Filed 5/29/15 P. v. Araujo CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              B254812

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. LA063534)
         v.

IGNACIO ARAUJO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Susan Speer, Judge. Affirmed.
         Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Shawn McGahey Webb and Mary Sanchez, Deputy Attorneys General, for
Plaintiff and Respondent.

                                        _________________________
       Defendant and appellant Ignacio Araujo raises contentions of sentencing error
following his conviction of first degree murder, premeditated attempted murder, and
shooting at an inhabited dwelling, with enhancements for personal firearm use and gang-
related activity.
       For the reasons discussed below, the judgment is affirmed as modified.
                                     BACKGROUND
       In our initial opinion in this matter (People v. Araujo (Mar. 17, 2013, B235844)
[nonpub. opn.] (hereafter, Araujo I)),1 we vacated Araujo’s sentence of 75 years to life,
plus life because he was only 16 years old when he committed the crimes. We directed
the trial court to resentence Araujo due to recent changes in Eighth Amendment doctrine
regarding the proper factors to be considered when sentencing juvenile offenders.
                              FACTUAL BACKGROUND
       As set forth in our initial opinion in this matter, the facts underlying Araujo’s
convictions were these.
       1. Prosecution evidence.
       On October 23, 2009,2 Bryan A. lived in an apartment complex on Vanowen
Street. Robert R. and Jose A. were friends of Bryan who lived nearby. That afternoon,
Bryan, Jose, and Robert were standing in front of the apartment complex when defendant
Araujo appeared. Araujo walked up to Robert, pulled a gun from his sweatshirt, pointed
it at Robert’s head, and asked “Where you from?” When Robert replied, “Nowhere,”
Araujo said “M.S.” and shot Robert in the face from just inches away. Robert fell and
Jose started running. Araujo chased Jose and fired three times. One bullet shattered a
front window of the apartment complex and landed in the patio. Robert died from his
head wound.



1
      We take judicial notice of this unpublished opinion. (Evid. Code, § 452 subd. (d);
Cal. Rules of Court, rule 8.1115(b).)
2
       All further date references are to the year 2009 unless otherwise specified.

                                              2
       Matthew Mowry, the dean of students at Birmingham High School, testified that
in October 2009 there were problems at the school being caused by a gang rivalry
between Mara Salvatrucha (M.S.) and Barrio Van Nuys (“B.V.N.”). Mowry said “there
always has been” trouble between B.V.N. and M.S.
       Vaughn Gaboudian, an officer with the Los Angeles School Police Department,
worked at Birmingham High School. He testified there had been on-going campus
conflicts between M.S. and B.V.N. at the time of the shooting. Gaboudian was called to
the scene of a fight on October 22 where he stopped Araujo, who was running away.
Araujo said he belonged to M.S. and he had been having problems with B.V.N. members,
but this had only been an argument, not a fight. The argument started because some
B.V.N. members had “jumped him . . . near his apartment building.” Araujo was told
people from B.V.N. and another gang, 18th Street, “might get him after school” and that
they would be “driving around looking for him.” When Gaboudian asked if the school
had to worry that M.S. would be looking for B.V.N. after school to retaliate, Araujo “said
no, because he knows how it works. He said that if he gets into a fight with [the B.V.N.
member with whom he had been arguing] . . . they would just be back in school two days
later and that he would just blast him when he saw him.”
       Araujo’s friend Jorge testified that a week before the shooting, Araujo had argued
at school with Robert, who belonged to B.V.N. Robert insulted M.S. by saying, “Fuck
Lamara.” After the argument, Araujo asked to borrow Jorge’s phone so he could call a
friend in Pasadena in order to “feed the beast.” Jorge understood this to be a death-
related reference apparently aimed at Robert. After the shooting, Araujo told Jorge “he
had killed one from Van Nuys.” When Jorge said “that wasn’t right,” Araujo warned him
not to say anything or Araujo would kill both Jorge and his mother.
       Gang expert Ralph Brown testified B.V.N. and M.S. were rivals at the time of the
shooting. When he was arrested, Araujo had various M.S. tattoos on his body, including
a fairly recent Devil’s Pitchfork tattoo on his arm. M.S. members do not get a Devil’s
Pitchfork tattoo unless they have committed a violent crime for the gang. By calling out
a gang name while committing a crime, the perpetrator is claiming it for the gang.

