People v. Smith CA5

Filed 10/20/22 P. v. Smith CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082127
Plaintiff and Respondent,
(Super. Ct. No. F11906258)
v.
KYLIN DION SMITH, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Stephanie A. Mitchell, Deputy Attorneys General, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
*Before Levy, Acting P. J., Detjen, J. and Peña, J.
INTRODUCTION
Defendant Kylin Dion Smith was convicted by a jury in 2015 of the first degree
murder of Felipe Atilano (Pen. Code, § 187, subd. (a); count 1), the attempted second
degree robbery of Atilano (§§ 664, 211; count 2), and the attempted second degree
robbery of Isidro Madera (§§ 664, 211; count 4). (Undesignated statutory references are
to the Penal Code.) As to count 1, the jury found true an aggravating circumstance
alleging the murder was committed during the commission of a robbery (§ 190.2, subd.
(a)(17)(A)), and a circumstance alleging defendant was 17 years old at the time of the
murder. As to all counts, the jury found true an allegation a principal personally
discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)).
In a bifurcated proceeding, the court found true an allegation that defendant had
committed all counts for the benefit of, at the direction of, or in association with, a
criminal street gang within the meaning of section 186.22, subdivision (b)(1).
The court sentenced defendant to life without the possibility of parole (LWOP) on
count 1, plus a term of 25 years to life for the firearm enhancement. On count 4, the
court sentenced defendant to two years six months, with a term of 25 years to life for the
firearm enhancement. The court imposed and stayed punishment on count 2 and stayed
punishment on the gang enhancements attached to all counts.
In defendant’s original appeal, our court concluded the record was ambiguous as
to whether the trial court had applied the Miller v. Alabama (2012) 567 U.S. 460 (Miller)
sentencing factors when sentencing defendant to an LWOP term. Our court also
concluded defendant’s sentences on counts 2 and 4 were unauthorized, section 664 was
inapplicable to convictions for second degree robbery, and the court was required to
impose a full-term sentence for the stayed sentence in count 2. Finally, we conditionally
reversed the judgment and remanded pursuant to Proposition 57, the Public Safety and
Rehabilitation Act of 2016.
2.
Thereafter, the juvenile court held a transfer hearing at which the judge ruled
defendant was not suitable for juvenile court jurisdiction. Defendant’s convictions were
reinstated and the matter was returned to the trial judge for resentencing pursuant to the
Miller factors. A resentencing hearing was held in November 2020, during which the
trial judge reimposed the LWOP sentence and declined to strike defendant’s firearm
enhancements pursuant to Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620).
The court also imposed the full middle term sentence of two years plus an additional 25
years to life for the firearm enhancement on both counts 2 and 4, staying the sentence on
count 2.1 The court did not impose a section 1202.45 parole revocation fine in light of
defendant’s LWOP sentence for the murder conviction.
In this appeal, defendant challenges his LWOP sentence, asserting the court
misapplied the factors of Miller as well as those of People v. Gutierrez (2014) 58 Cal.4th
1354; the sentence is not supported by the record; and his sentence violates his federal
right to due process and the Eighth Amendment right to be free of cruel and unusual
punishment because he has shown he is capable of rehabilitation.
We modify the judgment to include a parole revocation fine pursuant to section
1202.45 and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Facts
The following statement of facts is a partial excerpt from this court’s prior
unpublished opinion in People v. Kylin Dion Smith (May 4, 2018, F072701):
“Prosecution’s Case
“The Murder of Felipe Atilano
“On October 2, 2011, at around 6:00 a.m., police responded to a
single story apartment complex in southwest Fresno commonly referred to
1The court also imposed and stayed an additional five-year term under section 186.22,
subdivision (b)(1) as to each count.
3.
as ‘the Brownies.’ Upon arrival, police discovered Felipe Atilano lying
face down next to a minivan. Atilano had been shot in the head.
“Atilano worked in agriculture outside of Fresno. He had been paid
the day before and had immediately cashed his $400 or $450 check. Police
observed Atilano’s pants pockets had been turned inside out and loose
change was scattered around his body. Atilano was transported to the
hospital. He died as a result of his injury. An autopsy revealed Atilano had
been shot at close range behind his left ear.
“Law enforcement processed the minivan for evidence. A .380–
caliber bullet was discovered around the passenger’s side of the vehicle. In
addition, the van’s glove box was open and the owner’s manual, vehicle
registration, and insurance information were found on the floorboard of the
van.
“Detective Andre Benson was assigned to investigate Atilano’s
murder. Benson had received anonymous phone calls identifying the
potential suspects as Walter King and a light-skinned Black male named
‘Kyle.’ The tip indicated Kyle was from Los Angeles and was involved
with a gang called the Hoover Crips. A latent fingerprint lifted from the
owner’s manual found in the minivan was subsequently matched to
defendant.
“The Shooting of Isidro Madera
“On the evening of October 14, 2011, 70–year–old Isidro Madera
was returning from the Family Food Market near his home in southwest
Fresno when he was confronted by a young, light-complected, Black male.
The male, a teenager, demanded Madera’s wallet. Madera saw six more
Black male youths standing nearby. Madera responded ‘[he] didn’t have
money,’ and stated, ‘All I have is sodas.’ The teen grabbed the bag and put
his foot in front of Madera, attempting to trip him.
“Two additional youths approached and one began kicking Madera.
The light-complected male pulled out a handgun and fired nine shots at
Madera. Madera was struck multiple times, sustaining injuries to his wrist,
groin, and legs. The group fled.
“Madera retreated back to the store to seek help. He was transported
to the hospital. Madera survived his injuries but sustained permanent
damage affecting the use of his hand and his ability to walk.
4.
“Detective Conrado Martin was assigned to investigate Madera’s
shooting. Based on reports by responding officers and an anonymous tip,
Martin drove to the Summer Hill apartment complex, located just yards
away from the Family Food Market. He reviewed security camera footage
of the complex recorded the day of the shooting. The footage showed a
group of Black teens—defendant, King, Keba Young, Keifer McKinney,
Freddie Wilson, and Donte Erby-Bail—walk through the apartment
complex, jump a back fence, and begin heading in the direction of the
Family Food Market shortly before the shooting.
“Martin was aware of Benson’s investigation of Atilano’s murder.
During the course of the investigation, Martin received information
indicating the same parties had been involved in both crimes.
“Police Questioning
“On October 27, 2011, Detectives Benson and Martin questioned
defendant. When Benson asked about the shooting of Atilano, defendant
claimed to have been at his residence not far from the shooting. At about
2:30 a.m., he had left his home to purchase marijuana. While out,
defendant ran into his friend, King, and John Luke, a member of the local
Strother gang. Defendant told Benson that King asked him to act as a
lookout during a ‘lick,’ which defendant understood to mean a robbery.
Defendant agreed.
“The three entered the Brownies apartment complex and observed a
male seated behind the wheel of a parked minivan. Defendant saw King
open the driver’s side door of the van using his sleeve. John Luke pointed a
handgun at the man inside, who appeared to be drunk or sleeping.
Defendant turned away and heard a pop. When he looked back, he saw
John Luke hand the gun to King and then pull the victim onto the ground.
“Defendant approached the victim’s body and began checking the
victim’s pockets. John Luke discovered some money in the victim’s front
pocket. The group fled the scene. Defendant claimed he did not receive
any of the money taken from the victim.
