Filed 4/24/15 (unmodified opinion attached)
                                CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SIXTH APPELLATE DISTRICT


                                                      H040757
In re NORMAN WILLOVER,                               (Monterey County
                                                      Super. Ct. Nos. SM980198B, HC7940)
         on Habeas Corpus.
                                                     ORDER MODIFYING OPINION
                                                     AND DENYING REHEARING

                                                     [NO CHANGE IN JUDGMENT]



THE COURT:
         It is ordered that the opinion filed herein on April 16, 2015, be modified in the
following particulars:
         1. On page 11, line 8 of footnote 5, the phrase “the parties have not discussed
whether” is replaced with the phrase “petitioner also argues that,” so that the sentence
reads as follows:
         In this case, petitioner also argues that Miller should be given retroactive
application under California law.
         2. On page 11, following the last sentence of footnote 5, the following sentence is
added:
         We need not reach that issue here.
There is no change in judgment.
The petition for rehearing is denied.



                                   ______________________________________
                                   BAMATTRE-MANOUKIAN, ACTING P.J.



                                   ______________________________________
                                   MIHARA, J.



                                   ______________________________________
                                   MÁRQUEZ, J.




                                        2
Filed 4/16/15; reposted to provide editorial information; no change to opinion text (unmodified version)
                                 CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


                                                                H040757
In re NORMAN WILLOVER,                                         (Monterey County
                                                                Super. Ct. Nos. SM980198B, HC7940)
         on Habeas Corpus.



                                         I.       INTRODUCTION
         In 1999, petitioner Norman Willover was convicted after jury trial of two counts
of first degree murder (Pen. Code, § 187, subd. (a)),1 attempted premeditated murder
(§§ 664, 187, subd. (a)), aggravated mayhem (§ 205), and giving false information to a
peace officer (§ 148.9, subd. (a)). The jury also found true various special circumstances
and firearm enhancements. (§ 190.2, subd. (a)(3), (17) & (21); § 12022.53, subd. (d);
§ 12022.55.) The trial court sentenced petitioner, who was 17 years old at the time he
committed the offenses, to two consecutive terms of life without possibility of parole
(LWOP) for the murders, a consecutive term of 15 years to life for the attempted
premeditated murder, and two consecutive terms of 25 years to life for the allegations
that he personally discharged a firearm causing great bodily injury or death. The trial
court stayed the terms for the remaining counts and enhancements.
         Petitioner appealed following his convictions, and this court modified the
judgment to reflect that petitioner’s sentence for the attempted premeditated murder




         1
             All further statutory references are to the Penal Code unless otherwise indicated.
was life with the possibility of parole instead of 15 years to life. (People v. Willover
(Oct. 19, 2000, H019899) [nonpub. opn.].)
       In March of 2014, petitioner filed a petition for writ of habeas corpus in this court,
arguing that he is entitled to be resentenced. Petitioner contends that at his sentencing
hearing in 1999, the trial court improperly presumed that LWOP was the appropriate
sentence for the murders pursuant to section 190.5, subdivision (b), in violation of
Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), which held that
“mandatory life without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ”
(Id. at __ [132 S.Ct. 2455, 2460].) For reasons that we shall explain, we will vacate
petitioner’s sentence and remand the matter for resentencing.
                                 II.    BACKGROUND2
A.     The Underlying Offense
       In December of 1997, petitioner purchased a .22-caliber pistol in Utah after
leaving a residential treatment center without authorization. Petitioner stated that he
intended to use the firearm to rob and kill people and to settle scores with rival gangs.
Petitioner then traveled to Monterey, where he obtained ammunition, loaded his gun, and
drove around with three other young people.
       After arriving at the Monterey Wharf on January 31, 1998, petitioner fired nine
shots at Priya Mathews and Jennifer Aninger, who were drinking coffee and talking.
Four bullets hit Mathews and two bullets hit Aninger. Aninger survived the shooting, but
Mathews died at the scene. Following that shooting, petitioner and his three companions
drove to Seaside in another car. Petitioner permitted the driver of the car to use his
firearm to shoot and kill Frances Olivo, who was walking on the sidewalk.


