Trial court: Contra Costa County Superior Court Trial judge: Hon. Laurel S. Brady (Contra Costa County Super. Ct. No. 051378-8)
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
Andrew Lawrence Moffett was 17 years old when he and an accomplice committed an armed robbery and his accomplice shot and killed a police officer during their attempt to escape. He appeals from a judgment sentencing him to life without the possibility of parole (LWOP) for his conviction of first degree murder with felony-murder special circumstances, arguing that the sentence amounts to cruel and unusual punishment. (Pen. Code, §§ 187, subd. (a); 189; 190.2, subd. (a)(17).)*fn1 We conclude that the case must be remanded for resentencing in light of the recent United States Supreme Court decision in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller).
Elijah Moore stole a white Toyota Camry at appellant's request in exchange for some marijuana. On April 23, 2005, Moore delivered the Camry to appellant, who was with Alexander Hamilton. Later that same day, appellant and Hamilton drove the Camry to a Raley's supermarket in Pittsburg, which was having a grand reopening celebration. They entered the store shortly before 5:47 p.m., wearing facial coverings and carrying semi-automatic handguns. Appellant ran to a checkout stand manned by Rima Bosso, pointed the gun at her head and demanded that she give him the money. Bosso initially thought it was a joke by one of her co-workers, but when she realized the situation was serious, she became flustered and could not get the register drawer to open. Appellant put his gun up against her left ear and repeatedly demanded the money, telling her "Come on, bitch. Come on, bitch. You're taking too fucking long." The drawer finally opened and Bosso put about $800 in a bag. Bosso closed her eyes because she thought appellant was going to shoot her, but when she opened them he had run away.
As appellant was robbing Bosso, Hamilton approached a Wells Fargo bank counter inside the Raley's, where bankers Anjila Sanehi and Adrianna Beaman were sitting at the counter helping customers. Hamilton stood between the two customers (one of whom was with her 12-year-old daughter) and pointed the gun back and forth between Sanehi and Beaman. He focused on Beaman, telling her, "Bitch, give me the money or I will shoot you." Beaman and Sanehi both put money in a bag that Hamilton was carrying.
Appellant and Hamilton ran out of the store, dropping some money just outside the exit. They got inside the Camry, sped out of the parking lot, and drove through a nearby residential neighborhood. A few minutes later, the car crashed into the back of a pickup truck parked on the street. Appellant and Hamilton got out of the car and a neighbor saw appellant (the taller of the two) drop and pick up a gun. Another neighbor started to chase them as they ran through a cul-de-sac, but he was warned off by the neighbor who had seen the gun. Appellant told the neighbor who was chasing them, "Stop or I'll cap you, motherfucker." Appellant and Hamilton continued running through the yards of several homes near the Delta de Anza Trail, scaling fences as they went.
Shortly after the robbery, police officers responded to the Raley's while others drove the likely escape routes. Information about the car crash and suspects running on foot near the Delta de Anza Trail was broadcast over the police radio. Pittsburg Police Officers Larry Lasater and John Florance drove their patrol cars as far as they could and then got out and ran a couple of hundred yards down a path until they reached the trail. The officers surveyed the trail with their backs toward one another, with Officer Lasater looking east and Officer Florance looking west. Officer Lasater said, "Is that some one down there?" and Officer Florence turned around and saw a dark figure standing in some trees and greenery that was south of the trail. The figure disappeared into the greenery and Officer Lasater started running, calling out, "Black male, black sweatshirt." Officer Florance heard the sound of a fence being hopped and Officer Lasater quickly stopped and drew his weapon.
Officer Florance saw Officer Lasater walking heel-to-toe toward the area where the figure had disappeared, holding his gun out in front of him. Officer Lasater pointed his gun downward and shouted, "Show me your hands." Hamilton, who was lying down in the bushes, fired several shots at Officer Lasater, one of which shattered a vertebrae in his neck, and another of which went through his calf. Officer Lasater collapsed and ultimately died of the neck wound. A number of other officers came to the scene to assist in capturing the shooter and moving Officer Lasater from the area where he had fallen. Hamilton fired shots at two other officers until his gun ran out of ammunition, at which point he dropped his gun, crawled out of the grass, and was taken into custody.
Meanwhile, appellant had jumped the fence adjacent to the site of the shooting and had run through the backyard of Elizabeth Huyuck. Huyuck did not hear gunshots until after he ran through her yard. She noticed a dark sweatshirt caught on her backyard fence and some cash on the ground near the fence.
Another neighbor, Jerilynn Privratsky, heard the sound of a helicopter and started to go to her backyard via her garage to see what was happening. She saw a bare-chested young African-American man start to come into her garage and yelled, "No!" The man ran across the street. A number of other neighbors in the area also saw a young, shirtless African-American man running though the streets and backyards. Appellant, who is African American, was eventually discovered lying shirtless in a backyard in a fetal position under a tree. When police apprehended him (about 50 minutes after the first robbery dispatch) he said "Don't kill me," and surrendered unarmed. At least one of his wrists was bleeding.
Larry Pitts lived in the neighborhood where appellant was apprehended but was out of town on the day of the robbery. When he returned home the following evening, he noticed that the gate to his yard was open and that some dirt had been pulled out of one of his flower pots. The next morning he checked the flower pot and discovered a handgun buried under about six inches of soil. The gun was a fully loaded automatic with a bullet in the chamber.
After the police recovered the gun from Pitts, they searched the backyard next door. Inside a garbage can they found a white plastic bag with $4027 cash and a black shirt. Blood matching appellant's DNA was discovered on the plastic bag containing the cash and on top of the garbage can lid. The black shirt also had a mixed sample bloodstain consistent with appellant's DNA, although that match was to a much lower probability (one in 1100 African Americans versus one in 4.9 quadrillion African Americans) than the other bloodstains.
It had been raining on the day of the robbery, and muddy shoeprints consistent with the shoes worn by appellant when he was arrested were discovered in many of the backyards in the area. Shoe prints consistent with Hamilton's shoes were found as well. Those shoe prints, along with damaged and muddied fences, a bloody palm print on a gate, and discarded latex gloves similar to those used in the robbery enabled the police to trace appellant's path of flight from the car crash to the backyard where he was arrested. One of appellant's shoeprints was found about 10 feet from the gun that Officer Lasater had dropped when he was shot.
Forensic testing showed that gunshot residue was present on appellant's hands after his arrest, which indicated that he had fired a gun, was near a gun when it was fired, or had handled a gun or other object contaminated with gunshot residue.
A cell phone recovered a few feet away from where Officer Lasater was shot was traced to appellant and contained Elijah Moore's telephone number. A dark hooded sweatshirt with blood on the left arm cuff was found on or near the fence adjacent to the site of the shooting. The blood on the cuff of the sweatshirt appeared to correspond to a wound on appellant's wrist ...