In re Pulido CA1/1

Filed 8/27/14 In re Pulido CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

In re MICHAEL PULIDO, A136960 on Habeas Corpus. (San Mateo County Super. Ct. No. SC29805) INTRODUCTION In 1994, petitioner Michael Pulido was sentenced to life without the possibility of parole for crimes he committed when he was 16 years old. In our original opinion in this matter filed July 15, 2013, we granted petitioner habeas relief under Miller v. Alabama (2012) 567 U.S. ____ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), which held that mandatory life imprisonment without parole (LWOP) for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition against cruel and unusual punishment. We vacated petitioner’s sentence of life without possibility of parole and remanded for resentencing. The People petitioned the Supreme Court for review. (In re Michael Pulido, review granted October 16, 2013.) The Court granted the People’s petition pending resolution of similar issues in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). (Appellate case no. S206365; see also appellate case no. S206771.) On May 5, 2014, our Supreme Court issued its opinion. (Gutierrez, supra, 58 Cal.4th 1354.) On July 10, 2014, the Court transferred petitioner’s case to us with directions to vacate our prior decision and reconsider the cause in light of Gutierrez.

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We asked the parties for further briefing to address the effect of Gutierrez on our previous ruling and disposition. Specifically, we asked the parties to address “whether the trial court record complies with the Gutierrez holding that ‘the trial court must consider all relevant evidence bearing on the “distinctive attributes of youth” discussed in Miller and how those attributes “diminish the penological justifications for imposing the harshest sentences on juvenile offenders.” ’ (People v. Gutierrez, supra, 58 Cal.4th at p. 1390, quoting Miller v. Alabama (2012) 567 U.S. ____ [132 S.Ct. 2455, 2465].)” Having independently reviewed the sentencing transcript and other documents relevant to the sentencing court’s decision in light of the supplemental briefing, we now re-affirm our original decision, vacate the sentence, and remand for resentencing. DISCUSSION Gutierrez held the availability (after serving 15 years of an LWOP sentence) of a sentence recall mechanism pursuant to Penal Code section 1170, subdivision (d)(2) does not preclude a Miller challenge to that sentence on direct review. (Gutierrez, supra, 58 Cal.4th at pp. 1384, 1386-1387.) This court came to the same conclusion, and the parties agree this court’s prior remand order is consistent with that holding. Gutierrez also held “that the trial court must consider all relevant evidence bearing on the ‘distinctive attributes of youth’ discussed in Miller and how those attributes ‘diminish the penological justifications for imposing the harshest sentences on juvenile offenders.’ (Miller, supra, 567 U.S. at p. ____, [132 S.Ct. at p. 2465].)” (People v. Gutierrez, supra, 58 Cal.4th at p. 1390.) The Court distilled from Miller the following five relevant considerations: “First, a court must consider a juvenile offender’s ‘chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.’ [Citation.] . . . [¶ ] Second, a sentencing court must consider any evidence or other information in the record regarding ‘the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional.’ [Citation.] . . . [¶ ] Third, a