Filed 5/5/14 Reposted to correct formatting; no change to opinion text




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                                           S206365
           v.                        )
                                     )                                     Ct.App. 2/6 B227606
LUIS ANGEL GUTIERREZ,                )
                                     )                                        Ventura County
           Defendant and Appellant.  )                                   Super. Ct. No. 05051378-8
____________________________________)
THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                                           S206771
           v.                        )
                                     )                                     Ct.App. 1/5 A133032
ANDREW LAWRENCE MOFFETT,             )
                                     )                                     Contra Costa County
           Defendant and Appellant.  )                                   Super. Ct. No. 05051378-8
____________________________________)



        The two 17-year-old offenders in these cases were convicted of special
circumstance murder and sentenced to life imprisonment without the possibility of
parole under Penal Code section 190.5, subdivision (b) (hereafter section
190.5(b)). Section 190.5(b) provides that the penalty for 16- or 17-year-old
juveniles who commit special circumstance murder ―shall be confinement in the
state prison for life without the possibility of parole or, at the discretion of the
court, 25 years to life.‖ For two decades, since People v. Guinn (1994) 28
Cal.App.4th 1130 (Guinn), section 190.5(b) has been construed by our Courts of
Appeal and trial courts as creating a presumption in favor of life without parole as
the appropriate penalty for juveniles convicted of special circumstance murder.
          After defendants were sentenced, the United States Supreme Court ruled
that ―mandatory life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment‘s prohibition on ‗cruel and unusual
punishments,‘ ‖ relying extensively on differences between juveniles and adults
with regard to their culpability and capacity for change. (Miller v. Alabama
(2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).) We granted review to
determine whether a presumption in favor of a sentence of life without parole
under section 190.5(b) violates the Eighth Amendment to the United States
Constitution under the principles announced in Miller.
          As explained below, we hold that section 190.5(b), properly construed,
confers discretion on a trial court to sentence a 16- or 17-year-old juvenile
convicted of special circumstance murder to life without parole or to 25 years to
life, with no presumption in favor of life without parole. We further hold that
Miller requires a trial court, in exercising its sentencing discretion, to consider the
―distinctive attributes of youth‖ and how those attributes ―diminish the penological
justifications for imposing the harshest sentences on juvenile offenders‖ before
imposing life without parole on a juvenile offender. (Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2465].) Because the sentencing regime created by section
190.5(b) authorizes and indeed requires consideration of the distinctive attributes
of youth highlighted in Miller, we find no constitutional infirmity with section
190.5(b) once it is understood not to impose a presumption in favor of life without
parole.
          Because the two defendants here were sentenced before Miller in
accordance with the interpretation of section 190.5(b) prevailing at the time (see

                                           2
Guinn, supra, 28 Cal.App.4th at p. 1142), we remand for resentencing in light of
the principles set forth in Miller and this opinion.
                                           I.
       We consolidated the two cases under review on our own motion. We begin
with the background of each case.
                                          A.
       On April 23, 2005, defendant Andrew Lawrence Moffett and codefendant
Alexander Hamilton robbed a Raley‘s supermarket in Pittsburg and a Wells Fargo
bank located inside the store. At the time, Moffett was 17 years old, and Hamilton
was 18 years old.
       Moffett enlisted a friend, Elijah Moore, to steal a getaway car in exchange
for some marijuana. After driving the car to the Raley‘s parking lot, Moffett and
Hamilton entered the store shortly before 5:47 p.m. wearing facial coverings and
carrying semiautomatic handguns. Moffett approached a checkout stand manned
by Rima Bosso, pointed his gun at her head, and demanded that she give him the
money. Flustered, Bosso could not get the register drawer to open. Moffett put
his gun against her left ear and said, ―Come on, bitch. Come on, bitch. You‘re
taking too fucking long.‖ The drawer eventually opened, and Bosso put about
$800 in a bag. While Moffett was robbing Bosso, Hamilton approached the
counter of the Wells Fargo bank, pointed a gun in the direction of the two tellers,
and demanded money. The tellers put $3,000 in a bag Hamilton was carrying.
       Moffett and Hamilton ran out of the store and attempted to flee in the stolen
car, but Hamilton soon crashed the vehicle into the back of a pickup truck parked
on the street. Moffett and Hamilton then got out of the car and started running.
Moffett told a neighbor who was chasing them, ―Stop or I‘ll cap you,
motherfucker.‖ Moffett and Hamilton continued running through the yards of
several homes near the Delta de Anza Regional Trail, scaling fences as they went.

                                           3
       Pittsburg Police Officers John Florance and Larry Lasater arrived at the
Delta de Anza Regional Trail at 5:58 p.m. Officer Lasater saw a dark figure
standing by a tree and called out, ―Is that someone down there?‖ The figure
disappeared into the greenery, and Officer Lasater gave chase. After running for
some distance, Officer Lasater stopped, drew his weapon, and started walking
toward where the figure had disappeared. Around this time, Officer Florance
heard the sound of someone jumping over a fence. He then saw Officer Lasater
point his gun downward and shout, ―Show me your hands.‖
       Hamilton, who was lying down in the bushes, fired several shots at Officer
Lasater. One of the bullets shattered a vertebra in Officer Lasater‘s neck, and
another went through his calf. When additional officers responded to the scene to
assist Officer Lasater, Hamilton fired shots at them until he ran out of ammunition
and was taken into custody. The wound to Officer Lasater‘s neck proved fatal.
       Meanwhile, Moffett had jumped the fence adjacent to the site of the
shooting and continued running through the neighborhood. At one point, a woman
saw him about to enter her garage. She yelled, ―no,‖ and Moffett ran across the
street. At around 6:35 p.m., officers discovered Moffett lying shirtless in a fetal
position under a tree where he surrendered, saying, ―don‘t kill me.‖
       Following a joint trial with Hamilton, Moffett was convicted of one count
of first degree murder, three counts of second degree robbery, and one count of
driving a stolen vehicle. (Pen. Code, §§ 187, 211; Veh. Code, § 10851.) The jury
also found true three felony-murder special-circumstance allegations, one killing
of a peace officer special-circumstance allegation, and firearm use allegations as to
the murder and robbery counts. (Pen. Code, §§ 190.2, subd. (a)(7) & (17),
12022.53, subd. (b).) On July 24, 2008, the trial court sentenced Moffett to life
imprisonment without the possibility of parole on the murder count plus an
additional 24 years on the remaining charges and enhancements.

                                          4
       Moffett appealed, and the Court of Appeal reversed the true finding on the
peace officer special-circumstance allegation because ―[t]here was no evidence
that [Moffett] personally fired his own gun, and the prosecution‘s position after
the close of evidence was that appellant had jumped the fence and fled the area by
the time Hamilton fired the fatal shot. . . . [N]othing in the record suggests that he
encouraged Hamilton to fire the shots or assisted him in doing so. . . . [T]here is
no substantial evidence from which it can be inferred that appellant acted with an
intent to kill . . . .‖ The Court of Appeal remanded the case so that the trial court
could consider whether a sentence of life without parole was appropriate in light
of the reversal of the peace officer special circumstance. The Court of Appeal also
directed the trial court to correct sentencing errors on the robbery counts.
       On remand, defense counsel argued that sentencing Moffett to life without
parole would constitute cruel and unusual punishment because Moffett was a
juvenile and lacked any intent to kill, and therefore had ―twice diminished moral
culpability.‖ (Graham v. Florida (2010) 560 U.S. 48, 69 (Graham).)
       On July 22, 2011, the trial court resentenced Moffett to the same term of
life without parole plus 24 years. Applying section 190.5(b), the trial court framed
the issue as whether it should ―deviate from the statutory requirement of life
without the possibility of parole and sentence Mr. Moffett to a determinate term of
25 years to life.‖ The trial court declined to ―engage in a philosophical discussion
about [the] merits . . . of the law in California‖ and observed that the law
―provides discretion for the trial court in certain limited circumstances such as this
where the defendant in a capital case was a juvenile tried as an adult.‖
       In resentencing Moffett to life without parole, the trial court said: ―Mr.
Moffett was under the age of eighteen by just a few months at the time of this
incident, thus the court has discretion regarding sentencing. [¶] . . . [¶]
Sometimes with the passage of time, people tend to forget or minimize the impact

