People v. Rainey CA1/1

Filed 8/25/23 P. v. Rainey CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A164100
v. (Contra Costa County
CLYDE RAINEY, Super. Ct. No.
59807082)
Defendant and Appellant.
When he was 16 years old, defendant and a 14-year-old companion robbed
an unarmed young man. As the victim was standing with his hands in the
air and his back towards defendant, the companion told defendant to shoot
him. The victim turned and looked into defendant’s eyes, turned back, and
defendant shot him twice in the back. The victim died four days later.
In 1999, a jury convicted defendant of first-degree murder, found true a
special circumstance that the murder was committed during a robbery, and
found true an enhancement for personal use of a firearm. The trial court
sentenced defendant to life without the possibility of parole (LWOP). This
court affirmed the judgment. (People v. Rainey (Feb. 7, 2001, A088153)
[nonpub. opn.].)
After the United States Supreme Court decided Miller v. Alabama (2012)
567 U.S. 460 (Miller), defendant filed a habeas petition, which this Court
1
granted, remanding the case for resentencing in conformity with Miller. (In
re Rainey (Feb. 28, 2014, A138921) [nonpub. opn.].)
Following a hearing in 2021, the trial court reimposed an LWOP
sentence, plus four years for the personal use of a firearm.1 Defendant claims
the court failed to take into account youth-related mitigating factors as
required by Miller and People v. Gutierrez (2014) 58 Cal.4th 1354, 1378
(Gutierrez). We affirm.
DISCUSSION
Applicable Legal Principles
In Miller, the United States Supreme Court held that before a
defendant who has committed a homicide offense as a juvenile can be
sentenced to LWOP, a court must “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 p. 480.)
In the wake of Miller, our Supreme Court in Gutierrez upheld Penal
Code section 190.5, subdivision (b), which permits courts to impose LWOP
sentences on defendants convicted of committing murder while a juvenile,
stating,
“[W]e hold that [Penal Code] section 190.5[, subdivision] (b), properly
construed, 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, with no presumption in favor of life
without parole. We further hold that Miller requires a trial court, in
exercising its sentencing discretion, to consider the ‘distinctive
attributes of youth’ and how those attributes ‘diminish the penological
justifications for imposing the harshest sentences on juvenile offenders’
before imposing life without parole on a juvenile offender. [Citation.]
1 Thus, there was a seven-year lapse between issuance of our
remittitur and the resentencing hearing. Defendant has not raised any
complaints about this time lapse on appeal.
2
Because the sentencing regime created by [Penal Code] section 190.5[,
subdivision] (b) authorizes and indeed requires consideration of the
distinctive attributes of youth highlighted in Miller, we find no
constitutional infirmity with [Penal Code] section 190.5[, subdivision]
(b) once it is understood not to impose a presumption in favor of life
without parole.” (Gutierrez, supra, 58 Cal.4th at pp. 1360–1361.)
Thus, a trial court “must consider” the “ ‘distinctive attributes of
youth’ ” that “ ‘diminish the penological justifications for imposing the
harshest sentences on juvenile offenders.’ ” (Gutierrez, supra, 58 Cal.4th at
p. 1390.) “Miller requires sentencing courts to undertake a careful
individualized inquiry before imposing life without parole on juvenile
homicide offenders.” (Id. at p. 1382.)
The court went on to identify five youth-related factors sentencing
courts “must consider” before imposing LWOP: 1) the “juvenile offender’s
‘chronological age and its hallmark features– among them, immaturity,
impetuosity, and failure to appreciate risks and consequences’ ”; 2) the
juvenile’s “ ‘family and home environment,’ ” such as “evidence of childhood
abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or
education, prior exposure to violence, and susceptibility to psychological
damage or emotional disturbance”; 3) “ ‘the circumstances of the homicide
offense, including the extent of the [juvenile’s] participation in the conduct
and the way familial and peer pressures may have affected him’ ”; 4)
“whether the offender ‘might have been charged and convicted of a lesser
offense if not for incompetencies associated with youth’ ”; and 5) “any
evidence or other information in the record bearing on ‘the possibility of
rehabilitation.’ ” (Gutierrez, supra, 58 Cal.4th at pp. 1388–1389.)