“With respect to the Madera shooting, defendant told detectives he
was at the Summer Hill apartment complex ‘hanging out’ with a group of
people, including Zombie, Active, Lil Tonio, Lil Walt (King), Freddie
Wilson, Paul, and Tae Tae. The group walked to Anybody’s Market to buy
‘blunt wraps’ and then continued to the Family Food Market. Lil Tonio
stated, ‘I’m gonna catch a Mexican leaking,’ which meant he was going to
rob a Mexican individual. Defendant protested the idea.
5.
“When an elderly Mexican man exited the market, Zombie pulled a
gun on the man and demanded he ‘give it up.’ Active tried to hit the man.
The victim swung a bag of bottles to defend himself and hit one of the
attackers. According to defendant, Zombie raised his gun and fired at the
victim multiple times.
“Detectives asked defendant how many times his group had
previously robbed a Mexican person. Defendant eventually admitted
‘about two or three times.’ When detectives told defendant they believed
he was lying about his version of events, he agreed. Defendant then
claimed Active had approached the victim with a gun. Defendant told
detectives he watched the incident while Active, Wilson, and Keba Young
participated in the robbery and attack. Defendant remained firm that Active
was the shooter.
“Benson and Martin questioned King separately, and then
questioned King and defendant jointly. King confirmed everything he had
stated in his individual interview had been truthful. Defendant, on the other
hand, admitted he made up the name ‘John Luke’ and that only he and King
were present during Atilano’s murder. Defendant continued to deny
responsibility for the shooting, asserting, ‘Point blank … I didn’t shoot
him.’ He insisted King had pulled the trigger. King continued to insist
defendant ‘did it.’
“Defendant admitted to searching Atilano’s pockets following the
shooting, and he told detectives he rummaged through the minivan. He
maintained he did not take any money from the victim.
“Detective Martin then separately interviewed defendant about the
Madera shooting. Defendant told Martin that King had suggested robbing
Madera, and defendant had only ‘told [Madera] to give it up.’ Defendant’s
cousin, Erby-Bail, swung at Madera and the victim swung back. In
response, defendant aimed his handgun at Madera’s legs and fired. After
the shooting, defendant gave the firearm to Young, who disposed of it.
“When asked how many other times he and his friends had robbed
Mexican individuals at that location, defendant told detectives, ‘I did it two
times.’ Defendant apologized for having given detectives ‘bullshit this
whole time,’ explaining he could only expect King to ‘man up’ about
having shot Atilano if he (defendant) ‘man[ned] up’ to having shot Madera.
6.
“Defense’s Case
“Defendant testified in his own defense at trial. He stated he moved
from Texas to Fresno in 2011 to live with his sister. He came to Fresno so
he could graduate from high school. Defendant explained King,
McKinney, Erby-Bail, and Young were relatives.
“On October 2, 2011, King called defendant and asked if he wanted
to ‘hit a lick’ at a nearby store. Defendant declined. Later that night, King
called defendant and stated he ‘found another lick’ at the Brownies
apartment complex. Defendant met King at the Brownies. They attempted
to enter an open window of one of the units, but left when they saw
someone inside. The two argued about ‘trying to get a lick,’ until they
agreed to find a car to break into.
“While in the parking lot, they came upon a van with music playing
inside. A man was sleeping in the driver’s seat. Defendant quietly opened
the passenger’s side door of the vehicle and began rifling through the glove
box and shuffling through some papers. He determined there was nothing
in the van to steal.
“As defendant was walking around the back of the van, he heard a
single gunshot. He saw King pull Atilano from the van and begin
rummaging through Atilano’s pockets. Defendant asked King what he was
doing; King told him to shut up. Defendant took off running.
“On October 14, 2011, just a few weeks later, defendant was
hanging out with King, Erby-Bail, Young, Wilson, and McKinney at the
Summer Hill apartments. The group went to a nearby market to purchase
some blunt wraps. Erby-Bail suggested robbing a Mexican man heading
from the store in their direction. As Madera approached, Erby-Bail walked
out in front of him and demanded his money. Defendant and Young came
around the man’s side, and defendant took a swing at him. The man swung
his shopping bag in defense. Defendant heard a gunshot, he stepped back
and saw Erby-Bail fire six or seven shots at Madera. Defendant denied
shooting Madera.
“With respect to his prior statements to the detectives, defendant
claimed he told the detectives that a man named ‘John Luke’ had killed
Atilano because he wanted to protect King. However, when defendant
realized King was trying to blame him for the murder, he told the detectives
the truth.
7.
“As to the shooting of Madera, defendant admitted he had lied about
the fact that men named ‘Zombie’ and ‘Active’ had shot Madera. He
claimed he falsely admitted to the shooting to protect his cousin, Erby-Bail.
Defendant felt guilty because he was the person who had encouraged Erby-
Bail to move to Fresno. Defendant denied shooting Madera.”
Relevant procedural history
In 2015, a jury convicted defendant of first degree murder of Atilano (count 1) and
found true a section 12022.53, subdivisions (d) and (e)(1) enhancement and a robbery-
murder special circumstance (§ 190.2, subd. (a)(17)(A)) related to that count. The jury
also convicted defendant of two counts of attempted second degree robbery (counts 2 and
4 related to Atilano and Madera, respectively) and found true section 12022.53,
subdivision (d) and (e)(1) enhancements as to both counts. The trial court also found true
section 186.22, subdivision (b)(1) enhancements attached to the murder and attempted
robbery counts. The jury acquitted defendant of the attempted murder of Madera (count
3). The court sentenced defendant to LWOP on the murder count plus 25 years to life for
the firearm enhancement. The court also sentenced defendant for the attempted robbery
of Madera (count 4) to two years six months plus an additional term of 25 years to life for
the gun enhancement. The sentences for defendant’s attempted robbery conviction
related to Atilano (count 2) and the gang enhancements were imposed and stayed.
Defendant appealed.
In the first appeal, our court remanded the matter, concluding the record was
insufficient to establish the trial court had applied all of the Miller sentencing factors
when sentencing defendant to an LWOP term. Our court also concluded defendant’s
sentences on counts 2 and 4 were unauthorized. We held section 664 was inapplicable to
convictions for second degree robbery, and the court was required to impose a full-term
sentence for the stayed sentence in count 2. Finally, we conditionally reversed the
judgment and remanded pursuant to Proposition 57.
8.
Transfer Hearing
Upon remand, a juvenile court held a transfer hearing pursuant to Welfare and
Institutions Code section 707. The People submitted a transfer hearing report by the
probation department dated September 17, 2018, and the original report by the probation
department dated October 29, 2015, and submitted on the facts. They argued, at the
transfer hearing, the court was to “consider the facts as they occurred at the onset,” so any
conduct subsequent to defendant’s conviction was irrelevant to the court’s determination.
The court sustained this objection.
The defense submitted a report by Dr. Richard Blak, Ph.D. who also testified as a
witness at the hearing. Dr. Blak reviewed the facts of the case through the probation
officer’s report and police department reports, read documentation from correctional
officers and psychologists in the prison, conducted a mental status evaluation
administered by the Wechsler Adult Intelligence Scale to determine defendant’s
intellectual functioning, and administered the Millon Clinical Multiaxial Inventory to
“determine the extent of any psychological disturbance or mental health issues.”