                                           5
of incidents such as this. But the impact is just as vivid and continues for the
victims and the victims‘ families and that doesn‘t change. [¶] The testimony of
Rima Bosso, the robbery victim in Count 2, was extremely profound. She testified
that the individual who was later identified as Mr. Moffett, took his gun, put it to
her head and threatened to kill her with it. Not only did she see her own death that
day, but she said for years afterwards and up until and as of the day she testified in
the trial, she lived in a house where the curtains were pulled shut, the doors were
locked. She didn‘t go out. She was fearful day and night. The trauma damaged
her relationship with her family. It has changed her life profoundly and forever.
She will never be the same. The fact that she was not physically harmed does not
mean that she was not profoundly affected. Her testimony was very compelling.
[¶] The other two robbery victims described similar experiences. I take all of this
into account in determining the appropriate sentence.
       ―As for Officer Lasater‘s family, there‘s probably no way to describe in
words the traumatic effect of this event, nor on the larger community that he was a
part of. Mr. Moffett was very actively — he very actively participated in a series
of events, starting with the theft of the car at his request by Elijah Moore; the
takeover style robbery of the Raley‘s store and the bank window; the wild drive
and crash in a nearby neighborhood; the confrontation of a resident where Mr.
Moffett told him, ‗Stop or I‘ll cap you‘; and the shooting of Officer Lasater by Mr.
Hamilton shortly thereafter. [¶] Mr. Moffett‘s role was not a passive role nor was
he a peripheral player as compared with those factual scenarios described in the
cases cited by the defense in their sentencing memorandum.
       ―I will note that although we don‘t know exactly where Mr. Moffett was
when Mr. Hamilton shot Officer Lasater, the police found gun residue on Mr.
Moffett‘s hands, meaning that even if he did not fire the weapon, he was close to it
when it was fired; shoe prints matching Mr. Moffett‘s ten feet away from where

                                           6
Officer Lasater fell; and Mr. Moffett‘s cell phone a few feet away from Officer
Lasater. [¶] The actions taken that day by Mr. Moffett are not those of someone
who didn‘t know what was going on or who was led by others.
       ―I‘ve also considered Mr. Moffett‘s juvenile criminal history. There were
four entries, including a felony, 245(a)(1) Penal Code, assault with a deadly
weapon. It was noted that his performance on probation was marginal at best.
The juvenile justice system has infinitely more resources than the adult system.
And it appears those resources were not sufficiently taken advantage of to choose
a different path.
       ―The actions taken by Mr. Moffett on the day of this event were not those
of an irresponsible child. They were the very adult, very violent acts of a young
man who showed no regard for the impact of his actions on the victim in this case.
I might add that his actions on that day also have had a profound effect and
directly affected his own family and loved ones. Although Mr. Moffett was
slightly under eighteen years old at the time, his actions on that day, coupled with
his criminal history, do not support, in my opinion, this Court exercising [its]
discretion and sentencing him to a determinate term of twenty-five years to life. I
do not find that sentence appropriate in this particular case under the
circumstances of this case, taking into account everything that is in front of me.
[¶] On Count 1, I will sentence Mr. Moffett to life without the possibility of
parole.‖
       Moffett again appealed. He argued, among other things, that a sentence of
life without parole amounted to cruel and unusual punishment because he was not
the actual shooter, did not intend to kill, and was a juvenile at the time he
committed his crimes. He also argued that the trial court abused its discretion
when it declined to impose the lesser sentence of 25 years to life under section
190.5(b).

                                           7
       After briefing was complete, the United States Supreme Court issued its
decision in Miller, holding that mandatory life without parole for juveniles who
commit murder violates the Eighth Amendment. In a supplemental brief
discussing the impact of Miller, Moffett argued that the trial court had employed
an unconstitutional presumption in favor of life without parole when exercising its
sentencing discretion under section 190.5(b).
       The Court of Appeal vacated Moffett‘s sentence and again remanded for
resentencing. The Court of Appeal acknowledged that ―[s]ection 190.5,
subdivision (b) differs from the mandatory schemes found unconstitutional in
Miller, because it gives the court the discretion to impose a term that affords the
possibility of parole in lieu of an LWOP [life without parole] sentence.‖
Nevertheless, the Court of Appeal reasoned, because section 190.5(b) has been
judicially construed to establish a presumption in favor of life without parole, the
statute ―is contrary to the spirit, if not the letter, of Miller, which cautions that
LWOP sentences should be ‗uncommon‘ given the ‗great difficulty . . . 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.‖ ‘ ‖ ―Though Miller did not categorically
bar LWOP sentences in juvenile homicide cases,‖ the Court of Appeal observed,
―it recognizes that juveniles are different from adults in ways that ‗counsel against
irrevocably sentencing them to a lifetime in prison.‘ [Citation.] Treating LWOP
as the default sentence takes the premise in Miller that such sentences should be
rarities and turns that premise on its head, instead placing the burden on a youthful
defendant to affirmatively demonstrate that he or she deserves an opportunity for
parole.‖
       The Court of Appeal remanded the case to allow the trial court to consider
―the appropriate sentence on the murder count without reference to a presumption

                                            8
in favor of LWOP.‖ Further, the Court of Appeal said, ―[o]ther comments by the
court at the resentencing hearing convince us that remand is appropriate.‖ The
Court of Appeal noted that ―a juvenile who ‗ ―did not kill or intend to kill has a
twice diminished moral culpability‖ ‘ ‖ and instructed the trial court to ―give
appropriate weight to the fact that [Moffett] was a non-killer convicted under the
felony-murder rule.‖ (Quoting Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2468], quoting Graham, supra, 560 U.S. at p. 69.) The Court of Appeal also
observed that ―the trial court placed great reliance on the trauma caused to the
robbery victims‖ but cautioned that ―the psychological reactions of the robbery
victims do not say much about [Moffett‘s] maturity, prospects for reform, or
mental state with respect to the homicide itself — the factors paramount under
Miller.‖ Finally, the Court of Appeal observed that the trial court, in describing
Moffett‘s criminal history, had ―mistakenly characterized a juvenile adjudication
for assault as a felony, when it was designated a misdemeanor.‖
                                         B.
       On March 16, 2008, defendant Luis Angel Gutierrez was 17 years old and
lived with relatives in Simi Valley. (In reciting these facts, we refer to members
of the Gutierrez family, including defendant, by their first names in order to avoid
confusion. Elsewhere we refer to defendant as Gutierrez.) Around 4:20 a.m.,
Luis‘s uncle, Abel Gutierrez, left for work. Abel‘s wife, Josefina Gutierrez, was
asleep in their bed. Around 6:30 a.m., Abraham Gutierrez, Abel‘s nephew, heard
someone open Josefina‘s bedroom door, which was unusual because Josefina
normally slept late. Abraham got up, walked in the direction of the room, and saw
Luis in the kitchen. Abraham noticed Luis‘s hand was bleeding and asked him
what had happened. Luis said he had hurt his hand in a fight. Luis left the house
about five minutes later.



                                          9
       José Luis Mendoza, Josefina‘s brother, later awoke and noticed blood on
the floor of the living room and in the hallway leading to Abel and Josefina‘s
bedroom. He opened the door and found Josefina‘s body lying facedown on the
floor. A large knife protruded from her back, and there were 28 stab wounds in
her back, side, stomach, face, neck, and fingers. There were also fresh bruises on
her face and body. The cause of death was blood loss due to multiple stab
wounds.
       Luis sustained a severe wound to his hand and was admitted to the hospital
for treatment. A sexual assault nurse examined Luis and found blood on the head
of his penis, blood between his toes, and several hairs and fibers adhering to the
bottom of his feet. Subsequent DNA testing connected Luis to the crime scene
and to Josefina. A blood pattern analyst who viewed photographs of Josefina‘s
body saw a bloodstain on her back that might have been an imprint or a swipe, and
it was possible that the shape was consistent with an erect male penis. A sperm
fraction found on Josefina‘s body included a match to her husband, and Luis was
excluded as a contributor to the sample. But Luis could not be eliminated as a
contributor to a mixture of nonsperm DNA found on Josefina‘s perianal area,
inner thighs, and buttocks.
       In an interview with police, Luis first denied any involvement in Josefina‘s
death. He eventually acknowledged having a confrontation with Josefina and said
that she had stabbed him and herself, and that she took off her own nightshirt and
his pants because she wanted him to have sex with her. Luis told officers that
after Josefina stabbed him, he stabbed her in the back about three times.
       A jury convicted Luis of first degree murder with a special circumstance
finding that the murder was committed during the commission of a rape or
attempted rape. (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(17)(C), 261.)
The jury found true the allegation that defendant personally used a deadly weapon

