PEOPLE v. CABALLERORespondent's Answer Brief on the MeritsCal.August 11, 2011In the Supreme Couwt of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. RODRIGO CABALLERO, Defendant and Appellant. Case No. 8190647 SUPREA Pie hE COURT regsa ce AUG 1 1 201 Frederick K. Oner SecondAppellate District, Division Four, Case No. B217709 Los Angeles County Superior Court, Case No. MA043902 The Honorable Hayden Zacky, Judge ANSWERBRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California . DANER. GILLETTE Chief Assistant Attorney General PAMELA C, HAMANAKA Senior Assistant Attorney General JAIME L. FUSTER ; Deputy Attorney General LAWRENCEM.DANIELS Supervising Deputy Attorney General State Bar No. 183901 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-2288 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Respondent Deouly CHO & .25(b) TABLE OF CONTENTS Page Issue Presented...cece esseeeseeeeseceseseseeseansseeeesseessssessuensassesseesseessseesesesenes 1 TmtrOduction......c ce ccceeeceeeceeeseeceeneecsseeneeeeseeesseessaeecsnessneesseesesesessessseeesseesessetogs 1 Statement of the Case...secaecanesececeneeaeseausaeetsastaeteneeeeneeenseeveeeeeeeteatees 1 Summary Of Argument .........ceceese reneeeeneeeeaes ts ceeeeveeseecsesessenssesiasaenses 6 ASLQUMENL 0... eeeeceeeeenecesnececeeneeeteseersneeeeeeatesesssesssuaeeesuserseseeeesesseaesseacensaeeenes 7 Appellant’s sentence is not cruel and unusual............ccceeeseeseeesenes 7 A. Graham V. FIOVIAG..ccccsccscccestcesteeseneseneensescnneenenteeneees 8 B. The Graham rule does not apply to attempted murderor to specific term-of-years sentences.......... 13 C. Cumulative sentencing does not implicate Graham or the Eighth Amendment...eee 19 D. No new categorical Eighth Amendment prohibition is warranted...cee eeeeeseteseeseeeneetees 25 COmncClUSION 00... cecceeessccssesseceeeneceseceeeneeecaeeseeeseeeenseseneeesessssasrsessescsessseeeaeeegs 39 TABLE OF AUTHORITIES Page CASES Alvarez v. State (Fla. 1978) 358 S0.2d 10... cesesssescesesesessecseseesseeeseseeesneneseeseneess 17 Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] oo...eee 17 Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335]..... 10, 27, 29 Close v. People (Colo. 2002) 48 P.3d 528 occceceseeeseeseceeseesseenesereneseseees 21, 22 Coker v. Georgia (1977) 433 U.S. 584 [97 S.Ct. 2861, 53 L.Ed.2d 982]... 14 Duquette v. Warden, New Hampshire State Prison (N.H. 2007) 919 A.2d 767 occecccesteseeceeeeseeseeeeneecerserteeretieneetaetens 28 Foster-Gardner v. National Union Fire Insurance Company (1998) 18 Cal.4th 857 oescnsesesesserseerscsseeseesaesneeseseseresteess 18 Graham v. Florida (2010) 130 S.Ct. 2011 [176 L.Ed.2d 825] oo... eceeeeeteeneteees passim Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859]eee 26 Harmelin v. Michigan (1991) 501 U.S. 957 | [111 S.Ct. 2680, 115 L.Ed.2d 836] 0... eeeeseeeeeereeees 9,11, 16, 37 _ Hawkins v. Hargett (10th Cir. 1999) 200 F.3d 1279... cceseseeeeeseneeteeseteeeeretetersenenetens 21 Inre Adams | (1975) 14 Cal.3d 629...essen eeeesersessesesescseresseceessesssesenees 22, 23 il In re Christie (2001) 92 Cal.App.4th 1105.cccccccsscscssssssssvssesssusssssssesssssssseesseiee 17 In re Jovan B. (1993) 6 Cal4th 801 oe.seevsuuscesseusaessasesceesaesacessansatersonsenseenees 17 In re Lynch (1972) 8 Cal.3d 410 ...ccccccscccsccsesesessscsescsseeessececaceaeeseerseseeetsessessenees 24 Kennedy v. Louisiana (2008) 554 U.S. 407 [128 S.Ct. 2641, 171 L.Ed.2d 525]... 10, 14 Legare v. State (S.C. 1998) 509 S.E.2d 472.0... cecccccenesseetsereeereesneeerseeeseeseseesaeseneses 28 Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144]....... 20, 21, 24 Loper v. Shillinger (Wyo. 1989) 772 P.2d 552 oeee eeteeesdeveeseaeueseesesseseseeseeeeaeeetenaees 28 Manuel v. State (Fla.App. 2010) 48 S0.3d 94ooceceects teeeseersesseesseenseseeeeseens 14 March v. Alabama (1946) 326 U.S. 501 [66 S.Ct. 276, 90 L.Ed. 265] oeeects 17) Miller v. State (Ala.Crim.App., Aug. 27, 2010) —_ $0.3d [2010 WL 3377692)...eeeceeseeeseseeseerseneeseesenes 37 O'Neil v. Vermont (1892) 144 U.S. 323 [12 S.Ct. 693, 36 L.Ed.2d 693]ee 20, 24 Oregon v. Ice (2009) 555 U.S. 160 [129 S.Ct. 711, 172 L.Ed.2d 517] oo... 21 Pearson v. Ramos (7th Cir. 2001) 237 F.3d 881oesceettcertesesseeseeseaeeenees 21, 22, 24 People v. Albillar (2010) 51 Cal.4th 47 oeeeeseeeecneeseeseesssensersesseessseseeesseesesstentes 31 People v. Cartwright (1995) 39 CalApp.4th 1123oceeeeeseeseeneereeenseensessesseeseeeseees 23 ill People v. Garcia (2002) 28Cal.4th 1166 oo.eeseeeteccesecseeneceeeeneeseseenesneeeseses 32 People v. Haller (2009) 174 Cal.App.4th 1080...ceeeeeeeteessseessereeeeseeseeeneeenes 24 People v. Keogh (1975) 46 Cal.App.3d 919...eee eeseeeesneceeseeseesesssesessesessenseenes 23, 24 People v. King (1993) 16 CalApp.4th 567... eeceesereessessessssseessssserseneessessesencees 26 People v. Leon (2010) 181 Cal.App.4th 452.0.eccceceeseceesecseeseecseeeeneserenserees 23 People v. Mendez ; (2010) 188 Cal.App.4th 47.ceceecrcenceeeeeeeseeseeeeenenees 16, 38 People v. Mitchell (2001) 26 Cal4th 181 oeesccccccsssesseessseeceeenesneneeneeeseseneenrenees 4 People v. Mungia (2008) 44 Cal.4th 1101eeccsecssseesscseeeressesestesteseeseeeseeeneeeey 36 People v. Oates (2004) 32 Cal.4th 1048 oesecesetereseseeteereesseeneesseessessesnnens 32 People v. Palacios (2007) 41 Cal4th 720 oo... eeccsceecsesesseeseecsscssseeessestessesseesnsernees 32 - People v. Retanan (2007) 154 CalApp.4th 1219. ccccsccceseeseeeeetseesessenseseeeeteeeeeey 23 People v. Scott (1994) 9 Cal.4th 331eeeeeeeececsersesseerecsesesseeseenesseensessessrserenes 37 People v. Smith (2005) 37 Cal4th 733 vec ceecisscesscessseesesseessecssessessessessseeessrenseesesseens 15 People v. Stowell (2003) 31 Cal.4th 1107 oo. eeeeesseesecnesesseesseensenssnsesesssesseeseseeeegs 38 People v. Sullivan (2007) 151 Cal.App.4th 524...cececeerseetesessseeeeeenecnseereesegs 23 iv People v. Tipton (1954) 124 Cal.App.2d 213occsecesetseecccereenserecneeeessersnesneeses 23 People v. White (1976) 16 Cal.3d 791i... ecieeeeeneeereene ener sensseteesesecnsecsseeeesteeseseessees 23 People v. Wingo (1965) 14 Cal.3d 169...cecersscsteeessesseeseesneessessessseateseeenswe 26 Rhode Island v. Innis . (1980) 446 U.S. 291 [100 S.Ct. 1682, 64 L.Ed.2d 297]...eee 17 Robbins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899... cceceesceseeeeessestereeseeesessessesssssesecsesesseeesseaees 17 Rooneyv. State (Ga. 2010) 690 S.E.2d 804ooceeseceeceeeetsccteessseseerseesesessseseenes 21 Roper v. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1]... passim Rummel v. Estelle (1980) 445 U.S. 263 [100 S.Ct. 1133, 63 L.Ed.2d 382]...ee 16 Smith v. State (Alaska App., July 11,2011)— P.3d__—_s [2011 WL 2650000]... 37 Stanford v. Kentucky (1989) 492 U.S. 361 [109 S.Ct. 2969, 106 L.Ed.2d 306] ....... eee 26 State v. August (lowa 1999) 589 N.W.2d 740 w..ccccccccsessecceeeeesersersesseeseesenesseeeserseens 21 State v. Berger (Ariz. 2006) 134 P.3d 378...eeecceceee tenes ceeenenenteneeeesseseneseene 21, 22 State v. Buchhold (S.D. 2007) 727 N.W.2d 816 oiecece eeseeeeseetseesseereseeteestsestenens 21 State v. Four Jars ofIntoxicating Liquor (Ver. 1886) 2 A. 586 oesecsesceeectstsecseseeesseessesecnesensesseceesecenags 20 State v. Hairston | (Ohio 2008) 888 N.E.2d 1073 ooo.eeeees tseeeeseeeeeereeeteeenees 21,22 State v. Tucker (Neb. 2001) 636 N.W.2d 853 oo. ceeeceseeeeeeseeserersseeseeteeesssessesseeeerseaes 27 Sumner v. Shuman (1967) 483 U.S. 66 [107 S.Ct. 2716, 97 L.Ed.2d 56] ........... 34, 35, 37 Thing v. La Chusa (1989) 48 Cal. 3d 644 ..cccccccccccscssssssvsesscccsesscscsvssssesesesersececeveveecereveenees 18 Thompson v. Oklahoma (1988) 487 USS. 815 [108 S.Ct. 2687, 101 L.Ed.2d 702] ..... 11, 27, 33 United States v. Aiello (2d Cir. 1988) 864 F.2d 257 oo.ececeeeseeeeneceseeteneerseteneesaeeessensneesnes 21 United States v. Hong (4th Cir. 2001) 242 F.3d 528...ccc cccscssccsssecseccseessesesetsreeeeseasenaes 21 United States v. Schell (10th Cir. 1982) 692 F.2d 672... eee ccecccsseseceteneeeteeeeeeseeesseeeneenes 21, 22 Welch v. State (Tex.App. 2011) 335 S.W.3d 376... ecceesesereeereereeceresestenseeeeatenees 37 Wilson v. Simms (Md.Ct. Spec. App. 2004) 849 A.2d 88 ooeeeseeereeneeeneereseennes 27 STATUTES 42 Pa. Cons. Stat. Ann, § 9721 .....ccccececccceccecessennaeeeeeeeenneesersnecnnaeeeees 28 18 U.S.C. § 3584... ccccececcssscssecensesseceseeccseseaeeeeneccaeeesaecnsecteseaesnaeeesateeges 27 Ala. Code, § L3A-4-2 ooo ccccsecseccneeeeneeeeecaneneeesneceeeeeaeesseeeeegerseesnenieesetesnaeersnes 28 § LBA-5-6 voecccccccccccetesssseceneeseceeeseeeseecareesaeesseeesuesesenaeseeeeessesseeenaeess 28 § 14-49 occccncccseeeeeeceeteseeeaeesneesenesreeeaeerseeesseseeesateeaeesseesnareeneeed 27 Alaska Stat. Ann., . . § 1255.1 25 iccesececcecseessecseseeseseaeeeeesseessateseeccaesesessaeeeaeesieessagerseess 28 SDS527ceccccscesecssscesseccseesseseatcescesteeceateseeseaeseeeeieceaeesseeteneenseees 27 Ariz. Rev. Stat. Ann, § 13-711 oo. eeccccsccceceesssnnnneeeesenseeeeeeseneceneeees 27 v1 Ark. Code Ann., § 5-3-2011 o.eeececccsscessessececcsrccseeseeecseeeeeeseeseeecaeceaecesessseseeeseaeeeneteeseates 28 § 5-3-2038 vocccccccccsssccssecsscesneeeseecseccseeecscnesesseesenseseeteneeseseeseetessarerentesss 28 § S-4AAOLccc eccccccsecceseccseeversesseeseeeeessesessesecseeseseseseesseecsetessaeesaeeees 28 § 5-4-4038 oo ccccccssccsscesseecseecsnecessecsneeeesseeesseecseeseresesecsieesetesenanensteses 27 § 16-90-1200 wo eececccccccsssesessseteeesseesaeecsecesscseseeeneceseesnrensreseate Westevens 28 Colo. Rev.Stat. Ann., § 18-1-408 ooo. ceccsseceteeecsneeeeesreestneeeersneeeeses 27 Conn. Gen.Stat. Ann., § 53a-37 oo eeeccceeeensceereeeeeeneeeeeenteeressaeseesatetens 27 D.C. Code, § 23-112 cecsssssssssvcsessssessecssssrsseesessessssssssssssseveesesceeesraseneneesee27 | Del. Code Ann.,tit. 11, § S31 iccecccsssessecessecsseeeeneecerscsseeceeccseeeesseaeeseeecresesesceneesieeesaceseeersneeens 29 § B901eeeeeeseeesccceteesssseeteceenereees ceveaeeseseeesseeceessaeeenseetsaeeteureneatenas 27 § 4209ee ecccecsccessseceseeesneesseeeetecseeeesneeeecaeseesseeseeecseesenarerieeeetaeeenneetseeed 29 Fla. Stat. Ann., § 921.16 0... ccccccccseessssseesssensnceeeseeseeseeeuieeseeeeseseeeneneas 27 Ga. Code Ann., § 6-4-6 oo eecccccccesssceneeseeseessecseessreseneesesseeeesneessresueeessaeessaeeessaeestesaees 29 § LOSa1 eee eccccstcecseccessecseeseneecsaecaseeseseeseaesesasesseseusssusesseeeeseeeasens 29 § LO-S-4 occ ccccccsseccnseeesseceseessseseseceeeeeeseaeessasecsaeceseeceaeesseseesetesteeseneess 29 § 16-11-1106 occccccsceeseeceseceseecececssaeseesasecsatesensnsecseaetessteressnese 29 § 17-10-10 oeceecsesecccssecessceseecsressneceesseeesensesseecseeessaeetaeseeaeeeeatereees 27 Haw.Rev.Stat., § S71 H-22..eeeeececcessseessecenscseecescesseessuecessseeesseeesseeenresseseseaaeseteeeseeeseaeens 14 § 706-656... ccccccescesseccsressrecsseecseessnseeeceeecesusessaeesnsessseesaeessaeeenses 14, 29 § 706-668.5ee.seeeuseuseusessuecseecsusevessecesssecessecsnseesseetsueesceerentesesees 27 Idaho Code Ann, § 18-308 .......ccccccccccccsssssseeeessneeeeeeesteeeesssnenatersenaes 27 Hl. Comp.Stat. Ann., ch. 730, 5/5-8-4 ooo ic eeseecceseeeseeseneeseeeseeeeeeenneenees 27 Ind. Code Ann., § 35-4 1-5-1ceeccsecsecccsecsseetseesseceenacecsaceesaeseneecsaeeseaeeeeneetsaeenaeeeaaes 29 § 35-50-12 ee ceecescessccseeesecsecesessecseeeeeseceseerseesseceneesrseseseatestereneeeates 27 § 35-50-2-4 oo eeesseeseceseesreeeeeseceaceseeaeeesaueeecaesacesessecnseeseaeeeseatessaeeas 29 § 35-S0-2-1 1 ie ecccceccsecesseessecceseeseeeseeeecseecesseeessesseseseeseneseesaeeeeesenees 29 Towa Code Ann, § 901.8 ....ccccceccsccsssseceeeeresseseeeeeeseseeeeesssseeeeseenaeeeenes 27 Kan.Stat. Ann., § 21-6606 0... cceccscsccecesessnececesscneeetecsenaeeseeeesnaeeeees 27 Vil