities. February 21, 2011 Respectfully submitted, KOSNETT & DURCHFORT By David E. Durchfort 12 Certification In accordance with Cal. Rules of Court, R. 8.504(d), I certify this brief contains 2,419 words according to the word-count function of the program used to prepareit. February 21, 2011 KOSNETT & DURCHFORT By David E. Durchfort 13 CERTIFIED FOR PARTIAL PUBLICATION’ IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, V. RODRIGO CABALLERO, Defendant and Appellant. Inre RODRIGO CABALLERO, on Habeas Corpus. DIVISION FOUR B217709 (Los Angeles County Super. Ct. No. MA043902) COURT OF APPEAL- SECONDDIST. PILED JAN 18 B221833 JOSEPH A LANE 2011 Clerk Clerk a Deputy Clerk APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed. ORIGINAL PROCEEDINGS;petition for a writ of habeas corpus. Writ denied. Kosnett & Durchfort and David E. Durchfort for Defendant and Appellant. * Pursuant to California Rules of Court, rules 8.1100 and 8.1110,this opinionis certified for publication with the exception ofparts I through IV of the Discussion. EdmundG. Brown,Jr., Attorney General, Dane R. Gillette, ChiefAssistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Rodrigo Caballero appeals from the judgment entered following his conviction by jury of three counts of willful, deliberate, and premeditated attempted murder, with findings that he personally and intentionally discharged a firearm,inflicted ‘great bodily injury upon one victim, and committed the crimes for the benefit of a criminal street gang. (Pen. Code, §§ 664/187, subd. (a), 664, subd. (a), 12022.53, subds. (b)-(d), 186.22, subd. (b)(1)(C).)' He was sentenced to 110 yearsto life in state prison. Caballero contends: (1) he was mentally incompetent to waive his right against self-incrimination; (2) the failure to conduct a competency hearing deprived him of due process; (3) he was denied effective assistance of counsel; (4) there was instructional error; and (5) his sentence constitutes cruel and unusual punishment. In the published portion of the opinion, we conclude his sentence passes constitutional muster. In the unpublished portion, we reject the remainder of defendant’s claims. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The Pretrial Proceedings On June 8, 2007, a petition pursuant to Welfare and Institutions Code section 602 wasfiled against defendant, charging him with three counts of willful, deliberate, and premeditated attempted murder and three counts of assault with a semi-automatic firearm. (§ 245, subd. (b).) The petition also contained gang and firearm allegations. The alleged } All further undesignated statutory references are to the Penal Code. incident took place twodays earlier, on June 6. Althoughthe record does not include the complete juvenile court file, we are able to determine from the register of actions page that on August 22, 2007, counsel for the parties and the court declared a doubtas to defendant’s mental competenceto proceed. Reports pursuant to Evidence Codesection 730 were ordered. Defendant was examined by two psychologists, Drs. Raymond Anderson and Haig Kojian. Dr. Anderson opined that defendant had “Schizophrenia, Paranoid Type,” which caused him to be delusional. He concluded that defendant was incapable of cooperating with counsel, although he appeared “to be a rather intelligent minor who has chronically worked belowhis potential becauseofhis disorder or the precursors of his disorder.” Dr. Kojian was asked to determine whether defendant was competent to makethe decision to waive his fitness hearing.” He foundthat defendant wasnot. Dr. Kojian concludedhis report by writing, “Should an opinion regarding competenceto standtrial in general be required, I would like to receiveall of the prior evaluations, I would like to interview the minor again especially if he is placed on medication, and I would also like to receive the juvenile hall mental health record.” On November 29, 2007, based on the reports and the stipulation of counsel, the juvenile court found defendant mentally incompetent and criminal proceedings were suspended. At some point, the court ordered that defendant be reevaluated.> On June 25, 2008, Dr. Kojian reinterviewed defendant. Defendant told him that he was taking anti- psychotic medication and was no longer hearing voices as he hadin the past.. Defendant reportedhe was currently housed in general population. Dr. Kojian confirmed defendant had been given Risperdalto treat his schizophrenia. Dr. Kojian concluded that through the use of medication, defendant had regained competencyto standtrial. ? A fitness hearing determines whether a minor 16 years or older should remain in the juvenile justice system or havehis or her case adjudicatedin adult court. 3 According to one ofthe doctors who performedthelater evaluation, Dr. Joseph Simpson, the court order requesting that he evaluate defendant was dated June 17, 2008. On July 11, 2008, Dr. Joseph Simpson spoke to defendant. Defendant told - Dr. Simpsonthat he began experiencing auditory hallucinations shortly after his arrest in June 2007. He said he wascurrently taking Risperdal and the hallucinations had ceased. Defendant understood it was important to proceed with the fitness hearing, as the sentence in juvenile court would be less punitive. Dr. Simpson determined that defendant’s schizophrenia was being successfully treated with medication and concluded defendant was competentto standtrial. According to the register of actions page, on July 23, 2008, counsel submitted on the experts’ reports and the court found defendant competent and reinstituted criminal proceedings. On November4, 2008, defendant was found unfit to remain in juvenile court and the petition was dismissed. A