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Superior Court of Ventura County, No. 05051378-8, Patricia M. Murphy, Judge. Court of Appeal, Second Appellare District, Division Six, No. B227606. Superior Court of Contra Costa County, No. 05051378-8, Laurel S. Brandy, Judge. Court of Appeal, Firts Appellate District, Division Five, No. A133032.
Jean Matulis, under appointment by the Supreme Court, for Defendant and Appellant Luis Angel Gutierrez.
Joseph Shipp, under appointment by the Supreme Court, for Defendant and Appellant Andrew Lawrence Moffett.
L. Richard Braucher; and Susan L. Burrell for Pacific Juvenile Defender Center and Youth Law Center as Amici Curiae on behalf of Defendant and Appellant Luis Angel Gutierrez.
Latham & Watkins, Aaron Murphy and Anthony J. Bruno for United Mexican States as Amicus Curiae on behalf of Defendant and Appellant Luis Angel Gutierrez.
Elizabeth M. Calvin; DLA Piper and Steven S. Kimball for Human Rights Watch as Amicus Curiae on behalf of Defendant and Appellant Luis Angel Gutierrez.
International Human Rights Clinic, Elizabeth A. Henneke; Frank C. Newman International Human Rights Law Clinic, Constance de la Vega and Lani Virostko for Amnesty International, Disability Rights Legal Center, Human Rights Advocates, Loyola Law School Center for Juvenile Law and Policy and University of San Francisco Center for Law and Global Justice as Amici Curiae on behalf of Defendants and Appellants.
Jessica R. Feierman and Marsha L. Levick for Juvenile Law Center as Amicus Curiae on behalf of Defendants and Appellants.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent in S206365.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Lawrence M. Daniels, Rene A. Chacon and David M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent in S206771.
Criminal Justice Legal Foundation and Kent S. Scheidegger for Jo Ann Lasater, Phyllis Loya and James Lasater as Amici Curiae on behalf of Plaintiff and Respondent.
Opinion by Liu, J., with Cantil-Sakauye, C. J., Werdegar, Chin, and Kennard, [*]JJ., concurring. Concurring Opinion by Corrigan, J., with Cantil-Sakauye, C.J., Baxter, and Chin, JJ., concurring. Concurring Opinion by Liu, J. [*]
[324 P.3d 249] [171 Cal.Rptr.3d 425]
The two 17-year-old offenders in these cases were convicted of special circumstance murder and sentenced to life imprisonment without the possibility of parole under Penal Code section 190.5, subdivision (b) (hereafter section 190.5(b)). Section 190.5(b) provides that the penalty for 16- or 17-year-old juveniles who commit special circumstance murder " 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." For two decades, since People v. Guinn (1994) 28 Cal.App.4th 1130 [33 Cal.Rptr.2d 791] ( Guinn ), section 190.5(b) has been construed by our Courts of Appeal and trial courts as creating a presumption in favor of life without parole as the appropriate penalty for juveniles convicted of special circumstance murder.
After defendants were sentenced, 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. ( Miller v. Alabama (2012) 567 U.S. ___, ___ [183 L.Ed.2d 407, 132 S.Ct. 2455, 2460] ( Miller ).) We granted review to determine whether a presumption in favor of a sentence of life without parole under section 190.5(b) violates the Eighth Amendment to the United States Constitution under the principles announced in Miller .
As explained below, we hold that section 190.5(b), properly construed, confers discretion on a trial court to sentence a 16- or 17-year-old juvenile convicted of special circumstance murder to life without parole or to 25 years to life, with no presumption in favor of life without parole. We
further hold that Miller requires a trial court, in exercising its sentencing discretion, to consider the " distinctive attributes of youth" and how those attributes " diminish the penological justifications for imposing the harshest sentences on juvenile offenders" before imposing life without parole on a juvenile offender. ( Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2465].) Because the sentencing regime created by section 190.5(b) authorizes and indeed requires consideration of the distinctive attributes of youth highlighted in Miller, we find no constitutional infirmity with section 190.5(b) once it is understood not to impose a presumption in favor of life without parole.
Because the two defendants here were sentenced before Miller in accordance with the interpretation of section 190.5(b) prevailing at the time (see Guinn, supra, 28 Cal.App.4th at p. 1142), we [324 P.3d 250] remand for resentencing in light of the principles set forth in Miller and this opinion.
