Filed 1/22/15
                             CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


In re DERRICK LYNN WILSON,                           B254093

                                                     (Los Angeles County
        on Habeas Corpus.                            Super. Ct. No. KA028967)




                  ORIGINAL PROCEEDING on a petition for writ of habeas corpus.
Robert Armstrong, Judge. Petition granted.


                  Michael J. Brennan and Heidi L. Rummel, Post-Conviction Justice Project,
University of Southern California Law School, for Petitioner.*


                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Taylor Nguyen, Deputy Attorneys General, for Respondent.


_______________________________________________________________________
*Elizabeth Little, Certified Law Student, presented oral argument.
       Petitioner Derrick Lynn Wilson seeks habeas relief asserting, among other
contentions, that pursuant to the principles announced in Miller v. Alabama (2012) 567
U.S. ___, 132 S.Ct. 2455 (Miller), the life imprisonment without parole (LWOP)
sentence he received in 1996 for a crime he committed when he was 17 years old violates
the Eighth Amendment prohibition on cruel and unusual punishment. Wilson further
argues he is entitled to be resentenced based on the individual sentencing factors that the
Miller Court directed trial courts to consider when sentencing a juvenile offender for a
homicide conviction. We conclude that Wilson is entitled to habeas relief, and therefore
grant the petition for writ of habeas corpus, and remand for resentencing.
                   FACTUAL AND PROCEDURAL BACKGROUND
       A. The Crimes1
       On August 22, 1995, three masked males, later identified as Petitioner Wilson,
Bobby White and Jamon Carr, approached the Chino Valley Bank in Pomona. Wilson,
White and Carr were all 17 years old at the time. They were armed with handguns. As
they walked towards the bank, one of the young men fired at the security guard who
stood outside the bank near the ATM machine. The security guard was not hit by the
shots; he fled on foot and then alerted police.
       Once inside the bank, one of the young men told the customers to “hit the deck.”
The young men then jumped over the teller counter; one of them grabbed Theresa
Hernandez, a bank employee. They ordered Hernandez to give them money and pointed
to the teller counter. Hernandez responded that the money was not there. At some point
during the encounter, Hernandez was struck in the head. She dropped her keys, and as
she bent down to retrieve them, one of the three assailants shot and killed her.
       Wilson, Carr and White ran out of the bank. They fled in a car driven by Quentin
Smith. Another car occupied by Kareem Jamal Brown also waited nearby for the trio.2




1       The facts relating to the crimes are taken from this court’s opinion in Wilson’s
direct appeal (case No. B104556).

                                              2
       Shortly after the robbery, White admitted to his girlfriend that he had participated
in the crimes and shot Hernandez during the robbery. White said that he shot Hernandez
because he thought that Hernandez was activating an alarm. Petitioner Wilson admitted
to his fiancée that he had “pistol whipped” the victim.
       Brown was arrested.3 Wilson, Carr and White turned themselves into the police a
few days after the robbery.
       B. Wilson’s Background4
       Wilson was born on September 7, 1977. He lived with his parents and two
younger siblings in Inglewood, and then later in south central Los Angeles.
       According to Wilson and his mother, his family life was very structured; his
parents were overprotective and were strict disciplinarians. Wilson’s mother chose his
friends, rarely allowed him to watch television, and would not let him play outside with
other neighborhood children. He was not allowed to spend the night at a friend’s home.
Until he was in high school, Wilson attended Los Angeles Christian School, where his
mother worked.
       When Wilson was a pre-teen he began to feel frustrated by his school and strict
home life; Wilson felt isolated and resentful because of the restrictions placed on him by
his parents. He claimed that he was teased in the neighborhood for attending a charter
school and because he wore a school uniform. Wilson began going out at night without


2      Smith and Brown were adults at the time of the attempted robbery. On the day of
the robbery, Brown and Smith drove Wilson and his codefendants to the bank.
According to Wilson, Brown told them that because White, Wilson and Carr were minors
they would not receive harsh sentences if they were caught. Brown and Smith instructed
Wilson and his codefendants to throw the money and guns in Brown’s car, and then drive
away in Smith’s car after the robbery.

3      Smith died prior to trial.
4      The facts relating to Wilson’s background and family history are taken from
declarations of Wilson and his mother that were attached as exhibits filed in support of
his petition for habeas corpus. This information was not presented during his original
sentencing hearing.

                                             3
his parents’ knowledge, and fought with his parents when they attempted to control his
actions. Wilson’s father would often hit him with a belt or switch.
       Wilson began having behavioral problems at his school. His parents decided to
send him to a public high school. He initially attended El Camino Real Charter High
School in the San Fernando Valley. By his early teens, Wilson began using marijuana
and alcohol on a regular basis. Wilson was truant from school. He associated with older
males in his neighborhood who had made money by selling drugs and committing crimes.
His parents would lock him out of the house for violating the house rules.
       In ninth grade Wilson was expelled from El Camino Real Charter High School for
fighting. Wilson’s mother enrolled him at Washington High School in Los Angeles. She
later discovered that Wilson was not attending classes at Washington High School.
       Wilson ran away to his paternal aunt’s house, after his mother found drug
paraphernalia in his clothing. Wilson moved back and forth between his parents’ home
and various relatives for a number of months. After one of Wilson’s friends was
involved in a shooting, his mother sent him to Arizona to stay with another maternal aunt.
Wilson soon found himself in trouble with his aunt for skipping school so he returned to
Los Angeles. Wilson emulated the lifestyle of his friends who sold and abused drugs,
consumed alcohol and did not attend school. At age 15, he joined the East Coast Crips
gang and became involved in gang activity.
       During this period, Wilson continued to move from place to place, staying with
extended family, with friends, on the streets, or in motels. When Wilson was 17 years
old, he rented an apartment and began dating Keisha Kelly. Wilson soon moved in with
Ms. Kelly. He helped her pay the bills and buy groceries and school supplies for her
children.
       Wilson met two of his codefendants, Carr and White, through one of Ms. Kelly’s
friends. Wilson and his codefendants began spending time together and were involved in
some minor robberies. Brown, who was 22 years old at the time, approached Carr,
White, and Wilson, and proposed that they rob a bank in Pomona. According to Wilson,



                                             4
Brown picked them up the night before the robbery, and took them to his house, where
they spent the night. Brown also supplied guns to use in the robbery.
       C. Conviction, Sentencing, Appeal and Instant Petition for Habeas Petition
       Wilson and his three codefendants were charged with first degree murder (with a
robbery special circumstance); attempted robbery with an allegation that White
personally used a firearm; and attempted murder. Wilson was tried with his codefendants
Brown, Carr, and White. On April 12, 1996, Wilson was found guilty of felony murder
in the first degree, in violation of Penal Code section 187, subdivision (a); 5 attempted
second degree robbery, and attempted murder.
       On April 30, 1996, Wilson and his codefendants appeared for a sentencing
hearing. During the proceeding, family members and friends of the victim testified and
asked the court to impose an LWOP sentence on the defendants. No evidence or
witnesses were presented on behalf of Wilson during that hearing. The court continued
the sentencing, indicating that any mitigating evidence on behalf of Wilson and his
codefendants could be offered at a later date.
       On June 7, 1996, Wilson again appeared for sentencing. On this date, Wilson
attempted to substitute out his attorney for another attorney. The court denied the
motion. No individuals spoke on Wilson’s behalf during that proceeding. The matter
was continued to September 6, 1996, to allow Wilson to participate in a psychiatric
evaluation.
       Wilson did not participate in the evaluation, however. At the continued sentencing
hearing, Wilson’s counsel provided the court with a mitigation statement, and asked the
court to exercise its discretion to sentence Wilson to 25 years to life rather than LWOP.
The mitigation statement noted that: (1) Wilson was a minor at the time of the offense
and induced by others to participate in the crime; (2) Wilson had no prior criminal record;
(3) at the time of his arrest he was still pursuing his high school diploma and was