complaint wasfiled in adult court. A preliminary hearing was conducted, an information wasfiled, and trial commenced on May 28, 2009. The Prosecution’s Case On June 6, 2007, at about 1:25 p.m., 14-year-old Jesse Banuelos was walking home from school with friends Mark Johnson and Adrian Bautista. Banuelos noticed two individuals who he believed were friends of Bautista’s. Banuelos knew oneofthe friends was named Carlos. The five youths continued down the street together. - Banuelos and Johnson separated from the group to go to Johnson’s house. The other three continued to walk ahead ofBanuelosandstarted to turn the cornerat 37th Street and Sunstream. Banuelos saw a young Hispanic male appear. The male yelled out, “Lancas,” which Banuelos thought was the male’s gang’s name. Banuelos saw a black gun, heard three or four shots, and started running. He stopped to turn toward the area where he heard the gunshots. He saw someonefall to the ground. Banuelos returned to the corner after the shooting and realized it was Bautista who had fallen. Banuelos noticed that Bautista’s back was bleeding. Banuelossaid that Val Verde Park was a gang, and he believed Bautista was a member. He could not identify the person whofired the weapon. Mark Johnsontestified he was going home from schoolon the afternoon of June 6 in the company of Jesse Banuelos and Adrian Bautista. At somepoint, the group met up with twoorthree of Bautista’s friends. Bautista and his friends walked ahead. Johnson heard three or four gunshots and ran. Hereturned to the area where he hadlast seen Bautista and his friends and saw Bautista on the ground. He did not know where Bautista’s friends had gone. Johnson described the shooter as a male Hispanic. Johnson estimated the male wasa couple of years older than he was (Johnson was 14 at the time of the incident). He could not identify the shooter. Onthe day of the shooting, Carlos Vargas was in the company of Vincent Valle, Adrian Bautista, and two others. A male approached and began asking where they were from. The male yelled, “Lancas,” and Vargas responded by shouting, “Val Verde.” Vargas, Valle, and Bautista were members of the Val Verde Park gang and oneoftheir rivals was the Lancas gang. The male opened fire and Bautista was shot in the back. Although the shooter was approximately 20 feet away and Vargas had a clear view ofhim, the only description Vargas could provide attrial was that he was Hispanic and about 17 years old. Vargas denied that defendant looked familiar, that he knew defendant as “Dreamer,” and that he was acquainted with anyone inthe Lancasgang. After the incident, Vargas was interviewed by Detective Robert Gillis at the scene. Whenasked by the prosecutorifhe told the detective that he knew defendant andthat defendant had shot at him, Vargas claimed he did not remember. After further questioning, Vargas acknowledgedhetold the detective that before shooting Dreamergot out of the car and yelled, “Vario Lancas.” Vargas concededthat if he knew the identity of the shooter he would not say so because the gang code provides that a member does not snitch and snitches can be killed by other gang members. Vargas admitted and then denied that he selected defendant’s picture from a photographic lineup and informed Detective Gillis that defendant was the shooter. On cross-examination, he said defendant wasnotthe shooter. Adrian Bautista confirmed that he, Jesse Banuelos, and Mark Johnson were walking home from schoolon the afternoon of June 6, 2007. They met up with Carlos Vargas and Vincent Valle, whom Bautista knew to be membersof the Val Verde Park gang. Bautista said he was shot in the back and upper shoulder, but he did not know who shot him or where the shooter was located when he fired. He thought the shooter said “Lancas” before openingfire. Bautista was asked a series of questions about an interview conducted by Detective Gillis. He did not rememberlooking at a number ofphotographs and telling Detective Gillis that none of the individuals depicted was the person whofired the gun. Nor could herecall circling a photograph of a male and identifying him as the shooter or stating the shooter drove up in a blue or green Toyota Celica. Bautista acknowledged he was a memberofthe Val Verde Park gang and gang membersdonottestify. Vincent Valle stated that on June 6, 2007, he was with friends Carlos Vargas and Adrian Bautista and two others. Someone approached and shot towards the group. After Vargastold him the identity of the shooter, Valle realized that he recognized the shooter as someonehe knew whowasa friend of Valle’s sister. That person had been to his house once before. Valle identified defendant as the individual whofired the gun at the group when shown photographs by Detective Gillis and before the jury. On cross- examination, Valle conceded that when he wasinitially questioned by a deputy at the scene he said that he was unableto identify the shooter. Valle, who was a memberofthe Val Verde Park gangat the time ofthe shooting, said he got out of the gang a couple of weeksafter the incident. He was aware that gangs retaliate against people whotestify in court and expressed concernsfor his safety. On June 6, 2007, Los Angeles County Sheriff's Deputy Jason Jones was driving a patrol unit in the City ofPalmdale. At approximately 1:30 p.m., he was flagged down by several people. Deputy Jones stopped and got out of his vehicle. He was informedthat someone waslying on the grass in a nearby front yard. He walkedto the yard and observed Bautista face down on the lawn and bleeding from an injury to his back. The deputy lifted Bautista’s shirt and observed what appeared to be a bullet wound nearhis shoulder blade. Deputy Jones called for