                                         10
(id., § 12022, subd. (b)(1)) and was over 14 years of age at the time of the offense
(Welf. & Inst. Code, § 602, subd. (b)(1)).
        During the sentencing hearing on August 23, 2010, defense counsel urged
the trial court to ―allow [Luis] a chance at parole after 25 years . . . because of his
age.‖ Noting that ―25 years would place [Luis] in his late forties,‖ counsel argued
that at that point ―[t]here would be a very much closer predictability to his
likelihood of reoffense.‖ Counsel further argued that a sentence of 25 years to life
would be adequate to protect society and ―to address this horrible thing that he
did.‖
        The trial court sentenced defendant to life without parole plus one year on
the weapon enhancement. In pronouncing the sentence, the trial court said:
―[T]he Court has been concerned throughout the trial about the defendant‘s age
and the age [at] which he committed this horrific crime. [¶] And I have considered
all of the legal options that are limited for the Court with this conviction, but I
have considered all of them and there are a number of things about the crime itself
that in my view warrants life without the possibility of parole, notwithstanding the
defendant‘s age. [¶] First and foremost is really just the true horror that was
involved and the amount of violence that was inflicted on Josefina is really
inexplicable. And there isn‘t, other than the rape special circumstance, there isn‘t
any rational[] explanation as to how the defendant could have found himself in
this position. [¶] He has devastated this family and her children and her husband,
and there is really no amount of time that could be imposed as punishment that
would repay the damage he has caused, not just to her inner circle but to the
community as well and the community of her family.
        ―In addition to the crime itself, I will note, as pointed out in the probation
officer‘s report, that his behavior in custody thus far hasn‘t really demonstrated
that he will do anything but continue to get written up. And the probation officer‘s

                                           11
report indicates that he has had ten major write-ups in custody for failing to obey
the rules, deception, possession of contraband, including alcohol, which perhaps
his substance abuse is perhaps the only thing that I can look to that might possibly
give some explanation as to why a young man can find himself in such a horrific
situation, horrific situation.
       ―So I thought — I have thought long and hard about what punishment is
appropriate and I am absolutely convinced at this stage of the proceedings that life
without the possibility of parole is the only thing that the Court can do that could
redress the amount of violence that was inflicted in this case.‖
       Luis appealed his conviction and sentence. After the high court decided
Miller, Luis filed supplemental briefing in the Court of Appeal arguing, among
other things, that his life without parole sentence should be vacated and the case
remanded for the trial court to resentence him with full consideration of the factors
deemed relevant in Miller and without adherence to California case law holding
that life without parole is the ―presumed sentence‖ under section 190.5(b).
       The Court of Appeal held that Luis had forfeited his right to challenge his
sentence as cruel and unusual punishment by failing to object on that ground in the
trial court. But, the Court of Appeal continued, even if Luis had raised the issue,
his claim would still fail because a sentence of life without parole under section
190.5(b) does not violate the Eighth Amendment as construed by Miller. ―Unlike
Miller,‖ the Court of Appeal said, ―[Luis‘s] LWOP sentence was not mandatory.
[Luis] was sentenced pursuant to section 190.5, subdivision (b), which provides
that a juvenile defendant 16 years of age or older who is convicted of first degree,
special circumstance murder may be sentenced to life without possibility of parole.
[Citation.] The statute does not require a mandatory LWOP sentence and vests
sentencing courts with the discretion to sentence the defendant to a term of 25
years to life with possibility of parole.‖ (Italics in original.) Because the trial

                                           12
court was aware of its discretion to sentence Luis to a lesser sentence, the Court of
Appeal concluded, remanding for resentencing in light of Miller would be futile.
                                          II.
       We granted review in these cases to determine whether a presumption in
favor of a sentence of life without parole under section 190.5(b) violates the
Eighth Amendment under the principles announced in Miller. As an initial matter,
we reject the Attorney General‘s contention that Gutierrez forfeited his Eighth
Amendment claim by failing to raise it in the trial court. At sentencing, Gutierrez
did object to the imposition of life without parole and requested a sentence of 25
years to life. Although he did not mention the Eighth Amendment, this is
unsurprising because at the time the high court had not yet granted review in
Miller and no court had even held that a mandatory sentence of life without parole
for juveniles convicted of homicide was unconstitutional. After Miller was
decided, Gutierrez promptly asserted his Eighth Amendment claim in the Court of
Appeal, which fully considered the claim, and he now reasserts that claim in this
court. Given these circumstances, and because his Eighth Amendment challenge
involves a question of law, we exercise our discretion to consider it here. (See
People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
                                          A.
       The parties have asked us to decide a constitutional issue arising from the
fact that our appellate and trial courts have long construed section 190.5(b) as
establishing a presumption in favor of life without parole for juveniles convicted
of special circumstance murder. But we have never examined whether this
construction of section 190.5(b) is correct as a matter of statutory interpretation.
       ―In construing statutes, ‗our fundamental task is ―to ascertain the intent of
the lawmakers so as to effectuate the purpose of the statute.‖ [Citations.] We
begin by examining the statutory language because it generally is the most reliable

                                          13
indicator of legislative intent. [Citation.] We give the language its usual and
ordinary meaning, and ―[i]f there is no ambiguity, then we presume the lawmakers
meant what they said, and the plain meaning of the language governs.‖ [Citation.]
If, however, the statutory language is ambiguous, ―we may resort to extrinsic
sources, including the ostensible objects to be achieved and the legislative
history.‖ [Citation.] Ultimately we choose the construction that comports most
closely with the apparent intent of the lawmakers, with a view to promoting rather
than defeating the general purpose of the statute. [Citations.]‘ ‖ (Mays v. City of
Los Angeles (2008) 43 Cal.4th 313, 321.) With these principles in mind, we
discuss how section 190.5(b) has been interpreted by the Courts of Appeal and
assess that interpretation in light of the text and history of the statute.
       Section 190.5(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.‖
       For two decades, the Courts of Appeal have uniformly interpreted section
190.5(b) as establishing a presumption in favor of life without parole for juvenile
offenders who were 16 years of age or older when they committed special
circumstance murder. The leading case is Guinn, supra, 28 Cal.App.4th 1130.
There, after the jury convicted a juvenile offender of first degree murder and found
true a robbery-murder special circumstance, the trial court sentenced the defendant
to life without parole pursuant to section 190.5(b). (Guinn, at p. 1140.) On
appeal, the defendant argued that ―in the absence of specific guidelines [under
section 190.5(b)], LWOP will be arbitrarily and capriciously imposed, in violation
of the guarantees against cruel and unusual punishment.‖ (Id. at p. 1141.)

                                           14
       In rejecting the defendant‘s argument, Guinn held that the trial court‘s
sentencing discretion was appropriately circumscribed under section 190.5(b) and
that life without parole was the presumptive sentence for a juvenile convicted of
special circumstance murder. The court explained: ―We believe Penal Code
section 190.5 means . . . that 16- or 17-year-olds who commit special circumstance
murder must be sentenced to LWOP, unless the court, in its discretion, finds good
reason to choose the less severe sentence of 25 years to life. Our construction is
based on the ordinary language and structure of the provision; in context, the word
‗shall‘ appears to be mandatory. In addition, this construction is consistent with
the history of Penal Code section 190.5, enacted as part of Proposition 115, the
‗Crime Victims Justice Reform Act.‘ Under the former law, youthful offenders
were exempted from application of the death penalty provisions. They also were
excluded from application of the special-circumstance proceedings under Penal
Code section 190.4, so that murderers under age 18 tried as adults were subject
neither to the death penalty nor to LWOP. [Citation.] Penal Code section 190.5
was amended specifically to make youthful offenders, who committed what would
have been a death-eligible crime for an adult, subject to special circumstances and
LWOP. The fact that a court might grant leniency in some cases, in recognition
that some youthful special circumstance murderers might warrant more lenient
treatment, does not detract from the generally mandatory imposition of LWOP as
the punishment for a youthful special circumstance murderer. In the first instance,
therefore, LWOP is the presumptive punishment for 16- or 17-year-old special-
circumstance murderers, and the court‘s discretion is concomitantly circumscribed
to that extent.‖ (Guinn, supra, 28 Cal.App.4th at pp. 1141–1142.)
       The court in Guinn went on to reject the claim that section 190.5(b)
―authorize[s] the court to act arbitrarily and capriciously, based on the asserted
lack of guidelines for exercise of the court‘s discretion.‖ (Guinn, supra, 28