Ky. Rev.Stat. Ann., § S32.110eeeeeeeeeeneeertesseesesessenesesaeeeesnees 27 La. Code Crim. Proc. Ann, art. 883 0... ccccccccceceeeeeeeeeeneeeeeve ueeeveseeeenss 27 Mass. Gen. Laws Ann., ch. 279, § 8....ccccccscccccssssseeceeseesesnneteceessereeeeeend 27 Me. Rev.Stat. Ann., tit. 17-A, § 1256.0... ecccccssecessrteeeeseeeerennneeeeeaees 27 Mich. Comp. Laws Ann., § 769.1R oeeeeesseesnseseneeeesstesseeeseneeeeseeeens 27 Minn. Stat. Ann, § 609.15... eccccseeeccessseeeeeesneeeeseeesesensetesentensaneetess 27 Miss. Code Ann, § 99-19-21... ciecccccccceenseeeereeseteeerestessaseeseesetaeeseereed 27 Mo.Stat. Ann., § SSB.0L] oeceecccccstccseceeseeceeneeeeeeeesseseeneesseesenerenaesessrersegeseaatoeatees 29 § 558.026 ooo. eecccccscscesscceeneessseeeeseeeseneeeaeecseeeeeaecenseeseeeesetaeeeneeseaesenaes 27 § 565.02] i escccccsccssecesssccseseeceseessreesseeesseecensecseetsuanerseesesnecesieeesnaes 29 § 565.050ce cccsccccssessesscesseeessrseesseccssseeseesereesseeeeaeeeesaesenseseceeenaters 29 Mont. Code Ann., § 45-4-103 oo cecccceseeceeeseesneeeessesesaeesaeeeceeeteesesneeesaeeeteeaeseaeeesseeenaeees 29 § 45-5-102 ....... seusucvaceescaesssceaeeucevsvsnsuccesennedsesesseeeeseetsuseseaaeceseesseneesenss 29 § 46-18-40 ooo ccsceescescsceesseeeseeeeeseeeseseceseeesaeeessaeeeeentersneesenseenease 27 N.C. Gen.Stat.Ann., § 1SA-1354ecceeeee see ceeeeerreereeeenereraetnneeeas 28 N.D. Cent. Code Ann., § 12.1-32-11eeedavvessessecececeesessucueuans 28 N.J. Stat. Ann., § 2C:44-5occcccccseecsterecseseecssneeeeesaneceseeseseeennerensnaees 28 N.M.Stat. Ann., § 33-2-39 oi ccccccccctecceteecessesecsensesesecaseeeeeseeetsecaeeeeeaes 28 N.Y. Penal Law, § 70.25 ..eccssccssssccsssceessecesecsesneessnsecsssescsessssecesresensecessaescesceseeaneesieeensese 28. § 70.30 ...ececcccesssccesscessncecsnecesnrsessnsessseesaecesseeeeneccereseeaeeeeenaetenaeentieeeness 28 Nev.Rev.Stat. Arnn., § 176.035 oo... eeeccecsseccssneetesneeeeeeeseneeeesaneeeeenanes 28 Ohio Rev. Code Ann., § 2929.14 ve ccscceseeseeetessesesesenenenensesseneneeesessasesieesseesensceeeresieasaees 28 § 2929.41 oe eccccccssecsnseecsecessssecssecessessteeeesteesses vevsaeeeceesaneesesseeeeseaeees 28 Okla. Stat. Ann, tit, 22, § 976 veccccsccssecsscsssecesssessessesessuesssessesseresseesesseven 28 Or. Rev. Stat. Ann., § 137.370 .......ccccecscccsesssccsesecesesseeeesensseeseenseesessaeeees 28 Vill Pen. Code, SBT vcccccccsccscsesceseeseesceeeeetenseceeenseessessssessersesseseseesenesseeeseesaenesserecesetaes 10 S LRO.2QD ceccccccccesseecsecseneeeceeetensessesssscsecserassessenssseessesseneseenerereesesesiey 31 § 186.22 ooecccccccccceceesereeceteceenesresessscsecsssesaseeeseeseeesesesseseeeesnenesnerttages 3,31 SST ccccscccsscceseceseseseseceseseeeseseseetensusssuecssssesseesseasseaneeesesenssensnsnenseensasents 3 § QDec cccccccesceneeseeeceeseseeesatesessessceseneeesseaseseeesseesesesereenesserenneneraes 10 § 664 occ ccccccscesccceeseeseeeeeeceececnseeecenessesscsessessessessassessensesserseeeseneeteney 3, 38 § 667.7 coccccccccccecseccnseeeseeeeeeesessssessssecesseseeecseesessesseseeneenesereeeeneeteaty 10 § 669 oo. ccccccescssecsesseessesceeceecnetescesersdsnsssassevsseseeseesesesseeneeerssesrtaneeeneestes 27 — § 12022.53 iecccecceecesecceeseesecseeeeeesesessecsecnessesseeseesseesseceeneciens 3, 4, 32 RAL, Gen. Laws Ann, § 12-19-5ccsccsssessssssssssssssssssseseseeseccsssssessessnensseees 28 S.D. Codified Laws, § 22-6-6.1cc ceecceceseescessetssesseesseeseeensesnesneesteeens 28 Stats. 1997, ch. 503, § Lion..cccccccsssccessecteereerssesssessesseseseeseeeseeessesnersneeees 32 Tenn. Code Ann., § 40-20-11] oeiececeeeeeeeseeeeneessseesneesesteeenes 28 Tex. Code Crim. Proc. Ann., art. 42.08 0.0... eeeeteeeeeeereeeeeserenneeneees 28 Utah Code Ann, § 76-3-40 1 cccccscsssssessssssssssessssssesecessssssescessseeseecessssennsees 28 Va. Code Ann, § 19.2-308 icceeececcccessessssceseseesseeecaeessneeessenesseeseeceretigs 28 Vt. Stat. Anm., tit. 13, § 7032 oceeseeeseesetseeeseessessesseeeeneeeneseereneeeeeaes 28 W. Va. Code Ann, § 61-11-21 occeee sescseesereeeereeeessaresneeneeriees 28 Wash. Rev. Code Ann., § D.94A.5S89 ce eecccccenecteteecenectersessesaseessssessesassecseeesseeseseenesaeeesienenrsaeegs 28 § 13.40. 180ee ccceceeeereerecsetscesecsnsesesseesseesesseeeseeeeeesaesesiensneenensenes 28 Wis. Stat. Arn., § 973.15 voc cecccccccccseeceeeeneessreensesssusssessneeesessaesseessesseesaees 28 Wyo.Stat. Ann., § O- 1-301 oeceeeccececeesenecteneeeesessesecesscssessersseseeeeeseseesensecasseenevecseneveraeyas 29 § 6-1-3004 oe eececceecccteeeeeeseeeseeeescensssessessceessesseesaseeserseenseseseeseeasareneees 29 § O-2-1OL veeeeececcseceenecteeeeeceaesecsessesscsesscessecesseeseeessesseseseeeeneseaenesseees 29 CONSTITUTIONAL PROVISIONS Cal. Const., art. 1, § 6... ccceeesesssecsssessssessenrseseessesesssssesensreseeesnesteersetieeey 23 ix U.S. Const., Ist Amend. .o.ssessssssecsesssneessssssssnereesesssesecccsssnaseceecccsnnnsaseeeennnnaseeessiies 17 Oth AMEN...........ceeeceeececececeeesseseeccceeuseccceseesenseeeeceeseensaaeteescaseueeeesenea 21 Sth AMEN. 00... ccc ceceecccececsnecceneeeessennseeessneesecennsesesseseseseaseensnatess passim 14th Amend............. aauececccausauausveenseucesseccecuseuvesssecesessensanssescetensaeees 4,8 COURT RULES Cal. Rules of Court, rule 4.409 oo... ccccesseseeneeetereeeteneseessneuecessneeeeeseees 38 OTHER AUTHORITIES 2 Wayne R. Lafave & Austin W.Scott,Jr., Substantive Criminal Law § 6.2 (1986) ...ccecsseseesereseneneseseeeseesens 15 Anninoetal., Juvenile Life Without Parolefor Non-Homicide Offenses: Florida Compared to Nation (Updated Sept. 14, 2009) Public Interest Law Center, College of Law, Fla. State Univ., http://www.law.fsu.edu/faculty/profiles/annino/Report juvenile | WOP_092009Pdf...eee ccccectecssessecteeeeteeteetestestetetnererteeneserrentengs 14 Cal. Dept. of Justice, Juvenile Justice in California, Table 4, Juvenile Felony Arrests, 2009 (July 2010) oo. eecceeceseneseeeesesssessssessesecsseseeessseesesseseeneeesersneniey 30 Cristina J. Pertierra, Do the Crime, Do the Time: Should Elderly Criminals Receive Proportionate Sentences?, 19 Nova L. Rev. 793 (1995)... 17, 18 Donald Stuart, The Actus Reus in Attempts, 1970 Crim.L.Rev. 505..........6.deeeeteees 15 Sen. Com. on Public Safety, Analysis of Assem.Bill No. 4 (1997-1998 Reg. Sess. as amended Apr. 28, 1997) .occsececessesseesseesessssseeecseseesessenessenaseeseceeeesienaeneeenesaeteees 32 The Sentencing Project, No Exit: The Expanding Use ofLife Sentences in America (July 2009), www.sentencingproject.OFg ......ccccceereerceserterertneeseetees 29 ISSUE PRESENTED Is appellant’s aggregate prison sentence of “110 yearsto life” for three premeditated attempted murder convictions and gang, firearm, and great bodily injury enhancements categorically barred as cruel and unusual punishmentbecause he was 16 years old when he committed his crimes? INTRODUCTION Appellant, admittedly “trying to kill somebody,” shot several times at three rival gang members on their way home from school because appellant wantedto “save[] his hood.” Onebullet struck one boyin the back;the other bullets missed the other boys. Appellant was later convicted of three counts of premeditated attempted murder, enhanced by findings that he intended to promote gang activity, discharged a firearm, and caused great bodily injury. For his three offenses, appellant was consecutively sentenced to one prison term of 40 years to life, and two prison terms of 35 years to life. The Court of Appeal affirmed his conviction on appeal, rejecting a claim that under Graham v. Florida (2010) 130 S.Ct. 2011 [176 L.Ed.2d 825], his total sentence violated his federal constitutionalright against cruel and unusual punishment because it amounted tolife without parole for a juvenile nonhomicide offender. STATEMENTOF THE CASE OnJune 6, 2007, at about 1:30 p.m., a group of boys consisting of Adrian Bautista, 14-year-old Jesse Banuelos, 14-year-old Mark Johnson (on a bicycle), Carlos Vargas, and Vincent Valle, were walking home from school on 37th Street East near Sunstream Avenue in Palmdale. Banuelos and Johnson separated to go to Johnson’s house, while Bautista, Vargas, and Valle walked ahead. (2RT 905-910, 922-925, 932, 941-942, 944-945, 959-969, 979-982; 3RT 1204-1205, 1209; 1CT 68.) Vargas and Valle were membersof the Val Verde Park gang; Bautista became a memberless than three monthslater.. (2RT 920, 944-945, 960, 974, 1000-1001; 3RT 1210, 1217.) The Val Verde Park gang wasa rival of the Lancas gang. (2RT 944, 989; 3RT 1210.) Appellant, a 16-year-old Lancas gang member knownas “Dreamer,” approachedthe group from a car parked on Sunstream. (2RT 911, 933, 945, 947, 980, 982, 993, 995, 1000, 1010, 1029; 3RT 1207-1208.) Appellant asked the group, “Where are you from?”and then yelled, “Vario Lancas”or “Lancas.” (2RT 911-912, 929-930, 947-948, 952, 962, 980- 982, 1013.) Vargas yelled back, “Fuck you,” and “Val Verde Park,” . claiming his gang. (2RT 947, 952, 982, 1013.) From about 17 to 20 feet away, appellant fired three to five shots from a black handgunatthe group, striking Bautista in the back and uppershoulder, causing him tofall to the ground. (2RT 911-912, 914, 916, 925, 931, 943, 947-950, 961, 963, 971- 973, 981-983, 1012-1015, 1019-1020; 3RT 1206-1211, 1213, 1219.) The other boys ran away. (2RT 911-912, 916, 928, 950.) Appellantleft. (2RT 917.) Bautista lay face down on the front lawn of a nearby house, bleeding from his upper back, nose, and mouth, and having trouble breathing. (2RT 330-331, 916, 925, 928, 963-965, 973.) Bautista was taken to the hospital, wherehe stayed for over a day. (2RT 331-332, 916-917, 963-966.) The police found five expended shell casings on the sidewalk and one bullet embeddedin the wall at the front of the house. (2RT 335-339.) Expert gang testimony established that appellant’s shooting at rival gang members would benefit the Lancas gang by helping it gain notoriety and respect and: by causing fear and intimidation, enabling the gang to commit other crimes. (2RT 1001-1002, 1006-1008, 1011-1012.) Appellanttestified that he was “straight trying to kill somebody” on this day. (RT 1227.)’ Appellant explained that he had committed the shooting because the victims were his “enemies” as they were “from a different neighborhood,” and because they had answered, “VVP,”a rival gang. (3RT 1227, 1229-1230.) Appellant believed that in doing so, he had “saved [his] hood. Lancas.” (3RT 1230.) After a jury trial, appellant was convicted of three counts of premeditated attempted murder (Pen. Code, §§ 187, subd.(a), 664, subd. (a)), with personalandintentional dischargeofa firearm,a handgun,that, as to count 1, caused great bodily injury or death (Pen. Code, § 12022.53, subds.(b), (c), (d)).? The jury also foundthat appellant committed the offenses for the benefit of, at the direction of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members(Pen. Code, § 186.22, subd. (b)(4)). (CT 21-24, 36, 43-45, 86-88.) On each ofthe three counts,the trial court sentenced appellant to state prison for a term of life with a minimum of15 years for the premeditated attempted murder and gang finding. On count 1, the trial court also imposed a term of 25 yearsto life for the great-bodily- injury firearm enhancement, and on counts 2 and 3, imposed terms of 20 ' While Valle wastestifying, appellant mouthed, “You’re dead,”in his direction. (3RT 1235.) * Appellantalsotestified, “I wasn’t trying to kill him, but I did a shooting” (3RT 1227), and, “My intent wasn’t to kill them. I was just shooting at them” (3RT 1230). > Appellant had been found unfit for juvenile court and wastried in adult court. (Opn.at p. 4.) _ years for the personal-and-intentional-discharge firearm enhancements.