People v. Lozano

Filed 11/9/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B278663
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA023984)
v.
ELIZABETH LOZANO,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Richard R. Romero, Judge. Dismissed.
Post-Conviction Justice Project, University of Southern
California, Gould School of Law, Heidi L. Rummel, Michael J.
Brennan, Anna Faircloth Feingold, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Shawn McGahey Webb, Supervising Deputy
Attorney General, Michael Katz, Deputy Attorney General, for
Plaintiff and Respondent.
Prior to a recent amendment to Penal Code section
3051,1 juvenile homicide offenders who were sentenced to life
in prison without the possibility of parole (LWOP), such as
defendant and appellant Elizabeth Lozano, would die in
prison without the opportunity for a parole suitability
hearing. On October 11, 2017, Governor Brown signed
Senate Bill No. 394 (SB 394), which amends section 3051 to
expressly provide a youth offender parole hearing to Lozano
and others similarly situated, meaning Lozano will receive a
parole suitability hearing after 25 years of incarceration.
With the amendment to section 3051, Lozano’s argument
that her LWOP sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment is moot.
The appeal is dismissed.
PROCEDURAL HISTORY
Lozano was sentenced to LWOP in 1996 following her
conviction of first degree murder with a robbery-murder
special circumstance. (§§ 187, 190.2, subd. (a)(17).)2 She
was 16 years old at the time of the commitment offense. In
1997, this court affirmed the judgment as modified, leaving
1Statutory references are to the Penal Code unless
otherwise indicated.
2 Lozano was also convicted of second degree robbery
(§ 211) and the jury found a principal was armed with a
firearm (§ 12022, subd. (a)(1)).
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intact the LWOP sentence. (People v. Lozano (June 12, 1997,
B106665) [nonpub. opn.].)
Fifteen years after Lozano’s conviction was affirmed as
modified, the Supreme Court decided Miller v. Alabama
(2012) 567 U.S. 460 (Miller), holding that “the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders.”
(Id. at p. 479.) Sentencing of juvenile homicide offenders
must take into account “youth (and all that accompanies it),”
as well as a juvenile’s “diminished culpability and
heightened capacity for change.” (Ibid.) With the
concurrence of the prosecution, Lozano was afforded a new
sentencing hearing in 2015 to consider the holding in Miller.
The trial court again sentenced Lozano to LWOP. In doing
so the court refused to consider Lozano’s conduct in prison in
the intervening 19 years. Lozano’s initial performance in
prison was dismal, including a conviction for conspiracy to
transport a controlled substance, but as the years passed her
conduct improved significantly, earning Lozano the support
of various prison officials. We reversed on appeal and
remanded with directions to the trial court to conduct a new
sentencing hearing at which the court would consider
Lozano’s post-conviction conduct in prison, both good and
bad, in determining whether Lozano was “‘the rare juvenile
offender whose crime reflects irreparable corruption,’” as
required by Miller, supra, at pages 479–480, in order to
justify an LWOP sentence. (People v. Lozano (2016) 243
Cal.App.4th 1126, 1137–1138.)
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The trial court held Lozano’s third sentencing hearing
in 2016. After consideration of briefing, exhibits, victim
impact statements, expert testimony, and evidence of a
recent violation of prison rules (Lozano’s unlawful possession
of a cell phone), the court again sentenced Lozano to LWOP.
DISCUSSION
Lozano contends her LWOP sentence violates the
Eighth Amendment. After briefing was complete, we invited
the parties to address whether newly enacted section 3051,
subdivision (b)(4), renders Lozano’s Eighth Amendment
claim moot. In accord with the holding in People v. Franklin,
(2016) 63 Cal.4th 261 (Franklin), and the reasoning in
Montgomery v. Louisiana (2016) 136 S.Ct. 718(Montgomery), we conclude the issue is moot because Lozano
is no longer subject to an LWOP sentence.
Prior to the passage of SB 394, Lozano’s LWOP
sentence meant she was not eligible for a parole suitability
hearing. SB 394 amends section 3051 to add subdivision
(b)(4) as follows: “A person who was convicted of a
controlling offense that was committed before the person had
attained 18 years of age and for which the sentence is life
without the possibility of parole 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
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consideration hearing pursuant to other statutory
provisions.”
We agree with the parties that under SB 394, Lozano is
now eligible for parole suitability hearing during her 25th
year of incarceration. In our view, this renders Lozano’s
appeal moot, as her situation is not materially different from
that of the defendant in Franklin. Franklin, a juvenile
homicide offender, “would first become eligible for parole at
age 66” under his mandatory 50-year-to-life sentence
imposed by the trial court. (Franklin, supra, 63 Cal.4th at
p. 276.) After Franklin was sentenced, the Legislature
enacted section 3051, creating a youth offender parole
hearing process. “[S]ection 3051 has superseded Franklin’s
sentence so that notwithstanding his original term of 50
years to life, he is eligible for a ‘youth offender parole
hearing’ during the 25th year of his sentence. Crucially, the
Legislature’s recent enactment also requires the Board not
just to consider but to ‘give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and increased
maturity of the prisoner in accordance with relevant case
law.’ (§ 4801, subd. (c).) For those juvenile offenders eligible
for youth offender parole hearings, the provisions of Senate
Bill No. 260 are designed to ensure they will have a
meaningful opportunity for release no more than 25 years
into their incarceration.” (Franklin, supra, 63 Cal.4th at p.
