People v. Montelongo

Filed 10/15/20 (review denied 1/27/21; reposted to include Supreme Court statement
upon denial of review)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B294095

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA101415)
v.

GIOVANNY MONTELONGO,

Defendant and Appellant.

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 and Respondent.
 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 bag containing football gear. A jury
convicted Montelongo of robbery and felony murder with a special
circumstance finding under Penal Code section 190.2,
subdivision (a)(17), which mandates a sentence of death or life in
prison without the possibility of parole. On the murder
conviction, the trial court sentenced Montelongo to life in prison
without the possibility of parole, plus one year for using a deadly
or dangerous weapon. The trial court also imposed various fines
and assessments, including a restitution fine of $10,000.
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.

2
 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 bags: 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 barbershop, where a nurse tried to stop his bleeding with
a towel while waiting for an ambulance. Brooks died at the
hospital.

1 “Crabs” is a disrespectful reference to the West Coast
Crips, a criminal street gang with which Montelongo apparently
believed Brooks was affiliated.

3
 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 (Pen. Code,
§ 211)2 and murder (§ 187, subd. (a)) and alleged the special
circumstance that Montelongo committed murder during the
commission of a robbery, within the meaning of section 190.2,
subdivision (a)(17). As to both counts the People alleged
Montelongo personally used a deadly or dangerous weapon
(§ 12022, subd. (b)(1)) 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, within the meaning of section
186.22, subdivision (b).

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

2 Undesignated statutory references are to the Penal Code.

4
required by section 190.2, subdivision (a)(17), plus an additional
year for the weapon enhancement under section 12022,
subdivision (b)(1).
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 offenders”
and that “the state of research and the need for corresponding
action have changed rapidly.” Citing scientific advancements in
brain research, Montelongo urged the court to consider the
factors mandated by Miller to determine whether his crimes
reflected “‘unfortunate yet transient immaturity’” or “‘irreparable
corruption’” before sentencing him to life without the possibility
of parole. (See id. at pp. 477-480; People v. Gutierrez (2014) 58
Cal.4th 1354, 1388-1389.)
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 section
3051 denied him a parole hearing after his 25th year of

5
imprisonment, while giving that benefit to other 18-year-old
offenders.3
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 section 654.
The court also ordered Montelongo to pay a $10,000
restitution fine (at $300 “per year”) (§ 1202.4), a $40 court
operations assessment (§ 1465.8, subd. (a)(1)), and a $30 court
facilities assessment (Gov. Code, § 70373). Montelongo did not
object to the restitution fine or the assessments. Although the

3 Section 3051 establishes special parole eligibility guidelines
for young adult offenders up to age 25, but excludes a defendant
“sentenced to life in prison without the possibility of parole for a
controlling offense that was committed after the person had
attained 18 years of age.” (§ 3051, subd. (h).)

4 At the sentencing hearing, the court stated it was imposing
“an additional year for the firearm allegation,” but the only
weapon enhancement alleged in connection with the murder
count was for personal use of a deadly or dangerous weapon (a
“sharp instrument”).

6
court did not mention a parole revocation fine at the sentencing
hearing, the court’s minute order and the abstract of judgment
indicate the court also ordered Montelongo to pay a parole
revocation fine of $10,000 (§ 1202.45), which the court stayed
“unless parole, postrelease, community supervision or mandatory
supervision is revoked.” Montelongo timely appealed.

DISCUSSION

A. The Felony Murder Special Circumstance Statute Is
Not Unconstitutionally Vague as Applied to
Montelongo
Montelongo argues the “mode of culpability” established by
sections 187, 189, and 190.2, subdivision (a)(17), is
unconstitutionally vague under the Fourteenth Amendment to
the United States Constitution because where, as here, intent to
kill is not an element of murder, “there is no meaningful
distinction between first degree felony murder based on robbery
and the robbery-murder special circumstance.” Montelongo’s
argument fails because two statutes that criminalize the same
conduct but impose different penalties are not, for that reason,
unconstitutionally vague.

1. Robbery Felony Murder vs. Robbery Murder
Special Circumstance
Section 187, subdivision (a), defines murder as “the
unlawful killing of a human being . . . with malice aforethought.”
Section 189 defines first degree murder to include “willful,
deliberate, and premeditated killing,” as well as murder
“committed in the perpetration of, or attempt to perpetrate,”

7
certain felonies, including robbery. (§ 189, subd. (a).) A killing in
the latter circumstance need not be intentional, according to the
felony murder doctrine, when the defendant is the actual killer.
(See People v. Gonzalez (2012) 54 Cal.4th 643, 654 [“Felony
murder liability does not require an intent to kill, or even implied
malice, but merely an intent to commit the underlying felony.”];
People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 904
[same]; see also People v. Chun (2009) 45 Cal.4th 1172, 1184
[“‘The felony-murder rule imputes the requisite malice for a
murder conviction to those who commit a homicide during the
perpetration of a felony inherently dangerous to human life.’”];
People v. Johns (2020) 50 Cal.App.5th 46, 57-58 [“The felony-
murder rule made ‘a killing while committing certain felonies
murder without the necessity of further examining the
defendant’s mental state.’”].)5 First degree murder is punishable
by death, life without the possibility of parole, or 25 years to life
(§ 190, subd. (a)), “with the penalty to be determined as provided
in certain statutory provisions, including the felony-murder
special-circumstance statute.” (People v. Andreasen (2013) 214
Cal.App.4th 70, 80 (Andreasen).)
The special circumstance statute lists over two dozen
circumstances in which the court must sentence a defendant

5 Senate Bill No. 1437, effective January 1, 2019,
added section 189, subdivision (e), which now limits liability for
felony murder to a person who was (1) the actual killer; (2) not
the actual killer but who, “with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree”;
or (3) not the actual killer but who was a “major participant in
the underlying felony and acted with reckless indifference to
human life . . . .”