5      All references to statute are to the Penal Code unless otherwise indicated.

                                             5
employed; and (4) Wilson voluntarily acknowledged his wrongdoing at an early stage of
the criminal process.
       At sentencing, the court considered evidence submitted by the prosecution that:
the crime involved great violence and bodily harm; Wilson was armed; the victim was in
a vulnerable position; Wilson was a leader; Wilson was a participant in a planned
robbery; and the crime included an attempted taking of great monetary value.
       The court imposed on Wilson the sentence of life without the possibility of parole.
In explaining the decision, the court stated: “In this matter, we did have a sentencing
hearing and there were many people who gave the court the benefit of input, and of
course, I tried the case and heard all of the facts. [¶] And in this matter, the jury found
the defendant guilty of the attempted robbery and the attempted murder of the guard and
the murder of the victim. And even though he was not the shooter, the evidence was
clear that he was a very active participant and that he did, in fact, pistol-whip the victim
before the co-defendant actually shot her to death. [¶] That the jury found the special
circumstances to be true would mandate life without the possibility of parole but for the
fact of the defendant’s age. And the court does have some discretion in that manner. [¶]
So in passing the sentence, I want to make it clear that I have considered that possibility.
I’ve exercised that discretion and I find that in view of the totality of the circumstances in
this case that the defendant does not merit such consideration and the verdict of the jury
is compelling and, therefore, as to the count of murder, the defendant is sentenced to life
imprisonment without the possibility of parole.”
       On July 20, 1998, this court affirmed the judgment on direct appeal (case No.
B104556).
       On May 6, 2013, Wilson filed a petition for writ of habeas corpus in the Los
Angeles County Superior Court (case No. KA028967), challenging the constitutionality
of his LWOP sentence in light of the United States Supreme Court’s opinion in Miller.
Wilson argued that Miller requires reexamination of the constitutionality of his sentence,
including the validity of the statutory scheme the sentencing court used to select the
punishment and the adequacy of the sentencing court’s consideration of the distinctive

                                              6
mitigating features of youth addressed in the Miller opinion. Wilson also requested that
the superior court defer further briefing pending the outcome of two cases – People v.
Moffett (S206771) and People v. Gutierrez (S206365) – that were pending before the
California Supreme Court.6
       In July 2013, the Los Angeles County Superior Court issued an order deferring
further briefing until 90 days after the California Supreme Court issued its rulings in
People v. Moffett and People v. Gutierrez.
       In the fall of 2013, however, the superior court denied Wilson’s petition. The
order did not address any of the constitutional issues raised by Wilson in his petition.
Instead, the court found that the enactment of Senate Bill No. 260, which added section
3051 to the Penal Code, created an administrative remedy for Wilson, making his
constitutional claims moot. Wilson filed a motion for reconsideration. Wilson argued
that Senate Bill No. 260 provided no remedy for him because he was sentenced to
LWOP.7


6      The California Supreme Court granted review in Moffett and Gutierrez to consider
the constitutionality of section 190.5, the statute pursuant to which Wilson had been
sentenced, in light of Miller, and to decide whether the individual sentencing
considerations announced in Miller should apply to imposition of sentences under section
190.5. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1360 [“We granted review to
determine whether a presumption in favor of a sentence of life without parole under
section 190.5(b) violates the Eighth Amendment to the United States Constitution under
the principles announced in Miller.”].) As discussed elsewhere here, the California
Supreme Court filed its opinion in Moffett and Gutierrez in May 2014. (Ibid.)

7       Under section 3051 of the Penal Code minors sentenced to determinate term of years
or a life term have an opportunity to prove their rehabilitation and secure release on parole
after serving a prescribed term of confinement. Senate Bill No. 260, codified as section
3051, provides an opportunity for a juvenile offender to be released on parole irrespective of
the sentence imposed by the trial court by requiring the Board of Parole Hearings to conduct
“youth offender parole hearings” (Sen. Bill No. 260 (2013–2014 Reg. Sess.) ch. 312, § 4, p.
7) to consider the release of juvenile offenders sentenced to prison for specified crimes. It
provides for a youth offender parole hearing during the 15th year of incarceration for a
prisoner serving a determinate sentence (§ 3051, subd. (b)(1)), a hearing during the 20th
year of incarceration for a prisoner serving a life term less than 25 years to life (§ 3051,

                                             7
       The court denied Wilson’s motion for reconsideration.
                                       DISCUSSION
       Wilson argues that his LWOP sentence must be vacated and that he is entitled to
resentencing. He asserts that his sentence violates the Eighth Amendment’s prohibition
on cruel and unusual punishment in light of the Supreme Court’s recent opinion in Miller,
where the Supreme Court held that a mandatory LWOP sentence for a juvenile convicted
of homicide offenses is unconstitutional, and that a sentencing court must consider
individual considerations before imposing an LWOP sentence on a juvenile.
       The Attorney General disagrees, and also argues that section 1170, subdivision
(d)(2) provides a remedy for juveniles with LWOP sentences. In addition, the Attorney
General raises several threshold arguments unrelated to the merits. Specifically, the
Attorney General contends that Wilson’s habeas petition should be summarily denied
because it was filed too late; and that Miller does not apply to Wilson’s case because
Miller’s holding and analysis does not warrant retroactive application.
I.     Timeliness of Wilson’s Habeas Petition
       The Attorney General asserts that Wilson’s petition should be rejected because it
was filed 15 years after the judgment became final in the case, and almost a year after
Miller was filed. The Attorney General also points out that in Wilson’s 1998 direct


subd. (b)(2)), and a hearing during the 25th year of incarceration for a prisoner serving a life
term of 25 years to life (§ 3051, subd. (b)(3)). Section 3051, subdivision (f)(1) requires that
any psychological evaluations and risk assessment instruments be administered by a
licensed psychologist employed by the board and that the evaluations and instruments “take
into consideration the diminished culpability of juveniles as compared to that of adults, the
hallmark features of youth, and any subsequent growth and increased maturity of the
individual.” (§ 3051, subd. (f)(1).) Section 3051 exempts from its provisions inmates who
were sentenced pursuant to the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the
Chelsea King Child Predator Prevention Act of 2010 (formerly and more commonly known
as Jessica's Law) (§ 667.61), or “to life in prison without the possibility of parole” (§ 3051,
subd. (h)).

      The Attorney General has conceded that section 3051 does not provide a remedy for
Wilson or moot his petition because it excludes individuals such as Wilson who are serving
LWOP sentences.

