PEOPLE v. CONTRERASRespondent’s Response to Amicus Curiae BriefCal.March 27, 2017Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. LEONEL CONTRERASand WILLIAM STEVEN RODRIGUEZ, Defendant and Appellant. Case No.’ $224564 SUPREME COURT MAR 27 2017 Jorge Navarrete Wark Appellate District Division One, Case No. SCD236438__ San Diego County Superior Court, Case No. D063428 Deputy The Honorable Peter C. Deddeh, Judge RESPONDENT’S ANSWERTOPACIFIC JUVENILE DEFENDER CENTER’S AMICUS CURIAE BRIEF XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General MEREDITHS. WHITE Deputy Attorney General STEVE OETTING Supervising Deputy Attorney General State Bar No. 142868 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2206 Fax: (619) 645-2271 Email: Steve.Oetting@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Introduction .........ceeseeeseeseceeesseecesecssesseeceesesassssssvsnssaeeeseeseeeseeesccssscssveveaseves 4 ALQUMENT ..... ce ecccccsscesrecesctssersessecscssessecssseeecscesssesecnseecseerenscsseserseessesssssasseees 5 I, The Eighth Amendmentdoesnot require certainty of guaranteed release, only a realistic opportunity to demonstrate rehabilitation...........ccscssssssessessersensenesseesssssesses 5 Il. Statistical data provide a useful measure for determining whetherthere is hope of some years OUtSIde Prison WaIIS .........cccesecsssesesesseessessecessessesseresssverssssens 7 COMCIUSION 00... ee eeseeeccessceeeteeescesescesesceesessucessenecserseertecsstsnsenseseeesesecussessnses 11 _ TABLE OF AUTHORITIES Page CASES Graham v. Florida (2010) 560 U.S. 48 voceecscsceestecsseeecessesecseesseesseeessssseeersees 5, 6, 8, 10 Montgomery v. Louisiana | (2016) U.S. [136 S.Ct. 718]...eeceecessesteneeeeeeeesesenenereeneneeees 6, 10 People v. Caballero (2012) 55 Cal.4th 262...ceeseesecsscseeseceeeeseseesscesentesssseneneseseeeens 7, 8, 10 CONSTITUTIONAL PROVISIONS United States Constitution Eighth Amendment..........cccsccsssscccssseecencecseseeceeeesseeesuessaeesenessenesners passim OTHER AUTHORITIES Bureau ofPrison Statistics, Data Brief: Medical Causes of Death in State Prisons (January 2007) ........ccccccessccsssssesssseeseseesesnsessnsnereees 8 Imai, Analysis of2015 Inmate Death Reviewsin the California Correctional Healthcare System, Table 4, At P. 10 oeeesessteceseseeerscecssneecesseesteeccsanecssesessecsseeseaeesseassaeseseseceeosraeess9 INTRODUCTION Pacific Juvenile Defender Center (PJDC) arguesin its amicus curiae brief that to comply with the Eighth Amendment, youthful offenders must receive a sentencethat “will certainly provide a ‘meaningful opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to obtain release and reenter society.” (PJDC Amicus Curiae Brief (ACB)15,italics added.) PJDC maintains that holding a parole hearing within an offender’s natural life expectancy fails to satisfy the Eighth Amendmentbecauserelying on statistical life expectancies provides an inaccurate measure in many individual cases. (/d. at pp. 15-22.) But the Constitution does not require certainty, only a meaningful opportunity to show rehabilitation. That meaningful opportunity is satisfied whenajuvenile is given a parole hearing that provides hope of some years outside prison walls. PJDC’s proposedrule is wholly untethered from the United States Supreme Court’s doctrinal foundation for the limitations it has imposed on punishmentfor juveniles under the Eighth Amendment. Namely, the high court has created categorical limitations where the Juvenile is sentenced to the functional equivalent of a death sentence. PJDC would have this Court create a 25-yearlimitation on juvenile sentences to ensure that juveniles are given a certain opportunity to demonstrate rehabilitation and maturity. But PJDC does not suggest that this sentence is necessary to avoid the functional equivalentof a death sentence. Unmoored and set adrift from any doctrinal support, PIDC’s proposed sentence doesnot even rectify the problem its rule was meantto solve. There is no guarantee a juvenile will survive a 25 year sentence; indeedthere is no certainty that any person will survive any term of any length. Andthat is precisely why the Constitution makes no such guarantee. Nor are PJDC’s attacks on the use of life expectancystatistics well taken. PJDC misreads andselectively cites statistics regarding life expectancies in California prisons, failing to mention that the overall death rate in California prisons is 19% lower than that outside prison. Moreover, contrary to PJDC’s assertions, reliance on such data does not create an intractable equal protection difficulty. Ultimately, life