Filed 9/5/18
                              CERTIFIED FOR PUBLICATION




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                             ----




THE PEOPLE,                                                       C074051

                 Plaintiff and Respondent,               (Super. Ct. No. 11F08121)

        v.

RICHARD TYRELL CARTER,

                 Defendant and Appellant.




      APPEAL from a judgment of the Superior Court of Sacramento County,
Timothy M. Frawley, Judge. Reversed with directions.

      David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.

       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein,
Supervising Deputy Attorney General, Peter H. Smith, Deputy Attorney General, for
Plaintiff and Respondent.



                                              1
       Defendant Richard Tyrell Carter claims cruel and unusual punishment (U.S.
Const., Eighth Amend.) in his sentence of 55 years to life in prison for a second-degree
murder he committed at age 17, with personal use and discharge of a firearm causing
death, possession of a firearm by a felon, and a prior strike conviction for robbery. (Pen.
Code, §§ 187, 12022.53, subd. (d), 12021, subd. (a)(1), 667, subds. (b)-(i), 1170.12;
unless otherwise stated, statutory references that follow are to the Penal Code.) The
Attorney General acknowledges this sentence is the functional equivalent of a sentence of
life in prison without possibility of parole (LWOP). (People v. Franklin (2016)
63 Cal.4th 261, 268 (Franklin) [trial court may not sentence juvenile to functional
equivalent of LWOP for homicide offense without Eighth Amendment protections
outlined by United States Supreme Court].)
       This appeal is not rendered moot by 2013 legislation affording parole hearings for
juveniles with life sentences (§§ 3046, 3051, 4801; Stats. 2013, ch. 312, § 4 (Sen. Bill
No. 260); Franklin, supra, 63 Cal.4th 261), because the legislation is inapplicable to
sentences imposed under the three strikes law. (§ 3051, subd. (h).)
       To address defendant’s cruel and unusual punishment claim in the trial court, the
trial court considered defendant’s youth -- but in the context of considering whether to
strike the prior conviction for purposes of three-strikes sentencing in furtherance of the
interests of justice under section 1385 and People v. Superior Court (Romero) (1996)
13 Cal.4th 497 (Romero). This would have reduced the sentence to 40 years to life in
prison. The trial court considered defendant’s youth but declined to strike the prior
conviction, finding that although defendant was able to change, he was unwilling to do
so.
       While this case was pending on appeal, the California Supreme Court held that a
statute giving trial courts discretion to impose a sentence less than LWOP on a juvenile
who commits special circumstance murder (§ 190.5) must be construed without a
presumption in favor of LWOP (as previously construed by case law), in order that the

                                             2
statute not violate the Eighth Amendment. (People v. Gutierrez (2014) 58 Cal.4th 1354
(Gutierrez).) Gutierrez noted in dictum that a trial court’s decision to strike prior
convictions in the context of the Three Strikes law is “ ‘carefully circumscribe[d]’ ” by
the law’s preference against striking prior convictions pursuant to section 1385 or
Romero, a presumption similar to that considered in Gutierrez. (Gutierrez, supra,
58 Cal.4th at p. 1382; see also, People v. Carmony (2004) 33 Cal.4th 367, 375, 378
(Carmony).) Gutierrez compels a new sentencing hearing, at which the trial court shall
reconsider the sentence in light of recent case law holding that the Eighth Amendment’s
ban on cruel and unusual punishment requires the sentencing court to consider factors
bearing on the “distinctive attributes of youth” before imposing an LWOP sentence on a
juvenile offender.
       Other recent changes in law demand that we not only vacate the sentence, but also
conditionally reverse the conviction and remand to the trial court with directions to
transfer the case to the juvenile court for a transfer hearing to determine the propriety of
prosecution in adult criminal court had the case originally been filed in juvenile court
(Welf. & Inst. Code, § 707) pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th
299, which held Proposition 57 retroactive.
       If the juvenile court determines it would not have transferred defendant to criminal
court, the juvenile court shall treat defendant’s convictions as juvenile adjudications and
impose an appropriate disposition.
       If the juvenile court determines it would have transferred defendant to criminal
court, the case shall be transferred to criminal court, which shall reinstate defendant’s
convictions but conduct a resentencing hearing on the vacated sentence in accordance
with this opinion. At such resentencing hearing, defendant may ask the trial court to
exercise its discretion to strike the gun enhancement under recent amendment to section
12022.53, subdivision (h) (Stats. 2017, ch. 682, § 2 (Sen. Bill No. 620), operative Jan. 1,
2018), which we held retroactive in People v. Woods (2018) 19 Cal.App.5th 1080.

