PEOPLE v. CONTRERAS

Appellant, William Rodriguez, Answer Brief on the Merits

Cal.January 17, 2017

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) ) PLAINTIFF AND ) RESPONDENT, ) ) CASE NO. 8224564 VS. ) SUPREME COURT ) FILED LEONEL CONTRERASand, ) WILLIAM S. RODRIGUEZ, ) JAN 1 7 2017 ) Jorge Navarrete Clerk DEFENDANTS AND ) APPELLANTS. ) ) Deputy Fourth Appellate District, Division One, Case No. D063428 San Diego Superior Court, Case No. SCD236438 The Honorable Peter C. Deddeh, Judge WILLIAM S. RODRIGUEZ'S BRIEF ON THE MERITS Daniel J. Kessler, Esq. SBN 157163 KESSLER & SEECOF, LLP 2254 Moore Street, Suite 201 San Diego, California 92110 (619) 325-0795 Attorney for Defendant and Respondent William Rodriguez IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF AND RESPONDENT, CASE NO.8224564 VS. LEONEL CONTRERASand, WILLIAM S. RODRIGUEZ, DEFENDANTS AND ) ) ) ) ) ) ) ) ) ) ) APPELLANTS. ) ) Fourth Appellate District, Division One, Case No. D063428 San Diego Superior Court, Case No. SCD236438 The Honorable Peter C. Deddeh, Judge WILLIAM S. RODRIGUEZ'S BRIEF ON THE MERITS Daniel J. Kessler, Esq. SBN 157163 KESSLER & SEECOF, LLP 2254 MooreStreet, Suite 201 San Diego, California 92110 (619) 325-0795 Attorney for Defendant and Respondent William Rodriguez I. III. IV. TOPICAL INDEX ISSUE ON REVIEW...ccccecccseessssesscseseesessesssesscsessesscsssassaeseetatensucauesaenseess Nt INTRODUCTION 000.ccccceceeceseseesesesesecscsecsecsecsesssscsseessccsesaveceaesaeesseacancness 1 SUMMARYOF ARGUMENT0.0000. cccccccscscsssecesssseseeesecsscscseseaecaresessueausasseceass 2 STATEMENT OF THE CASE AND FACTS........cccccccecccccceesscescesseseesssecsess 3 A. The evidence At triad ......c..ccccccecccccseessssssessssssesssssssssensessssssscessusesatenssassaesacsesecs 3 B. The trial and verdict... ciceccccccesccesssvssssssescsesecssensssssssessssssesssssesssuseseaesasvscsenene 7 C. The sentencing hearing and Sentence.....eccccccccccscccscsessescssvsvecsecsseecseesssssssessesees 8 D. The Court ofAppeal Opinion...........ccccccccccccccesccescsssesscssssessssssseaceseesssssessesseeses 10 ARGUMENT.000.ceecccccccssesscceessseeceeceseeseeessesenesseeues vosteeessseesseesesseeenteneeeneetaee 11 A TERM OF IMPRISONMENTOF 50 YEARS TO LIFE FOR A NONHOMICIDE OFFENSE COMMITTEDBYA 16 YEAR OLD OFFENDER IS THE FUNCTIONAL EQUIVALENTOF LIFE WITHOUT THE POSSIBILITY OF PAROLE BECAUSEIT DENIES THE JUVENILE OFFENDER A MEANINGFUL OPPORTUNITY TO DEMONSTRATE MATURITY AND REHABILITATION FOR RELEASE ON PAROLE; SUCH A SENTENCE VIOLATES THE EIGHTH AMENDMENT'S BAN ON CRUEL AND UNUSUAL PUNISHMENT.0000... cceeccsesesessssseseescsscscsessesssescsussesvassesscsesseasacees 11 An TNtrOduUctiOn .0....ccccecccccccccceccceescsessusssccesscstscsecsseesesasessaseessssssesstssesssssseceessccesces 11 B. A sentence that only offers ajuvenile offender the prospectofrelease Srom prison andreentry into society at the endofhis orherlife does notprovide thejuvenile offender with a meaningful opportunity to demonstrate maturity and rehabilitation; such a sentenceis the functional equivalentoflife withoutparole. ............cccccccccccescccsssccsscescessessesees 11 1. For a sentence to be constitutional under the Eighth Amendment, a juvenile offender who commits a nonhomicide offense must be given a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation; appellant's 50-years-to-life sentence does not comply with that requirement. 00.00.00... cccceesccsseeesscceesecccesesccees 11 2. The Attorney General's proposedlife expectancy rule would render meaningless the fundamental rehabilitation and reform principles underlying the Graham and Miller decisions. ....................... 15 3. Any life expectancy approach should take into account the diminished life expectancy ofprisoners in California and the individual characteristics of the offenders............ccccccccccccseeececececeeees 16 C. This Court should reject the Attorney General's proposed rule, which would requiretrial courts to makelife expectancyfindings based on nationalvitalstatistics reports, because it would unreasonably complicate sentencing hearings and encourageracial andgenderdisparity UN SCNLENCING. oo. ceeccescccessceseeeeeesececessesesusessssesseesecssscsecsesscsssseevactsseenssensuenues 18 D. The Legislature has determinedthatproviding ajuvenile offender first opportunity to demonstrate maturity and rehabilitation after serving 25years in state prison complies with Graham. Providing ajuvenile offender with afirst opportunity to demonstrate maturity and rehabilitation when the offenderis in his or herforties avoids the constitutional complications created by the Attorney General's proposedlife expectancy rule and should befollowedin this case. .............. 