                                             3
Saying “Fuck Lamara” to an M.S. member would show disrespect and likely incite a
violent reaction. “Feed the beast” is M.S. code for an act of violence. Based on a
hypothetical question, Brown opined the attack on Robert and Jose had been committed
to benefit the M.S. gang.
       2. Defense evidence.
       Araujo’s mother testified that, in the period of time leading up to the shooting,
Araujo had been very frightened. He told her he was being followed by other students
who wanted to beat him up. About a month before the shooting, he began refusing to
walk or take the bus home from school and she had to pick him up. Someone wrote
“187” on her car several times and Araujo told her this was a death threat aimed at him.3
       Araujo’s girlfriend testified he was one of only two M.S. members at the high
school and that students belonging to B.V.N. and other gangs hated him. She had seen
death threat graffiti aimed at Araujo. On the day before the shooting, Araujo had argued
with rival gang members, one of whom (not Robert) pulled a knife and threatened him.
The girlfriend also testified her entire relationship with Araujo had been an elaborate ruse
in order to “set him up” for an attack by rival gang members.4
       Araujo testified in his own defense. He had joined M.S. when he was nine years
old. If he left the gang he would be killed. He was one of only two M.S. members at the
high school and there were at least ten B.V.N. members at school. They were threatening
him and he lived in B.V.N. territory. He wanted to move, but his mother could not afford
to do so. Death threats had been written on his mother’s car and in graffiti in the
neighborhood.



3
       Section 187 is the Penal Code statute outlawing murder. All further statutory
references are to the Penal Code, unless otherwise specified.
4
        Araujo’s girlfriend testified: “ . . . I had to go out with him, get to know him
better, and at last set him up with the people from the B.V.N. and B.B.S. [the Bad Boys
gang] and with 18th Street. All three main gang members [sic] wanted to . . . get
[Araujo].”

                                             4
       Jose was a member of the Bad Boys gang. Robert was a member of the B.V.N.
gang and was always in Jose’s company. In the months leading up to the shooting,
Araujo was becoming more frightened. About three weeks before the shooting, a car had
slowed down next to him and someone inside pointed a gun at him: “They wanted to
shoot but the bullet didn’t come out.” In the week before the shooting, Robert and
Araujo traded gang insults. During the incident on October 22, Robert and Jose were
among those trying to assault Araujo. He did not recall telling the school security officer
“I’ll just blast them when I see them,” although it was possible he had said this.
       Araujo testified that on the day of the shooting, the other M.S. member at school
“came and he talked to me like frightened and he said they are looking for us.” After
school, some of Araujo’s M.S. friends gave him a gun for protection. He was in a car
with them when they gave him the gun. Then they kicked him out of the car and he
started walking down Vanowen Street to a friend’s house. Coincidentally, he had to go
past Jose’s apartment complex. As he was walking he saw Robert standing just 10 feet
away. Araujo described the shooting:
       “A. Well, I felt that if I turn around, they could see me and they could shoot at
me.
       “Q. And what happened next?
       “A. Well, I saw that Jose saw me and I got frightened and I went towards where
Robert was and I pulled out the gun.
       “Q. And then what happened?
       “A. I shot Robert.
       “Q. And then did you shoot at Jose?
       “A. Yeah, because I thought I saw he was going to grab something. He was near
a car and I saw he was going to grab something and I was frightened.”
       Araujo acknowledged he received new gang tattoos after the shooting, but his
friends had tattooed him without his permission while he was high on drugs. Araujo did
not say anything to Jorge about “feeding the beast” or about having shot Robert; nor did
he warn Jorge to remain silent.