                                              3
       If the conviction is reinstated, the trial court after the resentencing hearing shall
prepare a new abstract of judgment and forward it to the Department of Corrections and
Rehabilitation, taking into consideration errors in the original abstract that need
correction, as we discuss post.

                               FACTS AND PROCEEDINGS
       On the night of October 11, 2011, one week after his 17th birthday, defendant and
his brother went to a house on Decathlon Circle in Sacramento, where they participated
in a game of shooting dice with a group of people outside the house. A green pickup
truck drove up, stopped in the street, and the driver reached for the door handle.
Defendant fired a gun at the driver several times, killing him. Apparently, the victim was
there that night looking for a friend whose girlfriend was concerned about his
whereabouts.
       Witnesses were inconsistent in their statements to police and trial testimony.
       Motive for the shooting was unclear. The prosecution’s theory was that defendant
was anxious that a drive-by shooting might occur which, standing alone, was insufficient
for the imperfect self-defense theory in the voluntary manslaughter instruction given to
the jury. The defense theory was that the witnesses were unreliable, and the prosecution
failed to prove its case.
       The jury found defendant guilty of second degree murder and possession of a
firearm by a felon (defendant having stipulated to a prior felony conviction) and found
true that defendant personally used and discharged a firearm causing death. The trial
court found true that defendant had a prior strike conviction for robbery for purposes of
three-strikes sentencing.
       The probation report recommended a sentence of 55 years to life in prison based
on a term of 15 years to life for murder, doubled to 30 years under the three-strikes law,




                                               4
plus a consecutive term of 25 years to life for the firearm enhancement, and a concurrent
two-year term for possession of a firearm by a felon.
       Defendant’s sentencing memorandum argued a sentence of 55 years to life would
be a de facto LWOP that would constitute cruel and/or unusual punishment under the
federal and state Constitutions. Defendant was born October 4, 1994, and committed the
murder at age 17. With a minimum term of 55 years, he would not be eligible for parole
consideration until age 72. Defendant cited life expectancy statistics of 64.9 years for an
African-American male born in 1994, and 72.4 years for a male without regard to race.
The prosecutor argued race should not be taken into account.
       Defendant asked the court to impose a sentence of only 25 years to life, without
explaining a basis to arrive at this number. The defense stated it would not be satisfied
with the trial court striking the prior robbery conviction, because that would only reduce
the sentence to 40 years to life, which would still be too harsh. The prosecutor responded
that, assuming 55 years was a de facto LWOP, defendant’s extensive record justified it,
and cruel/unusual punishment would be an issue only if the sentence were mandatory,
which was not the case because the trial court had discretion to strike the prior conviction
under Romero, even though the defense had declined to made a Romero request.
       The probation report showed defendant was arrested in September 2009, at age 14,
when, after a run-in with schoolmates, he was found in possession of nine rounds of nine
millimeter ammunition at school. The juvenile court placed him on informal probation.
He later failed to appear for an Appearance Progress Report hearing and failed to
complete the terms and conditions of his probation. He was arrested, tried as an adult,
and convicted of second degree robbery committed at age 15 with an accomplice who
pushed the muzzle of a gun into the chest of the victim, who was also a juvenile. He
violated probation by being in a car with others and a loaded gun. He was classified in
jail screening as a gang member.