20 VI. CONCLUSION0000scsccseesecssesesesteesseessesseseseeseeseaesesssssecescseeeeessseasens 21 CERTIFICATE OF WORD COUNTocccccccscesssesssesesseessescsssseesstesssssscstsvsasasceasacsaseaesaes 22 il TABLE OF AUTHORITIES CASES Graham v. Florida (2010) 560 U.S. 48 vo.cccccccccccesesscsscesccsecscsscsssssesscscsevsevsarcaeeesenespassim Miller v. Alabama (2012) 567 U.S. [132 S.Ct. 2455) woeccc ceeceeeseeeeseseeespassim People v. Caballero (2012) 55 Cal.4th 262.......0cccccccscccssscsscssecssessseteressecseeeeas 8, 10, 13, 14 People v. Franklin (2016) 63 Cal.4th 261 .....cccccccccsscssscssecssssscsssssssscsscsssessecssesseeess 13, 20 People v. Mendez (2010) 188 Cal.App.4th 47 .....cccccccccsccscesesscsscssesssscsscsssecsseessesecseceneas 14 People v. Olivas (1976) 17 Cal.3d 236 ....ccccscccsscssssescessessssscsscsscsecsscssssvsscsvecessecsacenesanenssas 19 People v. Perez (2013) 214 CalApp.4th 49 ........ccccccccccsccsccsssssccsessscesvscsscesrsssessecsscessnses 20 Roper v. Simmons (2005) 543 U.S. S51 .o..ccccsscsssecsessesscessessscscseccsessssscsecsesecesecessececessenss 12 State v. Null Iowa 2013) 836 N.W.2d 41 oo... cccccccccscsscssecsscsscseesesssssescasscceecesssasesetsecseeees 18 United States v. Tavera (E.D.N.Y. 2006) 463 F.Supp.2d 493 o..ccccccccsceccsecessesesseessssees 17 STATUTES Penal Code SCCTION 207(a) oo... eeececeescessccsessessessssseesecsceeseesesscsecsecssessssssssevscressevsuacesenevanensersesasenecsess 7 SECHON 261 (A)(2).......sseecsesesceseeeceeseesecseeessessesessssecessssessesecsessscssssvsssseacenscsassussseesseaees 8 SECHION 286(C)(2)(A) ...eeeecescsecesecssesseeseceseeseescseessessesscssssecsessscssseassssscsaessusssesaenaveees 8 SECTION 288a(C)(Q(A).....eecccescscesssesssscssssessesscsscsesscssccsecsessessesssssssssavetseessesnscsecaueeseensas 8 section 667.61(a), (C) & (A)(2) oo... cesccsccsscssessesccsssessecsssscessecsscsssacsevseceseetesauessecasenes 8 SECTION 667.61(b), (C) & (C)...eeeeccsscsssessecescsessessesecsscsscsscsuesscsssssssvsesauerssessaseuseaecsecsees 8 SOCHON 1170.45oeesesesceeceeeeceesesceaessccsesssecsesaessesecasseesecsesscecsvavscsasacecsaesaesueness 19 SECTION 3051... eeececcssssssssssesseceeseccsssceecesscsvsscesssecsasecesseresesstaesecesssersseesssecsecese 20, 21 Welfare andInstitutions Code SECTION TO7(G)(1) oo. eeeesesesscesecesecesessssesessessescssessecessessssecsscssssessssacesesseaaseaeesssenseeres 7 SECTION TO7(A)(2)(A)....seessssecssccessesseececesseessescsscsscessccssesscssscsessscsseaesesesecsaseaecesecsenecs 7 ili CONSTITUTIONAL PROVISIONS United States Constitution Eighth Amendment...........cccccccssccesssceseceesecseeecscsevsssseussecsssecsssesseecaneceas 10, 11, 12, 15 OTHER Centers for Disease Control and Prevention, Health, United States, 2013, table 18 .o.ccccccesscssssccsscseceseseseees 14 Department of Justice, OPEN JUSTICE oo... eeseescessesceseeseeseesesessessssssscessecaessssscssssssecsscusessessecserenecacanas 17 Imai, Analysis of2014 Inmate Death Reviewsin the California Correctional System (July 2015), available at, uo... cece eeeceeeeeseeees 17 Imai, Analysis of2012 Inmate Death Reviewsin the California Correctional System (July 2015) p. 7, available at, The jury determined that appellant was notguilty of one of the original chargesandit failed to reach unanimousverdicts on several other charges. Those charges werelater dismissed. (6C.T. 1934, 1945.) States under extremely difficult conditions, and he even witnessed the death of a fellow migrant during his journey. Asa result of his traumatic upbringing and ordeals, appellant wasdiagnosed as suffering from post-traumatic stress disorder, which he masked with alcohol and marijuana. (6C.T. 1684-1685, 1687-1688, 1798.06-1798.07, 1798.14.) The psychologist concluded: "[Appellant] presents as a sad and defeated minor whorarely received any type ofpositive affection, attention or encouragement, and who never received the therapeutic or familial support needed to counter the devastating impact of abuse and trauma." (6C.T. 1798.08.) Appellant had noprior criminal record when the crimes occurred, and he immediately confessed his involvementto police when he wasarrested. He expressed remorse for his actions and apologized to his victims. (6C.T. 1694.) Appellant's counsel askedthe