“ The trial court imposed consecutive sentenceson the three counts. (CT 88- 92.)° Appellant did not object to his sentences, individually or cumulatively. (3RT 1285-1289.) . On appeal, appellantfiled his opening brief raising claims of ineffective assistance of counsel, competence to standtrial, and the omission of a lesser included instruction. The United States Supreme Court then issued Graham v. Florida (2010) 130 S.Ct. 2011 [176 L.Ed.2d 825], holding that a juvenile’s sentence of life in prisonwithout the possibility of parole for a nonhomicide offense is cruel and unusual punishment under the Eighth and Fourteenth Amendments. After oral argument, appellant contended in supplemental briefing that under Graham, appellant’s total prison sentence of 110 years to life for the premeditated attempted murders and enhancements wascategorically barred because it was effectively the sameas a sentenceoflife in prison without the possibility of parole (“life without parole” or “LWOP”). * The abstract ofjudgmentincorrectly reflects the firearm enhancement on count 3 as being imposed undersubdivision (b) of Penal Code section 12022.53, instead of subdivision (c). (1CT 91; see 3RT 1287.) Respondentrespectfully asks this Court to order that the abstract of judgmentbecorrected to accurately reflect the sentence that the trial court orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188.) > Theparties, the trial court, and the Court of Appeal have characterized the total sentence as 110 years to life, and the sentences on counts 1, 2, and 3, as 40 yearsto life, 35 years to life, and 35 yearsto life, respectively. Technically, as set forth above, this terminology incorrectly lumps together the determinate enhancements, the indeterminatelife sentences, and the extended paroleeligibility findings. Respondent will nonetheless use the same shorthandreferences for ease and consistency. The Court of Appeal rejected appellant’s claims and affirmedhis conviction.® As to appellant’s Graham claim, the Court of Appeal “disagree[d] that Graham applies to individuals in [appellant’s] position.” (Opn. at p. 17.) In the Court of Appeal’s view, Graham limited its holding to sentences oflife without the possibility of parole, not specific term-of- years sentences: 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.” (/d. at p. 2023.) In the presentcase, 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 broaden the class of offenders within the scope of its decision, it would have stated that the case concerns any juvenile offender who receives the functional equivalent ofa life sentence withoutthe possibility of parole for a nonhomicide offense. But as Justice Alito observedin his dissent, “[nJothing 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.]....) (Opn.at p. 18.) | The Court of Appeal, moreover, reasoned that Graham did not prohibit appellant’s total sentence because it was based on separate sentences for three attempted murders that appellant committed, none of which by itself amounted to “de facto life without thepossibility of parole... .” (Opn. at pp. 18-20.) The court explained that under a contrary view, an individual whoshot and severely injured any numberof victims during separate attempts on their lives could not receive a term commensurate with his or her crimesif all the victims ® In the opinion, the Court of Appeal also denied appellant’s concurrentpetition for writ of habeas corpus raising competency and ineffective-counsel claims. (Opn.at p. 21, fn. 8.) had the good fortune to survive their wounds, because the sentence would exceed the perpetrator’s life expectancy. ... [Appellant’s] sentence resulted from his intentionally discharging a firearm during an attemptto kill three individuals, leadingto the infliction of great bodily injury upon one of them. Nothing in Graham renders the punishmentconstitutionally infirm. (Opn.at p. 20.) The Court of Appeallastly noted that appellant did not claim that his sentence was unconstitutional other than based on Graham’s categorical prohibition against a juvenile being sentencedto life without parole for a nonhomicide crime. (/bid.) SUMMARY OF ARGUMENT For three reasons, appellant’s sentence is not cruel and unusual | punishmentunderthe rule in Graham prohibiting a life without parole sentence for a juvenile’s nonhomicide offense. First, the high court does not consider attempted murder to be a nonhomicide offense in this context, a point proved by three passages in Graham and supported bythe historical basis of its rule. Second, the clear line drawn in Graham forbids only a sentenceoflife without parole, and does not encompassa specific term of years exceeding a juvenile’s life expectancy—an assessment that would lead to unreliability, unfairness, and litigation. Third, as numerous courts have determined, a cumulative sentence for distinct crimes does not present a cognizable Eighth Amendment claim;instead, the constitutionality of each sentence must be evaluated individually, and here, each of appellant’s sentences was permissible becauseit included the possibility of parole within his lifetime. Moregenerally, the Supreme Court’s framework for “categorical” challenges of cruel and unusual punishment demonstrates that appellant’s 110-to-life aggregate sentence for his crimes is not intrinsically unconstitutional. As with the specific rule of Graham,this Court should find that cumulative sentencing falls outside the scope of the Eighth Amendment. Moreover, appellant has not satisfied his heavy burden of showing that a national consensus exists against imposing an aggregate prison term with a parole eligibility date exceeding a juvenile’s life for three aggravated attempted murders. A consideration of the culpability of this class of offenders and the severity of this type of punishmentalso reveals that the sentencing practice is constitutional, despite the diminished responsibility of adolescents discussed in Graham. Appellant’s three — aggravated attempted murders,dueto their nature andplurality, carried a categorically greater culpability than the single armed burglary in Graham. Further, the sentencing practice of allowing the possibility of parole for one aggravated attempted murder, but effectively denying it as to three, promotesthe legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation for juvenile offenders. The sentencing practice in this case does not come within the specific rule of Graham,andit is not otherwise prohibited under the Supreme -_ Court’s categorical test for cruel andunusual punishment. Accordingly, this Court should uphold the Court of Appeal’s ruling that the trial court’s sentence was constitutional. ARGUMENT APPELLANT’S SENTENCE IS NOT CRUEL AND UNUSUAL Appellant contends that underthe rule and categorical test of Graham v. Florida, his total sentence of 110 yearsto life for three premeditated attempted murder convictions with gang,firearm, and great bodily injury enhancements violates the federal Constitution as cruel and unusual punishment. Butneither the specific rule in Graham noran application of its categorical test renders appellant’s sentence unconstitutional. Appellant’s total sentence does not come within the Graham rule becauseit wasnot punishment for nonhomicide offenses, because it wasnotlife without parole, and becauseit resulted from an accumulation of separate sentences, each of which wasconstitutional. Further, appellant fails to meet his heavy burden of showing that his punishment should be declared categorically cruel and unusual becausethere is no national consensus against this sentencing practice and because the punishment serves legitimate penological goals. A. Graham vy. Florida The Supreme Court framed the issue in Graham as whetherit was cruel and unusual punishmentunderthe Eighth’Amendment, as applied to the states by the Fourteenth Amendment, for “a juvenile offender to be sentencedto life in prison without parole for a nonhomicide crime.” (Graham,supra, 130 S.Ct. at pp. 2017-2018.) The issue arose in the context of a Florida state sentenceoflife without parole for an armed burglary that Terrence Graham committed when he was 16 years old. (/d. at pp. 2018-2020.)’ After explaining that “proportionality is central to the Eighth Amendment,” the Supreme Court unpackedits jurisprudence on cruel and unusual punishment, noting “two general classifications’—proportional and categorical: The first involves challenges to the length of term-of-years sentencesgiven all the circumstancesin a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty. (Graham, supra, 130 S.Ct. at p. 2021.) ? Graham was also convicted of attempted armed robbery and sentenced to 15 years in prison as a result. (Graham, supra, 130 S.Ct. at p. 2020.) Regarding proportional challenges, the Court recounted a two-part test. First, “‘[a] court must begin by comparing the gravity of the offense and the severity of the sentence’” and determine whether this comparison “leads to an inference of gross disproportionality ....” (Graham, supra, 130 S.Ct. at p. 2022, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1005 [111 S.Ct. 2680, 115 L.Ed.2d 836] (Kennedy,J., concurring in part and concurring in judgment).) Only in “the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality” should the court proceed to the second step rather than reject the claim. (/d. at p. 2022.) This second step requires that a court “compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crimein other jurisdictions.” (Ibid.) If the comparison “validates an initial judgmentthat [the] sentence is grossly disproportionate, the sentence is cruel and unusual.” (/bid., internal quotation marks omitted.) The secondtype of challenge, involving “categorical rules,” turns on either the “nature of the offense” or “the characteristics of the offender.” (Graham, supra, 130 S.Ct. at p. 2022.) A court resolving a categorical challenge mustfirst consider “objective indicia of society’s standards, as expressed in legislative enactments andstate practice to determine whether there is a national consensus against the sentencing practice at issue.” Then,“guided by the standards elaborated by controlling precedents and by the Court’s own understanding of the Eighth Amendment’s text, history, meaning, and purpose[citation], the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.” (/bid., internal quotation marks omitted.) The Court then determined whether to apply the proportionaltest or the categorical test, observing that the issue was onethatit had “not considered previously: a categorical challenge to a term-of-years sentence.” The Court wrote that “[a]s a result, a threshold comparison between the severity of the penalty and the gravity of the crime does not advancethe analysis.” The Court concludedthat instead, “the appropriate analysis is the one used in cases that involved the categorical | approach ....” (Graham, supra, 130 S.Ct. at pp. 2022-2023, citing Atkins v. Virginia (2002) 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] [prohibiting the death penalty for mentally retarded persons], Roperv. Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183, 161 L.Ed.2d 1] [prohibiting the death penalty for any defendant who committed the crime while under 18 years of age], and Kennedy v. Louisiana (2008) 554 U.S, 407 [128 S.Ct. 2641, 171 L.Ed.2d 525] [prohibiting the death penalty for a nonhomicide crime].) Addressingthefirst part of the categorical test, the Court found that a national consensus had developed against sentencing ajuvenileto life without parole for a nonhomicide offense. (Graham, supra, 130 S.Ct. at pp. 2023-2026.) In doing so, the Court initially emphasized that “[t]he clearest and mostreliable objective evidence of contemporary valuesis the legislation enacted by the country’s legislatures.” (Ud. at p. 2023, internal citation and quotation marks omitted.) The Court found that 13 states prohibited a life without parole sentence for a juvenile’s nonhomicide offense, whereas 37 states, the District of Columbia, and federal law, permitted it under some circumstances. (/d. at p. 2023.)