paramedics. While waiting for them to arrive, Deputy Jones spoketo several witnesses in the area, including Carlos Vargas, Vincent Valle, Jesse Banuelos, and Mark Johnson. Banuelossaid he saw a Hispanic male wearing black clothing emerge from an older model green Toyota Celica. The male approached Bautista and Vargas and asked them where they were from. The malesaid, “Lancas,” andstarted shooting. Johnsontold Deputy Jones substantially the same. The deputy searched the area and located five shell casings on the sidewalk. Detective Gillis is assigned to the Antelope Valley Gang Task Force and works exclusively with the Lancas gang. The primary activity of the gang is shooting members: from other gangs. Detective Gillis had investigated approximately 20 such incidents involving Lancasandtheir rivals. Hetestified to the predicate acts required by the Penal Codeto establish that Lancasis a criminal street gang. Aspart of his investigation into Bautista’s shooting, Detective Gillis interviewed defendant. Defendant admitted he was a memberofthe Lancas gang and had the moniker “Dreamer.” Detective Gillis opinedthat the shooting benefitted the Lancas gang. Oneofthe effects of committing a shooting in a neighborhoodis that residents becomeafraid to cooperate with police ortestify in court. Detective Gillis said he spoke to Carlos Vargas within a halfhour ofthe shooting. Vargastold him that Dreamer from Lancas was the shooter. Vargas said he had known Dreamerfor a couple of years. Hestated thatjust prior to the shooting Dreamer gotout of a car and yelled, “Vario Lancas.” In response, Vargas shouted, “Val Verde Park.” Detective Gillis showed Vargas a photographiclineup. Vargascircled a picture and said the person depicted was Dreamer, the shooter. Detective Gillis gave Adrian Bautista a series of photographsto look at. Bautista selected one photograph,that of defendant, and said, “[T]hat’s him. That’s the person who shot me.” The Defense Case Defendanttestified that on the afternoon of June 6, he was at 37th Street and Sunstream. When asked what he was doing, he replied, “I was straight trying to kill _ somebody.” He then denied he intendedto kill anyone, but admitted to shooting at the victims because they were his “enemies.” He said he wasable to determinethevictims were enemies because he asked them where they were from and they answered, “VVP,” the initials of the rival Val Verde Park gang. Defendant claimed that by shooting he “saved [his] hood. Lancas. West Side Lancas. That [was why he] shot at them.” Defendantrepeated that he did not intend to kill anyone, but shot to scare the group. He could not recall what he did prior to the shooting. DISCUSSION I. Defendant’s Trial Was Not Fundamentally Unfair Defendant contends his mentalillness renderedhistrial fundamentally unfair. He asserts he was incapableofintelligently waiving his right against self-incrimination and his counsel and the court erroneously failed to stop the proceedings to conduct a competency hearing. . Regarding defendant’s decisiontotestify, the court twice explained to him that he had a right to remain silent. On June 2, at the end of the court day, defendant’s attorney informed the court that he had not yet discussed with his client whether he would be testifying. The court stated: “Mr. Caballero, let me just explain something to you. You have an absolute right to remain silent. You have a Fifth Amendmentright against self-incrimination. You could sit there during trial and not utter a word. The jury will be instructed they are not to consider yoursilence in any way. That’s your right. On the other hand, if you want to waive and give up those rights, you can testify on behalf of yourself in this case. That’s your right as well, even — you know,youlisten to what yourattorney has to say. Take his advice. Butit’s ultimately your decision and your decision alone to make. So he willtalk to you today, and tomorrow morning I will address that issue again and you will have to tell me what you want to do. Do you understand that?” Defendantreplied, “Yes.” The next morning, after the prosecution hadcalledits last witness, the court soughtto ascertain whether defendant would be testifying. “[The Court]: [Counsel], have you had a chance to speak to yourclient about whether or not he wishesto testify or whetheror not he wishes to remain silent? “[Counsel]: I have, Your Honor. It’s his election to remain silent. “[The Court]: Is that correct, Mr. Caballero? “The Defendant: Um, no. “[The Court]: You wantto testify? “The Defendant: Yes. “(The Court]: All right. Let me explain a few things to you. Number one, you have a right to remainsilent in this case. You canjust sit there and not utter one word. I told you that yesterday. If you do remainsilent, I will instruct the jury they are notto consideryoursilence in any way. On the other hand, you could waive and give up your right to remain silent and you couldtestify on your own behalfin this case. Which one would youlike to do? “The Defendant: I want to do all of them. “[The Court]: Pardon me? “The Defendant: All of them. “[The Court]: What? You can’t do all of them. Which one do you wantto do? “The Defendant: Can you repeat what you said? “{The Court]: Do you wantto remain silent and not testify, or do you wantto testify? If you testify, that means that you are going to get up here like these other witnesses. You will be sworn totell the truth. Your attorney will ask you questions. Mr. Sherwood[the prosecutor] will then cross-examine you. Do you want to do that or do you wantto sit there and remain silent? “The Defendant: I wantto go upthere andtestify. “[The Court]: All right. So you waive and give up your right to remain silent? “The Defendant: Yes. “[The Court]: Okay. Very good.” Defendant points to the latter discussionwith the court and asserts, “[t]he record makesevident [he] didn’t understandhis rights, was confused, and didn’t have the mental acuity to make a knowing waiver.” Wedisagree. Defendant starts with the incorrect premise that the record establishes he was mentally incapacitated at the time oftrial. It is true that criminal proceedings were initially suspended due to defendant’s mental issues; however, two experts reexamined defendant and found his symptomshad abated through the use of medication. Defendant wasnolongersuffering from auditory hallucinations. He was deemedfit to proceed. There was no evidence that defendant’s mental condition had changedat the timeoftrial. At best, defendant has shown that he was confused by the court’s explanation of his Fifth Amendmentright to remainsilent as it related to his right to testify. Confusion does not equate to mental incompetency to stand trial. “A defendant is presumed competent unlessit is proved otherwise by a preponderance ofthe evidence. (§ 1369, subd.(f).)” (People v. Ramos (2004) 34 Cal.4th 494, 507.) No such evidence was presented at trial. Defendant argues that his counsel and the court were well aware ofhis history of schizophrenia and had an obligation to ensure that he understood his options. He accuses each offailing to meet that obligation. We are not persuaded. The transcript showsthat defendant knowingly waivedhis right against self-incrimination. His initial confusion notwithstanding, after being told he would be required to take an oath to tell the truth and — would be subjected to cross-examination by the prosecutor, defendant made it clear that he wantedtotestify. Next, defendantasserts that, “[i]f evidence of incompetence wasn’t apparent before [he] testified, ample proof existed later.” He observes that when hetestified he suffered from memory lapses, could not articulate his intent at the time of the shooting, and offered such a complete on-the-stand confession that he established he was an incompetentindividual incapable of assisting in his defense. Thus, he contends, in combination with the experts’ prior diagnosis of schizophrenia, his performance on the 10 stand provided substantial evidence that he was mentally incompetent and a competency hearing should have been held. “If a defendant presents substantial evidence ofhis lack of competenceandis unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue.” (People v. Ramos, supra, 34 Cal.4th at p. 507.) “‘There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiryto determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.’” (People v. Ary (2004) 118 Cal.App.4th 1016, 1024, quoting Drope v. Missouri (1975) 420 U.S. 162, 180.) “Ifa defendant presents merely ‘a litany of facts, none of which actually related to his competenceat the time [of trial] to understand the nature of that proceeding or to rationally assist his counsel at that proceeding,’ the evidence will be inadequate to support holding a competency hearing. [Citation.] In other words, a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant canassist his defense counsel.” (People v. Ramos, supra, 34 Cal.4th 508.) Defendantrelies heavily on the experts’ prior diagnosis that he was unable to assist in his defense in a rational manner. However, as we have discussed, those opinions were later changed after defendant was provided with the proper medication. Moreover, at the time he was declared incompetent, defendant experienced specific symptoms— auditory hallucinations. There is nothing in the record remotely demonstratingthat a recurrence of those symptoms developed during trial. Nor is there any evidence that defendant’s mental condition had deteriorated in any other manner. Defendant suggeststhat his act ofconfessing to the crimes during his testimony provides substantial evidence of his incompetence. Not so. A defendant’s decision to take steps that do not appearto be in his or her best interests does not equate to a reason to doubt his or her ability to assist counsel in a rational manner. Indeed, an accused’s “preference for the death penalty and overall death wish does not alone amountto 1] substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric evaluation.” (People v. Ramos, supra, 34 Cal.4th at p. 509.) Without more, defendant’s act of admitting culpability did not constitute substantial evidence of his incompetence. Thus, another competency hearing was not required. If. Counsel Did Not Provide Ineffective Assistance Defendant faults trial counsel for failing: (1) to request a competency hearing; (2) to develop a defense based on defendant’s mentalillness; (3) to object to the introduction of prejudicial evidence; and (4) to request appropriate instructions. We examinehis claims in turn. Defendant chides counsel for not requesting a competency hearing. His criticism is unwarranted. He implies there was no harm in requesting such a hearing when he argues a “competency hearing would havehalted the superiorcourttrial or sentencing.” Heignores the fact that a court shall order a competency hearing when “counsel informs the court that he or she believes the defendant is or may be mentally incompetent.” (§ 1368, subd. (b).) Defendant points to nothing that occurred after hewas declaredfit to face the charges (other than his testimony, which we have already discussed) that would have provided the substance for counsel’s belief that defendant was incompetentat the time oftrial. | Defendant complains that any competent attorney would have examinedthefile and discovered he was diagnosed with schizophreniapriorto trial. From this premise, defendant leaps to the conclusion that he must have suffered from that condition at the time ofthe shooting and that further investigation into his condition would have yielded a ~ defense to the charge ofpremeditated attempted murder. Weare not persuaded. “Criminaltrial counsel have no blanket obligation to investigate possible ‘mental’ defenses, even in a capital case.