                                             5
       The prosecutor added other facts from defendant’s truant and delinquent
background. For example, at age 9 he punched another student in the face and helped
steal a bike. At age 10, the school wrote him up several times for threatening a student,
fighting at school, throwing a chair, disobeying teachers, and bringing a pellet gun to
school. That year, defendant’s parents were arrested for theft of utility services and were
reported to Child Protective Services for child neglect. At age 11, defendant slapped two
youths and was arrested for felony attempted vandalism for pulling a metal wire from a
power pole. The charge was conditionally dismissed. At age 13, he physically assaulted
other students. At age 14, he was declared a dependent of the juvenile court due to
domestic violence between his mother and stepfather. The case was later closed, with
defendant placed in his mother’s home. With regard to defendant’s 2009 arrest for
possession of ammunition at age 14, defendant claimed the ammunition was not his.
Defendant stated at the jail that he was a member of the Gunz Up gang. At age 15,
defendant was arrested in April 2010, when officers responding to a call about a domestic
disturbance heard sounds of a fight, entered the apartment, and found defendant on top of
his girlfriend, holding her down. She had an abrasion on her cheek and a torn shirt but
declined to cooperate with police. Defendant’s fourth arrest was in April 2010 for the
robbery of which he was convicted.
       Defendant submitted educational and psychoeducational evaluations showing
apparent learning disabilities and deficits in processing information. The defense also
submitted a psychiatric evaluation by Dr. Matthew Soulier, who opined defendant “is still
extremely unlearned and immature . . . [¶] . . . His brain is yet to fully mature on a
biological level. Within 3-5 years, his brain will further mature, rendering him better
able to process information, risk, and consequences.”
       The prosecutor argued Dr. Soulier did not have complete information, e.g., did not
have access to a section 1368 psychological evaluation of defendant’s competency to
stand trial for the 2010 robbery, which concluded defendant -- then age 15 -- was “greatly

                                              6
magnifying, exaggerating and even malingering his difficulties.” The evaluator caught
defendant knowing things he initially claimed not to know and presenting himself as
operating at a level below that reflected by the record. The court in the robbery case
found defendant competent to stand trial. Over defense objection (not renewed on
appeal), the trial court considered the section 1368 evaluation.
       In sentencing defendant, the trial court noted the law was developing regarding re-
examination of a juvenile’s prospects after years in custody, but “[w]e don’t have that
situation here. I am asked to make that assessment of an individual who is now still
young and hasn’t gone through that process so I am going to stick with the laws that are
currently on the books; and I will undertake a Romero analysis. [¶] Actually,
technically, the defense can only suggest a Romero analysis and can’t make a motion
under the law; but on my own, I will undertake that analysis so we will do that now.”
       The court noted the question was whether defendant falls outside the spirit of the
three strikes law, taking into consideration the circumstances of the current offense, the
strike offense, defendant’s other criminal record, as well as his background, character and
prospects, including his age. “And then I have to consider whether, if the prior strike is
not dismissed or stricken, will the mandated punishment cause a severe, unreasonable,
and disproportionate detriment to the defendant when taking all factors into situation
[sic]? [¶] Conversely, if stricken, can an adequate and just punishment be imposed?”
       The court stated: “[I]t is pretty clear that the crime for which Mr. Carter is to be
sentenced today does not represent a single or even just a second instance of otherwise
abhorrent behavior. In retrospect, one could say we saw this coming this day.
       “I agree that Mr. Carter hasn’t had the benefit of good parenting, but there are
other people who would appear to have attempted to intervene in his life and provide the
structure and the guidance; but he has rejected that.
       “Some of the points that both counsel have raised actually would be considered
under this next heading is the defendant’s background, his character, his prospect.