The court also acknowledged, “[o]f course, a sentencing court has
discretion under Miller to decide on an individualized basis whether a 16- or
17-year-old offender is a ‘ “rare juvenile offender whose crime reflects
3
irreparable corruption.” ’ ” (Gutierrez, supra, 58 Cal.4th at p. 1380.)
However, “ ‘[a] court which is unaware of the scope of its discretionary powers
can no more exercise its ‘informed discretion’ than one whose sentence is or
may have been based on misinformation regarding a material aspect of the
defendant’s record.’ ” (Id. at p. 1391.)
We review a trial court’s sentencing decision for abuse of discretion. “A
court’s exercise of discretion will not be disturbed on appeal absent a showing
that the court acted in an arbitrary, capricious, or patently absurd way,
resulting in a manifest miscarriage of justice. [Citation.] ‘In reviewing for
abuse of discretion, we are guided by two fundamental precepts. First,
“ ‘[t]he burden is on the party attacking the sentence to clearly show 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.’ ” [Citations.]
Second, 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.” ’ ” ” ’ (People
v. Watson (2017) 8 Cal.App.5th 496, 514 [affirming juvenile LWOP
sentence].)
The Resentencing Ruling
The trial court held both a Franklin hearing2 and a Miller/Gutierrez
resentencing hearing.
Prior to the hearings, defendant submitted extensive materials on his
behalf, including an undated report by mitigation specialist Susan Lake, a
1998 report by neuropsychologist Dr. Nell Riley, and a 2021 report by clinical
2 People v. Franklin (2016) 63 Cal.4th 261.
4
psychologist Dr. Laurence Miller. These reports purported to chronicle in
considerable detail limitations in defendant’s mental development and
adversities defendant faced during adolescence.
The court subsequently held a hearing devoted to the prosecution’s
objections to these reports. Ultimately, portions of the reports were excised
and the court ordered that defendant and Dr. Miller appear and be available
for cross-examination. Neither defendant nor the prosecution raise any
complaints about the handling of the reports. Indeed, defendant states in his
opening brief that “[i]n deference to the court’s discretion as to credibility
matters, [he] does not rely at all on [the] reports and instead relies solely on
the factual materials generated by the probation department, the juvenile
court and other unchallenged sources.”
The trial court then proceeded with the Franklin hearing, at which time
defendant and Dr. Miller testified. Defendant testified to, among other
things, the challenges he faced growing up, his relationship with his
companion the night of the shooting, and his experience during his time in
prison. On cross-examination, the prosecution elicited additional
information, including that defendant engaged in repeated violent and
criminal behavior prior to the crime, and after being informed he was
statutorily eligible for parole consideration after serving 25 years, continued
to accrue prison rule violations and sanctions for improper conduct.
Dr. Miller also testified and was cross-examined at length over the course
of several days. In his view, as a young adolescent, defendant was impulsive,
pleasure-seeking, had a difficult time considering the future consequences of
his actions, and engaged in high-risk activities. He attributed this to the
attributes of youth, the difficult and violent social milieu in which defendant
lived, and defendant’s apparent emotional and neurological deficits.
5
On cross-examination, Dr. Miller acknowledged that while he had
reviewed the police reports of all of defendant’s criminal conduct, including
the murder, he did not review the videotapes of defendant’s statement to the
police or of his conversation with his mother where he confessed to the
murder, and that he spoke with defendant, himself, for only an hour by
phone. Miller acknowledged he had made many assumptions about the facts
based on Ms. Lake’s and Dr. Riley’s reports, and if either was incorrect as to
the facts, that would affect the correctness of his own assessments. He
acknowledged that while defendant had not been diagnosed as having
antisocial personality disorder because it is not a diagnosis appropriately
made as to children, defendant exhibited the symptoms of the adolescent
equivalent, conduct disorder. He acknowledged that based on Dr. Riley’s
1998 report, a medical evaluation of defendant’s neurological condition, which
included a PET scan, was done, and the physician conducting the
examination did not diagnosis defendant as having any birth related
neuropsychological disorder. He acknowledged there was no evidence
defendant’s neurological functioning had any connection to his murdering the
victim. He acknowledged defendant was never homeless. He acknowledged
there was no documented evidence defendant’s mother abused alcohol or
drugs, e.g., no record of defendant being born with fetal alcohol syndrome,
and no police record of his mother ever being intoxicated. He acknowledged
there was no documented evidence defendant was beaten and whipped as a
very young child. He acknowledged that while his opinion was that
defendant did not have the “average 16-year-old brain,” he had no medical
evidence that was the case.
