NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STK-CR-FE-2014-0008834)
Defendant Jaime Ramos was 19 and a half years old when he participated in an armed robbery of a bank in Stockton that resulted in a high-speed police chase, the death of three people, and serious injuries to two other people. Pursuant to a negotiated disposition, he pleaded guilty to first degree murder under a felony-murder theory (Pen. Code, §§ 187, subd. (a), 189), carjacking (§ 215, subd. (a)), and attempted murder of a peace officer (§ 664/187). He also admitted a special circumstance allegation: that the murder was committed while he was engaged in the commission of a robbery. (§ 190.2, subd. (a)(17)(A).) The trial court sentenced him to the stipulated sentence of life without the possibility of parole (LWOP).
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends his LWOP sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment and violates his right to equal protection under the Fourteenth Amendment. He further contends he is entitled to a resentencing hearing because he was a "youthful offender" under section 3051 at the time he committed his crimes. Because defendant did not obtain a certificate of probable cause (§ 1237.5), we shall dismiss the appeal. However, before doing so, we explain why defendant's appeal fails on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
In view of the issues raised on appeal, we only briefly summarize the pertinent facts underlying defendant's crimes.
The facts recited above are taken from the transcript of the grand jury proceedings. At the change of plea hearing, the parties stipulated that the factual basis for defendant's guilty pleas and admission is set forth in the transcript of those proceedings.
On July 16, 2014, defendant and two other Norteño criminal street gang members robbed the Bank of the West in Stockton at gunpoint and then fled from the police in a sport utility vehicle (SUV) with three female hostages. During the high-speed chase, one of the perpetrators repeatedly shot at the pursuing officers with an assault rifle. One of the hostages was shot in the leg and was pushed or fell out of the SUV while another jumped out of the SUV. Both were seriously injured.
When the SUV finally came to a stop, a gunfight ensued. After numerous shots were fired, defendant was taken into custody. He did not suffer any injuries, except for a scratch on his face. The third hostage and the two other perpetrators died. Defendant was 19 and a half years old at the time of the robbery.
Pursuant to a negotiated disposition, defendant agreed to plead guilty to first degree murder under a felony-murder theory (§§ 187, subd. (a), 189), carjacking (§ 215, subd. (a)), and attempted murder of a peace officer (§ 664/187). He also agreed to admit a special circumstance allegation: that the murder was committed while he was engaged in the commission of a robbery. In exchange, the People agreed to withdraw their request to seek the death penalty. In addition, the parties agreed that defendant would receive a sentence of LWOP on the murder count, concurrent sentences on the carjacking and attempted murder counts, and the remaining 44 counts and enhancement allegations would be dismissed with a Harvey waiver. After defendant entered his guilty pleas and admission, the trial court sentenced him in accordance with the plea agreement.
The remaining counts included two counts of murder (§ 187, subd. (a)), robbery (§ 211), three counts of kidnapping to commit robbery (§ 209, subd. (b)(1)), attempted premeditated murder (§ 664/187, subd. (a)), 35 counts of attempted murder of a peace officer (§ 664/187, subd. (a)), possession of an assault weapon (§ 30605, subd. (a)), and criminal street gang activity (§ 186.22, subd. (a).) The remaining enhancement allegations included special circumstance murder allegations (§ 190.2, subd. (a)), firearm allegations (§§ 12022.53, subds. (c), (d), (e)(1), 12022.5, subd. (a)), and criminal street gang activity allegations (§ 186.22, subd. (b)(1)).
People v. Harvey (1979) 25 Cal.3d 754.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
1.0 Failure to Obtain a Certificate of Probable Cause
As an initial matter, we agree with the People that defendant may not challenge his LWOP sentence because he failed to obtain a certificate of probable cause. As a general rule, a criminal defendant who enters a guilty or no contest plea with an agreed-upon sentence may challenge that sentence on appeal only if he first obtains a certificate of probable cause from the trial court. (§ 1237.5, subd. (a); People v. Panizzon (1996) 13 Cal.4th 68, 76, 78 (Panizzon).) The purpose of the certificate requirement is to "discourage and weed out frivolous or vexatious appeals" (Panizzon, at p. 75) following a defendant's voluntary entry into a plea in exchange for specified benefits such as the dismissal of other counts or an agreed-upon sentence (id. at p. 80). (See People v. Johnson (2009) 47 Cal.4th 668, 676.) The certificate of probable cause requirement is aimed at claims that operate "in substance [as] a challenge to the validity of the plea." (Panizzon, at p. 76.)