                                              7
       “I have considered his age. The appellate cases tell us I have to consider his
willingness to participate in rehab programs. What I know today is that he doesn’t take
his medication. He has not availed himself of programs that might be available to him.
       “I am supposed to consider whether or not he has any valuable skills. He is young
but other people his age have progressed educationally and he has not. Apparently, there
are some cognitive deficits that he has, which I have taken into consideration.
       “The cases tell me I have to consider his family status and his employment history.
His employment history consists, I guess, of working for his stepfather at times.
       “I have considered all the information in all of the reports, I think, that extensively
addresses this.”
       Defense counsel said defendant had progressed educationally because he
graduated from high school, though reading at only a third grade level.
       The court “[n]ext . . . considered whether, if the strike is not stricken, will the
mandated punishment cause a severe, unreasonable, and disproportionate detriment,”
taking all factors into consideration. The prosecutor argued that, as long as the court was
exercising its Romero discretion, there was no cruel/unusual punishment problem. The
prosecutor also argued (incorrectly) that the possibility of executive clemency mitigated
the punishment. (Graham v. Florida (2010) 560 U.S. 48, 69-70 [176 L.Ed.2d 825]
(Graham) [remote possibility of executive clemency did not mitigate harshness of
sentence].)
       The trial court stated: “Basically, the only reason that could justify striking the
prior strike conviction is the defendant’s youth. There is nothing about his life that
mitigates that, other than he is young and he has not had good parenting, has not grown
up in positive circumstances. [¶] That being said, there is nothing that gives me much
hope about Mr. Carter. If there was just something in his background, a glimmer that
suggested to me he wanted to change, I think he has the ability to change [italics added];
but he hasn’t demonstrated any willingness to change. [¶] I understand -- and you

                                               8
continue to dispute that he is responsible for this second degree murder but even so, there
has been no expression of remorse that I can detect.”
       At the point in time when the trial court said defendant had not demonstrated
willingness to change, defendant was 18 years and eight months old.
       The court declined to strike the prior robbery conviction and sentenced defendant
to an aggregate term of 55 years to life in prison based on a term of 15 years to life for
the murder, doubled to 30 years under the three-strikes law, plus a consecutive term of 25
years to life for the firearm enhancement. The court sentenced defendant to a concurrent
two-year term for possession of a firearm by a felon. The court terminated probation for
the prior robbery and applied custody credits to the probation violation. The court told
defendant, “it is entirely possible -- some might say likely -- at some point the law will
provide you with a means of shortening your sentence and whether that happens and
whether your sentence is ever shortened, whether you are paroled, would depend largely
on your conduct in prison. I hope you see that as an incentive to turn your life around.”

                                       DISCUSSION

                                              I

                           Defendant’s Contention Is Not Moot

       Recent legislation has not rendered moot the constitutional question in this appeal.
       Section 3051, which affords juvenile offenders a later parole hearing of LWOP
sentences (Stats. 2013, ch. 312, § 4 (Sen. Bill No. 260); Franklin, supra, 63 Cal.4th 261
[statute renders Eighth Amendment claim of cruel and unusual punishment moot]), does
not apply because the legislation expressly states it is inapplicable to sentences imposed
under the three strikes law. (§ 3051, subd. (h) [statute does not apply to cases in which
sentencing occurs pursuant to section 1170.12 and section 667, subds. (b)-(i)]; see also
People v. Contreras (2018) 4 Cal.5th 349, 359, 381 [Franklin does not apply to One
Strike exception under section 3051, subdivision (h)].)


                                              9
       Earlier legislation, section 1170, subdivision (d)(2), which allows a prisoner to ask
the trial court for a hearing for recall and resentencing after 15 years of an LWOP
sentence -- assuming it could apply to the functional equivalent of LWOP -- does not
defeat a claim of cruel and unusual punishment, because the question is whether the
sentence “ ‘at the outset’ ” is disproportionate. (Gutierrez, supra, 58 Cal.4th at p. 1386.)