Dr. Blak also spoke to defendant’s sister and his aunt, who defendant lived with on two
different occasions, through whom he “[g]ot some family history and some ideas about
[defendant’s] developmental issues.” Dr. Blak did not look at the original probation
report or review the transcripts of interviews conducted with defendant after the crimes,
our court’s opinion from defendant’s first appeal, defendant’s education records, his
juvenile records from Texas, or the police reports in the case beyond what was included
in the probation officer’s transfer report. Dr. Blak also did not interview any of the
codefendants involved in the crimes or review any photos or exhibits from trial regarding
defendant’s gang history.
He testified defendant was one of six children removed from his mother’s custody
by child protective services and other court processes. Defendant’s mother was using
drugs and “not emotionally responsible” or able to provide defendant with ongoing
9.
nurturing, so defendant did not develop a “secure base.” Defendant was sent to live with
his aunt in Texas and he did not do very well in school and ran into some behavioral
issues. Defendant’s life lacked consistency as he moved around a lot. He entered a GED
program and started using controlled substances—including alcohol and marijuana and,
later, ecstasy and cocaine—to self-medicate. Dr. Blak diagnosed defendant with a
“substance use disorder, Ecstasy and cocaine essentially. But he did abuse alcohol and
marijuana.”
Dr. Blak also diagnosed defendant with antisocial personality disorder and
testified deceitfulness, repeated lying, conning others, and a lack of remorse are related
diagnostic criteria. He opined antisocial personality disorder has a “chronic course,” but
it may become less evident or remit by the fourth decade of life. Dr. Blak testified,
defendant seeks to be the center of attention and, sometimes, when one seeks attention he
takes on a leadership role. He believed defendant was motivated to commit the crime
that resulted in the victim’s death by defendant’s desire to get money to attend the Fresno
Fair.
Dr. Blak opined youthful offenders should not be treated the same as adults for
purposes of evaluating mental and emotional development. He explained, the brain “is
not matured fully until the age of 25.” He opined 17-year-eight-month-old defendant was
amenable to treatment and programming available in the juvenile court. Dr. Blak
believed “at that time [defendant] had the potential for change.” He further opined “at
the time [defendant] went through the first transfer hearing, … he would be suitable for
the program within the juvenile justice system at that time.” He explained, while in
prison, defendant “made some significant and important kinds of involvement in his
education and his programming” that showed he had the capacity to change. He opined
the events that transpired may not have happened but for defendant’s lack of maturity.
10.
Defendant spoke on his own behalf about his background and discussed the
crimes. He explained, on the night of October 2d, he and Walter King met to commit
robberies:
“The crime was very severe, obviously. A man lost his—no, a man
didn’t lose his life, a man’s life was tooken [sic] and I did nothing to stop it.
I did nothing to help him afterwards either. When my friend told me to
check the car after he pulled him out, I checked the car. When he told me
to check his pockets, I just didn’t feel right about it and I did touch his
pockets and I checked his pockets. I didn’t remove the things … in his
back pocket. I just couldn’t understand why he shot the man because he
was sleeping in his car. … I thought we would open up the car and
probably … beat him up or something. Because that’s just what we did, we
were looking to make money to support our drug habit. And at 17 years
old, starting from age 15, I was addicted to cocaine, Ecstasy pills,
prescription drugs, including cough syrup, Xanax pills, and I smoked
marijuana and tobacco. And I had a very, very strong drug habit. [¶] … [¶]
“… And after the night of October 2nd where Mr. Atilano was
fatally shot, days later I found myself around the same friend, around my
gang-bangers and we were looking to get more money and we seen a man
walking out of the store, and one of my friends had pulled out a gun and as
we approached, [Mr. Madera] swung his bag at another one of my friends
and all I heard was a shot and we all scattered.”
Defendant testified, he heard on the news that night that Isidro Madera was 70
years old and he “felt bad” and “spent that night praying.” He admitted to lying after he
was arrested, stating he lied not just for himself, “but for those friends … who were
essentially family,” including his cousins and brother’s wife’s nephew. He testified, he
“lied to protect them and they all threw [him] under the bus.” Defendant then discussed
the sentences his coparticipants received compared to the sentence he received.
He asserted, at the age of 20, his “paragon [sic] shifted within somewhere” and he
realized he “did everything wrong.” He “let a man’s life get tooken [sic] and didn’t stop
it.” He “didn’t reach out for help” and “12 days later, another man got assaulted.” He
explained his goals including, “to contribute to society positively since I had took [sic]
11.
the most valuable thing in society. Though I didn’t do it personally, by me letting it
happen, I took that man’s life also because I didn’t stop it.”
The court ultimately concluded defendant was not suitable for jurisdiction in a
juvenile court. In rendering its decision, the court considered defendant’s age at the time
of the offenses, 17 years and eight months, and his maturity at that time. The court found
defendant “had a very high degree of maturity” at the time of the offenses; “[h]e
considered himself and presented himself as a leader.” The court also noted defendant’s
“intellectual capacity is without dispute” and, “[i]n terms of mental and emotional
health,” there was no evidence defendant “was anything other than fully and adequately
functioning.” The court discussed defendant’s familial history, noting defendant had
“significant traumatic losses” in that he did not grow up with his mother or father and he
“lost” six siblings who were removed from his mother’s custody for general neglect .
The court acknowledged defendant spent much of his life with his aunt who was a strong
and positive person. From 1998 to 2010, defendant’s community and family appeared to
be positive, but defendant was in a gang, which was an entirely different kind of
community. The court described the circumstances and gravity of the alleged offenses as
“horrific” and stated there was “really no way to overstate the circumstances and
gravity.”
The court explained it was tasked with determining whether defendant, at 17 years
and eight months old, could have been rehabilitated prior to the expiration of the juvenile
court’s jurisdiction when he turned 25. It concluded defendant was not suitable for
jurisdiction in a juvenile court and the matter must be transferred to a court of criminal
jurisdiction where defendant would be prosecuted under the general laws of the State of
California.
Resentencing Hearing
Following the transfer hearing, the trial court held a new sentencing hearing on
November 19, 2020. The parties agreed to submit the record of proceedings from the
12.
juvenile court for the trial court’s consideration, particularly with regard to the Miller
analysis. The trial court reviewed the original November 2015 report and
recommendation of the probation department, the transcript of proceedings and records
from the juvenile court transfer proceedings, and the contents of the 2015 trial file. The
court permitted defendant to speak on his own behalf. Defendant stated:
“It’s been nine years now. When I first caught these cases, when
these offenses first happened, I was 17 years old. I was a kid, you know,
with no type of guidance. I was only led by my will to be a gang member,
and I committed those crimes. Ever since then I’ve been working on
bettering myself, even with the life without parole sentence that you gave
me.
“I went to prison and focused on bettering myself. I completed high
school. I began college, which I was close to completing. I started to be a
mentor to other people on the yard in the prisons that I was at showing
them that just because you’re in here doesn’t mean that you have to stay the
way that you were, you know. And the thing that drove me to that is I
spent a lot of time just locked in a cell with my own thoughts and I used to
think about the things that I did when I was younger. I did a lot wrong. I
did a lot of wrong and I didn’t want to be remembered for that. I hurt a lot
of people, and for that I would like to apologize. And I know saying sorry
isn’t going to … help anything, so I decided to try to better myself and try
to better those around me because the negative impact that I had on my
community out there I decided to have a positive impact on others that were
going to go home hoping that they would take the knowledge and stuff that
I gave them out there.”