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1244, supersededbystatute on anothergroundasstated in Jn re Steele (2004) 32 Cal.4th 682, 691.) Before counsel can be found to have conducted an inadequate investigation into a mental defense, there mustbe “initial facts known to counsel from which he reasonably 12 should have suspected that a meritorious defense was available.” (People v. Gonzalez, supra, 51 Cal.3d at p. 1244.) The record discloses no such facts here. As defendant concedes, the first expert’s examination was conducted on September 27, almost four monthsafter the shooting. Moreto the point, neither expert gave any indication that defendant’s condition affected his ability to form the intent to kill or to premeditate. Dr. Anderson stated that defendant’s delusional beliefs caused him to be “willing to believe that anyone is working assiduously against him if they show the slightest deviation from his (often delusional) expectations.” This condition madeit difficult for defendant to cooperate with his attorney. Dr. Kojian found defendant was not “acutely psychotic or irrational.” Nonetheless, his paranoia caused him to believehis attorney was working against him andled to his inability to cooperate with counsel to discuss defensestrategy. Significantly, defendant told Dr. Simpson that he began suffering auditory hallucinations shortly after being arrested for the shooting. On these facts, counsel had no reason to suspect that defendant’s mental issues, which resulted only in his inability to cooperate with a prior attorney, could lead to a defense to the shooting. In any event, even assuming counsel’s representation fell below the professional ocstandard, reversal is not required unless defendant“‘suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.’” (People v. Gray (2005) 37 Cal.4th 168, 207.) Defendant claims the jury might have found the premeditation allegation not true had the appropriate defense been developed. His contention is belied by the testimonyattrial. The prosecution witnesses said the shooter approached them and loudly announced his gangaffiliation, Lancas. Vargas responded by shouting the nameofhis gang, the rival Val Verde Park gang. His retort was immediately followed byat least five _ Shots (Deputy Jones recovered five shell casings). The evidence clearly demonstrated that the shooter knew the gangaffiliation of his targets, emerged on the scene with the meansto do them harm,andfired multiple times at close rangeto carry outhis plan. Defendant’s testimony confirmedthat he reflected prior to acting when he admitted he 13 selected his victims because they were “enemies” and shot at them in orderto “savef[] [his] hood. Lancas.” As there is no reasonable probability that the result would have been different absent counsel’s alleged error, defendant cannot establish prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Defendant contends counsel wasineffective for failing to object to the admission of certain evidence. He provides two examples. In the first, Detective Gillis was opining that defendant was a Lancas gang member. In explaining his conclusion,he said “that the defendant yelled out ‘Lancas’ before he committed the shooting.” Defendant urges that competent counsel would have objected to Detective Gillis’s statement identifying defendantas the shooter. In the second, Detective Gillis testified about an incident that occurred six monthspriorto the instant offense. He stopped defendant’s brother, who goes by the moniker “Little Dreamer,” and the brother pulled a gun andtossed it on the ground. Defendant urges the evidence wasirrelevant and prejudicial. | Assuming counsel had nojustification for failing to object, defendant cannot establish prejudice. In an attempt to avoid the effect of his testimony, defendant argues he had notyet testified when Detective Gillis’s evidence was received and the identity of the shooter wasstill at issue. Defendant offers no authority in support of his implicit claim that we examinethe effect of counsel’s error at the momentit occurred. To the contrary, we determine prejudice by examiningall ofthe evidence presented. (See People v. Montoya (2007) 149 Cal.App.4th 1139, 1152 [court found it highly unlikely a different result would have occurred absent counsel’s deficient performance “[b]ased on the totality of the evidence”’].) Contrary to defendant’s belief, we find the prosecution’s evidence establishing his identity as the shooter compelling. Two witnesses identified . him (one at the scene) and recantedattrial after conceding that as gang members they faced reprisals if they testified against another gang member. Anotheridentified defendant in a photographic lineup and in the courtroom. When weadd defendant’s 14 admission to the mix,it is clear the result would not have been altered had Detective Gillis’s testimony not been heard.