California Court of Appeals, Fourth District, Second Division
The opinion filed in this matter March 25, 2014,
224 Cal.App.4th 1416; __ Cal.Rptr.3d __ is modified as follows, and the petition for rehearing is DENIED:
1. The last paragraph on page three [224 Cal.App.4th 1420, advance report, 3d full par.] of the opinion is modified as follows:
“Fourth, Dubose asserts an LWOP sentence for a minor is cruel and unusual punishment. Fifth, Dubose contends the LWOP sentence is unconstitutional because the jury did not find Dubose intended to kill the victim. Sixth, Dubose asserts it is unconstitutional to impose an LWOP sentence via a mandatory sentencing scheme that does not permit consideration of mitigating factors. Seventh, Dubose contends the trial court erred in sentencing him because it was unaware it had the authority to sentence him to a prison term of 25 years to life. (§ 190.5, subd. (b).) Eighth, Dubose asserts the trial court relied on incorrect factors in determining his sentence. We remand the Dubose matter for a resentencing hearing, wherein the trial court may exercise its discretion regarding the LWOP sentence, but otherwise affirm the judgment.
2. The first paragraph on page 32 of the opinion [224
Cal.App.4th 1438, advance report, 1st full par.] is modified as follows:
“Accordingly, we must consider whether there was anything in the manner in which the case was charged and tried, or the jury instruction, or in the arguments of counsel, which would foreclose the trial court from considering all the evidence at trial in making a sentencing decision under section 654, i.e., selecting the underlying felony. The jury instruction limited the trial court to selecting carjacking, robbery, or torture as the underlying felony.”
Except for these modifications, the opinion remains unchanged. The modifications do not ...