                                         15
Cal.App.4th at p. 1142.) Guinn concluded that ―the factors stated in section 190.3
are available, to the extent relevant to an exercise of discretion to grant leniency,
as guidelines under section 190.5. Because those factors allow the court to take
into account any mitigating circumstance which extenuates the gravity of the
crime (factor (k)), by extension the criteria stated under California Rules of Court,
rule 423 [now rule 4.423], are also available as guidelines for the court‘s exercise
of discretion.‖ (Id. at pp. 1142–1143.)
       Subsequent cases predating Miller have followed Guinn‘s reading of
section 190.5(b). (See, e.g., People v. Murray (2012) 203 Cal.App.4th 277, 282;
People v. Blackwell (2011) 202 Cal.App.4th 144, 159; People v. Ybarra (2008)
166 Cal.App.4th 1069, 1089 (Ybarra).)
       Contrary to Guinn, however, our review of the text and history of section
190.5(b) does not lead us to conclude that the statute establishes a presumption in
favor of life without parole. The text of the statute appears ambiguous on this
point. As noted, section 190.5(b) says the penalty for special circumstance murder
committed by a 16- or 17-year-old offender ―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.‖ It is not unreasonable to read this text, as Guinn did, to mean that a
court ―shall‖ impose life without parole unless ―at the discretion of the court‖ a
sentence of 25 years to life appears more appropriate. (See Guinn, supra, 28
Cal.App.4th at pp. 1142, 1145.) But it is equally reasonable to read the text to
mean that a court may select one of the two penalties in the exercise of its
discretion, with no presumption in favor of one or the other. The latter reading
accords with common usage. For example, if a teacher informed her students that
―you must take a final exam or, at your discretion, write a term paper,‖ it would be
reasonable for the students to believe they were equally free to pursue either



                                           16
option. The text of section 190.5(b) does not clearly indicate whether the statute
was intended to make life without parole the presumptive sentence.
       In her briefing, the Attorney General contends that a presumption in favor
of life without parole is the only ―logical‖ interpretation of section 190.5(b)
because in the context of the penalty scheme applicable to 16 and 17 year olds
convicted of murder, ―LWOP is the only penalty that is available to punish special
circumstance murderers more harshly than first degree murderers.‖ But there is
nothing illogical about making life without parole an available penalty for
juveniles convicted of special circumstance murder without also making it the
presumptive penalty. It is reasonable for a policymaker to believe that special
circumstance murder should expose a juvenile offender to life without parole —
thereby differentiating such an offender from a juvenile who commits first degree
murder with no special circumstance — while also believing that imposition of
that penalty as opposed to 25 years to life, which is the penalty for first degree
murder (Pen. Code, § 190, subd. (a)), should be decided case by case with no
default preference. The structure of the penalty scheme, like the text of section
190.5(b), does not clearly indicate a presumption in favor of life without parole.
       Nor does legislative history resolve the ambiguity. As the Attorney
General acknowledged at oral argument, nothing in the legislative history supports
Guinn‘s interpretation of section 190.5(b). The statute was enacted in 1990 as part
of Proposition 115, the Crime Victims Justice Reform Act. (See Ballot Pamp.,
Primary Elec. (June 5, 1990) text of Prop. 115, p. 33 (Ballot Pamphlet); see also
People v. Marquez (1992) 1 Cal.4th 553, 582 (Marquez).) Before Proposition
115, juvenile offenders convicted of first degree murder could not be charged with
special circumstances and thus were not subject either to the death penalty or to
life without parole. (See Marquez, at p. 582; People v. Spears (1983) 33 Cal.3d
279, 280–283; People v. Davis (1981) 29 Cal.3d 814, 831; see also Cal. Dept. of

                                          17
Justice, 1990 Crime Victims Justice Reform Initiative: Proposition 115 Manual
(1990), at p. 159.) Although juvenile offenders remain ineligible for the death
penalty (Pen. Code, § 190.5, subd. (a)), Proposition 115 amended section 190.5 to
make clear that juvenile offenders convicted of first degree murder can be charged
with special circumstances and are subject to life without parole if convicted of
special circumstance murder. (See Sen. Com. on Judiciary, Staff Analysis of
Crime Victims Justice Initiative (Dec. 11, 1989) pp. 77–78; see also Review of
Selected 1990 California Legislation—Addendum (1991) 22 Pac. L.J. 1010, 1014
[reviewing Prop. 115].) The stated purpose of the initiative was to ―to restore
balance to our criminal justice system, to create a system in which justice is swift
and fair, and to create a system in which violent criminals receive just punishment,
in which crime victims and witnesses are treated with care and respect, and in
which society as a whole can be free from the fear of crime in our homes,
neighborhoods, and schools.‖ (Ballot Pamphlet, text of Prop. 115, p. 33.)
       Thus, Proposition 115 was intended to toughen penalties for juveniles
convicted of first degree murder by making them eligible for life without parole
upon a finding of one or more special circumstances. However, neither the text of
the initiative, the summary prepared by the Attorney General, the analysis
prepared by the Senate Office of Research, nor the voters‘ pamphlet provides any
indication whether the initiative was intended to make life without parole the
presumptive sentence. The analysis by the Senate Office of Research merely
stated that section 190.5(b) is intended ―to provide a sentence of life without
parole or 25 to Life for a 16–18 year old . . . .‖ (Sen. Off. of Research, June 1990
Ballot: Analysis of Propositions (Mar. 1990) p. 46.) Similarly, the ballot pamphlet
described Proposition 115 as ―[a]llow[ing] minors who are 16 or 17 years of age at
the time of the crime . . . to be punished by life imprisonment without the
possibility of parole.‖ (Ballot Pamphlet, supra, analysis of Prop. 115 by Legis.

                                         18
Analyst, p. 32, italics in original; see also Prop. 115, as approved by voters,
Primary Elec. (June 5, 1990); Cal. Dept. of Justice, Crime Victims Justice Reform
Initiative: Proposition 115 Manual, supra, at pp. 159–160; Ballot Pamphlet,
argument in favor of Prop. 115, p. 34.) Nothing in the legislative history provides
a basis to conclude that section 190.5(b) was intended to create a presumption in
favor of life without parole.
       We conclude that the text and history of section 190.5(b) are ambiguous as
to whether the statute establishes a presumption in favor of life without parole.
We turn now to consider whether other principles of statutory interpretation
resolve the ambiguity.
                                           B.
       When a question of statutory interpretation implicates constitutional issues,
we are guided by the precept that ― ‗[i]f a statute is susceptible of two
constructions, one of which will render it constitutional and the other
unconstitutional in whole or in part, or raise serious and doubtful constitutional
questions, the court will adopt the construction which, without doing violence to
the reasonable meaning of the language used, will render it valid in its entirety, or
free from doubt as to its constitutionality, even though the other construction is
equally reasonable.‘ ‖ (Conservatorship of Wendland (2001) 26 Cal.4th 519, 548;
see People v. Leiva (2013) 56 Cal.4th 498, 506–507 (Leiva) [―[W]e adhere to ‗the
precept ―that a court, when faced with an ambiguous statute that raises serious
constitutional questions, should endeavor to construe the statute in a manner which
avoids any doubt concerning its validity.‖ ‘ ‖].) This rule, called the canon of
constitutional doubt (Scalia & Garner, Reading Law: The Interpretation of Legal
Texts (2012) p. 249 (Scalia & Garner)), has been described as a ―cardinal
principle‖ of statutory interpretation that ―has for so long been applied . . . that it is