We consolidated the two cases under review on our own motion. We begin with the background of each case.
On April 23, 2005, defendant Andrew Lawrence Moffett and codefendant Alexander Hamilton robbed a Raley's supermarket [171 Cal.Rptr.3d 426] in Pittsburg and a Wells Fargo bank located inside the store. At the time, Moffett was 17 years old, and Hamilton was 18 years old.
Moffett enlisted a friend, Elijah Moore, to steal a getaway car in exchange for some marijuana. After driving the car to the Raley's parking lot, Moffett and Hamilton entered the store shortly before 5:47 p.m. wearing facial coverings and carrying semiautomatic handguns. Moffett approached a checkout stand manned by Rima Bosso, pointed his gun at her head, and demanded that she give him the money. Flustered, Bosso could not get the register drawer to open. Moffett put his gun against her left ear and said, " Come on, bitch. Come on, bitch. You're taking too fucking long." The drawer eventually opened, and Bosso put about $ 800 in a bag. While Moffett was robbing Bosso, Hamilton approached the counter of the Wells Fargo bank, pointed a gun in the direction of the two tellers, and demanded money. The tellers put $ 3,000 in a bag Hamilton was carrying.
Moffett and Hamilton ran out of the store and attempted to flee in the stolen car, but Hamilton soon crashed the vehicle into the back of a pickup truck parked on the street. Moffett and Hamilton then got out of the car and started running. Moffett told a neighbor who was chasing them, " Stop or I'll
cap you, motherfucker." Moffett and Hamilton continued running through the yards of several homes near the Delta de Anza Regional Trail, scaling fences as they went.
Pittsburg Police Officers John Florance and Larry Lasater arrived at the Delta de Anza Regional Trail at 5:58 p.m. Officer Lasater saw a dark figure standing by a tree and called out, " Is that someone down there?" The figure disappeared into the greenery, and Officer Lasater gave chase. After running for some distance, Officer Lasater stopped, drew his weapon, and started walking toward where the figure had disappeared. Around this time, Officer Florance heard the sound of someone jumping over a fence. He then saw Officer Lasater point his gun downward and shout, " Show me your hands."
Hamilton, who was lying down in the bushes, fired several shots at Officer Lasater. One of the bullets shattered a vertebra in Officer Lasater's neck, and another went through his calf. When additional officers responded to the scene to assist Officer Lasater, Hamilton fired shots at them until he ran out of ammunition and was taken into custody. The wound to Officer Lasater's neck proved fatal.
Meanwhile, Moffett had jumped the fence adjacent to the site of the shooting and continued running through the neighborhood. At one point, a woman saw him about to enter her garage. She yelled, " no," and Moffett ran across the street. At around 6:35 p.m., officers discovered Moffett lying shirtless in a fetal position under a tree where he surrendered, saying, " don't kill me."
Following a joint trial with Hamilton, Moffett was convicted of one count of first degree murder, three counts of second degree robbery, and one count of driving a stolen vehicle. (Pen. Code, § § 187, 211; Veh. Code, § 10851.) The jury also found true three felony-murder special-circumstance allegations, one killing of a peace officer special-circumstance allegation, and firearm use allegations as to the murder and robbery counts. (Pen. Code, § § 190.2, subd. (a)(7) & (17), 12022.53, subd. (b).) On July 24, 2008, the trial court sentenced Moffett to life imprisonment without the possibility of parole on the murder count plus an additional 24 years on the remaining charges and enhancements.
[171 Cal.Rptr.3d 427] Moffett appealed, and the Court of Appeal reversed the true finding on the peace officer special-circumstance allegation because " [t]here was no evidence that [Moffett] personally fired his own gun, and the prosecution's [324 P.3d 251] position after the close of evidence was that appellant had jumped the fence and fled the area by the time Hamilton fired the fatal shot. ... [N]othing in the record suggests that he encouraged Hamilton to fire the shots or assisted
him in doing so. ... [T]here is no substantial evidence from which it can be inferred that appellant acted with an intent to kill ... ." The Court of Appeal remanded the case so that the trial court could consider whether a sentence of life without parole was appropriate in light of the reversal of the peace officer special circumstance. The Court of Appeal also directed the trial court to correct sentencing errors on the robbery counts.