8
convicted of first degree murder to death or to life in prison
without the possibility of parole. (§ 190.2, subd. (a).) These
special circumstances include when the “murder was committed
while the defendant was engaged in, or was an accomplice in, the
commission of, attempted commission of, or the immediate flight
after committing, or attempting to commit,” certain felonies,
including robbery. (§ 190.2, subd. (a)(17); see Andreasen, supra,
214 Cal.App.4th at p. 80 [“Once the jury finds the defendant has
committed first degree murder, the felony-murder special
circumstance applies if the murder was committed during the
commission or attempted commission of a statutorily enumerated
felony, and subjects the defendant to a sentence of death or of life
without the possibility of parole.”].)
Under the applicable statutes, there is little semantic
difference between felony murder based on robbery under
section 189 (a killing “committed in the perpetration of . . .
robbery”) and the robbery murder special circumstance under
section 190.2, subdivision (a)(17) (a killing “committed while the
defendant was engaged in . . . the commission of” robbery). But
courts have fashioned a distinction between the two based on the
legislative history of former section 190.2, which imposed the
death penalty or life without the possibility of parole on the most
serious offenders. (See People v. Green (1980) 27 Cal.3d 1, 61-62
(Green), disapproved on another ground in People v. Aldemat
(2019) 8 Cal.5th 1, 13; see also People v. Kimble (1988) 44 Cal.3d
480, 500-501.) “[T]o find true a felony-murder special
circumstance” under section 190.2, courts require the defendant
to have had “‘“an independent purpose for the commission of the
felony, that is, the commission of the felony was not merely
incidental”’” to the murder. (People v. Jackson (2016) 1 Cal.5th

9
269, 345; accord, People v. Brooks (2017) 3 Cal.5th 1, 117-118; see
People v. Riccardi (2012) 54 Cal.4th 758, 836 [“Pursuant to our
decision in People v. Green, supra, 27 Cal.3d 1, a felony-murder
special circumstance is inapplicable if the underlying felony is
merely ‘incidental’ or ‘ancillary’ to the murder; instead, the
evidence must demonstrate an independent or concurrent
felonious purpose distinct from any intent to kill.”], disapproved
on another ground in People v. Rangel (2016) 62 Cal.4th 1192,
1216.)6 This “independent felonious purpose rule” is not an

6 In People v. Robertson (1982) 33 Cal.3d 21 the Supreme
Court explained: “[W]e concluded [in Green] that the
circumstances of that case did not constitute ‘a murder in the
commission of a robbery but the exact opposite, a robbery in the
commission of a murder.’ [Citation.] Recognizing that ‘[a]t the
very least . . . the Legislature must have intended that each
special circumstance provide a rational basis for distinguishing
between those murderers who deserve to be considered for the
death penalty and those who do not,’ we concluded that such a
goal ‘is not achieved . . . when the defendant’s intent is not to
steal but to kill and the robbery is merely incidental to the
murder . . . because its sole object is to facilitate or conceal the
primary crime.’ [Citation.] In holding that such an ‘incidental’
robbery would not provide a proper basis for a special
circumstance finding, we specifically contrasted that case with
one in which a defendant ‘[kills] in cold blood in order to advance
an independent felonious purpose, e.g., . . . [carries] out an
execution-style slaying of the victim of or witness to a holdup,
kidnaping, or a rape.’” (Robertson, at p. 52.) The version of
section 190.2 at issue in Green reserved sentences of death and
life without the possibility of parole for defendants who both
intended to kill and intended to commit certain independent
felonies, including robbery. (See Robertson, at p. 48, fn. 14.) In
1978 the voters added section 190.2 by initiative to make more
defendants eligible for death and life without the possibility of

10
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 merely 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]

parole, including defendants like Montelongo who intended to
commit robbery but may not have intended to kill. (Former
§ 190.2, repealed and added by Prop. 7, as approved by voters,
Gen. Elec. (Nov. 7, 1978).) Courts nevertheless continue to apply
the interpretation of the version of section 190.2 in Green to the
current version of the statute. (See, e.g., People v. Riccardi,
supra, 54 Cal.4th at p. 836; see generally People v. Anderson
(1987) 43 Cal.3d 1104, 1138-1148 [discussing the 1978
amendments to section 190.2].)

11
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 proscribing the same or similar conduct, so long as
the defendant has notice of what conduct is prohibited and the
prosecutor does not decide which statute to charge “for invidious
reasons (e.g., race, gender, etc.).” (Brown, at pp. 339-340; see
Batchelder, at pp. 123-124 [“This Court has long recognized that
when an act violates more than one criminal statute, the
Government may prosecute under either so long as it does not
discriminate against any class of defendants.”].)
Montelongo does not argue that he did not have notice of
what conduct would subject him to sentencing under section
190.2 or that the prosecutor decided to allege a special
circumstance under section 190.2 based on Montelongo’s race or
gender or for some other “invidious” reason. Instead, Montelongo
argues the felony murder statute and the felony murder special
circumstance statute give prosecutors “an unconstitutional
amount of power” to “pick the penalty—life with the possibility of
parole, on one hand, or the finality of [life without the possibility
of parole], on the other.” Decisions by the United States Supreme
Court and the California Supreme Court, however, foreclose this
argument. (See Batchelder, supra, 442 U.S. at p. 123 [rejecting a
vagueness challenge to statutes that overlapped in prohibiting
felons from receiving firearms but authorized different maximum
penalties]; Davis v. Municipal Court (1988) 46 Cal.3d 64, 88-89
[citing Batchelder to reject a challenge to rules giving the district
attorney the authority to decide whether to charge a crime as a
misdemeanor or a felony]; cf. People v. Wilkinson (2004)
33 Cal.4th 821, 834-835 [citing Batchelder to reject an equal