trial court to sentence appellantto a determinate term of 20 to 30 yearsin state prison. (6C.T. 1695.) She argued that a 50-years-to-life prison sentence wasnot proportional to the crimes. (16R.T. 2906; 6C.T. 1675-1695.) Shesaid: "When the Court says he has to have a meaningful opportunity to obtain parole, that he has to have an opportunity to show that he has been rehabilitated, that he had matured, that he's turned into a responsible adult, I think the spirit of the law is seeing that he should then have an opportunity to have a life outside of the prison walls, not a handful of years but a life wherehecanstill show that he he's a productive person, where he canstill accomplish something outside ofprison life. | If he's given a 50-to-life- sentence, I think that takes away all of his hope." (16R.T. 2908:9-19.) After hearing arguments from both sides, the trial court agreed that it could not constitutionally sentence appellant to serve 200 yearsto life in state prison. (16R.T. 2908-2909.) Instead, the trial court sentenced appellant to serve two consecutive 25- years-to-life sentences, for a total term of 50 yearsto life in state prison. (16R.T. 2916.) Thetrial court opined that this term wasthe highest it could impose on appellant under the controlling legal authorities. (16R.T. 2914:16-22.) Thetrial court also said thatit would not run the two 25-years-to-life terms concurrently as requested by appellant's counsel, "because in my thinking, you don't get a free victim." (16R.T. 2915-2916:27-2; 6C.T. 1864-1866, 1946-1948.) D. The Court ofAppeal opinion. Appellant argued on appealthat his 50-years-to-life sentence violated the Eighth Amendment's prohibition against cruel and unusual punishment and the Court of Appeal agreed. (Opinion at 38.) After analyzing the United States Supreme Court cases of Graham vy. Florida, supra, 560 U.S. 48 (Graham) and Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455], the Court of Appeal concluded: "Pending further guidance, we must consider the constitutional propriety of Rodriguez's and Contreras's sentences in light of the two interrelated requirements underpinning Graham's holding:(1) a state must give a juvenile nonhomicide offendera realistic chance to demonstrate maturity and reform, and (2) a state may not decide at the time of sentencing a juvenile nonhomicide offenderis 'irredeemable' and'neverwill befit to reenter society.’ (Graham, supra, 560 U.S. at pp 75, 79, 82.) Rodriguez's and Contreras's sentences do not meet either requirement. Even under an optimistic projection oftheir life expectancies, the sentences preclude any possibility of parole until they are near the end oftheir lifetimes as the parties agree Rodriguez will be 66 and Contreras will be 74 when they are first eligible for parole. This falls short of giving them the realistic chance for release contemplated by Graham." (Opinionat pp. 40-41.) The Court of Appeal reversed appellant's sentence and remandedthe matter for the trial court to "considerall mitigating circumstances attendantin the appellants’ crimes and lives and impose a time when they mayseek parole from the parole board consistent with the holding in Graham, supra, 560 U.S.at 82. (Caballero, supra, 55 Cal.4th at pp. 268-269.)" (Opinion at p. 42.) The Attorney General petitioned this Court for review. 10 S e AN B t i n te le ra he le es one og V. ARGUMENT A TERM OF IMPRISONMENTOF 50 YEARS TO LIFE FOR A NONHOMICIDE OFFENSE COMMITTEDBYA 16 YEAR OLD OFFENDER IS THE FUNCTIONAL EQUIVALENT OF LIFE WITHOUT THE POSSIBILITY OF PAROLE BECAUSEIT DENIES THE JUVENILE OFFENDER A MEANINGFUL OPPORTUNITY TO DEMONSTRATE MATURITY AND REHABILITATION FOR RELEASE ON PAROLE; SUCH A SENTENCE VIOLATES THE EIGHTH AMENDMENTI'S BAN ON CRUEL AND UNUSUAL PUNISHMENT. A. Introduction. Appellant was 16 years old when he committed the offenses in this case, and, as the Court of Appeal found,he will not be eligible for parole until he is 66 years old. (Opinion at p. 41.) Because this sentence effectively denies appellant a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" (Graham, supra, 560 U.S. 48, 75), it is equivalent to a life-without-parole sentence, particularly when considering data showing that the average age of death of prisoners in California is 60 years old. A rule which would authorize trial courts to setfirst parole eligibility dates at the expected end ofjuvenile offenders’ lives, as proposed by the Attorney General, discards the fundamental principle of the Graham opinion that children, who have the capacity to mature and rehabilitate, should be given a meaningful opportunity to demonstrate such maturity and rehabilitation for release. B. A sentencethatonly offers ajuvenile offender theprospect ofrelease from prison and reentry into society at the endofhis or herlife does not provide thejuvenile offender with a meaningful opportunity to demonstrate maturity and rehabilitation; such a sentenceis the functional equivalentoflife withoutparole. 