On redirect, Dr. Miller stated defendant reported abusing alcohol by
the age of 12. Defendant also told Miller his mother had problems with
6
alcohol and also said his mother told him his father had “whipped” him
between the ages of one and three. The neurological PET scan indicated
“some anomalies” in defendant’s brain and specifically “some issue with the
difference in his two lobes” which might indicate defendant’s brain was not
that of an average 16-year-old and might have had a developmental impact.
Miller did not diagnosis defendant with conduct disorder because some
aspects of defendant’s conduct did not support such a diagnosis.
After determining which documents would comprise the Franklin “packet”
for forwarding to the parole board, the trial court turned to the
Miller/Gutierrez hearing. The court commenced by stating, “I would like to
state that in preparation for this hearing, I have reviewed the entire file.· I
have reread the appellate court decision, as well as this Court’s decision on
setting the sentencing hearing, which was filed March 2nd, 2020.· I’ve read
all of the materials submitted by counsel.· I’ve considered all of the testimony
that was received.· I’ve reviewed my notes and the transcripts for all of the
prior hearings.”
With respect to the original sentencing, the trial court observed that
“[m]issing from” this court’s prior affirmance of that sentence, was “a full
consideration of the factors now constitutionally mandated under Miller
related to the distinctive attributes of youth that diminish the penological
justifications for imposing the harshest sentences on juvenile offenders, even
when they commit terrible crimes because Miller requires sentencing courts
to consider how children are different and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”
The court then heard argument by counsel. Defense counsel argued
defendant was not an “irredeemable or irrevocably corrupt minor” for whom
an LWOP sentence was permissible or appropriate under Miller, that he had
7
“taken responsibility for what he did within hours of his arrest and has
always expressed his remorse,” and that he “suffered many of the difficulties
and tragic circumstances that the Miller court contemplated when thinking
about the particular circumstances that a minor might have to overcome or
deal with when confronting––when analyzing a case like this, that
environment and home community.”
The prosecutor emphasized asserted evidentiary shortcomings in the
evidence defendant had presented at the Franklin hearing and claimed
dictated a lesser sentence, pointing out defendant had had nearly 10 years “to
produce competent evidence to support [his] request for resentencing to
something other than LWOP,” but had presented “nothing . . . that is not
based on hearsay, other than Mr. Rainey’s own testimony.·. . . [E]verything
else that was provided to you, the Court has to take a leap of faith in order to
embrace it.” There were no affidavits, no live testimony—not a “single source
of direct testimony as to the hallmarks of youth [defendant] wants you to
consider.” The prosecutor also emphasized defendant’s history of escalating
violent criminal conduct prior to the murder and contrasted his criminal
conduct with the vulnerability of the victim and the impact on the victim’s
family. The prosecutor also observed that defendant would, in any case, soon
receive a youthful parole hearing, “[s]o striking the special circumstance
enhancements will not get him anything that he has not already achieved by
operation of law.”
Following argument by counsel, defendant was permitted to make a
statement to the court, wherein he expressed remorse and stated he wished
he “could take it all back.”
Thereafter, the court discussed its view of the defense evidence, stating it
had “prepared very carefully for the hearing,” and had, pursuant to
8
defendant’s request, admitted for purposes of the resentencing hearing Ms.
Lake’s, Dr. Reilly’s, and Dr. Miller’s reports, noting much of the information
in those reports had been “fleshed out” during the Franklin hearing. The
court went on to state it found the reports “to be quite unreliable” because
they relied “primarily on hearsay.” Dr. Miller’s testimony was of special
concern to the court because it “found him repeatedly looking at [defense
counsel] as though for guidance, and [] she assiduously avoided his gaze or
was looking down at her notes.· She did not signal him, but I felt that he was
flailing.· He had clearly numerous important inaccuracies.” The court then
enumerated a number of the inaccuracies in his report and his testimony.