                                               II

                                      Standard of Review

       An Eighth Amendment challenge presents a question of law. (Gutierrez, supra,
58 Cal.4th at p. 1368.)
       We review for abuse of discretion a trial court’s decision not to strike a prior
conviction under section 1385 or Romero. (Carmony, supra, 33 Cal.4th at p. 376.) But
“ ‘all discretionary authority is contextual’ [citation] [and] we cannot determine whether
a trial court has acted irrationally or arbitrarily in refusing to strike a prior conviction
allegation without considering the legal principles and policies that should have guided
the court’s actions.” (Id. at p. 377.) The legal principles include avoidance of an
unconstitutional cruel and unusual punishment in sentencing juveniles.

                                               III

                               Cruel and Unusual Punishment

       We accept for purposes of this appeal the People’s concession that the sentence of
55 years to life in prison was a de facto LWOP. Eighth Amendment restrictions on
sentencing juveniles to LWOPs apply to sentences that are the functional equivalent of
LWOP in that the release date is near or beyond the juvenile’s life expectancy.
(Franklin, supra, 63 Cal.4th at pp. 276-277, citing Sumner v. Shuman (1987) 483 U.S.
66, 83 [97 L.Ed.2d 56] [there is no basis for distinguishing between LWOP and sentence




                                               10
for a number of years exceeding normal life expectancy]; People v. Caballero (2012)
55 Cal.4th 262, 268.)
       The Eighth Amendment to the United States Constitution prohibits “cruel and
unusual punishment” and is binding on the states through the 14th Amendment.
(Franklin, supra, 63 Cal.4th at p. 273.) Although defendant cites California’s prohibition
on “cruel or unusual punishment” (Cal. Const., art. I, § 17), he offers no argument, and
we need not consider it. (People v. Stanley (1995) 10 Cal.4th 764, 793 [reviewing court
need not address points not briefed].)
       Punishment for crime should be graduated and proportioned to both the offender
and the offense. (Miller v. Alabama (2012) 567 U.S. 460, 469 [183 L.Ed.2d 407]
(Miller).) “Protection against disproportionate punishment is the central substantive
guarantee of the Eighth Amendment and goes far beyond the manner of determining a
defendant’s sentence.” (Montgomery v. Louisiana (2016) 577 U.S. __, __ [193 L.Ed.2d
599, 618] (Montgomery).)
       Graham, supra, 560 U.S. 48, held the Eighth Amendment prohibits a State from
imposing a LWOP sentence on a juvenile nonhomicide offender. (Id. at p. 69.)
       Miller, supra, 567 U.S. 460, held the Eighth Amendment prohibits a mandatory
LWOP sentence for a juvenile offender who commits homicide. (Id. at p. 465.)
Juveniles are “constitutionally different from adults for purposes of sentencing.” (Id. at
p. 471.) Minors’ immaturity and underdeveloped sense of responsibility lead to
recklessness and impulsivity; they are more vulnerable to negative influences and outside
pressures including family environment over which they have limited control; and their
character is less fixed than an adult’s such that their actions are less likely to be evidence
of irretrievable depravity. (Ibid.) The distinctive attributes of youth also diminish
justification for LWOPs, e.g., ordinary adolescent development diminishes the likelihood
that a juvenile offender will forever be a danger to society. (Id. at p. 472.)