1. For a sentence to be constitutional under the Eighth Amendment, a juvenile offender who commits a nonhomicide offense must be given a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation; appellant's 50-years-to-life sentence does not comply with that requirement. 11 In Graham,the United States Supreme Court held that "for a juvenile offender who did not commit homicide the Eighth Amendmentforbids the sentence oflife without parole." (Graham at 74.) The Court reasonedthat, based on the nature of the crime and the juvenile's undeveloped moral sense, "when compared to an adult murderer, a juvenile offender who did not kill or intendto kill has a twice diminished moral culpability." (Id. at 69.) "As comparedto adults, juveniles have a "lack ofmaturity and an underdeveloped sense of responsibility"; they 'are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters are 'not as well formed.’ Jd., at 569-570, 125 S.Ct. 1183, 161 L.Ed.2d 1. These salient characteristics mean that'[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whosecrimereflects unfortunate yet transient immaturity, and the rare juvenile offender whosecrimereflects irreparable corruption.’ Jd., at 573, 125 §.Ct. 1183, 161 L.Ed.2d 1. Accordingly, ‘juvenile offenders cannot with reliability be classified among the worst offenders.’ Jd., at 569, 125 S.Ct. 1183, 161 L.Ed.2d 1." (Graham at 68, quoting, Roperv. Simmons(2005) 543 U.S. 551.) Moreover, "[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults. Roper, 543 U.S., at 570, 125 S.Ct. 1183." ([bid.) Thus, according to the Court in Graham,for a sentence to be constitutional under the Eighth Amendment, a juvenile offender who has committed a nonhomicide offense must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (/d. at 75) A state may not render a judgmentat the outset that a juvenile offender will neverbe fit to reenter society. (Ibid.) In Miller v. Alabama, supra, 132 S.Ct. 2455, the High Court extended the reasoning in Graham to homicide offenses, finding unconstitutional state sentencing schemes that compellife without parole for juvenile offenders. (/d. at 2469.) "Mandatory life without parole for a juvenile precludes consideration of his chronological age andits hallmark features—among them, immaturity, 12 impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him— and from which he cannotusually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may haveaffected him. Indeed,it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example,his inability to deal with police officers or prosecutors (including on a plea agreement)or his incapacity to assist his own attorneys." (/d. at 2468.) A mandatory life without parole sentence "disregards the possibility of . rehabilitation even whenthe circumstances most suggest it." (/bid.) Miller therefore requires that, before sentencing a juvenile offenderto a lifelong prison sentence, thetrial court must consider the "distinctive attributes ofyouth" and how thoseattributes "diminish the penological justifications for imposing the harshest sentences on juvenile offenders." (/d. at 2465 and 2467.) In People v. Caballero, supra, 55 Cal.4th 262, this Court concluded that Miller “madeit clear that Graham’s ‘flat ban' on life without parole sentencesapplies to all nonhomicide cases involving juvenile offenders, including the term-of-years sentence that amounts to thefunctional equivalentof a life without parole sentence imposed in this case." (/d. at 267-268,italics added.) "Graham's analysis does not focus on the precise sentence meted out. Instead, as noted above,it holds that a state must provide a juvenile offender 'with somerealistic opportunity to obtain release’ from prison during his or her expected lifetime." (/d. at 268.) This Court "did not further elaborate what it means for a sentenceto be the ‘functional equivalent’ ofLWOP ...." (People v. Franklin (2016) 63 Cal.4th 261, 276.) Nevertheless, the sentence at issue in Caballero, which required the defendantto serve 110 years before