12
protection challenge to statutes allowing more severe punishment
for battery on a custodial officer without injury than for battery
on a custodial officer with injury]; People v. Superior
Court (Caswell) (1988) 46 Cal.3d 381, 395 [“the Legislature may
criminalize the same conduct in different ways”].)
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 sections 189
or 190.2 that police officers or prosecutors can interpret at will
and enforce against “‘“particular groups deemed to merit their
displeasure.”’” (Kolender, supra, 461 U.S. at p. 360.) In fact,
Montelongo faced prosecution under two statutes that clearly
identified the conduct they proscribed, but subjected him to
different penalties. These are the same circumstances the
Supreme Court in Batchelder condoned: “The [two] provisions in
issue here . . . unambiguously specify the activity proscribed and
the penalties available upon conviction. . . . Although the
statutes create uncertainty as to which crime may be charged

13
and therefore what penalties may be imposed, they do so to no
greater extent than would a single statute authorizing various
alternative punishments.” (Batchelder, supra, 442 U.S. at
p. 123.) “[T]here is no appreciable difference between the
discretion a prosecutor exercises when deciding whether to
charge under one of two statutes with different elements and the
discretion he [or she] exercises when choosing one of two statutes
with identical elements. In the former situation, once he [or she]
determines that the proof will support conviction under either
statute, his [or her] decision is indistinguishable from the one he
[or she] faces in the latter context. The prosecutor may be
influenced by the penalties available upon conviction, but this
fact, standing alone, does not give rise to a violation of the Equal
Protection or Due Process Clause.” (Id. at p. 125; see Andreasen,
supra, 214 Cal.App.4th at p. 80 [“The mere fact that the
prosecution has discretion to select which punishment it will seek
does not render a statute unconstitutionally vague or create an
improper risk of arbitrary enforcement of a criminal statute.”].)
The prosecutor in this case could have charged Montelongo
with felony murder under section 189, pursuant to which
Montelongo would have been eligible for a sentence that included
the possibility of parole, but the prosecutor elected to allege a
special circumstance under section 190.2. That the prosecutor
had discretion to charge Montelongo under two statutes with
different penalties does not render the statutory scheme
unconstitutional. (See People v. Brown, supra, 14 Cal.App.5th at
pp. 337-338 [human trafficking statute was not void for
vagueness as applied to the defendant merely because the
prosecutor could have charged the defendant with pandering,
which provided a lesser penalty than human trafficking].)

14
 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

7 Montelongo nevertheless acknowledges that the standards
for vagueness under the Eighth and Fourteenth Amendments are
different.

15
the Fourteenth Amendment, but held the lying-in-wait special
circumstance statute (§ 190.2, subd. (a)(15)) is not
unconstitutionally vague. (See Bradway, at p. 309; Houston, at
pp. 907-908.) Although these cases acknowledged the lying-in-
wait special circumstance statute is distinct from the lying-in-
wait felony murder statute, they do not stand for the proposition
that due process requires any such distinction. Instead, both
cases repeat the standard established in Kolender and Batchelder
that due process challenges “‘rest[ ] on the lack of notice, and
hence may be overcome in any specific case where reasonable
persons would know that their conduct is at risk.’” (Bradway, at
p. 309; see Houston, at p. 907.)
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
sections 189 and 190.2 were sufficiently distinct. (See Andreasen,
at p. 80 [“even assuming arguendo that constitutional due
process requires a distinction between the felony-murder offense
and the felony-murder special circumstance, . . . there is such a
distinction”].) Thus, even if the court in Andreasen reached the
wrong conclusion on that point, an issue we need not address, it
would not have changed the outcome of that case.

16
 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].)

8 In his reply brief Montelongo argues for the first time that
his sentence also violates article I, section 17 of the California
Constitution and deprived him of equal protection under the
Fourteenth Amendment to the United States Constitution and
article I, section 7 and article IV, section 16 of the California
Constitution. “‘Withholding a point until the reply brief deprives
the respondent of an opportunity to answer it . . . . Hence, a point
raised for the first time therein is deemed waived and
will not be considered, unless good reason is shown for failure to
present it before.’” (People v. Selivanov (2016) 5 Cal.App.5th 726,
794; see People v. Silveria and Travis (2020) 10 Cal.5th 195, 255
[“‘“[i]t is axiomatic that arguments made for the first time in a
reply brief will not be entertained because of the unfairness to
the other party”’”].) Montelongo provides no explanation for why
he raised these arguments for the first time in his reply brief and
offers no substantive discussion of these issues. Therefore, we do
not address them.

17
 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.)
In 2012 the United States Supreme Court held “the Eighth
Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.”
(Miller, supra, 567 U.S. at p. 479.) Based on two lines of
precedent, one holding that juvenile offenders are less culpable
and more susceptible to reform than adults and the other that
imposing the harshest punishment on a juvenile requires
individualized sentencing that takes into account an offender’s
youth, the Supreme Court in Miller precluded a court from
sentencing a juvenile to life without the possibility of parole
without first considering a range of factors, including the
juvenile’s “chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to appreciate risks
and consequences.” (Id. at p. 477.) Relying on cases establishing