‘ Finally, defendantcriticizes counselfor failing to request instructions on lesser included offenses. He notes that counsel“hinted that ‘additional instructions’ would be provided,but none appears of record and nonewere offered,” andasserts, “[t]his was error andit was prejudicial.” (Internal record citations omitted.) Defendant does not hint at whatinstructions counsel should have requested. On this point he offers no legal argumentor authority in support and we maytreatit as forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Ill. The Court Had No Sua Sponte Duty to Instruct on Lesser Offenses Defendantasserts the trial court had a duty to instruct on the lesser crimesof - attempted voluntary manslaughter andassault. Wedisagree. Initially, the claim is forfeited as defendant has providedneither argument nor authority to support it. As to the necessity of the attempted voluntary manslaughter instruction, he simply points to his testimony thathe lackedthe intent to kill the group at whom he aimed andoffers no argument as to whythis evidence is relevant. He mentions the “heat ofpassion defense might lie becausewitnesses claimed competing gang slogans were exchanged before shots werefired.” He does not explain whythis snippet of evidence wassufficient to require thetrial court to instruct on lesser crimes. In any event, on the merits, his contention fails. “[A] trial court must instruct a criminal jury on any lesser offense “necessarily included’ in the charged offense,ifthere is substantial evidence that only the lesser crime. was committed.” (People v. Birks (1998) 19 Cal.4th 108, 112.) “When relying on heat of passionasa partial defense to the crime of attempted murder, both provocation and heat ofpassion must be demonstrated.” (People v. Gutierrez (2003) 112 Cal.App.4th 4 Defendant suggests the lack of an appropriate objection “may have impelled [him] to take the stand to coverfor his counsel’s failureto exclude the evidence.” We reject this speculative claim that is unsupported by the record. - 15 704, 709.) Thus,-the bare fact defendant claimed that he lacked the intent to kill is not sufficient evidence to impose a sua sponte duty onthetrial court to instruct on attempted voluntary manslaughter. Because there was no substantial evidenceofeither provocation or heat of passion, and defendant does not attempt to demonstrate otherwise, the court did not err by not instructing on the lesser offense of attempted voluntary manslaughter. (Ud. at p. 710.) Asto the necessity for an instruction on assault with a firearm, that crime is not a lesser included offense of attempted murder. (People v. Parks (2004) 118 Cal.App.4th 1, 6.) To the extent defendant urges the court had an obligation to instruct on the lesser related offense of assault, that is no longer the law. (People v. Birks, supra, 19 Cal.4th 108.) IV. The Court Did Not Err by Giving the Flight Instruction The court gavethe jury the flight instruction contained in CALCRIM No.372.° Defendant’s claim this was improperis unavailing. . “In general, a flight instruction ‘is proper where the evidence showsthat the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousnessofguilt.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Although defendantasserts there “was no testimony [he] acted with the purpose of avoiding observationorarrest,” “[t]o obtain the instruction, the prosecution need not prove the defendantin fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 328.) The evidence supported such a finding and inference. Defendant arrived at the scene in a vehicle. Immediately uponfiring at the victims in broad daylight on a city 5 Theinstruction reads: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware ofhis guilt. If you conclude that the defendantfled ortried to flee, itis up to you to decide the meaning and. importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt byitself.” ~ 16 street, he fled from the site. Deputies arrived at the location ofthe shooting roughly five minutes after it occurred. The jury could reasonably infer that defendant beat a hasty retreat in order to avoid being arrested. The instruction was appropriate. V. Defendant’s Sentence Is Not Unconstitutional Atoral argument, for the first time on appeal; defendantcited the high court’s opinion in Graham v. Florida (2010) __ USS. ___, 130 S.Ct. 2011 (Graham), and asserted that it required a remandofthe case for resentencing. We gave the Attorney General an opportunity to briefthe matter and defendant the optionto file a reply. Both parties submitted a brief. In Graham, a 16-year-old pled guilty to armed burglary with assault or battery, a felony that carried a maximum penalty oflife imprisonment, and attempted armed robbery, a felony that carried a maximum penalty of15 years in prison. The court withheld adjudication ofguilt as to both charges and placed Graham on probation for a three-year term. (Graham, supra, 130 S.Ct. at p. 2018.) Less than six months later, Graham wasarrestedfor participating ina series ofrobberies. Thetrial court found Graham guilty of the earlier burglary and robbery charges and imposed the maximum sentence for both crimes. Because Florida did not have a parole system, Graham’slife sentence was without the possibility of parole. (dd. at pp. 2019-2020.) The Supreme Court reversed the judgmentofthe Florida court, holding that the Eighth Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” (/d. at p. 2034.) Defendantargues, “Graham held that the Eighth Amendment must give juveniles convicted of nonhomicide crimes some chance ofrelease based on rehabilitation. [His] sentence of three consecutivelife terms is therefore unconstitutional because [he] is denied any ‘meaningful’ change ofrelease and cannot earn good conduct/workcredits to mitigate his sentence.” We disagree that Graham applies to individuals in defendant’s position. 