PEOPLE v. RODRIGUEZRespondent’s Answer Brief on the MeritsCal.October 16, 2017~~ In the Supreme Court of the State of California , ” THE PEOPLE OF THE STATE OF CALIFORNIA, \ .r Plaintiff and Respondent, Case No. 8239713 . . SUPREME COURT JESUS MANUEL RODRIGUEZet al., OCl 16 vay Defendants and AG . Appellants. Jorge Navarreie Glerk “Deputy Fifth Appellate District, Case No. F065807 Stanislaus County Superior Court, Case Nos. 1085319 / 1085636 The Honorable Nancy Ashley, Judge ANSWERBRIEF ON THE MERITS XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAELP. FARRELL Senior Assistant Attorney General STEPHEN G. HERNDON Supervising Deputy Attorney General RACHELLE A. NEWCOMB Deputy Attorney General DARRENK.INDERMILL Deputy Attorney General State Bar No. 252122 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-7689 Fax: (916) 324-2960 Email: Darren.Indermill@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issues Presented 0...csessessssccssecssncescessesssssssecsscaeessssssseseseecssssesssearsecerees 7 Tmtroduction ........... sc esssssesessessesceescesssrsesssescesesscssecsesessetsscsavesessssvscsstsssaseesaneas 7 Statement ofthe Facts and Case........cccsssssscessssesscssessssscsssssssvssscseerserserececs 8 A. Gang-related drive-by shooting and murder............... 8 1. Accomplice testimony............cccccscsessscsssecees 9 2. Other CVidenCeoeeestsescseeceecessesseseerseesses 10 B. Convictions and Sentencing ...........cccccscseesssscesserees 13 C. Appeal to the Fifth District Court of Appeal............ 14 © D. Review in the California Supreme Court (Case NO. S225231) ..cccscscssssssecsessecesesessesseeessereersssessessas 14 E. The Fifth District Court of Appeal after transfer...... 15 ATQUMEML.......csccessesessssssssetsssssssessesssscsseesscesseesseceeessseassessessesseeessseustesesnsenss 16 I, The accomplice testimony was not sufficiently corroborated aS to Barajas............ccssccssessesscessssccssssorssesesceeees 16 II. This Court may not decide Rodriguez’s claim; in any event, Rodriguez’s constitutional challenge to his 50- years-to-life sentence is moot, but Rodriguez is entitled to a limited remand under Franklin ....cscssesseeseees 21 A. This court may not address Rodriguez’s claim because hedid notfile a petition for review............. 22 B. Penal Code sections 3051 and 4801 render Rodriguez’s constitutional challenge moot because they provide Rodriguez with a meaningful opportunity for release after no more than 25 years of imprisonment...............00000 23 C. The validity of the constitutional claim is not dependent on an offender’sability to present relevant mitigating evidence at somepointprior to the youth offender parole hearing..............cc0s000 29 D. Under Franklin, Rodriguez is entitled to a limited remand «0.0... .ccscsccessesesssecsseesesssesensessesesssesees 37 CONCIUSION.......ccccccesssceseceesescesseasecsececsstessssssessssseessessseessessseesessesssrsesseseeas 39 TABLE OF AUTHORITIES Page CASES Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012eeeeecssscssscsscsseesscssseseessssessessesseseessesses 23 Diatchenko v. District Attorney (Mass. 2013) 1 N.E.3d 270.0... cecscsssccsssesssssssssccssessessesssscssesssssesonseess 35 Graham v. Florida (2010) 560 U.S. 48 oeeeccserccteesseeesecsssssssssescssesseseseeseesseeeeepassim Miller v. Alabama - (2012) 567 U.S. 460 weeeeeccseeseceseecesnsstsssesessssssssesssssessesseneesees passim Miranda v. Arizona (1966) 384 U.S. 436eeeccccsessesscenessnscessessesesscsseesseseeseeessssssusesosens 12 Montgomery v. Louisiana (2016) 136 S.Ct. 718... cesesseseesseessrcssessssesssssssesecssserssesesessensces 26, 32 People v. Ames (1870) 39 Cal. 403 wccecccssecseesesesetecsessseessssssssccassscseseeensessenes 18, 19 People v. Caballero (2012) 55 Cal4th 262 ooo.ieeseesssstessssessessesesscessessessssecesesessens passim People v. Castenada (2000) 23 Cal.4th 743 ooecsscssscssssessessstsesssesssesseesssssseesserseeseerscenss 21 People v. Davis (2005) 36 Cal.4th 510ooccssesssssecsscessesssscessceseesssesssesseeessseesennes 16 People v. Franklin (2016) 63 Cal.4th 261 oo.ccscessessssseeserseesreessessesssssseseesnenees passim People v. Heishman (1988) 45 Cal.3d 147oeesseeceseseescetscteesescssesssssesseeesseessssscusucess 21 People v. McDermott (2002) 28 Cal.4th 946 oo.ecscccssereeeresssssssscessecsesesesssneecssrsassoeeees 21 TABLE OF AUTHORITIES Page People v. Pedroza (2014) 231 CalApp.4th 635 ooo... ccscssssssssesssesssensssessesnesseenes 19, 20, 21 People v. Peoples (2016) 62 Cal.4th 718ooeessceecsscrssessseeseeseessessesesscssssssseesserseeens 29 People v. Romero and Self (2015) 62 Cal.4th Loeeeseteeeeteseetseeeeesa seceneneeeseeateaeseeseneees passim People v. Samaniego (2009) 172 Cal.App.4th 1148 ooo.cecsscssesssecssssesserscsseeseesecseseeseees 21 People v. Scott (2016) 3 Cal.App.Sth 1265oicecccsessesssssesseessssseneensseeeeeaesensasseeesee 29 People v. Szeto (1981) 29 Cal.3d 20ooessscesssssssetssnsessssesssesssssssesessseeneees 19, 20, 21 People v. Vu (2006) 143 CalApp.4th 1009 0...ececcsessesssesssssssssssesssssessesseesees 21 State v. Delgado (Conn. 2016) 151 A.3d 345oecccsceseeseecsseesssesesscssecesesestestessessees 35 State v. Mares (Wyo. 2014) 335 P.3d 487...ccescsseeesetssssetsscessssecssesssssssstseresesenes 35 State v. Tran (Haw.Ct.App. 2016) 378 P.3d 1014oeeesccstssssetcesecsseccsesersesseesees 35 State v. Vera (Ariz.Ct.App. 2014) 334 P.3d 754 woeecescesssetsesetsstscersssssasseseeneenes 35 TABLE OF AUTHORITIES Page STATUTES Arizona Revised Statutes SsACc re35 California Penal Code § 32 oe eeesssccssssssscsssccssesssessseesecessccnsssessesscsescecoesceuescesessascnsnsesesesssesesseseseness 9 § 182 oocstccsssstcessteesseeesssecstesesssseceseessensecessuerssssusseesssssscsnsoseasossceesses 8 § 186.22, Sub. (a) 0...eessscssecsseestsessseseseseesescsecssessessesssensssesesssees 8, 13 § 187... eescecssessssssscssssecssseeseseessssesssseeesseescssessesessussceusssssossssesscsesasesses 8, 13 S LLL weeeccseccsstecesseceesssesssessessseeeseeecsssscsseseeseeescstssssusenaseees 7, 16, 21 § B04] oo. eeccssesecestsccssseeesscesstssssessesessesesseecessescsscsucasssusessesssssassesseeeens 31 § 3046 0... escesecstsssscssssecssssecsstecsssesscsescesseesessecesensesssensessseesssessssessoesscereas 28 § 3046, subds. (a)-(C)........:.ccccssscsssccsssccesscssecessseccssscssecessssessusscseesesessnacs 28 § BOS eeeecscsessecsssseccsssscseessnscsseessseeceseesseseeacecerscesscssssssccsssersseceseeasees 23 § 3051, subd. (€)(2)(B) ........ececccssesssecsssccesseceseessesssscsssssscsessscsesessesaceees 27 § 3051, subd. (D)(3) ......ceccescssscssteseescecccessesecessscssessscesesssevsnscssneseseses 27 § 3051, SUD. (d)oeeeeeteeecsseececeecceeseessessecsssesscsseseesesessasseeecseeeets 31 § 3051, SUB. (€) 00... ceeseecesssesseeescssteesscecestecssneessssssesssesestseerscsesees 27,31 § BOS1, SUD. (Ff)... eeeececssssesseesseesseseseeccsseeeeseeessussesseseseusssecsssoesssnseses 31 § 3051, subd. (f)(1) ......eeesseessssssessecessecessecesseecessesseseeesssrsersssssessues 27, 31 § 3051, Subd. (f)(2)ocecesccsscsssessessrssecsssessseresseeeesssesssssesssesssessusscess 31 § 4801eeesccscssecsseessecesssceeesecsscssssessecsscssnecssssssssesseserecseessesesessessones 28 § 4801, SUDA. (C)eeeessccesscssssscccsssceseecsseeseesessessceessessssesssesees 28, 31, 34 § 12022.53, subd. () 0... .ccscessesseeresssecesssessseeesseseesseeseseeessessrssnscesecees 14 § 12022.53, subd. (€)(1).........ccsscssssssseesseseessecesseecsesstesscesseeessessssseseasecees 14 General Statutes of Connecticut § 54-125.ecescstecsssscesercesssscesecsnsesneesensecssesessnsesteaessesensatesseenteesassasens 35 Hawaii Revised Statutes § 706-656(1) ou... ceccesccsssseseecsssesscsscesccssesensecseeessessnsssessssssesetseessecsnecessesens 35 Louisana Code of Criminal Procedure Article 878.1 ......cccccccsecesssssseccscessecsssecceceseessecseecscsasesssscossseccesescesseserensa 36 Louisiana Revised Statutes § 15:574.4(E) oc eesccccssccssstccsssscssconsssasecsssnecssesesersessssceeseeeeessessssssescessaces 36 TABLE OF AUTHORITIES Page WyomingStatutes Annotated § 6-10-301(C) ......ceessesssecccessessssssccesseeccesesseecssscseseeccusenenssesersaceesessaaeeenaes 32 § 713-402ceecescsssssseccccssnscsssseccesseseccsssscssessscessscevsesscsssesssecseeseaccessnees 32 CONSTITUTIONAL PROVISIONS United States Constitution Eighth Amendment...eseessssecesssesseteesesseeesesesssssesesseresseesees passim COURT RULES California Rules of Court Rule 8.512(D)(1)ccc. ce eeecsscessscceeseessesseeecccssescssessssesccsssessusevecsseseseeseees 22 Rulle 8.512(C)(1).....:.cccccsssscssessesssscessessscessesesccssscvsssecersvesssevessesssesseresens 23 OTHER AUTHORITIES California Code of Regulations, Title 15 § 2249 oeccssscssccsssseceesessesscessssessesssssenseceesessssseesesessnsseuscusssesesesssssasens 31 Senate Bill NO. 260 ..........ccccecessssssscccsssssecccccscsssssstsscssseessesenees 26, 27, 28, 30 ISSUES PRESENTED In granting Barajas’s petition for review, the court limited the issues to