277.)
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As originally enacted, section 3051, subdivision (h),
“exclude[d] several categories of juvenile offenders from
eligibility for a youth offender parole hearing,” including
those, like Lozano, “who [were] sentenced to life without
parole.” (Franklin, supra, 63 Cal.4th at pp. 277–278.) The
Franklin court “express[ed] no view on Miller claims by
juvenile offenders who are ineligible for such a hearing
under section 3051, subdivision (h).” (Id. at p. 280.) As now
amended, section 3051 expressly affords Lozano, a juvenile
homicide offender sentenced to LWOP, a chance to
participate in a youth offender parole hearing, which
provides “some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.”
(Graham v. Florida (2010) 560 U.S. 48, 75.) This legislative
remedy is consistent with the Supreme Court’s conclusion in
Graham that “[i]t is for the State, in the first instance, to
explore the means and mechanisms for compliance” with the
commands of the Eighth Amendment for juvenile offenders.
(Ibid.)
The Supreme Court, in Montgomery, supra, 136 S.Ct.
718, employed the same approach as the Franklin court did
in considering a state’s ameliorative efforts to comply with
the Eighth Amendment. “Giving Miller retroactive effect,
moreover, does not require States to relitigate sentences, let
alone convictions, in every case where a juvenile offender
received mandatory life without parole. A State may remedy
a Miller violation by permitting juvenile homicide offenders
to be considered for parole, rather than by resentencing
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them. See, e.g., Wyo. Stat. Ann. § 6–10–301(c) (2013)
(juvenile homicide offenders eligible for parole after 25
years). Allowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient
immaturity—and who have since matured—will not be
forced to serve a disproportionate sentence in violation of the
Eighth Amendment.” (Id. at p. 736.)
Lozano argues SB 394 does not render moot her
contention that the most recent LWOP sentence imposed by
the trial court violates the Eighth Amendment. She
contends that although SB 394 may have mooted “the
disproportionality concern for juvenile life without parole,”
“she will face adverse collateral consequences unless the
errors in her sentence are corrected.” The only error
identified by Lozano is that the trial court did not sentence
her to 26 years-to-life (25 years-to-life for first degree murder
and the one-year enhancement for use of a weapon by a
principle).
Lozano reasons that although she is now entitled to
parole hearing after 25 years of incarceration under the
procedures established by SB 394, her earliest opportunity
for release will be between January and November 2020.
She contrasts those dates to what would have happened if
the trial court had imposed a 26-year-to-life sentence instead
of LWOP. Had that lesser sentence been imposed, Lozano
calculates that her minimum eligible parole date would have
been in December 2012. Lozano argues that the delay in
parole eligibility “affects her meaningful opportunity for
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release, a constitutional right that the U.S. Supreme Court,
and subsequently the California Legislature, has afforded
youth offenders.”
We need not determine if Lozano’s calculations are
correct, because her argument rests on the faulty premise
that the only remedy for the asserted Eighth Amendment
violation is resentencing her to no more than 26-years-to-life
for her conviction of first degree murder with special
circumstances. Montgomery, as we have explained, permits
the states to remedy a Miller violation by providing
meaningful parole consideration—as afforded by SB 394—
rather than resentencing. Moreover, the sentence cap of 26-
years-to-life urged by Lozano is not required by the Eighth
Amendment. (See People v. Garcia (2017) 7 Cal.App.5th
941, 949–50 [juvenile sentence of 32 years to life does not
violate the Eighth Amendment]; People v. Perez (2013) 214
Cal.App.4th 49, 57 [no case has been cited in which a court
struck down a juvenile’s sentence as cruel and unusual
where “the perpetrator still has substantial life expectancy
left at the time of eligibility for parole”].)
What Lozano is entitled to under the Eighth
Amendment is a prison term that reflects “‘some meaningful
opportunity to obtain release based on demonstrated
maturity and rehabilitation’” (Miller, supra, 136 S.Ct. at
p. 479), while recognizing that “prisoners who have shown
an inability to reform will continue to serve life sentences”
(Montgomery, supra, 136 S.Ct. at p. 736.) The Legislature
has made the determination in SB 394 that neither Lozano,
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nor any other similarly situated California juvenile homicide
offender, will face a sentence that possibly runs afoul of the
Eighth Amendment as interpreted in Miller. The
Constitution does not require that Lozano be resentenced or
receive any additional reduction in punishment. (Franklin,
supra, 63 Cal.4th at p. 277.)
DISPOSITION
The appeal is dismissed as moot.
KRIEGLER, Acting P.J.
We concur:
BAKER, J.
DUNNING, J.
 Judge of the Orange Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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