17 The Graham court applied a categorical rule that implicated “a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” (Graham, supra, 130 S.Ct. at pp. 2022-2023.) As the Attorney General points out, the court specifically limited the scope ofits decision. The court defined the class of offenders with which it was dealing thusly: “The instant case concerns only those juvenile offenders sentencedto life without parole solely for a nonhomicide offense.” | (Ud. at p. 2023.) In the present case, defendant’s sentence was a term of years (110) to life, notlife without the possibility of parole, and no language in Graham suggests that the case applies to such a sentence. If the court had intended to broadenthe class of offenders within the scope ofits decision, it would havestated that the case concerns any juvenile offender who receives the functional equivalent of a life sentence without the possibility ofparole for a nonhomicide offense. But as Justice Alito observedin his dissent, “[n]othing in the Court’s opinion affects the imposition of a sentence to a term of years without the possibility of parole.” (/d. at p. 2058 [dis. opn. of Alito, J.]; accord People v. Mendez (2010) 188 Cal.App.4th 47, 63 (Mendez) [Graham’s holdingis limited to juveniles actually sentencedto life without thepossibility ofparole].) Thus, Graham provides defendantno basis forrelief. Although not cited by defendant, the Attorney General addressed the holding of Mendez, a case authored by our colleagues in Division Two. Mendez was 16 years old when he committed offenses that led to his conviction of one count of carjacking, one count of assault with a firearm, and seven counts of second degree robbery, with findings that he used a firearm during the commission of the offenses and that the crimes were carried out with the intent to benefit a criminal street gang. He was sentencedto state prison for 84 yearsto life. On appeal, Mendez claimed that his sentenceis a de facto life without the possibility ofparole sentence because, due to the length of his sentence (84 years), he ~~ will not be eligible for parole during his lifetime. Although the court found that “Graham expressly limited its holding to juveniles actually sentenced to [life without parole]’’ (Mendez, supra, 188 Cal.App.4th at p. 63), it noted the Supreme Court did “require that a 18 State ‘must’ give a juvenile ‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”” (Jbid., quoting Graham, supra, 130 S.Ct. at p. 2030.) The Mendez panel acknowledged Grahamstated that some juveniles who comunit certain crimes mayturn out to be deservingof incarceration for the rest oftheir lives. It noted, however, the Supreme Court also found that sucha determination could not be madeat the outset because it denies the juvenile offender an opportunity to show he or she has learned from past mistakes. (Mendez, supra,at p. 64.) Observing that the trial court found that Mendez deserved the sentence he received, the Mendez court stated: “The trial court may turn outto be correct in its implied assessment that Mendezis a sociopath, or at the very least that Mendez should be separated from society for the duration ofhis life, but Graham makesclear that a sentence based on such a judgmentat the outset is unconstitutional.” (/bid.)® The case was remandedto thetrial court for a new sentencing hearing. We disagree with the Mendez court’s conclusion that Graham applies to the issue presented. Mendez correctly finds that Graham is expressly limited to those cases where a juvenile offender actually receives a sentenceoflife without the possibility of parole for a nonhomicide offense. The court then relies on languagein the opinion and determines - that the case applies to a term-of-years sentencethathas the sameeffectasa life sentence without the possibility of parole. Wedecline to follow Mendez’s holdingthat the principles stated in Graham bar a court from sentencing a juvenile offender to a term-of-years sentence that exceeds his or herlife expectancy. Under our sentencing rules, there are only two ways ajuvenile defendant can receive such a sentence. Oneis to commit crimes against multiple victims during separate incidents and the otheris to commit certain enumerated offenses, 6 The court also concluded, independent of Graham, that Mendez’s sentence was grossly disproportionate to his crimes and culpability and constituted cruel and unusual punishment. (/d. at pp. 64-68.) 19 discharge a gun, andinflict great bodily injury upon at least two victims.’ Following Mendez’s reasoning, an individual whoshot and severely injured any numberofvictims during separate attempts ontheir lives could not receive a term commensurate with his or her crimesif all the victims had the good fortune to survive their wounds, because the sentence would exceedthe perpetrator’s life expectancy. Graham does not purport to compel such a result. Otherwise, there would have been no reason for the court to write, “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. The Eighth Amendmentdoes not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behindbarsfor life.” (Graham, supra, 130 S.Ct. at p. 2030.) The only way to make sense of the caveat that comesin the next sentence, that states are forbidden “from making the judgmentat the outset that those offenders neverwill be fit to reenter society” (ibid.), is by concluding the court intended that no juvenile receive a sentence that by its own terms would bar parole. In other words, the court was referring to a sentence oflife without the possibility of parole. That is not our case. Defendant’s sentence resulted from his intentionally discharging a firearm during an attemptto kill three individuals, leading to the infliction of great bodily injury upon one of them. Nothing in Graham renders the punishmentconstitutionally infirm. As defendant does not claim his sentence was unconstitutional by any other measure, we need go no further. His sentence will not be disturbed. 