                                              8
appeal, Wilson asserted an unsuccessful challenge to his sentence as cruel and unusual
punishment in violation of the Eighth Amendment.
       In general a petition for a writ of habeas corpus must be filed “as promptly as the
circumstances allow.” (In re Clark (1993) 5 Cal.4th 750, 765, fn. 5.) Nonetheless,
neither the Legislature nor the Supreme Court has established an express time limit
within which a petitioner must seek habeas relief (In re Huddleston (1969) 71 Cal.2d
1031, 1034), although any significant delay in seeking collateral relief must be fully
justified. (In re Nunez (2009) 173 Cal.App.4th 709, 723.) Delay is measured from the
time a petitioner knew, or reasonably should have known, the information in support of
the claim and the legal basis for the claim. (In re Huddleston, supra, 71 Cal.2d at
p.1034.) Indeed, “[a] defendant could not be expected to raise at the time of his
conviction points of law which had not yet been pronounced.” (Ibid.; In re Caffey (1968)
68 Cal.2d 762, 773.)
       Wilson’s petition is not untimely. The arguments that Wilson asserts in his
petition regarding the constitutionality of his LWOP sentence were not legally viable
prior to 2012 when the Supreme Court decided Miller. In addition, the Miller Court
announced new sentencing considerations for juveniles based on scientific research and
insights that were developed after Wilson’s original sentencing. Although some of the
age-based sentencing considerations addressed in Miller are included in section 190.3
(and existed when Wilson was sentenced), Miller relied on the new scientific information
to expand the list of those considerations and recalibrate the weight they should be given
by a sentencing court.
       We also conclude that Wilson’s 10-month delay in filing his habeas petition after
Miller became final does not justify the rejection of his claims. (See In re Huddleston,
supra, 71 Cal.2d at p. 1034 [concluding a lapse of two and one-half years between
discovery of the ground to seek relief and filing of the petition does not amount to an
unreasonable delay].) Given the length of time Wilson has been in prison and the
dormancy of his case since his conviction was affirmed in 1998, the fact that it took him a



                                             9
number of months to find appellate counsel and to prepare and file a petition is not
unreasonable.
II.    The Constitutionality of Juvenile LWOP Sentences
       In his petition, Wilson argues that his LWOP sentence violates the Eighth
Amendment’s prohibition on cruel and unusual punishment in view of recent Eighth
Amendment jurisprudence.
       A.       Eighth Amendment in the Context of Sentencing Juveniles
       The Eighth Amendment guarantees that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th
Amend.) The right not to be subjected to excessive sanctions “flows from the basic
‘precept of justice that punishment for crime should be graduated and proportioned to
[the] offense.’” (Roper v. Simmons (2005) 543 U.S. 551, 560.) To determine whether a
punishment is cruel or unusual in violation of the Eighth Amendment, “courts must look
beyond historical conceptions to ‘“the evolving standards of decency that mark the
progress of a maturing society.”’ [Citations].” (Graham v. Florida (2010) 560 U.S. 48,
58.) “This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but
necessarily embodies a moral judgment. The standard itself remains the same, but its
applicability must change as the basic mores of society change.’” (Kennedy v. Louisiana
(2008) 554 U.S. 407, 419.)
       In the context of juvenile offenders, the Supreme Court in Miller held that the
Eighth Amendment forbids sentences of non-discretionary, mandatory life imprisonment
without the possibility of parole for individuals who were under the age of 18 at the time
they committed a homicide offense. (Miller v. Alabama, supra, 567 U.S. __, 132 S.Ct.
2455.) Although the Court did not categorically bar the punishment of life imprisonment
without parole for minors, it determined that the sentencing court must consider the
offending minor’s age and youthful characteristics before imposing such a sentence. (Id.




                                            10
at pp. 2467, 2471.)8 Concerned with proportionality of punishment, the Court looked to
two lines of precedent to reach this result. (Id. at p. 2463.)
       The first line of cases held the Eighth Amendment bar against cruel and unusual
punishment categorically banned sentencing practices resulting in divergence between
the culpability of a class of offenders and the severity of the penalty imposed. (Miller v.
Alabama, supra, 567 U.S. __, 132 S.Ct. 2455, citing Graham v. Florida, supra, 560 U.S.
at pp. 61-62 [holding unconstitutional a sentence of life imprisonment without parole for
a minor who committed a non-homicide offense]; Atkins v. Virginia (2002) 536 U.S. 304
[holding the execution of intellectually disabled defendants unconstitutional]; Roper v.
Simmons, supra, 543 U.S. 551 [holding the execution of individuals who were under 18
years of age at the time of their capital crimes unconstitutional]; Kennedy v. Louisiana
(2008) 554 U.S. 407 [holding unconstitutional the death penalty for non-homicide
offenses].) Evaluating these cases, the Supreme Court concluded that “children are
different from adults for the purposes of sentencing” in a number of ways. “First,
children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading
to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children ‘are
more vulnerable . . . to negative influences and outside pressures,’ including from their
family and peers; they have limited ‘contro[l] over their own environment’ and lack the
ability to extricate themselves from horrific, crime-producing settings. [Citation.] And
third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’
and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ [Citation.]”


8      Two petitioners were before the Supreme Court in Miller. Evan Miller – who was
convicted of capital murder committed when he was 14 years old and sentenced to life in
prison without possibility of parole – was before the Court on direct appeal from the
Alabama Court of Criminal Appeals, which had affirmed his conviction and sentence.
(Miller v. State (Ala. Crim.App.2010) 63 So.3d 676, cert. denied, No. 1091663 (Ala. Oct.
22, 2010). Kuntrell Jackson – who was convicted of capital felony murder and
aggravated robbery also committed at the age of 14 years and sentenced to life in prison
without the possibility of parole – was before the Court on collateral review, after the
Arkansas Supreme Court affirmed the dismissal of his state habeas petition by the
Arkansas Circuit Court. (Jackson v. Norris (Ark.2011) 378 S.W.3d 103.)

                                               11
(Miller v. Alabama, supra, 567 U.S. __, 132 S.Ct. at p. 2464.) For these reasons,
“juveniles have diminished culpability and greater prospects for reform,” and are thus
“‘less deserving of the most severe punishments.’ [Citation.]” (Id. at pp. 2464-2465.)9
       Miller then looked to a second line of cases requiring individualized decision-
making in capital punishment cases.10 The Miller Court then applied this jurisprudence
to the imposition of life imprisonment on juveniles by reasoning that a life imprisonment
without parole sentence for a juvenile is tantamount to a death sentence for an adult.
(Miller v. Alabama, supra, 567 U.S. ___, 132 S.Ct. at p. 2463-2464.) Because the Eighth
Amendment when applied to adults requires individualized sentencing prior to the
imposition of a death sentence, the Eighth Amendment when applied to juveniles requires
individualized sentencing prior to the imposition of a sentence of life imprisonment
without parole. (Ibid.)




9       The Miller Court also observed: “Our decisions [in Roper and Graham] rested not
only on common sense – on what ‘any parent knows’ – but on science and social science
as well. [Citation.] In Roper, we cited studies showing that ‘“[o]nly a relatively small
proportion of adolescents”’ who engage in illegal activity ‘“develop entrenched patterns
of problem behavior.”’ [Citation.] And in Graham, we noted that ‘developments in
psychology and brain science continue to show fundamental differences between juvenile
and adult minds’ – for example, in ‘parts of the brain involved in behavior control.’
[Citation.] We reasoned that those findings – of transient rashness, proclivity for risk,
and inability to assess consequence – both lessened a child’s ‘moral culpability’ and
enhanced the prospect that, as the years go by and neurological development occurs, his
‘“deficiencies will be reformed.”’ [Citation.]” (Miller v. Alabama, supra, 567 U.S. at pp.
__–__, 132 S.Ct. at pp. 2464–2465, fn. omitted.) “The evidence presented to us in these
cases indicates that the science and social science supporting Roper’s and Graham’s
conclusions have become even stronger.” (Miller v. Alabama, supra, at 567 U.S. at p. __,
fn. 5, 132 S.Ct. at p. 2464, fn. 5; see ibid. [“‘It is increasingly clear that adolescent brains
are not yet fully mature in regions and systems related to higher-order executive
functions such as impulse control, planning ahead, and risk avoidance’”].)

10    The “second line” of precedents cited in Miller are Woodson v. North Carolina
(1976) 428 U.S. 280 and Lockett v. Ohio (1978) 438 U.S. 586.


