count 2); and robbery (§ 211, count 3). It was further alleged that in the commission of
all three counts, defendant and Paxton personally used a firearm (§ 12022.5, subds. (a) &
(d)), and that defendant and Paxton personally inflicted great bodily injury as to the
robbery victim. (§ 12022.7.)3 Following a jury trial, defendant was convicted of first
degree murder with a true finding of the felony-murder special circumstance, assault with
a firearm (§ 245, subd. (a)(2)) as a lesser offense within attempted murder on count two,
and robbery. Defendant was sentenced to LWOP on count one, consecutive to a
3 Additional allegations that a principal was armed with a firearm (§ 12022, subd. (a)(1) and relating to Paxton’s prior convictions were pled, but are not relevant here.
3
determinate sentence of 18 years, four months for the balance of the convictions and
enhancement allegations.
In 1998, on direct appeal, the convictions were affirmed, but the matter was
remanded for resentencing to correct the improper imposition of multiple enhancements
for count three. (People v. Gibson, supra, E019971, p. 9.) On remand, defendant was
resentenced to LWOP followed by consecutive determinate term of 12 years, four
months, for the balance of the convictions and enhancement allegations.
On April 25, 2014, defendant filed a petition for recall of his sentence pursuant to
section 1170, subdivision (d)(2). The People opposed the petition. After an evidentiary
hearing, the court denied the petition. The court concluded that section 1170, subdivision
(d)(2) applied to an aider and abettor, or the nonkiller, and found that defendant did not
establish he had been rehabilitated or that he felt remorse. Defendant appeals this ruling.
DISCUSSION
1. Development of Statutory and Decisional Law Affecting Sentences for
Juveniles Convicted of Special Circumstances Murder.
In order to provide context for our discussion, we provide a brief review of the
statutory enactments and landmark decisions which govern our analysis. We begin with
the year of defendant’s offense, 1994.4 At that time, Penal Code section 190.5,
4 A criminal defendant is entitled to the application of statutes in effect at the time his offense was committed. (See Miller v. Florida (1987) 482 U.S. 423, 435-436 [107 S.Ct. 2446, 96 L.Ed.2d 351].)
4
subdivision (a), prohibited the imposition of the death penalty upon any person who was
under the age of 18 at the time of the commission of the crime.
Subdivision (b) of section 190.5 provided that “The penalty for a defendant found
guilty of murder in the first degree, in any case in which one or more special
circumstances enumerated in Section 190.2 or 190.25 has been found to be true under
Section 190.4, who was 16 years of age or older and under the age of 18 years at the time
of the commission of the crime, shall be confinement in the state prison for life without
the possibility of parole or, at the discretion of the court, 25 years to life.” Prior to 2014,
this section was interpreted to mean that 16- or 17-year-olds who commit special
circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds
good reason to choose the less severe sentence of 25 years to life. (People v. Guinn
(1994) 28 Cal.App.4th 1130, 1141 [overruled by Gutierrez, supra, 58 Cal.4th at pp.
1370-1371].) Defendant was sentenced to LWOP two years after the Guinn decision was
published.
In 2010, the United States Supreme Court decided that the Eighth Amendment
prohibited the imposition of a life-without-parole sentence on a juvenile offender who
committed a non-homicide crime and, while the defendant need not be guaranteed
eventual release from the life sentence, he must have some realistic opportunity to obtain
release before the end of the life term. (Graham v. Florida (2010) 560 U.S. 48, 74-75
[130 S.Ct. 2011, 176 L.Ed.2d 825].) Also in December 2010, State Senator Yee
introduced Senate Bill 9 to the California Senate, an act to amend Penal Code section
People v. Palmer (2005) 133 Cal.App.4th 1141, 1149.) We review questions of statutory
construction de novo. (People v. Christman (2014) 229 Cal.App.4th 810, 816.)
10
Section 1170, subdivision (d)(2)(A)(i), provides that when a defendant was under
18 years of age at the time of the commission of the offense for which he was sentenced
to imprisonment for life without the possibility of parole has served at least 15 years of
that sentence, the defendant may petition the court for recall and resentencing. This
provision does not apply to defendants sentenced to LWOP for an offense where the
defendant tortured the victim, or where the victim was a public safety official. (§ 1170,
subd. (d)(2)(A)(ii).)
A petition pursuant to section 1170, subdivision (d)(2) must include the
defendant’s statement that he or she was under 18 years of age at the time of the crime,
was sentenced to LWOP, and include a statement describing his or her remorse and work
towards rehabilitation, as well as defendant’s statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or aiding and abetting murder
provisions of the law, (ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for personal harm to victims
prior to the offense for which the sentence is being considered for recall, (iii) The
defendant committed the offense with at least one adult codefendant, (iv) The defendant
has performed acts that tend to indicate rehabilitation or the potential for rehabilitation.