® Of these 37 states and the other two jurisdictions, however, “only 11 jurisdictions nationwide 8 The Court counted California as one ofthe “Jurisdictions that permit life without parole for juvenile nonhomicide offenders.” (Graham, supra, 130 S.Ct. at p. 2034 [Appendix], citing Pen. Code, § 667.7, subd. (a)(2) [LWOPfor enumerated felony with three prior prison terms for violent felony convictions]; and see, e.g., Pen. Code, §§ 37 [LWOPfortreason], 219 [LWOPfortrain derailing].) 10 in fact impose life without parole sentences on juvenile nonhomicide offenders—and most of those do so quite rarely ....” (Ud. at pp. 2023- 2025.) After finding this community consensusagainstlife without parole sentences for juvenile nonhomicide offenders, the Court foundin its “independent judgment”that the practice was cruel and unusual. Under this “independent judgment”test, the Court considered “the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question” and also “whether the challenged sentencing practice serves legitimate penological goals.” (Graham, supra, 130 S.Ct. at p. 2026.) Asto the culpability of the offender, the Court reiterated that juveniles ‘were “less deserving of the most severe punishments” because oftheir “essened culpability.” (Graham, supra, 130 S.Ct. at p. 2026, citing Roper, supra, 543 U.S. at p. 569.) Specifically, “[jJuveniles are more capable of changethanare adults, and their actionsare less likely to be evidence of ‘irretrievably depraved character’ than are the actionsof adults.” (/d. at p. 2026, quoting Roper, supra, 543 U.S. at p. 570.) As a result, “[a] juvenile is not absolved of responsibility for his actions, but his transgression ‘is not as morally reprehensible as that of an adult.’” (/d. at p. 2026, quoting Thompson v. Oklahoma (1988) 487 U.S. 815, 835 [108 S.Ct. 2687, 101 L.Ed.2d 702].) | Asto the severity of the punishmentin question, the Court observed that “life without parole is ‘the second most severe penalty permitted by law.’” (Graham, supra, 130 S.Ct. at p. 2027, quoting Harmelin, supra, 501 U.S. at p. 1001.) The Court also saw that “[l]ife without parole is an especially harsh punishmentfor a juvenile” because “a juvenile offender will on average serve more years and a greater percentageofhis life in prison than an adult offender.” (/d. at p. 2028.) 11 As to whether the practice served legitimate penological goals, the Court found that although “[c]riminal punishmentcan havedifferent goals, and choosing amongthem is within a legislature’s discretion .. . none of the goals of penal sanctions that have been recognized as legitimate— retribution, deterrence, incapacitation, and rehabilitation—provides an adequate justification” for this practice. (Graham, supra, 130 S.Ct. at p. 2028,internal citation omitted.) First, retribution is an insufficient goal because the minor’s lesser culpability lessens the “community’s moral outrage” for a nonhomicide crime. Second, juveniles are less subject to deterrence, andthis is especially so wherethe sentence at issue is rarely imposed. Third, incapacitation does not “override all other considerations” because“[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.” Fourth, the purpose of rehabilitation does not support the practice becauselife without parole “makesan irrevocable judgment about that person’s value and place in society,” which “is not appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited moral culpability.” (Ud. at pp. 2028-2030.) Based onits analysis, the Court concluded that “[t]his clear line” was required for any juvenile sentence of life without parole for a nonhomicide crime. The Court acknowledged that while “[t]he Eighth Amendment does — not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behindbarsforlife . . . [,] [i]t does forbid States from making the judgmentat the outset that those offenders neverwill be fit to reenter society.”” (Graham, supra, 130 S.Ct. at p. 2030.) The Court rejected a case-by-case Eighth Amendmentapproachto this sentencing practice considering the defendant’s age and crimes becauseit was unconvinced“that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible 12 juvenile offenders from the many that have the capacity for change.” (/d. at p. 2032.) Finally, the Court determined that an international consensus confirmed “its independent conclusion”that this practice wascruel and unusual. (/d. at pp. 2033-2034.) B. The Graham Rule Does Not Apply To Attempted Murder Or ToSpecific Term-Of-Years Sentences As a threshold matter, the rule of Graham forbidding a life without parole sentence for a juvenile’s nonhomicide offense does not apply to any of appellant’s sentences because attempted murderis not considered a nonhomicide offense in this context. The Supreme Court in Graham justified its categorical prohibition on a historical demarcation of culpability between those criminals that murder, and those that do not kill or intend to kill. (Graham, supra, 130 S.Ct. at p. 2027 [“[t]he Court has recognized that defendants who do notkill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers”); ibid. [“[i]t follows that, when compared to an adult murderer, a juvenile offender who did notkill or intend to kill has a twice diminished moral culpability”].) An attempted murderer doesnot fall precisely on either side of this traditional line—heor she neither murdersyetstill intends to kill. Still, the Court’s rationale indicates that a juvenile offender convicted of attempted murder is more deserving of serious forms of punishmentand does not have the same diminished moral culpability as an offender who did notintendto kill. Despite these underpinningsfor the rule in Graham, somelanguage in the Supreme Court’s opinion might, in isolation, suggest that only a juvenile’s completed homicide would permit a life without parole sentence. In this vein, the Court noted that “[s]erious nonhomicide crimes ‘may be devastating in their harm . . . but “in terms of moral depravity and of the 13 injury to the person andto the public,” . . . they cannot be compared to murderin their “severity and irrevocability.”’ This is because ‘[l]ife is over for the victim of the murderer,’ but for the victim of a very serious nonhomicide crime,‘life . . . is not over and normally not beyondrepair.’” (Graham, supra, 130 S.Ct. at p. 2027, quoting Kennedy, supra, 128 S.Ct. at p. 2660, quoting Coker v. Georgia (1977) 433 U.S. 584, 598 [97 S.Ct. 2861, 53 L.Ed.2d 982]; see Manuel v. State (Fla.App. 2010) 48 So.3d 94, 97 [under Graham’s bright-line rule, “simple logic dictates that attempted murderis a non-homicide offense because death, by definition, has not occurred”); Petitioner’s Opening Brief [“POB”] 17-19.) But three passages in Graham specifically demonstrate that the Supreme Court included attempted murder in the exempted class of offenses. First, in its discussion about “global consensus,” the Court noted that Israel’s life without parole sentences for juveniles were not for “nonhomicide crimes” because these juveniles wereall “convicted of homicideor attempted homicide.” (Graham, supra, 130 S.Ct. at p. 2033, emphasis added.) Second,in listing Hawaii as one ofthe “jurisdictions that permit life without parole for juvenile offenders convicted of homicide crimes only,” the Court cited statutes prescribing life without parole for juveniles convicted of either first degree murder or attemptedfirst degree murder. (/d. at p. 2035, citing, in the Appendix, Haw.Rev.Stat., §§ 571- 22, subd. (d) (2006), 706-656, subd. (1) (2008 Supp. Pamphlet).) Third, ‘“{njon-homicide’ does not include any convictions for attempted homicides”in the study that the Supreme Court relied on to find that juvenile LWOPsentences for nonhomicide offenses wererare in practice. (Anninoetal., Juvenile Life Without Parolefor Non-Homicide Offenses: . Florida Compared to Nation (Updated Sept. 14, 2009) Public Interest Law Center, College of Law,Fla. State Univ., p. 4, available at http://www.law.fsu.edu/faculty/profiles/annino/Report juvenile lwop 092 14 009.pdf, cited in Graham, supra, 130 S.Ct. at pp. 2023-2034.) These examples are incompatible with a finding that attempted murderis a nonhomicide according to Graham. Given the basis for Graham, the Supreme Court in these three passages evidently considers the dangerof the “severity and irrevocability” created by attempted murdersufficient to warrant its inclusion in the homicide exemption. The rule of Graham stems from a juvenile’s relative immaturity and potential for change. Anda juvenile’s mentalstate is at least as culpable for an attempted murder as for a murder. (See Peoplev. Smith (2005) 37 Cal.4th 733, 739 [attempted murder requires the specific intent to kill, whereas murder only requires a consciousdisregard for life].) Particularly, the punitive goals of incapacitation, retribution, and deterrence would be equally advanced by the elimination of parole regardless of whetherthe attemptto kill achieved its objective. (See 2 Wayne R. Lafave & Austin W. Scott, Jr., Substantive Criminal Law § 6.2, at 22 (1986)[“‘the law of attempt exists because there is just as much need to stop, deter and reform a person who has unsuccessfully attempted _.. to commit a crime [as] one whohasalready committed such an offense,’” quoting Donald Stuart, The Actus Reus in Attempts, 1970 Crim.L.Rev. 505, 511].) At bottom, to the Supreme Court, a finding that a juvenile intended andtried to kill outweighs the constitutional concern that the juvenile have norealistic opportunity of parole, for an attempted homicide as well as a homicide. Moreover, appellant’s punishmentfell outside of Graham because appellant did not receive a life without parole sentence. Although appellant’s total sentence may accuratelybe described as the “functional equivalent” ofLWOP (POB 7-16),’ Graham drew a “clear line” between ” In supplemental briefing in the Court of Appeal, respondent termed appellant’s total sentence “de facto LWOP”and offered appellant’s prison (continued...) 15 LWOPandother noncapital sentences (Graham, supra, 130 S.Ct.at p. 2030). As the Court of Appeal recognized, “‘nothing in the Court’s opinion [in Graham] affects the imposition of a sentence to a term of years 999without the possibility of parole.’” (Opn.at p. 18, quoting Graham, supra, 130 S.Ct. at p. 2058 (dis. opn. of Alito, J.); see also Graham, supra, 130 S.Ct. at p. 2052, fn. 11 (dis. opn. of Thomas,J.) [acknowledging that the Court’s opinion includes “only those juveniles sentencedto life without parole and excludes from its analysis all juveniles sentenced to lengthy term-of-years sentences (e.g., 70 or 80 years’ imprisonment)”]; but see People v. Mendez (2010) 188 Cal.App.4th 47, 63-64 [finding that although the juvenile offender’s 84-years-to-life “sentence is not technically an LWOFPsentence, and therefore not controlled by Graham,” the sentenceis “materially indistinguishable’” from LWOP and thereforeis “unconstitutional” based on “the principles set forth in Graham’’}.) Further, distinguishing between different term-of-years sentences under the Eighth Amendmentis a subjective pursuit. (See Harmelin, supra, 501 U.S. at p. 1001 (Kennedy, J., concurring in part and concurring in the judgment) [“our decisions recognize that we lack clear objective standards to distinguish between sentences for different terms of years”]; Rummelv. Estelle (1980) 445 U.S. 263, 275 [100 S.Ct. 1133, 63 L.Ed.2d 382] [theline | between death and other punishmentsis “considerably clearer than would . be any constitutional distinction between one term of years and a shorter or longer term of years”].) Given this, it would be unjust and unworkable to hold that under Graham,a term-of-years sentence with a parole eligibility date exceeding a juvenile’s averagelife expectancy is equivalentto a life (...continued) “calculation worksheet” indicating that he would notbe eligible for parole until he was 122 years old. (Resp. Supp. Br., at p. 3 & Exh. A.) 16 without parole sentence. (See Alvarez v. State (Fla. 1978) 358 So.2d 10, 11-12 [“[mJortality and life expectancyare irrelevant to limitations on the terms of incarceration set by the Legislature for criminal misconduct”].)