       2
      The factual and procedural background is taken from People v. Willover, supra,
H019899.

                                              2
       Petitioner was subsequently convicted of two counts of first degree murder (§ 187,
subd. (a)), attempted premeditated murder (§§ 664, 187, subd. (a)), aggravated mayhem
(§ 205), and giving false information to a peace officer (§ 148.9, subd. (a)). The jury
found true special circumstance allegations: multiple murders (§ 190.2, subd. (a)(3));
murder during the commission of attempted robbery (id., subd. (a)(17)); and drive-by
shooting (id., subd. (a)(21)). The jury also found true allegations that petitioner
personally discharged a firearm causing great bodily injury or death (§ 12022.53,
subd. (d)) and intentionally inflicted great bodily injury or death as a result of discharging
a firearm from a vehicle during the commission of a felony or attempted felony
(§ 12022.55).
B.     Sentencing Hearing
       Prior to petitioner’s sentencing hearing in 1999, the prosecution filed a statement
in aggravation, in which it cited People v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn) for
the proposition that, pursuant to section 190.5, subdivision (b),3 LWOP was the
presumptive sentence for a special circumstance murder committed by a 16- or 17-year-
old juvenile. The prosecution further argued that there were numerous aggravating
circumstances, relating to both the offense and the offender, and no circumstances in
mitigation. (See Cal. Rules of Court, former rules 421 & 423.) The prosecution argued
that petitioner had been “feign[ing] or exaggerat[ing] purported symptoms of mental
illness in order to avoid being held accountable for his conduct.” The prosecution
contended that there was no justification for ever allowing petitioner to be released back
into society: “If [petitioner] is granted the possibility of parole, he stands a chance of


       3
         Section 190.5, subdivision (b) provides: “The penalty for a defendant found
guilty of murder in the first degree, in any case in which one or more special
circumstances enumerated in Section 190.2 or 190.25 has been found to be true under
Section 190.4, who was 16 years of age or older and under the age of 18 years at the time
of the commission of the crime, shall be confinement in the state prison for life without
the possibility of parole or, at the discretion of the court, 25 years to life.”

                                              3
being released . . . at a relatively young age . . . [where] there will be new generations of
innocent people who would be exposed to the calculated but random viciousness that
[petitioner] will bring with him.”
       Petitioner filed a sentencing memorandum, in which he argued that Guinn had
erroneously held that section 190.5, subdivision (b) requires a presumption of LWOP for
16- and 17-year-old defendants who commit special circumstance murders. Petitioner
called the Guinn opinion “flawed” and argued that its interpretation of section 190.5,
subdivision (b) was “without logical basis.”
       A sentencing hearing took place on April 2, 1999. At the hearing, the prosecutor
argued that petitioner did not suffer from “any mental illness that impaired his ability to
make moral choices” and that petitioner had not shown any remorse. The prosecutor
argued that petitioner should not be given the opportunity for parole, because “based on
everything we know about him, he will come back again looking for someone to kill.”
The prosecutor argued that Guinn placed on petitioner the burden of showing that an
LWOP sentence was inappropriate, and that he had “failed to carry it.” The prosecutor
argued that even if Guinn was “not correct,” an LWOP sentence was still appropriate.
       Petitioner’s trial counsel argued that petitioner did suffer “from a mental condition
that reduced culpability” and that petitioner was a “grossly immature” young man who
had “little or no ability to control his own aggression.” Petitioner’s trial counsel argued
that the trial court should not impose consecutive sentences because the crimes “were
committed in so close a period of time as to indicate a single period of aberrant behavior”
and because petitioner “played a minor or passive role” in the second murder.
Petitioner’s trial counsel argued that petitioner’s antisocial personality disorder was
commonly seen in young males but that “most people by the time they’re in their forties
or they’re in their fifties do not generally tend to exhibit these tendencies.” Petitioner’s
trial counsel requested the trial court impose a sentence that would give petitioner “the
opportunity to be released from custody at some time during his life if he can