expectancy data provides a useful measure for determining whether a juvenile offender should have “hope” of someyears outside prison. While a given individual may not surviveasstatistically expected, this possibility is not enough to eliminate hope or render the sentence the functional equivalent of a death judgment. ARGUMENT I. THE EIGHTH AMENDMENT DOES NOT REQUIRE CERTAINTY OF A GUARANTEED RELEASE, ONLY A REALISTIC OPPORTUNITY TO DEMONSTRATE REHABILITATION In Graham v. Florida (2010) 560 U.S. 48 (Graham), the United States Supreme Court provided the operative measure for determining the outer lengths of a juvenile’s sentence: “A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.” (id. at p. 75, italics added.) As the Graham court subsequently expressed, “A State need not guarantee the offender eventual release, but if it imposes a sentenceoflife it must provide him or her with some realistic opportunity to obtain release before the end of that term.” (Ud. at p. 82, italics added.) Notwithstanding the high court’s express disavowal of any requirementthat the state guarantee a juvenile’s eventual freedom, PJDC asks this Court to limit the maximum sentencethat a juvenile can receive to one “that will certainly provide a ‘meaningful opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to obtain release and reenter society.” (PJDC ACB 15, italics added.) But the Graham court did not require a “certain opportunity” to demonstrate maturity and rehabilitation. Nor would such a requirement make sense—a fact that PJDC’s proposed sentence demonstrates. PJDC would apparently have this Court impose a maximum sentence of 25 yearsto life (PJDC ACB 15), but even this term would not guarantee that every juvenile would have a chanceto demonstrate maturity and rehabilitation. Rather than guarantee a certain opportunity to demonstrate rehabilitation, the Constitution requires only a “realistic opportunity.” As the high court later clarified, such an opportunity is one that provides “hope for some yearsoflife outside prison walls.” (Montgomery v. Louisiana (2016) U.S. __ [136 S.Ct. 718, 736-737] (Montgomery).) A sentence that is within a person’s natural life expectancy provides that hope andis realistic. PJDC’s new “certain opportunity” test entails much more than a mere semantic distinction with the high court’s “meaningful opportunity” requirement as expressed in Graham andlater in Montgomery. Most important, this new test is divorced from the doctrinal underpinnings that gaverise to the categorical limitations on certain terms for juveniles in the first place. As respondent explained at length in its Reply Brief, the Graham rule dependson its equating a term oflife without parole to the functional equivalent of a death judgment for a juvenile. (Reply 10-12.) If the sentenceis not the functional equivalent of a death judgment, then the Eighth Amendment’s categorical limitations on punishmentincorporated from the high court’s capital case law no longer apply. Second, wherethere is hope of release, even release at a distant date, then an offender has both an incentive to rehabilitate and an opportunity to show that rehabilitation. Consequently, the state has a penologicaljustification for the lengthy term. (Reply 12-13.) PJDC’s proposed newrule requiring a parole hearing after 25 years ignores these doctrinal foundations. A 16-year-old whoserves 25 years before being given an opportunity for parole at 41 has not received the functional equivalent of a death judgment. Withoutthe ability to equate a juvenile’s sentence to a death judgment, there can be no categorical challenge under the Eighth Amendmentto a juvenile’s term-of-years sentence. Moreover, PJDC does not challenge respondent’s point that rehabilitation remains a valid penological goal even where a sentenceis very lengthy so longasthereis a realistic hope of release. (Reply 14.) In sum, PJDC would alter and expand Eighth Amendmentrestrictions well beyond those recognized by the United States Supreme Court. | Ili. STATISTICAL DATA PROVIDE A USEFUL MEASUREFOR DETERMINING WHETHER THEREIS HOPE OF SOME YEARS OUTSIDE PRISON WALLS In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), this Court looked to whether the defendant’s “parole eligibility date ... [fell] outside {his} natural life expectancy....” (Ud. at p. 268.) It defined “life expectancy” as “the normallife expectancy of a healthy person of defendant’s age and genderliving in the United States.” (d. at p. 267, fn. 3.) PJDC suggests this language is not dispositive because the 110-year- to-life sentence in Caballero “plainly