                                              12
       The Miller Court summarized the individual sentencing factors (the Miller factors)
that are the critical features of individualized sentencing for juveniles: (1) the
“chronological age” of the youth and the hallmark features of youth, including
“immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) the
“family and home environment” that surrounded the youth and from which the youth
cannot usually extricate him or herself; (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 [the juvenile]”; (4) the evidence or information in
the record as to whether the offender might have been charged or convicted of a lesser
offense but for the “incompetencies associated with youth – for example, [the juvenile’s]
inability to deal with police officers or prosecutors (including on a plea agreement) or
[the juvenile’s] incapacity to assist [the juvenile’s] own attorneys”; and (5) “the
possibility of rehabilitation” along with the extent or absence of a criminal history.
(Miller v. Alabama, supra, 567 U.S. at p. ___, 132 S.Ct. at p. 2468.)
       Taking into account “the confluence of these two lines of precedent” – which
establish that juvenile offenders are less culpable and more susceptible to reform than
adults, and that imposition of the harshest punishment on a juvenile requires
individualized sentencing that takes into account an offender’s “youth (and all that
accompanies it)” – the Miller Court held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” (Miller v. Alabama, supra, 567 U.S. at pp. __, __, 132 S.Ct. at pp. 2464,
2469.)11
       The Miller Court also cautioned: “[G]iven all we have said in Roper, Graham, and
this decision about children’s diminished culpability and heightened capacity for change,


11      The Miller Court did not consider the petitioners’ “alternative argument that the
Eighth Amendment requires a categorical bar on life without parole for juveniles, or at
least for those 14 and younger.” (Miller v. Alabama, supra, 567 U.S. at p. __, 132 S.Ct.
at p. 2469.)


                                              13
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 v. Alabama, supra, 567 U.S. at pp. __,
__, 132 S.Ct. at pp. 2464, 2469.)
       Following Miller, the California Supreme Court had the opportunity to determine
the application of Miller’s analysis to California’s sentencing scheme for juvenile
offenders. (People v. Gutierrez, supra, 58 Cal.4th 1354.) Specifically, the Gutierrez
Court considered the constitutionality of section 190.5,12 which had long been interpreted
by the California appellate courts as creating a presumption in favor of LWOP as the
appropriate penalty for juveniles convicted of homicide offenses. (People v. Gutierrez,
supra, 58 Cal.4th at p. 1360.) Gutierrez expressly disapproved the line of cases that had
interpreted section 190.5 as establishing a presumption in favor of LWOP sentences for
juvenile offenders holding “that section 190.5(b) confers discretion on the sentencing
court to impose either life without parole or a term of 25 years to life on a 16- or 17-year-
old juvenile convicted of special circumstance murder, with no presumption in favor of
life without parole.” (Id. at p. 1387.)
       In addition, Guiterrez held that a sentencing court, in exercising its discretion
under section 190.5, must consider all relevant evidence, including the “Miller factors,”
bearing on the “distinctive attributes of youth” and how those attributes “diminish the


12      Section 190.5, subdivision (b) provides that the penalty for 16- or 17-year-old
juveniles who commit special circumstance murder “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.” (§ 190.5.)


                                              14
penological justifications for imposing the harshest sentences on juvenile offenders.”
(People v. Gutierrez, supra, 58 Cal.4th at p. 1390.)13
       B.        Retroactive Application of Miller
       Wilson seeks the benefit of the application of the principles announced in Miller
and applied in Gutierrez. Because Wilson’s LWOP sentence was imposed and the
judgment in his case became final 15 years before Miller was decided, Wilson is entitled
to be resentenced only if the principles announced in Miller apply retroactively to cases
that became final prior to its pronouncement.
                 1.    Test for Retroactivity
       In Teague v. Lane (1989) 489 U.S. 288, the Supreme Court set forth the test for
determining when a new rule of constitutional law will be applied to cases on collateral
review. The Teague Court explained that “[r]etroactivity is properly treated as a
threshold question, for, once a new rule is applied to the defendant in the case
announcing the rule, evenhanded justice requires that it be applied retroactively to all
who are similarly situated.” (Id. at p. 300.) According to Teague, “new rules should
always be applied retroactively to cases on direct review, but . . . generally they should
not be applied retroactively to criminal cases on collateral review.” (Id. at p. 303.) The
Court reasoned that collateral review is not designed as a substitute for direct review and
that the government has a legitimate interest in having judgments become and remain
final. (Ibid.)
       The Teague Court articulated two exceptions to the general rule of
nonretroactivity for new rules in cases on collateral review. First, a new rule should be
applied retroactively if it “places ‘certain kinds of primary, private individual conduct


13     Direct appeals in Gutierrez and Moffett were pending when Miller was decided by
the United States Supreme Court. Because the defendants in People v. Gutierrez and
People v. Moffett were sentenced prior to Miller in accord with the prevailing
interpretation of section 190.5 which included the presumption in favor of LWOP
sentences, the California Supreme Court remanded the two cases for resentencing in light
the principles set forth in Miller and Gutierrez. (People v. Gutierrez, supra, 58 Cal.4th at
p. 1361.)

                                                15
beyond the power of the criminal law-making authority to proscribe.’” (Teague, supra,
489 U.S. at p. 307.) Second, a new rule should be applied retroactively if it “requires the
observance of ‘those procedures that . . . are “implicit in the concept of ordered
liberty.”’” (Ibid.) Thus “[u]nless they fall within an exception to the general rule, new
constitutional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.” (Id. at p. 310.)
       In Schriro v. Summerlin (2004) 542 U.S. 348, the Supreme Court revisited
Teague’s retroactivity analysis. The Schriro Court defined the key distinction in the
retroactivity analysis as whether the new rule is substantive or procedural.
       Schriro held that substantive rules apply retroactively, and include those rules that
(1) narrow the scope of a criminal statute by interpreting its terms or (2) “alter the range
of conduct or the class of persons covered by the statute and place them beyond the
State’s power to punish.” (Schriro, supra, 542 U.S. at pp. 351-342.) Included within the
second category are rules prohibiting a certain category of punishment for a class of
defendants because of their status or offense. Such rules apply retroactively because they
carry a “‘significant risk’” that a defendant stands convicted of “‘an act that the law does
not make criminal’” or “faces a punishment that the law cannot impose upon him.” (Id.
at p. 352.) The Court explained that although it had sometimes referred to rules of this
type as “falling under an exception to Teague’s bar on retroactive application of
procedural rules, . . . they are more accurately characterized as substantive rules not
subject to the bar.” (Id. at p. 352, f n. 4.)
       The Court further explained that new “rules of procedure” generally do not apply
retroactively because they do not produce a class of persons convicted on conduct that the
law does not make criminal, but merely raise the possibility that someone convicted with
use of the invalidated procedure might have been acquitted otherwise. The Court found
that because of the speculative connection to innocence, retroactive effect is only given to
a small set of “watershed rules of criminal procedure” implicating the fundamental
fairness and accuracy of the criminal proceeding. (Schriro, supra, 542 U.S. at p. 352.)