                                              11
       As later explained by the United States Supreme Court, “Miller . . . did more than
require a sentencer to consider a juvenile offender’s youth before imposing life without
parole; it established that the penological justifications for life without parole collapse in
light of ‘the distinctive attributes of youth.’ [Citation.] Even if a court considers a
child’s age before sentencing him or her to a lifetime in prison, that sentence still violates
the Eighth Amendment for a child whose crime reflects ‘ “unfortunate yet transient
immaturity.” ’ [Citation to Miller, supra, 567 U.S. at p. 479.] Because Miller determined
that sentencing a child to life without parole is excessive for all but ‘ “the rare juvenile
offender whose crime reflects irreparable corruption,” ’ [citation], it rendered life without
parole an unconstitutional penalty for ‘a class of defendants because of their status’ -- that
is, juvenile offenders whose crimes reflect the transient immaturity of youth. [Citation.]”
(Montgomery, supra,193 L.Ed.2d at pp. 619-620 [Miller announced a new substantive
constitutional rule that was retroactive on state collateral review].)
       Gutierrez, supra, 58 Cal.4th 1354, applied cruel and unusual punishment
principles to a nonmandatory sentence, holding that, to avoid a constitutional problem, a
statute (§ 190.5) giving trial courts discretion to impose a lesser sentence than LWOP on
16- or 17-year olds convicted of special circumstance murder, must be construed and
applied with no presumption in favor of LWOP.
       Here, we have a homicide offense but neither LWOP nor its functional equivalent
was mandatory, in that the trial court had discretion to reduce the sentence by dismissing
the prior strike conviction under section 1385 and Romero. In these circumstances, we
are guided by Gutierrez, which held (1) LWOP sentences were not mandatory in that trial
courts had discretion not to impose LWOP on juveniles for special circumstance murder
(§ 190.5, subd. (b) [penalty for special circumstance murder by minor age 16 to 18 shall
be LWOP “ ‘or, at the discretion of the court, 25 years to life’ ”]), but (2) the sentences
must be selected with no presumption in favor of LWOP and the courts must consider the
Miller factors. (Gutierrez, supra, 58 Cal.4th 1354.) Construing section 190.5,

                                              12
subdivision (b), to establish a presumption in favor of LWOP (as had been done by prior
case law) would raise “serious constitutional concerns under the reasoning of Miller and
the body of precedent on which Miller relied.” (Gutierrez, supra, 58 Cal.4th at p. 1387.)
The California Supreme Court accordingly construed the statute to render it free from
doubt as to its constitutionality, by holding the statute confers discretion on the
sentencing court to impose either LWOP or a term of 25 years to life, with no
presumption in favor of LWOP. (Ibid.) Although section 190.5, subdivision (b), did not
expressly direct the trial court to consider aggravating and mitigating factors including
the nature and circumstances of the offense and the offender, they were implied. (Id. at
p. 1387.) Those factors included the age of the defendant at the time of the crime. (Id. at
p. 1388.) This factor considers not only the age but any age-related matter suggested by
the evidence or by common experience or morality. (Ibid.) Gutierrez held the sentencing
court, before imposing the nonmandatory LWOP sentence, had to consider the Miller
factors: (1) the offender’s chronological age and its hallmark features, including
immaturity, impetuosity, and failure to appreciate risks and consequences; (2)
environmental vulnerabilities including childhood abuse or neglect, familial drug or
alcohol abuse, lack of adequate parenting or education, prior exposure to violence, and
susceptibility to psychological damage or emotional disturbance; (3) circumstances of the
offense including the extent of the defendant’s participation and any familial or peer
pressures; (4) whether the offender might have been charged with a lesser offense if not
for incompetencies of youth; and (5) any evidence or other information in the record
bearing on the possibility of rehabilitation. (Gutierrez, supra, 58 Cal.4th at pp. 1388-
1390.)
         In sum, Gutierrez held “the trial court must consider all relevant evidence bearing
on the ‘distinctive attributes of youth’ discussed in Miller and how those attributes
‘diminish the penological justifications for imposing the harshest sentences on juvenile
offenders.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1390.) Because the trial courts in the