!" The impact of race, sex, health, and incarceration on averagelife -expectancy would be the subject of much debate andlitigation, resulting in uncertainty. (See Cristina J. Pertierra, Do the Crime, Do the Time: Should Elderly Criminals Receive Proportionate Sentences?, 19 Nova L. Rev. 793, 815-816 (1995) [discussing manypossible factors that courts would have to consider in determining a defendant’s life expectancy and observing that “courts attempting to predictlife expectancies would also face questions regardingthe reliability of their predictions”].)'’ And then, mainly because '0 Also, selecting the “average” or median life expectancy as the benchmark for determining minimum parole eligibility would still leave about 50 percent ofjuveniles to die before this period elapses, leaving that half with no possibility of release. '' Appellant cites various civil and criminal cases that have adopteda “functional equivalence” rule. (POB 26-28.) But in none of these situations, save perhaps one, would uncertainty result from recognizing a functional equivalent of an existing category. (Apprendi v. New Jersey (2000) 530 U.S. 466, 494, fn. 19 [120 S.Ct. 2348, 147 L.Ed.2d 435] [a sentencing enhancementis a functional equivalent of an element]; Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [100 S.Ct. 1682, 64 L.Ed.2d 297} [Miranda interrogation exists wheneverthereis “express questioning or its functional equivalent”];March v. Alabama (1946) 326 U.S. 501, 506- 507 [66 S.Ct. 276, 90 L.Ed. 265] [a company-owned townis a functional equivalent of a municipality under the First Amendmentrightto distribute religious literature]; In re Jovan B. (1993) 6 Cal.4th 801, 815 [a house arrest for a juvenile is the functional equivalent of own-recognizance release for an adult]; Robbins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 910, fn. 5 [a private shopping center is a functional equivalent of a municipality for the purpose ofthe state constitutional right to petition the government]; but see /n re Christie (2001) 92 Cal.App.4th 1105, 1109 [noting that because bail is a matter of right, absent enumerated exceptions, “the court may neither deny bail norset it in a sum that is the functional equivalent of no bail’’].) Where uncertainty isa pertinent concern, by (continued...) 17 of immutable offender characteristics, some juveniles would have to serve significantly longer prison terms than others based on the same crimes under the same circumstances. (/d. at pp. 816-817 [concluding that “[s]peculation with regard to a defendant’s life expectancy would result in a lack of uniformity in sentencing”].) Avoiding these types of problemsis a key reason for having a bright line rule in the first place. Ultimately, however, it is unnecessary for this Court to decide whether a juvenile convicted of an attempted homicide may be sentenced to a term of years exceedinghis or her life expectancy. As explained below, in California, the punishment for an attempted murder, even if premeditated | and even if accompanied with gang,firearm, and great bodily injury enhancements, does not amountto a life without parole sentence. As further explained below, Graham is not concerned with the combinedeffect of sentences. As such, the Court of Appeal correctly rejected appellant’s claim that Graham barshis sentences in the aggregate. (...continued) contrast, this Court has foundthis factor significant in rejecting claimsthat a rule should be supplemented with a functional equivalent. (See Foster- Gardner v. National Union Fire Insurance Company (1998) 18Cal.4th 857, 881, 887-888 [adopting a bright-line test in construing the term “suit” rather than a “functional equivalent” approach becausethis rule “‘reduces the need for future litigation’”]; Thing v. La Chusa (1989) 48 Cal.3d 644, 664, 666 [a “bright line” of liability to nuclear family of victim was necessary in part to prevent burden on courts in applying vaguely defined criteria even though “[s]uch limitations are indisputably arbitrary sinceit is foreseeable that in some cases unrelated persons havea relationship to the victim or are so affected by the traumatic event that they suffer equivalent emotional distress”’].) 18 C. Cumulative Sentencing Does Not Implicate Graham Or The Eighth Amendment Neither a decision whether to sentence a defendant consecutively for multiple crimes, nor the combined effect of multiple sentences on multiple crimes, implicates the Eighth Amendmentprohibition against cruel and unusual punishment. Rather, as long as the sentence for each crimeis constitutional, the total sentence is constitutional. A contrary rule would meanthat a person could create an Eighth Amendmentclaim solely by committing additional crimes. | Nothing in Grahamorits precedents suggests that the Eighth Amendmentrequires an-examination of the combined effect of punishment on multiple criminal offenses. In fact, the cases suggest the opposite. The Supreme Court in Graham specifically confronted the constitutionality of a juvenile’s life without parole sentence for “a nonhomicide crime.” (Graham, supra, 130 S.Ct. at pp. 2017-2018, emphasis added; accord,id. at p. 2023 [‘[t]he instant case concerns only those juvenile offenders sentenced to life without parole sentence solely for a nonhomicide offense”, emphasis added;id. at p. 2030 [“those who were below [the age of 18] when the offense was committed may notbe sentencedto life | without parole for a non-homicide crime”], emphasis added; id. at p. 2032 [“[t]he differences between juvenile and adult offenders are too marked and well understood to.risk allowing a youthful person to receive a sentence of life without parole for a nonhomicide crime”], emphasis added andinternal quotation marks omitted; id. at p. 2033 [“[t]he State has denied him any chance to later demonstrate that heis fit to rejoin society based solely on a nonhomicide crime”’], emphasis added.) And although Graham wasalso sentenced to 15 years in prison for an attempted armed robbery, the Court solely determined whetherthe life without parole sentence for his armed burglary was allowable. (/d. at p. 2020.) 19 Almost 120 yearsearlier, in the case of O’Neil v. Vermont (1892) 144 US. 323 [12 S.Ct. 693, 36 L.Ed.2d 693], the Supreme Court, while declining to reach the Eighth Amendmentissue because it was not properly raised, quoted the Vermont Supreme Court’s opinion rejecting O’Neil’s cumulative cruel and unusual punishmentclaim because his aggregate prison sentenceof 19,914 days wasthe result of his conviction of numerous offenses, and because the sentence for each crime was within constitutional limits: “The punishment imposed bystatute for the offense with which the respondent, O’Neil, is charged, cannot be said to be excessive or oppressive. If he has subjected himself to a severe penalty,it is simply because he has committed a great many such offenses. It would scarcely be competent for a person to assail the constitutionality of the statute prescribing a punishmentfor burglary on the ground that he had committed so many burglaries that, if punishment for each wereinflicted on him, he might be kept in prison for life. The mere fact that cumulative punishments may be imposed for distinct offenses in the sameprosecution is not material upon this question. If the penalty were unreasonably severe for a single offense, the constitutional question might be urged; but here the unreasonableness is only in the numberof offenses which the respondent has committed.” (Id. at p. 331, quoting State v. Four Jars ofIntoxicating Liquor (Ver. 1886) 2 A. 586, 593.) Morerecently, the high court echoed this reasoningin rejecting an argumentthat the Court should evaluate the combined sentences of multiple crimesin resolving the Eighth Amendment claim. In Lockyer v. Andrade (2003) 538 US. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144], the Court held on federal habeas review that it was not an unreasonable application ofclearly established Supreme Court law to reject an Eighth Amendmentchallenge to a Three Strikes Law sentence. Replying to the dissent’s arguments, the Court ruled that it could not “say that the state court’s affirmance.of two 20 sentences of 25 yearsto life in prison was contrary to our clearly established precedent.” (/d. at p. 74, fn. 1.) The Court emphasized, further, that Andrade’s punishmentfor each crime was separate and should be considered separately: Moreover,it is not true that Andrade’s “sentence can only be understood as punishmentfor the total amounthestole.” Post, at 1176. To the contrary, California law specifically provides that each violation of Cal. Penal Code Ann. § 666 (West. Supp. 2002) triggers a separate application ofthe three strikes law,if the different felony counts are “not arising from the sameset of operative facts.” § 667(c)(6) (West. 1999); see also § 667(e)(2)(B). Here, Andrade was sentenced to two consecutive terms under California law precisely because the two thefts of two different Kmart stores occurring two weeks apart were twodistinct crimes. (Andrade, supra, 538 U.S.at p. 74, fn. 1; cf. Oregon v. Ice (2009) 555 U.S. 160, [129 S.Ct. 711, 714-715, 172 L.Ed.2d 517] [the Sixth Amendment right to jurytrial is “offense-specific” and applies only to “a specific statutory offense”; it does not apply to the decision whether to sentence consecutively].) Underthis authority and reasoning, several state supreme courts and federal courts of appeals have held that cumulative or consecutive sentencing does not implicate the Eighth Amendmentprohibition against cruel and unusual punishment. (Rooney v. State (Ga. 2010) 690 S.E.2d 804, 810; State v. Hairston (Ohio 2008) 888 N.E.2d 1073, 1077-1080; State v. Buchhold (S.D. 2007) 727 N.W.2d 816, 824; State v. Berger (Ariz. 2006) 134 P.3d 378, 384; Close v. People (Colo. 2002) 48 P.3d 528, 540; United States v. Hong (4th Cir. 2001) 242 F.3d 528, 532; Pearson v. Ramos (7th Cir. 2001) 237 F.3d 881, 886; Hawkins v. Hargett (10th Cir. 1999) 200 F.3d 1279, 1285, fn. 5; State v. August (Iowa 1999) 589 N.W.2d 740, 744; United States v. Aiello (24 Cir. 1988) 864 F.2d 257, 265; United States v. Schell (10th Cir. 1982) 692 F.2d 672, 675.) As the Seventh Circuit 21 explained, “it is wrong to treat stacked sanctionsas a single sanction [because] [t]o do so producesthe ridiculous consequenceof enabling a prisoner, simply by recidivating, to generate a colorable Eighth Amendment claim.” (Pearson v. Ramos, supra, 237 F.3d at p. 886; accord, Close v. People, supra, 48 P.3d at p. 539 [finding that allowing an Eighth Amendmentchallenge to cumulative sentences would create “the possibility that a defendant could generate an Eighth Amendment disproportionality claim simply because that defendant had engaged in repeated criminal activity”]; United States v. Schell, supra, 692 F.2d at p. 675 [“[t]aken to its extreme, it would require us to find that virtually any sentence, however, short, becomes cruel and unusual punishment whenthe defendant wasalready scheduled to serve lengthy sentences for prior convictions”].) And, as the Arizona Supreme Court noted, “[t]his proposition holds true even if a defendantfaces a total sentence exceeding a normallife expectancy as a result of consecutive sentences.” (State v. Berger, supra, 134 P.3d at p. 479.) Persuaded by these authorities, the Ohio Supreme Court concluded, “Where noneof the individual sentences imposed on an offenderare grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does notconstitute cruel and unusual punishment.”