THE PEOPLE, Plаintiff and Respondent, v. GIOVANNY MONTELONGO, Defendant and Appellant.
B294095
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 10/15/20
CERTIFIED FOR PUBLICATION
(Los Angeles County Super. Ct. No. NA101415)
APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge. Affirmed with directions.
Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Acting Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff
INTRODUCTION
When he was 18 years old, Giovanny Montelongo stabbed and killed 15-year-old Keshawn Brooks while trying to take Brooks‘s backpack and a
Montelongo challenges his sentence as violating the Due Process Clause of, and the Eighth and Fourteenth Amendments to, the United States Constitution. He argues that, as applied to him, the felony murder special circumstance statute is void for vagueness, that his sentence is cruel and unusual because the trial court failed to take his youth into account before sentencing him to prison for life without the possibility of parole for a crime he committed when he was 18 years old, and that the trial court failed to consider his ability to pay the fines and assessments the court imposed. Because none of Montelongo‘s arguments has merit, we affirm the judgment. We also direct the trial court to correct the minute order following the sentencing hearing and the abstract of judgment to strike the parole revocation fine.
FACTUAL AND PROCEDURAL BACKGROUND
A. Montelongo Kills Brooks
On March 12, 2015 Brooks and Lance Coleman-Davis walked home together from school. They were both 15 years old. Brooks had two bаgs: a backpack containing his schoolwork and an equipment bag for football practice. Brooks and Coleman-Davis saw Montelongo down an alley. Montelongo made the shape of an “L” with his hand, which the boys knew was a gang sign for the Westside Longo street gang. Montelongo began jogging toward the boys and asked them where they were from. The boys said they did not “bang,” meaning they were not gang members.
Montelongo reached for one of Brooks‘s bags, and Coleman-Davis pushed Montelongo away. Montelongo reached for the bag again and said “Give me your bag,” and Brooks punched him in the face. As Montelongo and Brooks struggled, Montelongo stabbed Brooks once in the chest with a six-inch knife. Brooks dropped his bags. Montelongo picked up one of the bags, said “Fuck Crabs,”1 and walked back down the alley. Brooks collapsed near a
B. The Police Arrest Montelongo, and the People Charge Him with Robbery and Special Circumstance Murder
A police officer arrived, questioned Coleman-Davis, and retrieved Brooks‘s backpack. Another officer found Brooks‘s equipment bag outside an apartment building near the end of the alley. Police found Montelongo in the backyard of a house nearby and arrested him.
The People charged Montelongo with robbery (
C. A Jury Convicts Montelongo, and the Trial Court Sentences Him
A jury convicted Montelongo on both counts and found true the allegations Montelongo committed murder while engaged in the commission of robbery, personally used a deadly or dangerous weapon, and committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The People asked the court to sentence Montelongo to life in prison without the possibility of parole, as required by
Montelongo argued that, because he was 18 years old when he committed the crimes, a sentence of life without the possibility of parole was cruel and unusual punishment under the United States and California Constitutions and that he was not “irretrievably depraved.” Montelongo acknowledged that the United States Supreme Court‘s decision in Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller) prohibited mandatory sentences of life without the possibility of parole only for juvenile offenders under the age of 18. Nevertheless, he argued that “there has been a sea change in what is constitutionally acceptable in the sentencing of youth
With regard to the Miller factors, Montelongo described his upbringing and home environment as chaotic, abusive, and neglectful, and he argued the crimes he committed demonstrated impetuous acts of a teenager, not “extreme viciousness or incurable depravity.” Montelongo also contended sentencing him to life without the possibility of parole violated his right to equal protection under the Fourteenth Amendment because
The trial court sentenced Montelongo on the murder conviction to a prison term of life without the possibility of parole, plus one year for the weapon enhancement.4 In response to Montelongo‘s argument that a sentence of life without the possibility of parole as applied to him violated the United States and California Constitutions, the court stated: “I reviewed the Miller factors that you point out. But with respect to that, I would like to say that a lot of people grow up in families that aren‘t perfect and they don‘t go around killing little 15-year-old kids.” On the robbery conviction, the court sentenced Montelongo to the middle term of three years, plus 10 years for the gang enhancement and one year for the weapon enhancement, execution of which the court stayed under
The court also ordered Montelongo to pay a $10,000 restitution fine (at $300 “per year“) (
A. The Felony Murder Special Circumstance Statute Is Not Unconstitutionally Vague as Applied to Montelongo
Montelongo argues the “mode of culpability” established by
1. Robbery Felony Murder vs. Robbery Murder Special Circumstance
The special circumstance statute lists over two dozen circumstances in which the court must sеntence a defendant convicted of first degree murder to death or to life in prison without the possibility of parole. (
Under the applicable statutes, there is little semantic difference between felony murder based on robbery under
element of the crime, but instead “merely clarifies the scope of the requirement that the murder must have taken place ‘during the commission’ of a felony.” (Brooks, at p. 117.) A court must instruct a jury, “on its own motion, that the felony cannot have been merеly incidental to the murder when there is evidence from which the jury could have inferred that the defendant did not have an independent felonious purpose for committing the felony.” (Id. at p. 118.) The trial court in this case instructed the jury on the independent felonious purpose rule.