18
that “children are constitutionally different from adults for
purposes of sentencing,” the Supreme Court in Miller observed
that “‘developments in psychology and brain science continue to
show fundamental differences between juvenile and adult minds’”
and that “those findings—of transient rashness, proclivity for
risk, and inability to assess consequences—both lessened a child’s
‘moral culpability’ and enhanced the prospect that, as the years
go by and neurological development occurs, his ‘“deficiencies will
be reformed.”’” (Id. at pp. 471-472, quoting Graham, supra,
560 U.S. at p. 68 and Roper, supra, 543 U.S. at p. 570.) The
Supreme Court also stated that “the science and social science
supporting [these] conclusions have become even stronger” in
recent years. (Miller, at p. 472, fn. 5.)
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 challenges 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 [the
functional equivalent of life without the possibility of parole is
constitutional for a 19-year-old defendant]; People v. Perez (2016)

19
3 Cal.App.5th 612, 617-618 [the functional equivalent of life
without the possibility of parole is constitutional for a 20-year-old
defendant]; People v. Abundio (2013) 221 Cal.App.4th 1211,
1220-1221 [life without the possibility of parole is constitutional
for an 18-year-old defendant]; People v. Argeta (2012) 210
Cal.App.4th 1478, 1482 [the functional equivalent of life without
the possibility of parole is constitutional for an 18-year-old
defendant]; see also People v. Gutierrez, supra, 58 Cal.4th at
p. 1380 [rejecting a presumption in favor of life without the
possibility of parole for 16- to 17-year-old defendants convicted of
special circumstance murder].) As the United States Supreme
Court explained in Roper: “Drawing 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. For the reasons we have
discussed, however, a line must be drawn.[9] . . . The age of 18 is
the point where society draws the line for many purposes
between childhood and adulthood. It is, we conclude, the age at
which the line for death eligibility ought to rest.” (Roper, supra,
543 U.S. at p. 574.)

9 These “reasons” included the inability of jurors or even
experts to differentiate on a case-by-case basis between “the
juvenile offender whose crime reflects unfortunate yet transient
immaturity,” and whose execution would therefore violate the
Eighth Amendment, and “the rare juvenile offender whose crime
reflects irreparable corruption” and whose execution therefore
would not violate the Eighth Amendment. (Roper, supra, 543
U.S. at p. 573.)

20
 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 the 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.

21
 C. Montelongo Forfeited His Right To Challenge the
Restitution Fine and Assessments

1. Montelongo Forfeited His Challenge to the
$10,000 Restitution Fine
Section 1202.4, subdivision (b), states: “In every case
where a person is convicted of a crime, the court shall impose a
separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so and states
those reasons on the record.” A restitution fine under section
1202.4, subdivision (b), “is intended to be, and is recognized as,
additional punishment for a crime.” (People v. Dueñas (2019)
30 Cal.App.5th 1157, 1169 (Dueñas); accord, People v. Belloso
(2019) 42 Cal.App.5th 647, 655 (Belloso), review granted Mar. 11,
2020, S259755.) Under section 1202.4, subdivision (c), the trial
court may not consider a defendant’s ability to pay when
imposing the minimum restitution fine of $300, but the court may
consider the defendant’s ability to pay if the court imposes a
restitution fine above the minimum. (People v. Miracle (2018)
6 Cal.5th 318, 356; see § 1202.4, subd. (d) [“[i]n setting the
amount of the [restitution] fine . . . in excess of the minimum
fine,” the court “shall consider any relevant factors, including, but
not limited to, the defendant’s inability to pay”]; Dueñas, at
p. 1170, fn. 6 [“a trial court may . . . consider a defendant’s ability
to pay if the court is considering imposing a restitution fine in
excess of the statutory minimum amount”].)
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, Montelongo forfeited the argument the

22
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”].)

2. Montelongo Also Forfeited His Challenge to the
Assessments Under Section 1465.8 and
Government Code Section 70373
Section 1465.8, subdivision (a)(1), provides, in part: “To
assist in funding court operations, an assessment of forty dollars
($40) shall be imposed on every conviction for a criminal offense.”
Government Code section 70373, subdivision (a)(1), provides, in
part: “To ensure and maintain adequate funding for court
facilities, an assessment shall be imposed on every conviction for
a criminal offense . . . in the amount of thirty dollars ($30) for
each misdemeanor or felony.” In Dueñas this court held that “the
assessment provisions of Government Code section 70373
and . . . section 1465.8, if imposed without a determination that
the defendant is able to pay, are . . . fundamentally unfair,” that
“imposing these assessments upon indigent defendants without a

23
determination that they have the present ability to pay violates
due process under both the United States Constitution and the
California Constitution,” and that “due process of law requires
the trial court to conduct an ability to pay hearing and ascertain
a defendant’s present ability to pay before it imposes [these]
assessments.” (Dueñas, supra, 30 Cal.App.5th at pp. 1164, 1168;
accord, Belloso, supra, 42 Cal.App.5th at pp. 654-655.)
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 section 1465.8 and Government Code section 70373
without determining his ability to pay by failing to object]; see
also Belloso, supra, 42 Cal.App.5th at p. 662; People v. Santos
(2019) 38 Cal.App.5th 923, 932; People v. Johnson (2019)
35 Cal.App.5th 134, 137-138.) By failing to object to the $10,000
restitution fine, however, Montelongo left no doubt he would not
have challenged the much lower assessments even if he knew he
had a right under Dueñas to request a hearing on his ability to
pay. (See People v. Smith, supra, 46 Cal.App.5th at p. 395
[defendant forfeited his challenge to the assessments and fines
because he “did not object in the trial court on the grounds that
he was unable to pay, even though the trial court ordered him to
pay the $10,000 statutory maximum restitution fine”]; People v.
Gutierrez, supra, 35 Cal.App.5th at p. 1033 [“[a]s a practical
matter, if [the defendant] chose not to object to a $10,000

24
restitution fine based on an inability to pay, he surely would not
complain on similar grounds regarding an additional $1,300 in
fees”]; but see People v. Taylor (2019) 43 Cal.App.5th 390,
400-401 [defendant did not forfeit Dueñas challenge to the court
operations and facilities assessments, even though he did not
object to the maximum $10,000 restitution fine, because the
“defendant’s inability to pay is just one among many factors the
court should consider in setting the restitution fine above the
minimum”].)