(§ 1170, subd. (d)(2)(B).)
The court must hold a hearing to consider whether to recall the sentence if it finds
by a preponderance of the evidence that the statements in the petition are true. (§ 1170,
subd. (d)(2)(E).) At the hearing, the court may consider certain factors, including, but not
11
limited to, the factors set out in the defendant’s statement pursuant to section 1170,
subdivision (d)(2)(B). (§ 1170, subd. (d)(2)(F).) One such factor is whether “[t]he
defendant was convicted pursuant to felony murder or aiding and abetting murder
provisions of law.” (§ 1170, subd. (d)(1)(F)(i).)
In construing statutes, we must rely on the usual, ordinary import of the language
used. (In re Jesusa V. (2004) 32 Cal.4th 588, 622.) The “ordinary and popular” meaning
of the word “or” is well-settled as having a disjunctive meaning. (Ibid.) The plain and
ordinary meaning of the word “or” is well established: it indicates an intention to
designate separate, disjunctive categories. (Smith v. Selma Community Hospital (2010)
188 Cal.App.4th 1, 30, citing White v. County of Sacramento (1982) 31 Cal.3d 676, 680,
among other authorities.) In the case of section 1170, subdivision (d)(2)(B)(i), the
Legislature used the word “or” between “felony murder” and “aiding and abetting.” In so
doing, it described two separate, disjunctive categories of persons serving LWOP
sentences who would be eligible to petition: one type includes persons whose first degree
murder liability was established under the felony murder doctrine; the other type includes
persons whose murder liability was established under aider/abettor principles.
By referring to felony murder as a theory disjoined from aider and abettor liability,
it appears more likely the Legislature intended to include persons who would have been
convicted of a lesser degree of homicide but for the fact it occurred during the
commission of a dangerous felony. Any other interpretation renders the inclusion of the
12
reference to “felony murder” as surplusage. The fact that the legislation does not extend
to persons convicted of premeditated or deliberate murder bolsters our interpretation.
At the hearing, the People argued that “. . . SB 9 was not meant for him. When
you look through the legislative history, it was meant for accomplices, felony murders, it
wasn’t meant for the executioner.” We reviewed the legislative history and found no
evidence of such an intention. Had the Legislature intended to limit relief to persons
convicted under a theory of vicarious liability but were not the actual killers, it could
have said that relief was limited to juveniles convicted under a theory of vicarious
liability.
In none of the legislative materials is there a reference to a requirement that relief
be limited to persons who did not actually commit the homicide. (Sen. Bill No. 9 (2011-
2012 Reg. Sess.) Instead, section 1170, subdivision (d)(2) constitutes a legislative “act of
lenity” designed to permit defendants to secure a “downward modification” of their
sentences, in much the same way that section 1170.126 does for Three Strike defendants.
(See People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304.)
There is nothing in the legislative history of section 1170, subdivision (d)(2), or in
our review of the cases interpreting the statute, evincing an intent to restrict the right to
seek recall and resentencing to persons convicted as accomplices or aiders and abettors.
We therefore agree with the defendant’s argument that the trial court erroneously stated
that relief was limited to persons who did not actually cause the death. However, the trial
court’s view of legislative intent did not result in a summary denial of the petition, so any
13
error was harmless. An ineligible defendant would not have been granted a hearing on
the petition pursuant to section 1170, subdivision (d)(2)(B)(i).
Further, under section 1170, subdivision (d)(2)(F), the felony-murder-factor was
but one of several circumstances to be considered by the trial court at the hearing in
deciding whether or not to recall the sentence originally imposed. In this case, the trial
court properly based its decision on two appropriate factors, which are supported by the
record, so any error was harmless. (See People v. Price (1991) 1 Cal.4th 324, 492, citing
People v. Avalos (1984) 37 Cal.3d 216, 233 [“When a trial court gives both proper and
improper reasons for a sentence choice, a reviewing court will set aside the sentence only
it is reasonably probable that the trial court would have chosen a lesser sentence had it
known that some of its reasons were improper.”]; see also, People v. Leonard (2014) 228
Cal.App.4th 465, 503 [applying same rationale to motions per People v. Superior Court
(Romero) (1996) 13 Cal.4th 497], citing People v. Cluff (2001) 87 Cal.App.4th 991, 998.)
b. The Trial Court Did Not Abuse Its Discretion
Defendant presented numerous certificates and documents in support of his
petition. Other than the certificates and the “chronos,”5 the information provided to the
court in support of the petition consisted of documents prepared by defendant himself.
