P. v. McDuffy

Filed 2/6/18 P. v. McDuffy CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
WAJUBA ZYMAAL MCDUFFY
Defendant and Appellant.
B277418
(Los Angeles County
Super. Ct. No. TA037979)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Appeal dismissed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________

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Wajuba Zymaal McDuffy was 17 years old at the time he
shot and killed Mr. Dixie Gibson during an attempted robbery.
In 1998, a jury convicted him of first degree murder and found
true a personal firearm use enhancement. The trial court
sentenced him to a prison term of life plus 10 years without the
possibility of parole (LWOP). We affirmed the conviction on
appeal.
While in prison, McDuffy participated in work and
education activities, completed self-help programs, and achieved
the lowest security level possible for an inmate serving an LWOP
sentence. He has always maintained his innocence, claiming he
was at his own birthday party at the time of the murder.
In 2012, the United States Supreme Court held in Miller v.
Alabama (2012) 567 U.S. 460 (Miller) that “the Eighth
Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” (Id. at
p. 479.) A court sentencing a juvenile homicide offender must
take into account “youth (and all that accompanies it),” as well as
a juvenile’s “diminished culpability and heightened capacity for
change.” (Ibid.) In 2016, the Court held that an LWOP sentence
is barred “for all but the rarest of juvenile offenders, those whose
crimes reflect permanent incorrigibility.” (Montgomery v.
Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718, 734, 193 L.Ed.2d
599].)
In 2014, the California Supreme Court held that a juvenile
offender who received an LWOP sentence prior to Miller may
seek resentencing, and the trial court in reconsidering the
sentence must “consider the ‘distinctive attributes of youth’ and
how those attributes ‘diminish the penological justifications for
imposing the harshest sentences on juvenile offenders’ before

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imposing life without parole on a juvenile offender.” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1361.) The question is whether
the defendant “can be deemed, at the time of sentencing, to be
irreparably corrupt, beyond redemption, and thus unfit ever to
reenter society, notwithstanding the ‘diminished culpability and
greater prospects for reform’ that ordinarily distinguish juveniles
from adults.” (Id. at p. 1391.)
In May 2015, McDuffy petitioned for a writ of habeas
corpus, requesting that the superior court vacate his sentence
and resentence him in light of Miller. Prior to the hearing,
McDuffy offered reports from Hans H. Selvog, Ph.D., and Richard
J. Subia, a longtime employee of the California Department of
Corrections and Rehabilitation. Dr. Selvog reported that
McDuffy grew up in an “unstable home environment where
drugs, poverty, and negative role models impacted . . . his way of
thinking.” He had been abandoned by his biological father, and
his mother and stepfather both abused cocaine. He grew up in
gang territory and participated in criminal activity to gain
approval, yet earned average to above average grades in school
and participated in sports and band programs. During his
incarceration, McDuffy “renounced his past negative lifestyle and
[was] focused on becoming a good man.”
Subia reported that McDuffy had “demonstrated significant
acts of rehabilitation” during his 17 years of incarceration. He
had “made every effort to participate in rehabilitative
programming,” but his opportunities were limited due to the
“lack of available programs offered at maximum security
prisons.”
Subia testified at the hearing that McDuffy “takes
advantage of rehabilitative programming, which would indicate

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his ability to be rehabilitated.” However, he admitted McDuffy
“only started getting [certificates for self-help programs] around
2013.”
McDuffy read from a written statement at the hearing. He
stated he was “guilty of participating [in] and glorifying the gang
and criminal lifestyle,” but was “serving a sentence without
possibility of parole for crimes that [he] did not commit.” He
maintained that he had changed his life, “not just for [him]self
but in honor of Mr. Gibson.” In a colloquy with the trial judge,
McDuffy said he had been advised to admit to the murder in
order to demonstrate rehabilitation and receive a more lenient
sentence, and it would have been “very easy” to do so, but he
could not “live with a lie.” He said, “how can I sit here in court
and I know I’m innocent and say I did something and I didn’t do
it[?] [¶] . . . I can’t show remorse for a crime I didn’t do.”
The trial court found McDuffy had done “an outstanding job
in an institutional setting.” He was “a leader,” and “a role model
and mentor and an intelligent individual and one who . . . is
seeing the mistakes of his life[. He] obviously turned it around to
make a difference.” However, the trial court found that “one of
the components of . . . being rehabilitated is to admit that you
were involved.” The court stated, “you can . . . define irreparably
corrupt as someone who kills somebody and then denies ever
doing it.” The court concluded that because McDuffy was “still in
denial” and “steadfast in [maintaining his] innocence,” he was
“not remorseful” and did not have the capacity to be
rehabilitated.
The court therefore reimposed a sentence of LWOP plus 10
years. McDuffy timely appealed, contending that in light of
Miller, he should be resentenced to 35 years to life.