                                           19
beyond debate.‖ (Debartolo Corp. v. Florida Gulf Coast Bldg. & Construction
Trades Council (1988) 485 U.S. 568, 575.)
       The canon reflects ―a judgment that statutes ought not to tread on
questionable constitutional grounds unless they do so clearly‖ as well as ―a
judgment that courts should minimize the occasions on which they confront and
perhaps contradict the legislative branch.‖ (Scalia & Garner, supra, at p. 249.) It
applies whenever ―the Government‘s view would raise serious constitutional
questions on which precedent is not dispositive‖ (Jones v. United States (1999)
526 U.S. 227, 251 (Jones)) and ―whether the cases raising the constitutional doubt
antedate or postdate a statute‘s enactment‖ (Scalia & Garner, at p. 249). But the
canon ―is qualified by the proposition that ‗avoidance of a difficulty will not be
pressed to the point of disingenuous evasion.‘ ‖ (Rust v. Sullivan (1991) 500 U.S.
173, 191.)
       Applying this canon, we have repeatedly construed penal laws, including
laws enacted by initiative, in a manner that avoids serious constitutional questions.
(See Leiva, supra, 56 Cal.4th at p. 509 [construing probationary period tolling
provision ―to avoid doubts concerning its constitutional validity‖]; People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 509–519 (Romero) [applying the
canon in interpreting the scope of judges‘ power to strike allegations of prior
convictions under the ―Three Strikes‖ law]; Whitman v. Superior Court (1991) 54
Cal.3d 1063, 1074 [declining to construe Prop. 115 as allowing multiple hearsay
testimony because of ―constitutional questions that we can and should avoid‖];
People v. Smith (1983) 34 Cal.3d 251, 259–262 [construing Prop. 8‘s changes to
the rules of evidence in criminal trials as applying only to crimes committed after
its effective date in order to avoid ex post facto concerns]; accord, Jones, supra,
526 U.S. at pp. 239–240 [applying the canon in holding that facts that increase
defendants‘ sentences under the federal carjacking statute are elements of the

                                         20
crime that must be charged and proven beyond a reasonable doubt].) In deciding
which of two or more reasonable interpretations of a penal statute to adopt, our
analysis is ―necessarily inform[ed]‖ by constitutional concerns. (Romero, at
p. 509.) We adopt the less constitutionally problematic interpretation of a penal
statute so long as that interpretation is ―reasonably possible.‖ (Id. at p. 513.) In
light of this principle, we must examine whether the Guinn presumption raises a
serious question under the Eighth Amendment.
                                          1.
       The Eighth Amendment provides: ―Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖ This
constitutional provision ―guarantees individuals the right not to be subjected to
excessive sanctions.‖ (Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper).)
This right ―flows from the basic ‗ ―precept of justice that punishment for crime
should be graduated and proportioned to [the] offense.‖ ‘ ‖ (Ibid.) To determine
whether a punishment is cruel and unusual, and thus violative of the Eighth
Amendment, ―courts must look beyond historical conceptions to ‗ ―the evolving
standards of decency that mark the progress of a maturing society.‖ ‘ [Citations].‖
(Graham, supra, 560 U.S. at p. 58.) ―This is because ‗[t]he standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment. The
standard itself remains the same, but its applicability must change as the basic
mores of society change.‘ ‖ (Kennedy v. Louisiana (2008) 554 U.S. 407, 419.)
       In Miller, the high court considered whether sentencing schemes mandating
life without parole for juveniles convicted of homicide offenses violate the Eighth
Amendment. Each of the two cases in Miller involved a 14-year-old offender who
was tried as an adult, convicted of murder, and sentenced to life without parole
pursuant to a state law providing the sentencing authority with no discretion to
impose a lesser punishment. The constitutionality of mandatory life without

                                          21
parole for juvenile homicide offenders, Miller explained, ―implicate[s] two strands
of precedent reflecting our concern with proportionate punishment.‖ (Miller,
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2463].)
       The first strand of relevant precedent, according to Miller, consists of
―categorical bans on sentencing practices based on mismatches between the
culpability of a class of offenders and the severity of a penalty. [Citation.] So, for
example, we have held that imposing the death penalty for nonhomicide crimes
against individuals, or imposing it on mentally retarded defendants, violates the
Eighth Amendment. See Kennedy v. Louisiana, 554 U.S. 407 (2008); Atkins v.
Virginia, 536 U.S. 304 (2002). Several of the cases in this group have specially
focused on juvenile offenders, because of their lesser culpability. Thus, Roper
held that the Eighth Amendment bars capital punishment for children, and
Graham concluded that the Amendment also prohibits a sentence of life without
the possibility of parole for a child who committed a nonhomicide offense.‖
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2463].)
       Focusing extensively on Roper and Graham, the high court in Miller
explained that those cases ―establish that children are constitutionally different
from adults for purposes of sentencing‖ in three important ways. (Miller, supra,
567 U.S. at p. __ [132 S.Ct. at p. 2464].) ―First, children have a ‗ ―lack of
maturity and an underdeveloped sense of responsibility,‖ ‘ leading to recklessness,
impulsivity, and heedless risk-taking. [Citation.] Second, children ‗are more
vulnerable . . . to negative influences and outside pressures,‘ including from their
family and peers; they have limited ‗contro[l] over their own environment‘ and
lack the ability to extricate themselves from horrific, crime-producing settings.
[Citation.] And third, a child‘s character is not as ‗well formed‘ as an adult‘s; his
traits are ‗less fixed‘ and his actions less likely to be ‗evidence of irretrievabl[e]
deprav[ity].‘ [Citation.]‖ (Ibid.) For these reasons, ―juveniles have diminished

                                           22
culpability and greater prospects for reform,‖ and are thus ― ‗less deserving of the
most severe punishments.‘ [Citation.]‖ (Ibid.)
         Miller further observed: ―Our decisions [in Roper and Graham] rested not
only on common sense—on what ‗any parent knows‘—but on science and social
science as well. [Citation.] In Roper, we cited studies showing that ‗ ―[o]nly a
relatively small proportion of adolescents‖ ‘ who engage in illegal activity
‗ ―develop entrenched patterns of problem behavior.‖ ‘ [Citation.] And in
Graham, we noted that ‗developments in psychology and brain science continue to
show fundamental differences between juvenile and adult minds‘—for example, in
‗parts of the brain involved in behavior control.‘ [Citation.] We reasoned that
those findings—of transient rashness, proclivity for risk, and inability to assess
consequence—both lessened a child‘s ‗moral culpability‘ and enhanced the
prospect that, as the years go by and neurological development occurs, his
‗ ―deficiencies will be reformed.‖ ‘ [Citation.]‖ (Miller, supra, 567 U.S. at
pp. __–__ [132 S.Ct. at pp. 2464–2465, fn. omitted.) ―The evidence presented to
us in these cases indicates that the science and social science supporting Roper‘s
and Graham‘s conclusions have become even stronger.‖ (Miller, at p. __, fn. 5
[132 S.Ct. at p. 2464, fn. 5]; see ibid. [― ‗It is increasingly clear that adolescent
brains are not yet fully mature in regions and systems related to higher-order
executive functions such as impulse control, planning ahead, and risk
avoidance‘ ‖], quoting brief for Am. Psychological Assn. et al. as amici curiae,
p. 4.)
         Miller went on to explain that ―the distinctive attributes of youth diminish
the penological justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes. Because ‗ ―[t]he heart of the
retribution rationale‖ ‘ relates to an offender‘s blameworthiness, ‗ ―the case for
retribution is not as strong with a minor as with an adult.‖ ‘ [Citations.] Nor can

                                           23
deterrence do the work in this context, because ‗ ―the same characteristics that
render juveniles less culpable than adults‖ ‘—their immaturity, recklessness, and
impetuosity—make them less likely to consider potential punishment. [Citation.]
Similarly, incapacitation could not support the life-without-parole sentence in
Graham: Deciding that a ‗juvenile offender forever will be a danger to society‘
would require ‗mak[ing] a judgment that [he] is incorrigible‘—but
‗ ―incorrigibility is inconsistent with youth.‖ ‘ [Citation.] And for the same
reason, rehabilitation could not justify that sentence. Life without parole
‗forswears altogether the rehabilitative ideal.‘ [Citation.] It reflects ‗an
irrevocable judgment about [an offender‘s] value and place in society,‘ at odds
with a child‘s capacity for change.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2465]; see Graham, supra, 560 U.S. at p. 79 [―Life in prison without the
possibility of parole gives no chance for fulfillment outside prison walls, no
chance for reconciliation with society, no hope. Maturity can lead to that
considered reflection which is the foundation for remorse, renewal, and
rehabilitation.‖].)
       Further, although Graham addressed whether juveniles could be sentenced
to life without parole for nonhomicide offenses, ―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 . . . .‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2465].)
       Miller then turned to the second strand of relevant precedent. Graham, the
high court observed, ―likened life without parole for juveniles to the death penalty
itself . . . .‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2463].) ―Life-
without-parole terms . . . ‗share some characteristics with death sentences that are