                                             5
          Humberto Guizar, a gang expert, testified Mara Salvatrucha gang tattoos are worn
to show pride in the group and are not earned by shooting someone. Before this trial,
Guizar had never heard the term “feed the beast.” In Guizar’s opinion, Araujo shot
Robert and Jose out of fear, not because he wanted to benefit his gang: “[H]e was under
fire. He’s basically an outcast in an area that is alien to him. He’s not from this area.
He’s from . . . an M.S. gang that is primarily located . . . in the city of L.A., downtown.
[¶] So once they knew that he was a gang member, they started to basically terrorize him
in school every day.” “The tagging on his car 187, saying that you are going to get
killed, . . . you have to take that very serious when you are involved in a gang and
somebody tells you that they are going to kill you and writing on your mother’s car. [¶]
He was jumped. [¶] Sadly, his own girlfriend was trying to set him up to get him killed.
They were . . . trying to kill him. [¶] So when he shot, I believe that he was acting out of
. . . fear . . . .”
          3. Araujo’s initial sentencing hearing.
          At the sentencing hearing, the trial court announced it had found numerous
aggravating factors: “[T]he crime involved great violence, great bodily harm, threat of
great bodily harm, and other acts disclosing a high degree of cruelty, viciousness and
callousness. The defendant pre-planned his attack, arming himself with a handgun,
obtaining the assistance of others, and arranged to be dropped off just a short distance
away from where the victims resided. [¶] Without warning, the defendant walked up to
the victim Robert . . . , fired into [his] face point blank, killing him where he stood.”
Araujo then shot at Jose “from behind as he ran for safety. [¶] The defendant fired
multiple times at [Jose], firing through the front entrance of [his] apartment building. At
least one bullet passed into the building endangering the lives of the residents living
there.”
          The trial court said the victims were “particularly vulnerable. They were
defenseless as they were attacked without warning and were unarmed. . . . [¶] The




                                               6
victims were only 15 years old at the time of this incident.”5 “The manner in which the
crime was carried out indicates planning, sophistication, and professionalism. The
defendant pre-planned the attack, presumably using other M.S. gang members to drive
him to the scene of the attack armed with a loaded nine millimeter semi-automatic
handgun. And after the murder the defendant was transported to Palmdale presumably by
other M.S. gang members.” “The defendant is an admitted M.S. gang member since the
age of nine years and was motivated to kill for the benefit of the gang after he was
disrespected by the rival B.V.N. gang members at school. [¶] The defendant had
additional M.S. tattoos applied to his body after the murder was committed.”
       The trial court found only one factor in mitigation: “The defendant has no known
criminal record.”
       The trial court ended by saying: “The defendant has demonstrated a clear
disregard for human life and demonstrated his intention to live his life as a proud, violent
M.S. gang member. [¶] While this court is mindful that the defendant had a very
difficult childhood, being born in El Salvador, losing his father at an early age, being
jumped into the M.S. gang at the age of nine,6 and having his mother move to the United
States without him, nevertheless the defendant had advantages and choices when he
arrived in the United States and could have chosen . . . to leave the gang and lead a law-
abiding life. He chose not to do so. [¶] And despite his tender age, the defendant is a
vicious killer and a danger to society. [¶] For this, there can be no excuse, justification
or sympathy.”
       The trial court then sentenced Araujo as follows. On count 1, first degree murder
(§ 187), the court imposed a term of 25 years to life, plus 25 years to life for the personal
firearm use enhancement (§ 12022.53(d)), with a minimum parole eligibility term of 15


5
       Robert was 15; Jose was only 14.
6
      “To join a gang, the novice gang member is set upon by several members of the
gang and has to fight them off; this is called being ‘jumped in.’ ” (People v. Lopez
(2013) 56 Cal.4th 1028, 1036, fn. 3.)