                                                16
This class of rules is extremely narrow; a watershed rule is one “without which the
likelihood of an accurate conviction is seriously diminished.”14 (Ibid.)
       In applying the “substantive/procedural” dichotomy announced in Schriro, courts
have included within the substantive category categorical bans, such as rules forbidding
imposition of the death sentence on persons with intellectual disabilities or on juveniles.
(See Penry v. Lynaugh (1889) 492 U.S. 302, 330, abrogated on other grounds; Atkins v.
Virginia (2002) 536 U.S. 304; Roper v. Simmons, supra, 543 U.S. 551.) The Court has
treated the rule forbidding life imprisonment for a juvenile convicted of a nonhomicide
offense as a substantive rule (see Graham v. Florida, supra, 560 U.S. at pp. 61-62), as it
has a decision that modifies the elements of an offense because new elements alter the
range of conduct the statute punishes, rendering some formerly unlawful conduct lawful
or vice versa. (See Bousley v. United States (1998) 523 U.S. 614, 620-621.)
       In the sentencing context, the Court has found a number of rules to be procedural.
Schriro considered whether the rule announced in Ring v. Arizona (2002) 536 U.S. 584 –
that a jury, and not a judge, had to find an aggravating circumstance necessary for
imposition of the death penalty – applied retroactively to cases on collateral review.
Schriro held this rule was procedural, noting it merely “altered the range of permissible
methods for determining whether a defendant’s conduct is punishable by death.”
(Schriro, supra, 542 U.S. at p. 353.) The Court noted that rules that “allocate
decisionmaking authority in this fashion are prototypical procedural rules” but stated:
“This Court’s holding that, because [a state] has made a certain fact essential to the death
penalty, that fact must be found by a jury, is not the same as this Court’s making a certain




14      The Court further observed that the watershed class of rules is extremely narrow,
and that it is unlikely that any has yet to emerge. “In providing guidance as to what
might fall within this exception, [the Court] has repeatedly referred to the rule of Gideon
v. Wainwright (1963) 372 U.S. 335 [right to counsel] and only to this rule.” (Schriro v.
Summerlin, supra, 542 U.S. at p.352.) As the Court observed in Beard v. Banks (2004)
542 U.S. 406, 417, “it should come as no surprise that we have yet to find a new rule that
falls under the second Teague exception.”

                                             17
fact essential to the death penalty. The former was a procedural holding; the latter would
be substantive.” (Id. at p. 354.)
       In state courts, the Supreme Court has held that the Teague/Schriro retroactivity
analysis applied in federal habeas actions is not binding when deciding issues of
retroactivity under state law. (Danforth v. Minnesota (2008) 52 U.S. 264, 276.) A state
court is “‘free to choose the degree of retroactivity or prospectivity which [it] believe[s]
appropriate to the particular rule under consideration, so long as [it] give[s] federal
constitutional rights at least as broad a scope as the United States Supreme Court
requires.’” (Ibid.) Thus, states can give broader effect to new rules than is required by
the Teague/Schriro test.15
              2.     Application of Teague/Schriro to Miller
       To determine whether a new rule applies retroactively to a petitioner’s conviction
on collateral review, the Court has set forth a three-step approach; at a minimum, courts
must: (1) determine the date petitioner’s judgment of conviction became final; (2)
“‘[s]urve[y] the legal landscape as it then existed,’ and ‘determine whether a state court
considering [the defendant’s] claim at the time his conviction became final would have
felt compelled by existing precedent to conclude that the rule [he] seeks was required by
the Constitution’” (quoting Saffle v. Parks(1990) 494 U.S. 484, 488); and (3) decide
whether one of the two exceptions to nonretroactivity apply. (Caspari v. Bohlen (1994)
510 U.S. 383, 390; citations omitted.)




15      The California Supreme Court has also acknowledged its authority to give greater
retroactive impact to a decision than the federal courts. (See In re Gomez (2009) 45
Cal.4th 650, 653 [applying Teague and concluding Cunningham v. California (2007) 549
U.S. 270 applied on collateral review to judgments final before it was decided].)
Nonetheless, because, as we shall explain, we conclude that Teague/Schriro require the
retroactive application of Miller in the present case, we need not conduct a separate
analysis. Similarly, our conclusion that the principles announced in Miller should be
applied here renders unnecessary the consideration of the Attorney General’s argument
that this court should not apply Gutierrez retroactively in this case.


                                             18
       Here the parties agree that Miller announced a new rule, satisfying the second
prong. A “new rule” is defined as a rule that was not dictated by precedent existing at the
time the defendant’s conviction became final. (Whorton v. Bockting (2007) 549 U.S.
406, 416.) Indeed, the rule announced in Miller was not dictated by precedent existing at
the time the judgment in Wilson’s case became final in 1998. Rather, Miller relied
heavily on Graham, decided in 2010 and Roper, decided in 2005. As a result, we look to
the third step: is Miller either a substantive or procedural rule?16 No published opinion
of a court in California has resolved the question of retroactivity of Miller.17
                     a.      Retroactive Application of Miller in Other Jurisdictions
       Other jurisdictions have considered the retroactive application of Miller, with
mixed results. The primary issue in these cases is whether the rule announced in Miller is
substantive or procedural.
       Courts that have determined the rules announced in Miller are procedural focus
specifically on language in Miller that “‘[o]ur decision does not categorically bar a
penalty for a class of offenders or type of crime.’” These courts reason that Miller simply
“altered the range of permissible methods” for determining whether a juvenile could be
sentenced to life imprisonment without parole. (See State v. Tate (2013) 130 So.3d 829,
837 [Louisana State Supreme Court]; Commonwealth v. Cunningham (2013) 81 A.3d 1,
10 [Pennsylvania Supreme Court]; Malvo v. Mathena (E.D. Va. Nov. 12, 2014) 2014 WL


16    Because we conclude that rules announced in Miller are substantive we do not
analyze whether Miller falls within the Teague exception for a “watershed” rule of
criminal procedure.

17     Earlier this year in In re Rainey (2014) 224 Cal.App.4th 280, the First District
Court of Appeal held that Miller announced new substantive rules and therefore applied
retroactively to cases on collateral review. However, the Supreme Court granted a
petition for review in Rainey. (In re Rainey (2014) __ Cal.4th __, 326 P.3d 251
(S217567).) In granting review, the Court ordered briefing deferred pending decision in
In re Alatriste (S214652) and In re Bonilla (S214960) which included the issue: “Does
Miller apply retroactively on habeas corpus to a prisoner who was a juvenile at the time
of the commitment offense and who is presently serving a sentence that is the functional
equivalent of life without the possibility of parole?”

                                             19
2808805 [slip opinion]; In re Morgan (11th Cir. 2013) 713 F.3d 1365, 1367; Craig v.
Cain (5th Cir. 2013) No. 12-30035, 2013 WL 69128, at *l–2 [“Miller does not satisfy the
test for retroactivity because it does not categorically bar all sentences of life
imprisonment for juveniles; Miller bars only those sentences made mandatory by a
sentencing scheme. Therefore, the first Teague exception does not apply.”], citations
omitted; Thompson v. Roy (D.Minn. 2014) No. 13-cv-1524, 2014 WL 1234498;
Chambers v. State (Minn. 2013) 831 N.W.2d 311, 328-329; People v. Carp
(Mich.Ct.App. 2012) 828 N.W.2d 685, 709-710 [The Miller Court indicated that its
ruling was procedural in nature, stating “it mandates only that a sentencer follow a certain
process – considering an offender’s youth and attendant characteristics – before imposing
a particular penalty”].) Overall, this line of precedent concludes that because Miller did
not categorically ban a type of punishment for a class of offenders or type of crime, as the
Court did in Roper and Graham, but instead modified the procedures to implement such a
sentence, the rule must be procedural.
       A number of other jurisdictions have determined that the rule announced in Miller
is substantive. (See, e.g., Ex parte Maxwell (Tex.Crim.App. 2014) 424 S.W.3d 66, 75
[“We conclude that [the Miller rule] is a ‘new substantive rule’ that puts a juvenile’s
mandatory ‘life without parole’ sentence outside the ambit of the State’s power.”; italics
deleted]; Nebraska v. Mantich (Neb. 2014) 842 N.W.2d 716, 730 [“In essence, Miller
‘amounts to something close to a de facto substantive holding,’ because it sets forth the
general rule that life imprisonment without parole should not be imposed upon a juvenile
except in the rarest of cases where that juvenile cannot be distinguished from an adult
based on diminished capacity or culpability.”]; Toye v. Florida (Fla.Dist.Ct.App. 2014)
133 So.3d 540 [applying Florida’s own retroactivity analysis, and not the Teague
analysis]; Diatchenko v. Dist. Attorney for Suffolk Dist. (Mass. 2013) 1 N.E.3d 270, 281
[“The rule explicitly forecloses the imposition of a certain category of punishment –
mandatory life in prison without the possibility of parole – on a specific class of
defendants: those individuals under the age of eighteen when they commit the crime of
murder.”]; People v. Davis (2014) 6 N.E.3d 709, 722 [“Miller mandates a sentencing

