FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of Tulare County No.
VCF222534, Gary L. Paden, Judge.
P. Wallingford, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Kathleen A. Kenealy, Acting
Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General,
Daniel B. Bernstein, Peter H. Smith, and Stephanie A.
Mitchell, Deputy Attorneys General, for Plaintiff and
Victor Alexander Marquez was just four months shy of his 18th
birthday when he brutally murdered Maria Juarez by stabbing
and slashing her 19 times during an attempted robbery. Judge
Gerald F. Sevier presided over defendant's trial and
sentenced him to life without the possibility of parole
(LWOP) for special circumstance murder. While defendant's
original appeal was pending, the United States Supreme Court
decided Miller v. Alabama (2012) 567 U.S.
460 (Miller). Miller held that mandatory
LWOP sentences for juvenile homicide offenders violated the
federal Constitution's Eighth Amendment prohibition
against cruel and unusual punishment. In defendant's
first appeal, we recognized California does not provide for
mandatory LWOP sentences for minors convicted of murder, and
the sentencing court understood this aspect of its statutory
sentencing discretion. Nevertheless, we reversed the judgment
and remanded the matter to the trial court to reconsider
defendant's LWOP sentence after applying the
individualized sentencing criteria set forth in
Miller. (People v. Marquez (June
25, 2013, F063837) [nonpub. opn.].)
Gary L. Paden conducted the resentencing hearing. After
considering the Miller criteria, Judge Paden again
imposed an LWOP sentence. Defendant contends the trial court
misapplied the Miller criteria and argues his
sentence constitutes cruel and unusual punishment under the
Eighth Amendment. In supplemental briefing, defendant
contends Proposition 57, the Public Safety and Rehabilitation
Act of 2016 (Proposition 57) passed by the voters on November
8, 2016, applies retroactively to his case. Defendant argues
the initiative ended the practice employed here of allowing
the prosecutor to directly file a case involving a juvenile
offender in adult criminal court rather than first conducting
a suitability hearing as now required by the amended
provisions of the Welfare and Institutions Code. As we
explain in the unpublished portion of this opinion, the trial
court properly evaluated the Miller criteria. In the
published portion, we conclude the suitability hearing
provisions of Proposition 57 are not retroactive.
and First Sentencing Hearing
September 9, 2009, three months after Maria Juarez was
murdered, defendant was charged in an information as an adult
in criminal court pursuant to Welfare and Institutions Code
former section 707, subdivision (d)(1), with first degree
murder (Pen. Code, § 187, subd. (a)) committed during
the commission of a robbery (id., § 190.2,
subd. (a)(17)), a special circumstance. The information
alleged defendant personally used a deadly weapon in the
commission of his offense (id., § 12022, subd.
(b)(1)). This information was filed five weeks prior to
defendant's 18th birthday.
5, 2010, the trial court suspended proceedings pursuant to
Penal Code section 1368 to determine defendant's
competency to stand trial. On June 7, 2011, a jury found
defendant competent to stand trial, and the trial court
reinstated criminal proceedings.
September 14, 2011, a jury was impaneled. On September 20,
2011, the jury found defendant guilty as charged. In the
first appeal this court noted: “There is no doubt
[defendant] committed the murder. He confessed to the crime,
his DNA was found at the scene as the result of a wound he
suffered during the murder, and Juarez's and
[defendant]'s DNA was found on the murder weapon that was
hidden in his bedroom.” (People v. Marquez,
then withdrew his previous plea of not guilty by reason of
insanity. On October 19, 2011, the trial court imposed a
prison sentence of LWOP.
first appeal we held “[b]ecause Miller had not
yet been decided, the trial court sentenced [defendant]
without fully considering the implications of the Eighth
Amendment. Undoubtedly, the trial court considered some of
the Miller factors. It is clear, however, other
factors were not considered or were found to have little
weight in the sentencing decision, even though
Miller suggests otherwise. For these reasons, we
feel compelled to reverse the judgment and remand the matter
for resentencing to satisfy the constitutional concerns
raised by Miller.” (People v.
Marquez, supra, F063837.)
further advised the trial court: “On remand, the trial
court must give thorough consideration to the Miller
factors, many of which readily appear in this record.”