(State v. Hairston, supra, 888 N.E.2d at p. 1078.) In this Court’s jurisprudencein this area, cumulative sentencing has not generated a viable Eighth Amendmentclaim as long as the sentence for each count is within statutory limits; rather, a trial court’s decision to sentence consecutively has only been reviewed for abuse ofdiscretion. In In re Adams (1975) 14 Cal.3d 629, the defendant claimed that his consecutive sentences for sale of benzedrine and transportation of heroin constituted cruel and unusual punishment. (/d. at pp. 632, 637.) This Court rejected the claim, finding that “the six-year mandatory minimum term 22 arises by reason ofthe trial court’s discretionary judgment to impose consecutive sentences for separate criminal offenses.” (/d. at p. 637.) Because there was no “abuseofdiscretion in this regard,” the court refused “to invalidate consecutive mandatory minimum sentences ....” (/bid.; see also People v. White (1976) 16 Cal.3d 791, 797 [rejecting the defendant’s claim under the California Constitution that it was cruel or unusual punishmentto run the sentence for his current conviction consecutively to his two previous sentences, because “it is in the discretion ofthe trial court whether to make the sentence for the underlying offense run concurrently with, or consecutively to, any incompleted prior sentences”].) In contrast, the California Court of Appeal has typically entertained (and usually rejected) Eighth Amendmentchallenges to aggregate sentences. But none of these cases have confronted the uncontested reasoning of the courts holding that consecutive sentences cannot constitute cruel and unusual punishmentas long as each sentence is within constitutionallimits. (See, e.g., People v. Leon (2010) 181 Cal.App.4th 452, 469; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231; People y. Sullivan (2007) 151 Cal.App.4th 524, 569-570; People v. Cartwright (1995) 39 Cal_App.4th 1123, 1134-1137.) In 1975, the Court of ~ Appeal, however,explicitly found that a consecutive sentencing decision was reviewable as cruel or unusual punishment underarticle I, section 6, of the California Constitution. (People v. Keogh (1975) 46 Cal.App.3d 919, 928-933; but see People v. Tipton (1954) 124 Cal.App.2d 213, 217 {rejecting claim that consecutive sentences were unconstitutionally “cruel and inhuman”because the sentence for each count waswithin statutory limits and “{t]he trial court possessesthe discretion to determine whether the sentences should be consecutive or concurrent”].) The court in Keogh reasoned: 23 There appears to be no logical reason why a defendant may not raise for appellate determination the issue of whether consecutive sentences imposed upon him producea resulting penalty so severely disproportionate,irregular and unfair in relation to his crimesthat it constitutes an infringementofhis right to be free from “cruel or unusual punishment.” (People v. Keogh, supra, 46 Cal.App.3dat p. 931.) The cursory reasoning of the Keogh court is not persuasive on this issue. First, the claim in Keogh arose underthe state Constitution, and appellant’s claim is based on the federal Constitution. “Whereas the federal Constitution prohibits cruel ‘and’ unusual punishment, California affords greater protection to criminal defendants by prohibiting cruel ‘or’ unusual punishment.” (People v. Haller (2009) 174 Cal.App.4th 1080, 1092,italics added, citing In re Lynch (1972) 8 Cal.3d 410, 424.) Further, the Supreme Court’s O'Neil and Andrade opinionsindicate that the Eighth Amendment applies only to sentences for individual crimes. And, contrary to what Keogh says, there is a compelling reason whythis is so, namely that “it is wrong totreat stacked sanctions as a single sanction [because] [t]o do so producesthe ridiculous consequenceofenabling a prisoner, simply by recidivating, to generate a colorable Eighth Amendmentclaim.” (Pearson v. Ramos, supra, 237 F.3d at p. 886.) This Court shouldjoin the state supreme courts and federal appellate courts determining that cumulative sentencing does not implicate the Eighth Amendment’s prohibition against cruel and unusual punishment. Here, appellant’s three attempted murders and gang,firearm, and great bodily injury enhancements resulted in sentences of 40 years to life as to the victim Adrian Bautista, and 35 yearsto life each as to the victims Carlos Vargas and Vincent Valle. As the Court of Appeal correctly found, the longest of these sentences, 40 yearstolife, is “a term that could be completed withinthe lifetime of a youthful offender.” (Opn.at p. 20, 24 fn. 7.) Each of appellant’s sentences did not run afoul of Graham even though, when considered in the aggregate, they would likely exceed appellant’s life. Were the rule otherwise, “an individual who shot and severely injured any numberofvictims during separate attempts on their lives could not receive a term commensurate with his or her crimesifall the victims had the good fortune to survive their wounds, because the sentence would exceed the perpetrator’s life expectancy.” (Opn.at p. 20.) Indeed, implicit in Graham is the rationale that a juvenile mustbe given the opportunity for a second chance upon committing a nonhomicide crime, but not for a third or fourth chance upon committing additional nonhomicide crimes. Because each of appellant’s sentences for his three offenses did not amountto life without the possibility of parole, Graham was not offended. D. No New Categorical Eighth AmendmentProhibition Is Warranted Asdiscussedin the preceding sections, appellant’s punishmentdid not violate the rule of Graham for three independentreasons: (1) his attempted murders are not considered nonhomicide offenses; (2) appellant was not given a term oflife without parole as to any of his convictions; and (3) cumulative or consecutive sentencing does not implicate the Eighth Amendment, even if the aggregate sentenceis the functional equivalent of life without parole. Furthermore, apart from the specific rule in Graham, an application to appellant’s case of the Supreme Court’s categorical standard demonstrates that his sentence is not barred by the Eighth Amendment. Preliminarily, this Court should rule that appellant’s claim under the Eighth Amendment’s categorical test fails becauseit is based solely on the effect of the aggregation of sentences for specific crimes in this case. As explained above, consecutive or cumulative sentencing does not implicate 25 the Eighth Amendment. And as shownabove, each of appellant’s sentences does not amountto life without parole. Therefore, appellant’s sentences, taken together, do not constitute cruel and unusual punishment. Nor, under the Supreme Court’s categorical test for Eighth Amendmentchallenges, should a new rule be created to prohibit appellant’s aggregate sentence. Underthat test, the court first considers “‘objective indicia of society’s standards, as expressed in legislative enactments and state practice to determine whetherthere is a national consensus against the sentencing practice at issue.”” (Graham, supra, 130 S.Ct. at p. 2022, . quoting Roper, supra, 543 U.S. at p. 572.) Next, the court “determine[s] in the exercise of its own independent judgment whether the punishmentin question violates the Constitution.” (/bid.) A defendantcarries the “heavy burden”ofproving that the punishmentfor the defendant’s offenseis cruel and unusual. (Gregg v. Georgia (1976) 428 U.S. 153, 175 [96 S.Ct. 2909, 49 L.Ed.2d 859]; see also People v. King (1993) 16 Cal.App.4th 567, 572, citing People v. Wingo (1965) 14 Cal.3d 169, 174 [where this Court stated that a defendant had a “considerable burden”in showing a penalty was cruel or unusual under the California Constitution].) Specifically, a defendantcarries a “heavy burden’”of establishing a national consensus against a sentencing practice. (Stanford v. Kentucky (1989) 492 U.S. 361, 373 [109 S.Ct. 2969, 106 L.Ed.2d 306], abrogated on anotherground in Roper, supra, 543 U.S. at pp. 574-575, quoting Gregg, supra, 428 U.S. at p. 175.) . There is no national consensusthat a juvenile’s cumulative sentence exceedinghis life expectancy for three premeditated attempted murders with gang, firearm, and great bodily injury enhancements is cruel and unusual. Noneofthe statutes in the 52 jurisdictions that the Supreme Court cited in Graham precluded specific term-of-years (i.e., non-LWOP) prison sentences exceeding juveniles’ life expectancies, and none have been 26 amended since Graham to preclude this type of punishmentfor juveniles. (Graham, supra, 130 S.Ct. at p. 2034 [Appendix].) By contrast, the Court found that 13 states prohibited-the sentencing practice at issue in Graham. (Graham,supra, 130 S.Ct. at p. 2023; see also Roper, supra, 543 U.S.at pp. 564, 568 [18 states prohibited specific practice and 12 states did not permit capital punishmentatall]; Arkins, supra, 536 U.S.at pp. 314-315 _ [same as Roper]; Thompson, supra, 487 U.S.at pp. 826, 829 [18 states prohibited practice and 14 states did not permit capital punishmentatall].) Furthermore,all 50 states, the federal system, andthe District of Columbiaallow for consecutive sentencing. It appears that no jurisdiction categorically prohibits a cumulative term-of-years sentence exceeding a Juvenile’s life expectancy. (18 U.S.C. § 3584; Ala. Code, § 14-4-9; Alaska Stat. Ann., § 12.55.127; Ariz. Rev. Stat. Ann., § 13-711; Ark. Code Ann., § 5-4-403; Cal. Penal Code, § 669; Colo. Rev. Stat. Ann., § 18-1-408; Conn. Gen. Stat. Ann., § 53a-37; Del. Code Ann., tit. 11, § 3901; D.C. Code, § 23-112; Fla. Stat. Ann., § 921.16; Ga. Code Ann., § 17-10-10; Haw.Rev.Stat., § 706-668.5; Idaho Code Ann., § 18-308; Ill. Comp.Stat. Ann., ch. 730, 5/5-8-4; Ind. Code Ann., § 35-50-1-2; Jowa Code Ann., § 901.8: Kan. Stat. Ann., § 21-6606; Ky. Rev.Stat. Ann., § 532.110!La,. Code Crim. Proc. Ann., art. 883; Me. Rev. Stat. Ann., tit. 17-A, § 1256; Wilsonv. Simms (Md.Ct. Spec. App. 2004) 849 A.2d 88, 97; Mass. Gen. Laws Ann., ch. 279, § 8; Mich. Comp. Laws Ann., § 769.1h; Minn.Stat. Ann., § 609.15; Miss. Code Ann., § 99-19-21; Mo. Stat. Ann., § 558.026; Mont. Code Ann., § 46-18-401; State v. Tucker (Neb. 2001) 636 N.W.2d '? The Kentucky consecutive sentencing statute caps “the aggregate of consecutive indeterminate terms” at 70 years. (Ky. Rev. Stat. Ann., § 532.110, subd. (1)(c).) But there is no indication that this statute, which applies to both adults and juveniles in criminal proceedings, was meant to ensure that juveniles potentially survive their sentences. 