Filed 8/30/17 P. v. Rodriguez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Following a jury trial, defendant Michael Elijah Rodriguez was convicted of the first degree, premeditated murder of Julio Pantoja-Cuevas (Cuevas) and a gang-related special circumstance and sentenced to life without the possibility of parole. Defendant was 18 years 3 months and 9 days old on the day he killed Cuevas. On appeal and in a consolidated petition for a writ of habeas corpus, defendant asserts he was “a particularly immature eighteen year old” and, therefore, that his sentence violates the Eighth Amendment’s proscription against cruel and unusual punishment and the Fourteenth Amendment’s guarantees of equal protection and due process of law.[1] We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts underlying defendant’s conviction were essentially undisputed at trial. On the evening of November 28, 2010, Cuevas accompanied his friend Luis Ramirez to an apartment complex where Ramirez’s girlfriend lived. They had changed out of their work clothes, and Cuevas was wearing a blue jacket he had recently purchased from a man from Los Angeles selling clothing out of his van. Unbeknownst to Cuevas, who was not affiliated with any gang, the style of the jacket was commonly associated with Sureño gang members.

As Cuevas and Rodriguez were socializing with a group of three women in the common area of the apartment complex, a man rode by on a bicycle, stopped, and made a call on his cell phone. Shortly thereafter, five or six members of the Vera Street Norteños, including defendant, arrived from different directions and approached the group. The men asked Cuevas which gang he “claimed.” Cuevas, who spoke only Spanish, appeared not to have understood the question.

Cuevas’s friends, who did speak English, tried to explain that he was not part of a gang, telling the Norteños to leave him alone. Ignoring their entreaties, one of the senior gang members, known as “Vicious,” started hitting Cuevas, who attempted to shield himself from the blows. Apparently frustrated by Cuevas’s attempt to defend himself, Vicious ordered defendant to “blast him.” At this point, defendant pulled a gun from his pocket and shot Cuevas four times, laughing as he did so. Because defendant’s gun was a single-action revolver, he would have had to have manually cocked the hammer before each of the four shots.

Cuevas’s friends ran to safety. Cuevas also attempted to run but collapsed a short distance away and died at the scene. The gun used to kill Cuevas was later discovered in the trunk of a car in which defendant was riding.

Defendant was charged with and ultimately convicted of first degree, premeditated murder with the special circumstance that the murder was carried out to further the activities of a gang, as well as several related enhancements. Pursuant to Penal Code section 190.2, subdivision (a), which mandates a sentence of death or life without the possibility of parole for defendants found guilty of first degree murder with special circumstances, the trial court imposed the latter sentence.[2] Defendant timely appeals. He subsequently filed a companion petition for a writ of habeas corpus, which this court consolidated with his direct appeal.

DISCUSSION

Defendant argues that his sentence of life without the possibility of parole violates the Eighth Amendment’s proscription against cruel and unusual punishment and the Fourteenth Amendment’s guarantees of equal protection and due process of law. He points to evidence he claims demonstrates that, at just over 18 years 3 months old, he was “a particularly immature offender who . . . had not yet reached the cognitive maturity of a mature adult offender.”[3] Relying on Miller v. Alabama (2012) 567 U.S. 460 (Miller), he asserts that the trial court was required to weigh such evidence before imposing a sentence of life without the possibility of parole. For the reasons discussed below, we cannot agree.

In Miller, supra, 567 U.S. 460, the United States Supreme Court followed and built upon its prior holdings in Roper v. Simmons (2005) 543 U.S. 551 (Roper) (execution of offenders who were under 18 years of age when their crimes were committed violates the Eighth and Fourteenth Amendments) and Graham v. Florida (2010) 560 U.S. 48 (Graham) (sentences of life without the possibility of parole for juveniles convicted of nonhomicide offenses is unconstitutional). The Miller court concluded, “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.” (567 U.S. at p. 489.) Accordingly, before imposing a sentence of life without parole for a crime committed while the offender was a juvenile, a trial court must consider his or her “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” (Id. at p. 477.)

Defendant acknowledges that “the decisions in Roper, Graham and Miller are not directly applicable to him, as he had passed his eighteenth birthday” before he killed Cuevas. He nevertheless argues they should be extended to his benefit based on evolving standards of decency—specifically, “the overwhelming scientific consensus of neurodevelopmental immaturity of eighteen-year-old offenders in general, and this one in particular.”

Our Supreme Court and the California Courts of Appeal have rejected such attempts to extend the rationale of Roper, Graham, and Miller to adult offenders. In People v. Gutierrez (2014) 58 Cal.4th 1354, our high court observed that “ ‘[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach.’ [Citation.] But ‘[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood’ [citation], and that is the line the [United States Supreme Court] has drawn in its Eighth Amendment jurisprudence.” (Id. at p. 1380, quoting Roper, supra, 543 U.S. at p. 574.)

Similarly, in People v. Argeta (2012) 210 Cal.App.4th 1478, 1482, the Court of Appeal rejected a claim that a defendant who had committed a murder when he was 18 years 5 months old was entitled to the same sentencing considerations as juveniles convicted of crimes committed when they were less than 18 years old. The court reasoned, “These arguments regarding sentencing have been made in the past . . . . Making an exception for a defendant who committed a crime just five months past his 18th birthday opens the door for the next defendant who is only six months into adulthood. Such arguments would have no logical end, and so a line must be drawn at some point. We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude Argeta’s sentence is not cruel and/or unusual under Graham, Miller, or [People v.] Caballero [(2012) 55 Cal.4th 262].” (Ibid.; People v. Gamache (2010) 48 Cal.4th 347, 404–405; People v. Perez (2016) 3 Cal.App.5th 612, 616–618; People v. Abundio (2013) 221 Cal.App.4th 1211, 1220–1221.)

We adhere to established precedent and likewise conclude that defendant’s sentence does not violate the Eighth Amendment’s proscription against cruel and unusual punishment. For the same reasons, we conclude that defendant, as an adult offender, is not similarly situated to minors convicted of the same crimes and, hence, reject his claim that his sentence violates the Fourteenth Amendment’s guarantees of equal protection and due process of law.

Finally, we reject defendant’s related assertion, advanced in his reply to the Attorney General’s informal response to his petition for a writ of habeas corpus, that he is entitled to relief under Penal Code section 3051, a new statute providing earlier parole consideration for certain youthful offenders who committed their crimes when they were 18 to 23 years of age. By its own terms, the new statute does not apply to, among others, offenders sentenced to life in prison without the possibility of parole. (Id., subd. (h).) Contrary to defendant’s assertion, our Legislature’s decision to exclude such offenders does not violate his right to equal protection under the Fourteenth Amendment. Rather, the decision to exclude certain adult offenders from the statute’s reach—particularly those like defendant whose most serious of crimes render them eligible for the death penalty in the first instance (see ante, p. 3 & fn. 2)—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 Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 [same]; People v. Bell (2016) 3 Cal.App.5th 865, 876–880, review granted on other grounds Jan. 11, 2017, S238339 [exclusion of one strike offenders from the youthful offender parole statute is not an equal protection violation].) Indeed, defendant’s relative youth was almost certainly an important consideration in the prosecution’s decision to seek a lesser sentence of life without parole rather than the ultimate penalty of death. (Cf. Pen. Code, § 190.3, subd. (i).)

DISPOSITION

The judgment is affirmed, and the petition for a writ of habeas corpus is denied.

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Horner, J.*

We concur:

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Pollak, Acting P.J.

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Siggins, J.

A140839; A146125