Defendant apologized to those he hurt and reported that he had taken and taught
classes on victim impact, family development, and “[e]lements of [c]hange,” which are
“all requirements to go to the parole board.” He asserted these classes taught him “to
connect the dots of why [he] was doing the things that [he] did, why [he] became that
person that [he] became at 17.” He stated, there was “no excuse for it, but it was just a
lot of pain that [he] didn’t understand how to really define at that time. [He] felt … let
down and angry at everyone and … didn’t care.” He asserted the programming classes
13.
taught him how to become a better person. He was studying to get degrees in psychology
and political science.
Defense counsel argued defendant had “shown he can be rehabilitated” and “that
shows that he is not that type of rare juvenile offender who shows irreparable
corruption.” He asserted, the crimes were not “well thought-out or well-planned crimes.”
The prosecutor emphasized the permanent and lasting effects of defendant’s
crimes. He stated he “applaud[ed] the defendant and the work that he’s done since.” But
he argued for the reimposition of the life without parole sentence based on “[t]he
magnitude, … the repetitive nature, and the absolute callousness” of the crimes which, he
asserted, showed “there was an absolute disregard for anyone else, but himself.” He
asserted, “the defendant’s conduct leading up to, including, and through the duration of
these two crimes, which were spread out by two weeks, his path from when he left Texas
to when he came to California showed a complete and utter disregard for any care, any
empathy for any others.” The prosecutor argued, “To say these crimes were not planned
out is to belie the facts that this court heard through the testimony of those cases. To say
that the defendant was not a leadership role of those [sic] belies those facts and the very
finding that this court made at the time of the original sentencing.” The prosecutor noted
Dr. Blak explained deceitfulness, repeated lying, conning others, and lack of remorse
were symptoms of antisocial personality disorder that were chronic and would become
less evident “by about the fourth decade of life.”
The court resentenced defendant to life without the possibility of parole. It
detailed its considerations in rendering the sentence. The court acknowledged Miller
required it to consider factors unique to juvenile offenders before imposing a life without
the possibility of parole sentence and, pursuant to People v. Gutierrez, supra, 58 Cal.4th
1354, it was required to determine whether a particular defendant is “a rare, juvenile
offender whose crime reflects irreparable corruption.”
14.
Before rendering its decision, the court first discussed defendant’s age at the time
of the crimes, and the impact of his age on his culpability. The court noted defendant
was 17 years and eight months old at the time of the attempted robbery and murder of
Atilano and the subsequent attempted robbery of Madera; so, defendant was “just a few
months short of being a legal adult.” The court stated the evidence at trial and the
transfer hearing reflected defendant “was already a self-confident, self-reliant, street
smart, rule defying young man. His status as the leader of the pack in the two present
crimes validate his own self descriptions as a gang leader, and his leadership roles in the
present crimes cannot be denied.”
Next, the court considered defendant’s family and social circumstances, including
environmental vulnerabilities, such as childhood history, abuse or neglect, familial
substance abuse issues, lack of adequate parenting or education, prior exposure to
violence, and susceptibility to psychological damage or emotional disturbance. The court
acknowledged, based on the evidence presented at the transfer hearing, defendant was
one of six children who were all removed from the mother’s custody by child protective
services or other court processes, and defendant never knew his biological father.
Defendant was primarily raised by his maternal aunt from the ages of four to 16 (from
1998 to 2010) and she provided a “very stable household with positive social
experiences,” including exposure to male role models through church and organized
sports and community activities. There was no record of drug or alcohol abuse in
defendant’s home setting nor a record of family violence; rather, “in these eight [sic]
formative years, the defendant had a relatively stable home and family environment.”
Records established defendant was “intellectually gifted” and he “excelled athletically,
specifically at football.” While in his aunt’s home, defendant was a respectful and
responsible family member. “But outside of the home he took an increasingly negative
trajectory, losing privileges to participate in activities, fighting, threatening others, and
15.
eventually leading to expulsion from high school and placement in the Texas juvenile
justice system.” Defendant “threatened correctional officers” and their families.
The court then turned to the circumstances of the offenses, beginning with
Atilano’s murder. The court noted, in part, when questioned, defendant expressed some
remorse about the death, but then repeatedly lied to police, first blaming a fictional
character then pointing a finger at his coparticipant King. The court stated, with regard to
Atilano’s killing, “the cowardness and calculated, cold-blooded display” could not be
denied. It stated, the “interviews of the defendant and codefendant King leave no doubt
that the defendant was the dominant predator and the ransacking of [Atilano’s] person
and vehicle show a total disrespect of human dignity in this crime.” With regard to the
attempted robbery and shooting of Madera, the court stated it had “no doubt” defendant
had a “position of leadership and dominance over the other gang members.” The court
initially stated there was no indication substance abuse played a role in the offenses, but
then stated the evidence was inconsistent regarding defendant’s substance abuse.
It next concluded there was no evidence to demonstrate defendant’s age played a
role in his ability to deal with law enforcement or assist in his defense. “To the contrary,
[defendant] had plenty of experience with law enforcement given his multiple
adjudications back in Texas.”2 The court noted defendant’s expert testified there was no
evidence of injuries to defendant’s brain or that he had a medical condition that affected
his brain. Rather, the “extensive interviews” with defendant made clear to the court
“defendant was quite capable of manipulating facts and words, both as to the codefendant
and as to the investigative officers.”
Finally, with regard to “the possibility of rehabilitation,” the court noted defendant
had gone through programs with the Department of Corrections and Rehabilitation,
2The 2015 probation report reflects defendant faced multiple charges in Texas in 2009,
including “Terroristic Threat Against Public Safety.”
16.
furthered his education, had no violations of administrative procedures, and no discipline
issues while housed at the Fresno County jail pending the review hearings. Based on
defendant’s representations, defendant had completed his GED and was pursuing a
college degree. The court stated:
“[S]uch a record might support a finding that the defendant is capable of
rehabilitation in a custodial setting. There is no real question that he could
intellectually adapt to such process. But in reviewing the defendant’s
testimony at the transfer hearing, the defendant displays a continued refusal
to take responsibility for his actions, his role in the violent offenses, the
failure to take any steps to accept responsibility, blaming others, and
substantially denying drug abuse, even excusing his systematic lying about
the crimes.”
The court asserted defendant “still acts like these crimes were something that
happened, not something that he did. He spent a good deal of time worrying about what
[the] codefendants were getting for things that he is being held responsible for at a very
high level.”
The court noted it was required to consider the distinctive attributes of youth in
accordance with Miller and in the context of the Eighth Amendment that was also
codified in sections 190.5 and 190.3. It held, “a thorough consideration of these
principles” compelled it to find “defendant is distinguished and far removed from the
chronological fact of his age when he committed these most violent crimes.” With regard
to whether defendant was capable of rehabilitation, the court stated its belief “that while
the defendant has shown an ability to adapt to his institutional setting, that it doesn’t
address potential dangers, which are really the issue of rehabilitation, that is the potential
dangers to society and the future.” The court stated, “Rehabilitation doesn’t relate to
institutionalized behavioral patterns. It relates to potential dangers and likely dangers
that the defendant could again impose on the community at large.” The court stated it
could not find defendant was “capable in a probability [sic] of ultimate rehabilitation for
17.
the safety of the community.” The court also declined to strike defendant’s firearm
enhancements.