                                          24
shared by no other sentences.‘ [Citation.] Imprisoning an offender until he dies
alters the remainder of his life ‗by a forfeiture that is irrevocable.‘ [Citation.] And
this lengthiest possible incarceration is an ‗especially harsh punishment for a
juvenile,‘ because he will almost inevitably serve ‗more years and a greater
percentage of his life in prison than an adult offender.‘ [Citation.] The penalty
when imposed on a teenager, as compared with an older person, is therefore ‗the
same . . . in name only.‘ ‖ (Id. at p. __ [132 S.Ct. at p. 2466].) ―Graham‘s
‗[t]reat[ment] [of] juvenile life sentences as analogous to capital punishment,‘ ‖
the high court explained, makes relevant a line of precedent ―demanding
individualized sentencing when imposing the death penalty.‖ (Id. at p. __ [132
S.Ct. at p. 2467].)
       Beginning with Woodson v. North Carolina (1976) 428 U.S. 280, several
high court decisions ―have elaborated on the requirement that capital defendants
have an opportunity to advance, and the judge or jury a chance to assess, any
mitigating factors, so that the death penalty is reserved only for the most culpable
defendants committing the most serious offenses.‖ (Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2467].) These decisions ―insisted . . . that a sentencer have
the ability to consider the ‗mitigating qualities of youth,‘ ‖ including the
― ‗transient‘ ‖ qualities emphasized in Roper and Graham: ―immaturity,
irresponsibility, ‗impetuousness[,] and recklessness,‘ ‖ as well as
― ‗susceptib[ility] to influence and to psychological damage.‘ ‖ (Miller, at p. __
[132 S.Ct. at p. 2467].) ―In light of Graham‘s reasoning,‖ Miller said, ―these
decisions too show the flaws of imposing mandatory life-without-parole sentences
on juvenile homicide offenders. Such mandatory penalties, by their nature,
preclude a sentencer from taking account of an offender‘s age and the wealth of
characteristics and circumstances attendant to it.‖ (Ibid.) Just as the failure to
consider such factors ―would be strictly forbidden‖ in meting out the death

                                          25
penalty, ―Graham indicates that a similar rule should apply when a juvenile
confronts a sentence of life (and death) in prison.‖ (Id. at p. __ [132 S.Ct. at
p. 2468].)
       ―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 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, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2468].)
       Based on ―the confluence of these two lines of precedent‖ — which
establish that juvenile offenders are less culpable and more susceptible to reform
than adults, and that imposition of the harshest punishment on a juvenile requires
individualized sentencing that takes into account an offender‘s ―youth (and all that
accompanies it)‖ — the high court in Miller held that ―the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.‖ (Miller, supra, 567 U.S. at pp. __, __ [132 S.Ct. at
pp. 2464, 2469].)
       Because that holding was sufficient to decide the two cases at issue in
Miller, the high court did not consider the ―alternative argument that the Eighth

                                          26
Amendment requires a categorical bar on life without parole for juveniles, or at
least for those 14 and younger.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2469].) But Miller concluded with the following caution: ―[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.‖ (Ibid.)
       We recently applied the principles of Miller and Graham in People v.
Caballero (2012) 55 Cal.4th 262 (Caballero) to hold that an aggregate determinate
sentence of over 100 years violated Graham‘s requirement that ―a state must
provide a [nonhomicide] juvenile offender ‗with some realistic opportunity to
obtain release‘ from prison during his or her expected lifetime.‖ (Caballero, at
p. 268, quoting Graham, supra, 560 U.S. at p. 82.) The Attorney General had
argued in Caballero that because Graham involved a sentence of life without
parole, Graham‘s reasoning does not apply to a determinate sentence, even when
the sentence would have the practical effect of keeping a juvenile behind bars
without the possibility of parole for the rest of his life. We rejected the Attorney
General‘s narrow interpretation of Graham, observing that Miller had ―extended
Graham‘s reasoning (but not its categorical ban) to homicide cases, and, in so
doing, made it clear that Graham‘s ‗flat ban‘ on life without parole sentences for
juvenile offenders in nonhomicide cases applies to their sentencing equation

                                          27
regardless of intent in the crime‘s commission, or how a sentencing court
structures the life without parole sentence.‖ (Caballero, at p. 267.) Caballero
highlighted Miller‘s and Graham‘s observations concerning the differences
between children and adults that limit the constitutional validity of life without
parole for juvenile offenders. (Caballero, at pp. 266, 267, 268, fn. 4.) But
Caballero ―le[ft] Miller‘s application in the homicide context to a case that poses
the issue.‖ (Id. at p. 268, fn. 4.) That issue is presented here.
                                           2.
       Under Miller, a state may authorize its courts to impose life without parole
on a juvenile homicide offender when the penalty is discretionary and when the
sentencing court‘s discretion is properly exercised in accordance with Miller.
Unlike the sentencing laws at issue in Miller, section 190.5(b) is discretionary and
does not mandate life without parole for juvenile homicide offenders. California‘s
individualized, discretionary sentencing of juvenile homicide offenders differs in
significant ways from the mandatory sentencing scheme at issue in Miller.
Nevertheless, in light of Miller‘s reasoning, a sentence of life without parole under
section 190.5(b) would raise serious constitutional concerns if it were imposed
pursuant to a statutory presumption in favor of such punishment.
       At the core of Miller‘s rationale is the proposition — articulated in Roper,
amplified in Graham, and further elaborated in Miller itself — that
constitutionally significant differences between children and adults ―diminish the
penological justifications for imposing the harshest sentences on juvenile
offenders.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2465].) The high
court said in plain terms that because of ―children‘s diminished culpability and
heightened capacity for change, we think appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon.‖ (Id. at p. __ [132
S.Ct. at p. 2469].) ―That is especially so because of the great difficulty . . . of

                                           28
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.]‖ (Ibid.)
       Reading section 190.5(b) to establish a presumption in favor of life without
parole — i.e., a rule that ―16- or 17-year-olds who commit special circumstance
murder must be sentenced to LWOP, unless the court, in its discretion, finds good
reason to choose the less severe sentence of 25 years to life‖ (Guinn, supra, 28
Cal.App.4th at p. 1141, italics in original) — is in serious tension with the
foregoing statements in Miller. As the Court of Appeal explained in Moffett‘s
case: ―Treating [life without parole] as the default sentence takes the premise in
Miller that such sentences should be rarities and turns that premise on its head,
instead placing the burden on a youthful defendant to affirmatively demonstrate
that he or she deserves an opportunity for parole.‖
       The Attorney General resists this conclusion on several grounds. First, she
contends that a presumptive sentence of life without parole under section 190.5(b)
does not raise constitutional concerns under Miller because the statute limits its
applicability to 16 and 17 year olds who are convicted of special circumstance
murder. But neither the limitation to older juveniles nor the limitation to certain
types of murder, singly or together, eliminates the constitutional concerns raised
by the Guinn presumption.
       ―Drawing the line at 18 years of age is subject, of course, to the objections
always raised against categorical rules. The qualities that distinguish juveniles
from adults do not disappear when an individual turns 18. By the same token,
some under 18 have already attained a level of maturity some adults will never
reach.‖ (Roper, supra, 543 U.S. at p. 574.) But ―[t]he age of 18 is the point where
society draws the line for many purposes between childhood and adulthood‖
(ibid.), and that is the line the high court has drawn in its Eighth Amendment

                                         29
jurisprudence. The high court in Miller, which considered two cases involving 14
year olds convicted of murder, could have limited its concerns about juveniles‘
lessened culpability and greater capacity for reform to younger juveniles. But
Miller declined to adopt any such limitation, instead citing evidence that
developmental immaturity persists through late adolescence. (Miller, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2464], citing Steinberg & Scott, Less Guilty by
Reason of Adolescence: Developmental Immaturity, Diminished Responsibility,
and Juvenile Death Penalty (2003) 58 Am. Psychologist 1009, 1014; see
Caballero, supra, 55 Cal.4th at p. 266.) The high court reasoned that persons
under the age of 18, as a category, have distinctive attributes that typically counsel
against imposition of life without parole. (Miller, at pp. __–__ [132 S.Ct. at
pp. 2464–2466].) Of course, a sentencing court has discretion under Miller to
decide on an individualized basis whether a 16- or 17-year-old offender is a ― ‗rare
juvenile offender whose crime reflects irreparable corruption.‘ ‖ (Id. at p. __ [132
S.Ct. at p. 2469]; see id. at p. __ [132 S.Ct. at p. 2467] [―sentencer‖ may take
account of difference between ―the 17-year-old and the 14-year-old‖].) But to say
that all 16 or 17 year olds subject to section 190.5(b) presumptively deserve a
sentence of life without parole is in serious tension with Miller‘s categorical
reasoning about the differences between juveniles and adults.
       Further, Miller made clear that its concerns about juveniles‘ lessened
culpability and greater capacity for reform have force independent of the nature of
their crimes. Of course, the nature of the crime is a factor for the ―sentencer‖ to
consider in each case. (See Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2467]
[―sentencer‖ may take account of difference between ―the shooter and the
accomplice‖].) But Miller said ―the distinctive attributes of youth diminish the
penological justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes.‖ (Id. at p. __ [132 S.Ct. at