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 section 1202.45, subdivision (a), at the sentencing hearing.
The November 16, 2018 minute order for that hearing, however,
stated the court imposed a parole revocation fine on the murder
count, despite Montelongo’s sentence of life in prison without the
possibility of parole. The abstract of judgment indicates the court
imposed and stayed a $10,000 parole revocation fine, but it does
not identify a specific count. Montelongo argues, the People
concede, and we agree the court erred in imposing a parole
revocation fine because the only sentence the court executed was
a sentence of life without the possibility of parole. (See People v.
Gonzalez (2016) 246 Cal.App.4th 1358, 1386 [because the
defendants “were sentenced to life imprisonment without the
possibility of parole, parole revocation fines are inapplicable”];
People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184 [where
the defendant is “sentenced to life without the possibility of
parole, there can be no parole, and therefore the parole
revocation fine was improperly assessed”].) Even though the

25
court sentenced Montelongo to a term of three years on the
conviction for robbery, the court stayed execution of that sentence
under section 654. Thus, “the parole revocation fine, even though
suspended, is unauthorized and must be stricken.” (People v.
Carr (2010) 190 Cal.App.4th 475, 482, fn. 6; see People v.
Ybarra (2008) 166 Cal.App.4th 1069, 1097, disapproved on
another ground in People v. Gutierrez, supra, 58 Cal.4th at
p. 1370.)

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 section
1202.45 and to forward a copy of the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

26
SEGAL, J., Concurring.

As explained in the court’s opinion, Montelongo’s
constitutional arguments fail. I write separately to highlight the
tension between Penal Code section 3051,1 which Montelongo
cites in support of his Eighth Amendment argument, and the
United States Supreme Court’s decisions in Miller v. Alabama
(2012) 567 U.S. 460 [132 S.Ct. 2455] (Miller), Graham v. Florida
(2010) 560 U.S. 48 [130 S.Ct. 2011] (Graham), and Roper v.
Simmons (2005) 543 U.S. 551 [125 S.Ct. 1183] (Roper).
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

1 Statutory references are to the Penal Code.
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 that 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 imposing the harshest sentences on
juvenile offenders, even when they commit terrible crimes.”
(Miller, supra, 567 U.S. at p. 472.) In particular, the Supreme
Court in Miller stated that nothing about juveniles’ “distinctive
(and transitory) mental traits and environmental vulnerabilities”
was “crime-specific.” (Id. at p. 473.) “Those features are evident
in the same way, and to the same degree,” when a juvenile

2
commits robbery or “when (as in [Miller]) a botched robbery turns
into a killing.” (Ibid.)
After Graham, but before Miller, the California Legislature
added subdivision (d)(2) to section 1170 to address “concerns
regarding sentences of life without parole for juvenile offenders.”
(In re Kirchner (2017) 2 Cal.5th 1040, 1049; see Assem. Com. on
Appropriations, Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.)
as amended Aug. 15, 2011, pp. 3-6.) Section 1170, subdivision
(d)(2), “provides an avenue for juvenile offenders serving terms of
life without parole to seek recall of their sentences and
resentencing to a term that includes an opportunity for parole.”
(Kirchner, at p. 1049; see People v. Franklin (2016) 63 Cal.4th
261, 281 [section 1170, subdivision (d)(2), “instructs the court to
consider a variety of factors addressing [the defendant’s]
culpability for the original offense and efforts toward
rehabilitation”].)
Following Miller, the Legislature enacted section 3051 to
establish parole eligibility guidelines for juvenile offenders
sentenced to lengthy prison terms. (Former § 3051, subd. (a)(1),
added by Stats. 2013, ch. 312, § 4; see In re Jones (2019)
42 Cal.App.5th 477, 484 (conc. opn. of Pollak, J.) (Jones) [“Section
3051 was enacted in response to [Miller and Graham] and in
recognition that ‘[e]xisting sentencing laws do not distinguish
youth from adults.’”]; People v. Jones (2017) 7 Cal.App.5th 787,
817 [the Legislature enacted section 3051 in response to Graham
and Miller].) In enacting section 3051, “the Legislature explained
that ‘youthfulness both lessens a juvenile’s moral culpability and
enhances the prospect that, as a youth matures into an adult and
neurological development occurs, these individuals can become
contributing members of society.’” (In re Jenson (2018)

3
24 Cal.App.5th 266, 276.) “Thus, the bill’s purpose was ‘to
establish a parole eligibility mechanism that provides a person
serving a sentence for crimes that he or she committed as a
juvenile the opportunity to obtain release when he or she has
shown that he or she has been rehabilitated and gained
maturity.’” (Id. at pp. 276-277; see Stats. 2013, ch. 312, § 1.) As
enacted in 2013, section 3051, subdivision (h), excluded juvenile
offenders sentenced to life without the possibility of parole
because they were already eligible for resentencing under
section 1170. (See Sen. Com. on Appropriations, Rep. on Sen. Bill
No. 260 (2013-2014 Reg. Sess.) Aug. 14, 2013, p. 2.)
Meanwhile, the science and social science on which the
United States Supreme Court relied in Miller and Graham
showed that some differences between juvenile and adult brains
persisted into the late teenage years and early 20s. (Brief for the
American Psychological Association et al. as Amici Curiae filed in
Miller, pp. 9-10, 28; Brief for the American Medical Association
et al. as Amici Curiae filed in Graham, pp. 18, 20-22; Brief for the
American Psychological Association et al. as Amici Curiae filed in
Graham, p. 27.) In 2015 the Legislature acknowledged these
advancements in the understanding of brain development and
amended section 3051 to apply to offenders who committed
crimes before they reached the age of 23. (Former § 3051,
subd. (a)(1), added by Stats. 2015, ch. 471, § 1.) The 2015
amendments were based on “‘[r]ecent scientific evidence on
adolescent and young adult development and neuroscience
show[ing] that certain areas of the brain—particularly those
affecting judgment and decision-making—do not fully develop
until the early- to mid-20s.’” (Jones, supra, 42 Cal.App.5th at
pp. 484-485 (conc. opn. of Pollak, J.); see Sen. Com. on Public