be briefed to the following: (1) Was the accomplicetestimonyin this case sufficiently corroborated? (See People v. Romero and Self(2015) 62 Cal.4th 1, 36.) (2) Is the defendant’s constitutional challenge to his 50-years-to-life sentence moot when, unlike in People v. Franklin (2016) 63 Cal.4th 261, his case was not remandedto the trial court to determine if he was provided an adequate opportunity to make a record of information that will be relevant to the Board of Parole Hearingsasit fulfills its statutory obligations under Penal Codesections 3051 and 4801? INTRODUCTION The convictions of appellants Rodriguez and Barajas rested largely on the testimony of an accomplice. A conviction cannot be based on the testimony of an accomplice unless the testimony is corroborated by other evidence that tends to connect the defendant with the commission ofthe offense. (Pen. Code,! § 1111.) Rodriguez’s own statements and admissions were admitted attrial and sufficiently corroborated the accomplice testimony as to him. Nosuch statements or admissions from Barajas were admitted, however. Although evidence was presented that Barajas was a Surefio gang member, that evidence could do no more than raise a suspicion against every Surefio gang memberin Stanislaus County. Noneofthe other non- accomplice evidencerelating to the circumstancesofthe crime tendedto connect Barajas to the commission of the crime. Therefore, respondentis ! All further statutory references are to the Penal Code unless otherwise specified. constrained to agree that the accomplice testimony wasnotsufficiently corroborated as to Barajas. This Court does not have jurisdiction over Rodriguez because he failed to file a petition for review and the court did not order review as to him onits own motion. In any event, Rodriguez’s constitutional challenge to his 50-years-to-life sentence is moot because sections 3051 and 4801 provide him with a meaningful opportunity for release on parole after no more than 25 years of imprisonment.’ The remand in People v. Franklin, supra, 63 Cal.4th 261 (“Franklin”), which wasgranted to ensure a juvenile offenderhas hador will receive a sufficient opportunity to present information that will be relevant at an eventual youth offender parole hearing, wasstatutorily driven, not constitutionally driven. In light of the statutory scheme, remandis not necessary to ensure a meaningful opportunity for release under Graham v. F.lorida (2010) 560 U.S. 48 (“Graham”), Miller v. Alabama (2012) 567 U.S. 460 (“Miller”), and People v. Caballero (2012) 55 Cal.4th 262 (“Caballero”). Moreover, a contrary rule would be difficult to implementfairly andefficiently. But even though the constitutional claim is moot, remand would nevertheless be required understate law as articulated in Franklin. STATEMENT OF THE FACTS AND CASE A. Gang-related Drive-by Shooting and Murder Appellants weretriedjointly in 2011 for first degree murder (§ 187), conspiracy to commit murder (§§ 182/187), and active participation in a criminal street gang (§ 186.22, subd. (a)) with firearm and gang enhancements. The case arises from a May 26, 2004 gang-related drive-by shooting and murderofa teenagegirl in Oregon Park, a public park located * Barajasalso raisesthis claim, but respondent does notaddressit as to him in light of the concession on the accomplice corroboration issue. in Modesto. The park was knownas a Nortefio gang hangout. (IRT 106- 108, 157-158; 3RT 541; 4RT 736-739, 823.) 1. Accomplice testimony Mario Garcia, a 17-year-old Surefio gang memberatthe time ofthe shooting and an accomplice to the charged crimes, testified for the prosecution in accordance with an agreementto plead guilty to being an accessory after the fact (§ 32). (3RT 527, 529-530, 589-592.) Garcia (aka “Big Worm”) testified that his Surefio “home boys” were 15-year-old appellant Jesus Rodriguez (aka “Loco”), 16-year-old appellant Edgar Barajas (aka “Shadow”), and 16-year-old Louis Acosta (aka “Danger”). (3RT 537-540, 610-611.) Acosta lived across the street from Oregon Park in a house located at 429 Thrasher, and Garcia and Barajas each lived just a few blocks away. (3RT 540, 545, 564.) Whenever the Nortefios would notice Garcia or his “home boys” hanging outin that area, the Nortefios would disrespect them by “talking shit,” calling them “scraps,” throwing up gang signs, or throwing rocks at them. (3RT 544-547.) Garcia’s house had also been shot at a numberoftimes. (3RT 606.) On May20, 2004, Acosta was assaulted by Nortefios in the park. (3RT 543-544; 4RT 772-773.) The Nortefios jumped Acosta, broke his arm, threw rocks at him, broke the windowsofhis van and, beforefleeing, fired a small black semi-automatic handgun at Acosta. (3RT 543-544; 4RT 772-773.) Five days later, Nortefios chased Rodriguez, Garcia, and Acosta and then used a baseball bat to break out the windowsofRodriguez’s Chevy Blazer while it was parked at Acosta’s house. (3RT 499, 501-502, 547-553.) The Surefio gang members felt disrespected and wanted revenge. (3RT 554-556, 561.) On May 26, 2004, according to Garcia, Garcia called Barajas to acquire a gun. (3RT 561-562.) Rodriguez, Garcia, and Barajasrodein the Blazerto a Modesto barrio to pick up a firearm. (3RT 562-565.) Barajas got out of the vehicle and returned with a .22-caliber rifle. (3RT 566.) On the ride back to Garcia’s house,the three discussed getting revenge on the Nortefios. (3RT 568-570.) After a short stop, fellow gang members Pedro Castillo and Rigoberto Morenojoined them in the car. (3RT 570-572.) They drove away in search of Nortefios. (3RT 577.) Rodriguez drove, Castillo sat in the front passenger seat with a blue bandanaoverhisface, Garciasat by a broken rear window with Morenonext to him, and Barajas sat in the rear cargo area holding the .22-caliberrifle. (3RT 572-576.) Garcia testified that he, Rodriguez, Barajas, Moreno, and Castillo passed through Oregon Park looking for Nortefios. (3RT 577.) Garcia saw someoneby the gazebo whohe thought wasa Nortefio becausethe person was wearing red. (3RT 577-579.) As the Blazer approachedthe gazebo, Garcia heard Barajas shout “puro Sur.” (3RT 580.) Barajas then fired multiple shots. (3RT 580.) After Barajas stopped shooting, they spedoff. (3RT 580.) Garcia did not recall any shots being fired from the park at the Blazer. (3RT 581-582.) Rodriguez made statements to law enforcementthat were also admitted into evidence. He admitted that he had been driving the Blazer whenthe shooting occurred and claimedthat he had putthe rifle in the back ofthe Blazer. (3RT 497-500, 502.) Approximately 15 shots werefired as the shooter yelled out “puro sur trece.” (3RT 502-503, 511.) He confirmed that the shooting wasretaliation for the Nortefios breaking the windowsof his Blazer. (3RT 499-502, 504.) After the shooting, he droveto a fellow gang member’s house. (3RT 507-508.) 2. Other evidence Several witnessesat the park testified to the circumstancesof the crime. At the time ofthe shooting, approximately 80 children, including some Nortefios, were gathered at Oregon Park for an after-school recreational program conducted by Gina Lopez andthe Police Activities 10 League. (1RT 209-212, 217-218, 223-224.) The victim, Emestina Tizoc (Tina), who wasnot considered to be a Nortefio, wassitting under the gazebo with Nadia O., Charlene S., and some other friends. (1RT 109, 115-116, 118-120, 165-166; 2RT 223, 227.) A white Blazer with smashed- out windowsandatleast two or three occupants circled the park twice. (IRT 121-125, 163, 167-168; 2RT 230, 234-238.) Nadia saw the occupants throw up “13,” a Surefio hand sign. (1RT 122-124.) Nadia and Charlene noticed one of them wearing a dark bandannaoverhis face. (IRT 126, 168.) Lopez heard one of the occupants shout “puro Sur” (2RT 231), and Charlene also heard oneofthe occupants yell “gang-related stuff’ (1RT 169). Whenthe Blazer approached the gazebo, one of the occupants pulled out a gun andfired several shots toward the gazebo. (IRT 131-132, 172- 173, 176; 2RT 239.) Tina screamedand yelled, “It hit me, it hit me.” (ART 135, 173, 176; 2RT 239-240, 243-244.) Within 20 minutes, Tina died. (2RT 431, 437.) | Stanislaus County Sheriff's Deputy Vincent Hooper responded to 429 Thrasher based on information that someoneat the residence was possibly involved in the shooting. (2RT 282-284.) Several individuals were present at the residence and were detained pending further investigation. (2RT 283-284.) Mail addressed to Acosta, gang-related drawings, and some .22- caliber rounds in a nightstand were found in a subsequentsearch of the residence. (3RT 461-464.) Bullet fragments were located under the gazebo. (2RT 302, 327.) A white Chevy Blazer with shattered windowswaslocated in an alley off Fortuna Avenue. (2RT 284-287.) A bag of bullets was found under an old tire in the vicinity of the Blazer. (2RT 327-328.) Three.22-caliber casings and one live .22-caliber bullet were found in the backyard of a Fortuna _ Avenueresidence and another .22-caliber casing was foundin the backyard 11 of