DISCUSSION
Defendant challenges the court’s imposition of a life without the possibility of
parole sentence, asserting the court erred in considering the relevant factors. He also
contends his sentence violates the Eighth Amendment as cruel and unusual punishment.
We reject defendant’s arguments and affirm the judgment. We also agree with the parties
the court erred in failing to impose a parole revocation fine.
I. The Court Did Not Err in Sentencing Defendant to Life Without the
Possibility of Parole
Defendant argues the court erred in considering the requisite factors before
sentencing him to life without the possibility of parole.
A. Standard of Review
1. Sentencing Decisions
We review the trial court’s sentencing decision for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) The party challenging the sentence bears the
burden of “‘“clearly show[ing] that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.”’” (People v. Carmony (2004) 33
Cal.4th 367, 376–377 (Carmony); accord, People v. Lee (2017) 16 Cal.App.5th 861,
866.) “[A] trial court will abuse its discretion … if it relies upon circumstances that are
not relevant to the decision or that otherwise constitute an improper basis for decision.
[Citations.]” (People v. Sandoval, supra, at p. 847.)
“[A] ‘“decision will not be reversed merely because reasonable people might
disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’”’” (Carmony, supra, 33 Cal.4th at p. 377.)
18.
“Taken together, these precepts establish that a trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person could agree with
it.” (Carmony, at p. 377.)
The trial court’s factual findings upon which it bases its discretionary
determinations are subject to review under the substantial evidence standard. (See
People v. Cluff (2001) 87 Cal.App.4th 991, 998 [court abuses discretion when factual
findings critical to decision find no support in evidence]; accord, People v. Buford (2016)
4 Cal.App.5th 886, 901 [facts upon which court’s finding of unreasonable risk is based
are subject to review for substantial evidence].) “‘[A] trial court will abuse its discretion
… if it relies upon circumstances that are not relevant to the decision or that otherwise
constitute an improper basis for decision.’” (People v. Hicks (2017) 17 Cal.App.5th 496,
512.)
2. Eighth Amendment Claims
The Eighth Amendment to the United States Constitution applies to the states.
(People v. Caballero (2012) 55 Cal.4th 262, 265, fn. 1.) It prohibits the infliction of
“cruel and unusual” punishment. (U.S. Const., 8th Amend.) The touchstone is gross
disproportionality. (See Ewing v. California (2003) 538 U.S. 11, 21–24 (lead opn. of
O’Connor, J.); People v. Cage (2015) 62 Cal.4th 256, 294.) “‘“‘“To determine whether a
sentence is cruel or unusual as applied to a particular defendant, a reviewing court must
examine the circumstances of the offense, including its motive, the extent of the
defendant’s involvement in the crime, the manner in which the crime was committed, and
the consequences of the defendant’s acts. The court must also consider the personal
characteristics of the defendant, including age, prior criminality, and mental capabilities.
[Citation.] If the court concludes that the penalty imposed is ‘grossly disproportionate to
the defendant’s individual culpability’ [citation], or, stated another way, that the
punishment ‘“‘shocks the conscience and offends fundamental notions of human
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dignity’”’ [citation], the court must invalidate the sentence as unconstitutional.”
[Citation.]’”’” (People v. Cage, supra, at p. 294.)
B. Applicable Law
The United States Supreme Court has recognized “children are constitutionally
different from adults for purposes of sentencing.” (Miller, supra, 567 U.S. at p. 471.) In
Roper v. Simmons (2005) 543 U.S. 551 (Roper), the United States Supreme Court held
the Eighth Amendment forbids imposition of the death penalty on juvenile offenders
under 18 years of age. (Roper, supra, at p. 568.) The Roper court stated, “Three general
differences between juveniles under 18 and adults demonstrate that juvenile offenders
cannot with reliability be classified among the worst offenders. First, as any parent
knows and as the scientific and sociological studies … tend to confirm, ‘[a] lack of
maturity and an underdeveloped sense of responsibility are found in youth more often
than in adults …. These qualities often result in impetuous and ill-considered actions and
decisions.’ [Citations.]” (Id. at p. 569.) Second, “juveniles are more vulnerable or
susceptible to negative influences and outside pressures, including peer pressure.” (Ibid.)
Third, “the character of a juvenile is not as well formed as that of an adult. The
personality traits of juveniles are more transitory, less fixed. [Citation.]” (Id. at p. 570.)
Thus,
“[t]he susceptibility of juveniles to immature and irresponsible behavior
means ‘their irresponsible conduct is not as morally reprehensible as that of
an adult.’ [Citation.] … Indeed, ‘[t]he relevance of youth as a mitigating
factor derives from the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and recklessness that
may dominate in younger years can subside.’ [Citations.]” (Ibid.)
Because of juveniles’ “diminished culpability,” the court found, the penological
justifications for the death penalty—retribution and deterrence—apply to them with less
force than to adults. (Roper, supra, 543 U.S. at p. 571.) The Roper court adopted a
categorical rule barring imposition of the death penalty on anyone under the age of 18,
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rather than permitting consideration of mitigating arguments related to youth on a case-
by-case basis. (Id. at pp. 572–573.)
Five years later, in Graham v. Florida (2010) 560 U.S. 48 (Graham), the United
States Supreme Court relied heavily on Roper to hold: “The Constitution prohibits the
imposition of a life without parole sentence on a juvenile offender who did not commit
homicide. A State need not guarantee the offender eventual release, but if it imposes a
sentence of life it must provide him or her with some realistic opportunity to obtain
release before the end of that term.” (Graham, supra, at p. 82.) The court observed
LWOP “is ‘the second most severe penalty permitted by law’” (id. at p. 69), and “an
especially harsh punishment for a juvenile” (id. at p. 70).
Two years after Graham, the United States Supreme Court decided Miller, supra,567 U.S. 460, in which it held “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. 465, italics added.) The Miller court concluded “[s]uch
a scheme prevents those meting out punishment from considering a juvenile’s ‘lessened
culpability’ and greater ‘capacity for change,’ [citation],” and runs afoul of the
requirement in the high court’s cases of “individualized sentencing for defendants facing
the most serious penalties.” (Ibid.)
Miller reiterated many of the findings of Graham and Roper with respect to
children’s “distinctive (and transitory) mental traits and environmental vulnerabilities.”
(Miller, supra, 567 U.S. at p. 473; see id. at pp. 471–474.) The court stated: “By
removing youth from the balance—by subjecting a juvenile to the same life-without-
parole sentence applicable to an adult—[mandatory penalty schemes] prohibit a
sentencing authority from assessing whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender. That contravenes Graham’s (and also
Roper’s) foundational principle: that imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were not children.” (Id. at p. 474.) The
21.
high court required “that a sentencer have the ability to consider the ‘mitigating qualities
of youth,’” which, it observed, “‘is more than a chronological fact.’ [Citation.] It is a
time of immaturity, irresponsibility, ‘impetuousness[,] and recklessness.’ [Citation.] It is
a moment and ‘condition of life when a person may be most susceptible to influence and
to psychological damage.’ [Citation.] And its ‘signature qualities’ are all ‘transient.’
[Citation.]” (Miller, supra, at p. 476.)
Accordingly, the Miller court held:
“[T]he Eighth Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders. [Citation.]