Of these documents, the great majority of them were created after the enactment of
5A “Chrono” is a California Department of Corrections and Rehabilitation Form 128-B, which is used to document information about inmates and inmate behavior. (15 Cal. Code Reg., § 3000.)
14
Senate Bill 9. There is thus a self-serving quality to much of the information submitted
in support of the petition.
The People drew attention to the fact that nearly one-half of the exhibits point to
rehabilitative efforts made just in the two years prior to the hearing. The trial court
agreed with the points raised by the People in their opposition to the petition, in which
the People asserted defendant’s statements of remorse and work towards rehabilitation
were neither credible nor adequate given the length of time defendant had to work on
those issues. The People also noted that defendant’s statements of remorse were not
believable and that he made excuses for his behavior on the night of the crime. The trial
court agreed.
Defendant argues in his reply brief that there is insufficient evidence to support the
trial court’s findings that he did not demonstrate remorse or rehabilitation, citing the
testimony of the defense expert that he believed defendant was sincerely remorseful. The
record supports the court’s conclusion: the majority of defendant’s efforts at
rehabilitation, as evidenced by the exhibits submitted in support of his petition, postdate
the enactment of Senate Bill 9. A trier of fact could reasonably conclude that defendant’s
efforts were not reflective of genuine remorse or rehabilitation. Moreover, the trial court
was free to reject the opinion of the expert because it was based on the late actions and
expressions of the defendant. (See People v. McWhorter (2009) 47 Cal.4th 318, 362-363
[trial court may reject expert opinion where the basis of the opinion is unreliable hearsay
or other unreliable sources of information].)
15
The court’s misunderstanding that section 1170, subdivision (d)(2) was intended
for non-killers was but one factor out of many that were considered by the trial court.
The remaining factors were properly considered and there was substantial evidence to
support the trial court’s ruling on the petition. The finding of one proper factor is
sufficient to justify the court’s decision. (See, People v. Castaneda (1999) 75
Cal.App.4th 611, 615 [re factors in aggravation to justify upper term], citing People v.
Cruz (1995) 38 Cal.App.4th 427, 433-434.) There was no abuse of discretion.
3. The Trial Court Did Not “Flout Miller and Gutierrez.”
Defendant argues that the trial court’s ruling “flout[ed] Miller and Gutierrez.”
Specifically, he asserts that the recent decisions barring mandatory LWOP terms for
juveniles require that the defendant be permitted “to present all types of mitigation and
that the sentencing authority is required to meaningfully consider” it. Moreover, he
argues that the trial court refused to weigh all of the applicable factors, and that such
refusal “transcends a statutory violation and has the potential to violate the ‘evolving
standards of decency’ and the requirement of ‘individualized sentencing’ required by the
Eighth Amendment.” Because of the limited focus of section 1170, subdivision (d)(2), we
disagree.
The recent holding of Miller v. Alabama, supra, 132 S.Ct. at page 2465 does not
hold that an LWOP sentence may never be imposed upon a person who was under the
age of 18 at the time of the offense. It merely requires a trial court, in exercising its
discretion, to consider the “distinctive attributes of youth” and how those attributes
16
“diminish the penological justifications for imposing the harshest sentences on juvenile
offenders” before imposing LWOP on a juvenile. (Ibid.)
In Gutierrez, supra, 58 Cal.4th at page 1379, the California Supreme Court
considered the constitutionality of section 190.5 in light of the pre-Miller line of cases
interpreting the statute as creating a presumption favoring LWOP. The court held that
section 190.5, applicable to persons who were 16 or 17 at the time of their offenses, did
not create a presumption favoring LWOP, disapproving of People v. Guinn (1994) 28
Cal.App.4th 1130 and its progeny. (Gutierrez, supra, 58 Cal.4th at p. 1387.) Instead, it
adopted an interpretation of section 190.5 that requires a sentencing court to take into
account mitigating factors relating to “the distinctive attributes of youth,” in deciding
whether to impose LWOP or a term of 25 years to life. (Gutierrez, supra, 58 Cal.4th at p.
1390.) In reaching this conclusion, the California Supreme Court reasoned that Miller
does not compel a resentencing to a lesser term where the court, in its discretion,
concludes that LWOP is appropriate. (Gutierrez, supra, 58 Cal.4th at pp. 1379, 1380.)
Neither Miller nor Graham held that LWOP sentences could never be lawfully
imposed on a person who was under the age of 18 at the time of the offense. Those cases
only held that mandatory life without possibility of parole for a juvenile was improper
and that imposition of the harshest punishment on a juvenile requires individualized
sentencing that takes into account an offender’s “youth [and all that accompanies it].”
