Appearing Thursday before the California Supreme Court, David Durchfort launched his argument about juvenile sentencing with a bold flourish. “My client will be eligible for parole exactly one century from next week,” he said, “but he didn’t kill anybody.”
Even though that’s not literally life without parole, Durchfort argued, it’s the functional equivalent, and therefore unconstitutional under a 2010 U.S. Supreme Court decision.
The California Supreme Court seemed almost certain to agree, but unsure what to do about it.
“How do we decide what would exceed the defendant’s life?” Chief Justice Tani Cantil-Sakauye asked Durchfort.
“Do we pick a number? Do we say [age] 50, or 30?” Justice Carol Corrigan asked. “Or is the onus on the defendant” to prove he’s been rehabilitated?
The issue in People v. Caballero, S190647, has sharply divided California’s appellate courts since the Supreme Court ruled in Graham v. Florida that the Eighth Amendment prohibits life without parole for a juvenile offender who did not commit homicide.
Some California courts have held that a 75- or even a 175-year sentence is not the same as life without parole, and therefore Graham does not apply in those cases. Others have pointed to language in Graham that says a sentence must provide “some meaningful opportunity for release” based on maturity and rehabilitation.
In the case argued Thursday, Rodrigo Caballero was 16 when he opened fire on three youths he perceived to be rival gang members. One was shot in the back. Caballero was sentenced to three consecutive terms for attempted murder. With enhancements for gun use, gang involvement and great bodily injury, the cumulative sentence was 110 years-to-life.
Some of the Supreme Court justices suggested that attempted murder could be considered a “homicide offense” for the purposes of Graham. “Let me point out that the fact that the victims, plural, didn’t die had nothing to do with the defendant’s intent,” Justice Kathryn Mickle Werdegar told Durchfort. “He was just a poor shot.”
Justice Marvin Baxter noted that attempted murder is considered more serious than voluntary manslaughter, which is a homicide.
“The clear bright line Graham has given us is homicide,” Durchfort argued. “If the victim lives, you must give the defendant an opportunity” to someday make his case for parole.
Though Durchfort faced some challenges, Deputy Attorney General Lawrence Daniels, arguing for the state, was virtually razzed off the lectern.
“Perhaps I have completely missed your point,” Justice Joyce Kennard said after Daniels had tried to give three reasons for upholding the sentence. “We have to deal with Graham whether you want us to or not.”
Daniels argued that Graham leaves open the possibility of life-without-parole for attempted murder because it refers to defendants “who do not kill, intend to kill, or foresee that life will be taken.”
“But read on. Read on,” Justice Goodwin Liu demanded, reciting the next sentence from the opinion: “Serious non-homicide crimes may be devastating in their harm [but] cannot be compared to murder in their severity and irrevocability.”
Daniels argued that while that may be the rationale for the rule, it’s not the rule itself. That didn’t seem to placate Liu.
While the justices mostly seemed to agree that a 100-year sentence would offend Graham, they seemed stuck on how to resolve the problem. “Graham puts an additional lid on [traditional sentencing] analysis,” Corrigan said. “Now we’re trying to figure out how the lid works.”
Durchfort, the defense lawyer, suggested that his client’s sentences should run concurrently, rather than consecutively, or that he be given a parole date by age 40 or 50.
But Corrigan seemed to prefer the idea of habeas corpus review. Whenever a defendant thinks he’s rehabilitated, he can file a habeas petition saying, “Take a look at me. My misspent youth is behind me.” Then it would be up to the trial court to decide.
Durchfort seemed cool to that idea. “I’ve tried,” he said. “I’ve filed writs in the superior court on this issue and I can’t get anywhere” because outside the structure of a parole hearing, it’s difficult to develop a record of rehabilitation.
Corrigan seemed surprised that Durchfort was already filing writs. “So you’d like us to expand Graham and make it retroactive,” she deadpanned. “Is there anything else you’d like?”
By Scott Graham –The Recorder
May 31, 2012