By making youth (and all that accompanies it) irrelevant to imposition of
that harshest prison sentence, such a scheme poses too great a risk of
disproportionate punishment.… [G]iven all we have said in Roper,
Graham, and this decision about children’s diminished culpability and
heightened capacity for change, we think appropriate occasions for
sentencing juveniles to this harshest possible penalty will be uncommon.
That is especially so because of the great difficulty we noted in Roper and
Graham 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.’ [Citations.]
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 lifetime in prison.” (Miller, supra, 567 U.S. at pp. 479–480.)
The court reiterated: “Our decision does not categorically bar a penalty for a class
of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it
mandates only that a sentencer follow a certain process—considering an offender’s youth
and attendant characteristics—before imposing a particular penalty.” (Miller, supra, 567
U.S. at p. 483.)
Thereafter, in Montgomery v. Louisiana (2016) 577 U.S. 190 (Montgomery), the
United States Supreme Court held Miller “announced a substantive rule of constitutional
law” and, thus, was retroactive. (Id. at pp. 208–209.) The Montgomery court clarified
the analysis that must precede a sentence of life without the possibility of parole for a
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juvenile defendant, noting “Miller’s holding has a procedural component” in that it
“requires a sentencer to consider a juvenile offender’s youth and attendant characteristics
before determining that life without parole is a proportionate sentence.” (Id. at pp. 209–
210.) The Montgomery court explained, requiring “[a] hearing where ‘youth and its
attendant characteristics’ are considered as sentencing factors is necessary to separate
those juveniles who may be sentenced to life without parole from those who may not”
“gives effect to Miller’s substantive holding that life without parole is an excessive
sentence for children whose crimes reflect transient immaturity.” (Id. at p. 210.)
California’s statutory scheme has long afforded trial courts sentencing discretion
where defendants who were tried as adults were 16 or 17 years old when they committed
murder. Subdivision (b) of section 190.5 provides: “The penalty for a defendant found
guilty of murder in the first degree, in any case in which one or more special
circumstances … has been found to be true …, 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.”
In People v. Gutierrez, supra, 58 Cal.4th 1354, the California Supreme Court held
that sentences for 16- or 17-year-old juveniles who commit special circumstance murder
must be selected without a presumption in favor of LWOP. (Id. at p. 1387.) The
Gutierrez court further stated, properly construed so as not to impose a presumption in
favor of LWOP, “the sentencing regime created by section 190.5[, subdivision](b)
authorizes and indeed requires consideration of the distinctive attributes of youth
highlighted in Miller ….” (People v. Gutierrez, supra, at p. 1361.) Accordingly, the
statute “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.”
(Id. at p. 1360.) In exercising that discretion, “the trial court must consider all relevant
evidence bearing on the ‘distinctive attributes of youth’ discussed in Miller and how
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those attributes ‘diminish the penological justifications for imposing the harshest
sentences on juvenile offenders.’ [Citation.]” (Id. at p. 1390.)
The Gutierrez court further explained Miller requires a sentencer to determine
“whether a particular defendant is a ‘“rare juvenile offender whose crime reflects
irreparable corruption.”’” (People v. Gutierrez, supra, 58 Cal.4th at p. 1388; see Miller,
supra, 567 U.S. at pp. 479–480.) Specifically, the Gutierrez court interpreted Miller to
require a sentencing court to admit and consider relevant evidence or other information in
the record of: first, “a juvenile offender’s ‘chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate risks and consequences’”;
second, “‘the family and home environment that surrounds [the juvenile]—and from
which he cannot usually extricate himself—no matter how brutal or dysfunctional’”;
third, “‘the circumstances of the homicide offense, including the extent of [the juvenile
defendant’s] participation in the conduct and the way familial and peer pressures may
have affected him’”; fourth, “whether the offender ‘might have been charged and
convicted of a lesser offense if not for incompetencies associated with youth—for
example, his inability to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys’”; and finally, fifth, “‘the
possibility of rehabilitation.’” (Gutierrez, at pp. 1388–1389, quoting Miller, supra, 567
U.S. at pp. 477–478.)
Notably, the United States Supreme Court recently clarified in Jones v. Mississippi
(2021) __ U.S. __ [141 S.Ct. 1307] that under Miller and Montgomery, in imposing a
sentence of life without the possibility of parole, the sentencing court is not required to
make a separate factual finding that the offender is “permanently incorrigible,” nor is the
court required to provide an on-the-record sentencing explanation with an implicit
finding of the offender’s permanent incorrigibility. (Jones, supra, at pp. __ [141 S.Ct. at
pp. 1311, 1313, 1318–1319, 1321].) Instead, “[i]n a case involving an individual who
was under 18 when he or she committed a homicide, a State’s discretionary sentencing
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system is both constitutionally necessary and constitutionally sufficient.” (Id. at p. __
[141 S.Ct. at p. 1313].)
C. Analysis
In arguing the court erred in sentencing him to life without the possibility of
parole, defendant asserts the trial court did not sufficiently consider the requisite factors
under Miller and Gutierrez and improperly considered other factors. He further argues
some of the court’s factual findings were not supported by the record, and his LWOP
sentence violates the Eighth Amendment. We reject each of these contentions in turn.
1. The court did not err in applying the Miller-Gutierrez factors
In his first two issues, defendant contends the court erred in analyzing whether he
was capable of rehabilitation. He first asserts the court erred in considering his “current
dangerousness” at sentencing. He contends that inquiry is a relevant consideration for
granting parole but, under Gutierrez, the court should have considered whether he “could
be deemed at the time of sentencing to be capable of rehabilitation.” Defendant also
argues the court erred in disregarding the rehabilitative efforts he had taken while
incarcerated. He asserts the court found “that [he] had shown himself capable of
rehabilitation during his nine years in prison,” but it then ignored this finding. In support,
defendant relies upon the court’s statement: “Now, such a record might support a finding
that defendant is capable of rehabilitation in a custodial setting. There is no real question
that he could intellectually adapt to such a process.” (Italics added.) He asserts the
court’s statement reflects it “negated” his “rehabilitation accomplishments” by qualifying
that they occurred in a custodial setting; but this was the only setting in which he could
make rehabilitative efforts because he is incarcerated. He argues the court erroneously
found, “Rehabilitation doesn’t relate to institutionalized behavioral patterns.”
In Graham, supra, 560 U.S. 48, the United States Supreme Court discussed the
goals of criminal punishment—retribution, deterrence, incapacitation, and
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rehabilitation— in concluding life without parole for juvenile nonhomicide offenders
lacked penological justification and was, by its nature, disproportionate to the offense.
(Id. at p. 71, italics added.) The Graham court explained, “Recidivism is a serious risk to
public safety, and so incapacitation is an important goal.” (Id. at p. 72.) “To justify life
without parole on the assumption that the juvenile offender forever will be a danger to
society requires the sentencer to make a judgment that the juvenile is incorrigible.” (Id.
at p. 73.) In Gutierrez, the California Supreme Court held, “the trial court must consider
all relevant evidence bearing on the ‘distinctive attributes of youth’ discussed in Miller
and how those attributes ‘diminish the penological justifications for imposing the
harshest sentences on juvenile offenders.’ [Citation.]” (People v. Gutierrez, supra, 58
Cal.4th at p. 1390, italics added.)