4
Safety, Analysis of Sen. Bill No. 261 (2015-2016 Reg. Sess.)
Apr. 28, 2015, p. D.) The author of the 2015 amendments cited
“[v]arious studies by researchers from Stanford University
(2009), University of Alberta (2011), and the National Institute of
Mental Health (2011) all confirm[ing] that the process of brain
development continues well beyond age 18.” (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 261, supra, p. D.) The legislative
history of the 2015 amendments also cited other California laws
recognizing that young adults are different from older adults.
For example, the Health and Human Services Agency
Department of Youth and Community Restoration (previously the
Department of Juvenile Justice) must detain and provide services
and programming to some young adults until age 23. (Sen. Com.
on Public Safety, Analysis of Sen. Bill No. 261, supra, p. D.)
California also extends foster care support up to age 21 and
provides special protections and opportunities for young adults
entering prison through age 22. (Id. at p. E.)
Senate Bill No. 261, which amended section 3051 in 2015
and raised the age of eligible youth offenders to 23, did not
include corresponding amendments to section 1170 to allow for
the recall and resentencing of 18- to 23-year-old offenders
sentenced to life in prison without the possibility of parole.
Senate Bill No. 261 also did not amend relevant portions of
section 3051, subdivision (h), which excluded from the class of
eligible offenders those sentenced to life in prison without the
possibility of parole.2 Thus, despite the Supreme Court’s

2 As amended by Senate Bill No. 261, the current version of
section 3051, subdivision (h), also excludes offenders sentenced
under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), sex
offenders sentenced under Jessica’s Law (§ 667.61), and

5
pronouncement in Miller that the differences between fully
developed and youthful brains are not “crime-specific,” the
Legislature excluded from the benefits of sections 1170 and 3051
young adult offenders who committed certain specific crimes;
namely, those crimes subjecting them to life in prison without the
possibility of parole.
In 2017 the Legislature again amended section 3051 to
raise the age of eligible youth offenders to 25. (See § 3051,
subd. (a)(1).) According to the author of Assembly Bill No. 1308,
the legislation “‘align[ed] public policy with scientific research . . .
[that] show[ed] that certain areas of the brain, particularly those
affecting judgment and decision-making, do not develop until the
early-to-mid-20s.’” (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 1308, as amended Mar. 30, 2017 (2017-2018
Reg. Sess.) Apr. 25, 2017, pp. 2-3.) Again, however, the
Legislature did not amend section 3051, subdivision (h), which
continues to deny a youthful offender parole hearing to young
adults who committed their offenses when they were between 18
and 25 years of age and were sentenced to life without the
possibility of parole. Thus, under section 3051, a young adult
sentenced to an indeterminate prison term for premeditated first
degree murder has an opportunity for parole, whereas
Montelongo, who may not have intended to kill Brooks but was
subject to a mandatory sentence of life without the possibility of
parole (because the People did not seek the death penalty), does
not. (Cf. Graham, supra, 560 U.S. at p. 70 [a sentence of life

individuals to whom the section would otherwise apply “but who,
subsequent to attaining 26 years of age, commit[ ] an additional
crime for which malice aforethought is a necessary element of the
crime.” (See In re Jenson, supra, 24 Cal.App.5th at pp. 277-278.)

6
without the possibility of parole “‘means denial of hope; it means
that good behavior and character improvement are immaterial’”];
People v. Contreras (2018) 4 Cal.5th 349, 366 (Contreras) [“a
sentence of [life without parole] ‘deprives the convict of the most
basic liberties without giving hope of restoration,’” quoting
Graham, at pp. 69-70].)
I believe section 3051’s current treatment of young adult
offenders like Montelongo conflicts with the California Supreme
Court decisions that adopted and extended Miller. Shortly after
the United States Supreme Court decided Miller, the California
Supreme Court held in People v. Caballero (2012) 55 Cal.4th 262
(Caballero) that sentencing a juvenile offender for a nonhomicide
offense to a term functionally equivalent to life in prison without
the possibility of parole violated the Eighth Amendment.
(Caballero, at p. 268.) Citing Miller, the California Supreme
Court in Caballero held the Eighth Amendment’s proscription on
sentences for juvenile offenders that do not allow them “to
‘demonstrate growth and maturity’ to try to secure [their]
release” is not “‘crime-specific.’” (Caballero, at pp. 267-268.)
In 2014 the California Supreme Court held in People v.
Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) that the special
circumstances murder statute “confers discretion on a trial court
to sentence a 16- or 17-year-old juvenile convicted of special
circumstance murder to life without parole or to 25 years to life,
with no presumption in favor of life without parole.” (Id. at
p. 1360.) In interpreting section 190.5, subdivision (b), the
California Supreme Court stated: “Miller made clear that its
concerns about juveniles’ lessened culpability and greater
capacity for reform have force independent of the nature of their
crimes. . . . Graham and Roper likewise indicated that the

7
mitigating features of youth can be dispositively relevant,
whether the crime is a nonhomicide offense or a heinous murder
punishable by death if committed by an adult. [Citation.]
Although section 190.5(b) does not apply to every murder offense,
it applies to a broad and diverse range of first degree murder
offenses. [Citations.] To presume that all such offenses
committed by 16 and 17 year olds merit a presumptive penalty of
life without parole cannot be easily reconciled with Miller’s
principle that ‘the distinctive attributes of youth [that] diminish
the penological justifications for imposing the harshest sentences
on juvenile offenders’ are not ‘crime-specific.’” (Gutierrez, at
pp. 1380-1381.)
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].)

