A term-of-years sentence that exceeds a teenager's life expectancy is the functional equivalent of a life sentence without the possibility of parole within the meaning of Graham v. Florida (2010) 560 U.S. 825, , 130 S.Ct. 2011 (Graham). Such a "de facto" life without parole sentence for a juvenile nonhomicide offender precludes a "meaningful opportunity for release" and represents a "judgment at the outset that [the] offender[] never will be fit to reenter society." (See id., 130 S.Ct at p. 130.) Such sentences were categorically barred by the United States Supreme Court in Graham. Accordingly, amici curiae agree with appellant that a sentence of 110 years to life for a juvenile convicted of committing non-homicide offenses constitutes cruel and unusual punishment under the Eighth Amendment.
While we agree with appellant that this issue is dispositive, we also submit this brief to highlight the fact that appellant's sentence is also unconstitutionally excessive under the California Constitution, as it violates our state prohibition against cruel or unusual punishment. (Cal. Const., art. I,§ 17.) Under California's proportionality test as set forth in In re Lynch (1972) 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441, the Court may consider the nature of the offense and the offender to determine whether a sentence is grossly disproportionate to the crime. (Lynch, supra, 8 Cal.3d. at p. 425.) Rodrigo Caballero's age, his mental illness, his probable incompetency, and other factors discussed below, render his 110 years to life sentence grossly disproportionate to his crimes. Accordingly, our state Constitution provides an additional basis for this Court to reverse the judgment and remand the case to the trial court for resentencing.
The juvenile system professionals who worked with RodrigoCaballero as the case made its way through the system recognized theseverity of the offense, but did not regard him as irredeemable or in need oflengthy confinement. The Probation Officer's Report for Judicial Reviewfor a September 5, 2008 hearing noted Rodrigo's placement at the Dorothy1Kirby Center, a mental health facility. (JR 76.) The report noted his excellent adjustment to the program, daily school attendance with good grades, good response to staff instructions, good attitude, and absence of involvement in negative incidents. (JR 77.) The report detailed Rodrigo's extensive individual, group and family therapy. (JR 79.) The probation officer stated that if Rodrigo continued to participate in the program and make significant progress toward his treatment goals, "it is expected that he will be released after the next JDRV hearing in approximately six months." (JR 81.) The report indicated that the most likely date by which the minor will return to his home is March 5, 2009. (JR 82.) The probation officer's opinion -- that Rodrigo was capable o f succeeding in his treatment program and that he should return home -- was written some 15 months after Rodrigo's arrest, just prior to the finding of unfitness and remand of the case to criminal court. The imposition ofa 110 year to life sentence on this schizophrenic teenager is shocking to the conscience and in need of this court's attention.