On remand, defense counsel argued that sentencing Moffett to life without parole would constitute cruel and unusual punishment because Moffett was a juvenile and lacked any intent to kill, and therefore had " twice diminished moral culpability." ( Graham v. Florida (2010) 560 U.S. 48, 69 [176 L.Ed.2d 825, 130 S.Ct. 2011] ( Graham ).)
On July 22, 2011, the trial court resentenced Moffett to the same term of life without parole plus 24 years. Applying section 190.5(b), the trial court framed the issue as whether it should " deviate from the statutory requirement of life without the possibility of parole and sentence Mr. Moffett to a determinate term of 25 years to life." The trial court declined to " engage in a philosophical discussion about [the] merits ... of the law in California" and observed that the law " provides discretion for the trial court in certain limited circumstances such as this where the defendant in a capital case was a juvenile tried as an adult."
In resentencing Moffett to life without parole, the trial court said: " Mr. Moffett was under the age of eighteen by just a few months at the time of this incident, thus the court has discretion regarding sentencing. [¶ ] ... [¶ ] Sometimes with the passage of time, people tend to forget or minimize the impact of incidents such as this. But the impact is just as vivid and continues for the victims and the victims' families and that doesn't change. [¶ ] The testimony of Rima Bosso, the robbery victim in Count 2, was extremely profound. She testified that the individual who was later identified as Mr. Moffett, took his gun, put it to her head and threatened to kill her with it. Not only did she see her own death that day, but she said for years afterwards and up until and as of the day she testified in the trial, she lived in a house where the curtains were pulled shut, the doors were locked. She didn't go out. She was fearful day and night. The trauma damaged her relationship with her family. It has changed her life profoundly and forever. She will never be the same. The fact that she was not physically harmed does not mean that she was not profoundly affected. Her testimony was very compelling. [¶ ] The other two robbery victims described similar experiences. I take all of this into account in determining the appropriate sentence.
" As for Officer Lasater's family, there's probably no way to describe in words the traumatic effect of this event, nor on the larger community that he
was a part of. Mr. Moffett was very actively--he very actively participated in a series of events, starting with the theft of the car at his request by Elijah Moore; the takeover style robbery of the Raley's store and the bank window; the wild drive and crash in a nearby neighborhood; the confrontation [171 Cal.Rptr.3d 428] of a resident where Mr. Moffett told him, 'Stop or I'll cap you'; and the shooting of Officer Lasater by Mr. Hamilton shortly thereafter. [¶ ] Mr. Moffett's role was not a passive role nor was he a peripheral player as compared with those factual scenarios described in the cases cited by the defense in their sentencing memorandum.
" I will note that although we don't know exactly where Mr. Moffett was when Mr. Hamilton shot Officer Lasater, the police found gun residue on Mr. Moffett's hands, meaning that even if he did not fire the weapon, he was close to it when it was fired; shoe prints matching Mr. Moffett's ten feet away from where Officer Lasater fell; and Mr. Moffett's cell phone a few feet away from Officer Lasater. [¶ ] The actions taken that day by Mr. Moffett are not those of someone who didn't know what was going on or who was led by others.
" I've also considered Mr. Moffett's juvenile criminal history. There were four entries, [324 P.3d 252] including a felony, 245(a)(1) Penal Code, assault with a deadly weapon. It was noted that his performance on probation was marginal at best. The juvenile justice system has infinitely more resources than the adult system. And it appears those resources were not sufficiently taken advantage of to choose a different path.
" The actions taken by Mr. Moffett on the day of this event were not those of an irresponsible child. They were the very adult, very violent acts of a young man who showed no regard for the impact of his actions on the victim in this case. I might add that his actions on that day also have had a profound effect and directly affected his own family and loved ones. Although Mr. Moffett was slightly under eighteen years old at the time, his actions on that day, coupled with his criminal history, do not support, in my opinion, this Court exercising [its] discretion and sentencing him to a determinate term of twenty-five years to life. I do not find that sentence appropriate in this particular case under the circumstances of this case, taking into account everything that is in front of me. [¶ ] On Count 1, I will sentence Mr. Moffett to life without the possibility of parole."
Moffett again appealed. He argued, among other things, that a sentence of life without parole amounted to cruel and unusual punishment because he was not the actual shooter, did not intend to kill, and was a juvenile at the time he committed his crimes. He also argued that the trial court abused its discretion when it declined to impose the lesser sentence of 25 years to life under section 190.5(b).