a second nearby residence. (2RT 301, 328-330; 3RT 467.) Rodriguez also led law enforcementto a dairywhere a .22-caliberrifle was located. (2QRT 301, 324-326, 3RT 465, 511.) A criminalisttestified that the three shell casings from the Fortuna Avenueresidence had beenfired from the rifle (2RT 372-373) and that the bullet recovered from Tina’s body could have beenfired from the rifle (2RT 377-378, 392-393). Froilan Mariscal, an investigator for the district attorney’s office, testified as a gang expert. (4RT 717-727.) In 2004,it was estimated that there were between 600 and 1,000 Surefio gang members in Stanislaus County. (4RT 747, 835.) Based on Mariscal’s investigation, he believed that Barajas, Rodriguez, Castillo, and Moreno were Surefio gang members on May 26, 2004. (4RT 748-765, 776-777, 812.) Mariscal’s opinion as to Barajas was basedin part on three discipline reports from Elliott Continuation School. (4RT 748-749.) In one incident, Barajas had been involved in a fight with gang overtones. (4RT 749.) In another incident, _ Barajas wore blue after being told not to. (4RT 749.) Ina third incident, Barajas was again involved in a gang-related fight. (RT 749.) Mariscal also testified to several gang-related incidents of violence against Acosta’s residence. (4RT 766-773.) Mariscal testified that, given theprior assaults, insults, and physical violence the Nortefios had demonstrated toward the Surefios, he would expect the Surefios to respond with violence to avoid losing credibility. (4RT 775-776.) Based on a hypothetical fact pattern mirroring the facts of this case, Mariscal believed that a drive-by shooting by Surefio gang members undersuch facts would have been intended to 3 The prosecution also presented evidence aboutcertain admissions, statements, and responses that Barajas made to law enforcement. (2RT _ 321, 327-329; 3RT 465-467.) But due to a defective Miranda admonition (Miranda v. Arizona (1966) 384 U.S.436), the trial court struck the evidence and instructed the jury to disregard it. (4RT 713-715, 859-860; 5RT 1099-1100, 1168; 2CT 425.) 12 benefit the gang by instilling fear in rival gang members and enhancing the violent reputation of the gang in the community at large. (4RT 778-780.) B. Convictions and Sentencing In May 2011, appellants were each found guilty of first degree murder (§ 187), conspiracy to commit murder (§§ 182/187), and active participation in a criminalstreet gang (§ 186.22, subd. (a)) with firearm and gang enhancements. (2CT 501-512.) Shortly thereafter, the probation department submitted reports and recommendations for appellants. (2CT 528-548 [Rodriguez], 549-569 [Barajas].) Rodriguez’s attorney declined to have Rodriguez interviewed for the report, so the information regarding Rodriguez’s statement aboutthe crimeandhis social history, including his youthful background, was extracted from a 2004 fitness hearing report (2SCT 1-21). (2CT 542.) | | In 2012, both the United States Supreme Court andthis Court issued relevant decisions concerning the sentencing ofjuvenile offenders. In Miller, the United States Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandateslife in prison without possibility of parole for juvenile offenders.” (Miller, supra, 567 U.S. at p. 479.) Two months later, this Court declared in Caballero that “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender’s naturallife expectancy constitutes cruel and unusual punishmentin violation of the Eighth Amendment.” (Caballero, supra, 55 Cal.4th at p. 268.) After Miller and Caballero were decided, Rodriguez filed an opposition to the probation report in which he briefly argued that he was “very youngat the time of the shooting,” that he had “been in custody for several years without incident,” and that the court should strike thefirearm enhancementbased on the facts and circumstancesofthe caseand his |good : - conduct exhibited while in custody. (3CT 771-774.) Thetrial court 13 subsequently sentenced both Barajas and Rodriguez to aggregate indeterminate terms of 50 yearsto life, based on a term of 25 yearsto life for first degree murder and a consecutive term of 25 years to life for the section 12022.53, subdivisions (d) and (e)(1), enhancements. (SRT 1251; 3CT 781, 783.) The court read and considered the probation report but did not expressly consider any youth-relatedfactors on the record. (SRT 1249- 1251.) C. Appeal to the Fifth District Court of Appeal On appeal, Barajas argued that the accomplice testimony wasnot sufficiently corroborated. Both Barajas and Rodriguez arguedthattheir sentences of 50 yearsto life constituted cruel and unusual punishmentin violation of the Eighth Amendment. Specifically, they argued that their mandatory indeterminate terms were the functional equivalent ofa life- without-the-possibility-of-parole (LWOP) term requiringthetrial court to engage in a proportionality review pursuant to Miller and Caballero. The Fifth District Court ofAppeal affirmed the judgmentsin case number F065807. The court held that the accomplice testimony was sufficiently corroborated as to Barajas. It also rejected appellants’ sentencing claims, holding that their sentences were not the functional equivalent of a life term and thus did not require a proportionality analysis under Miller. D. Review in the California Supreme Court (Case No. $225231) On June 10, 2015, this Court granted petitions for review of both Barajas and Rodriguez and deferred further action pending consideration and disposition of related issues in Jn re Alatriste, S214652, In re Bonilla, S214960, People v. Franklin, 8217699, and People v.Romero and Self, $055856. (Case no. $225231.) In People v. Romero and Self, supra, 62 Cal.4th at pages 31 to 37 (“Romero and Self”), the court held that the 14 corroboration of accomplice testimony wassufficient as to certain crimes against two particular victims and insufficient as to a robbery againsta third victim. In Franklin, supra, 63 Cal.4th at page 268, the court held that sections 3051 and 4801, which provided Franklin with the possibility of release after 25 years of imprisonment and required the Board of Parole Hearings (BPH)to “give great weight to the diminished culpability of juveniles as comparedto adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law,” mooted his constitutional claim under Miller. The court in Franklin also remandedthe case to permit thetrial court to determine whether Franklin had been afforded sufficient opportunity at sentencing to make a record of mitigating evidencetied to his youth. (Jd.at p. 269.) E. The Fifth District Court of Appeal after Transfer This Court transferred the matter back to the Fifth District Court of Appeal with directions to vacate its decision and reconsider the cause in light ofFranklin, supra, 63 Cal.4th at page 269 as to Rodriguez and in light ofFranklin, supra, 63 Cal.4th at page 269, and Romero andSelf, supra, 62 Cal.4th 1 as to Barajas. Without additionalbriefing, the Fifth District Court of Appeal again affirmed the judgments. The court again relied on the non-accomplice evidence of Barajas’s gang membership andthe circumstancesofthe crime, including non-accomplice testimony and physical evidence,to find that the accomplice testimony was sufficiently corroborated. The court also held that appellants’ constitutional sentencing claims under Miller were mootin light ofFranklin. The court did not, however, remand the case to permit the.trial court to determine whether appellants had been afforded a sufficient opportunity at sentencing to makea record ofmitigating evidence that mayberelevant at a future youth offender parole hearing. 15 This Court granted Barajas’s petition for review. Rodriguez did not file a petition for review. Counsel was appointed for both Barajas and Rodriguez. ARGUMENT I. THE ACCOMPLICE TESTIMONY WAS NOT SUFFICIENTLY CORROBORATED AS TO BARAJAS Accomplice Garcia testified that Barajas was the person who had obtained the rifle that was used in the shooting and that Barajas was the shooter. The only other evidence the jury could have consideredthat directly related to Barajas was the gang expert’s opinion that he was a gang memberand the evidence supporting that opinion.* Barajas now contends that Garcia’s testimony wasnotsufficiently corroborated under section 1111. (BOBM? 25-48.) Respondentis constrainedto agree.® Section 1111 governs the evidencethat is required to corroborate the testimony of an accomplice: A conviction can not be had uponthe testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission ofthe offense; and the corroborationis not sufficient if it merely shows the commission ofthe offense or the circumstances thereof. An accomplice is hereby defined as one whoisliable to prosecution for the identical offense charged against the defendant ontrial in the cause in whichthe testimony of the accompliceis given. * A defense witnesstestified that he knew Barajas because they were held in custody together at the Public Safety Center (4RT 946-948), but that fact is irrelevant to the current issue on appeal. > Respondent will refer to Barajas’s Opening Brief on the Merits as “BOBM”and Rodriguez’s Opening Brief on the Merits as “ROBM.” ° Rodriguez properly admits that this issue on review doesnot apply to him. (ROBM 19-20.) His statements and admissions were admittedat ~- ~ trial (3RT 497-504, 507-511, 513-519, 521-526) and sufficiently corroborated Garcia’s testimony. (See People v. Davis (2005) 36 Cal.4th 510, 546-547.) 