2. Montelongo Had Notice of the Conduct Proscribed by Section 190.2 , and He Does Not Claim Discriminatory Prosecution
“[A] penal statute must be drafted with sufficient clarity to give fair notice of what conduct is proscribed.” (People v. Brown (2017) 14 Cal.App.5th 320, 336; see Kolender v. Lawson (1983) 461 U.S. 352, 357-358 [103 S.Ct. 1855] (Kolender) [a penal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement“]; United States v. Batchelder (1979) 442 U.S. 114, 123 [99 S.Ct. 2198] (Batchelder) [“[a] criminal statute is . . . invalid if it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden‘“].) The Constitution, however, does not prohibit two statutes from
Montelongo does not argue that he did not have notice of what conduct would subject him to sentencing under
Montelongo cites Kolender, supra, 461 U.S. 352 for the proposition that a statute that fails to describe with sufficient particularity what a suspect must do to fall within the statute “encourages arbitrary enforcement.” (Id. at pp. 361-362.) Kolender involved a facial challenge to a single statute that required people “who loiter or wander on the streets to provide a ‘credible and reliable’ identification and to account for their presence when requested by a peace officer.” (Id. at p. 353.) The United States Supreme Court held the statute was unconstitutionally vague because it did not contain sufficient standards to determine whether a suspect complied with the identification requirement, thus conferring on police “a virtually unrestrained power to arrest and charge persons with a violation.” (Id. at pp. 360-361.)
Montelongo does not identify any language in
The prosecutor in this case could have charged Montelongo with felony murder under
Without addressing Batchelder or its progeny, Montelongo argues that, for the statutory scheme to “give notice and prevent arbitrary enforcement,” the felony murder statute and the felony murder special circumstance statute must apply to distinct conduct. To support this argument, however, Montelongo cites cases that apply the standard for determining whether death penalty eligibility standards are unconstitutionally vague under the Eighth Amendment, not the Fourteenth Amendment. (See People v. Combs (2004) 34 Cal.4th 821, 868; Morales v. Woodford (9th Cir. 2004) 388 F.3d 1159, 1174-1175.)7 For death penalty eligibility standards to satisfy the Eighth Amendment, they must provide “a meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not.” (Morales, at p. 1174; see Combs, at p. 868 [“The lying-in-wait special circumstance adequately distinguishes between first degree murders that are death eligible and those that are not.“].) The People did not seek the death penalty for Montelongo, and his vagueness challenge arises under the Fourteenth Amendment, not the Eighth Amendment. And even if the Eighth Amendment vagueness standard applied to Montelongo‘s challenge, in People v. Winbush (2017) 2 Cal.5th 402 the Supreme Court held that the robbery special circumstance statute is not unconstitutionally vague under the Eighth Amendment. (Id. at p. 488.)
Two other cases Montelongo cites, People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297 and Houston v. Roe (9th Cir. 1999) 177 F.3d 901, applied the vagueness standard under
the Fourteenth Amendment, but held the lying-in-wait special circumstance statute (
Finally, Montelongo argues the court in Andreasen, supra, 214 Cal.App.4th 70 wrongly held the robbery murder special circumstance statute was not unconstitutionally vague on the ground it is not sufficiently distinct from the robbery felony murder statute. (See id. at pp. 80-81.) According to Montelongo, had the court in Andreasen applied the law correctly, it would have concluded the statutes are identical and therefore unconstitutionally vague. But the court in Andreasen first rejected the defendant‘s constitutional challenge to the robbery murder special circumstance statute under Batchelder, just as we do here, and only in the alternative addressed whether
B. Montelongo‘s Sentence Is Not Cruel and Unusual Under the Eighth Amendment
Montelongo contends his sentence of life in prison without the possibility of parole is cruel and unusual punishment under the Eighth Amendment to the United States Constitution because the trial court failed to consider his youth before sentencing him.8 For purposes of evaluating this argument, we assume the trial court‘s cursory finding that Montelongo‘s upbringing did not reduce his culpability did not comply with Miller, which requires a court to consider multiple factors to determine whether a youthful offender is “irreparabl[y] corrupt[]” before sentencing him or her to life in prison without the possibility of parole. (Miller, supra, 567 U.S. at pp. 479-480; see People v. Gutierrez, supra, 58 Cal.4th at pp. 1388-1389 [listing factors a court must consider to comply with Miller].)