exceededa lifetime” and the Court was not called upon to decide whether a lengthy sentence not exceedinglife expectancy violates the Eighth Amendment. (PJDC ACB 16.) PJDC argues that reliance on life expectancystatistics is “fatally flawed” because prisoners do notlive as long as free persons and becausesuchstatistics, to be accurate, must considerrace and other factors, which wouldonly leadto equal protection violations. (PJDC ACB18-22). Atthe outset, PJDC is incorrect to dismiss the importance ofthis Court’s working definition oflife expectancy in Caballero. In orderto evaluate Graham's requirement of“somerealistic opportunity to obtain release” (Graham,supra, 560 U.S.at p. 82), this Court had to determine whether a 16 year-old such as Caballero could realistically ever be eligible for parole. To doso, this Court hadto look to how long Caballero could reasonably be expectedto live. And to complete this analysis, this Court needed a measure by whichto judge life expectancy. The remote chance that Caballero mightlive to 126 when he would beeligible for parole was not a sufficient basis for finding that Caballero’s sentence did not violate his Eighth Amendment rights. This Court’s decision to look to normallife expectancies, and to define those normallife expectancies solely based on a defendant’s age and gender, rather than race, was an essential part ofthe Court’s holding and one that informsthe present issue as well. Nor are PJDC’scriticisms of the People’s statistics sound. In asserting that prisoners in California have lowerlife expectancies than persons on the outside, PJDC selectively quotes from one source andrelies on the same flawed reading of another source relied on by appellants. PJDC maintainsthat “Death rates for prison inmates age 55 to 64 are 56% higher as comparedto the general population.” (PJIDC ACB 21, citing Bureau ofPrisonStatistics, Data Brief: Medical Causes ofDeath in State Prisons, 2001-2004 (January 2007)at p. 3 (Bureau ofPrisonStatistics).)' While focusing on this one specific age group, PIDC fails to mention that | This documentis available at https://bis.gov/content/pub/pdf/medsp04.pdf. PJDC doesnot ask this Court to take judicial noticeofit. the overall mortality rate for prisoners aged 15 to 64 was 19% Jower than for personsliving outside prison. (BureauofPrison Statistics at p. 3.)” PJDCasserts it is a “shocking fact” that in 2015 in California the average inmate life expectancy for males was 57 years and 52 years for females. (PJDC ACB22,citing Imai, Analysis of2015 Inmate Death Reviews in the California Correctional Healthcare System, Table 4, at p. 10 (2015 Death Reviews).)° But as respondentnoted in responseto a similar argument made by appellants, this is not what the statistics show. (Reply 19.) While it is true that the 355 people whodied in California prisons in 2015 had the average ages that PJDCnotes,it does not follow that those ages establish the life expectancies for all of California’s 127,815 prisoners. PJDC does not acknowledge respondent’s Reply, and instead continues to propagate the same flawed reasoning advanced by appellants. Thesestatistics do not establish that life expectancy in California prisonsis less than that outside prison. For instance, even though prisons house many dangerous and violent felons, the murder rate in California’s prisons is nonetheless ower than in some metropolitan areas such as Washington, D.C. (2015 Death Review at 9.) Moreover, even if there are differences in life expectancies between personsliving inside and outside prison, it does not follow that reliance on natural life expectancy provides an inaccurate metric. As addressed above, * It is also noteworthy that these statistics were taken at a time when the numberof deaths in California prisons exceeded 1,300. (See Bureau of Prison Statistics, at p. 3.) As discussed further below, this rate has plummeted and is now at 355 persons for 2015. 