16 It is undisputed that Garcia was an accomplice as a matter of law. (See 2CT 430-431.) RomeroandSelfarticulates the relevant law concerning accomplice corroboration. For a jury to rely on an accomplice’s testimony about the circumstances of an offense, it must find evidence that independently, “without aid from the accomplice’s testimony,tend[s] to connect the defendant with the crime.” (Romero and Self, supra, 62 Cal.4th at pp. 32, 36, quoting People v. Abilez (2007) 41 Cal.4th 472, 505, internal quotation marks omitted.) The entire conductofthe parties, including their relationship and their acts, may be considered by the jury in determining the sufficiency of the corroboration. (Romero andSelf, at p. 32.) The evidenceneed not independently establish the identity of the victim’s assailant nor corroborate every fact to which the accomplicetestifies, and maybeentitled to little consideration whenstanding alone, but it must reasonably tend to connect the defendant with the commissionofthe crime. (Id. at pp. 32-33.) An accomplice’s testimonyis not corroborated by the circumstance that the testimony is consistent with a non-accomplice’s description of the crime or physical evidence from the crimescene unless the corroboration connects the defendantto the crime. (Jd.at p. 36.) Here, the court of appeal opinion relied on non-accomplice testimony establishing the circumstances of the crime—-pieces ofphysical evidence, and the gang expert’s testimony and opinion that Barajas was a gang member—to corroborate Garcia’s accomplice testimony. Indeed, numerous eyewitnessestestified to the circumstancesofthe shooting, evenifthey could notidentify the perpetrators beyond their Surefio gang membership. A great deal ofphysical evidence, including the murder weapon andshell casings that were fired from that weapon, wasalso presented. But Barajas - was not connected to that evidence in any way apart from Garcia’s testimony. 17 The strongest admissible’ non-accomplice evidencepotentially connecting Barajas to the crime was the gang expert’s opinion that Barajas was a Surefio gang member. (4RT 748-749.) It was undisputedthat the shooting was committed by Surefio gang members. However, the gang expert’s testimony failed to personally connect Barajas to the shooting itself, the physical evidence, the accomplices and victims involved, the vehicle used by the perpetrators, or any particular location related to the crime such as Oregon Park, Acosta’s residence, and the areas where physical evidence was found. Apart from Garcia’s testimony, there was nothing to suggest that the crime was committed by Barajas rather than any other of the hundreds of Surefio gang members in Stanislaus County. (4RT 747, 835.) A brief comparison of a few casesis instructive. In Romero and Self, a robbery victim testified that the robber had brandished what appeared to be a sawed-off shotgun. (Romero andSelf, supra, 62 Cal.4th at p. 35.) According to the accomplice, the shotgun had belonged to Self, who had sent Romero with the gun to commit the robbery. (Jbid.) Although Self admitted that he had possessed a shotgun for a month priorto the robbery, that circumstance wasinsufficient to corroborate the accomplice’s testimony that Selfwas present at the robbery. (/d. at pp. 35-37.) Romero andSelfapprovingly discussed the 147-year-old case People v. Ames (1870) 39 Cal. 403. (Romero and Self, supra, 62 Cal.4th at pp. 36- 37.) In Ames, two robbery victims testified that one of the robbers was referred to by another robber as “Charley.” (People v. Ames, supra, 39 Cal. at pp. 403-404.) The accomplicetestified that the defendant, Charles G. Ames, was usually known as “Charley.” (/d. at pp. 404-405.) The court ’ Barajas’s admissions and statements to law enforcement would have provided sufficient corroboration had they not been stricken. 18 held that the testimonyofthe victims did not tend to connect the defendant with the commission of the offense becauseit did no morethan raise a suspicion against every man in Los Angeles County named Charles. (Ibid.) Accomplice testimony was foundto be sufficiently corroborated in People v. Szeto (1981) 29 Cal.3d 20. In Szeto, members ofthe Joe Boys gang shot and killed several people at a restaurant in an attemptto gain revenge on rival gang membersfor killing a fellow Joe Boys gang member two months earlier. (/d. at pp. 26, 28.) An accomplice explained that the defendant, who was charged with being an accessory to a felony and possessing a sawed-off shotgun, had disposed of the guns usedin the shooting. (Jd. at pp. 25, 27-28.) The court held that the accomplice testimony wascorroborated by independent evidencethat the defendant had a motive to aid the killers and had the opportunity to commit the charged crimes. (/d. at pp. 27-29.) The non-accomplice evidenceestablished that the defendant was a memberof the Joe Boys gang,had attendedthe funeral of his fellow gang member two monthsearlier, was present in the same houseasthe killers on the morning of the shooting before the guns had disappeared, and had workedin the area where the guns wereultimately abandoned. (dd.at pp. 28-29.) The relevant facts of this case are remarkably similar to the facts in People v. Pedroza (2014) 231 Cal.App.4th 635, which found a lack of sufficient corroboration of accomplice testimony. In Pedroza, the only evidencerelating to the defendant aside from the accomplice’s testimony was(1) the defendant was in the same gangasthe victim and the accomplice, (2) the gang, which had over 400 members, was experiencing frequent in-house murders, and (3) a few hoursafter the crime occurred, the defendant was seen with the accomplice at a fellow gang member’s house approximately 30 miles from the sceneofthe crime. (Jd. at pp. 639, 651.) Pedroza explained that the independent evidence merely established that 19 the defendant had a general connection to the victim and the other perpetrators via their shared gang membership and did not connect the defendant with the crimes themselves. (/d. at p. 651.) Shared gang membership, without more, did not tend to establish that the defendant had a motive to commit the crimes. (/d. at p. 654.) Although other aspects of the accomplice’s testimony were corroborated by independent evidence, none ofthat evidence tended to connect the defendant to the crimes. (Id.at pp. 652-653.) The corroborating evidence in this case was even weaker than it was in Pedroza. The non-accomplice evidencedid not tend to connect Barajas to the accomplice, his codefendant, or the victims. Nor did it tend to connect Barajas to the Chevy Blazer used during the shooting, the murder weapon, or any of the bullets and shall casings that were recovered. There was no evidence tending to connect Barajas to Oregon Park, the 429 Thrasher residence, or any of the locations where relevant evidence was found. There was also no evidence that Barajas had been involved in any of the prior acts of violence committed by the Nortefios against the Surefios that preceded the charged crimes. And other than fights at school, the evidence did not show that Barajas had committed acts ofviolence against Nortefios similar to the shooting at the park. Unlike in Szeto, there was no evidence establishing a personal motive or opportunity to commit the charged crimes. The corroborating evidence that was presented could do no more than establish the crimes occurred andraise a suspicion against every Surefio gang memberin Stanislaus County. Any of the above pieces of evidence, had they been presented to the jury, may have tended to connect Barajas to the commission of the crimes in this case. But without any such evidence, respondentis constrained to agree that the accomplice testimony was notsufficiently corroborated. 