27 853, 861-862; Nev. Rev. Stat. Ann., § 176.035; Duquette v. Warden, New | Hampshire State Prison (N.H. 2007) 919 A.2d 767, 774; N.J. Stat. Ann., § 2C:44-5; N.M.Stat. Ann., § 33-2-39; N.Y. Penal Law,§ 70.25; N.C. Gen. Stat. Ann., § 15A-1354; N.D. Cent. Code Ann., § 12.1-32-11; Ohio Rev. Code Ann., §§ 2929.14, 2929.41; Okla. Stat. Ann., tit. 22, § 976; Or. Rev. Stat. Ann., § 137.370; 42 Pa. Cons. Stat. Ann., § 9721; R.I. Gen. Laws Ann., § 12-19-5; Legare v. State (S.C. 1998) 509 S.E.2d 472, 476; S.D. Codified Laws, § 22-6-6.1; Tenn. Code Ann., § 40-20-111; Tex. Code Crim. Proc. Ann., art. 42.08; Utah Code Ann., § 76-3-401; Vt. Stat. Ann., tit. 13, § 7032; Va. Code Ann., § 19.2-308; Wash. Rev. Code Ann., § 9.944.589; W. Va. Code Ann., § 61-11-21; Wis. Stat. Ann., § 973.15; Loperv. Shillinger (Wyo. 1989) 772 P.2d 552, 553.) Specifically, no Jurisdiction apparently removes a trial court’s consecutive sentencing discretion to impose the maximum aggregate sentence on juveniles 16 or older convicted of three attempted murders on three victims. (See N.Y. Penal Law, § 70.30 [limiting maximum consecutive sentences for juveniles under 16]; Wash. Rev. Code Ann., § 13.40.180, subd. (2) [limiting the aggregate of consecutive terms for juveniles to 300 percent ofthe term imposed for the most serious offense].) Additionally, appellant has not endeavoredto identify any national trend or consensusagainst lengthy term-of-years sentences for appellant’s crimes. In fact,.appellant’s 35-to-life and 40-to-life prison sentences for each of his premeditated attempted murders are comparable to sentences in several other jurisdictions for similar crimes. (See, e.g., Ala. Code, §§ 13A-4-2, 13A-5-6, subds. (a)(1), (a)(4) [punishmentfor attempted murder with a firearm is life in prison, or 10 to 99 years, with a 20-year minimum sentence]; Alaska Stat. Ann., § 12.55.125, subd. (b) [penalty for first degree attempted murderis 5 to 99 years]; Ark. Code Ann., §§ 5-3- 201, 5-3-203, 5-4-401, 16-90-120 [penalty for attempted first degree 28 murderis 6 to 30 years, plus up to 15 years for use of a firearm]; Del. Code Ann,, tit. 11, §§ 531, 4209 [penalty for attempted murderis life without parole]; Ga. Code Ann., §§ 16-4-6, subd. (a), 16-5-1, subd. (d), 16-5-4, subd.(b), (k)(1), 16-11-106, subd. (b) [penalty for attempted murderis one to 30 years, plusfive years for use of a firearm, plus five to 15 years when committed for benefit of gang]; Haw. Rev.Stat., § 706-656, subd. (1) [penalty for attemptedfirst degree murderis life without parole]; Ind. Code Ann., §§ 35-41-5-1, 35-50-2-4, 35-50-2-11 [penalty for attempted murderis 20 to 50 years, with 30 years being advisory, plus five years for use of a | firearm]; Mo. Stat. Ann., §§ 558.011, 565.021, 565.050 [penalty for assault with intent to kill with great bodily injury is 10 to 30 years, plus one to three years when committed for benefit of gang]; Mont. Code Ann., §§ 45- 4-103, 45-5-102 [penalty for attempted deliberate homicide by a juvenile is life, or a term of 10 to 100 years, plus two to 10 years for use of a firearm, plus oneto three years when committed for benefit of gang]; Wyo.Stat. Ann., §§ 6-1-301, 6-1-304, 6-2-101 [penalty for attempted first degree murderis life without parole orlife with parole].) Thus, current legislation indicates that there is no national consensusagainst the sentencing practice at issue. Although the Supreme Court regardsthe nation’s legislation as the “clearest and mostreliable objective evidence of contemporary values” (Atkins, supra, 536 U.S. at p. 312, internal quotation marks omitted), it has also examined actual sentencing practice to determineif there is any national consensus (Graham, supra, 130 S.Ct. at p. 2023). With respect to this, appellant points to a study indicating that of 6,807 juveniles in the nation servinglife in prison (non-LWOP)sentences as of 2009, 2,623 were incarcerated in California. (POB 20-22, citing The Sentencing Project, No Exit: The Expanding Use ofLife Sentences in America (July 2009), located at www.sentencingproject.org.) He argues that this “table shows how 29 disproportionate California’s sentencing practice has become.” (POB 20.) But nothing in this table indicates how manyofthese sentences were for homicide, attempted homicide, or nonhomicide offenses. Nor does the table report how manyoftheselife sentences carried a minimum parole date that exceeded the juvenile’s life expectancy. The study also does not indicate whetherthe proportion ofjuvenile life sentences to adult life sentences in California is higher than in other jurisdictions, or whether a higher numberof crimes committed by juveniles in California, particularly among gang members,also correlates to the amountofjuvenilesin California serving life sentences. In short, the cited statistics fail to show an actual sentencing practice that demonstrates a national consensus against the type of sentence in this case.'? . | Thatthere is no national consensus against the sentencing practice in this case, the Supreme Court hasinstructed, while entitled to great weight, is not itself determinative of whether a punishmentis cruel and unusual. In accordance with the constitutional design, the task ofinterpreting the Eighth Amendmentremains our responsibility. The judicial exercise of independent judgmentrequires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the Court also considers whether the challenged sentencing practice serves legitimate penological goals. '3 Another study appellant refers to, reporting 182 juvenile homicide arrests in California in 2009,is insufficient to show how manyjuveniles are currently serving life sentences for homicide convictions in California. (See POB 22,citing Cal. Dept. of Justice, Juvenile Justice in California, Table 4, Juvenile Felony Arrests, 2009 (July 2010).) In any event, even assuming,as appellant appears to suggest, that this numberis typical, the past 15 years would amountto 2,730 juveniles arrested for homicide crimes. In this scenario, a high proportion of the 2,623 juvenile life sentences in California likely would have resulted from homicide convictions. 30 (Graham, supra, 130 S.Ct. at p. 2026, internal citations omitted.) The Court in Graham observedthat “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” (Graham, supra, 130 S.Ct. at p. 2026.) The Court also recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving than are murderers.” (Id. atp. 2027.) Considering the diminished culpability ofjuvenile offenders in general and the diminished culpability of a defendant who commits a nonhomicide crime, the Supreme Court reasonedthat “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.” ([bid.) Here, appellant’s three premeditated attempted murders with gang, firearm, and great bodily injury enhancements demonstrate a categorically greater culpability than Graham’s armed burglary. Under Graham, because appellant intendedto kill in each offense, he was not “categorically less deserving” of severe punishment and did not have “a twice diminished moral culpability” than murderers. Also, a juvenile like appellant who intendsto kill, andtries to kill, three different persons, especially in a premeditated fashion, is one whoseculpability is at least treble. Appellant’s crimes were even more serious because,as the jury found, they were committed for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. (See Pen. | Code, § 186.22, subd. (b)(1).) This Court recently noted that the Legislature has determined that gang ““‘activities, both individually and collectively, present a clear and present danger to public order and © | safety ....’” (People v. Albillar (2010) 51 Cal.4th 47, 55, quoting Pen. Code, § 186.21; see also id. at pp. 68-69 (con. opn. of Werdegar,J.) [‘[t]he proliferation of criminal street gangs and gang-related crimesis deeply troubling, impacting our neighborhoods, our citizenry and our families, and 31 threatening the individualpersonal security of us all. In the California Street Terrorism Enforcement and Prevention Act (the STEP Act), the Legislature has attempted to addressthis disturbingstate ofaffairs by imposing enhanced punishment”].) In addition, appellant’s personal dischargeof a firearm in commission of the crimes under Penal Codesection 12022.53, subdivision (c), also elevated their seriousness and increased his culpability. As this Court has determined: “‘The legislative intent behind section 12022.53is clear: “The: Legislature finds and declares that substantially longer prison sentences must be imposed on felons whouse firearms in the commission oftheir crimes, in order to protect our citizens andto deter violent crime.”’” (People v. Palacios (2007) 41 Cal.4th 720, 725, quoting People v. Garcia (2002) 28 Cal.4th 1166, 1172, quoting Stats. 1997, ch. 503, § 1.) Andthis Court has recognizedthat section 12022.53, subdivision (d), the great bodily injury or death provision,serves the legislative goal “‘to deter crimes in which a firearm is used and to incapacitate those who use firearmsin crimes.’” (People v. Oates (2004) 32 Cal.4th 1048, 1057, emphasisin original, quoting Sen. Com. on Public Safety, Analysis of Assem.Bill No. 4 (1997-1998 Reg. Sess. as amended Apr. 28, 1997).) Appellant’s discharge ofa firearm andinfliction of great bodily injury during his crimes heightened his culpability. Asto the severity of the punishment in question, each of appellant’s three sentences (40to life, 35 to life, and 35 to life), in contrast to the life without parole sentence in Graham,allowed for the possibility of parole within appellant’s lifetime. Although eachsentenceis lengthy, it does not pose the concern presented in Graham of determining at the outset that the | juvenile cannot be reformed. It was only by appellant’s repeated commission ofthese offenses on different victims that he subjected himself 32 to a total penalty that amounted to a sentence with a minimum parole eligibility that should exceedhislife. Further, only where “none of the goals of penal sanctions that have been recognized as legitimate—retribution, deterrence, incapacitation, and rehabilitation, [citation]}—provides an adequate justification” should the sentence at issue be considered grossly disproportionate. (Graham, supra, 130 S.Ct. at p. 2028.) In this inquiry, “[c]riminal punishment can have different goals, and choosing amongthem is within a legislature’s discretion.” (/bid.) In light ofthe serious nature of the crimes and enhancements,appellant’s sentences, consideredeither individually or cumulatively, serve the legitimate goals ofretribution, deterrence, and incapacitation. And, individually, each of his sentences furthers the goal of rehabilitation. Since at least one, and in fact all four, of the goals of punishmentareserved in this case, his sentence shouldnot be considered grossly disproportionate to his crimes. First, retribution is “an expression of society’s moral outrageat particularly offensive conduct” (Thompson, supra, 487 U.S.at 836, internal quotation marks omitted), andits “rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender,” rendering it a “legitimate reason to punish” (Graham, supra, 130 S.Ct.at p. 2028, internal quotation marks omitted). Although juveniles generally are considered less culpable than adults for criminal offenses and therefore less deserving ofthe strictest punishments,the goal of retribution is better served with respect to a lengthy term-of-years sentence where a juvenile commits premeditated attempted murders against three victims with a firearm, to benefit his gang, causing great bodily injury to one of the’ victims, than in Graham, whereajuvenile received life without parole for a 33 single, nonhomicideoffense, armed burglary.'* Underthese circumstances, appellant’s punishment did reflect the “community’s moral outrage”at these crimes. (See Graham, supra, 130 S.Ct. at p. 2028.) Second, as to deterrence, the Supreme Court has explainedthat“the punishmentoflife imprisonment without the possibility of paroleis itself a severe sanction, in particular for a young person”and thusacts as a sufficient deterrent for juveniles that commit homicide. (Roper, supra, 543 U.S. at p. 572.) Similarly, increasing a sentence to lengthen the minimum parole eligibility date upon each premeditated attempted murder conviction servesto deter a juvenile from trying to kill more people. Therefore, even accounting for a juvenile’s “diminished moral responsibility” generally, the sentences for appellant’s additional crimes effectively promote deterrence both as to appellant as well as other, potential offenders. In this way, appellant’s sentences have a greater deterrent effect then the LWOP sentencefor the single, nonhomicide offense in Graham.'