                                              20
range broader than that provided by statute for minors convicted of first degree murder
who could otherwise receive only natural life imprisonment.”], pet. for cert denied,
Illinois v. Davis (2014) ___ U.S. ___, (Dec. 1, 2014 WL 4094821); Jones v. Mississippi
(Miss. 2013) 122 So.3d 698, 702 [“Prior to Miller, everyone convicted of murder in
Mississippi was sentenced to life imprisonment and was ineligible for parole. Following
Miller, Mississippi’s current sentencing and parole statutes could not be followed in
homicide cases involving juvenile defendants. Our sentencing scheme may be applied to
juveniles only after applicable Miller characteristics and circumstances have been
considered by the sentencing authority. As such, Miller modified our substantive law by
narrowing its application for juveniles.”].)
       The Supreme Court of Iowa in State v. Ragland (2013) 836 N.W.2d 107, 115-116
held: “From a broad perspective, Miller does mandate a new procedure. Yet, the
procedural rule for [an individualized sentencing] hearing is the result of a substantive
change in the law that prohibits mandatory life-without-parole sentencing. Thus, the case
bars states from imposing a certain type of punishment on certain people. . . . ‘Such rules
apply retroactively because they “necessarily carry a significant risk that a defendant” . . .
faces a punishment that the law cannot impose upon him.’” In reaching its conclusion,
the Ragland Court also cited an article written by Professor Erwin Chemerinsky in which
he asserted: “There is a strong argument that Miller should apply retroactively: It says
that it is beyond the authority of the criminal law to impose a mandatory sentence of life
without parole. It would be terribly unfair to have individuals imprisoned for life without
any chance of parole based on the accident of the timing of the trial [¶] . . . [¶] . . . [T]he
Miller Court did more than change procedures; it held that the government cannot
constitutionally impose a punishment. As a substantive change in the law which puts
matters outside the scope of the government’s power, the holding should apply
retroactively.” (State v. Ragland, supra, 836 N.W.2d at p. 117, quoting Erwin
Chemerinsky, Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look
at Mandatory Sentences, A.B.A. J. Law News Now (Aug. 8, 2012).)



                                               21
       While the analysis used by these courts varies, most conclude that Miller altered
the substantive law by broadening the range of punishment for juveniles convicted of
homicide. Before Miller, under those state’s laws, life without parole was mandatory and
“automatic” for juveniles who committed homicide. (See, e.g., Ex parte Maxwell, supra,
424 S.W.3d 66, 70-75.) After Miller, life without parole remains possible in limited
circumstances, but new outcomes and sentences are also available. (See, e.g., ibid.; Jones
v. Mississippi, supra, 122 So.3d at p. 702.)
       Courts have also reached differing conclusions as to how the procedural posture of
Miller affects the retroactivity analysis. As noted elsewhere here, Kuntrell Jackson was
before the Court on collateral review in the companion case to Miller. Jackson sought
relief after a state court dismissed his application for a writ of state habeas corpus. In
announcing the new rule in Miller, the Court made no distinction between the procedural
postures of the two defendants. Instead, it simply reversed both of the lower court
judgments and remanded the causes “for further proceedings not inconsistent with this
opinion.” (Miller v. Alabama, supra, 567 U.S. __, 132 S.Ct. at p. 2475.)
       Several jurisdictions have concluded that the Court’s equal treatment of the two
defendants in Miller is a factor that must be considered in the retroactivity analysis. In
Ragland, the Iowa Supreme Court noted that Jackson’s case was remanded so that
Jackson could be given an individualized sentencing hearing and reasoned that “[t]here
would have been no reason for the Court to direct such an outcome if it did not view the
Miller rule as applying retroactively to cases on collateral review.” (State v. Ragland,
supra, 836 N.W.2d 107 at p. 116.) Ragland also noted that the dissent in Miller
suggested the majority’s decision would invalidate other cases across the nation and
reasoned that the dissent would not have raised such a concern if the Court did not intend
its holding to apply to cases on collateral review. The court in Nebraska v. Mantich,
supra, 842 N.W.2d at page 731, observed “[w]e also find it noteworthy that the Court
applied the rule announced in Miller to Jackson, who was before the Court on collateral
review. . . . [W]e are not inclined to refuse to apply the rule announced in Miller to a
defendant before us on collateral review when the Court has already applied the rule to a

                                               22
defendant before it on collateral review.” (See also Diatchenko v. Dist. Attorney for
Suffolk Dist., supra, 1 N.E.3d at p. 281 [“Our conclusion is supported by the fact that in
Miller . . . the Supreme Court retroactively applied the rule that it was announcing in that
case to the defendant in the companion case who was before the Court on collateral
review”]; People v. Morfin (2012) 981 N.E.2d 1010, 1022–1023 [“Our decision is
reinforced by the fact that one of the two Miller defendants was before the United States
Supreme Court on collateral review following completion of his direct appeal and
received relief in the same manner as Miller himself.”].) These decisions used the
application of Miller to companion case petitioner Jackson before the Court on collateral
review to bolster their conclusion that Miller announced a substantive rule, not subject to
the bar in Teague.
       Other jurisdictions, however, conclude the Court’s treatment of Jackson is not a
relevant factor in the retroactivity analysis. The Pennsylvania Supreme Court noted that
it was not clear the retroactivity issue was before the Miller Court with respect to Jackson
and that in the absence of a “specific, principled retroactivity analysis” by the Court, it
would not deem the Court to have held the Miller rule applied retroactively just because
the Court applied it to Jackson. (See Commonwealth v. Cunningham, supra, 81 A.3d at
p. 9) Similarly, the Michigan appellate court in Carp reasoned that the “mere fact that
the Court remanded Jackson for resentencing does not constitute a ruling or
determination on retroactivity.” (People v. Carp, supra, 828 N.W.2d at p. 712.) Carp
further reasoned that the issue of retroactivity was not raised as to Jackson and thus the
Court had no reason to address it. (Ibid.)
                     b.      This Court’s Resolution
       Based on our review of the authority from other state and federal jurisdictions, we
conclude that the rules announced in Miller are substantive. Miller did not simply change
what entity considered the same facts, and did not simply announce a rule that was
designed to enhance accuracy in sentencing. Rather, Miller held that the sentencing court
must consider specific, individualized factors before handing down an LWOP sentence
for a juvenile. Effectively, Miller requires the court to consider new specific facts before