3 This documentis available at http://www/cphes.ca.gov/docs/resources/Analysis%200f%20Year%202015 %20Inmate%20Death%20Reviews%2010-6-16.pdf. Again, PJDC does not ask the Court to notice this document. the question under the Eighth Amendmentis whether there is “hope” of some years outside prison (Montgomery,supra, 136 S.Ct. at pp. 736-737); alternatively expressed, a sentence may not deprive a juvenile ofliberty without “hopeofrestoration” (Graham, supra, 560 U.S. at p. 70), may not remove “any chance” to demonstrate that heis fit to rejoin society (id. at p. 79), and may not “guarantee” that he will die in prison (ibid.).. Even if perhaps imperfect, natural life expectancy data are not so skewed or unreliable as to mean that a juvenile no longer has “somerealistic opportunity” to obtain release (id. at p. 82) from a sentencethat falls within those parameters. PJDC maintainsthat life expectancies must properly take into account differences across not only gender, but also (notwithstanding this Court’s definition of natural life expectancy in Caballero) race, region and economic status. (PJDC ACB 17-18.) But while such considerations may correspond to differences among death rates for persons outside prison, PJDC fails to show that the sameis true for those inside prison, where living conditions, medical treatment, and wealth are roughly the samefor all. Moreover, as PJDC notes, considering factors such as race would only potentially lead to constitutional issues based on unequal treatment. (PJDC ACB20.) Finally, even if PIDC could establish substantial differences in the life spans of personsinside and outsideprison, it fails to respond to respondent’s point that evidence of any such differences was neither presentedto thetrial court, nor were any objections madeto thestatistical evidence provided by the prosecution. (Reply 20.) 10 CONCLUSION Accordingly, for the reasons stated above, respondentrespectfully requests that this Court affirm the trial court’s sentence. Dated: March 23, 2017. SOrlb $D2015800885 71300802.doc Respectfully submitted, XAVIER BECERRA Attorney General of California GERALD A. ENGLER ChiefAssistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General MEREDITH S. WHITE Deputy Attorney General STEVE OETTING / Supervising Deputy Attorné¥ General Attorneysfor Plaintiffand Respondent 1] CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S ANSWERTO PACIFIC JUVENILE DEFENDER CENTER’S AMICUS CURIAEBRIEFusesa 13 point Times New Roman font and contains 1,988 words. Dated: March 23, 20 ] 7 XAVIER BECERRA Attorney Generalof California EVE OETTING , Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent 12 ad ARSE:BERBER 9. . eat DECLARATION OF ELECTRONIC SERVICE AND SERVICEBYU.S. MAIL Case Name: People v. Leonel Contreras, et al and William Rodriguez, et al No.: $224564 I declare: J am employedin the Office of the Attorney General, which is the office of a member ofthe California State Bar, at which member's direction this service is made. I am 18 years of age or olderand not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collecting and processing electronic and physical correspondence. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. Correspondencethat is submitted electronically is transmitted using the TrueFiling electronic filing system. Participants whoare registered with TrueFiling will be served electronically. Participants in this case who are not registered with TrueFiling will receive hard copies of said correspondencethrough the mail via the United States Postal Service or a commercialcarrier. On March 24, 2017, I electronically served the attached RESPONDENT’SANSWER TO PACIFIC JUVENILEDEFENDER CENTER’SAMICUS CURIAE BRIEFby transmitting a true copy via this Court’s TrueFiling system. Because one or more ofthe participants in this case have notregistered with the Court’s TrueFiling system or are unableto receive electronic correspondence, on March 24, 2017, I placed a true copy thereof enclosedin a sealed envelope in the internal mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: L. Richard Braucher Daniel J. Kessler Susan L. Burrell Attorney at Law Attorneys at Law Kessler & Seecof, LLP 475 Fourteenth Street, Suite 650 3990 Old Town Avenue, Suite B-109 Oakland, CA 94612 San Diego, CA 92110 Attorneysfor Amicus Curiae Pacific Attorneyfor Appellant Rodriguez Juvenile Defender Center on behalfof (Served via TrueFiling and U.S. Mail) Defendants and Appellants (Served via U.S. Mail — 2 Copies) Kevin J. Lane, Clerk Fourth Appellate District, Division One Nancy J. King California Court of Appeal Attorney at Law 750 B Street, Suite 300 1901 First Ave., Suite 138 San Diego, CA 92101 San Diego, CA 92101 (Served via TrueFiling only) Attorneyfor Appellant Contreras (Served via TrueFiling and U.S. Mail) Honorable Peter C. Deddeh San Diego Superior Court 220 West Broadway San Diego, CA 92101 (Served via TrueFiling and U.S. Mail) Page 1 of 2 Office of the District Attorney San Diego County Attn: Appellate Division 330 West Broadway,Suite 1300 San Diego, CA 92101 (Served via TrueFiling and U.S. Mail) I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on March 24, 2017, at San Diego, California. L. Blume KA Bbcrmre Declarant Signature SD2015800885 71301308. doc Page 2 of 2