8
 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 section 3051, other states have joined California in
moving “the point where society draws the line” between
juveniles and adults. (Roper, supra, 543 U.S. at p. 574; see Cruz
v. United States (D.Conn. Mar. 29, 2018, Civ. A. No. 11-CV-787
(JCH)) [2018 WL 1541898, p. 19] [collecting state laws similar to
section 3051 that provide youthful parole hearings for offenders
over the age of 18].) Laws in California (and other states) treat
18- to 21- year-old persons differently from persons over the age
of 21, including laws that govern drinking alcohol, smoking
cigarettes, buying and possessing firearms and ammunition, and
protecting the welfare of children. (See Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 261, supra, pp. D-E; see
generally Blume et. al., Death by Numbers: Why Evolving
Standards Compel Extending Roper’s Categorical Ban Against
Executing Juveniles from Eighteen to Twenty-one (2020) 98 Tex.
L.Rev. 921, 935 [collecting state laws].)
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 section 3051. (See Roper, supra,
543 U.S. at p. 574; § 3051, subd. (b)(4); court’s opn., ante, at
pp. 20-21].) Whether and where the Legislature should draw a
new line in section 3051 is not for us to say, but it may be time

9
for the Legislature to rethink the old Roper line.3 As the United
States Supreme Court and the California Supreme Court have
recognized, a juvenile offender’s eligibility for a youthful parole
hearing should not hinge on the crime he or she committed, the
statute under which the prosecutor elected to charge him or her,
or the sentence mandated by statute. None of those factors is
relevant to determining whether a young adult offender is
irreparably corrupt. (See Miller, supra, 567 U.S. at pp. 479-480;
Gutierrez, supra, 58 Cal.4th at p. 1388.)

SEGAL, J.

3 In his concurring opinion in Jones, supra, 42 Cal.App.5th
477 Justice Pollak, joined by one of his colleagues, suggested that
section 3051 may deny equal protection to defendants who, like
Montelongo, are similarly situated to other 18- to 25-year-olds for
purposes of determining whether their brains are capable of
outgrowing “the youthful impulses that led to the commission of
their offenses,” but who are nonetheless denied access to a
youthful offender parole hearing because they were sentenced to
life without the possibility of parole instead of a sentence with
the possibility of parole. (See Jones, at pp. 485-486 (conc. opn. of
Pollak, J.).) “The presumptive fact that the [life without the
possibility of parole] sentence was based on a more serious
offense provides no rational basis for the distinction because
[section 3051] is not designed to determine the degree of
appropriate punishment but to determine whether the individual
has outgrown his or her criminality. There is no reason to
conclusively presume that one such person is more likely to have
satisfactorily matured than the other.” (Jones, at p. 486.) This is
particularly true where, as here, intent to kill is not an element
of the crime that subjected the defendant to life in prison without
the possibility of parole.

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Filed 1/27/21

Court of Appeal, Second Appellate District, Division Seven - No. B294095

S265597

IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________

THE PEOPLE, Plaintiff and Respondent,

v.

GIOVANNY MONTELONGO, Defendant and Appellant.
________________________________________________________________________

The petition for review is denied.

______________________________
Chief Justice
 PEOPLE v. MONTELONGO
S265597

Concurring Statement by Justice Liu

In 2013, the Legislature passed Senate Bill No. 260 (2013–
2014 Reg. Sess.), which enacted Penal Code section 3051. (All
undesignated statutory references are to the Penal Code.) The
bill required the Board of Parole Hearings to conduct youth
offender parole hearings and consider release of offenders who
committed specified crimes before the age of 18. (Legis.
Counsel’s Dig., Sen. Bill No. 260 (2013–2014 Reg. Sess.).) In
establishing this parole eligibility mechanism, the Legislature
sought to account for the fact that “youthfulness both lessens a
juvenile’s moral culpability and enhances the prospect that, as
a youth matures into an adult and neurological development
occurs, these individuals can become contributing members of
society.” (Stats. 2013, ch. 312, § 1.) It was “the intent of the
Legislature to create a process by which growth and maturity of
youthful offenders can be assessed and a meaningful
opportunity for release established.” (Ibid.)
Soon thereafter, the Legislature amended the age
threshold for youth offenders to age 23 (Stats. 2015, ch. 471, § 2)
and then age 25 (Stats. 2017, ch. 684, § 2.5). The Legislature
made these changes in light of scientific evidence that “certain
areas of the brain, particularly those affecting judgment and
decision-making, do not develop until the early-to-mid-20s.”
(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308
(2017–2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2.) The
Legislature also extended parole hearings in the 25th year of
 PEOPLE v. MONTELONGO
Liu, J., concurring statement upon denial of review