                                               4
demonstrate to the authorities . . . that he is law abiding, that he is able to control himself,
and that he does not present a danger to public safety.”
       In announcing its sentencing decisions, the trial court first rejected petitioner’s
claim that he was suffering from a mental illness that significantly reduced his culpability
for the crimes. The trial court noted it had read the letters submitted in support of
petitioner, which all suggested “[t]hat it would be a miscarriage of justice somehow” if
petitioner received an LWOP sentence. The trial court noted that “all of the doctors and
the counselors involved in this case over the years” had characterized petitioner as
argumentative, explosive, controlling, defiant, resistant to feedback, and a danger to
society, with poor impulse control. The court described petitioner as “a textbook
example and the product of poor, indifferent and inadequate parenting,” noting that
petitioner’s mother would often “blow up, call him a loser, give him a knife and ask him
to kill her.” The court believed that “[c]ommon sense dictates that [petitioner] must
never be allowed the possibility of drawing another breath in freedom.”
       The trial court ultimately sentenced petitioner to two consecutive LWOP terms for
the two first-degree murders, a consecutive term of 15 years to life for the attempted
premeditated murder, and two consecutive terms of 25 years to life for the allegations
that he personally discharged a firearm causing great bodily injury or death. The trial
court stayed the terms for the remaining counts and enhancements.
C.     Appeal
       Petitioner appealed his convictions to this court. On October 19, 2000, this court
modified the judgment to reflect that petitioner’s sentence for the attempted premeditated
murder conviction was life with the possibility of parole instead of 15 years to life. This
court affirmed the judgment as modified.
D.     Habeas Petitions
       On February 28, 2013, petitioner filed a petition for writ of habeas corpus in the
trial court, alleging that his LWOP sentence violated the Eighth Amendment under

                                               5
Miller, supra, 567 U.S. __ [132 S.Ct. 2455]. On January 13, 2014, the trial court denied
petitioner’s habeas corpus petition.
       On March 10, 2014, petitioner filed the instant petition for writ of habeas corpus in
this court. On October 23, 2014, this court issued an order to show cause and appointed
counsel for petitioner. The Attorney General subsequently filed a written return, and
petitioner thereafter filed a traverse.
       On July 17, 2014, petitioner filed another habeas corpus petition in the trial court
seeking resentencing, relying on People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).
According to the Attorney General, that petition remains pending.
E.     Petition to Recall Sentence
       On April 9, 2014, petitioner filed a petition in the trial court seeking resentencing
pursuant to section 1170, subdivision (d)(2). On April 3, 2015, the trial court denied the
petition.
                                    III.   DISCUSSION
A.     Miller and Gutierrez
       At the time of petitioner’s 1999 sentencing hearing, section 190.5, subdivision (b)
had “been construed . . . as creating a presumption in favor of life without parole as the
appropriate penalty for juveniles convicted of special circumstance murder.” (Gutierrez,
supra, 58 Cal.4th at p. 1360; see Guinn, supra, 28 Cal.App.4th 1130.)
       In 2012, the United States Supreme Court ruled that “mandatory life without
parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S.
at __ [132 S.Ct. 2455, 2460].) In Miller, the issue arose in two companion cases, both
involving 14-year-old defendants, Jackson and Miller, who were convicted of murder and
sentenced to LWOP. (Ibid.) Jackson’s case arose on appeal from the dismissal of a
petition for writ of habeas corpus; Miller’s case arose on direct appeal. (Id. at __ [132
S.Ct. 2455, 2461-2463].)