                                              7
years for the gang enhancement (§ 186.22, subd. (b)). On count 2, premeditated
attempted murder (§§ 664, 187), the court imposed a consecutive life term, plus 25 years
to life for the firearm use enhancement (§ 12022.53). The trial court stayed imposition of
sentence on count 4, shooting at an inhabited dwelling (§ 246), under the multiple
punishment statute (§ 654).7 Araujo’s total term was 75 years to life, plus life.
       4. Our remand for resentencing.
       In our initial opinion in this matter, we affirmed Araujo’s convictions, while
remanding for resentencing because it did not appear from the record that the trial court
gave meaningful consideration to the fact Araujo had only been 16 years old at the time
of the shooting. As we explained in Araujo I, the United States Supreme Court has
recently expressed concern about sentencing juvenile offenders to prison terms that
prevent any possibility of rehabilitation and eventual release. In Roper v. Simmons
(2005) 543 U.S. 551 [125 S.Ct. 1183] (Roper), the court held that juveniles must be
treated differently than adults when it comes to sentencing. “Roper established that
because juveniles have lessened culpability they are less deserving of the most severe
punishments. [Citation.] As compared to adults, juveniles have a ‘ “lack of maturity and
an underdeveloped sense of responsibility” ’; they ‘are more vulnerable or susceptible to
negative influences and outside pressures, including peer pressure’; and their characters
are ‘not as well formed.’ [Citation.] These salient characteristics mean 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
whose crime reflects irreparable corruption.’ [Citation.] Accordingly, ‘juvenile
offenders cannot with reliability be classified among the worst offenders.’ . . . [¶]
Juveniles are more capable of change than are adults, and their actions are less likely to



7
        Section 654, subdivision (a), provides in pertinent part: “An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.”

                                              8
be evidence of ‘irretrievably depraved character’ than are the actions of adults.”
(Graham v. Florida (2010) 130 S.Ct. 2011, 2026 [176 L.Ed.2d 825] (Graham).).
       Roper held the imposition of capital punishment on juvenile offenders for any
offense whatsoever violated the Eighth Amendment. Graham held the imposition of a
life-without-possibility-of-parole sentence on a juvenile offender for a non-homicide
offense violated the Eighth Amendment. Miller v. Alabama (2012) 132 S.Ct. 2455, 2469
[183 L.Ed.2d 407] (Miller), held “the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile offenders,” although
a trial court could in its discretion impose such a punishment. (Italics added.) In People
v. Caballero (2012) 55 Cal.4th 262 (Caballero), our Supreme Court concluded that,
under the reasoning of these United States Supreme Court cases, “sentencing a juvenile
offender for a nonhomicide offense to a term of years with a parole eligibility date that
falls outside the juvenile offender’s natural life expectancy constitutes cruel and unusual
punishment in violation of the Eighth Amendment.” (Id. at p. 268.)
       Caballero noted that Miller had “extended Graham’s reasoning (but not its
categorical ban) to homicide cases . . . .” (People v. Caballero, supra, 55 Cal.4th at
p. 267.) Caballero pointed out that Miller “also observed that ‘none of what [Graham]
said about children – about their distinctive (and transitory) mental traits and
environmental vulnerabilities – is crime-specific. Those features are evident in the same
way, and to the same degree, when . . . a botched robbery turns into a killing. So
Graham’s reasoning implicates any life-without-parole sentence imposed on a juvenile,
even as its categorical bar relates only to nonhomicide offenses.’ [Citation.]” (Ibid.)
       Araujo was sentenced on September 7, 2011, before either Miller (decided June
25, 2012) or Caballero (decided August 16, 2012) was decided. The trial court’s
explanation for imposing the functional equivalent of a life-without-possibility-of-parole
term was almost entirely taken up with an enumeration of the aggravating factors
warranting a long sentence. The court made no more than a passing express reference to
Araujo’s juvenile status when it said, “And despite his tender age, the defendant is a
vicious killer and a danger to society.” This record did not demonstrate the trial court