The court also found defendant’s testimony “troubling,” stating it “wasn’t
entire[ly] credible” and “[s]everal remarks appeared intended to exaggerate
or stretch the truth.”
The court then discussed the Miller/Gutierrez factors, stating,
“In considering the distinctive attributes of youth, the hallmark features
of immaturity, impetuosity and failure to appreciate the risks and
consequences, as well as the capacity for growth and change, I will note
I’m not going to review each one of these factors in great detail. I think
they've been expressed well in the papers.
“I will note that with regard to the youth-related factors, the defendant
was 16 years old, 10 months. I don't find that he was immature or acting
with impetuosity with regard to the particular facts of this event. The
family and home life, certainly this dysfunction and neglect, which
admittedly is there, is not so profound as to bring him into that position
that you would justify his behavior just from his home life. Certainly, the
circumstances of the crime, no alcohol or drugs, were a factor, and his
background, as Judge Arneson noted, was one which demonstrated
continuing––increasing seriousness, continuing engagement and violent
conduct that indicates that he is a serious danger to society.
“I––in factoring in factors relating to the crime and aggravation, the crime
involved great violence and a high degree of cruelty. The defendant used a
firearm in the murder. The victim was particularly vulnerable. The
9
manner of the crime indicated planning and sophistication. Factors
relating to the defendant, I have mentioned some of them, but it also
includes that he engaged in violent conduct, not for the first time, that
indicates he is a serious danger to society. His sustained petitions were of
increase in seriousness. He was on probation at the time of the murder,
and his performance on juvenile probation was unsatisfactory.”
The court concluded by stating,
“I do not find factors in mitigation. Probation is denied. The motion to
strike the special circumstances is denied. As to Count 1, I’m sentencing
[defendant] to the term of life in prison without possibility of parole. As to
the use of the firearm, of Penal Code Section 12022.58, the midterm of four
years, which is to be served consecutively, based on all of the factors that
I’ve cited, as well as the factors cited by Judge Arneson in the original
sentencing. Credits do not need to be determined at this time.”
ANALYSIS
Pointing to the court’s statement, “I do not find factors in mitigation,”
defendant maintains the court “arbitrarily and prejudicially refused to
recognize the existence of any mitigation whatsoever . . . , notwithstanding
the undisputed evidence of well-established mitigating factors.” He asserts
that had the court “recognized the existence of mitigating factors but had
given reasons why those factors carried less weight tha[n] the aggravating
factors, that could constitute an informed exercise of discretion that is
reviewable only for abuse of discretion.” But because of the court’s asserted
“failure/refusal to recognize that the evidence presented had some mitigating
import, its weight . . . in comparison to the aggravating evidence, cannot,”
according to defendant, “be deemed an informed exercise of discretion,” thus
rendering his LWOP sentence per se invalid. (Underscoring omitted.)
In other words, defendant appears to be trying to remove his challenge
to the trial court’s resentencing decision from the ambit of the abuse of
discretion standard and, instead, to cast his challenge as essentially a
10
procedural one as to which no deference is owed to the court. Defendant’s
assertion that the trial court had blinders on is not warranted by the record
or by fundamental principles of appellate review.
To begin with, it is clear the trial court was fully conversant with the
mandate of Miller and Gutierrez. As the court stated, the matter was before
it for “a full consideration of the factors now constitutionally mandated under
Miller related to the distinctive attributes of youth that diminish the
penological justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes because Miller requires
sentencing courts to consider how children are different and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.”
It is also clear the court considered all the evidence proffered by the
defense and the prosecution, including the reports submitted by defendant
and the testimony given at the Franklin hearing, as the court expressly said
it considered everything before it.
Finally, it is clear there is evidence in the record supporting the trial
court’s determination that even taking into account the Miller/Gutierrez
factors, an LWOP sentence was permissible.