20 Respondent does, however, take issue with two arguments made in Barajas’s Opening Brief on the Merits. Barajas argues that evidence of _ corroboration must show personal guilt to satisfy due process (BOBM 26, 41, 45, citing Scales v. United States (1961) 367 U.S. 203), but that is not the case. Whereas section 1111 requires evidence of corroboration that tends to connect the defendant to the commission of the crime, the United States Constitution does not. The due process requirement that criminal liability rest on personal guilt (see People v. Castenada (2000) 23 Cal.4th 743, 749) wassatisfied in this case by Garcia’s testimonythat directly implicated Barajas. Respondentalso disputes the claim that evidence of motive may not constitute corroboration of accomplice testimony in an appropriate case. (BOBM 45-46.) Evidence of motive may tend to connect the defendant to the commission of the charged offense. (§ 1111.) And California courts have repeatedly relied upon evidence of motive to corroborate accomplice testimony. (See, e.g., People v. McDermott (2002) 28 Cal.4th 946, 986; People v. Heishman (1988) 45 Cal.3d 147, 165; People v. Szeto, supra, 29 Cal.3d at p. 28; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1178; People v. Vu (2006) 143 Cal-App.4th 1009, 1022; see also People v. Pedroza, supra, 231 Cal.App.4th at pp. 654-656 [suggesting independent evidence of motive could have providedsufficient corroboration].) However, this Court need not resolve the issue in light of respondent’s concession that the accomplice testimony wasnotsufficiently corroborated. II. THIS COURT MAY NOT DECIDE RODRIGUEZ’S CLAIM; IN ANY EVENT, RODRIGUEZ’S CONSTITUTIONAL CHALLENGETO HIS 50-YEARS-TO-LIFE SENTENCE IS MOOT, BUT RODRIGUEZ IS ENTITLED TO A LIMITED REMAND UNDER FRANKLIN Appellants raise identical constitutional challengesto their 50-years- to-life sentences. In light of respondent’s concession on the accomplice corroboration issue as to Barajas, respondent does not address this claim as 21 to him. Were Barajas’s convictions to stand, this argument would apply equally to him. Before the enactment of sections 3051 and 4801, Rodriguez was sentenced to 50 yearsto life. Following this Court’s decision in Franklin, supra, 63 Cal.4th 261, the Fifth District Court of Appeal held that Rodriguez’s constitutional challenge was moot. The Fifth District did not, however, remandthe case to permitthe trial court to determine whether appellants had been afforded a sufficient opportunity at sentencing to make a record of mitigating evidence that may be relevantat a future youth offenderparole hearing, as this Court did in Franklin. Rodriguez now contends that his constitutional challenge was not moot because he wasnot granted a remand. (ROBM 21-62.) This Court may not decide the issue as to Rodriguez because Rodriguez did not file a petition for review andthe court did not grant review as to him on its own motion. In any event, sections 3051 and 4801 render Rodriguez’s constitutional challenge moot, regardless whether the case is remanded. The remandin Franklin wasstatutorily, not constitutionally, driven. However, because Rodriguez was sentenced before sections 3051 and 4801 were enacted and beforethis Court’s decision in Franklin, respondent concedesthat, under Franklin, Rodriguez is entitled to a limited remand. A. This Court May Not Address Rodriguez’s Claim Because He Did NotFile a Petition for Review Asa threshold matter, this Court may not address Rodriguez’s claim because Rodriguezdid notfile a petition for review. Barajas’s petition for review, whichthe court granted (Cal. Rules of Court, rule 8.512(b)(1)), was not filed on behalf of Rodriguez. Nor did this Courtorder review as to Rodriguez on its own motion within 30 daysafter the decision wasfinal in _ 22 the Court of Appeal.® (Cal. Rules of Court, rule 8.512(c)(1).) Without a timely filed petition for review by Rodriguez ora grant ofreview on the court’s own motion as to him,it appears that the court does not have jurisdiction to decide his claim. (Cf. Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1025 [“Accordingly, the petition for review wastimely filed and we havejurisdiction in this matter.”].) Because the court appointed counsel for Rodriguez and permitted him to file an opening brief on the merits, respondent will address the issues raised in Rodriguez’s Opening Brief on the Merits. | B. Penal Code Sections 3051 and 4801 Render Rodriguez’s Constitutional Challenge Moot Because They Provide Rodriguez with a Meaningful Opportunity for Release after No Morethan 25 Years of Imprisonment The Supreme Court in Graham v. Florida, supra, 560 U.S. 48 categorically barred under the Eighth Amendmenta court’s imposition of an LWOPsentence on ajuvenile offender convicted of nonhomicide offenses. The court explained that juveniles, by reason of their immaturity, are less culpable for their criminal actions than their adult counterparts. (/d. at p. 68.) Given the transient nature of juveniles’ immaturity, the court expressed concern aboutthe difficulty of identifying the “irreparable corruption”typically needed to justify an LWOPsentence. (/bid.) The high court also 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.” (/d. at p. 69.) In light of those considerations, the court determined that sentencing juveniles to the ® The deadline to grant review on the court’s own motion ororder an extension in absence ofa petition for review was February 18, 2017. Here, the court extended time to grant or deny review on March 23, 2017, and granted Barajas’s petition for review on April 12, 2017. 23 ““second most severe penalty permitted by law’” could not bejustified by legitimate penological goals in nonhomicide cases. (/d. at p. 69, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. ofKennedy,J.).) Graham itself madeclear the limits of the court’s holding, namely, that a “[s]tate need not guarantee the offender eventual release, butif it imposesa sentenceoflife it must provide him or her with somerealistic opportunity to obtain release before the end ofthat term.” (Graham, supra, 560 U:S.at p. 82.) Stated in other words, states must give the offender “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (/d.at p. 75.) The high court directed that “[i]t is for the [s]tate, in the first instance, to explore the means and mechanismsfor compliance” with this requirement. (/bid.) The court did not say the required “means and mechanisms”are limited to judicial sentencing. . Twoyearslater, in Miller, supra, 567 U.S. 460, the Supreme Court revisited LWOPsentences for juveniles, this time in the context of a conviction for murder. Initially, the high court clarified that Graham’s “flat ban” on LWOPsentences for juveniles applies only to nonhomicidecases. (Id. at p. 473.) Recognizing, however, the force of Graham’s insistence that “youth matters” when considering whetherajuvenile should be denied any opportunity for release (apart from clemency) from the outset of his sentence, Miller held that “the Eighth Amendmentforbids a sentencing scheme that mandateslife in prison without possibility of parole for juvenile offenders.” (/d. at p. 479.) The court explained that mandatory LWOPposesa great risk of disproportionality by making all age-related considerations irrelevant to the imposition of these stringent and _ irrevocable sentences. (/bid.) While the court expressly refused to invalidate LWOPsentencesforjuveniles, Miller demanded that sentencing 24 courts considering LWOPsentences“take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (/d. at pp. 479-480.) Shortly after Miller, this Court in Caballero, supra, 55 Cal.4th 262 considered a mandatory term-of-years sentence not constituting actual LWOP. Caballero struck down mandatory consecutive terms aggregating to a 110-years-to-life sentence for three nonhomicide offenses by a 16-year- old defendant on the groundthat the 110-year term transgressed Graham’s “flat ban.” (/d. at p. 268.) This Court reasonedthat “[a]lthough thestate is by no meansrequired to guarantee eventual freedom to a juvenile convicted of a nonhomicide offense, Graham holds that the Eighth Amendment requires the state to afford the juvenile offender a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” and that “[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.” (/d. at p. 266, quoting Graham, supra, 560 U.S.at p. 73.) “‘Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” (Caballero, supra, at p. 267, quoting Miller, supra, 567 U.S.at p. 473.) Pursuantto Graham, Caballero held that “sentencing a juvenile offender for a nonhomicide offense to a term of years with a paroleeligibility date that falls outside the juvenile offender’s naturallife expectancy constitutes cruel and unusual! punishmentin violation of the Eighth Amendment.” (Caballero,at p. 268.) Caballero emphasizedthat its holding must be understood in the context of “Graham’sanalysis, [which] does notfocus on the precise sentence meted out. Instead,it holds that a state must provide a juvenile offender ‘with somerealistic opportunity to obtain release’ from prison during his or her expected lifetime.” (Caballero, supra, 55 Cal.4th atp. 25 268, quoting Graham, supra, 560 U.S.at p. 82,italics added.) Echoing Graham’ s invitation to the states to explore “means and mechanisms”of complying with its Eighth Amendment requirement, the court in Caballero resolved that legislative action could meetthe state’s requirementto provide a realistic opportunity for parole in such cases: “We urge the Legislature to enact legislation establishing a parole eligibility mechanism that provides a defendantserving a de facto life sentence withoutpossibility ofparole for nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain release on a showing of rehabilitation and maturity.” (Caballero, at p. 269, fn. 5.) Like the United States Supreme Court, this Court did not suggest in Caballero that only a judicial “mechanism”will do.’ It would be strangeif it had since paroleeligibility determinations are traditionally administrative in nature. The California Legislature heeded this Court’s recommendation. On September 16, 2013, the Governor signed into law Senate Bill No. 260. The bill established a parole eligibility mechanism for juvenile offenders with life sentences in both nonhomicide and homicide cases. In so doing, the state responded directly to the expressions in Miller, Graham, and Caballero that the deprivation of a court’s ability to consider the offender’s youthfulness before imposing LWOPorfunctional equivalents risks significant sentence disparity that violates the Eighth Amendment. Section 1 of Senate Bill No. 260 states, in pertinent part: The Legislature finds and declaresthat, as stated by the United States Supreme Court in Miller v. Alabama (2012) 183 L.Ed.2d 407, “only a relatively small proportion of adolescents” who engage in illegal activity “develop entrenched patterns of problem behavior,” and that “developments in psychology and * The United States Supreme Court confirmed in Montgomery v. Louisiana (2016) 136 S.Ct. 718, 736, that a state “may remedy aMiller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” 26 brain science continue to show fundamental differences between juvenile and adult minds,” including “parts of the brain involved in behavior control.” The Legislature recognizes that youthfulness both lessens a juvenile’s moral culpability and enhances the prospectthat, as a youth matures into an adult and neurological developmentoccurs, these individuals can become contributing membersof society. The purposeofthis actis to establish a paroleeligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 andthe decisions of the United States Supreme Court in Graham v. Florida (2010) 460 U.S. 48, and Miller v. Alabama (2012) 183 L.Ed.2d 407. (Stats. 2013, ch. 312, § 1.) Effective January 1, 2014, Senate Bill No. 260 added new section 3051. That section establishes parole eligibility dates for juvenile offenders based on the length ofthe sentence imposedfor the “controlling offense,” defined as “the offense or enhancement for which any sentencing court imposedthe longest term ofimprisonment.” (§ 3051, subd. (a)(2)(B).) As relevantto this case, the section provided: A person who wasconvicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentenceis a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions. (§ 3051, subd. (b)(3), as amended byStats. 2013, ch. 312, § 4.!°) Section 3051, subdivision (e), further provides that the youth offender parole hearing “shall provide for a meaningful opportunity to obtain release.” Additionally, section 3051, subdivision (f)(1), declares that any '° That statute now applies to persons who committeda controlling offense before age 23. (Stats. 2015, ch. 471, § 1.) 27 psychological evaluations and risk assessments, if used by BPH,“shall take into consideration the diminished culpability ofjuveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual.” Subdivision (f)(2) permits family members,friends, and others with knowledge aboutthe offender before the crime or the offender’s growth and maturity since the time of the crime to submit statements to BPH for review. Senate Bill No. 260 also amendedsection 3046 to exemptjuvenile offenders from the rule that prisoners sentenced to consecutivelife sentences mustservetheir full consecutive terms before becoming eligible for parole. (§ 3046, subds. (a)-(c), as amended byStats. 2013,ch. 312, § 3.) Accordingly, juvenile offenders such as Rodriguez are eligible for parole determinations underthe provisions of Senate Bill No. 260 regardless of any consecutive termsofyears. Finally, Senate Bill No. 260 amendedsection 4801 to require BPH to consider the youth-related factors articulated in Miller and Caballero when reviewing a juvenile offender’s suitability for parole at a youth offender parole hearing. Under the amendedstatute, BPH “shall give great weight to the diminished capacity ofjuveniles as comparedto adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordancewith relevant case law.” (§ 4801, subd.(c), as amendedby Stats. 2013, ch. 312, § 5.) In Franklin, which involved a constitutional challenge to a juvenile’s sentence of 50 years tolife, just as this case does, the court held that the protections outlined in Miller apply equally to juveniles sentenced to the functional equivalent of LWOP for a homicide offense. (Franklin, supra, 63 Cal.4th at p. 276.) However, Franklin also held that the statutory changes enacted by Senate Bill No. 260 bring California juvenile sentencing into conformity with Miller, Graham, and Caballero and moot a 28 constitutional claim raised under those cases. (/d. at pp. 268, 276-280.) The new statutory scheme superseded the juvenile offender’s statutorily mandatedsentenceof50 years to life by operation of law and ensured that the offender would have a meaningful opportunity for release on parole no more than 25 years into their incarceration. (/d. at pp. 277-279.) “‘A claim is moot when the groundsfor the claim no longerexist.” (People v. Peoples (2016) 62 Cal.4th 718, 773.) “[S]ection 3051 [and the related statutes have] abolished de facto life sentences.” (People v. Scott (2016) 3 Cal.App.5th 1265, 1281.) Because Rodriguez is no longer serving an LWOPsentenceorits functional equivalent, he does not have a cognizable constitutional claim under Miller. (Franklin, supra, 63 Cal.4th at p. 280.) Therefore, the constitutional claim is moot. (Jbid.) C. The Validity of the Constitutional Claim is Not Dependent on an Offender’s Ability to Present Relevant Mitigating Evidence at Some PointPrior to the Youth Offender Parole Hearing Contrary to Rodriguez’s contention (ROBM21-62), the validity of his constitutional claim is not affected by the Court of Appeal’s failure to remand the matterlike this Court did in Franklin. In other words, Rodriguez’s constitutional claim is moot regardless whethera limited Franklin remand is granted. Whetherthe current statutory scheme has reduced sentences and granted parole hearings to comply with constitutional requirements and whether each offender should be granted an opportunity to present relevant mitigating evidence at somepointprior to an eventual youth offender parole hearing are separate and distinct questions. In Franklin, the court repeatedly declared, without qualification, that the constitutional claim was moot. (Franklin, supra, 63 Cal.4th at p. 268 [“sections 3051 and 4801—+ecently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero— 29 moot Franklin’s constitutional claim.”]; id. at pp. 276-277 [“Senate Bill No. 260 has mooted Franklin’s claim under Miller.”|; id.at p. 280 [“Because Franklin is not serving an LWOPsentenceorits functional equivalent, no Miller claim arises here. The Legislature’s enactment of Senate Bill No. 260 has rendered moot Franklin’s challengeto his original sentence under Miller.”; id. at p. 286 [“We thus conclude that Franklin’s Eighth Amendment challengeto his original sentence has been rendered moot.”].) The claim was declared moot because Franklin’s sentence, by operation of law, was no longer the functional equivalent of LWOP,andthe record did not include evidence that the Legislature’s mandate that youth offender parole hearings must provide for a meaningful opportunity to obtain release is unachievablein practice. (Jd. at p. 286.) The sameis true here. Asa result of sections 3051 and 4801, Rodriguez is effectively serving a sentence of 25 yearsto life. His sentence, whichis constitutional under Graham, Miller, and Caballero (Franklin, supra, 63 Cal.4th at pp. 279-280), remains the same with or without a remand.'! And, as in Franklin, there is no evidence in the record that the Legislature’s mandatethat youth offender parole hearings must provide for a meaningful opportunity to obtain release is unachievable in practice without a remand. The Graham idea of a “meaningful opportunity” (Graham, supra, 560 USS. at p. 75) or “realistic opportunity” (id. at p. 82) to obtain release stood in contrast to the Florida sentence and statutory schemeat issue that denied the offender “any chance” to demonstrate rehabilitation (id. at p. 79) and “guarantee[d]” that he would die in prison (ibid.). California’s statutory scheme meets Graham’s concerns by providing juvenile offenders a '! The issue ofwhether a sentence of 50 yearstolife is the functional equivalent of LWOPforjuvenile offenders is currently before this Court in People v. Contreras, 8224564. 