Here, in accordance with Gutierrez, the court was tasked with considering the
appropriate factors to determine whether an LWOP sentence was justified, including, in
part, the need to incapacitate defendant. Accordingly, we cannot conclude, as defendant
contends, the court “legally erred” in considering the danger defendant poses to society.
Rather, the record reflects the court reviewed and considered evidence of defendant’s
postconviction efforts coupled with the other “relevant evidence bearing on the
‘distinctive attributes of youth,’” and weighed them against the penological justifications
for an LWOP sentence, including the need for incapacitation based on the danger
defendant presents to society. Thus, its analysis followed the guidelines set forth in
Gutierrez.
We also cannot conclude, as defendant argues, the court “disregarded” his
rehabilitative efforts because they occurred while he was in prison. Here, the court stated
a “thorough consideration of [the Miller factors, the Eighth Amendment, and the
aggravating and mitigating factors codified in sections 190.5 and 190.3] compel[led it] to
find the defendant is distinguished and far removed from the chronological fact of his age
when he committed these most violent crimes.” In so finding, the court considered
26.
whether defendant was capable of rehabilitation. The court stated, “[T]hat while the
defendant has shown an ability to adapt to his institutional setting, that it doesn’t address
potential dangers, which are really the issue of rehabilitation, that is the potential dangers
to society and the future.” The court continued, “Rehabilitation doesn’t relate to
institutionalized behavioral patterns. It relates to potential dangers and likely dangers
that the defendant could again impose on the community at large, therefore, I’m not
inclined at this time to find that the defendant is capable … of ultimate rehabilitation for
the safety of the community.”
We reject defendant’s contention the court’s statements establish it ignored
evidence of defendant’s postconviction conduct because it occurred while he was in
custody. Rather, in context, we read the court’s statements as evidence it considered if
and how evidence of defendant’s postconviction efforts while incarcerated diminished the
penological justifications for imposing an LWOP sentence, including the need for
incapacitation. (See People v. Gutierrez, supra, 58 Cal.4th at p. 1390; accord, Miller,
supra, 567 U.S. at p. 472.) Ultimately, the court found an LWOP sentence was justified
in spite of evidence of defendant’s positive postconviction conduct. And, as discussed
further post, we cannot conclude the court abused its discretion in imposing this sentence.
2. The court did not abuse its discretion in imposing the sentence
Defendant challenges the court’s imposition of an LWOP sentence, asserting his
statements at the transfer hearing demonstrated “immaturity, impetuosity, and failure to
appreciate risks and consequences” of youth played a significant role in the instant
offense. He argues the record does not support the court’s findings that he “continued to
refuse to take responsibility for his actions” and blamed others, “tried to justify lying,”
and he “substantially denied drug abuse.” He further asserts “the trial court’s view of
[him], after nine years in prison, as a lying cold-blooded, youthful killer who would
always pose a danger to society is not supported by the record.” Rather, he argues the
27.
record “amply demonstrates that [he] has shown himself capable of rehabilitation,”
though “he is not fully rehabilitated.” He contends his LWOP sentence was
“presumptively unlawful” because the court did not follow the Miller-Gutierrez
procedures in sentencing him. We cannot conclude the court abused its broad discretion
in sentencing defendant to life without parole after considering the Miller factors and
evidence presented.
First, the record reflects the court expressly considered each of the factors the
Miller court deemed relevant to a sentencer’s determination of whether a particular
defendant is a “‘rare juvenile offender whose crime reflects irreparable corruption.’”
(Miller, supra, 567 U.S. at pp. 479–480; see People v. Gutierrez, supra, 58 Cal.4th at p.
1388.) Indeed, the court discussed the evidence related to each factor and the conclusions
it made therefrom. Specifically, the court acknowledged and considered defendant’s
postconviction conduct but concluded, in light of the other evidence, including the
circumstances of the violent offenses and defendant’s role in them, the fact he was
months short of being a legal adult when the crimes were committed, and evidence of
defendant’s criminal history and youth, a life without parole sentence was justified. It
reasoned, in part, that defendant took on a leadership role with regard to the crimes and
that he was “distinguished and far removed from the chronological fact of his age when
he committed these most violent crimes.”3 With regard to the killing of Atilano, the
3We reject defendant’s contention the court improperly considered that he was a leader in
the commission of the crimes in violation of his due process rights. In Apprendi v. New Jersey
(2000) 530 U.S. 466, the United States Supreme Court held, other than the fact of a prior
conviction, a fact that increases the penalty for a crime beyond a prescribed statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) However, the
Apprendi court reiterated, nothing “suggests that it is impermissible for judges to exercise
discretion—taking into consideration various factors relating both to offense and offender—in
imposing a judgment within the range prescribed by statute.” (Id. at p. 481.) Here, LWOP was
the maximum statutory sentence the court could impose and its consideration of the Miller-
Gutierrez factors related to the offenses and offender in exercising its discretion to impose
sentence within a prescribed range did not violate Apprendi. (See People v. Blackwell (2016) 3
Cal.App.5th 166, 188; see generally People v. Snow (2003) 30 Cal.4th 43, 126, fn. 32 [in
28.
court stated “the cowardness and calculated, cold-blooded display” could not be denied,
noting Atilano “was asleep or meditating alone in his vehicle unsuspecting and entirely
vulnerable and defenseless.” The court described defendant as “the dominant predator,”
and it concluded “the ransacking of the victim’s person and vehicle show a total
disrespect of human dignity in this crime.”
Defendant has not established that no reasonable person could agree with the trial
court’s sentencing decision. (See Carmony, supra, 33 Cal.4th at p. 377 [“[A] trial court
does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it”].) That is, in light of the record before us, even if
reasonable people might disagree with the trial court’s ultimate sentencing decision, we
cannot conclude it was irrational or arbitrary. (See ibid.) And we are not authorized to
reweigh the evidence or to substitute our judgment for the judgment of the trial judge.
(See id. at p. 374.) To the extent defendant is arguing the court should have disregarded
the other Miller factors in light of his postconviction conduct, that is not what Miller or
Gutierrez requires, nor does the court’s failure to do so amount to an abuse of discretion.
(See People v. Blackwell, supra, 3 Cal.App.5th at p. 200 [“‘No particular factor, relevant
to the decision whether to impose LWOP on a juvenile who has committed murder,
predominates under the law’”].)
In so concluding, we further note the record supports the trial court’s findings that
defendant continued to refuse to take responsibility for his role in the crimes and tried to
justify lying after the offenses. First, at the resentencing hearing, defendant stated it had
been nine years since he “first caught these cases, when these offenses first happened.”
Based on this statement, the court reasonably stated defendant acted as though these
crimes are something that “happened” to him, as opposed to something he did. It
deciding whether to sentence a defendant to death or LWOP, “facts which bear upon, but do not
necessarily determine, which of these two alternative penalties is appropriate do not come within
the holding of Apprendi”].)
29.
reasonably inferred from these statements that defendant continued to refuse to take
responsibility for his role in the crimes. Additionally, at the transfer hearing, in
discussing the crimes, defendant explained someone’s life got taken and he did nothing to
stop it. Again, the court could have reasonably interpreted this statement as defendant
describing his involvement in the crimes as passive, rather than admitting to the active
role he took in them. Also at the transfer hearing, defendant admitted to lying after he
was arrested, stating he lied not just for himself, “but for those friends … who were
essentially family,” including his cousins and brother’s wife’s nephew. He testified, he
“lied to protect them and they all threw [him] under the bus.” Defendant then discussed
the sentences his coparticipants received compared to the sentence he received. Viewing
such evidence in the light most favorable to the court’s findings, we conclude the court
could have reasonably interpreted defendant’s statements as efforts to rationalize his
deceptive behavior rather than to take responsibility for it.
