Filed 12/15/14 P. v. Spivey CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B252500

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA064306)
         v.

DAVID WAYNE SPIVEY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T.
Millington, Judge. Remanded for resentencing.
         Edward H. Schulman, under appointment for the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Steven D. Matthews and Taylor Nguyen, Deputy Attorneys General, for
Plaintiff and Respondent.




                                          _______________________
       David Wayne Spivey was convicted following a jury trial of first degree murder,
shooting at an inhabited dwelling and conspiracy to commit murder with true findings on
related firearm-use and criminal-street-gang enhancement allegations. The trial court
sentenced Spivey, who was 17 years old at the time of the crimes and 22 years old when
originally sentenced in November 2010, to an aggregate state prison term of 58 years to
life: 25 years to life for first degree murder, plus 25 years to life for the firearm-use
enhancement under section Penal Code 12022.53, subdivisions (d) and (e)(1),1 plus the
lower term of three years for shooting at an inhabited dwelling and an additional five
years for the gang enhancement on that offense.2
       In Spivey’s prior appeal, People v. Spivey (May 22, 2012, modified June 18, 2012,
B229312) (nonpub. opn.), we rejected several challenges to his sentence but remanded
for resentencing in light of the trial court’s failure to impose a proper sentence on the
count for shooting at an inhabited dwelling, explaining, “[W]e cannot tell from this
record whether the court would have imposed the sentence on count three to run
consecutively or concurrently had it realized the proper sentence was an indeterminate
term of life in prison with a minimum parole eligibility of 15 years” rather than a
determinate term of eight years.
       On remand the trial court sentenced Spivey to an aggregate state prison term of
65 years to life, electing to impose the sentence for shooting at an inhabited dwelling to
run consecutively to the sentence for first degree murder. Spivey again appeals, arguing
the new sentence is the functional equivalent of life without the possibility of parole and
violates the Eight Amendment’s prohibition against cruel and unusual punishment
because it was imposed without considering the mitigating factors relating to the
distinctive attributes of a juvenile offender identified in Miller v. Alabama (2012)
567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller), People v. Gutierrez (2014)


1
       Statutory references are to the Penal Code.
2
       The court stayed the sentence for conspiracy to commit murder pursuant to
section 654.

                                               2
58 Cal.4th 1354 (Gutierrez) and People v. Caballero (2012) 55 Cal.4th 262 (Caballero).
We remand once again for resentencing.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Prior to Spivey’s initial sentencing on November 1, 2010, the trial court heard
argument from counsel and a statement from Spivey’s mother. The court advised the
parties it had read and considered the probation report, the parties’ sentencing
memoranda and 10 letters submitted on Spivey’s behalf. The parties stipulated no
supplemental probation report was necessary. As discussed, the court sentenced Spivey
to an aggregate state prison term of 58 years to life.
       In our original opinion in Spivey’s first appeal we determined the court had
improperly imposed a consecutive eight-year sentence for shooting at an inhabited
dwelling with a criminal street gang enhancement. The court had selected the lower term
of three years and added the five-year enhancement pursuant to section 186.22,
subdivision (b)(1)(B), for a serious felony. However, section 186.22,
subdivision (b)(4)(B), specifies an alternate punishment of 15 years to life for certain
crimes, including a violation of section 246 (discharging a firearm at an inhabited
dwelling). Accordingly, we modified the judgment by replacing the eight-year
consecutive term imposed by the trial court on that count with the proper indeterminate
life term (that is, 15 years to life), and affirmed the judgment as modified.
       Spivey petitioned for rehearing, arguing in light of his youth and the trial court’s
decision to impose the lower term of three years for shooting at an inhabited dwelling, the
record was not clear whether the trial court would have imposed the sentence on that
count to run consecutively or concurrently had it realized the proper sentence was an
indeterminate term of 15 years to life. We agreed, modified our opinion and remanded
the matter to the trial court with directions to exercise its discretion to impose the term for
that count to run either concurrently or consecutively to the 50-year-to-life sentence
previously imposed for first degree murder with the firearm-use enhancement.
       On remand Spivey filed a new sentencing memorandum in which he urged the
trial court to impose the term concurrently. Spivey argued imposition of the additional