In determining whether a guilty plea appeal requires a certificate of probable cause, " 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' " (Panizzon, supra, 13 Cal.4th at p. 76.) Where the defendant challenges the stipulated sentence imposed, he is attacking the validity of the plea which requires a certificate of probable cause. (Id. at p. 78; see People v. Johnson, supra, 47 Cal.4th at p. 678 ["a certificate of probable cause is required if the challenge goes to an aspect of the sentence to which the defendant agreed as an integral part of a plea agreement"].) The certificate requirement is to be "applied in a strict manner." (People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
Here, defendant was required to obtain a certificate of probable cause because he challenges the stipulated sentence imposed as part of his plea agreement, which is properly viewed as a challenge to the validity of the plea itself. (Panizzon, supra, 13 Cal.4th at pp. 73, 78-79 [claim that imposition of sentence to which defendant agreed pursuant to plea agreement constituted cruel and unusual punishment was a challenge to the validity of the plea itself, requiring a certificate of probable cause]; People v. Vargas (2007) 148 Cal.App.4th 644, 651-652 ["if the defendant agreed to a specific sentence as part of his plea agreement the sentence is an issue that arose before entry of the guilty plea, and in order to challenge that sentence on appeal, the defendant must obtain a certificate of probable cause"].) Accordingly, since defendant failed to obtain a certificate of probable cause in compliance with section 1237.5, his challenge to his LWOP sentence is barred. Therefore, we will dismiss his appeal.
2.0 Defendant's Appeal Fails on the Merits
Before dismissing this appeal, we pause to note that, even if defendant had obtained a certificate of probable cause, his appeal lacks merit. Defendant contends his LWOP sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment and violates his right to equal protection under the Fourteenth Amendment. He asserts that reversal is required because he did not receive "individualized sentencing"—that is, consideration of the circumstances of his crimes and the mitigating attributes of his youth—before the trial court imposed a sentence of LWOP. According to defendant, such a sentence may not be imposed in this case unless the trial court determines that his character reflects "irretrievable depravity" that shows rehabilitation is impossible and his crimes reflect "irreparable corruption." We disagree.
Defendant was 19 and a half years old when he committed the crimes charged in this case. His Eighth Amendment claim is primarily based on a series of United States and California Supreme Court cases involving the constitutionality of the death penalty, LWOP, or the functional equivalent of LWOP sentences imposed in juvenile cases: Roper v. Simmons (2005) 543 U.S. 551 (Roper); Graham v. Florida (2010) 560 U.S. 48 (Graham); Miller v. Alabama (2012) 567 U.S. 460 (Miller); Montgomery v. Louisiana (2016) 577 U.S. ___ (Montgomery); People v. Caballero (2012) 55 Cal.4th 262 (Caballero); People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). But, unlike defendant, the defendants in those cases were under the age of 18 at the time of their crimes. (See Roper, supra, 543 U.S. at p. 555 ; Graham, supra, 560 U.S. at p. 52 ; Miller, supra, 567 U.S. at p. 465 ; Montgomery, supra, 577 U.S. at p. ___ ; Caballero, supra, 55 Cal.4th at p. 265; Gutierrez, supra, 58 Cal.4th at p. 1360.) The rationale applicable to the sentencing of juveniles in the cases relied upon by defendant does not apply to defendants 18 years of age or older at the time of their crimes. (Contra, People v. Perez (2016) 3 Cal.App.5th 612, 617; People v. Abundio (2013) 221 Cal.App.4th 1211, 1220-1221; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.)
See Roper, supra, 543 U.S. at page 575 (holding that juveniles may not be sentenced to death for any crime); Graham, supra, 560 U.S. at pages 74 to 75 (holding that juveniles convicted of nonhomicide offenses may not be sentenced to LWOP); Miller, supra, 567 U.S. at pages 477 to 479 (holding that juveniles convicted of homicide offenses cannot be sentenced to LWOP without consideration of their youth and attendant characteristics); Caballero, supra, 55 Cal.4th at page 268 (holding that prohibition on LWOP sentences for juvenile nonhomicide offenders applied to sentences that were so long as to constitute the "functional equivalent" of an LWOP sentence); Gutierrez, supra, 58 Cal.4th at page 1387 (holding that trial court, after considering the youth-related Miller factors, had discretion to impose either LWOP or a term of 25 years to life on a 16- or 17-year-old juvenile offender convicted of special circumstance murder, disapproving cases holding there was a statutory presumption in such cases in favor of LWOP); Montgomery, supra, 577 U.S. at page ___ (holding that Miller's prohibition on mandatory LWOP sentences for juvenile offenders announced a new substantive rule of law that is retroactive).
The United States Supreme Court has recognized that an argument can be made that "[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18." (Roper, supra, 543 U.S. at p. 574 .) Defendant makes a similar argument here. However, the highest courts of our nation and state have drawn the line for Eighth Amendment purposes at age 18. (Graham, supra, 560 U.S. at pp. 74-75 ["Because '[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,' those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime."]; Roper, supra, 543 U.S. at p. 574 ; Gutierrez, supra, 58 Cal.4th at p. 1380.) We are bound to follow their holdings. (People v. Fletcher (1996) 13 Cal.4th 451, 469, fn. 6 [the decisions of the United States Supreme Court on questions of federal constitutional law are binding on all state courts]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Courts of Appeal are bound by California Supreme Court precedent].) Accordingly, we conclude that defendant's LWOP sentence does not violate the Eighth Amendment's proscription against cruel and unusual punishment.
We also reject defendant's alternative argument that a mandatory sentence of LWOP for an adult homicide offender violates the Eighth Amendment. The United States Supreme Court has only required individualized sentencing before such a sentence may be imposed on juvenile offenders. (See Miller, supra, 567 U.S. at pp. 470-479 ["children are constitutionally different from adults for purposes of sentencing"].)