(Gutierrez, supra, 58 Cal.4th at p. 1377, quoting Miller, supra, 132 S.Ct. at p. 2468.)
17
Nor does section 1170, subdivision (d)(2) mandate resentencing of all persons who
were under the age of 18 at the time of their offenses who were sentenced to LWOP. If it
were intended to be so, the Legislature would have drafted a statute mandating recall and
resentencing for all persons sentenced to LWOP for crimes committed before they were
18. It would not have set out circumstances to be weighed by the court in exercising
discretion to either recall the sentence, or not to recall it.
Finally, as Gutierrez makes clear, section 1170, subdivision (d)(2) is not a
substitute for the initial exercise of discretion pursuant to section 190.5 at the initial
sentencing, and does not eliminate the constitutional doubts arising from a presumption
in favor of LWOP under the pre-Miller line of cases.6 (Gutierrez, supra, 58 Cal.4th at
p. 1385.) The Court pointed out that section 1170, subdivision (d)(2)(G) requires a court
that has recalled a sentence to “sentence the defendant in the same manner as if the
defendant had not previously been sentenced.” This gives rise to the risk that, even after
granting a petition to recall a sentence, the court might apply the same presumption on
resentencing. (Id. at p. 1384.) The Court also observed that notwithstanding the potential
6 This precise question is currently pending review in In re Willover (2015), formerly at 235 Cal.App.4th 1328, review granted June 24, 2015, S226523. We note that at least one court has expressed the view that section 1170, subdivision (d)(2) remedied any defect in the imposition of an LWOP sentence imposed before Miller, and that the statutory procedure under section 1170, subdivision (d)(2) constitutes an adequate remedy at law foreclosing relief by way of habeas corpus. However, that case is also pending review by the Supreme Court. (In re Kirchner (2016) 244 Cal.App.4th 1398, review granted May 18, 2016, S233508.) For the reasons explained in Gutierrez, supra, we disagree with that conclusion.
18
mechanism for resentencing, an LWOP sentence imposed pre-Miller remains fully
effective. (Gutierrez, supra, 58 Cal.4th at p. 1360.)
The trial court did not “flout Miller and Gutierrez” because the vehicle defendant
chose to implement does not compel a review of the constitutionality of an LWOP
sentence imposed upon a defendant who was under the age of 18 at the time of his crime.
Defendant chose to file a petition to recall and resentence him pursuant to section 1170,
subdivision (d)(2), a discretionary application addressed to the court’s consideration of
circumstances showing the defendant has rehabilitated himself or demonstrated remorse.
It is not a vehicle for reconsidering the constitutionality of a sentence in light of the
“distinctive attributes of youth,” as required by Miller and its progeny, in light of an
improper presumption favoring imposition of LWOP.
Defendant could have filed a petition for writ of habeas corpus, seeking retroactive
application of Miller on collateral review. (See, Montgomery v. Louisiana (2016)
___U.S.___ [136 S.Ct. 718, 734, 193 L.Ed.2d 599]; see also, In re Rainey (2014) 224
Cal.App.4th 280, 287-290 [decided before Montgomery, but reaching the same
conclusion].) We do not foreclose that option here if defendant has not already availed
himself of that remedy, notwithstanding our conclusion that the trial court did not abuse
its discretion: defendant’s sentence was imposed at a time when Guinn was the
prevailing authority and he would be entitled to a new sentencing hearing at which the
19
Miller criteria were properly considered, if that was not done.7 We simply hold that
based on the material presented to the trial court in support of a recall petition filed
pursuant to section 1170, subdivision (d)(2), the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION RAMIREZ P. J.
We concur:
HOLLENHORST J.
SLOUGH J.
7 However, the record does not include the original sentencing proceedings, so we cannot determine if the court found defendant to be someone for whom LWOP would be an appropriate sentence in the first instance. (See Gutierrez, supra, 58 Cal.4th at p. 1380.)
20
AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1170, subdivision (d)(2) is not limited to aiders and abettors or non-killers, but that the trial court's erroneous interpretation of the statute was harmless because it did not abuse its discretion in denying the petition based on the defendant's failure to demonstrate rehabilitation or remorse.
Issues
Whether Penal Code section 1170, subdivision (d)(2) is limited to juvenile defendants who were not the actual killers.
Whether the trial court abused its discretion in denying the petition for recall and resentencing.
Whether the trial court's denial of the petition violated the principles established in Miller v. Alabama and People v. Gutierrez.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The statute thus confers broad discretion on the trial court in considering relevant factors and determining whether to recall the sentence.”
“The court’s misunderstanding that section 1170, subdivision (d)(2) was intended for non-killers was but one factor out of many that were considered by the trial court.”