Defendant also challenges the court’s statement that the evidence of defendant’s
substance abuse history was “inconsistent” in that defendant reported much more
pervasive usage and the use of more substances at the transfer hearing than he originally
reported to the probation department. However, we conclude the record comports with
the trial court’s statement.
The original probation report filed in November 2015 reflects, in part, that
defendant used prescription Xanax and cough syrup two times a week from the age of 13
to the age of 16; he last used them on his 17th birthday, which was months before his
arrest. The original probation report also states defendant began using alcohol at the age
of 13 and used it occasionally, including the week before his arrest, and he used
marijuana and cocaine daily and last used them on the day of his arrest. It also reflects
defendant used Ecstasy one to two times a week starting at the age of 15, and he last used
it a week before his arrest. At the transfer hearing, defendant reported he had a “very,
very strong drug habit” and was “living to get more money to get high.” He reported, at
30.
the age of 17, he smoked marijuana and tobacco and he was addicted to cocaine, Ecstasy
pills, prescription drugs, including cough syrup, and Xanax pills. Defendant’s statement
was in contrast with his previous report to the probation department that he had not used
prescription Xanax and cough syrup since his 17th birthday, and he used them regularly
between the ages of 13 and 16, rather than when he was 17. Thus, the record supports the
trial court’s assessment of defendant’s statements.
Accordingly, on this record, we conclude sufficient evidence supports the trial
court’s findings and the court did not abuse its discretion in sentencing defendant to
LWOP.
3. Defendant’s sentence does not violate the Eighth Amendment
Defendant also contends, because he has “shown himself capable of
rehabilitation,” his LWOP sentence violates his federal Eighth Amendment right to be
free of cruel and unusual punishment. The People respond defendant’s Eighth
Amendment claim “is moot because he is statutorily eligible for a youth offender parole
hearing during his 25th year of incarceration.” As discussed, we reject defendant’s
contention the court abused its discretion in imposing an LWOP sentence after weighing
the applicable factors. We also reject as moot defendant’s contention his sentence
violates the Eighth Amendment in light of his eligibility for parole.
In 2013, the California Legislature added section 3051, which established a youth
offender parole hearing procedure “for the purpose of reviewing the parole suitability of
any prisoner who was under 18 years of age at the time of his or her controlling offense.”
(Former § 3051, subd. (a)(1); Stats. 2013, ch. 312, § 4.) As originally enacted, juveniles
sentenced to LWOP were not eligible for youth offender parole hearings. (Id., subd. (h).)
However, in September 2017, the Legislature passed Senate Bill No. 394 (2017–2018
Reg. Sess.), which was approved by the Governor and filed by the Secretary of State in
October 2017. (Stats. 2017, ch. 684, § 1.5.) The bill was intended to bring California
31.
law in compliance with the constitutional requirements of Miller and Montgomery v.
Louisiana by applying the youth offender parole process to juveniles sentenced to
LWOP. (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 394 (2017-2018 Reg.
Sess.) Mar. 21, 2017, p. 4.) The law added subdivision (b)(4) to section 3051, which
provides parole eligibility to persons convicted of a controlling offense committed before
they were 18 years old who were sentenced to life without the possibility of parole.
(Stats. 2017, ch. 394, §§ 1, 1.5.) As amended, the statute provides: “A person who was
convicted of a controlling offense that was committed before the person had attained 18
years of age and for which the sentence is life without the possibility of parole shall be
eligible for release on parole by the board during his or her 25th year of incarceration at a
youth offender parole hearing, unless previously released or entitled to an earlier parole
consideration hearing pursuant to other statutory provisions.” (§ 3051, subd. (b)(4).)
We agree with the People that the passage of Senate Bill No. 394 (2017-2018 Reg.
Sess.) renders defendant’s constitutional claim moot. “‘By simply transforming the
affected sentences to life with parole terms, [section 3051] avoid[s] the Miller issues
associated with the earlier sentences.’” (In re Cook (2019) 7 Cal.5th 439, 449, quoting In
re Kirchner (2017) 2 Cal.5th 1040, 1054.) “By affording [juvenile offenders] a
meaningful opportunity for release, the Legislature has effectively mooted any claim that
imposition of life without parole on a juvenile offender violates the Eighth Amendment.”
(People v. Ochoa (2020) 53 Cal.App.5th 841, 850, citing People v. Franklin (2016) 63
Cal.4th 261, 279–280.)
Accordingly, we reject defendant’s contention his LWOP sentence violates the
Eighth Amendment. (See People v. Franklin, supra, 63 Cal.4th at p. 268 [enactment of
§§ 3051 and 4801 moot constitutional challenge to lengthy mandatory sentence by
providing defendant possibility of release after 25 years of imprisonment and requiring
Board of Parole Hearings to “‘give great weight to the diminished culpability of juveniles
32.
as compared to adults, the hallmark features of youth, and any subsequent growth and
increased maturity’”].)
II. Imposition of Parole Revocation Fine
In their response brief, the People argue the trial court erred by failing to impose a
$1,000 parole revocation fine because the fine is mandatory when the sentence, like
defendant’s, includes a determinate term. They assert defendant’s term on count 4, for
the attempted robbery of Madera, was two years plus 25 years-to-life on the firearm
enhancement. They contend, because the sentence includes a determinate term, the trial
court was required to impose a parole revocation fine in the same amount as the
restitution fine. They contend the court’s failure to impose the required parole revocation
fine resulted in an unauthorized sentence that can be corrected on appeal. In his reply
brief, defendant agrees with the People’s contention.
Because defendant’s sentence includes a determinate term, we agree with the
parties the court erred in failing to impose a parole revocation fine. As we noted in
defendant’s previous appeal, our Supreme Court has held even if a defendant is sentenced
to LWOP on one count, but he or she is sentenced to a determinate term on another, a
parole revocation fine must be imposed. (See People v. Brasure (2008) 42 Cal.4th 1037,
1075.) Indeed, the California Supreme Court reiterated Brasure’s holding in People v.
Baker (2021) 10 Cal.5th 1044, 1108–1109, noting there, as here, “‘[d]efendant is in no
way prejudiced by assessment of the fine, which will become payable only if he actually
does begin serving a period of parole and his parole is revoked.’” (Id. at p. 1109.)
Section 1202.45, subdivision (a) provides the parole revocation restitution fine
should be in the same amount as that imposed for restitution pursuant to subdivision (b)
of section 1202.4. And here, the court imposed a $1,000 restitution fine under section
1202.4. Accordingly, the judgment must be modified to include a $1,000 parole
revocation fine pursuant to section 1202.45. (See People v. Terrell (1999) 69
33.
Cal.App.4th 1246, 1256 [concluding reviewing court may modify judgment to reflect
required parole revocation fine, where it was not assessed, in amount identical to
restitution fine].)
DISPOSITION
The judgment is modified to include a $1,000 parole revocation fine under section
1202.45. In all other respects, the judgment is affirmed. The trial court is ordered to
prepare an amended abstract of judgment reflecting a parole revocation fine in the
amount of $1,000 and to forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation.
34.