                                              13
case on appeal had operated under a governing but erroneous presumption in favor of
LWOP, the California Supreme Court could not say with confidence what sentence they
would have imposed absent the presumption, and accordingly remanded both cases for
resentencing. (Id. at p. 1391.)
       Gutierrez applied the principle that, if a statute is susceptible of two constructions,
one of which will render it constitutional and the other of which casts doubt on
constitutionality, the court will adopt the construction that, without doing violence to the
reasonable meaning of the statutory language, will render the statute constitutionally
valid. (Id. 58 Cal.4th at p. 1373.) Gutierrez observed this canon has been applied to
various penal laws, including section 1385. (Ibid., citing Romero, supra, 13 Cal.4th at
pp. 509-519.) Gutierrez said: “In the context of California’s Three Strikes law, . . . we
have held that a court’s discretionary power to strike prior felony convictions ‘in
furtherance of justice’ (§ 1385) is ‘carefully circumscribe[d]’ by a preference in the Three
Strikes law against striking prior convictions. [Citation to Carmony, supra, 33 Cal.4th at
p. 378.] Because of this presumption, we have said that trial courts’ decisions to strike a
prior conviction should be ‘ “extraordinary.” ’ [Citation.] Similarly here, it is one thing
to say that a court, confronting two permissible sentencing options, may impose the
harsher sentence if it finds that sentence justified by the circumstances. It is quite another
to say that a court, bound by a presumption in favor of the harsher sentence, must impose
that sentence unless it finds good reasons not to do so. When the choice between two
sentences must be made by weighing intangible factors, a presumption in favor of one
sentence can be decisive in many cases.” (Gutierrez, supra, 58 Cal.4th at p. 1382.)
       Here, as in Gutierrez, a presumption in favor of three strikes sentencing creates
problems of constitutionality as applied to juvenile offenders. In contrast to section 1385
and Romero, in a cruel/unusual punishment analysis, “Miller . . . did more than require a
sentencer to consider a juvenile offender’s youth before imposing life without parole; it
established that the penological justifications for life without parole collapse in light of

                                              14
‘the distinctive attributes of youth.’ [Citation.] Even if a court considers a child’s age
before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’
[Citation.] Because Miller determined that sentencing a child to life without parole is
excessive for all but ‘ “the rare juvenile offender whose crime reflects irreparable
corruption,” ’ [citation], it rendered life without parole an unconstitutional penalty for ‘a
class of defendants because of their status’ -- that is, juvenile offenders whose crimes
reflect the transient immaturity of youth. [Citation.]” (Montgomery, supra, 193 L.Ed.2d
at pp. 619-620.)
       The People argue the trial court did find irreparable corruption, by stating there
was no evidence of a willingness to change. However, the court did not find that
defendant’s present unwillingness to change reflected irreparable corruption, as opposed
to the transient immaturity of youth.
       The California Supreme Court currently has under review the question whether the
record must show an express determination of irreparable corruption before imposing
LWOP, or whether it suffices simply to show the trial court gave due consideration to the
defendant’s youth and attendant characteristics. (People v. Padilla (2016) 4 Cal.App.5th
656, review granted Jan. 25, 2017, S239454.) Padilla held “In view of Montgomery
[which clarified that Miller set forth a substantive rule], the trial court must assess the
Miller factors with an eye to making an express determination whether the juvenile
offender’s crime reflects permanent incorrigibility arising from irreparable corruption.”
(Padilla, at p. 673, review granted.) Padilla, supra, at pages 664-665, 673 (review
granted) concluded Montgomery thus vitiated the pre-Montgomery case of People v.
Palafox (2014) 231 Cal.App.4th 68, which held that, because the potential for
rehabilitation was speculative at the time of sentencing, the record need not show an
express determination by the trial court, but only that the trial court thoughtfully weighed
the Miller factors. (Palafox, at pp. 90-92.)