                                              6
       In Miller, the Court explained that its prior cases had “establish[ed] that children
are constitutionally different from adults for purposes of sentencing.” (Miller, supra, 567
U.S. at __ [132 S.Ct. 2455, 2464]; see Roper v. Simmons (2005) 543 U.S. 551 (Roper)
[invalidating death penalty for juvenile offenders] & Graham v. Florida (2010) 560 U.S.
48 (Graham) [LWOP sentences for non-homicide juvenile offenders violate the Eighth
Amendment].) Specifically, “juveniles have diminished culpability and greater prospects
for reform,” making them “ ‘less deserving of the most severe punishments.’ ” (Miller,
supra, 567 U.S. at __ [132 S.Ct. 2455, 2464].)
       The Miller court summarized its holding as follows: “Mandatory life without
parole for a juvenile precludes consideration of his [or her] chronological age and its
hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. It prevents taking into account the family and home environment that
surrounds him [or her]—and from which he [or she] cannot usually extricate himself [or
herself]—no matter how brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his [or her] participation in the conduct and the
way familial and peer pressures may have affected him [or her]. Indeed, it ignores that he
[or she] might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his [or her] inability to deal with
police officers or prosecutors (including on a plea agreement) or his [or her] incapacity to
assist his [or her] own attorneys. [Citations.] And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most suggest it.”
(Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2468].)
       While Miller held “that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders,” the court did
not decide “that the Eighth Amendment requires a categorical bar on life without parole
for juveniles . . . .” (Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2469].) However, the
court specified it believed that LWOP sentences for juveniles would be “uncommon” and

                                              7
limited to “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’
[Citations.]” (Ibid.) The court specified that before such a sentence is imposed on a
juvenile in a homicide case, the sentencing court must “take into account how children
are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” (Ibid., fn. omitted.)
       In Gutierrez, supra, 58 Cal.4th 134, the California Supreme Court considered
the impact of Miller on section 190.5, subdivision (b). The Gutierrez court noted that
“[f]or two decades, the Courts of Appeal ha[d] uniformly interpreted section 190.5[,
subdivision ](b) as establishing a presumption in favor of life without parole for juvenile
offenders who were 16 years of age or older when they committed special circumstance
murder.” (Gutierrez, supra, at p. 1369.) The California Supreme Court effectively
overturned that line of appellate precedent, concluding that “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.” (Id. at p. 1360,
italics added.) The Gutierrez court further held that “consideration of the Miller factors”
is required when a sentencing court is determining whether to impose an LWOP sentence
pursuant to section 190.5, subdivision (b). (Gutierrez, supra, at p. 1387.)
       In Gutierrez, in which the issue arose on direct appeal, “[b]ecause the two
defendants . . . were sentenced before Miller in accordance with the interpretation of
section 190.5[, subdivision] (b) prevailing at the time,” the court remanded for
resentencing. (Gutierrez, supra, 58 Cal.4th at p. 1361.)
B.     The Parties’ Contentions
       The Attorney General contends that petitioner is not entitled to be resentenced, for
several reasons. First, the Attorney General argues that Miller is not retroactive, and
therefore relief is not available on collateral review. The Attorney General also originally
argued that because petitioner had a pending petition for recall of his sentence pursuant to

                                              8
section 1170, subdivision (d)(2) at the time he filed the instant habeas petition, his habeas
petition was premature. Finally, the Attorney General argues that the sentencing hearing
transcript shows that, in imposing the LWOP sentences, the trial court did exercise its
discretion and did consider petitioner’s youth and social history as required by Miller.
       Petitioner contends that Miller is retroactive. Petitioner further contends that the
recall petition procedure provided by section 1170, subdivision (d)(2) does not provide a
substitute for the resentencing process. Third, he contends that the trial court did not
consider the requisite Miller factors at the original sentencing hearing.
C.     Retroactivity of Miller4
       We begin by discussing whether Miller is retroactive—that is, whether under
Miller, habeas relief is available in a case that is no longer pending on direct appeal.
       In Teague v. Lane (1989) 489 U.S. 288 (Teague), the United States 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