incarceration to youth offenders sentenced to life imprisonment
without the possibility of parole, but only for an offense
committed before age 18. (People v. Contreras (2018) 4 Cal.5th
349, 381 (Contreras), citing § 3051, subd. (b)(4), as amended by
Stats. 2017, ch. 684, § 1.5.)
I write to underscore that section 3051’s parole eligibility
scheme — specifically, its exclusion of persons sentenced to life
without parole for offenses committed between ages 18 and 25
— stands in “tension” with Miller v. Alabama (2012) 567 U.S.
460 (Miller). (People v. Montelongo (2020) 55 Cal.App.5th 1016,
1036 (conc. opn. of Segal, J.) (Montelongo).)
Miller identified three significant differences between
juveniles and adults that bear on culpability. “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, supra,
567 U.S. at p. 471, citing Roper v. Simmons (2005) 543 U.S. 551,
569–570 (Roper).) “The Supreme Court based these conclusions
on ‘what “any parent knows,” ’ scientific research, and social
science.” (Montelongo, supra, 55 Cal.App.5th at p. 1036 (conc.
opn. of Segal, J.), citing Miller, at p. 471.)
Crucially, Miller explained that in this context “none of
what [high court precedent has] said about children . . . is crime-

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 PEOPLE v. MONTELONGO
Liu, J., concurring statement upon denial of review

specific.” (Miller, supra, 567 U.S. at p. 473.) The distinctive
attributes of youth that mitigate culpability — transitory
mental traits and environmental vulnerabilities — “ ‘are evident
in the same way, and to the same degree,’ when a juvenile
commits robbery or ‘when (as in [Miller]) a botched robbery
turns into a killing.’ ” (Montelongo, supra, 55 Cal.App.5th at
p. 1037 (conc. opn. of Segal, J.).)
The Legislature has recognized that Miller’s observations
about juveniles also apply to young adults up to age 25. (Stats.
2017, ch. 684, § 2.5.) Yet it has excluded certain youth offenders
from parole hearings based on the type of crime they committed.
In particular, section 3051 does not allow for resentencing of 18-
to 25-year-old offenders convicted of special circumstance
murder and sentenced to life in prison without the possibility of
parole. (§ 3051, subd. (h).) I agree with Justice Segal that “a
juvenile offender’s eligibility for a youthful parole hearing
should not hinge on the crime he or she committed, the statute
under which the prosecutor elected to charge him or her, or the
sentence mandated by statute. None of those factors is relevant
to determining whether a young adult offender is irreparably
corrupt.” (Montelongo, supra, 55 Cal.App.5th at p. 1041 (conc.
opn. of Segal, J.).) In light of the high court’s clear statement
that the mitigating attributes of youth are not “crime-specific”
(Miller, supra, 567 U.S. at p. 473) and our Legislature’s
recognition that those attributes are found in young adults up
to age 25, it is questionable whether there is a rational basis for
section 3051’s exclusion of 18- to 25-year-olds sentenced to life
without parole.
The Court of Appeal declined to resolve whether
section 3051 violates equal protection because defendant raised
this argument for the first time in his reply brief. (See

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 PEOPLE v. MONTELONGO
Liu, J., concurring statement upon denial of review

Montelongo, supra, 55 Cal.App.5th at p. 1030, fn. 8.) But, as
Justice Segal noted, “under section 3051, a young adult
sentenced to an indeterminate prison term for premeditated
first degree murder has an opportunity for parole, whereas
Montelongo, who may not have intended to kill Brooks but was
subject to a mandatory sentence of life without the possibility of
parole (because the People did not seek the death penalty), does
not.” (Id. at p. 1039 (conc. opn. of Segal, J.).) Indeed, the
evidence in this case supported a finding of felony murder,
which qualifies as first degree murder but does not require an
intent to kill. (§ 189, subd. (a).)
As we observed in Contreras, there is a colorable claim
that section 3051’s exclusion of certain juvenile offenders based
on their controlling offense “violates principles of equal
protection and the Eighth Amendment” or “constitutes ‘unusual
punishment’ within the meaning of article I, section 17 of the
California Constitution.” (Contreras, supra, 4 Cal.5th at p. 382;
see People v. Williams (2020) 47 Cal.App.5th 475, review
granted July 22, 2020, S262669; People v. Edwards (2019)
34 Cal.App.5th 183, 197, 199 [“section 3051’s carve-out for One
Strike defendants violates principles of equal protection” and is
“unconstitutional on its face”].) Because there is a substantial
question whether section 3051’s exclusion of 18- to 25-year-olds
sentenced to life without parole violates equal protection, “there
is good reason for legislative reconsideration” of the statute. (In
re Jones (2019) 42 Cal.App.5th 477, 486–487 (conc. opn. of
Pollak, J.).)
Further, in light of “changes in the legal and scientific
landscape,” I join Justice Segal’s suggestion that the Legislature
“reconsider the propriety, wisdom, and perhaps even the
constitutionality of imposing a mandatory sentence of life

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 PEOPLE v. MONTELONGO
Liu, J., concurring statement upon denial of review

without the possibility of parole on an 18-year-old.”
(Montelongo, supra, 55 Cal.App.5th at p. 1040 (conc. opn. of
Segal, J.); see id. at p. 1041 [“it may be time for the Legislature
to rethink the old Roper line”].) Advances in scientific
understanding have revealed that the ordinary process of
neurological and cognitive development continues for several
years past age 18, and our Legislature recognized as much when
it extended youth offender parole eligibility to persons who
committed their controlling offense at or before age 25. That
recognition calls into question whether it is tenable, without an
individualized showing of irreparable corruption, to lock up
young adult offenders and throw away the key. If what the high
court has said about juveniles also applies to young adults, then
so does “the truth of Miller’s central intuition” that such
offenders “who commit even heinous crimes are capable of
change.” (Montgomery v. Louisiana (2016) 577 U.S. __, __
[136 S.Ct. 718, 736].)

LIU, J.

5