APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. As modified, affirmed. (Los Angeles County Super. Ct. No. KA074614)
The opinion of the court was delivered by: Rubin, Acting P. J.
CERTIFIED FOR PUBLICATION
Christopher Murray appeals from the judgment entered after he was resentenced to life without parole, plus an additional combined consecutive term of 104 years to life after he pleaded no contest to two counts of first degree murder and one count of attempted murder. Murray contends that because he was 17 at the time of the crimes, the sentence violates the state and federal constitutional prohibitions against cruel and unusual punishment. We join our First District colleagues in People v. Blackwell (2011) 202 Cal.App.4th 144 (Blackwell) and conclude that such a sentence is constitutional. We also reject Murray's contentions that the trial court either failed to exercise or abused its discretion when sentencing him, and erred by not ordering a new probation report and by not allowing certain family members to speak on his behalf at the hearing. After modifying the judgment to account for Murray's actual custody credits, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 3, 2006, Christopher Murray shot and killed Christopher Trevizo and Demitrius Flores, and shot at but missed Flores's brother Damon. Accompanying Murray were Angelo Vasquez and Salvador Villanueva, who pointed guns at each of the Flores brothers, but fired no shots. Murray was angry at Trevizo because Trevizo stole marijuana from Murray at gunpoint a few months earlier. Murray and his companions confronted Trevizo and the Flores brothers after following them as they walked along a secluded wash.
Murray entered an open plea of no contest to the first degree murders of Trevizo and Demitrius Flores, and to the attempted murder of Damon Flores, subject to a trial on the issue of whether he was insane when the crimes occurred.*fn1 After the jury found Murray had been sane, the trial court imposed the following sentence: As to each of the two murder counts, life without parole (Pen. Code, § 190.5, subd. (b)), plus another 25 years to life for a firearm use enhancement (Pen. Code, § 12022.53, subd. (d)); as to the attempted murder count, the upper term of nine years (Pen. Code, § 664, subd. (a)), plus 20 years for another firearm use enhancement (Pen. Code, § 12022.53, subd. (c)).*fn2 Each term was consecutive to the others.*fn3
Murray appealed. We rejected his claim that the trial court should have excused a juror for harboring prejudice against the sanity defense, and that his trial lawyer was ineffective for failing to challenge that juror. We reversed and remanded for resentencing because multiple-murder special circumstances (§ 190.2, subd. (a)(3)) had been improperly imposed for each murder conviction (People v. Danks (2004) 32 Cal.4th 269, 315), and because it was unclear whether the trial court had exercised its discretion under section 190.5, subdivision (b) in choosing life without parole for the murder counts instead of sentences of 25 years to life. (People v. Murray (May 11, 2009, B20344) [nonpub. opn.] (Murray I).)
On remand for resentencing, the trial court struck the second special murder circumstances. It resentenced Murray to: life without parole on the first murder count, with a consecutive 25 years for the gun use enhancement; a consecutive term of 25 years to life on the second murder count, plus another consecutive 25 years for the gun use enhancement; and the consecutive high term of nine years for the attempted murder count, plus another consecutive 20 years for the other gun use enhancement.
Murray contends that because he was a minor when the crimes occurred, the life-without-parole sentence for one murder count violates his state and federal constitutional protections against cruel and unusual punishment. He also contends that even if the life-without-parole sentence is reduced to a term of 25 years to life, he will still face a de facto sentence of life without parole that is constitutionally prohibited. Murray also challenges the sentence on the following grounds: (1) the trial court incorrectly believed it was enforcing the terms of a plea agreement rather than sentencing on an open plea when it imposed the life-without-parole sentence, and therefore failed to exercise its discretion to consider a sentence of 25 years to life on that charge; (2) even if the trial court exercised its discretion when resentencing him, the court abused that discretion by imposing the no-parole sentence, by running his punishment consecutively, and by imposing the high-term sentence on the attempted murder count; (3) the court erred by not ordering a new probation report and by refusing to allow some of his family members to address the court; (4) the cumulative effect of these errors compels reversal; and (5) the abstract of judgment should be modified to include 1,429 days of actual custody credits.
1. The No-parole Sentence Is Not Unconstitutional
A. No Categorical Bar for Life-without-parole Sentences for Minors
Murray was sentenced on count 1 pursuant to section 190.5, subdivision (b), which provides that minors who are 16 or 17 and who are convicted of a special circumstance murder under section 190.2 should be given a no-parole life sentence or, in the trial court's discretion, a sentence of 25 years to life. Under this section, the no-parole life sentence is the presumptive choice. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1145.) Because Murray committed multiple murders, special circumstances existed (§ 190.2, subd. (a)(3)), making him eligible for the no-parole life sentence.*fn4
In Graham v. Florida (2010) ___ U.S. ___, 130 S.Ct. 2011, 2023, 2034 (Graham), the United States Supreme Court announced a categorical rule prohibiting no-parole life sentences for minors who were convicted of non-homicide offenses. Graham's holding was based on the following: (1) scientific studies showing fundamental differences between the brains of juveniles and adults; (2) a juvenile's capacity for change as he matures, which shows that his crimes are less likely the result of an inalterably depraved character; (3) the notion that it is morally misguided to equate a minor's failings with those of an adult; and (4) the fact ...