       4
         In In re Alatriste (2013) 220 Cal.App.4th 1232, review granted February 19,
2014, S214652, and In re Bonilla (2013) 220 Cal.App.4th 1232, review granted
February 19, 2014, S214960, the California Supreme Court may consider whether Miller
applies retroactively on habeas corpus to a prisoner who was a juvenile at the time of the
commitment offense, depending on its resolution of other issues presented in those cases.
(See also In re Rainey (2014) 224 Cal.App.4th 280, review granted June 11, 2014,
S217567, briefing deferred; In re Wilson (2015) 233 Cal.App.4th 544, review granted
April 15, 2015, S224745, briefing deferred.)
       The United States Supreme Court recently granted a petition for writ of certiorari
in Montgomery v. Louisiana, No. 14-280, which presents the question of whether Miller
should be applied retroactively. (See State v. Montgomery (2014) 141 So.3d 264, cert.
granted Mar. 30, 2015, sub nom. Monterey v. Louisiana (2015) __ U.S. __.)

                                              9
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 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.)
       In Schriro v. Summerlin (2004) 542 U.S. 348 (Schriro), the United States 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 p. 352.) 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 [or her].”
(Ibid.) 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.” (Ibid., fn. 4.)



                                              10
       The Schriro 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.
(Schriro, supra, 542 U.S. at p. 352.) 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. (Ibid.) This class of rules is extremely narrow; a watershed rule is
one “ ‘without which the likelihood of an accurate conviction is seriously diminished.’ ”
(Ibid.)5
       The Attorney General contends that Miller announced a new procedural rule, not a
new substantive rule, pointing out that the Miller court stated, “Our decision does not
categorically bar a penalty for a class of offenders or type of crime—as, for example, we
did in Roper[, supra, 543 U.S. 551] [barring death penalty for defendants who were under
18 years of age at time of the offense] or Graham[, supra, 560 U.S. 48] [barring death
penalty for juvenile offenders who did not commit homicide offenses]. Instead, it
mandates only that a sentencer follow a certain process—considering an offender’s youth
and attendant characteristics—before imposing a particular penalty.” (Miller, supra, 567
U.S. at __ [132 S.Ct. 2455, 2471].) Some courts in other jurisdictions have agreed with


       5
         Subsequent to Schriro, the United States Supreme Court further clarified the
application of the Teague retroactivity test, holding that “the Teague decision limits the
kinds of constitutional violations that will entitle an individual to relief on federal habeas,
but does not in any way limit the authority of a state court, when reviewing its own state
criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’
under Teague.” (Danforth v. Minnesota (2008) 552 U.S. 264, 282.) Thus, state courts
are “ ‘free to give greater retroactive impact to a decision than the federal courts choose
to give.’ [Citations.]” (In re Gomez (2009) 45 Cal.4th 650, 655, fn. 3.) In this case, the
parties have not discussed whether Miller should be given retroactive application under
California law.