Factor One: Age and Maturity Level
Defendant asserts the court “ignored the undisputed evidence of
neurological impairments and developmental disabilities that clearly put
[defendant] well behind his age cohort regarding intellectual and social
development.” He cites to the 1999 probation report stating “two neurological
examinations show[ed]” defendant having an IQ of 75, and to Dr. Riley’s 1998
report stating he was in special education classes as of the second grade and
when he was in the fifth grade, he tested in the second percentile in reading.
11
He also cites to the statement in Riley’s report that his birth records
“revealed abnormal neurological signs” but no follow up was done at the time.
However, as we have discussed, the nature of defendant’s neurological
impairment and extent of his “developmental disabilities” was called into
sharp question by the prosecutor’s extensive cross-examination of Dr. Miller.
As Miller acknowledged, Riley’s report precipitated a medical examination
that included a PET scan, and the physician conducting the examination did
not diagnosis defendant as having a medical neuropsychological disorder.
There was also evidence defendant was not as “developmentally disabled” as
he claimed to be. The 1996 probation report noted defendant’s grades were
“fairly good” in 1995:
“On September 12, 1995, the minor was enrolled in the Richmond
School District’s Independent Learning Program. . . . The minor’s
attendance during the first quarter was basically very good, with the
exception of several tardies. His behavior, however, was considered to
be borderline and problematic on several occasions. [Defendant]
frequently had to serve time out periods away from the main group,
due to threats, rude behavior, insubordination, being argumentative,
and use of profanity. He also threatened and used abusive language
towards a classroom teaching aide. His grades were math, ‘A’; history,
‘’”; P.E, ‘C’; English, ‘C’; Science, ‘B.’ [The school teacher] states that
although Clyde’s grades were fairly good, he often exhibited a negative
attitude and frequently expressed anger towards his mother and [her]
boyfriend, regarding their home situation.” (Capitalization omitted.)
Defendant also claims his “immediate statements of abject acceptance
[of his responsibility for the shooting] and remorse strongly indicate” his
“conduct had been impulsive and without consideration in the moment of the
risks and consequences of acting on the impulse.” However, criminal
defendants of any age can, and do, act in the moment without weighing the
likely consequences. Moreover, there was evidence defendant was more self-
aware than he portrayed at the resentencing hearing. The 1997 probation
12
report commented on defendant’s familiarity with criminal behavior and its
risks and consequences as follows:
“While there is little reason to suspect that the minor carefully planned
the murder of the victim, there can be no doubt that the minor was
fully aware of the backgrounds of the juveniles and adults with whom
he chose to spend his time. In talking with the police the minor
admitted knowing that some of these characters were suspects in other
homicides. Additionally[,] the minor was cognizant of the possession
and use of guns by these individuals. Finally[,] the minor attempted to
deceive and dissuade sheriff’s detectives until it was quite clear to him
that the authorities had considerable evidence against him.”
(Capitalization omitted.)
The 1999 probation report similarly stated,
“No matter how naïve and unsocialized he may have been, and even if
he did not know where things were going at the onset of the crime, once
he was given the gun and directed to shoot, it is hard to believe he did
not know exactly what he was doing. Instead of stopping, he shot the
victim not once but twice in the back.”
Factor Two: Family and Home Environment
Defendant maintains the trial court “recognized but then dismissed”
evidence of environmental vulnerabilities, asserting the court “impos[ed] a
virtually unattainable standard for evaluating the evidence of environmental
vulnerabilities.” He points to the 1994 probation report that stated his
mother was 19 years old at the time he was born and his biological father left
when defendant was four years old. The report further stated,
“The mother appears ineffective and disinclined to supervise and
control [defendant]. She describe[d] his behavior at home as ‘pretty
good, except when he is behind her back.’ She has little or no insight
into his behavior, and has adopted the position that he gets in[to]
trouble because he follows others.”
The trial court recognized there was “certainly . . . dysfunction and
neglect.” But it went on to find defendant’s family and home life were “not so
13
profound[ly negative] as to bring [defendant] into that position that would
justify his behavior just from his home life.”