(People v. Marquez, supra, F063837.) These
included: (1) the “virtual unanimous conclusion of the
five mental health professionals” that defendant
suffered borderline intellectual functioning, substance
abuse, and psychiatric disorders, including posttraumatic
stress disorder, and schizoaffective disorder bipolar type,
(2) a long history of psychiatric treatment and prescribed
medication, (3) physical and emotional abuse detailed in
psychiatric evaluations, (4) the motive for the crimes, (5)
strong evidence of the “‘incompetencies
associated with youth'” that appear in the record,
including (a) defendant refusing to request the assistance of
counsel, (b) defendant providing the only evidence that
allowed the jury to find the special circumstance of robbery
to be true, (c) defendant confronting and refusing to assist
his attorney, thereby hampering his defense, and (d)
defendant refusing to attend most of the trial despite the
encouragement of the trial court and counsel to do so, and
(6) the possibility of rehabilitation, including
defendant's remorse, if any, and potential for growth and
change. (People v. Marquez, supra,
Officer's Report from 2014
was 22 years old when a new probation report was prepared.
Defendant admitted to the probation officer he was present
when Juarez was murdered, but others were present as well.
Defendant declined to say whether he personally stabbed
Juarez. Defendant expressed to the probation officer some
insight into the consequences of his actions, admitting he
“‘had it good'” before the crime and
subsequent incarceration. Defendant realized he lost the
opportunity to go to college and have a family life because
of the decisions he made. In 2009, defendant had told
officers he confronted Juarez because she had disrespected
him a few weeks earlier. Although defendant regretted the
crime, he did not directly admit his own culpability.
had three juvenile delinquency adjudications. In 2006, when
defendant was 14 years old, he had a seven-year-old girl
staying within the family home orally copulate him (Pen.
Code, § 288a, subd. (b)(1)). In 2008, defendant exposed
his erect penis to a female staff member of a group home
(id., § 314, subd. 1). Also in 2008, defendant
was adjudicated for committing battery on a female staff
member of a group home (id., § 242). Defendant
was on probation for these offenses when he murdered Maria
January 31, 2014, defendant and five other inmates allegedly
attacked another inmate in county jail. Defendant claimed the
victim had raped his cousin. The jail victim required two
staples to close the wound on his head. Defendant was charged
with felony assault by means likely to produce great bodily
injury (Pen. Code, § 245, subd. (a)(4)), felony battery
with serious bodily injury (id., § 243, subd.
(d)), and personal infliction of great bodily injury
(id., § 12022.7, subd. (a)). On March 29, 2014,
defendant and another inmate attacked a third inmate without
provocation. Defendant inflicted minor facial injuries and
was charged with misdemeanor battery (id., §
242). A confidential informant reported defendant was a bully
who had stolen canteen items from the victim during a fight a
few months earlier.
probation officer's report also included a discussion of
defendant's dysfunctional and abusive home environment.
Defendant never knew his father. Defendant and his siblings
raised themselves. Defendant's stepfather molested him
and his older half sisters. Defendant described his home
environment as angry, abusive, and full of drugs and gangs.
Juvenile probation reports, however, document that as a
minor, defendant received counseling to address his mental
health, sexual abuse, and anger management issues. Defendant
reported he was diagnosed with paranoid schizophrenia,
bipolar disorder, and attention deficit hyperactivity
disorder when he was very young. Defendant was taking
psychotropic medication until one month before murdering
Juarez. Defendant told the probation officer he stopped
taking his medications against the advice of medical staff
two and one-half years ago.
defendant was first interviewed by probation in 2011, he
chose not to comment about his involvement in this offense.
However, defendant asked the court for leniency based on the
fact he was only 17 years old when the crime was committed
and he had matured since then. When interviewed on July 1,
2014, defendant expressed remorse for his decisions, said he
was not the only person present during the homicide, and
declined to admit he personally stabbed the victim. Defendant
said at age 17, he could not fully appreciate the
ramifications and consequences of his actions.
expressly evaluating the Miller criteria and
applying them to defendant's case, the probation officer
noted defendant had little support from his mother, who
lacked basic parenting skills. Defendant's mother was
involved with drugs and dysfunctional relationships.
Defendant quit school in the tenth grade. Defendant's
juvenile adjudications began with a sex offense perpetrated
on a girl only seven years old. Defendant had other juvenile
adjudications and a history of fights while detained as a
juvenile. The probation officer noted the abuse defendant
suffered as a child, but observed defendant still had not
expressed remorse or accepted personal responsibility for
probation officer asked whether defendant “is that rare
juvenile described by the Miller court whose crime
and background reflects his or her irreparable
corruption.” The probation officer concluded
defendant's crimes as a juvenile, including the instant
offense, involved a clear pattern of violence against women;
his institutional conduct as a juvenile prior to his
conviction also reflected a pattern of violence and open
disobedience of authority figures. Furthermore, defendant was
on juvenile probation when he committed the instant offense.
Defendant received counseling to address his mental health
and sexual deviance issues. Despite rehabilitative efforts,
defendant continued his pattern of assaultive behavior and
murdered Juarez. The probation officer concluded defendant
was not amenable to rehabilitative services offered to him as
a juvenile and met the threshold of a juvenile who could be
given an LWOP sentence under Miller.