becomingeligible for parole, constituted cruel and unusual punishment because, with the parole eligibility date falling outside of that juvenile offender's natural life expectancy, the sentence denied him the "opportunity to 'demonstrate growth and 13 maturity’ to try to secure hisrelease, in contravention of Graham’s dictate." The sentence amounted to a defacto term oflife without parole. (People v. Caballero, supra, 55 Cal.4th 262, 268.) In a footnote, this Court defined the term "life expectancy" as meaning, "the normallife expectancy of healthy person of defendant's age and gender living in the United States." (/d. at 267, fn. 3.) Underthis Court's definition oflife expectancy in the footnote in Caballero, and without considering the impact ofincarceration, appellant's total life expectancy would be about 76 years accordingto the National Vital Statistic Report cited by the Attorney General, and accordingto the statistics cited in People v. Mendez, (2010) 188 Cal.App.4th 47, 63, or it would be about 72.5 years according to a report by the Center for Disease Control and Prevention in May of 2014. (Centers for Disease Control and Prevention, Health, United States, 2013, table 18 (as ofNov. 5, 2014) [72.5 years for male born in 1995].) Therefore, because appellant would haveto live to be 66 years old before he could ever becomeeligible for parole, and, again, without accounting for the impact of incarceration, appellant would, at best, have between six-and-a-half and ten yearsleft to live if granted parole at his very first parole hearing. Co-appellant Contreras, who would be 74 years oldat the timeofhisfirst parole eligibility date, would have twoyearsleft to live, or be dead. Whethera first parole eligibility date is with two years, or ten years,left to live based onvital statistic records, both appellant and Contreras will be denied a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Graham, supra, 560 U.S. at 75.) Their sentences deny them anyreal hope for any sort oflife after having spent half a century behind prison walls. 14 2. The Attorney General's proposed life expectancy rule would render meaningless the fundamental rehabilitation and reform principles underlying the Graham and Miller decisions. The Attorney General's proposed life expectancy rule, which would allowtrial courtsto set first-parole-eligibility dates near, or even at, the end of the juvenile offenders’ expected lives (such as the 50-years-to-life sentence imposedin this case), disregards the rehabilitation and reform principles underlying Graham and Miller decisions, andit "forswears altogether the rehabilitative ideal." (Graham, supra, 560 USS. at 74.) As the Court in Graham noted, "'[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that ttta minor's character deficiencies will be reformed. (Jd. at 68, quoting, Roper v. Simmons (2005) 543 U.S. 551, 570.) Children have the "capacity for change." (Miller, supra, 132 S.Ct. at 2465; See, Graham at 79 ["Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation."].) A juvenile offender should not be required to wait until the very end ofhis orherlife for the first opportunity to demonstrate that reform. Not only would the Attorney General's proposed rule repudiate the High Court's core principle that children can reform, but it would ultimately render Graham's "meaningful opportunity" mandate meaningless by authorizingtrial courts to setfirst- parole-eligibility dates right before juvenile offendersare statistically expected to die. Under the Attorney General's proposal, any statistical life expectancyat the time of the first-parole-eligibility date, however short, would be acceptable for Eighth Amendment purposes. Thus, under the Attorney General's requested rule, a sentence that provides the juvenile offender with a first opportunity to demonstrate maturity and rehabilitation within as little as one year of the expected end ofhis or her life would not violate the Eighth Amendment. Such a result would throw Graham's "meaningful opportunity" mandate to the wind. 15 The imposition of fixed and essentially lifelong sentences based onlife expectancy statistics, as envisioned by the Attorney General, would deny juvenile offenders hope for the future and it would eliminate any motivation on their parts to demonstrate rehabilitation. The possibility of, at best, geriatric parole would hardly incentivize a youthful offender to becomea responsible person. Just as, under this Court's holding in Caballero, the 