While defendant takes issue with the court’s phraseology, claiming the
court was applying an impossible “justify his behavior” standard, this is
hardly a fair criticism. The clear import of the court’s statement is that given
the entirety of the evidence before it,3 this factor did not weigh against an
LWOP sentence.
Factor Three: Circumstances of The Offense
Defendant maintains the trial court also “fail[ed] to acknowledge” and
give “mitigating weight” to defendant’s “subordinate role” in the killing. “By
all accounts,” says defendant, his cohort, Donald Clark, “was the moving force
in the robbery and murder.”
He cites to a sentencing statement by the chief sheriff’s investigator
that Clark was a hardened gang killer, the crime “ ‘would never have
happened’ ” but for Clark’s influence, and defendant was “ ‘unlike’ ” Clark
and a “ ‘typical “follower.” ’ ” Defendant claims “[t]he undisputed evidence . . .
3 This evidence included, for example, the 1997 probation report
stating,
“In February of 1996, the minor’s relationship with his family was said
to have been quite unstable and defiant. According to his mother this
is no longer true and she asserts that the problems referred to in
earlier reports existed for just a short time. . . . [The mother] claims
that the minor has always responded well to his uncle whenever he has
intervened and that she has had very few problems herself recently
when she has asked him to do things around the house. In her mind he
is almost a model son at home. On the other hand[,] she admits that
his behavior away from home, has been a course of concern for some
time. She seems to believe that his behavior only becomes offensive
when he comes under the influence of alcohol or other youngsters.”
14
is that the older codefendant[4] . . . was the moving force in the robbery,
brought the handgun, initiated the robbery, and then ‘handed [defendant] the
gun and told him to shoot the victim in the back.’ ”
However, the court pointed out the crime also “involved great violence
and a high degree of cruelty,” that “defendant used a firearm in the murder,”
and the “victim was particularly vulnerable.” Indeed, the 1999 probation
report stated defendant not only shot “an innocent, unresisting” young man
“twice in the back” but “was willing to do [so] even after the victim, who did
not put himself in jeopardy, looked upon defendant for the last time to see
whether the defendant intended to follow the directions of his companion.”
(Capitalization omitted.) Furthermore, defendant told police officers he did
not feel pressured by his companion and was not afraid of him.
Factor Four: Incompetencies Associated with Youth
In Gutierrez, the court explained that the fourth factor—
incompetencies associated with youth—focuses on whether the defendant’s
youth compromised his ability to navigate the criminal justice process. The
high court explained a sentencing court “must consider any evidence or other
information in the record as to 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. See, e.g., Graham [v. Florida] 560 U.S. [40,] 78 . . . (“[T]he
features that distinguish juveniles from adults also put them at a significant
disadvantage in criminal proceedings”); J.D.B. v. North Carolina, 564 U.S.
4 Defendant’s cohort was, in fact, 14 years old at the time, at least two
years younger than defendant.
15
[261, 271–274] . . . (2011) (discussing children’s responses to interrogation).’ ”
(Gutierrez, supra, 58 Cal.4th at p. 1389.)
Defendant complains the trial court made “no reference whatsoever” to
this factor, and specifically no reference to defendant’s rejection of a plea deal
under which he would have received 29 years to life sentence. After
accepting the deal, he rejected it, stating he “wanted to take his chances at
trial.” Defendant now maintains this “was an entirely irrational about-face
given that there was virtually zero chance of obtaining a better result.”
Defendant is correct that the trial court did not expressly address this
factor. What the trial court did say was, “I’m not going to review each one of
these factors in great detail.· I think they’ve been expressed well in the
papers.” The court also said it had reviewed all the material before it, and
defense counsel expressly argued defendant had exhibited an immature
approach to the criminal justice process, specifically mentioning his rejected
of a plea deal.
That the court did not expressly address this factor does not
demonstrate error. To begin with, no case has held that a resentencing
decision must take the form of a checklist, where each Miller/Gutierrez is
separately identified and addressed. Furthermore, absent affirmative
evidence to the contrary, of which there is none here, we must presume the
trial court followed the law and considered the relevant factors. (E.g.,
Gutierrez, supra, 58 Cal.4th at p. 1390 [“[a]bsent evidence to the contrary, we
presume that the trial court knew and applied the governing law”]; Cal. Rules
of Court, rule 4.409 [“Relevant factors enumerated in these rules must be
considered by the sentencing judge, and will be deemed to have been
considered unless the record affirmatively reflects otherwise.”].)