                                              23
imposing a life imprisonment sentence with no possibility of parole on a juvenile. Thus,
the Miller holding does not only address the aspect of “how” the determination is made, it
also defines the “what,” i.e., the substantive limits of that determination.
        In our view, it is significant that the Miller Court made no distinction in its
decision between the collateral review afforded the defendant from Arkansas (Jackson)
and the direct review afforded the defendant from Alabama (Miller). As the Iowa
Supreme Court observed, “[t]here would have been no reason for the Court to direct such
an outcome if it did not view the Miller rule as applying retroactively to cases on
collateral review.” (State v. Ragland, supra, 836 N.W.2d at p. 116.) Indeed, long ago the
United State Supreme Court stated that it would not announce or apply a new
constitutional rule in a case before it on collateral review unless that rule would apply to
all defendants on collateral review. (See Penry v. Lynaugh, supra, 492 U.S. at p. 330.)
The Court adopted this policy to ensure that justice is administered evenhandedly. (Ibid;
Teague, 489 U.S. at p. 300.) As a result, we are disinclined to refuse to apply the rules
announced in Miller to a petitioner before us on collateral review when the Court has
already applied the rule to a petitioner before it on collateral review. Evenhanded
administration of justice is carried out only if Wilson, like Jackson, is entitled to the
benefit of the new rule announced in Miller. As noted by the Supreme Court of Iowa,
any other result would be “‘terribly unfair.’” (State v. Ragland, supra, 836 N.W.2d at p.
116.)
        Furthermore, the rules announced in Miller are akin to the type of rules the Schriro
Court determined are new substantive rules: the Court made a certain fact (consideration
of mitigating evidence) essential to imposition of a sentence of life imprisonment without
parole. It imposed a new requirement as to what a sentencer must consider in order to
constitutionally impose LWOP. Miller also recognized that when mitigating evidence is
considered, a sentence of life imprisonment without parole for a juvenile should be rare.
This is consistent with the underlying logic of Miller, based on Graham, that “‘[i]t is
difficult even for expert psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender

                                              24
whose crime reflects irreparable corruption.’” (Graham v. Florida, supra, 560 U.S. at p.
73.) By setting forth the general rule that life imprisonment without parole should not be
imposed upon a juvenile except in the rarest of cases where that juvenile cannot be
distinguished from an adult based on diminished capacity or culpability, Miller has
changed the determination. The requirement that the sentencing courts acknowledge and
consider the differences between adults and juveniles in terms of brain development and
social and emotional maturity, represents nothing short of a paradigm shift in the juvenile
sentencing scheme. These new considerations have effectively recalibrated the balance
of factors the courts apply during sentencing. Furthermore, in rejecting as
unconstitutional mandatory LWOP sentences for juvenile homicide offenses, Miller
significantly altered the size and composition of the class that would receive such a
sentence in the future. In short, the Miller rule – prohibiting the imposition of an LWOP
sentence on a juvenile offender absent a consideration of the juvenile’s “chronological
age and its hallmark features” – applies retroactively because it “‘necessarily carr[ies] a
significant risk that a defendant . . . faces a punishment that the law cannot impose upon
him.’” (Schriro, supra, 542 U.S. at p. 352.)
       In addition, we find it instructive that the two lines of cases relied upon by the
Court in Miller to support its holdings have been applied retroactively on both direct and
collateral review. (See In re Sparks (5th Cir.2011) 657 F.3d 258, 261-262 [indicating
Graham, Roper and Atkins were made retroactive on collateral review by the Supreme
Court]; see also Tyler v. Cain, supra, 533 U.S. at p. 669, 121 S.Ct. at p. 2486, 150
L.Ed.2d at pp. 646–647 (O’Connor, J., conc.) [describing the syllogistic relationship
between Teague’s exception to nonretroactivity for rules placing certain conduct beyond
the power of the state to proscribe and subsequent cases that fit into Teague’s exception];
Songer v. Wainwright (1985) 769 F.2d 1488, 1489 [noting that Lockett v. Ohio (1978)
438 U.S. 586, 604-605 [“[T]he Eighth and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death”] has been given retroactive

                                             25
effect]; original italics; Penry v. Lynaugh, supra, 492 U.S. at p. 330 [“[T]he first
exception set forth in Teague should be understood to cover not only rules forbidding
criminal punishment of certain primary conduct but also rules prohibiting a certain
category of punishment for a class of defendants because of their status or offense”],
abrogated on other grounds by Atkins, supra, 536 U.S. at p. 321.) The retroactive
application of the authority underlying Miller supports our decision here.
       Ultimately, we are persuaded that Wilson is entitled to the benefit of Miller
because of the unfairness that would result from the contrary outcome. We find
particularly troubling the apparent inequity that would arise if the prospect that an
individualized, discretionary judicial determination of whether a juvenile murderer
should be afforded parole eligibility would depend solely upon the happenstance of the
precise moment that the defendant’s conviction became final. No court that has rejected
the retroactive application of Miller has advanced a rationale to resolve this inequity.
Likewise, the Attorney General in this case does not address the issue.
       Scientific insights and the development of the law have not always kept pace with
the reality of peoples’ daily lives. To be sure, our understanding of the cognitive, social
and emotional development of juveniles and the effect of that maturation process on the
conduct of minors has increased significantly in the 15 years since Wilson’s judgment
became final. Our legal system’s recent recognition of the impact of that development on
the culpability of juveniles is profound. In our view, justice is served if Wilson obtains
the benefit of these insights. Reconciling science and the law with reality requires
retroactive application of the Miller decision in this case. We, therefore, conclude that
the rules announced in Miller should apply to Wilson.
       C.     The Merits – Miller Applied Here
       Wilson contends he is entitled to habeas relief under Miller for several reasons.
First, he asserts he was sentenced when the California courts applied the presumption of
LWOP for any special circumstance murder committed by a juvenile. Second, Wilson
maintains his sentence must be vacated because the trial court did not adequately



                                             26
consider the distinctive mitigating circumstances of his youth and background, as
required by Miller.
       As to the first asserted ground for relief, a review of the transcript from the
sentencing hearing does not support the conclusion the trial court presumptively imposed
the LWOP sentence. Rather, the record indicates that the sentencing court understood it
could choose to impose the lesser punishment of 25 years to life.
       Nevertheless, we conclude Wilson is entitled to habeas relief on the second ground
asserted. The record shows the sentencing judge imposed LWOP primarily based on the
factors in aggravation, including that the crime involved great violence and bodily harm;
that Wilson was armed; that the victim was in a vulnerable position; that Wilson was a
leader; that Wilson was a participant in a planned robbery; and that the crime included an
attempted taking of great monetary value. While the court did mention Wilson’s age,
absent from the court’s sentencing discourse is 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.” (Miller v. Alabama, supra,
567 U.S. ___132 S.Ct. at p. 2465.) 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” (id. at p. 2469) and because the trial court here
did not consider the “hallmark features” of youth now mandated under Miller (id. at p.
2468), we conclude habeas relief must be granted.
III.   Section 1170, Subdivision (d)(2)
       In reaching our conclusion, we also reject the Attorney General’s contention that
habeas relief should be denied because Wilson “now has the possibility of parole” under
section 1170, subdivision (d)(2).
       Section 1170, subdivision (d)(2) enacted in 2012, provides a “recall” procedure for
a juvenile LWOP sentence, after a period of 15 years. (§ 1170, subd. (d)(2)(A)(i)
[“When a defendant who was under 18 years of age at the time of the commission of the
offense for which the defendant was sentenced to imprisonment for life without the

