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In re Willover

California Court of Appeals, Sixth District

April 16, 2015

In re NORMAN WILLOVER, on Habeas Corpus.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[As Modified Apr. 24, 2005]

Monterey County Super. Ct. Nos. SM980198B, HC7940

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COUNSEL

Lawrence Gibbs, under appointment by the Court of Appeal, for Petitioner Norman Willover.

Rene A. Chacon, Deputy Attorney General, for Respondent the People.

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OPINION

BAMATTRE-MANOUKIAN, ACTING P.J.

I. INTRODUCTION

In 1999, petitioner Norman Willover was convicted after jury trial of two counts of first degree murder (Pen. Code, § 187, subd. (a)), [1] attempted premeditated murder (§§ 664, 187, subd. (a)), aggravated mayhem (§ 205), and giving false information to a peace officer (§ 148.9, subd. (a)). The jury also found true various special circumstances and firearm enhancements. (§§ 190.2, subd. (a)(3), (17) & (21), 12022.53, subd. (d), 12022.55.) The trial court sentenced petitioner, who was 17 years old at the time he committed the offenses, to two consecutive terms of life without possibility of parole (LWOP) for the murders, a consecutive term of 15 years to life for the attempted premeditated murder, and two consecutive terms of 25 years to life for the allegations that he personally discharged a firearm causing great bodily injury or death. The trial court stayed the terms for the remaining counts and enhancements.

Petitioner appealed following his convictions, and this court modified the judgment to reflect that petitioner’s sentence for the attempted premeditated murder was life with the possibility of parole instead of 15 years to life. (People v. Willover (Oct. 19, 2000, H019899) [nonpub. opn.].)

In March of 2014, petitioner filed a petition for writ of habeas corpus in this court, arguing that he is entitled to be resentenced. Petitioner contends that at his sentencing hearing in 1999, the trial court improperly presumed that LWOP was the appropriate sentence for the murders pursuant to section 190.5, subdivision (b), in violation of Miller v. Alabama (2012) 567 U.S. __ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), which held 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.’ ” (Id. at p. ___ [132 S.Ct. at p. 2460].) For reasons that we shall explain, we will vacate petitioner’s sentence and remand the matter for resentencing.

II. Background[2]

A. The Underlying Offense

In December of 1997, petitioner purchased a.22-caliber pistol in Utah after leaving a residential treatment center without authorization. Petitioner stated

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that he intended to use the firearm to rob and kill people and to settle scores with rival gangs. Petitioner then traveled to Monterey, where he obtained ammunition, loaded his gun, and drove around with three other young people.

After arriving at the Monterey Wharf on January 31, 1998, petitioner fired nine shots at Priya Mathews and Jennifer Aninger, who were drinking coffee and talking. Four bullets hit Mathews and two bullets hit Aninger. Aninger survived the shooting, but Mathews died at the scene. Following that shooting, petitioner and his three companions drove to Seaside in another car. Petitioner permitted the driver of the car to use his firearm to shoot and kill Frances Olivo, who was walking on the sidewalk.

Petitioner was subsequently convicted of two counts of first degree murder (§ 187, subd. (a)), attempted premeditated murder (§§ 664, 187, subd. (a)), aggravated mayhem (§ 205), and giving false information to a peace officer (§ 148.9, subd. (a)). The jury found true special circumstance allegations: multiple murders (§ 190.2, subd. (a)(3)); murder during the commission of attempted robbery (id., subd. (a)(17)); and drive-by shooting (id., subd. (a)(21)). The jury also found true allegations that petitioner personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and intentionally inflicted great bodily injury or death as a result of discharging a firearm from a vehicle during the commission of a felony or attempted felony (§ 12022.55).

B. Sentencing Hearing

Prior to petitioner’s sentencing hearing in 1999, the prosecution filed a statement in aggravation, in which it cited People v. Guinn (1994) 28 Cal.App.4th 1130 [33 Cal.Rptr.2d 791] (Guinn) for the proposition that, pursuant to section 190.5, subdivision (b), [3] LWOP was the presumptive sentence for a special circumstance murder committed by a 16- or 17-year-old juvenile. The prosecution further argued that there were numerous aggravating circumstances, relating to both the offense and the offender, and no circumstances in mitigation. (See Cal. Rules of Court, former rules 421 & 423.) The prosecution argued that petitioner had been “feign[ing] or exaggerat[ing] purported symptoms of mental illness in order to avoid being held accountable for his conduct.” The prosecution contended that there was no justification for ever allowing petitioner to be released back into society: “If

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[petitioner] is granted the possibility of parole, he stands a chance of being released... at a relatively young age... [where] there will be new generations of innocent people who would be exposed to the calculated but random ...


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