                                              9
had given meaningful consideration to the factors subsequently discussed in Miller and
Caballero. The trial court undoubtedly had discretion to impose a sentence amounting to
life without possibility of parole, but it could not do so without considering those factors.
       Given these circumstances, we vacated Araujo’s sentence and remanded to the
trial court for resentencing in accordance with the guidelines set forth in this new case
law. We expressed no opinion as to how the trial court should weigh the factors
discussed in Miller and Caballero, or as to how long Araujo’s sentence should be.
       5. Proceedings on remand.
       On remand, Araujo filed a sentencing memorandum which included an expert
report from Efty Sharony, a social worker at the Center for Juvenile Law and Policy at
Loyola Law School (Center).
              a. Social worker’s mitigation report.
       Sharony teaches law students enrolled in the Center’s clinical program about the
psychosocial issues related to juvenile offenders. She interviewed Araujo a number of
times, spoke to his family members, and reviewed various written records.
       Sharony’s report discussed the neuroscience of adolescent brain development,
noting that “even in normal adolescent brain development maturation doesn’t really occur
until the age of 25,” while “[c]omplex trauma in youth stunts and delays emotional as
well as intellectual development. Research indicates that maternal abandonment is very
traumatizing to one’s development.” Sharony stated, “[A]s risk factors accumulate, there
is an increase to an individual’s vulnerability to adverse outcomes. A review of
[Araujo’s] development shows that almost every type of known risk factor was present.”
       Sharony described Araujo’s childhood in civil war-torn El Salvador in the midst of
an on-going conflict between the M.S. and 18th Street gangs. “When [Araujo] was 6
years old his mother left him in El Salvador under the care of his alcoholic father. At the
age of 8, [Araujo’s] father disappeared. His body was discovered 3 weeks later. At the
age of 9, [Araujo] was ‘jumped’ into M.S.” He engaged in criminal activity for the
gang’s benefit, witnessed much violence, and “was exposed to myriad traumatizing


                                             10
events during this time.” Sharony stated, “It is well documented that the gang often
becomes the primary family for children in situations similar to [Araujo’s].”
       At age 11, Araujo and a younger sister were sent to live with their mother in
California. The children were illegally transported by guides or “ ‘coyotes’ ” over a
three-week period through Guatemala, Mexico and Texas. They were intercepted by
immigration authorities in Texas and detained until their mother could obtain their
release. Sharony characterized this as “a very traumatizing experience” for Araujo.
Because his mother lived in a neighborhood controlled by the Barrio Van Nuys Surenos
gang, which was hostile to M.S., Araujo was constantly harassed. Threatened in school
and in his own neighborhood, he believed rival gang members were out to murder him
and this led directly to the crimes for which he was convicted.
       Sharony opined: “There are a number of risk factors that have been scientifically
established as determinants for gang involvement. Unfortunately, [Araujo] did not
possess any resiliency factors and basically had ALL of the adverse risk factors. He was
in survival mode. His gang membership is actually a mitigating circumstance. He had an
inability to resist the peer pressure of the gang who had been the constant presence in his
short life.”
       Sharony ended her report by discussing Araujo’s “current situation”:
       “In my capacity as a mitigation expert . . . I have interviewed and worked with
prisoners who have spent on average 20 years in custody. The vast majority were
convicted of gang related murders and have since then become entirely different people
who are no longer operating under the cloud of youth and gang membership. Many have
made remarkable strides in becoming educated and rehabilitated in spite of their lengthy
sentences. [¶] This is my hope for Ignacio Araujo. He has already started the path to
rehabilitation during his time in prison. He reports that he has embraced his religion, and
identifies himself as a Christian now. He participates in church and religious education




                                            11
services whenever possible. He also reports only having two 115 violations,[8] neither
violent. This is remarkable because it [is] extremely difficult for young people,
particularly ones with life sentences to adjust to prison life. Often because of their
weakness and vulnerability they are placed in a position where they become even more
aggressive. I believe that these are the beginning signs of [Araujo’s] rehabilitation.”
       Sharony concluded her mitigation report by urging that Araujo’s sentence be
significantly reduced in order to facilitate his participation in the kind of prison
programming9 that will enable him “to properly exhibit rehabilitation and remorse. We
must take into account the over-stimulated hypersensitive state [Araujo] was in at the
time of the crime when considering his culpability. Most importantly, his youthfulness
and history of significant trauma, including parental abandonment, being jumped into a
violent gang at such a young age, and living in such a violent war torn country meet the
criteria for him to receive a reduced sentence, and a meaningful opportunity for parole.”
              b. Araujo’s resentencing.
       After indicating that it had read the resentencing memoranda as well as Sharony’s
expert report, the trial court sentenced Araujo for the second time. As before, the court
found numerous aggravating factors, including the following: the crime involved great
violence, cruelty, and callousness; the young victims were particularly vulnerable; the
manner in which the crimes were carried out demonstrated planning, sophistication, and
professionalism; Araujo was “motivated to kill for the benefit of the gang after he was
disrespected by rival . . . gang members at school;” and Araujo “has demonstrated a clear