After briefing was complete, the United States Supreme Court issued its decision in Miller, holding that mandatory life without parole for juveniles who commit murder violates the Eighth Amendment. In a supplemental brief discussing the impact of Miller, Moffett argued that the trial court had employed an unconstitutional presumption in favor of life without parole when exercising its sentencing discretion under section 190.5(b).
The Court of Appeal vacated Moffett's sentence and again remanded for resentencing. The Court of Appeal acknowledged that " [s]ection 190.5, subdivision (b) differs from the mandatory schemes found unconstitutional in Miller, because it gives the court the discretion to impose a term that affords the possibility of parole in lieu of an LWOP [(life without parole)] sentence." Nevertheless, the Court of Appeal reasoned, because section 190.5(b) has been judicially construed to establish a presumption in favor of life without parole, the statute " is contrary to the spirit, if not the letter, of Miller, which cautions that LWOP sentences should be 'uncommon' [171 Cal.Rptr.3d 429] given the 'great difficulty ... of distinguishing at this early age between " the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." ' " " Though Miller did not categorically bar LWOP sentences in juvenile homicide cases," the Court of Appeal observed, " it recognizes that juveniles are different from adults in ways that 'counsel against irrevocably sentencing them to a lifetime in prison.' [Citation.] Treating LWOP as the default sentence takes the premise in Miller that such sentences should be rarities and turns that premise on its head, instead placing the burden on a youthful defendant to affirmatively demonstrate that he or she deserves an opportunity for parole."
The Court of Appeal remanded the case to allow the trial court to consider " the appropriate sentence on the murder count without reference to a presumption in favor of LWOP." Further, the Court of Appeal said, " [o]ther comments by the court at the resentencing hearing convince us that remand is appropriate." The Court of Appeal noted that " a juvenile who ' " did not kill or intend to kill has a twice diminished moral culpability" ' " and instructed the trial court to " give appropriate weight to the fact that [Moffett] was a non-killer convicted under the felony-murder rule." (Quoting Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468], quoting Graham, supra, 560 U.S. at p. 69.) The Court of Appeal also observed that " the trial court placed great reliance on the trauma caused to the robbery victims" but cautioned that " the psychological reactions of the robbery victims do not say much about [Moffett's] maturity, prospects for reform, or mental state with respect to the [324 P.3d 253] homicide itself--the factors paramount under Miller ." Finally, the Court of Appeal observed that the trial court, in describing Moffett's criminal history, had " mistakenly characterized a juvenile adjudication for assault as a felony, when it was designated a misdemeanor."
On March 16, 2008, defendant Luis Angel Gutierrez was 17 years old and lived with relatives in Simi Valley. (In reciting these facts, we refer to members of the Gutierrez family, including defendant, by their first names in order to avoid confusion. Elsewhere we refer to defendant as Gutierrez.) Around 4:20 a.m., Luis's uncle, Abel Gutierrez, left for work. Abel's wife, Josefina Gutierrez, was asleep in their bed. Around 6:30 a.m., Abraham Gutierrez, Abel's nephew, heard someone open Josefina's bedroom door, which was unusual because Josefina normally slept late. Abraham got up, walked in the direction of the room, and saw Luis in the kitchen. Abraham noticed Luis's hand was bleeding and asked him what had happened. Luis said he had hurt his hand in a fight. Luis left the house about five minutes later.
Jose Luis Mendoza, Josefina's brother, later awoke and noticed blood on the floor of the living room and in the hallway leading to Abel and Josefina's bedroom. He opened the door and found Josefina's body lying facedown on the floor. A large knife protruded from her back, and there were 28 stab wounds in her back, side, stomach, face, neck, and fingers. There were also fresh bruises on her face and body. The cause of death was blood loss due to multiple stab wounds.
Luis sustained a severe wound to his hand and was admitted to the hospital for treatment. A sexual assault nurse examined Luis and found blood on the head of his penis, blood between his toes, and several hairs and fibers adhering to the bottom [171 Cal.Rptr.3d 430] of his feet. Subsequent DNA testing connected Luis to the crime scene and to Josefina. A blood pattern analyst who viewed photographs of Josefina's body saw a bloodstain on her back that might have been an imprint or a swipe, and it was possible that the shape was consistent with an erect male penis. A sperm fraction found on Josefina's body included a match to her husband, and Luis was excluded as ...