California Court of Appeals, Fourth District, Second Division
from the Superior Court of San Bernardino County No.
FVI04156, Eric M. Nakata, Judge.
for Juvenile Law and Policy, Loyola Law School, Sean K.
Kennedy, for Defendant and Appellant.
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.
RAMIREZ P. J.
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)),  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.
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.” We affirm.
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.)
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.
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.) 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.
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.
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.
Development of Statutory and Decisional Law Affecting
Sentences for Juveniles Convicted of Special Circumstances
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. 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.
(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.
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
as of 4/28/2016.)
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.
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