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On October 11, 2017, after briefing in this appeal was
complete, Governor Brown signed Senate Bill No. 394 (2016-2017
Reg. Sess.) (Senate Bill 394), which amends Penal Code section
3051 to make a juvenile offender serving an LWOP sentence
eligible for parole after 25 years.
The Attorney General apprised us of the enactment and
argued that pursuant to People v. Franklin (2016) 63 Cal.4th 261
(Franklin), which involved analogous circumstances and a
similar enactment, McDuffy’s appeal is moot.
We invited McDuffy to address whether newly amended
Penal Code section 3051 rendered his Eighth Amendment claim
moot. He responded with a supplemental brief in which he
contends his claim is not moot because the amendment could be
repealed before he has served 25 years, and in any event a parole
suitability hearing for a nominally LWOP inmate provides no
meaningful opportunity to obtain release because rehabilitative
programming is largely unavailable to such inmates. He argues
that removal of the “LWOP” designation would open up
rehabilitative opportunities for him in prison.
DISCUSSION
Prior to the passage of Senate Bill 394, McDuffy’s sentence
meant he would never be eligible for a parole suitability hearing.
Senate Bill 394 amends Penal Code section 3051 to add
subdivision (b)(4) as follows: “A person who was convicted of a
controlling offense that was committed before the person had
attained 18 years of age and for which the sentence is life without
the possibility of parole shall be eligible for release on parole by
the board [of Parole Hearings] during his or her 25th year of
incarceration at a youth offender parole hearing, unless
previously released or entitled to an earlier parole consideration

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hearing pursuant to other statutory provisions.” Under Senate
Bill 394, McDuffy is now eligible for a parole suitability hearing
during his 25th year of incarceration.
In Franklin, a juvenile homicide offender was given a
mandatory 50-year-to-life sentence, and “would first become
eligible for parole at age 66.” (Franklin, supra, 63 Cal.4th at p.
276.) He appealed, contending that pursuant to Miller, his
sentence violated the Eighth Amendment’s prohibition against
cruel and unusual punishment.
After Franklin was sentenced the Legislature enacted
Senate Bill No. 260, which set forth a youth offender parole
hearing process by adding sections 3051, 3046, subdivision (c),
and 4801, subdivision (c) to the Penal Code. The Supreme Court
held that “section 3051 . . . superseded Franklin’s sentence so
that notwithstanding his original term of 50 years to life, he is
eligible for a ‘youth offender parole hearing’ during the 25th year
of his sentence. Crucially, the Legislature’s recent enactment
also requires the Board not just to consider but to ‘give great
weight to the diminished culpability of juveniles as compared to
adults, the hallmark features of youth, and any subsequent
growth and increased maturity of the prisoner in accordance with
relevant case law.’ (§ 4801, subd. (c).) For those juvenile
offenders eligible for youth offender parole hearings, the
provisions of Senate Bill 260 are designed to ensure they will
have a meaningful opportunity for release no more than 25 years
into their incarceration.” (Franklin, supra, 63 Cal.4th at p. 277.)
Therefore, the Court concluded, Franklin’s appeal was moot. (Id.
at p. 286.)1
1 Penal Code section 3051 as first enacted did not apply to a
juvenile offender serving an LWOP sentence.