We further conclude that defendant, as an adult offender, is not similarly situated to juvenile offenders convicted of the same crimes and, therefore, reject his claim that his LWOP sentence violates his right to equal protection under the Fourteenth Amendment. (See Miller, supra, 567 U.S. at p. 481 ["We have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children."]; People v. Gamache (2010) 48 Cal.4th 347, 405 ["We previously have rejected the argument that a death penalty scheme that treats differently those who are 18 years of age and older, and those younger than 18, violates equal protection."]; People v. Watson (2017) 8 Cal.App.5th 496, 518-519 (Watson), review granted on another ground on May 10, 2017, S240584 [rejecting challenge to sentencing scheme that allowed 16- or 17-year-old juvenile offenders to be sentenced more harshly than 14- or 15-year-old juvenile offenders; concluding that groups were not similarly situated because it was not uncommon for legal distinctions to be made between minors above and below 16 years of age].)
The California Supreme Court granted review in Watson and deferred further action pending its decision in two other cases. In those cases, the question presented was whether Miller and Montgomery require a trial court to make a finding that a juvenile's crime reflects " 'irreparable corruption resulting in permanent incorrigibility' " before imposing an LWOP sentence. (People v. Padilla (2016) 4 Cal.App.5th 656 (Padilla), review granted Jan. 25, 2017, S239454; People v. Arzate (Sept. 29, 2016, B259259) [nonpub. opn.], review granted Jan. 25, 2017, S238032.) On June 13, 2018, review was dismissed in both Padilla and Arzate in view of Senate Bill No. 394, which effectively ended LWOP sentences for eligible juvenile offenders. With certain exceptions (see § 3051, subd. (h)), Senate Bill No. 394 amends section 3051 to provide that a juvenile offender sentenced to LWOP is now eligible for release at a youth offender parole hearing during their 25th year of incarceration. (Stats. 2017, ch. 684, § 1.5; § 3051, subd. (b)(4).) On August 29, 2018, Watson was transferred to the Court of Appeal, Fourth Appellate District, Division One, with the following order: "for a determination of whether the matter is rendered moot in light of Senate Bill No. 394, signed into law on October 11, 2017. In the event that the Court of Appeal determines that the matter is not rendered moot, this order is without prejudice to defendant's right to petition this court for review of the issue on which this court granted review in People v. Padilla, S239454, and People v. Mendoza, S238032 on January 25, 2017 or any related issue. (Cal. Rules of Court, rule 8.528(d).)" (Watson, supra, 8 Cal.App.5th 496, review granted, transferred as amended Aug. 30, 2018, S240584 .)
Finally, we reject defendant's related claim that he is entitled to relief—remand for individualized sentencing within the meaning of Montgomery/Miller—because he was a "youthful offender" under section 3051 at the time he committed his crimes. As originally enacted, section 3051 provided for a youth offender parole hearing by no later than the offender's 25th year of incarceration where the controlling offense was committed before the offender was 18 years old. (In re Trejo (2017) 10 Cal.App.5th 972, 981 & fn. 6.) The Legislature subsequently amended the statute to extend the availability of youth offender parole hearings to offenders who were 25 years of age or younger at the time they committed their controlling offenses, if they were not ineligible under section 3051, subdivision (h). (Stats. 2015, ch. 471, § 1; Stats. 2017, ch. 675, § 1.) By its own terms, the statute does not apply to offenders, like defendant, who were sentenced to LWOP for a controlling offense that was committed after they turned 18 years old. (§ 3051, subd. (h).) Contrary to defendant's contention, our Legislature's decision to exclude such offenders from the statute's reach does not violate his right to equal protection under the Fourteenth Amendment. Rather, the decision to exclude certain adult offenders—particularly those like defendant whose most serious crime renders them eligible for the death penalty—falls squarely within "the broad discretion the Legislature traditionally has been understood to exercise in defining crimes and specifying punishment." (People v. Wilkinson (2004) 33 Cal.4th 821, 838; see People v. Bell (2016) 3 Cal.App.5th 865, 876-880 [exclusion of one strike offenders from the youthful offender parole statute is not an equal protection violation], review granted on another ground on Jan. 11, 2017, S238339, and transferred for reconsideration on Jun. 13, 2018 in light of People v. Contreras (2018) 4 Cal.5th 349 (Contreras).)
Because defendant pleaded guilty to first degree murder with special circumstances, he was subject to a sentence of death or LWOP. (§ 190.2, subd. (a).)
The California Supreme Court granted review in Bell and deferred further action pending its decision in Contreras. In that case, the question presented was whether the sentences imposed on 16-year-old nonhomicide offenders—50 years to life and 58 years to life—violated the Eighth Amendment. (Contreras, supra, 4 Cal.5th at p. 356.) The court answered the question in the affirmative, holding that the sentences violate the Eighth Amendment under the reasoning of Graham because they are the functional equivalent of LWOP. (Contreras, at pp. 356, 367-370.) --------
The appeal is dismissed.
BUTZ, J. We concur: ROBIE, Acting P. J. RENNER, J.