Testimony Concerning Defendant's Mental State
and clinical psychologists testified at defendant's
competency trial in February 2011. A psychiatrist and
clinical psychologist testified at defendant's trial.
Judge Paden read the transcripts of these proceedings in
preparation for defendant's resentencing hearing. We
summarize this testimony as follows.
Michael Barnett, a psychiatrist, treated defendant in 1997
and 1998. Defendant was taking Ritalin, but Dr. Barnett
thought he needed a higher dosage. Dr. Barnett did not
initially observe defendant having psychotic or suicidal
ideation, but did find him talkative, hyperactive, and noisy.
Two months after first seeing defendant, Dr. Barnett
prescribed the mood stabilizer Depakote to control
defendant's impulsive and aggressive behavior. Defendant
was acting wild and had angry outbursts. Defendant was
hitting his head and pulling out his hair, which could be
signs of suicidal ideation. Dr. Barnett added Imipramine as a
medication for defendant's attention deficit disorder and
increased his dosage of Ritalin.
January 1998 and April 1998, defendant was fighting,
manipulating his parents, and had fears about going to
school. Dr. Barnett prescribed Mellaril to decrease
defendant's hyperactivity and aggressive behavior.
Defendant was taken to the emergency room because he was
hurting himself. He was also running into the street when
cars were coming. Defendant was urinating and defecating in
his pants. Defendant reported psychotic symptoms, including
hearing voices. Dr. Barnett began a course of the
antipsychotic medication Stelazine and increased the dosage.
1998, however, Dr. Bartlett was concerned defendant could be
having a severe anxiety problem rather than psychosis. Dr.
Bartlett was also concerned defendant's mother was doing
something to provoke the psychotic symptoms. Dr. Barnett
thought something may have been happening to cause defendant
to regress. In August 1998, Dr. Bartlett prescribed defendant
Seroquel, another antipsychotic. In November 1998, defendant
again presented psychotic symptoms, such as hearing voices,
and he pulled a knife on his sister. Dr. Barnett prescribed
Zyprexa for defendant. In December 1998, Dr. Barnett found
defendant was sleeping better and was going to school two
hours a day; he denied any psychotic symptoms. Dr. Barnett
explained people with psychosis can require medication their
entire lives; without treatment, their symptoms could recur.
Kalechstein, a licensed psychologist with specialized
training in neuropsychology and forensic psychology,
testified as a defense expert. Dr. Kalechstein met defendant
twice and administered multiple tests to evaluate his
competency to stand trial. Dr. Kalechstein found
defendant's overall IQ was 70, which was in the
intellectually impaired range, and his verbal skills were 74,
in the borderline impaired range. Defendant had the English
language skills of a fourth grader. Dr. Kalechstein found
impairment in defendant's ability to understand and
appreciate his circumstances as related to his case.
Defendant tested in the low range for ability to remember
verbally presented material and the low average range for
Kalechstein disagreed with another doctor who had found
defendant was malingering. Dr. Kalechstein found defendant
had a history of mental illness predating the case. Dr.
Kalechstein thought defendant suffered one or two traumatic
brain injuries as a little boy. Dr. Kalechstein concluded
defendant was developmentally disabled and unable to retain
information in a mainstream learning environment. Dr.
Kalechstein did not believe use of drugs and alcohol
contributed to defendant's developmental disability or
his low IQ.
and clinical psychologist Dr. Richard Kendall was appointed
by the court to evaluate defendant's competency to stand
trial. During his entire evaluation of defendant, Dr. Kendall
did not detect any evidence of disorganized thinking or gross
cognitive impairments. Dr. Kendall observed no delusions or
hallucinations by defendant. Defendant did not present
himself as someone with a bona fide serious psychotic
illness. Dr. Kendall believed defendant was malingering and
did not believe defendant's description of visual
hallucinations was sincere. Furthermore, defendant had a
history of substance abuse, including use of alcohol,
marijuana, methamphetamine, cocaine, and Ecstasy. According
to Dr. Kendall, it was not uncommon for individuals using
these drugs to have brief periods where they experience
auditory and visual hallucinations.
Kendall reviewed Dr. Kalechstein's report and noted that
even with a low IQ, defendant was not necessarily incompetent
to stand trial. Defendant was twice admitted to hospitals,
once in 2001 and again in 2003, for mental health
commitments. Dr. Kendall agreed defendant had a significant
history of being treated for mental illness but still
concluded defendant was “attempting to malinger
psychiatric impairment” because he displayed no
psychiatric impairment during his evaluation.
Richard Berkson, a staff psychiatrist at Corcoran State
Prison, was also appointed to evaluate defendant's
competency to stand trial and testified not at the sanity
hearing but at defendant's trial. Dr. Berkson evaluated
defendant in April 2011, when he was 19 years old. Dr.