8
       “According to the California Code of Regulations, a CDC 115 [California
Department of Corrections Rule Violation Report] documents misconduct believed to be
a violation of law which is not minor in nature.” (In re Gray (2007) 151 Cal.App.4th
379, 389.)
9
       Sharony stated Araujo “is in the highest level of security[,] a level IV currently. If
his sentence were to be lowered significantly, he would remain at a level IV but will have
the opportunity to move to a level III with good behavior. On a level III yard he would
be eligible for programming such as Gangs Anonymous, Cage the Rage (Anger
Management), and be able to participate in religious programming.”

                                              12
disregard for human life and . . . his intention to live his life as a proud, violent M.S. gang
member.”
       As a factor in mitigation, the trial court again noted Araujo did not have a prior
criminal record.
       The court then stated it had taken into consideration the recent case law we cited
in Araujo I, recognizing that the Eighth Amendment “requires that juveniles be
considered differently than adults for sentencing purposes” and “forbid[s] the imposition
of . . . the functional equivalent of [a life-without-possibility-of-parole term] . . . without
consideration of these differences.” The court acknowledged that this recent case
authority had “enumerated salient characteristics of juveniles differentiating them from
adults for consideration at sentencing including: [¶] lack of maturity and undeveloped
sense of responsibility; [¶] increased vulnerability to negative influences including peer
pressure; [¶] immature character development; [¶] tendency to be impetuous; [¶] failure
to appreciate risks and consequences; [¶] the ability to change over time. [¶] The court is
also instructed to weigh the juvenile’s family and home environment from which the
juvenile could not extricate himself no matter how brutal.”
       The trial court then stated it had “considered these factors for the purpose of re-
imposing sentence today as the defendant was 16 years old at the time of the commission
of these offenses. [¶] The court is mindful that the defendant was jumped into Mara
Salvatrucha . . . at the age of nine while living in war torn El Salvador. [¶] His mother
left him at the age of six, came to the United States and left him with his alcoholic father,
who was killed when the defendant was only eight years old. [¶] The defendant and his
sister did not join his mother in the United States until the age of 11. [¶] He was enrolled
in public school with few M.S. gang members mixed in with a greater number of rival
Barrio Van Nuys and other rival gang members. [¶] There had been problems between
the two gangs on campus and some evidence that the defendant had a verbal altercation
with murder victim Robert R[.], who disrespected M.S. This verbal altercation nearly
resulted in a physical confrontation with the defendant and victims Robert R[.] and
Jose A[.]. [¶] There was also evidence that the defendant was fearful for his life and

                                              13
received previous death threats from rival gang members . . . . [¶] The defendant
testified that he lived in B.V.N. territory and wanted to move, but his mother could not
afford it. [¶] There were other . . . threats and challenges to this defendant prior to the
murder, which were not testified to at trial . . . but are outlined in Ms. Sharony’s
sentencing memorandum. [¶] And despite the defendant’s tender age, he was a vicious
killer and a danger to society. [¶] For this there could be no excuse, justification or
sympathy, but a sentence will be reduced accordingly in view of the law pertaining to the
sentencing of juveniles.”
       The court then imposed a total sentence of 50 years to life, which was a reduction
from Araujo’s original sentence of 75 years to life, plus life. This new sentence consisted
of the following: On count 1, a 25 years-to-life term for murder, with a consecutive 25
years-to-life term for the personal firearm use enhancement. On count 2, a straight life
term for premeditated attempted murder, with a consecutive 25 years-to-life term for the
personal firearm use enhancement; count 2 to be served concurrently with the sentence
imposed on count 1. On count 4, the conviction for shooting at an inhabited dwelling, the
court imposed a five-year term plus 25 years to life for the personal firearm use
enhancement, but stayed the sentence on this count under section 654.
                                     CONTENTIONS
       Araujo contends (1) his sentence constitutes cruel and unusual punishment, and
(2) the trial court miscalculated his prison custody credits.
                                       DISCUSSION
       1. Araujo’s sentence does not constitute cruel and unusual punishment.
       Araujo contends his sentence violates the Eighth Amendment because, contrary to
our remand order, the trial court did not give due consideration to the special factors that
must be taken into account when sentencing a juvenile offender. He asserts: “Under
current authority, the trial court has a choice: either make a finding that a defendant is
forever unredeemable, which must be supported by the record, or set a term that allows a
realistic opportunity for release. The sentence of 50 years to life . . . was cruel and
unusual because it did not allow a realistic opportunity for release and the trial court did