                                               15
       Here, even assuming for the sake of argument that the trial court was not required
to make an express determination as to whether defendant’s present unwillingness to
change reflected irreparable corruption, as opposed to the transient immaturity of youth,
the record is unclear whether the trial court -- which lacked the benefit of the analysis of
Montgomery and Gutierrez -- properly weighed the Miller factors in deciding not to
strike the prior conviction under section 1385.
       Thus, the judge said, “[w]hat I know today” is that defendant was not showing
willingness to participate in rehabilitation programs, and “there is nothing that gives me
much hope about Mr. Carter. If there was just something in his background, a glimmer
that suggested to me he wanted to change.” The court also said, “I think he has the
ability to change” and “I hope you [defendant] see [the prospect of future legislation for
shortened sentence] as an incentive to turn your life around.”
       While the potential for rehabilitation necessarily involves some speculation, here it
appears the trial court considered significant defendant’s current unwillingness to change
at the time of sentencing -- but without considering whether defendant’s current
unwillingness to change might be the product of transient immaturity, as opposed to
permanent incorrigibility arising from irreparable corruption.
       Thus, while not expressly saying so, the trial court certainly knew the law relating
to Romero decisions and it is reasonable to expect the trial court felt bound by the
presumption in favor of three-strikes sentencing and against the granting of Romero
requests. In accordance with Gutierrez and the other decisions set forth above on the
issue of the constitutionality of sentencing decisions where the defendant was under the
age of 18 when he committed his crimes, the sentence for this 17-year-old murderer had
to be selected with no presumption in favor of LWOP or its functional equivalent, and
with consideration of the Miller factors.
       Because the trial court did not have the benefit of Gutierrez or Montgomery when
it sentenced defendant, and because the trial court necessarily considered the presumption

                                             16
in favor of three-strikes sentencing, we conclude remand is appropriate for the trial court
to reconsider sentencing under Eighth Amendment principles without any presumption in
favor of three-strikes sentencing. We emphasize the trial court retains discretion whether
to strike the prior conviction. (People v. Orabuena (2004) 116 Cal.App.4th 84, 95 [court
should not interpret section 1385 as eliminating discretionary power absent clear
legislative direction to that effect].) We express no view as to the outcome on remand.

                                             IV

                                   Abstract of Judgment

       Although we are vacating the sentence, we note for the benefit of any resentencing
after remand that defendant identifies three errors in the abstract of judgment, and the
People properly concede the errors.
       First, although the trial court imposed a concurrent, determinate two-year term for
Count 2 felon in possession of a firearm, the court listed count 2 on the indeterminate
term abstract of judgment, with no term designated, rather than on a separate
determinate-term abstract.
       Second, line 6b of the abstract incorrectly shows the 25-years-to-life firearm
enhancement as a sentence on Count 1 (murder), while line 2 incorrectly states “1” as
“time imposed” for the enhancement. The abstract should show the enhancement
sentence on line 2, not line 6.
       Third, line 5 of the abstract (life with possibility of parole) is checked but should
not be. Line 6a is checked, showing “15 years to life” with the notation “1x2=30.” Line
6a should not be checked. Instead, line 6c should be checked and an entry made to show
30 years to life on Count 1.
       On remand, the trial court shall consider these points if it prepares a new abstract
of judgment.




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                                        DISPOSITION
       The sentence is vacated and the conviction is conditionally reversed. We remand
to the trial court with directions to transfer the case to the juvenile court for a transfer
hearing to determine if the case would have been transferred to adult criminal court had
the case originally been filed in juvenile court (Welf. & Inst. Code, § 707) pursuant to
Lara, supra, 4 Cal.5th 299, which held Proposition 57 retroactive.
       If the juvenile court determines it would not have transferred defendant to criminal
court, the juvenile court shall treat defendant’s convictions as juvenile adjudications and
impose an appropriate disposition.
       If the juvenile court determines it would have transferred defendant to criminal
court, the case shall be transferred to criminal court, which shall reinstate defendant’s
convictions but conduct a resentencing hearing on the vacated sentence, considering the
distinctive attributes of youth in accordance with this opinion. At the resentencing
hearing, defendant may ask the trial court to exercise its discretion to strike the section
12022.53 gun enhancement pursuant to Senate Bill No. 620 (§ 12022.53, subd. (h)),
which took effect January 1, 2018, and which we held retroactive in People v. Woods,
supra, 19 Cal.App.5th 1080.




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      If the conviction is reinstated, the trial court after the resentencing hearing shall
prepare a new abstract of judgment, correcting if necessary the errors we discussed, and
forward it to the Department of Corrections and Rehabilitation.



                                                         HULL                   , Acting P. J.



We concur:



      BUTZ                  , J.



      MURRAY                , J.




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