° 4A fitting comparison ofculpability is therefore not, as appellant contends, merely between attempted murder and murder (POB 16-17), but rather between three aggravated attempted murders and one murder. Respondentalso disagrees with appellant’s characterization of one of the victims, Bautista, as being “relatively unscathed” from the shooting. (POB 17.) The jury found Bautista had suffered great bodily injury based upon the uncontested evidence that appellant shot him in the back and upper shoulder, causing him to fall to the ground and to bleed from his upperback, nose, and mouth, while having breathingdifficulty. Bautista then stayed in the hospital for over a day. Furthermore, appellant’s apparentinference that Bautista’s recantingat trial showed reasonable doubtas to his guilt (POB 17)flies in the face of appellant’s admission of guilt at trial and the uncontradicted testimony from other gang members that “snitches”risk being killed even by their own gang. '° Appellant quotes Sumner v. Shuman (1967) 483 U.S. 66, 83 [107 S.Ct. 2716, 97 L.Ed.2d 56} for the proposition that “there is no basis for distinguishing, for purposes of deterrence, between an inmateservinga life sentence withoutpossibility of parole and a person serving several (continued...) 34 Third, the Supreme Court has described incapacitation as “an important goal” of punishment. Finding it justified, however, requires a determination at the outset that the juvenile is “incorrigible,” whichis “difficult” to do. (Graham, supra, 130 S.Ct. at p. 2029.) But just as with murder, a premeditated attempted murder,particularly when committed multiple times with various gang,firearm, and great bodily injury enhancements, ought to permit the sentencing discretion to impose punishment consecutively on the groundthatthis is a juvenile capable of committing crimesthat show “irreparable corruption.” (Roper, supra, 543 US. at p. 573.) Thetrial court’s sentence was consistent with this determination, especially considering that while one of appellant’s gang rivals wastestifying, appellant mouthed, “You’re dead,” in his direction. (3RT 1235.) Fourth, regarding rehabilitation, appellant, unlike Graham, wasnot denied the possibility of regaining his freedom upon showing reformation and penitencefor a single offense. At that point, appellant would have had the potential for parole. It was not until he committed additional attempted murdersthat this opportunity was effectively denied. In this way,asto his sentence for each crime, which is the only relevantinquiry for Eighth Amendmentpurposes, appellant had a meaningful chanceto obtain release in his lifetime. Accordingly, rehabilitation was a fourth goal served by (...continued) sentences of a numberofyears, the total of which exceeds his normallife expectancy.” (POB 8, 27.) The Supreme Court in Sumner, however, was evaluating the deterrent value of a sentence (capital punishment)for a crime committed while the inmate already is serving his life without parole or lengthy-term-of-years sentence. (Sumner, supra, 483 U.S.at pp. 83-84.) By contrast, this case requires an evaluation of whether the goal of deterrence is served before the person commits the additional crimes for which hereceives a sentence exceedinghis life expectancy. 35 each punishmentin this case. Moreover, given the seriousness of appellant’s offenses, rehabilitation was adequately justified by his total sentencein that he retained “his potential to attain a mature understanding of his own humanity” even in prison. (Roper, supra, 543 U.S.at p. 573.) Appellant also contendsthat there is an international consensus againstlife sentences for juveniles, pointing to the Graham Court’s conclusionthat other nations forbid life without parole sentences for juveniles for nonhomicide offenses andto articles asserting that European nations do not impose lengthy maximum sentencesfor juveniles even for serious crimes. (POB 22-25.) But whether a juvenile convicted of appellant’s offenses would not receive a life sentence in someotherparts of the world is not, by itself, material under Supreme Court jurisprudence. International law can only validate the reasoning of an independent conclusion that the sentencing practice is cruel and unusual; international law onits own cannot warranta categorical prohibition of a sentencing practice. (Graham, supra, 130 S.Ct. at p. 2034 [“[t]he Court has treated the laws and practices of other nations and international agreementsas relevant to the Eighth Amendmentnot because those normsare binding or controlling but because the judgmentof the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstratesthat the Court’s rationale has respected reasoning to support it”].) As there is no national consensus against the sentencing practice at issue in this case, and as the punishmentis not indefensibly severe in light of the offender’s high culpability, appellant’s reliance on international law is unavailing. (See People v. Mungia (2008) 44 Cal.4th 1101,.1143 [“California’s status as being in the minority ofjurisdictions worldwide that imposecapital punishment, especially in contrast with the nations of Western Europe, does not violate the Eighth Amendment’’].) 36 Lastly, appellant contends that under Graham,thetrial court violated the Eighth Amendmentby sentencing him without adequately considering his personal circumstances. (POB 29-31.)!° Initially, appellant has forfeited this claim by failing to object on this ground at sentencing. (3RT 1285-1289; see People v. Scott (1994) 9 Cal.4th 331, 354 [‘“‘claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’’].) Were appellant’s contention cognizable, however, it would be meritless. Nothing in Graham overruled Harmelin, supra, 501 U.S. 957, where the Supreme Court squarely rejected a claim that an LWOPsentence was unconstitutional becausethetrial court did not consider any mitigating factors. The Court in Harmelin held that the Eighth Amendmentdoesnot require consideration of mitigating factors in noncapital cases.’ (/d. at - -p. 995; see Smith v. State (Alaska App., July 1, 2011)_ _P3d__ [2011 ~ WL 2650000, *9] [“the holdings and the reasoning of Simmons and Graham do not support an across-the-board mitigation of sentences for juvenile offenders who are prosecuted within the adult justice system”]; Welch v. State (Tex.App. 2011) 335 S.W.3d 376, 381 [“discussion of a constitutional rule regarding mitigating evidence is conspicuously absent from the decision” in Graham]; Miller v. State (Ala.Crim.App., Aug. 27, 2010) So0.3d__— [2010 WL 3377692, *9] [because the juvenile “did not receive a sentence of death,” his LWOPsentenceis not subjectto “the '© Appellant’s characterization of his crimes as “spontaneous, impulsive, and inexplicable” (POB 30) is contradicted by the jury’s findings that the attempted murders were premeditated and committed to benefit his gang. And appellant threatenedto kill a prosecution witness during his testimony, confirming an ingrained homicidal nature. M Appellant’s citation to Sumner, supra, 483 U.S. at p. 85 (POB 29), is inapposite, as that passage dealt with the consideration of mitigating factors at capital sentencings. 37 individualized-sentencing requirement of the Eighth Amendment”; but see People v. Mendez, supra, 188 Cal.App.4th at pp. 65-66 [where, in granting relief based on a proportionality challenge toa Juvenile’s 84-years-to-life sentence,the court notesthatit is “particularly troubled by thefact that the recordis silent as to Mendez’s personal and family life and upbringing . . [a]nd it does not appearthat the trial court had any such evidence before imposing consecutive sentences”].) Moreover, a categoricalrule, by definition, does not account for the extenuating circumstances of each case. In any event, nothing in the record suggests thatthe trial court, in exercising its discretion, did not evaluate any potentially relevant sentencing factors, including appellant’s age.'® (See People v. Stowell (2003) 31 Cal.4th 1107, 1114 [“where a statement of reasonsis not required and therecordis silent, a reviewing court will presumethetrial court had a properbasis for a particular finding or order”); Pen. Code, § 664 [“[iJt is presumedthat official duty has been regularly performed”’]; Cal. Rules of Court, rule 4.409 [“[rJelevantcriteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unlessthe record affirmatively reflects otherwise’’].) In sum, this Court should find, in its independent judgment,that consecutively sentencing a juvenile for three counts ofpremeditated attempted murder and gang,firearm, and great bodily injury enhancements to a total sentence of 110 yearsto life is not categorically unconstitutional. By so doing, this Court should confirm what objective evidence from '8 Tn the answerto the petition for review of the Court of Appeal’s denial of appellant’s petition for writ of habeas corpus, respondent argued that appellant’s allegations of incompetenceattrial and ineffective assistance of counselfor failure to seek further psychiatric evaluations were baseless. This Court subsequently denied appellant’s petition for review. 38 nationallegislation already demonstrates: there is no consensus against the practice. CONCLUSION This Court should affirm the decision of the Court of Appeal affirming appellant’s judgment of conviction. Dated: August 9, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General JAIME L. FUSTER Deputy Attorney General Ta LAWRENCE M.DANIELS Supervising Deputy Attorney General Attorneysfor Respondent LMD:fc LA2011501888 60662965.doc 39 CERTIFICATE OF COMPLIANCE I certify that the attached ANSWER BRIEF ON THE MERITSusesa 13 point Times New Roman font and contains 11,863 words. Dated: August 9, 2011 KAMALA D. HARRIS Attorney General of California Jo yu LAWRENCEM.DANIELS Supervising Deputy Attorney General Attorneysfor Respondent DECLARATIONOF SERVICE BY U.S. MAIL Case Name: People v. Rodrigo Caballero No.: 8190647 I declare: I am employed in the Office of the Attorney General, whichis the office of a memberof the California State Bar, at which member’s direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On August 10, 2011, I served the attached ANSWER BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows: David E. Durchfort, Esq. John A. Clarke, Clerk of the Court Kosnett & Durchfort Los Angeles County Superior Court 11355 W. Olympic Blvd., Suite 300 111 N. Hill Street Los Angeles, CA 90064 Los Angeles, CA 90012 FOR DELIVERY TO: California Appellate Project Hon. Hayden Zacky, Judge 520 South Grand Avenue, 4th Floor Los Angeles, CA90071 The Honorable Steve Cooley, District Attorney Los Angeles County District Attorney’s Office California Court of Appeal 210 West Temple Street Second Appellate District, Division Four Los Angeles, CA 90012-3210 300 South Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 The one copy for the California Appellate Project was placed in the box for the daily messenger run system established between this Office and California Appellate Project (CAP) in Los Angeles for same day, personal delivery. I declare underpenalty of perjury under the lawsofthe State of California the foregoingis true and correct and that this declaration was executed on Aug 2011, at Los Angeles, California. Frances Conroy Declarant LMD:fc LA2011501888 60664353.doc
