California Court of Appeal Jun 9, 2015 No. D064561Unpublished
Filed 6/9/15 P. v. Ricardez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064561
Plaintiff and Respondent,
v. (Super. Ct. No. SCN303431)
SAMUEL ORTEGA RICARDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee
A. Lagotta, Judge. Reversed in part and remanded with directions.
Arthur Martin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Tony DaSilva and Parag Agrawal, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted defendant and appellant Samuel Ortega Ricardez of first degree
murder (Pen. Code,1 § 187) and robbery (§ 211), both with firearm (§ 12022.53,
subds. (d) & (b)) and criminal street gang (§ 186.22, subd. (b)(1)) enhancements.
Although Ricardez was 16 years old at the time of the offenses, the trial court sentenced
Ricardez to 25 years to life for the murder conviction with a consecutive 25 years to life
"most youth offenders would be eligible for a parole hearing after a maximum of 25 years
of incarceration, within the normal life expectancy of a juvenile." (People v. Scott (2015)
235 Cal.App.4th 397, 408.)
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However, unlike the court in People v. Scott, supra, we do not believe section
3051 has remedied constitutional concerns of cruel and unusual punishment, when, as
here, a de facto life sentence has been imposed. The Attorney General asserts that
section 3051 renders moot Ricardez's cruel and unusual punishment claim because it
provides a "meaningful opportunity for release on parole" during his lifetime. However,
as a practical matter, at the time Ricardez becomes eligible for parole, there will be no
reliable way to measure his cognitive abilities, maturity, and other youth factors at the
time he committed his offense 25 years earlier. An accurate evaluation of the youth
factors discussed in Miller can only be done at the time of the initial sentencing
hearing—not 25 years in the future.
It is the trial court's role to consider "all mitigating circumstances attendant in the
juvenile's crime and life," thus enabling the Board of Parole Hearings to later determine
"whether the juvenile offender must be released from prison 'based on demonstrated
maturity and rehabilitation.' [Citation.]" (People v. Caballero, supra, 55 Cal.4th at pp.
268-269 (Caballero).) Likewise, Miller establishes that the sentencing court must
consider particular factors prior to imposing sentence. (Miller, supra, 132 S.Ct. at p.
2468.)
Our conclusion is buttressed by the California Supreme Court's resolution of a
similar issue in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). In Gutierrez, the
court considered the impact of Miller on section 190.5, subdivision (b), which had
previously been interpreted "as establishing a presumption in favor of life without parole
for juvenile offenders who were 16 years of age or older when they committed special
circumstance murder." (Gutierrez, at p. 1369.) The California Supreme Court concluded
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that "section 190.5[, subdivision ](b), properly construed, 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.) The Gutierrez court further held that "consideration of the
Miller factors" is required when a sentencing court is determining whether to impose an
LWOP sentence pursuant to section 190.5, subdivision (b). (Gutierrez, at p. 1387.)
The Gutierrez court considered whether section 1170, subdivision (d)(2) provided
a substitute for the resentencing process mandated by Miller. (Gutierrez, supra, 58
Cal.4th at p. 1386.) Section 1170, subdivision (d)(2) provides a procedural mechanism
for resentencing to defendants who were under the age of 18 at the time of the
commission of their offenses and who were given LWOP sentences. If the defendant has
served at least 15 years of the LWOP sentence, he or she may "submit to the sentencing
court a petition for recall and resentencing" (§ 1170, subd. (d)(2)(A)(i)), so long as the
LWOP sentence was not imposed for certain enumerated offenses (id., subd.
(d)(2)(A)(ii)).
The Gutierrez court rejected the Attorney General's argument that the "potential
mechanism for resentencing" provided by section 1170, subdivision (d)(2) "mean[s] that
the initial sentence 'is thus no longer effectively a sentence of life without the possibility
of parole.'" (Gutierrez, supra, 58 Cal.4th at p. 1386.) The Gutierrez court reasoned: "A
sentence of life without parole under section 190.5[, subdivision ](b) remains fully
effective after the enactment of section 1170[, subdivision ](d)(2). That is why section
1170[, subdivision ](d)(2) sets forth a scheme for recalling the sentence and resentencing
the defendant." (Ibid., italics omitted.)
16
The Gutierrez court further rejected the Attorney General's claim that section
1170, subdivision (d)(2) "removes life without parole sentences for juvenile offenders
from the ambit of Miller's concerns because the statute provides a meaningful
opportunity for such offenders to obtain release." (Gutierrez, supra, 58 Cal.4th at p.
1386.) The court held that what Miller required for juvenile offenders sentenced to
LWOP was not a "'meaningful opportunity to obtain release'" but a sentencing court's
exercise of discretion "'at the outset.'" (Ibid., italics omitted.)
In sum, in light of our careful review of Miller, Caballero, Gutierrez, and Chavez,
we conclude that the enactment of section 3051 does not render moot Ricardez's claim
that his sentence is a de facto LWOP sentence that violates the Eighth Amendment.
DISPOSITION
Because Ricardez's sentence of 75 years to life is a de facto life without parole
sentence, he is entitled to resentencing under Graham, Miller, Caballero, and Chavez.
Ricardez's sentence is reversed, and the matter is remanded for resentencing. In all other
respects, the judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
O'ROURKE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not err in failing to instruct on voluntary manslaughter due to invited error and lack of substantial evidence, but that the defendant's 75-year-to-life sentence for crimes committed as a juvenile violated the Eighth Amendment because it was a de facto life sentence imposed without consideration of juvenile-specific mitigating factors.
Issues
Whether the trial court erred by failing to instruct the jury on voluntary manslaughter as a lesser included offense.
Whether a 75-year-to-life sentence for a juvenile offender constitutes cruel and unusual punishment under the Eighth Amendment.
Whether the enactment of Penal Code section 3051 remedies the constitutional defect of a de facto life sentence imposed on a juvenile without consideration of Miller factors.
Disposition. Reversed in part and remanded with directions.
Quotations verified verbatim against the opinion
“we agree that his sentence is the functional equivalent of a life sentence without the possibility of parole and violates his Eighth Amendment rights.”
“the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”