                                          30
p. 2465], italics added.) And in declining to limit Graham‘s reasoning to
nonhomicide offenses, the high court explained 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 . . . .‖ (Miller, at p. __ [132 S.Ct. at p. 2465], italics added; see
Caballero, supra, 55 Cal.4th at p. 267.) Graham and Roper likewise indicated
that the mitigating features of youth can be dispositively relevant, whether the
crime is a nonhomicide offense or a heinous murder punishable by death if
committed by an adult. (See Graham, supra, 560 U.S. at p. 78 [―an ‗unacceptable
likelihood exists that the brutality or cold-blooded nature of any particular crime
would overpower mitigating arguments based on youth as a matter of course, even
where the juvenile offender‘s objective immaturity, vulnerability, and lack of true
depravity should require a [lesser] sentence‘ ‖], quoting Roper, supra, 543 U.S. at
p. 573.) Although section 190.5(b) does not apply to every murder offense, it
applies to a broad and diverse range of first degree murder offenses. (See Pen.
Code, §§ 190.2, 190.25.) To presume that all such offenses committed by 16 and
17 year olds merit a presumptive penalty of life without parole cannot be easily
reconciled with Miller‘s principle that ―the distinctive attributes of youth [that]
diminish the penological justifications for imposing the harshest sentences on
juvenile offenders‖ are not ―crime-specific.‖ (Miller, at p. __ [132 S.Ct. at
p. 2465].)
       In sum, while requiring ―factfinders‖ in individual cases ―to take into
account the differences among defendants and crimes‖ (Miller, supra, 567 U.S. at
p. __, fn. 8 [132 S.Ct. at p. 2469, fn. 8]), Miller nowhere suggested that
legislatures may presume life without parole to be the proper punishment for entire

                                           31
categories of juvenile offenders or offenses. Instead, Miller made clear that its
concerns about imposing life without parole have applicability whatever the age or
crime of a juvenile offender. A presumption in favor of life without parole for a
subgroup of juveniles who commit any one of a subgroup of crimes would raise a
serious constitutional question under Miller.
       Second, the Attorney General contends that a presumption in favor of life
without parole under section 190.5(b) presents no constitutional difficulty because
the statute affords the sentencing court discretion to consider the defendant‘s age,
among other potentially mitigating factors, and to impose a sentence of 25 years to
life if appropriate. It is true that a presumption in favor of life without parole does
not eliminate a trial court‘s discretion to make an individualized sentencing
decision. (See Ybarra, supra, 166 Cal.App.4th at p. 1089 [§ 190.5(b) ― ‗evidences
a preference for the LWOP penalty.‘ [¶] Despite that statutory preference, section
190.5, subdivision (b) requires ‗a proper exercise of discretion in choosing
whether to grant leniency and impose the lesser penalty of 25 years to life for 16-
or 17-year-old special circumstance murderers.‘ ‖], quoting Guinn, supra, 28
Cal.App.4th at pp. 1145, 1149.) But Guinn did not simply hold that sentencing
courts have discretion. It concluded that section 190.5(b) expresses a ―preference‖
for the imposition of life without parole; in other words, such a sentence is the
―generally mandatory‖ punishment for juveniles convicted of special circumstance
murder and ―the court’s discretion is concomitantly circumscribed to that extent.‖
(Guinn, supra, 28 Cal.App.4th at p. 1142, italics added.)
       In this context, as in others, how a legal inquiry conceptualizes the default
rule and burden of persuasion can be dispositive when a court is authorized to
make an all-things-considered judgment. In the context of California‘s Three
Strikes law, for example, we have held that a court‘s discretionary power to strike
prior felony convictions ―in furtherance of justice‖ (§ 1385) is ―carefully

                                          32
circumscribe[d]‖ by a preference in the Three Strikes law against striking prior
convictions. (People v. Carmony (2004) 33 Cal.4th 367, 378.) Because of this
presumption, we have said that trial courts‘ decisions to strike a prior conviction
should be ― ‗extraordinary.‘ ‖ (Ibid.) 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.
       In Graham, the high court construed the Eighth Amendment to prohibit a
sentence of life without parole for juvenile nonhomicide offenders because ― ‗[t]he
differences between juvenile and adult offenders are too marked and well
understood to risk allowing a youthful person to receive‘ a sentence of life without
parole for a nonhomicide crime ‗despite insufficient culpability.‘ ‖ (Graham,
supra, 560 U.S. at p. 78, quoting Roper, supra, 543 U.S. at pp. 572–573.) To
address the same risk in homicide cases, Miller requires sentencing courts to
undertake a careful individualized inquiry before imposing life without parole on
juvenile homicide offenders. (Miller, supra, 567 U.S. at pp. __, __ [132 S.Ct. at
pp. 2468, 2469.) Given Miller‘s conception of a proper individualized sentencing
inquiry, a serious constitutional concern would arise if we were to interpret section
190.5(b) as a rule that ―circumscribe[s]‖ the court‘s discretion by presuming ―[i]n
the first instance‖ that life without parole is the appropriate sentence for special
circumstance murder committed by a 16- or 17-year-old juvenile. (Guinn, supra,
28 Cal.App.4th at p. 1142.)
       Third, the Attorney General claims that California‘s sentencing scheme
already ―makes LWOP terms for minors uncommon in fact‖ notwithstanding the

                                          33
Guinn presumption. In support of this claim, she relies on the following passage
from a footnote in Miller: ―Where mandatory sentencing does not itself account
for the number of juveniles serving life-without-parole terms, the evidence we
have of practice supports our holding. Fifteen jurisdictions make life without
parole discretionary for juveniles. See Alabama Brief 25 (listing 12 States); Cal.
Penal Code Ann. § 190.5(b) (West 2008); Ind. Code § 35-50-2-3(b) (2011); N.M.
Stat. §§ 31-18-13(B), 31-18-14, 31-18-15.2 (2010). According to available data,
only about 15% of all juvenile life-without-parole sentences come from those 15
jurisdictions, while 85% come from the 29 mandatory ones. [Citations.] That
figure indicates that when given the choice, sentencers impose life without parole
on children relatively rarely.‖ (Miller, supra, 567 U.S. at p. __, fn. 10 [132 S.Ct.
at p. 2472, fn. 10], citing Human Rights Watch, State Distribution of Youth
Offenders Serving Juvenile Life Without Parole (JLWOP) (2009)
<http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offenders-
serving-juvenile-life-without-parole> [as of May 5, 2014] (Human Rights Watch
JLWOP Rep.).)
       As an initial matter, this passage in Miller, while considering the 15
nonmandatory sentencing jurisdictions in the aggregate, said nothing specific
about California. In order to reliably determine whether the discretion afforded by
section 190.5(b) has resulted only rarely in juvenile life without parole sentences,
one would need to know not only the number of such sentences meted out in
California but also the number of cases in which life without parole was
considered and, in the exercise of the court‘s discretion, rejected.
       To the extent they prove anything, the statistics from Miller support
defendants’ point that a statutory presumption in favor of life without parole
significantly increases the likelihood that such a sentence will be imposed. It is
true that the 15 states with nonmandatory sentencing laws, including California,