110-years-to-life sentence denied the juvenile offender a "meaningful opportunity" to demonstrate maturity and rehabilitation, so too would a sentencethat only offers the juvenile offendera first-parole-eligibility date at the expected end ofhis or her life. The offender would never hold a job, raise a family, or experience any sort of normallife. Such a sentence would bevirtually indistinguishable from a sentencethatis explicitly "without parole." It would mean a denial of hope for the juvenile offender and would “alter[] the offender’s life by forfeiture .. ..” (Graham, 560 U.S. at 69-70) This would notbe the kind of "meaningful opportunity" contemplated by the High Court in Graham. 3. Any life expectancy approach should take into account the diminished life expectancy of prisoners in California and the individual characteristics of the offenders. If this Court intends to adopta rule requiringtrial courts to set first-parole- eligibility dates based on an offender's life expectancy, and given the emphasis in Miller and Graham onthe characteristics and backgroundsofthe individual offenders, such a rule should require trial courts to take into accountthe offenders' life expectancies as prisoners in California, and their personal backgroundsandhealth histories. (See, Miller, supra, 132 8.Ct. 2455, 2468; Graham, supra, 560 U.S. 48, 68.) Recent data showsthat the average life expectancy of prisoners in California is far shorter than the life expectancies described in the vital statistics report presented by the Attorney General in her briefing in this case. According to Kent Imai, M.D., a consultant to the California Prison Receivership, the average age of death of inmates in California in 2014, excluding suicide, drug overdose, and homicide, was 60 years old. The average 16 age of death for all inmates in 2014 was 56 years old. (Imai, Analysis of2014 Inmate Death Reviewsin the California Correctional System (July 2015) p. 7, available at, .) In Dr. Imai's previous report, which calculated the average of death for California inmates in 2012 to be 55 years old, he notedthat the shortened life expectancy of California prisoners reflected "the higher prevalence of addiction to drugs and tobacco, chronic hepatitis C infection, depression and other severe mentalillnesses, and other social, racial and economicfactors." (Imai, Analysis of2012 Inmate Death Reviewsin the California Correctional System (July 2015)p. 7, available at, ; see also, United States v. Tavera (E.D.N.Y. 2006) 463 F.Supp.2d 493, 500 [life expectancy within federal prison considerably shortened].) Furthermore, even the Attorney General has acknowledged the diminished lifespan of prisoners. According to "OPEN JUSTICE," which the DepartmentofJustice calls "[a] transparencyinitiative led by the California Departmentof Justice that publishes criminal justice data so we can understand how weare doing, hold ourselves accountable, and improve public policy to make California safer," the California Departmentof Justice found that, from 2005 through 2014: "The average age of sentenced and incarcerated individuals who died due to natural causes was 56 years old. Among those who committed suicide, the average was 39 years of age. The average among those who died due to accidental causes and homicide by another inmate was 41 years old and 44 years old respectively." (, emphasis added.) Thus, based on Dr. Imai's and the California Department of Justice's ownstatistics, in light of appellant's 50-years-to-life sentence, appellant will likely die in prison before 17 having any, muchless a meaningful, opportunity of demonstrate maturity and rehabilitation for release on parole. Cc. This Court should reject the Attorney General's proposed rule, which would requiretrial courts to makelife expectancyfindings based on nationalvital statistics reports, because it would unreasonably complicate sentencing hearings and encourageracial and genderdisparity in sentencing. The Attorney General's proposed life expectancy rule for determining first parole eligibility date would requiretrial courts, before imposing a sentence, to examine and interpret vital statistics data to calculate how long a juvenile offenderis expected to live. Aspreviously noted, depending onits source, such data varies(i.e., average life expectancy outside ofprison is between 72.5 and 76.2 years, and 60 years for prisoners). A requirementthat trial courts decipher such data to determine thelife expectancies ofjuvenile offenders would