30 meaningful chance to demonstrate rehabilitation after a maximum of 25 years of imprisonment. Section 3051, subdivision (e), declares that a youth offender parole hearing “shall provide for a meaningful opportunity to obtain release.” In furtherance of that guarantee, sections 3051, subdivision (f), and 4801, subdivision (c), require BPH to “give great weight” to factors relating to the offender’s youth, maturity, and rehabilitation and provide for the presentation and consideration of such evidenceat the hearing. Any psychological evaluations and risk assessments must consider factors relating to the offender’s youth, maturity, and rehabilitation. (§ 3051, subd. (f)(1).) Family members, friends, school personnel, faith leaders, and representatives from community-based organizations may submit statements with information relating to those factors as well. (§ 3051, subd. (f)(2).) Additionally, an offender may present relevant documentary evidence, including mitigating evidence relevant to his youth, maturity, and rehabilitation, to BPH. (Cal. Code Regs., tit. 15, § 2249.) In light of these provisions,it is difficult to conceive how the statutory schemedoesnot provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” (Graham, supra, 560 U.S.at p. 75) or how Rodriguez could affirmatively establish that point based on the record on appeal. BPH’s consideration is certainly not limited to the evidence in the record at sentencing or on a remand. (See ROBM 57-58.) The scheme doesnot “preclude[] consideration” of youth-related factors (see Miller, supra, 567 U.S.at p. 467); to the contrary, it mandates that BPH consider them and give them “great weight,” with or without a remand. The opportunity to obtain release that is offered to juvenile offendersis not “bare” (RBOM 22);in fact, it extends beyond that whichis granted to adult offenders. (See §§ 3041, 3051, subd. (d), 4801, subd.(c).) A remandin this case to potentially allow Rodriguez an opportunity to present relevant mitigating evidence at somepoint prior to the youth 31 offender parole hearing is not required to comply with the constitutional requirements articulated in Graham,Miller, and Caballero. A ruling to the contrary would be based on pure speculation. As wasthe case in Franklin, supra, 63 Cal.4th at page 286, it would be premature to declare that the current statutory scheme doesnot provide a meaningful opportunity to obtain release absent a remand. The United States Constitution does not mandate that a juvenile offender have an opportunity to establish some evidentiary baseline at or near the time of the crime or sentencing concerning his or her youth, maturity, and prospects for rehabilitation in order to provide the offender a meaningful opportunity to obtain release at a future parole hearing. To the contrary, the United States Supreme Court appears to have contemplated parole hearings at which evidencerelating to an offender’s youth, maturity, andrehabilitation would be introduced for the first time. Montgomery v. Louisiana (2016) 136 S.Ct. 718, 736 approved the remedy ofpermitting juvenile homicide offenders to be considered for parole rather than resentencing them, citing the Wyoming statutory schemethat does not appear to provide for the possibility of establishing a baseline at any time prior to the parole hearing. (See Wyo.Stat. Ann. §§ 6-10-301(c), 7-13- 402.) Acknowledgingthe petitioner’s claims that he had evolved from a “troubled, misguided youth to a model memberofthe prison community,” the high court explained that such submissions were an example of one kind of evidence that prisoners might use to demonstrate rehabilitation. (Montgomery, 136 S.Ct. at p. 736.) Such evidence can be presentedat a parole hearing. Montgomery does not appear to require or contemplate any sort of “baseline hearing”prior to the parole hearing. While acknowledging “colorable concerns” regarding Franklin’s opportunity to make a record of youth-related mitigating evidence at sentencing (Franklin, supra, 63 Cal.4th at pp. 268-269, 282-284), Franklin 32 did not hold that an opportunity to establish an evidentiary baseline for youth-related factors at some point prior to the parole hearing was necessary to satisfy the federal Constitution. Notably, Franklin never qualified that the constitutional claim was mootonly if it was determined the offender had a sufficient opportunity to establish such a baseline. Nor did the court assert that the constitutional claim was not moot unless the case was remandedfor that purpose. Asthe high court suggests,it is possible, and adequate, for an offender to present evidenceat a parole hearing that demonstrates the impactofhis youth and immaturity as a juvenile as well as his subsequent growth and maturity since that time. The plain language of sections 3051 and 4801 andthe relevant BPH regulations provide for this type of constitutionally sufficient parole hearing. The relevant questionat a parole hearing is whether the offender has reacheda point of sufficient growth, maturity, and rehabilitation such that he or sheis presently “fit to rejoin society” (Graham, supra, 560 U.S.at p. 79), not necessarily how far the offender has cometo reach that point. A “baseline hearing,” although relevant, is not necessary to provide a meaningful opportunity for the offender to demonstrate at a parole hearing that he orsheisfit to rejoin society. The remand in Franklin wasstatutorily, not constitutionally, driven. It stemmed from the notion that the relevant statutes appearedto “contemplate that information regarding the juvenile offender’s characteristics and circumstancesat the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration.” (Franklin, supra, 63 Cal.4th at p. 283.) As Justice Werdegar observed in her concurring and dissenting opinion, “the majority does not claim a remand for what might be termed a ‘baseline hearing’ is constitutionally mandated by Miller.” (Id. at p. 287.) Rather, the premise for the remand 33 wasstatutory, notwithstanding the lack of any express statutory provision requiring such a remand. (/d. at pp. 287, 289.) A Franklin remandis not required to ensure compliance with Graham, Miller, and Caballero. The remand wasadditionally premised on the assumptionthat assembling such information “is typically a task more easily doneat or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have beenlost or destroyed, or family or community members may haverelocated or passed away.” (Franklin, supra, 63 Cal.4th at pp. 283-284.) Of course, a determination that assembling the relevant information is “more easily done” by remandis quite different from a determination that such a remandis constitutionally required,i.e., that a meaningful opportunity to obtain release cannot be had without one. (See id. at p. 290 (conc. & dis. opn. of Werdegar,J.) [“this court is not authorized to create and require such procedures simply because they might be a good idea”].) Tothe extent the Legislature contemplated a “baseline hearing” whenit enacted the currentstatutory scheme, it provided for a procedural benefit in excess ofwhat was constitutionally required. Contrary to Rodriguez’s claim, a Franklin remandis not required to guarantee him a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” (Graham,supra, 560 US. at p. 75.) Regardless whether an evidentiary baseline has been set, BPHisstill required to consider the relevant youth-related factors prior to makingits parole decision. Whether a record of relevant information has already been made or whether relevant information is presented to BPH forthe first time at the parole hearing, BPH can “give great weight to the diminished capacity ofjuveniles as comparedto adults, the hallmark features of youth, and any subsequent growth and increased maturity” of the offender in either instance. (§ 4801, subd. (c).) A youth offender parole hearing—at which 34 an offender has an opportunity to present evidencerelating to the offender’s youth, maturity, and rehabilitation and have that evidence considered by BPH,as the statutes afford—sufficiently provides a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation under Graham, Miller, and Caballero. Decisions from otherstates that have enacted legislation comparable to California’s have similarly concluded the change in sentence and opportunity for parole resolves the constitutional claim without consideration of youth-related factors prior to an eventual parole hearing. (See, e.g., State v. Delgado (Conn. 2016) 151 A.3d 345, 351-355 [following the enactment of Conn. Gen.Stat. § 54-125a, the offender’s sentence, which included the opportunity for parole, no longer fell within the purview ofMiller and judicial consideration of youth-related factors was not required]; State v. Tran (Haw.Ct.App. 2016) 378 P.3d 1014 [the enactment ofHRS § 706-656(1), which does not require a court to consider mitigating factors of youth prior to an eventual parole hearing, resolved the offender’s constitutional claim]; State v. Mares (Wyo. 2014) 335 P.3d 487, 495-499, 508 [amendments to Wyo.Stat. Ann. §§ 6-10-301(c), 7-13-402, whichconverted the offender’s sentence by operation of law to include the opportunity for parole, mooted the offender’s constitutional claim under Miller without further judicial intervention]; State v. Vera (Ariz.Ct.App. 