The Eighth Amendment to the United States Constitution “guarantees individuals the right not to be subjected to excessive sanctions” and “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.‘” (Roper v. Simmons (2005) 543 U.S. 551, 560 [125 S.Ct. 1183] (Roper).) To determine whether a punishment is cruel and unusual, “courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.‘” (Graham v. Florida (2010) 560 U.S. 48, 58 [130 S.Ct. 2011] (Graham).) “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.‘” (Kennedy v. Louisiana (2008) 554 U.S. 407, 419 [128 S.Ct. 2641]; see People v. Gutierrez, supra, 58 Cal.4th at p. 1374.)
The Supreme Court in Miller addressed the constitutionality of imposing mandatory sentences of life without the possibility of parole on offenders under the age of 18, and the cases on which the Supreme Court relied also considered Eighth Amendment chаllenges by juvenile offenders. (Miller, supra, 567 U.S. at p. 465; see Graham, supra, 560 U.S. at p. 79 [Eighth Amendment prohibits life without the possibility of parole for juvenile offenders who do not commit homicide]; Roper, supra, 543 U.S. at pp. 574-575 [Eighth Amendment prohibits execution of juvenile offenders].) For this reason, courts have limited the holdings of Miller to cases involving defendants under the age of 18. (See, e.g., People v. Gamache (2010) 48 Cal.4th 347, 405 [the United States Constitution prohibits the death penalty for defendants under 18 years old, but not for those 18 years of age and older]; People v. Edwards (2019) 34 Cal.App.5th 183, 190
Citing a bevy of recent scientific and legal developments, Montelongo argues the line the United States Supreme Court created in Roper between juvenile and adult offenders is arbitrary and, at a minimum, should be extended to 19 or older, as “[s]cience determines.” But that is not our call to make. (See People v. Perez, supra, 3 Cal.App.5th at p. 617 [“Our nation‘s, and our state‘s, highest court have concluded 18 years old is the bright-line rule and we are bound by their holdings.“]; People v. Argeta, supra, 210 Cal.App.4th at p. 1482 [“[w]e respect thе line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes“]; United States v. Sierra (2d Cir. 2019) 933 F.3d 95, 97 [“Since the Supreme Court has chosen to draw the constitutional line at the age of 18 for mandatory minimum life sentences, [citation] the defendants’ age-based Eighth Amendment challenges to their sentences must fail.“]; United States v. Williston (10th Cir. 2017) 862 F.3d 1023, 1040 [“The Supreme Court‘s decision to separate juvenile and adult offenders using the crude, but practicable, tool of an age cutoff, as opposed to a more painstaking case-by-case analysis, necessitates some element of arbitrariness in Eighth Amendment jurisprudence in this area. But such is the law.“].) Unless and until the United States Supreme Court, the California Supreme Court, the Legislature, or the voters by initiative change the law, we are bound to apply it.
1. Montelongo Forfeited His Challenge to the $10,000 Restitution Fine
Because the $10,000 restitution fine the trial court imposed far exceeded the statutory minimum of $300, Montelongo had the opportunity to argue he was unable to pay it, but he did not. By failing to object and argue he did not have the ability to pay the $10,000 restitution fine, Montelоngo forfeited the argument the court violated his constitutional rights by imposing the fine without considering his ability to pay. (See People v. Miracle, supra, 6 Cal.5th at p. 356 [“[b]ecause [the] defendant did not object to the [restitution] fine at his sentencing hearing, he has forfeited his challenge“]; People v. Avila (2009) 46 Cal.4th 680, 729 [“in not adducing evidence of his inability to pay” a $10,000 restitution fine, the defendant “forfeited the argument“]; People v. Smith (2020) 46 Cal.App.5th 375, 395 [“a defendant forfeits a challenge to the trial court‘s imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court“]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [defendant “forfeited any ability-to-pay argument regarding the restitution fine by failing to object“].)