turn sentencing hearings into complex mini- trials with expert witnesses speculating about the potential length a particular juvenile offender's life. One could imagine a scenario where a juvenile offender's attorney is accused ofproviding ineffective assistance for failing to present certain datato trial court showingthat his client's life expectancy was shorter than was claimed by the prosecution. Asthe Iowa Supreme Court stated: "[W]e do not believe the determination of whether the principles of Miller or Graham apply in a given case should turn on the niceties of epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates. In coming to this conclusion, we note the repeated emphasis of the Supreme Court in Roper, Graham, and Miller of the lessened culpability ofjuvenile offenders, how difficult it is to determine which juvenile offender is one of the very few that is irredeemable, and the importance of a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’ Graham, 560 U.S. at___, 130 S.Ct. at 2030, 176 L.Ed.2d at 845-46." (State v. Null Iowa 2013)8:836 N.W.2d 41, 71-72.) 18 Furthermore, as can be seen by the recordin this case, the life expectancy data showninthevital statistics reports are based on a person's race, gender,and yearofbirth. Applying the Attorney General's proposed rule would necessarily compeltrial courts to always take race and genderinto consideration when calculating life expectancies, and to sentence individual defendants differently based on their immutable characteristics. This would arguably violate the individual defendant's constitutional rights to equal protection of laws. (People v. Olivas (1976) 17 Cal.3d 236, 250-251.) For example, the statistical data presented in this case by the Attorney General indicates that, while the average life expectancy of a male born in 2010 is 76.2 years, the life expectancy of a female born the sameyearis 81 years. Applying the Attorney General's life expectancy approach, a white female could constitutionally be sentenced to a longer term in prison beforeherfirst parole eligibility date than a male who committed the same offense simply because, as a white female,sheis statistically expectedto live longer. Similarly, according to the data presented by the Attorney General, a black male born in 2010 hasa life expectancy of 71.8 years, some seven years less than a white male. The black male should therefore receive anearlier first parole eligibility date than the white male. While a person's race and gender should not matter for sentencing,‘ the Attorney General's proposed life expectancy rule would requiretrial courts to include those factors in their sentencing rulings. The High Court in Graham could not haveintendedits decision to encourage racial and gender disparity in sentencing. * California's concern about addressing racial disparity in sentencingis reflected in Section 1170.45, which requires the Judicial Council to collect data on the disposition of criminal cases based on the race andethnicity of the defendants andreport its findings annually to the Legislature. 19 D. The Legislature has determined that providing ajuvenile offenderafirst opportunity to demonstrate maturity and rehabilitation after serving 25 years in state prison complies with Graham. Providing ajuvenile offender with afirst opportunity to demonstrate maturity and rehabilitation when the offenderis in his or herforties avoids the constitutional complications created by the Attorney General's proposed life expectancy rule and should befollowedin this case. The Court of Appealin this case determined that appellant's 50-years-to-life sentence did not provide him with a "realistic chance to demonstrate maturity and reform" for release on parole during his lifetime. (Opinion at 41.) A first opportunity to demonstrate maturity and rehabilitation will not be a meaningful opportunity if it only first occurs at or near the end of an inmate's life. Put another way, compliance with Graham requires that there should be some "substantial life expectancyleft at the time of eligibility for parole." (People v. Perez (2013) 214 Cal.App.4th 49, 57 [a first parole opportunity at age 47 provides substantial life expectancy after release].) The Legislature has recently determinedthat, for the majority of crimes, 25 years of incarceration is the longestperiod that a juvenile offender must serve before becoming eligible for his or herfirst parole hearing. (§ 3051.) The purpose of section 3051 was "to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shownthathe or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in [Caballero] and the decisions ofthe United States Supreme Court in [Graham] and [Miller].” (Legis. Counsel’s Dig., Sen. Bill No. 260 (2013-2014 Reg. Sess.) § 1, pp. 2-3; People v. Franklin, supra, 63 Cal.4th 261, 277-278.) Thus, under the Legislature's new approach,a first parole hearing after serving 25 years meets Graham's "meaningful opportunity" requirement. Accordingly, it should be unconstitutional to impose any sentence that requires a youthful nonhomicide offender to spend more than 25 years in prison before having a first opportunity to demonstrate maturity and rehabilitation for parole. It is cruel to scorn 20 a juvenile with apro forma end-of-life first opportunity to demonstrate maturity and rehabilitation. In light of section 3051's application to the vast majority ofjuvenile offenders, it is also unusual. On the other hand,allowing for the first opportunity for release on parole whenthe offenderis in his or her forties will comply with Graham,will provide the youthful offender with an incentive to demonstrate maturity and rehabilitation, and will avoid the complications associated with having trial courts determine when a particular offenderis statistically expected to die. Alternatively, this Court should affirm the judgment of the Court of Appeal which requiresthatthe trial court consider a date when appellant will have a reasonable first opportunity to demonstrate maturity and rehabilitation for release on parole. As the Court of Appealnoted,thetrial court's concern that the imposition of concurrent 25- years-to-life sentences would appearto give the defendants "a free victim" did not, by itself, justify its decision to sentence appellant and Contreras to terms that did not give them a realistic chance for release on parole. (Opinion at p. 41, 42.) VI. CONCLUSION Based onthe foregoing, appellant's 50-years-to-life sentence amounts to the functional equivalent of life without parole. The Court ofAppeal ruled correctly and its Resp} ctfully submitted, J Daniel J. Kessler, Esq. State Bar No. 157163 Attorney for Appellant William S. Rodriguez judgmentshould be affirmed. Dated: January 13, 2017 21 People v. Rodriguez, Supreme Court Case No. $224565 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court, rule 8.204(c), I hereby certify that this brief has a word count of 7,389 words. I declare under penalty of perjury that the foregoing is true and correct. Executed in San Diego, California, this 13th day of January, 2017. Daniel J. Kessler Attorney for Appellant William Rodriguez 22 People . Rodriguez, Supreme Court case no. $224564 PROOF OF SERVICE BY MAIL I am an attorney in the County of San Diego, State of California. Iam, and wasat the time of the service hereinafter mentioned, over the age of 18 and not party to this action. My business address is 2254 MooreStreet, Suite 201, San Diego, California, 92110. On January 13, 2017, I served the following documents: WILLIAM S. RODRIGUEZ'S BRIEF ON THE MERITS by placing a true copy thereof enclosed in a sealed envelope addressed as follows: 1. Tami Falkenstein Hennick Office of the State Attorney General 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266 2. Appellate Defenders, Inc. (served at: eservice-criminal@adi-sandiego.com.) 3. Office of the District Attorney, Appellate Division 330 W. Broadway, Suite 1300, San Diego, CA 92101 4. Hon. Peter C. Deddeh C/O Clerk of the Superior Court 220 W. Broadway, San Diego, CA 92101 5. William Rodriguez C/O Kessler & Seecof, LLP 2254 MooreStreet, Suite 201, San Diego, CA 92110 6. Nancy King, Esq., Attorney for co-appellant Contreras 1901 First Avenue, Suite 138, San Diego, CA 92101 Atthat time there was regular delivery in the United States Mail between the place of deposit and the place of delivery. I am readily familiar with the practice of Kessler & Seecof for the collection and processing of correspondence for mailing with the United States Postal Service. In accordance with the ordinary course of business, the above mentioned document(s) would have been deposited with the United States Postal Service on January 13, 2017,the same day on which it was placed at Kessler & Seecof for deposit. I declare under penalty ofperjury under the laws of the State of California that the foregoingis true and correct, and tat this Proof of Service by Mail was executed on January 13, 2017, at San Diego, Califomni Daniel J. Kessler