                                             14
not make a finding that Mr. Araujo . . . was beyond redemption, nor did the record
support such a finding.” There is no merit to this claim.
       Referencing our Supreme Court’s statement in People v. Gutierrez (2014)
58 Cal.4th 1354, 1389, that “a sentencing court must consider any evidence or other
information in the record bearing on ‘the possibility of rehabilitation,’ ” Araujo concedes
the trial court “took into consideration circumstances in mitigation related to [his] youth,”
but argues the court neither considered the evidence relating to rehabilitation, nor found
that “appellant was unredeemable.” Araujo asserts the trial court erred in “failing to
examine [his] potential for reform.”
       Contrary to Araujo’s arguments, however, it is clear the trial court read and
considered Sharony’s mitigation report which contained a wealth of information
regarding Araujo’s family and social history, and which made a strong case for the
possibility that he could be rehabilitated. The trial court obviously disagreed with
Sharony’s conclusions and recommendations, and it was the trial court’s prerogative to
do so as long as it gave proper consideration to the special factors affecting juvenile
sentencing. We agree with the Attorney General that, “Based on the record, the trial
court gave the requisite consideration to the factors set out in Graham, Miller, and
Caballero, including appellant’s age, family circumstances, and inability to extricate
himself from a threatening environment. . . . In Miller the high court did not foreclose a
sentencer’s ability to determine that a juvenile offender’s crime “ ‘reflects irreparable
corruption,’ ” so long as the sentencer took into account ‘how children are different.’
(Miller, supra, 132 S.Ct. at p. 2469.) The trial court here took into account appellant’s
age and maturity, but nevertheless found that his crimes “ ‘reflect[ed] irreparable
corruption.’ ” (Ibid.)”
       Summing up its recent case law discussing juvenile sentencing, the United States
Supreme Court said in Miller: “[I]n imposing a State’s harshest penalties, a sentencer
misses too much if he treats every child as an adult. To recap: Mandatory life without
parole for a juvenile precludes consideration of his chronological age and its hallmark
features – among them, immaturity, impetuosity, and failure to appreciate risks and

                                             15
consequences. It prevents taking into account the family and home environment that
surrounds him – and from which he cannot usually extricate himself – no matter how
brutal or dysfunctional. It neglects the circumstances of the homicide offense, including
the extent of his participation in the conduct and the way familial and peer pressures may
have affected him. Indeed, it ignores that he might have been charged and convicted of a
lesser offense if not for incompetencies associated with youth – for example, his inability
to deal with police officers or prosecutors (including on a plea agreement) or his
incapacity to assist his own attorneys. [Citations.] And finally, this mandatory
punishment disregards the possibility of rehabilitation even when the circumstances most
suggest it.” (Miller v. Alabama, supra, 132 S.Ct. at p. 2468.)
       Miller then concluded: “[G]iven all we have said in Roper, Graham, and this
decision about children’s diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to this harshest possible penalty will
be uncommon. That is especially so because of the great difficulty we noted in Roper
and Graham of distinguishing at this early age between ‘the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a
sentencer’s ability to make that judgment in homicide cases, we require it to take into
account how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” (Miller v. Alabama, supra, 132 S.Ct. at p. 2469,
fn. omitted.) “Our decision does not categorically bar a penalty for a class of offenders or
type of crime . . . . Instead, it mandates only that a sentencer follow a certain process –
considering an offender’s youth and attendant characteristics – before imposing a
particular penalty.” (Id. at p. 2471.)
       We are additionally guided by two recent cases applying the Miller principles.
       In People v. Jordan (2015) 235 Cal.App.4th 198, the Court of Appeal held the trial
court properly complied with Miller’s requirements when it sentenced a juvenile to a
term of 50 years to life in a robbery/murder case. The trial court had referenced Miller
and then discussed such factors as the defendant’s age, the circumstances of the crime,