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Franklin controls our result.
As originally enacted, Penal Code section 3051, subdivision
(h), “exclude[d] several categories of juvenile offenders from
eligibility for a youth offender parole hearing,” including those,
like McDuffy, “who [were] sentenced to life without parole.”
(Franklin, supra, 63 Cal.4th at pp. 277-278.) As now amended,
however, section 3051 affords a juvenile homicide offender such
as McDuffy a chance to participate in a youth offender parole
hearing and demonstrate a level of maturity and rehabilitation
suitable for release from prison. This statutory scheme
“effectively reformed” the parole eligibility date of McDuffy’s
sentence so that the longest possible term of incarceration before
parole eligibility is 25 years. (Id. at p. 286.)
Last month our colleagues in Division Five reached the
same conclusion on materially indistinguishable facts. In People
v. Lozano (2017) 16 Cal.App.5th 1286, Lozano was sentenced to
LWOP in 1996 for a murder she committed when she was 16
years old. She sought resentencing pursuant to Miller, and the
trial court again sentenced her to LWOP. (Lozano, supra, at p.
1289.) She appealed, and after briefing on Lozano’s appeal was
complete the Legislature enacted Senate Bill 394. Division Five
held that pursuant to Franklin, the appeal was moot. (Lozano,
supra, at p. 1201.)
McDuffy argues Senate Bill 394 does not render his appeal
moot because the Legislature might repeal the amendment before
he is eligible for a parole hearing. We disagree. Although the
law might change in the future, the current version of Penal Code
section 3051 controls for now.
McDuffy argues his appeal is not moot because as long as
he is designated an “LWOP” inmate, no youth offender parole

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hearing will afford a meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation. This is so,
he argues, because developing a record of mitigation is
unachievable in practice given resource constraints in the prison
system, where offenders serving lengthy sentences have little
access to education and rehabilitative programs.
In Franklin, Amicus curiae Post-Conviction Justice Project
of the University of Southern California Gould School of Law
(PCJP) made the same argument. (Franklin, supra, 63 Cal.4th at
pp. 261, 285.) This was the Court’s response:
“We have no occasion in this case to express any view on
the concerns raised by PCJP. As noted, the Legislature enacted
Senate Bill No. 260 with ‘the intent . . . to create a process by
which growth and maturity of youthful offenders can be assessed
and a meaningful opportunity for release established.’ (Stats.
2013, ch. 312, § 1.) Section 4801, subdivision (c) directs that the
Board, in conducting a youth offender parole hearing, ‘shall give
great weight to the diminished culpability of juveniles as
compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the prisoner in
accordance with relevant case law.’ And section 3051,
subdivision (e) says: ‘The youth offender parole hearing to
consider release shall provide for a meaningful opportunity to
obtain release. The board shall review and, as necessary, revise
existing regulations and adopt new regulations regarding
determinations of suitability made pursuant to this section,
subdivision (c) of Section 4801, and other related topics,
consistent with relevant case law, in order to provide that
meaningful opportunity for release.’

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“As of this writing, the Board has yet to revise existing
regulations or adopt new regulations applicable to youth offender
parole hearings. In advance of regulatory action by the Board,
and in the absence of any concrete controversy in this case
concerning suitability criteria or their application by the Board or
the Governor, it would be premature for this court to opine on
whether and, if so, how existing suitability criteria, parole
hearing procedures, or other practices must be revised to conform
to the dictates of applicable statutory and constitutional law. So
long as juvenile offenders have an adequate opportunity to make
a record of factors, including youth-related factors, relevant to the
eventual parole determination, we cannot say at this point that
the broad directives set forth by Senate Bill No. 260 are
inadequate to ensure that juvenile offenders have a realistic and
meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” (Franklin, supra, 63 Cal.4th at pp.
285-286.)
Penal Code section 3051 effectively reformed McDuffy’s
sentence so that he will become eligible for parole during his 25th
year of incarceration, “at a hearing that must give great weight to
youth-related mitigating factors.” (Franklin, supra, 63 Cal.4th at
p. 286.) His sentence “is not functionally equivalent to LWOP,
and the record here does not include evidence that the
Legislature’s mandate that youth offender parole hearings must
provide for a meaningful opportunity to obtain release is
unachievable in practice.” (Ibid.) We thus conclude that
McDuffy’s Eighth Amendment challenge has been rendered moot.

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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.

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