16
In his reply brief, defendant maintains California Rules of Court, rule
4.409 is inapplicable, citing People v. Simpson (1979) 90 Cal.App.3d 919(Simpson). In Simpson, the trial court was required to impose the middle
term for a liquor store robbery unless it found circumstances in aggravation
or mitigation. (Id. at pp. 922–923.) The probation report “[i]nexplicably”
listed “ ‘none’ ” under the heading “ ‘Circumstances in Mitigation,’ ” even
though the record indicated the defendant was unquestionably suffering from
alcoholism and alcoholism was listed as a circumstance in mitigation. (Id. at
p. 927.) Stating that “[t]he [trial] court, however, did not take into account
[defendant’s] alcoholism as a mitigating circumstance,” the Court of Appeal
concluded the lower court could not “be viewed as having exercised its
discretion or as having weighed the circumstances.” (Ibid.) Nor, under the
facts of the case, did California Rules of Court, rule 409 assist the prosecution
as the record “not only reflect[ed] that the trial court did not consider the
mitigating circumstance but that in fact it considered [the defendant’s]
alcoholism as an aggravating circumstance.” (Simpson, at p. 927.)
In other words, in Simpson, the record “affirmatively reflected” that the
trial court failed to consider the defendant’s alcoholism as a mitigating factor
as required by the law and erroneously considered it an aggravating factor.
The record here, in contrast, contains no affirmative evidence showing that
the trial court “ignored” any of the mitigation evidence presented by
defendant or failed to consider any of the Miller/Gutierrez factors.
Factor Five: Rehabilitation
Finally, defendant maintains that the trial court failed to consider his
prospects for rehabilitation, focusing on his expressions of remorse and
acceptance of responsibility for the offense. Defendant highlights that after
“amateurish efforts to deny involvement in the offense when initially
17
questioned,” defendant admitted to his mother at the police station that he
“ ‘did it’ ” and thereafter he repeatedly expressed remorse for the crime, as
documented in the 1999 probation report:
“ ‘I murdered somebody for no reason during a robbery. I shot him in
the back twice. My partner and I held him at gunpoint, pat him down
and I shot him; he had no money. It happened so fast, [companion]
gave me the gun, after I shot the dude, I ran because I was scared. I
shot somebody I then went to my partner’s house and got high. I don’t
know why I got involved. I should get time for what I did, not for the
rest of my life. It ain’t going to bring him back and it ain’t going to
change what happened. I feel what I did was wrong, wrong, shooting
someone. I feel bad for the family and I’m sorry I didn’t realize how
precious life was until now I think about my family and the guy I shot
and how his family feels. First time I was locked up I had nightmares.
Like I’m at a grave site, leaving something on the grave of the dude I
killed and then I wake up.’ ”
Defendant also expressed remorse at the 2021 resentencing hearing:
“I wish that I could take it back. I think of his kids. I understood that
he had kids afterwards, and I think about them and think about the
pain that I have caused them, and I wish that I could take it all back.
But the only thing that I can do now is to try to live each day a better
day, and I’m just–I just wish that I could take everything back. I just
hate the pain that I’ve caused everyone. It’s one of my deepest regrets.”
The trial court, however, took a more in depth look at defendant’s
criminal history and found it evidenced escalating violent behavior. In March
1993, at age 13, defendant first came to the attention of law enforcement for
possession of a stolen vehicle. That same month, he threatened to kill an
employer. According to the police report from the incident, defendant told his
employer “ ‘I’m going to North Richmond to get my friends with guns and I’m
coming back to kill you.’ ” In April, defendant went to his former elementary
school and attacked a student in the schoolyard, kicking him in the stomach
and hitting him in the head.
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In May 1995, defendant and two other teenagers attacked a fellow high
school student on schoolgrounds, leaving the victim with a bloody nose and
mouth, bruised head and elbows, and scraped knee. Defendant was on
probation at the time. In December, defendant, while intoxicated, got into an
argument with his mother. When his four-year-old brother walked between
the two, defendant picked him up and threw him 10-12 feet across the room.