                                             27
possibility of parole has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and resentencing.”].) Section 1170,
subdivision (d)(2), was enacted in response to Roper and Graham. (Assem. Comm. on
Public Safety, Analysis of Sen. Bill No. 9 (2011–2012 Reg. Sess.) as amended May 27,
2011.)
         This legislation pre-dated the decision in Miller, but Roper and Graham, as we
have discussed, were the analytical foundation for Miller and established the fundamental
principle that the inherent attributes of youth must be considered before the court imposes
the harshest of criminal penalties. The Legislature apparently believed this legislation
rectified constitutional shortcomings of juvenile LWOP sentences under section 190.5,
subdivision (b).
         However, in Gutierrez the California Supreme Court rejected the Attorney
General’s argument that the enactment of section 1170, subdivision (d)(2) resolved the
constitutional problems arising from the fact that California courts had interpreted section
190.5, subdivision (b) as creating a presumption for LWOP sentences for juveniles. The
Gutierrez Court opined that: “the potential for relief under section 1170(d)(2) does not
eliminate the serious constitutional doubts arising from a presumption in favor of life
without parole under section 190.5(b) . . . .” (People v. Gutierrez, supra, 58 Cal.4th at p.
1385.) We agree.
         In our view, section 1170, subdivision (d)(2), falls short of what Miller requires,
even where no presumption was applied. First of all, Miller makes clear the special
considerations attendant to youth are to be considered at the time of sentencing. As the
Gutierrez Court observed: “Miller repeatedly made clear that the sentencing authority
must address this risk of error by considering how children are different and how those
differences counsel against a sentence of life without parole ‘before imposing a
particular penalty.’” (People v. Gutierrez, supra, 58 Cal.4th at p. 1387, quoting Miller v.
Alabama, supra, 567 U.S. at p. __, 132 S.Ct. at p. 2471, italics added; see id. at pp. __,
__, 132 S.Ct. at pp. 2469, 2475.)



                                               28
       In addition, section 1170, subdivision (d)(2)’s petitioning process – at the earliest
15 years after sentencing – is inconsistent with the Supreme Court’s analysis in Miller.
Allowing the deferral of constitutionally mandated sentencing factors for a minimum of a
decade and a half after conviction rather than requiring consideration of those facts
before incarceration, effectively makes Miller’s mandate irrelevant to our sentencing
courts. Nothing in Miller indicates that the Supreme Court envisioned any such deferral
of constitutionally required sentencing considerations; that deferral stands in opposition
to the Court’s observation that such consideration will result in the harshest of sentences
being “uncommon.”
       Moreover, there is no guarantee that a petition seeking recall and resentencing
under section 1170, subdivision (d)(2), will be heard on the merits. Rather, a hearing is
conditioned on the defendant “describing his or her remorse and work towards
rehabilitation” and stating that one of the following four circumstances is true: (1) he or
she “was convicted pursuant to felony murder or aiding and abetting murder provisions”;
(2) he or she does not have other prior juvenile felony adjudications “for assault or other
felony crimes with a significant potential for personal harm to victims”; (3) he or she
“committed the offense with at least one adult codefendant”; or (4) he or she “has
performed acts that tend to indicate rehabilitation or potential for rehabilitation,
including, but not limited to, availing himself or herself of rehabilitative, educational, or
vocational programs, if those programs have been available at his or her classification
level and facility, using self-study for self-improvement, or showing evidence of
remorse.” (§ 1170, subd. (d)(2)(B)(i)–(iv).) Nothing in Miller allows the conclusion that
a juvenile must make a threshold showing of some sort before a sentencing court is
constitutionally required to consider the implications of his or her youth. Indeed, as the
court in Gutierrez reasoned: “it is doubtful that the potential to recall a life without parole
sentence based on a future demonstration of rehabilitation can make such a sentence any
more valid when it was imposed. If anything, a decision to recall the sentence pursuant
to section 1170(d)(2) is a recognition that the initial judgment of incorrigibility



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underlying the imposition of life without parole turned out to be erroneous.” (People v.
Gutierrez, supra, 58 Cal.4th at pp. 1386-1387.)
       Furthermore, even when a section 1170, subdivision (d) petition is heard on the
merits, the enumerated factors the court may consider in deciding whether to resentence
the defendant are under-inclusive; they do not embrace the totality of the considerations
the Supreme Court discussed in Miller, Roper and Graham. In addition to the factors
relating to rehabilitation efforts, a court ruling on the merits of a recall petition may
consider: whether, prior to the crime, the defendant “had insufficient adult support or
supervision and had suffered from psychological or physical trauma, or significant stress”
(§ 1170, subd. (d)(2)(F)(iv)); whether the defendant “suffers from cognitive limitations
due to mental illness, developmental disabilities, or other factors that did not constitute a
defense, but influenced the defendant’s involvement in the offense” (§ 1170, subd.
(d)(2)(v)); whether the defendant “has maintained family ties or connections with others
through letter writing, calls, or visits, or has eliminated contact with individuals outside
of prison who are currently involved in crime” (§ 1170, subd. (d)(2)(F)(vii)); and whether
the defendant “has had no disciplinary actions for violent activities in the last five years
in which the defendant was determined to be the aggressor” (§ 1170, subd.
(d)(2)(F)(viii)).
       These factors describe organic, foundational elements of criminal conduct: lack of
parental supervision or positive adult role models, and mental or physical impairment.
Absent from the list of factors is the fundamental fact of youth, and its attendant
attributes, on which the Supreme Court has focused – “Roper and Graham establish that
children are constitutionally different from adults for purposes of sentencing.” (Miller v.
Alabama, supra, 567 U.S. ___,132 S.Ct. at p. 2464.) Youth, the Court has said, “‘is more
than a chronological fact.’ . . . It is a time of immaturity, irresponsibility,
‘impetuousness[,] and recklessness.’” (Id. at pp. 2467, 2468; citations omitted.) As a
result, “a sentencer misses too much if he treats every child as an adult.” (Id. at p. 2468.)
Finally, although section 1170, subdivision (d)(2)(I), provides that a court hearing a recall
petition “may” also “consider any other criteria that the court deems relevant to its

                                               30
decision,” this proviso neither identifies, nor requires the court to consider, the inherent
“mitigating qualities of youth” which the Supreme Court has instructed must be
considered before imposing an LWOP sentence on a juvenile. (Miller v. Alabama, supra,
567 U.S. __, 132 S.Ct. at p. 2467.)
       In view of the foregoing, we conclude section 1170, subdivision, (d)(2) does not
eliminate the constitutional concerns with Wilson’s sentence, and it does not comport
with the holding in Miller. Therefore it does not provide Wilson with an adequate
remedy.
VI.    Other Claims
       In Wilson’s habeas petition he also argued that (1) his LWOP sentence violated
the California Constitution’s prohibition on cruel and unusual punishment; (2) the trial
court in sentencing him improperly considered an aggravating fact (i.e., evidence that
Wilson “pistol-whipped the victim”); and (3) “the principles of Graham and Miller
categorically bar LWOP for a juvenile offender such as Wilson, who neither killed nor
specifically intended to kill.”18
       Because we find Wilson is entitled to be resentenced under the dictates of Miller,
we do not reach these additional arguments about his original sentence. If on remand,
Wilson is resentenced to LWOP, he is of course free to assert a new challenge based on
the circumstances of, and facts and evidence presented during, his new sentencing
proceeding.




18      Whether the principles of Miller and Graham impose a categorical ban to the
imposition of LWOP sentences for juveniles who did not personally kill or intend to kill
was raised in Miller in the concurring opinion of Justice Breyer, joined by Justice
Sotomayor. (Miller v. Alabama, supra, 567 U.S. ___, ___, 132 S.Ct. at pp. 2475-2477.)
In our view, Justice Breyer’s concurrence raises important questions about the application
of Eight Amendment to situations such as the one before us. We observe, however, that
no court has followed or adopted Justice Breyer’s analysis, and we need not decide the
issue in light of our conclusion here.


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                                      DISPOSITION


       The petition for habeas corpus is granted. Petitioner’s LWOP sentence is vacated
and the matter is remanded for resentencing.




                                                             WOODS, Acting P. J.


We concur:




              ZELON, J.                                      SEGAL, J.*




*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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