7 One gang-related attempted willful, deliberate, and premeditated murder committed by discharging a firearm and resulting in great bodily injury.to the victim wouldresult in a sentence of 40 years to life, a term that could be completed within the lifetime of a youthful offender. ~ 20 DISPOSITION - The judgmentis affirmed.® CERTIFIED FOR PARTIAL PUBLICATION SUZUKAWA,J. Weconcur: EPSTEIN,P.J. WILLHITE,J. 8 Defendant filed a concurrent petition for writ of habeas corpus alleging the same failings of counsel as thosepresented in the direct appeal. As we have concluded counsel . wasnot ineffective in some instances and defendant was unable to demonstrate he was prejudiced by. counsel’s alleged errors in the others, his petition is denied.- 21 SB 399 was introduced in the California Senate on February 26, 2009 and defeated August 31, 2010. It would have amended Penal Code § 1170 to provide: (e) (1) When a defendant who was under 18 years ofage at the time of the commission of the offense for which the defendant was sentenced to imprisonmentfor life without the possibility ofparole has been committed to the custody of the Department of Corrections and Rehabilitation, the secretary of the department or the Board of Parole Hearings shall review the case no later than 90 days before the time that the defendant has served 10 years to determine if the defendantsatisfies three or more ofthe criteria set forth in paragraph (2). The secretary or the board shall consider any documentation relevant to that determination, including documentation presented by the defendant, and shall issue written findings not later than 90 days after the date ofreview. (2) If the secretary or the board finds, based on a preponderanceof the evidence, that the defendantsatisfies three or more ofthe followingcriteria, thatfinding shall be forwarded to the sentencing court, which shall conduct a hearing as specified in paragraph (3): (A) The defendant was convicted pursuant to felony murderor aiding and abetting murderprovisions oflaw. (B) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall. (C) The defendant committed the offense with at least one adult codefendant. (D) Prior to the offense for which the sentence is being considered for recall, the defendant had insufficient adult support or supervision and had sufferedfrom psychologicalorphysical trauma,or significantstress. (E) The defendant suffers from cognitive limitations due to mentalillness, developmental disabilities, or otherfactors that did not constitute a defense, but influencedthe defendant's involvementin the offense. (F) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limitedto, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or taking action that demonstrates the presence ofremorse. (G) The defendant has maintained family ties or connections with others through letter writing, calls, or visits, or has eliminated contact with individuals outside ofprison who are currently involved with crime. (H) The defendant has hadno violent disciplinary violationsin the lastfive years in which the defendant was determined to be the aggressor. (3) The court shall have the discretion to recall the sentence and commitment previously ordered and to resentence the defendant in the same manneras ifthe defendant had not previously been sentenced, providedthat the new sentence, if any, is not greater than the initial sentence. The discretion of the court shall be exercised in consideration of the criteria in paragraph (2). Victims, or victim family membersifthe victim is deceased, shall be notified of the resentencing hearing and shall retain their rights to participate in the hearing. (4) Ifthe sentence is not recalled, the board shall make the determination mandated by subdivision (a) again when the defendant has been committed to the custody of the department for 15 years, 20 years, and 24 years. The final review shall be during the 24th yearofthe defendant's sentence. (5) In addition to the criteria in paragraph (2), the court may consider any other criteria that the court deems relevant to its decision, so long as the court identifies them on the record, provides a statement of reasons for adopting them, and states why the defendant does or does not Satisfy the criteria. (6) This subdivision shall have retroactive application. Legislative Counsel’s Digest PROOF OF SERVICE CALIFORNIA, COUNTY OF LOS ANGELES Tam employed in the County of Los Angeles, State of California. I am overthe age of 18 and nota party to the within action. My business address is 11355 W. Olympic Boulevard, Suite 300, Los Angeles, California 90064. On the date set forth below, I caused the document(s) described as PETITION FOR REVIEW to be servedoninterested parties in this action as follows: State Attorney General Clerk Superior Court 300 Spring St. 42011 4° St. West North Tower, Suite 1701 Lancaster, CA 93534 Los Angeles, CA 90012 Clerk of Court of Appeal Office of the District Attorney 300 S. Spring Street, Fl 2 42011 4th Street West North Tower Lancaster, CA 93534 Los Angeles, CA 90013-1213 Rodrigo Caballero High Desert State Prison CDC G68431D214UP P.O. Box 3030 Susanville, CA 96127 [X]_ BY MAIL-I caused such envelope(s) to be deposited in the mail at Los Angeles, California, with first class postage thereon fully prepaid. I am readily familiar with the businesspractice for collection and processing of correspondence for mailing. Underthat practice, it is deposited with the United States Postal Service on that same day, at Los Angeles, California, in the ordinary course of business. I am awarethat on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one (1) dayafter the date of deposit for mailing in affidavit. [X] STATE I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on February 22, 2011, at Los Angeles, California. Ors. dil Jfanita Teall