Defendant then pushed his mother to the floor and began strangling her.
In April 1996, while serving a six-month sentence at Byron Boy’s
Ranch, defendant assaulted another ranch resident.
A March 1997 probation report summed up defendant’s conduct as
follows:
“As already stated, the minor did not give good indication of taking
advantage of the ranch program during the time he was there.
Indeed[,] the minor had to be removed and then returned again later
following a stay at juvenile hall. Since leaving the ranch he has had
another episode with drug abuse. In all of the time that the minor was
on probation, he was never able to complete a work detail program.
[¶] . . . The minor turns eighteen in nine months. In four years he has
not been able to alter the course of his criminal behavior. In fact there
is indication that he has accelerated his criminal behavior in that he
has now engaged in a most heinous crime.”
At the Franklin hearing, defendant testified about what he had done in
prison to improve himself. He was taking a GED prep class (which he had
commenced only on learning he was eligible for a youthful offender parole
hearing), had completed an Alternatives to Violence Program, and had
started, but not completed, a welding course, Narcotics Anonymous, and
Alcoholics Anonymous. The trial court was underwhelmed by this meagre
effort over more than 20 years of incarceration.
Furthermore, defendant acknowledged that while incarcerated, he had
been involved in a prison riot; committed multiple rule violations, including
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possessing methamphetamine and two instances of possessing contraband
cellphones; was sanctioned for indecent exposure; and failed to complete
court-ordered programs. Three of defendant’s rule violations occurred in
2018 and 2019, after he learned about his eligibility for a parole board
hearing.
In sum, the record reflects that the trial court devoted a great deal of
time to defendant’s Franklin and Miller/Gutierrez hearings, was fully
conversant with the applicable law, and thoughtfully reviewed all the
evidence before it for the express purpose of considering youth related factors
as required by Miller and Gutierrez. The court undertook the “careful
individualized inquiry” Gutierrez calls for. (Gutierrez, supra, 58 Cal.4th at
p. 1382.) That defendant disagrees with the court’s decision or that another
trial court might have reached a different conclusion, does not render the
court’s decision here arbitrary or irrational. (See People v. Carmony (2004)
33 Cal.4th 367, 377 [[A] sentencing “ ‘ “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.’ ” ’ ”].)
And on this record, given the deferential standard of review that
applies, we cannot conclude the court’s decision exceeded the bounds of
reason. We therefore affirm the trial court’s resentencing determination.5 In
so doing, we observe, as the parties have commented, that defendant will
5Given our conclusion that defendant has not shown the court failed to
consider the Miller/Gutierrez factors, we likewise conclude he has not
established a due process violation constituting a miscarriage of justice. Nor
do we reach defendant’s claim that the trial court “demonstrate[d] a
fundamental, if not willful, miscarriage of justice,” and therefore the case
should be reassigned to a different judge on remand.
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receive, or perhaps has already received, a youth offender parole hearing
under Penal Code section 3051, subdivision (b)(4). At that hearing, the Board
of Parole Hearings must “give great weight to the diminished culpability of
youth as compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the prisoner in accordance with
relevant case law” (Pen. Code, § 4801, subd. (c); see id., § 3046, subd. (c)), and
we emphasize that neither the trial court’s decision nor our affirmance of that
decision should be interpreted as constraining or impinging on the parole
board’s independent decision-making authority.6 (See Pen. Code, § 3041.5,
subd. (c) [“The board shall conduct a parole hearing pursuant to this section
as a de novo hearing.”].)
DISPOSITION
The judgment is AFFIRMED.
6 Although Courts of Appeal have held eligibility for a youthful parole
hearing renders moot a defendant’s Miller/Gutierrez challenge to an LWOP
sentence (People v. Lozano (2017) 16 Cal.App.5th 1286, 1292) the Attorney
General has made no claim on appeal the instant challenge is moot. We
therefore do not address the issue.
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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Bowen, J.*
**Judge of the Contra Costa County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A164100, People v. Rainey
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