                                              11
this reasoning and held that Miller is not retroactive to cases on collateral review. (See,
e.g., People v. Carp (Mich. 2014) 852 N.W.2d 801, 825 (Carp); Chambers v. State
(Minn. 2013) 831 N.W.2d 311, 328; State v. Tate (La. 2013) 130 So.3d 829, 836-837
(Tate); In re Morgan (11th Cir. 2013) 713 F.3d 1365, 1367-1368.)
       Defendant points out that other courts have found Miller to be retroactive. (See
In re Williams (D.C. Cir. 2014) 759 F.3d 66, 71-72; Evans-García v. United States
(1st Cir. 2014) 744 F.3d 235, 238-240; Johnson v. United States (8th Cir. 2013) 720 F.3d
720, 720-721; In re Pendleton (3d Cir. 2013) 732 F.3d 280, 282-283 [prima facie
showing]; People v. Davis (Ill. 2014) 6 N.E.3d 709, 722 (Davis); Diatchenko v. District
Attorney for Suffolk Dist. (Mass. 2013) 1 N.E.3d 270, 281; State v. Mantich (Neb. 2014)
842 N.W.2d 716, 731 (Mantich).) Those cases have generally observed that “ ‘[f]rom a
broad perspective, Miller does mandate a new procedure,’ ” i.e., the determination of
certain factors before a juvenile can be subjected to an LWOP sentence, but that for all
practical purposes, “Miller places a particular class of persons covered by the statute—
juveniles—constitutionally beyond the State’s power to punish with a particular category
of punishment—mandatory sentences of natural life without parole. [Citations.]”
(Davis, supra, at p. 722, quoting State v. Ragland (Iowa 2013) 836 N.W.2d 107, 115
(Ragland); see also Mantich, supra, at p. 730, fn. omitted [“Miller ‘amounts to something
close to a de facto substantive holding’ ”].) Such cases have also noted that “the cases
used by the Court in Miller to support its holding have been applied retroactively on both
direct and collateral review” and reasoned, “If a substantial portion of the authority used
in Miller has been applied retroactively, Miller should logically receive the same
treatment.” (Ragland, supra, at p. 116.)
       Other courts considering Miller’s retroactivity have also divided on the
significance of the fact that in the Miller companion case, Jackson v. Hobbs, which arose
on state collateral review (see Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2465]), the
Supreme Court did not distinguish the case from Miller itself, and vacated Jackson’s

                                             12
sentence along with Miller’s sentence (id. at __ [132 S.Ct. 2455, 2475]). Some courts
have declined to hold that the Supreme Court’s disposition of the Jackson case indicates
that Miller is retroactive to all cases on collateral review on the basis that “the question
whether Miller should be applied retroactively was never presented to the United States
Supreme Court.” (Carp, supra, 852 N.W.2d at p. 830, fn. omitted; see also Tate, supra,
130 So.3d at p. 833, fn. 1.) Other courts have held that by granting relief to Jackson
rather than distinguishing his case from Miller’s on the basis that it arose on collateral
review, the Supreme Court signaled that Miller should be retroactively applied. (See
Mantich, supra, 842 N.W.2d at p. 731, fn. omitted [noting that Miller “specifically
adopted this policy in order to ensure that justice is administered evenhandedly” and that
it would be incongruous “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 defendant
before it on collateral review”]; Davis, supra, 6 N.E.3d at p. 722.)
       We agree with the courts that have found Miller to be a new substantive rule rather
than a new procedural rule, and we therefore conclude that Miller may retroactively be
applied to cases on collateral review, such as petitioner’s case. The Miller case
effectively “alter[ed] the range of conduct or the class of persons that the law punishes”
(Schriro, supra, 542 U.S. at p. 353), in that it barred LWOP sentences for juvenile
homicide offenders unless the sentencing court determines, after a consideration of a
number of case-specific substantive factors, that the defendant is “ ‘the rare juvenile
offender whose crime reflects irreparable corruption.’ [Citations.]” (Miller, supra, 567
U.S. at __ [132 S.Ct. 2455, 2469].) Miller did not simply set forth a new rule regulating
“the manner of determining the defendant’s culpability,” but a rule that sets forth the
specific considerations to be made during a sentencing decision. (Schriro, supra, 542
U.S. at p. 353.) Because petitioner was sentenced at a time when the prevailing case law
required a presumption of LWOP, there is a “ ‘significant risk’ ” that petitioner “faces a
punishment that the law cannot impose upon him.” (Id. at p. 352.)