2014) 334 P.3d 754, 759, 761 [the enactment of A.R.S. § 13-716, which provided a juvenile sentenced to a 25-years-to-life term with some meaningful opportunity to obtain release based on demonstrated maturity © and rehabilitation, adequately remedied the juvenile’s Miller claim]; see Diatchenko v. District Attorney (Mass. 2013) 1 N.E.3d 270, 285-287 [the parole board’s evaluation of the circumstances surrounding the commission of the crime, including youth-related factors, at an eventual parole hearing afforded the offender a meaningful opportunity to be consideredfor parole 35 suitability]; see also La. R.S. § 15:574.4(E) & La. C.Cr.P. Art. 878.1 [providingforparole eligibility without requiring a judicial determination or consideration of youth-related factors prior to the eventual parole hearing].) These decisions support the conclusion that Rodriguez’s constitutional claim is moot regardless whether he is provided an opportunity to present relevant mitigating evidence at some pointprior to a parole hearing. Tying the validity of a California juvenile offender’s constitutional claim under Graham,Miller, and Caballero to an opportunity to present relevant mitigating evidence at somepoint prior to the youth offender parole hearing, as appellant urges, would also raise practical concerns. The goal of a remand underFranklin is to ensure that the parties are provided a sufficient opportunity, if one was not previously available, understate statutes to make an accurate record of the juvenile offender’s characteristics and circumstancesat the time of the offense before records are lost or destroyed and relevant witnesses become unavailable or are unable to sufficiently recall relevant information. (Franklin, supra, 63 Cal.4th at pp. 283-284.) As Franklin tacitly acknowledged, however, the effectiveness of each remandwill depend greatly on the individual circumstances of each case and, particularly, the amount of time that has passed sincethe crime. A remand that occurs more than 13 years after the crime was committed, which would necessarily be the case for Rodriguez,is less likely to | generate relevant and accurate information than a remand for an offender whosecrime was committed just one or two yearsearlier.'* It would be odd to condition mootnessof constitutional claims on the varying and 12 This assumesthetrial court in each case determines the offender did not have a sufficient opportunity to present such evidenceat sentencing. 36 unknowneffectiveness of a remand procedure designedto satisfy statutory goals. The problem of conditioning mootness on such a remandprocedureis even more apparent when considering cases in which the goal of a remand cannot possibly be achieved. In a case wherethe juvenile offender has already becomeeligible for a youth offender parole hearing under sections 3051 and 4801 at the time of decision on appeal, the need for a Franklin remand would nolonger exist. Under appellant’s rule, however, either (1) the court would be required to order a useless and redundant remand in orderto find the constitutional claim moot, or(2) the offender would prevail on his constitutional claim andbeentitled to resentencing (which the high court has declared is not required, and which mayor maynot eliminate the need for a youth offender parole hearing) because he wasnot sufficiently able to establish an evidentiary baseline prior to the youth offender parole hearing. Neither result is appropriate or efficient to achieve statutory goals. Based on thevarying circumstancesthat accompany these cases, appellant’s rule wouldbe difficult to implement equitably and efficiently. A bright-line rule divorcing the mootness question from Franklin’s statutorily-driven remand requirement, on the other hand, would be easy to implement and would avoid difficult questions. Under respondent’s proposedrule, a juvenile offender’s constitutional claim under Graham, Miller, and Caballero is mootifthe offender will be eligible for a youth offender parole hearing under sections 3051 and 4801. For the reasons explained above,these sections resolve the offender’s constitutional claim. D. Under Franklin, Rodriguez is Entitled to a Limited Remand Even though Rodriguez’s constitutional claim is mooted by the enactment of sections 3051 and 4801, he is nevertheless entitled to a 37 limited remand understate law as articulated by this Court in Franklin, assuming this Court finds jurisdiction over his appeal. Just like in Franklin, the fact that the constitutional claim is moot does not preclude a hearing at which Rodriguez has a sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevantat his youth offender parole hearing, which this Court has interpreted is required to fully implement the directive contained in those sections. The recordis not clear whether Rodriguez had a sufficient opportunity to make such a record, so a remandis appropriate here understate law. The probation department issued its report and recommendationsin Rodriguez’s case before the Miller and Caballero decisions. (2CT 528- 548.) It is unknown whether Rodriguez’s attorney, who declined to have Rodriguez interviewedfor the report (2CT 542), would have advised him differently had he known that evidencerelated to Rodriguez’s youth and maturity was potentially relevantto the sentencing determination or an eventual youth offender parole hearing. The sentencing court stated it had read the probation report but did not solicit any defense statements regarding youth-related factors or otherwise expressly consider any such factors or evidence prior to imposing sentence. (SRT 1249-1251.) Althoughthe sentencing took place after Miller and Caballero were decided, it took place prior to the enactmentof section 3051 andthis Court’s decision in Franklin. It is unclear whether Rodriguez understood both the need and the opportunity to develop the type of record contemplated by Franklin at the time of sentencing. Thus, this Court should remand the matter so that the trial court can determine whether Rodriguez had sufficient opportunity to put on the record information that will be relevant at a subsequent youth offender parole hearing and, if not, to 38 permit him to make that record. (Franklin, supra, 63 Cal.4th at pp. 284, 286-287.)}3 CONCLUSION The judgment against Barajas should be reversed and Rodriguez’s appeal should be dismissed. Should this Court reach the merits of Rodriguez’s claim, however, the matter should be remandedforthe limited purpose of determining whetherhe wasafforded an adequate opportunity to makea record ofinformationthat will be relevant to his eventual youth offender parole hearing and, if the trial court determines he did not have sufficient opportunity, permitting him to present relevant evidenceand,if appropriate, testimony. (People v. Franklin, supra, 63 Cal.4th at pp. 284, 286-287.) In all other respects, Rodriguez’s judgment should be affirmed. 3 Tn light of respondent’s concession that appellantis entitled to a_ Franklin remand, respondent does not address Rodriguez’s contentionthat the failure to grant a remand would result in a violation ofprocedural due process. (ROBM 58-62.) 39 Dated: October 12, 2017 Respectfully submitted, XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General STEPHEN G. HERNDON Supervising Deputy Attorney General RACHELLE A. NEWCOMB Deputy Attorney General Dau-kff DARRENK. INDERMILL Deputy Attorney General Attorneysfor Plaintiffand Respondent S$A2017304292 33033682.doc . 40 CERTIFICATE OF COMPLIANCE I certify that the attached ANSWER BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 9,620 words. Dated: October 12, 2017 XAVIER BECERRA Attorney General of California DARREN K. INDERMILL Deputy Attorney General Attorneysfor Plaintiffand Respondent 41 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Rodriguez,et al. No.: 8239713 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member'sdirection 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 placedin 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. On October 13, 2017, I served the attached ANSWER BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelopein the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: S. Lynne Klein Criminal Appeals Clerk Attorney at Law Stanislaus County Superior Court State Bar No. 114527 for delivery to the Honorable Nancy Ashley P.O. Box 367 800 11th Street Davis, CA 95617 Modesto, CA 95354 Attorneyfor Appellant Edgar Octavio Barajas Clerk of the Court Cara DeVito, Esq. Court of Appeal 9360 W. Flamingo Road Fifth Appellate District #110 — 492 2424 Ventura Street Las Vegas, NV 89147 Fresno, CA 93721 Attorneyfor Appellant Jesus Manuel Rodriguez Stanislaus County District Attorney CCAP 832 12th Street, Suite 300 2150 River Plaza Drive Modesto, CA 95354 Suite 300 Sacramento, CA 95833 I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct andthat this declaration was executed on October 13, 2017, at Sacramento, California. L. Lozano Declarant FSSie os $A2017304292 33090079.docx