                                              3
indeterminate life term to run consecutively would be excessive in light of his age and the
resulting aggregate state prison sentence of 65 years to life would violate the Eighth
Amendment’s prohibition on cruel and unusual punishment within the meaning of Miller,
supra, 567 U.S. __ [132 S.Ct. 2455], Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct.
2011, 176 L.Ed.2d 825] (Graham), and Caballero, supra, 55 Cal.4th 262.
       After considering Spivey’s memorandum, the trial court stated it believed a
consecutive sentence was warranted for the reasons it had articulated at the original
sentencing hearing in 2010. Without commenting on his Eighth Amendment argument,
the court sentenced Spivey to an aggregate state prison term of 65 years to life.
                                       DISCUSSION
       1. Governing Legal Principles
             a. The United States Supreme Court cases: Graham and Miller
       The Eighth Amendment’s ban on cruel and unusual punishment prohibits
imposition of a sentence that is grossly disproportionate to the severity of the crime.
(Ewing v. California (2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2sd 108].)3 In
Graham, supra, 560 U.S. 48, the United States Supreme Court held sentencing a juvenile
to life without parole for a nonhomicide offense violates the Eighth Amendment’s
prohibition of cruel and unusual punishment. (Id. at p. 82.) Central to this result was the
Court’s appreciation for the “fundamental differences between juvenile and adult minds”
and its recognition that juveniles are “more capable of change than are adults . . . .” (Id.
at p. 68.)
       The Supreme Court subsequently extended the reasoning of Graham to hold a
mandatory sentence of life imprisonment without the possibility of parole for a juvenile
convicted of murder also violates the Eighth Amendment. (Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at pp. 2467-2468].) As the Court explained, such mandatory penalties
“preclude[] consideration of [a juvenile’s] chronological age and its hallmark features—

3
        The Eighth Amendment applies to the states. (Robinson v. California (1962)
370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758]; Caballero, supra, 55 Cal.4th at p. 265,
fn. 1.)

                                              4
among them, immaturity, impetuosity, and failure to appreciate risks and consequences.”
(Id. at p. 2468.) The Court concluded Graham’s directive to consider the unique
characteristics and vulnerabilities of juveniles is not “crime-specific” and its “reasoning
implicates any life-without-parole sentence for a juvenile . . . .” (Id. at p. 2458.) Thus,
although the Court did not categorically prohibit the punishment of life imprisonment
without the possibility of parole for juvenile offenders convicted of murder, it held the
sentencing court in those cases must consider the juvenile’s age and youthful
characteristics before imposing such a sentence. (Id. at pp. 2467, 2471.)4
           b. The California Supreme Court’s decision in Caballeros
       In Caballero, supra, 55 Cal.4th 262, 268-269, the California Supreme Court held a
110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses (three
gang-related attempted murders) was the functional equivalent of a life without parole
sentence and, therefore, was subject to the constitutional constraints articulated in
Graham and Miller. (Caballero, at pp. 268-269.) The Court rejected the argument a
cumulative sentence for distinct crimes does not present an Eighth Amendment issue and
held, when a juvenile is sentenced to minimum terms that exceed his or her life
4
        The Miller Court summarized the individual sentencing factors (the Miller factors)
that should be considered by courts in sentencing juveniles: (1) the actual age of the
offender and the “hallmark features” of youth, including “immaturity, impetuosity, and
failure to appreciate risks and consequences”; (2) the “family and home environment”
that surround the offender; (3) “the circumstances of the homicide offense, including the
extent of [the juvenile offender’s] participation in the conduct and the way familial and
peer pressures may have affected [the offender]”; (4) information that suggests whether
the offender may have been charged with or convicted of a lesser offense but for the
“incompetencies associated with youth—for example, [the offender’s] inability to deal
with police officers or prosecutors (including a plea agreement) or [the offender’s]
incapacity to assist [his or her] own attorneys”; and (5) “the possibility of rehabilitation.”
(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].)
       In Gutierrez, supra, 58 Cal.4th 1354, the California Supreme Court held
section 190.5, subdivision (b), which authorizes the trial court, in its discretion, to impose
a sentence of either life without possibility of parole or 25 years to life on a defendant
who was 16- or 17-years old at the time he or she committed first degree murder with one
or more special circumstances, “authorizes and indeed requires consideration of the
Miller factors.” (Gutierrez, at p. 1387.)

