People v. Gibson

         APPEAL from the Superior Court of San Bernardino County No. FVI04156, Eric M. Nakata, Judge.

          Center for Juvenile Law and Policy, Loyola Law School, Sean K. Kennedy, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          RAMIREZ P. J.

         In 1996, defendant Clifton Lee Gibson was tried as an adult and convicted of first degree murder with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)), ^[1] assault with a firearm (§ 245, subd. (a)(2)), and robbery (§ 211), which were committed when he was 17 years old, with two adult codefendants. He was ultimately sentenced to life without possibility of parole (LWOP) for the murder, consecutive to a determinate term of 12 years, four months, in prison. In 2014, he filed a petition to recall his sentence pursuant to section 1170, subdivision (d)(2), which was denied by the trial court on the ground he failed to demonstrate he had been rehabilitated or that he was remorseful. Defendant appealed.

         On appeal, defendant argues the trial court (1) improperly limited applicability of section 1170, subdivision (d)(2) relief to juvenile defendants who did not actually kill the victim; (2) abused its discretion in denying the petition despite evidence to support the existence of all the statutory factors; and (3) “flouted Miller and Gutierrez.”^[2] We affirm.

         Background

         The facts of the crime are taken from our opinion in the original appeal filed by defendant following his conviction (People v. Gibson (Sept. 9, 1998, E019971) [nonpub. opn.]): On June 8, 1994, in Big Bear, California, defendant, his brother Daniel, and a friend Jeffory Paxton approached a station wagon in which four men were sleeping. (Typed opn., p. 3.) The defendant and his companions wanted money for gas. (Ibid.) Paxton banged on the driver’s side window with a cocked nine millimeter gun and demanded the men’s wallets. (Ibid.) The men complied with Paxton’s request offering no resistance. (Ibid.) Paxton’s gun discharged, and subsequently defendant fired a shot from his.22 revolver. (Ibid.) The bullet from defendant’s revolver struck and killed one the men, while the bullet from Paxton’s gun struck another of the men, who suffered permanent injuries. (Ibid.)

         After the shooting, defendant and his companions drove away, crashing their car during their flight. (People v. Gibson, supra, E019971, p. 3.) At the time of the shooting, defendant was 17 years old, and had no prior criminal record. (Ibid.) Defendant alleged Paxton was the ringleader and primary participant in the crime. (Ibid.)

         Defendant was charged with murder with special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(17) [felony murder], count 1); attempted murder (§§ 664, 187, subd. (a), count 2); and robbery (§ 211, count 3). It was further alleged that in the commission of all three counts, defendant and Paxton personally used a firearm (§ 12022.5, subds. (a) & (d)), and that defendant and Paxton personally inflicted great bodily injury as to the robbery victim. (§ 12022.7.)^[3] Following a jury trial, defendant was convicted of first degree murder with a true finding of the felony-murder special circumstance, assault with a firearm (§ 245, subd. (a)(2)) as a lesser offense within attempted murder on count two, and robbery. Defendant was sentenced to LWOP on count one, consecutive to a determinate sentence of 18 years, four months for the balance of the convictions and enhancement allegations.

         In 1998, on direct appeal, the convictions were affirmed, but the matter was remanded for resentencing to correct the improper imposition of multiple enhancements for count three. (People v. Gibson, supra, E019971, p. 9.) On remand, defendant was resentenced to LWOP followed by consecutive determinate term of 12 years, four months, for the balance of the convictions and enhancement allegations.

         On April 25, 2014, defendant filed a petition for recall of his sentence pursuant to section 1170, subdivision (d)(2). The People opposed the petition. After an evidentiary hearing, the court denied the petition. The court concluded that section 1170, subdivision (d)(2) applied to an aider and abettor, or the nonkiller, and found that defendant did not establish he had been rehabilitated or that he felt remorse. Defendant appeals this ruling.

         Discussion

         1. Development of Statutory and Decisional Law Affecting Sentences for Juveniles Convicted of Special Circumstances Murder.

         In order to provide context for our discussion, we provide a brief review of the statutory enactments and landmark decisions which govern our analysis. We begin with the year of defendant’s offense, 1994.^[4] At that time, Penal Code section 190.5, subdivision (a), prohibited the imposition of the death penalty upon any person who was under the age of 18 at the time of the commission of the crime.

         Subdivision (b) of section 190.5 provided that “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, 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.” Prior to 2014, this section was interpreted to mean that 16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1141 [overruled by Gutierrez, supra, 58 Cal.4th at pp. 1370-1371].) Defendant was sentenced to LWOP two years after the Guinn decision was published.

         In 2010, the United States Supreme Court decided that the Eighth Amendment prohibited the imposition of a life-without-parole sentence on a juvenile offender who committed a non-homicide crime and, while the defendant need not be guaranteed eventual release from the life sentence, he must have some realistic opportunity to obtain release before the end of the life term. (Graham v. Florida (2010) 560 U.S. 48, 74-75 [130 S.Ct. 2011, 176 L.Ed.2d 825].) Also in December 2010, State Senator Yee introduced Senate Bill 9 to the California Senate, an act to amend Penal Code section 1170, adding subdivision (e)(1). (Later renumbered § 1170, subd. (d)(2), with modifications.) This amendment permitted persons who were under the age of 18 at the time of the commission of an offense for which the defendant was sentenced to LWOP to petition for recall and resentencing after serving not less than 10 years, nor more than 15 years of that term as of January 1, 2012. (Stats. 2012, ch. 828, § 1; see http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0001-0050/sb_9_bill_20101206_introduced.pdf, as of 4/28/2016.)

         On June 25, 2012, the United States Supreme Court revisited the issue of LWOP sentences for juveniles in holding that the Eighth Amendment forbade a sentencing scheme that mandated LWOP for juvenile offenders convicted of first degree murder because it precludes consideration of the juvenile’s chronological age and its hallmark features. (Miller v. Alabama, supra, 132 S.Ct. at pp. 2455, 2468-2469.) In so holding, however, the Supreme Court cautioned that “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a life time in prison.” (Id., 132 S.Ct. at p. 2469.) In other words, the “categorical bar” on LWOP terms for juveniles applied “only to non-homicide crimes.” (Id., 132 S.Ct. at p. 2465.)

         On September 30, 2012, the Legislature enacted Senate Bill No. 9, which went into effect on January 1, 2013. In its final version, the provision affecting juveniles sentenced to LWOP was renumbered as section 1170, subdivision (d)(2), and a defendant could bring a petition for recall and resentencing after serving 15 years, rather than 10, as in the original version. Effective January 1, 2014, the Legislature passed Senate Bill No. 260, which added sections 3051, 3046, subdivision (c), and 4801 to the Penal Code. That section requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20thy, or 25th year of a juvenile offender’s incarceration, depending on the ...