                                             16
the defendant’s emotional response to having committed the crime, the defendant’s
family and social background, and “his maturity level as shown by the evidence.” (Id. at
p. 209.) “Based on all of these considerations, the trial court concluded, ‘I do believe that
there are some circumstances where 50 to life would be so disproportionate to the
conduct involved or given the mitigating circumstances of a juvenile involved that it
would be unconstitutional . . . , but this is not one of them.’ ” (Id. at p. 210.) Jordan
held: “In light of the fact that the trial court undertook a substantive and meaningful
analysis of whether, in light of [the defendant’s] age at the time of the murder and other
related factors, it should impose a sentence of less than 50 years to life, we conclude that
the trial court fully complied with the requirements of Miller.” (Ibid.)
       In People v. Palafox (2014) 231 Cal.App.4th 68, the trial court sentenced a
juvenile defendant convicted of special circumstance murder to life without possibility of
parole under section 190.5, subdivision (b).10 On appeal, Palafox argued there was Miller
error because the trial court said it was not excluding the possibility he could be
rehabilitated. But the Court of Appeal reasoned: “The trial court . . . did not find
defendant had a significant chance of rehabilitation; it simply refused to rule out the
possibility. Because no one can see into the future or predict it with any accuracy,
presumably there is always the possibility of rehabilitation – however remote – where a
juvenile is concerned. That is the point of Miller. Despite this, Miller did not say the
possibility of rehabilitation overrides all other relevant factors. If the potential for
rehabilitation were dispositive – or even the preeminent factor – we do not believe the
high court would simply have listed the possibility of rehabilitation as one of several
10
        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.” In People v.
Gutierrez, supra, 58 Cal.4th 1354, our Supreme Court disapproved reading into this
statute any presumption in favor of the life-without-possibility-of-parole term as
unsupportable in light of the high court’s reasoning in Miller.

                                              17
factors applicable to an individualized determination whether to impose [life without
possibility of parole (LWOP)] on a juvenile offender. [Citation.] Rather, the court would
have held LWOP categorically unconstitutional for juvenile offenders, or at least would
have explicitly said such a sentence cannot constitutionally stand in face of a potential for
rehabilitation.” (People v. Palafox, supra, at p. 90.) Palafox concluded, “The trial court
here thoughtfully weighed the applicable factors, particularly defendant’s youth and its
attendant circumstances, and implicitly concluded defendant was unfit ever to reenter
society. We cannot say it exceeded the bounds of reason, all of the circumstances being
considered . . . .” (Id. at p. 91.)
          We conclude the same is true here. Following our remand order, the trial court
gave appropriate consideration to the special factors relating to the sentencing of juvenile
offenders as set forth in the Miller line of cases. The trial court weighed the relevant
factors and acted within the bounds of its discretion in imposing a sentence of 50 years to
life. We therefore conclude that Araujo’s sentence did not constitute an Eighth
Amendment violation.
          2. Trial court miscalculated Araujo’s prison custody credits.
          Araujo contends he is entitled to an additional 22 days of actual prison custody
credits. The Attorney General concedes this claim has merit. “A sentence that fails to
award legally mandated custody credit is unauthorized and may be corrected whenever
discovered. [Citation.]” (People v. Taylor (2004) 119 Cal.App.4th 628, 647; see also
People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8 [“The failure to award an
adequate amount of credits is a jurisdictional error which may be raised at any time.”].)
          Araujo was arrested on December 2, 2009, and was resentenced on February 13,
2014, a total of 1,535 days. However, the trial court awarded him only 1,513 actual days
of prison custody credit. Hence, Araujo is entitled to an additional 22 days of custody
credit.




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                                     DISPOSITION
       The judgment is affirmed as modified. Araujo is entitled to 22 additional days of
actual prison custody credit. The trial court is directed to prepare and forward an
amended abstract of judgment to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 EDMON, P. J.


We concur:




                     ALDRICH, J.




                     EGERTON, 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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