Berkson acknowledged defendant had volunteered he was
severely abused as a child and had a history of psychiatric
treatment that included hospitalization.
his evaluation of defendant, Dr. Berkson asked him if it
would be more advantageous for defendant to be found
competent or incompetent. Rather than answer the question,
defendant walked out of the evaluation. Although Dr. Berkson
did not complete a full history and mental status
examination, he evaluated defendant for 45 minutes and
believed he had enough information to form an opinion of
defendant's competency to stand trial. Dr. Berkson found
defendant to be of average intelligence and able to respond
appropriately to his questions. Defendant understood the
nature of the proceedings against him, the consequences of a
guilty verdict, and the roles of participants in criminal
proceedings. Defendant had the ability to cooperate with his
counsel in a rational manner. Dr. Berkson concluded defendant
was competent to stand trial.
Berkson found defendant's description of auditory
hallucinations credible, but not his description of visual
hallucinations. Defendant's description of a sudden onset
and then a cessation of hallucinations is not what happens to
patients clinically. Dr. Berkson believed defendant was
exaggerating his hallucinations to the point of being
told Dr. Berkson he was not responsible for the crime because
he could not remember anything. Although defendant did not
know if he committed murder, if he had done so, it was
because his doctor had taken him off his medications.
Defendant also blamed his actions on his mental health
disorder, his lack of medications, and his molestation as a
child. Defendant repeatedly wanted to talk about the crime.
It appeared to Dr. Berkson that defendant wanted to present
himself as not guilty by reason of insanity. Dr. Berkson
could find no evidence defendant suffered from a psychosis.
Berkson observed signs of a borderline personality disorder
with antisocial features. Dr. Berkson thought defendant had
some delusional thinking. Dr. Berkson found defendant had
extremely limited insight and blamed others for his illness
or his own actions. Dr. Berkson found this history consistent
with posttraumatic stress disorder, which explained
defendant's emotional numbing, nightmares, disturbed
sleep, and hyperactivity. Dr. Berkson found no clear evidence
defendant was developmentally disabled. During the evaluation
process, Dr. Berkson found defendant's thought process to
be logical and coherent.
Yoseph Geshuri, a clinical psychologist, testified for the
defense. Dr. Geshuri was asked to assume a person had
experienced physical or emotional abuse and had developed
anxiety or suicidal thoughts. Dr. Geshuri explained it would
not be inconsistent for a person like that who also abused
drugs and alcohol to experience a blackout in a stressful
situation. Defendant's description of the murder was the
type of stressful situation that might cause a blackout.
beginning of the resentencing hearing on October 22, 2014,
defendant told Judge Paden he had asked his attorney not to
present any further evidence because “you really
can't defend undefendible [sic], … you
can't justif[y] unjustifiable.” Defendant
apologized for “everything” he had done.
Defendant said he knew he hurt the family but had been intent
on holding onto his anger to protect himself. Defendant
explained to the court he intended to waive his right to
appeal, accept responsibility for his actions, and
“accept the sentence as handed down as
justifiable.” Defendant said he was “at
peace” with his decision, and Juarez's
“family need[ed] justice.” Defense counsel stated
he would “respect my client's wishes, and I'm
going to submit.”
to imposing its sentence, the court discussed the factors
that informed its decision to resentence defendant to LWOP,
noting a “huge, huge factor” in its sentencing
decision was defendant's prospect for rehabilitation. The
court observed that since defendant had been returned to
county jail, he had three new assault cases at the jail, one
felony and two misdemeanors. The court found defendant was
continuing a pattern of violent, aggressive behavior, and it
appeared defendant failed to show rehabilitation, which was a
major factor to the court. The court also discussed the
testimony of the mental health experts who testified at
defendant's competency trial and at trial. The court
recognized there was no question defendant “grew up in
a … troubled and very difficult childhood.” The
court cited Dr. Barnett's testimony as providing evidence
defendant had taken antipsychotic medications while growing
up, and defendant had “anger issues, antisocial
behavior from a very early age.”
court found Dr. Kalechstein's opinion helpful because it
provided evidence defendant had some impairments regarding
intellectual capacity, which reduced his reasoning and
understanding. Dr. Kalechstein also testified defendant had a
serious mental illness and was developmentally disabled with
a borderline impaired IQ. Dr. Kalechstein, however, disagreed
with other doctors who testified defendant was malingering.
court found Dr. Kendall's testimony informative based on
defendant's description of his involvement in the crime.
Defendant told Dr. Kendall he did not commit the crime, he
was innocent, somebody else did it, and defendant tried to
stop the crime. The court also noted Dr. Kendall testified