                                              5
expectancy for nonhomicide offenses, the punishment is unconstitutional under Graham
and Miller. (Caballero, at pp. 268-269.) As the Court explained, “[T]he state may not
deprive [juveniles] at sentencing of a meaningful opportunity to demonstrate their
rehabilitation and fitness to reenter society in the future.” (Id. at p. 268.) A sentencing
court must consider mitigating circumstances before determining at which point juveniles
can seek parole, including their age, whether they were a direct perpetrator or an aider
and abettor, and their physical and mental development. (Ibid.) The Caballero Court
also noted the United States Supreme Court in Miller “requires sentencers in homicide
cases ‘to take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.’” (Id. at p. 268, fn. 4.)
           c. Section 3051
       Responding to Graham, Miller and Caballero the California Legislature enacted
Senate Bill No. 260 (2013-2014 Reg. Sess), adding section 3051 to the Penal Code
effective January 1, 2014 and creating a “parole eligibility mechanism” that allows
minors sentenced to a lengthy determinate term or an indeterminate life term to secure
their release on parole after serving a prescribed term of confinement if they can
demonstrate they have “rehabilitated and gained maturity.” (See Stats. 2013, ch. 312, § 1
[“[i]t is the intent of the Legislature to create a process by which growth and maturity of
youthful offenders can be assessed and a meaningful opportunity for release
established”].) Section 3051 specifically provides “any prisoner who was under 18 years
of age at the time of his or her controlling offense” shall be provided a “[a] youth
offender parole hearing . . . for the purpose of reviewing the [prisoner’s] parole
suitability . . . .” (§ 3051, subd. (a)(1).) “A person who was convicted of a controlling
offense that was committed before the person had attained 18 years of age and for which
the sentence is a life term of 25 years to life shall be eligible for release on parole by the




                                               6
board during his or her 25th year of incarceration at a youth offender parole hearing . . . .”
(§ 3051, subd. (b)(3).)5
       The Attorney General argues the enactment of section 3051 and Spivey’s
eligibility for a parole hearing when he is in his early 40’s effectively cures any possible
constitutional violation based on Spivey’s claim he is serving the functional equivalent of
a sentence of life without parole without the sentencing court having analyzed his relative
culpability using the Miller factors. Although this issue is currently before the California
Supreme Court,6 in Gutierrez, supra, 58 Cal.4th 1354, the Court recently rejected the
assertion that section 1170, subdivision (d)(2)—providing a juvenile offender sentenced
to life without the possibility of parole for murder may seek recall of his or her sentence
after 15 to 24 years —“removes life without parole sentences for juvenile offenders from
the ambit of Miller’s concerns because the statute provides a meaningful opportunity for


5
       Juvenile offenders with determinate sentences of any length are entitled to a youth
offender parole hearing during their 15th year of incarceration. (§ 3051, subd. (b)(1).)
Juvenile offenders sentenced to life terms of less than 25 years to life will participate in a
youth offender parole hearing during their 20th year of incarceration. (§ 3051,
subd. (b)(2).)
6
       The California Supreme Court has granted review in a number of cases involving
the effect, if any, of the enactment of section 3051 on the claim a de facto sentence of life
without the possibility of parole violates the Eighth Amendment: In re Alatriste and
Bonilla (2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014, S214652 (Alatriste),
S214960 (Bonilla) (upholding 77-year-to-life and 50-year-to-life sentences in light of
section 3051’s provision for parole hearings); People v. Martin (2013) 222 Cal.App.4th
98, review granted Mar. 26, 2014, S216139 (sentence of two consecutive life terms
constitutional given section 3051’s provision for a youth offender parole hearing);
In re Heard (2014) 223 Cal.App.4th 115, review granted Apr. 30, 2014, S216772 (term
of 80 years to life plus 23 years unconstitutional; matter remanded for resentencing);
People v. Solis (2014) 224 Cal.App.4th 727, review granted June 11, 2014, S218757
(court modified sentence to reflect defendant’s entitlement to a parole hearing after
serving 25 years in prison); People v. Franklin (2014) 224 Cal.App.4th 296, review
granted June 11, 2014, S217699 (section 3051 moots challenge to de facto life term of 50
years to life) and People v. Gonzalez (2014) 225 Cal.App.4th 1296, review granted
July 23, 2014, S219167 (50 years to life term not unconstitutional because section 3051
effectively modified the sentence to afford the defendant a parole date well within his life
expectancy).

                                              7
such offenders to obtain release.” (Gutierrez, at p. 1386.)7 Rather, the Court observed,
“Miller repeatedly made clear that the sentencing authority must . . . consider[] how
children are different and how those differences counsel against a sentence of life without
parole ‘before imposing a particular penalty.’” (Id. at p. 1387.) Accordingly, the Court
directed sentencing courts, in exercising their discretion, to consider at the outset of the
hearing, “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’” before imposing a life without parole sentence.
(Id. at pp. 1389-1390.)
       We believe the same rationale applies to cases that fall within the ambit of
section 3051: Under Miller and Caballero it is the responsibility of the sentencing court
to consider the differences between juveniles and adults at the time of imposing an actual
life without parole sentence or its functional/practical equivalent. The opportunity for a
parole hearing 25 years later based on the inmate’s conduct during an extended period of
incarceration should not relieve the trial court of its constitutional obligation to consider
the factors of youth and maturity when pronouncing judgment. (Cf. Gutierrez, supra,
58 Cal.4th at pp. 1386-1387 [“it is doubtful that the potential to recall a life without
parole sentence based on a future demonstration of rehabilitation can make such a
sentence any more valid when it was imposed. If anything, a decision to recall the
sentence pursuant to section 1170(d)(2) is a recognition that the initial judgment of
incorrigibility underlying the imposition of life without parole turned out to be
erroneous”].) Indeed, as several of our colleagues have previously observed, because the
Legislature is free to repeal section 3051, there is no guarantee the promise of a youth




