People v. Brown CA2/7

Filed 9/16/16 P. v. Brown CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B265329

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA020150) v.

CINDY I. BROWN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Reversed and remanded for resentencing. Christopher C. Hawthorne, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Theresa A. Patterson and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Cindy Brown plead no contest in 1996 to first degree murder with a special circumstance allegation, arising out of a crime she committed as a juvenile. She was sentenced to life without the possibility of parole. In 2013, following her petition for habeas corpus, the trial court conducted a new sentencing hearing, imposing the same sentence at its conclusion. Brown has appealed, arguing that the trial court failed to consider the factors mandated by the United States and California Supreme Courts. Respondent has conceded the error. We agree, reverse the judgment, and remand for resentencing.

PROCEDURAL HISTORY The circumstances of this tragic crime are not before this Court; the underlying murder has been adjudicated. The issue before this Court relates solely to the sentence imposed. At the time of Brown’s initial plea and sentence in 1996, California courts applied a presumption in favor of life without parole as the sentence for juveniles convicted of special circumstance murder. That was the sentence imposed on Brown. Two years later, in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 2460, 183 L.Ed.2d 407], “the United States Supreme Court ruled that ‘mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments,”’ relying extensively on differences between juveniles and adults with regard to their culpability and capacity for change.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360 [applying Miller and holding there is no presumption in favor of life without parole (LWOP) under Pen. Code, § 190.5].) Brown filed a petition for habeas corpus seeking resentencing under Miller in 2013; the trial court issued an order to show cause in 2014. Brown filed an extensive sentencing memorandum and exhibits. The district attorney filed a memorandum seeking reimposition of the life without parole sentence. The court conducted the resentencing hearing on May 15, 2015, admitting Brown’s exhibits and hearing testimony from Brown