                                              13
       We also agree with the courts finding it significant that Miller granted relief in
the companion case, Jackson v. Hobbs, which arose on collateral review. While the
Supreme Court did not analyze the issue, it did direct that the defendant in Jackson be
given a new sentencing hearing. (See Miller, supra, 567 U.S. at __ [132 S.Ct. 2455,
2475].) “There 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.”
(Ragland, supra, 836 N.W.2d at p. 116.) And, as another out-of-state court noted, it
would be incongruous “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 defendant
before it on collateral review.” (Mantich, supra, 842 N.W.2d at p. 731; see also
Falcon v. State (Fla. 2015) __ So.3d __, __ [2015 Lexis 534, *19-20] [“The patent
unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest
of their lives, based solely on when their cases were decided, weighs heavily in favor of
applying the Supreme Court’s decision in Miller retroactively.”].)
       In sum, based on our careful review of Miller, Gutierrez, and cases from other
jurisdictions, and after consideration of the principles set forth in those cases with respect
to LWOP sentencing for juvenile offenders, we conclude that Miller’s new rules
concerning the imposition of LWOP sentences on juvenile homicide offenders are
retroactive. We thus conclude that the Miller sentencing rules should apply to petitioner.
D.     Effect of Petition for Recall of Sentence
       We next turn to the question of whether the recall petition procedure provided by
section 1170, subdivision (d)(2) provides a substitute for the resentencing process
mandated by Miller.
       Section 1170, subdivision (d)(2), enacted in 2012 (Stats. 2012, ch. 828, § 1)
provides a procedural mechanism for resentencing to defendants who were under the age
of 18 at the time of the commission of their offenses and who were given LWOP
sentences. If the defendant has served at least 15 years of the LWOP sentence, he or she

                                              14
may “submit to the sentencing court a petition for recall and resentencing” (§ 1170,
subd. (d)(2)(A)(i)), so long as the LWOP sentence was not imposed for an offense in
which the defendant tortured the victim or an offense in which the victim was a public
safety official (id., subd. (d)(2)(A)(ii)).
       In the petition, the defendant must describe “his or her remorse and work towards
rehabilitation.” (§ 1170, subd. (d)(2)(B).) The trial court “shall hold a hearing to
consider whether to recall the sentence and commitment previously ordered and to
resentence the defendant in the same manner as if the defendant had not previously been
sentenced” if it “finds by a preponderance of the evidence that the statements in the
petition are true.” (Id., subd. (d)(2)(E).) The statute enumerates a number of relevant
factors that the trial court may consider in determining whether to grant a petition for
resentencing. (Id., subd. (d)(2)(F).)6




       6
         The factors “include, but are not limited to, the following: [¶] (i) The defendant
was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
[¶] (ii) The defendant does not have juvenile felony adjudications for assault or other
felony crimes with a significant potential for personal harm to victims prior to the offense
for which the sentence is being considered for recall. [¶] (iii) The defendant committed
the offense with at least one adult codefendant. [¶] (iv) Prior to the offense for which the
sentence is being considered for recall, the defendant had insufficient adult support or
supervision and had suffered from psychological or physical trauma, or significant stress.
[¶] (v) 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. [¶] (vi) The defendant has
performed acts that tend to indicate rehabilitation or the 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.
[¶] (vii) 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 with crime. [¶] (viii) 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).)

                                              15
       If, after a hearing, the trial court decides to resentence the defendant, the court
may consider the same enumerated criteria as well as “any other criteria that the court
deems relevant to its decision, so long as the court identifies them on the record, provides
a statement of reasons for adopting them, and states why the defendant does or does not
satisfy the criteria.” (§ 1170, subd. (d)(2)(I).)
       In Gutierrez, the court rejected the Attorney General’s argument that the
“potential mechanism for resentencing” provided by section 1170, subdivision (d)(2)
“mean[s] that the initial sentence ‘is thus no longer effectively a sentence of life without
the possibility of parole.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1386.) The Gutierrez
court reasoned: “A sentence of life without parole under section 190.5[, subdivision ](b)
remains fully effective after the enactment of section 1170[, subdivision ](d)(2). That is
why section 1170[, subdivision ](d)(2) sets forth a scheme for recalling the sentence and
resentencing the defendant.” (Ibid.)
       The Gutierrez court further rejected the Attorney General’s claim that
section 1170, subdivision (d)(2) “removes life without parole sentences for juvenile
offenders from the ambit of Miller’s concerns because the statute provides a meaningful
opportunity for such offenders to obtain release.” (Gutierrez, supra, 58 Cal.4th at
p. 1386.) The court held that what Miller required for juvenile offenders sentenced to
LWOP was not a “ ‘meaningful opportunity to obtain release’ ” but a sentencing court’s
exercise of discretion “ ‘at the outset.’ ” (Ibid.)
       In this case, the Attorney General originally argued that petitioner’s habeas
petition was premature because the trial court could still have granted his section 1170,
subdivision (d)(2) petition. The Attorney General now informs us that the trial court
denied petitioner’s recall petition on April 3, 2015. As Gutierrez held, the recall petition
procedure provided by section 1170, subdivision (d)(2) does not provides a substitute for
the resentencing process mandated by Miller.