7
        Section 1170, subdivision (d)(2), provides: “When a defendant who was under
18 years of age at the time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole has served at least
15 years of that sentence, the defendant may submit to the sentencing court a petition for
recall and resentencing.”

                                              8
offender parole hearing will be fulfilled when Spivey will be eligible to try to benefit
from it.
       2. Remand for Resentencing Is Necessary
       Spivey’s aggregate indeterminate sentence of 65 years to life is the functional
equivalent of a sentence of life without parole within the meaning of Caballero, supra,
55 Cal.4th 262: He will be almost 83 years old at the time of his minimum parole
eligibility date. (See People v. Mendez (2010) 188 Cal.App.4th 47, 63 [life expectancy of
18-year-old American male is 76 years]; see also Note, How Long Is Too Long?:
Conflicting State Responses to De Facto Life Without Parole Sentences After Graham v.
Florida and Miller v. Alabama (2014) 82 Fordham L.Rev. 3439, 3460 [discussing Iowa
Supreme Court decision ruling “under standard mortality tables, [juvenile offender’s] life
expectancy [was] 78.6 years”].) Although Spivey’s natural life expectancy—based on
various demographic factors—may exceed 83 years by a short period, Miller and
Caballero require a sentencing court to consider the mitigating factors relating to the
distinctive attributes of a juvenile offender when imposing an aggregate sentence that, as
here, may require him or her to spend all, or nearly all, of the rest of his or her life in
prison. (See People v. Perez (2013) 214 Cal.App.4th 49, 57 [“[t]here is a bright line
between LWOP’s and long sentences with eligibility for parole if there is some
meaningful life expectancy left when the offender becomes eligible for parole”].)
       To be sure, as the Attorney General argues, when it originally sentenced Spivey in
2010, the trial court considered Spivey’s age and criminal history, as reflected in the
probation report, as well as the remarks of Spivey’s mother. Yet it did so without the
benefit of the analysis in Miller, supra, 567 U.S. __ and Gutierrez, supra, 58 Cal.4th
1354; and the probation report, which we have reviewed, did not include a discussion of
all the pertinent Miller factors. When it resentenced Spivey in September 2013 following
our remand, the court simply stated it was adopting its prior reasoning for imposing a
consecutive sentence on count 3. Under these circumstances the proper course is to
reverse the judgment with respect to the sentence imposed on Spivey for shooting at an
inhabited dwelling for the benefit of a criminal street gang and to remand for sentencing

                                               9
on that count in accordance with Miller and Gutierrez. (See People v. Argeta (2012)
210 Cal.App.4th 1478, 1482.)8
       We express no opinion on how the trial court should weigh the factors discussed in
Miller and Gutierrez on remand or whether the term of 15 years for shooting at an
inhabited dwelling for the benefit of a criminal street gang should be imposed to run
consecutively or concurrently.
                                       DISPOSITION
       The judgment is reversed with respect to the consecutive sentence imposed for
shooting at an inhabited dwelling pursuant to section 186.22, subdivision (b)(4)(B)
(count 3), and the matter remanded for resentencing as to that count in accordance with
the views expressed in this opinion.



                                                    PERLUSS, P. J.
       We concur:


              ZELON, J.


              SEGAL, J.*




8
       Miller, supra, 567 U.S. ___ was decided by the United States Supreme Court on
June 25, 2012, shortly after we filed our modified opinion in Spivey’s initial appeal
directing the trial court on remand to impose either a consecutive or concurrent
indeterminate term of 15 years to life for shooting at an inhabited dwelling with a true
finding the offense had been committed for the benefit of a criminal street gang.
Caballero, supra, 55 Cal.4th 262 was decided by the California Supreme Court
two months later. Although Spivey raised no Eighth Amendment claim at the time of his
original sentencing or in his initial appeal to this court, he presented that issue to the trial
court in his sentencing memorandum on remand, citing both Miller and Caballero. The
Attorney General does not argue the issue has been forfeited. We agree.
*
        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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