Montelongo, however, forfeited his argument the court violated his constitutional rights by imposing the assessments without determining his ability to pay. Montelongo argues he could not have anticipated Dueñas, which was decided after the trial court sentenced him, and thus he did not forfeit his challenge to the assessments. (See People v. Castellano (2019) 33 Cal.App.5th 485, 489 [defendant did not forfeit his contention the trial court violated due process in imposing assessments under
D. The Court‘s Sentencing Minute Order and the Abstract of Judgment Must Be Corrected
The trial court did not impose a parole revocation fine under
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the November 16, 2018 minute order and the abstract of judgment to strike the parole revocation fine under
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
SEGAL, J., Concurring.
As explained in the court‘s opinion, Montelongo‘s constitutional arguments fail. I write separately to highlight the
As discussed, the United States Supreme Court in Miller relied in part on Graham and Roper in holding that juvenile offenders are less blameworthy and more amendable to rehabilitation than their adult counterparts, thus making juveniles “less deserving of the most severe punishments,” including life in prison without the possibility of parole. (See Miller, supra, 567 U.S. at p. 471, quoting Graham, supra, 560 U.S. at p. 68.) The Supreme Court in Miller identified three “significant gaps” distinguishing juveniles from adults: “First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children ‘are more vulnerable . . . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And third, a child‘s character is not as ‘well formed’ as an adult‘s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].‘” (Miller, at p. 471.) The Supreme Court based these conclusions on “what any parent knows,” scientific research, and social science. (Ibid.) For example, in its 2005 decision in Roper the Supreme Court quoted a 2003 study observing that “[o]nly a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior thаt persist into adulthood.” (Roper, supra, 543 U.S. at p. 570.) In 2010 the Supreme Court in Graham cited more recent developments in psychology and brain science showing “fundamental differences between juvenile and adult minds” that caused juveniles to lack the same “behavior control” as adults. (Graham, at p. 68.) And, as stated in the court‘s opinion, in 2012 the Supreme Court in Miller recognized that the evidence discussed in Roper and Graham had “become even stronger.” (Miller, at p. 472, fn. 5.)
The Supreme Court in Graham observed that the state, by denying a juvenile nonhomicide offender the right to ever reenter the community, makes an irrevocable judgment about the offender‘s “value and place in society” that is not appropriate in light of a juvenile‘s capacity for change and limited moral culpability. (Graham, supra, 560 U.S. at p. 74.) The Supreme Court in Miller extended this reasoning to homicide offenders and emphasized that “the distinctive attributes of youth diminish the penological justifications for
After Graham, but before Miller, the California Legislature added subdivision (d)(2) to
Following Miller, the Legislature enacted
Senate Bill No. 261, which amended
In 2017 the Legislature again amended
I believe
And in 2018 the California Supreme Court held in Contreras that a functional sentence of life without the possibility of parole is unconstitutional for nonhomicide crimes committed by juveniles. (Contreras, supra, 4 Cal.5th at p. 380.) In response to a dissenting justice‘s argument that the trial court had taken the defendants’ youth into account in sentencing them, respectively, to 50 and 58 years to life, the Supreme Court stated: “[T]he key holding of Graham is that ‘in light of a juvenile nonhomicide offender‘s capacity for change and limited moral culpability’ [citation], no sentencing court is permitted to render a judgment ‘at the outset’ that a juvenile nonhomicide offender is incorrigible [citation]. On remand, the sentencing of each defendant must be guided by the ‘central intuition’ of the high court‘s case law in this area—‘that children who commit even heinous crimes are capable of change.‘” (Id. at p. 380; see Montgomery v. Louisiana (2016) 577 U.S. [136 S.Ct. 718, 736].)
As Montelongo points out, the changes in the legal and scientific landscape since the United States Supreme Court decided Roper in 2005 suggest we should reconsider the propriety, wisdom, and perhaps even the constitutionality of imposing a mandatory sentence of life without the possibility of parole on an 18-year-old. (See Graham, supra, 560 U.S. at p. 58; Gutierrez, supra, 58 Cal.4th at p. 1374.) Citing the scientific advancements identified in Miller and discussed in the legislative history of
And yet we are stuck with the line that the United States Supreme Court drew at 18 years old in Roper in 2005 and that the Legislature imported into
SEGAL, J.