                                               16
E.     Sentencing Record
       Finally, we consider whether in imposing the LWOP sentences, the trial court in
this case exercised its discretion and considered petitioner’s youth and social history,
such that petitioner’s sentence should not be deemed cruel and unusual under Miller.
       The Gutierrez court noted that remand for resentencing is required when a trial
court is unaware of the scope of its discretionary powers “unless the record ‘clearly
indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1391,
quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) The Gutierrez court
ordered resentencing in the two cases before it because in one case the trial court had
expressly referred to the Guinn presumption in favor of LWOP while in the other case,
although the trial court did not explicitly refer to that presumption, the prosecution’s
sentencing memorandum did. “Absent evidence to the contrary, we presume that the trial
court knew and applied the governing law,” which at the time included Guinn’s LWOP
presumption. (Gutierrez, supra, at p. 1390.)
       The trial court in this case sentenced petitioner in 1999, long before Miller was
decided in 2012. The prosecution’s sentencing memorandum cited to the Guinn case.
Petitioner argued that Guinn was wrongly decided, and he supported his request for a
non-LWOP sentence with letters and evidence that he suffered from a mental illness. At
the sentencing hearing the trial court did not mention Guinn or its presumption, but did
set forth the factors it considered when imposing the LWOP sentences. These included,
primarily, features of petitioner’s personality and behavior, including his explosiveness,
defiance, defensiveness, and poor impulse control. The trial court found that petitioner
had learned such behaviors from his mother and that petitioner’s personality problems
were “the product of poor, indifferent and inadequate parenting.” Miller indicates that
factors such as impetuosity are often attributable to youth, and that a dysfunctional home
environment can mitigate a juvenile’s culpability, weighing against punishing a juvenile

                                             17
offender with LWOP. (Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2468.) However,
the trial court in this case appears to have considered these factors as weighing in favor of
imposing an LWOP sentence. As such, the sentencing transcript does not clearly reflect
that, as required by Miller, the trial court took “into account how children are different”
from adults, and how juveniles have “greater prospects for reform.” (Id. at __ [132 S.Ct.
2455, 2469 & 2464.)
       We have carefully reviewed the record. The transcript of the sentencing hearing
does not “clearly indicate” that the trial court would have reached the same result if it had
applied the Miller factors. (Gutierrez, supra, 58 Cal.4th at p. 1391.) As in Gutierrez, the
prosecutor cited Guinn as controlling authority for the proposition that an LWOP
sentence was the presumptive sentence. In accord with Gutierrez, we presume the trial
court followed and applied the law that governed at the time, and therefore we “cannot
say with confidence what sentence [it] would have imposed absent the presumption.”
(Ibid.) We will therefore remand this case for resentencing in accordance with the
principles set forth in both Miller and Gutierrez.
                                  IV.    DISPOSITION
       Petitioner’s sentence is vacated and the matter is remanded for resentencing.




                                             18
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
MÁRQUEZ, J.




In re Willover
H040757
Trial Court:                Monterey County Superior Court
                            Superior Court No.: SM980198, HC7940


Trial Judge:                Hon. Mark E. Hood


Attorneys for Petitioner:   Lawrence Gibbs
Norman Willover
                            Sixth District Appellate Program


Attorney for Respondent:    Rene A. Chacon
The People                  Office of the Attorney General




In re Willover
H040757