                                          34
accounted for 15% or a total of 376 of the 2,589 juveniles in the United States
serving life without parole sentences in 2009. (Miller, supra, 567 U.S. at p. __,
fn. 10 [132 S.Ct. at p. 2472, fn. 10], citing Human Rights Watch JLWOP Rep.)
But California — apparently the only jurisdiction whose discretionary sentencing
law incorporates a presumption in favor of life without parole — accounted for
over 70% or a total of 265 of the 376 life without parole sentences in those 15
states (see Human Rights Watch JLWOP Rep.), even though California accounted
for only 43% of the combined juvenile population of those 15 states in 2009 (see
U.S. Dept. of Justice, Off. of Juvenile Justice and Delinquency Prevention, Easy
Access to Juvenile Populations: 1990–2012 <http://www.ojjdp.gov/ojstatbb/
ezapop/> [as of May 5, 2014] (OJJDP Juvenile Populations)). Thus, the vast
majority of discretionary life without parole sentences imposed on juveniles are
imposed in California, even though the juvenile population in the 14 other
discretionary sentencing states taken together is much larger than the juvenile
population in California. These data suggest that a statutory presumption in favor
of life without parole makes a significant practical difference.
       The Attorney General finds it significant that ―California (with close to
fifteen percent of the nation‘s population) plus fourteen other states produced just
fifteen percent of all juveniles sentenced to LWOP terms.‖ But in 2009,
California‘s 265 juvenile offenders serving life without parole accounted for
10.4% of all such juvenile offenders in the 44 states that authorize the sentence
(see Human Rights Watch JLWOP Report), which is roughly comparable to
California‘s 13.3% share of the total juvenile population in those 44 states in 2009
(see OJJDP Juvenile Populations). By contrast, the 14 other discretionary
sentencing states taken together had 17.8% of the total juvenile population in those
44 states (see ibid.) and a mere 4.4% of all juvenile offenders serving life without
parole (see Human Rights Watch JLWOP Rep.). In sum, the Attorney General‘s

                                         35
reliance on the data cited in Miller does not enable us to confidently conclude that
the discretion afforded by section 190.5(b), when constrained by a presumption in
favor of life without parole, has resulted in imposition of life without parole only
on ― ‗the rare juvenile offender whose crime reflects irreparable corruption.‘ ‖
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2469].)
       Finally, the Attorney General argues that the recent enactment of Penal
Code, section 1170, subdivision (d)(2) (hereafter section 1170(d)(2)) eliminates
any constitutional problems arising from the Guinn presumption. This statute
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.‖ (§ 1170, subd. (d)(2)(A)(i).) The petition must include, among
other things, a ―statement describing his or her remorse and work towards
rehabilitation.‖ (§ 1170, subd. (d)(2)(B).) ―If the court finds by a preponderance
of the evidence that the statements in the petition are true, the court shall hold a
hearing to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the defendant
had not previously been sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.‖ (§ 1170, subd. (d)(2)(E).)
       ―The factors that the court may consider when determining whether to
recall and resentence include, but are not limited to, the following: [¶] (i) The
defendant was convicted pursuant to felony murder or aiding and abetting murder
provisions of law. [¶] (ii) The defendant does not have juvenile felony
adjudications for assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence is being
considered for recall. [¶] (iii) The defendant committed the offense with at least

                                          36
one adult codefendant. [¶] (iv) Prior to the offense for which the sentence is
being considered for recall, the defendant had insufficient adult support or
supervision and had suffered from psychological or physical trauma, or significant
stress. [¶] (v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not constitute a
defense, but influenced the defendant‘s involvement in the offense. [¶] (vi) The
defendant has performed acts that tend to indicate rehabilitation or the potential for
rehabilitation, including, but not limited to, availing himself or herself of
rehabilitative, educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using self-study for self-
improvement, or showing evidence of remorse. [¶] (vii) The defendant has
maintained family ties or connections with others through letter writing, calls, or
visits, or has eliminated contact with individuals outside of prison who are
currently involved with crime. [¶] (viii) The defendant has had no disciplinary
actions for violent activities in the last five years in which the defendant was
determined to be the aggressor.‖ (§ 1170, subd. (d)(2)(F).)
       If the court declines to recall the defendant‘s sentence, the defendant may
try again after having served 20 years. (§ 1170, subd. (d)(2)(H).) If again
unsuccessful, the defendant may file a third and final petition after having served
24 years. (Ibid.)
       As an initial matter, section 1170(d)(2) has no bearing on Moffett‘s case.
Because the victim of Moffett‘s homicide offense was ―a public safety official,‖
Moffett is ineligible for resentencing under section 1170(d)(2). (§ 1170,
subd. (d)(2)(A)(ii).) But even for juvenile offenders such as Gutierrez, the
potential for relief under section 1170(d)(2) does not eliminate the serious
constitutional doubts arising from a presumption in favor of life without parole
under section 190.5(b) because the same questionable presumption would apply at

                                           37
resentencing. The statute makes clear that if the sentencing court grants an
inmate‘s petition for a resentencing hearing, the hearing must be conducted ―in the
same manner as if the defendant had not previously been sentenced.‖ (§ 1170,
subd. (d)(2)(G).) Thus, if section 190.5(b) establishes a presumption in favor of
life without parole, a court acting pursuant to section 1170, subdivision (d)(2)(G)
would be required to apply the same presumption in evaluating the circumstances
at resentencing (only this time, unlike at the initial sentencing, the defendant
would have no guarantee of counsel).
       Nor does the fact that section 1170(d)(2) provides a potential mechanism
for resentencing after 15 to 24 years mean that the initial sentence ―is thus no
longer effectively a sentence of life without the possibility of parole,‖ as the
Attorney General‘s briefing contends. A sentence of life without parole under
section 190.5(b) remains fully effective after the enactment of section 1170(d)(2).
That is why section 1170(d)(2) sets forth a scheme for recalling the sentence and
resentencing the defendant. As the Attorney General notes, section 1170(d)(2)
provides juvenile offenders convicted of special circumstance murder with ―three
opportunities to have their sentences of life without the possibility of parole
changed to a sentence of 25 years to life.‖ (Italics added.)
       The Attorney General contends that section 1170(d)(2) removes life
without parole sentences for juvenile offenders from the ambit of Miller‘s
concerns because the statute provides a meaningful opportunity for such offenders
to obtain release. In support of this contention, the Attorney General relies on a
―cf.‖ citation in Miller to language in Graham. (See Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2469] [―Cf. Graham, 560 U.S., at __, 130 S.Ct., at 2030 (‗A
State is not required to guarantee eventual freedom,‘ but must provide ‗some
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation‘).‖]; see also Graham, supra, 560 U.S. at p. 75 [―It is for the State,

                                          38
in the first instance, to explore the means and mechanisms for compliance.‖].)
However, Graham spoke of providing juvenile offenders with a ―meaningful
opportunity to obtain release‖ as a constitutionally required alternative to — not as
an after-the-fact corrective for — ―making the judgment at the outset that those
offenders never will be fit to reenter society.‖ (Graham, at p. 75, italics added.)
Likewise, Miller‘s ―cf.‖ citation to the ―meaningful opportunity‖ language in
Graham occurred in the context of prohibiting ―imposition of that harshest prison
sentence‖ on juveniles under a mandatory scheme. (Miller, at p. __ [132 S.Ct. at
p. 2469].) Neither Miller nor Graham indicated that an opportunity to recall a
sentence of life without parole 15 to 24 years into the future would somehow make
more reliable or justifiable the imposition of that sentence and its underlying
judgment of the offender‘s incorrigibility ―at the outset.‖ (Graham, at p. 75.)
       Indeed, the high court in Graham explained that a juvenile offender‘s
subsequent failure to rehabilitate while serving a sentence of life without parole
cannot retroactively justify imposition of the sentence in the first instance: ―Even
if the State‘s judgment that Graham was incorrigible were later corroborated by
prison misbehavior or failure to mature, the sentence was still disproportionate
because that judgment was made at the outset.‖ (Graham, supra, 560 U.S. at
p. 73, italics added.) By the same logic, 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. Consistent with Graham, Miller repeatedly
made clear that the sentencing authority must address this risk of error by
considering how children are different and how those differences counsel against a
sentence of life without parole ―before imposing a particular penalty.‖ (Miller,

                                           39
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2471], italics added; see id. at pp. __, __
[132 S.Ct. at pp. 2469, 2475].)
       In sum, construing section 190.5(b) to establish a presumption in favor of
life without parole raises serious constitutional concerns under the reasoning of
Miller and the body of precedent on which Miller relied. The recent enactment of
section 1170(d)(2) does not eliminate those concerns. Because section 190.5(b) is
reasonably susceptible to two interpretations, we will adopt the construction that
renders it ―free from doubt as to its constitutionality.‖ (Conservatorship of
Wendland, supra, 26 Cal.4th at p. 548.) We hold that section 190.5(b) confers
discretion on the sentencing court to impose either life without parole or a term of
25 years to life on a 16- or 17-year-old juvenile convicted of special circumstance
murder, with no presumption in favor of life without parole. In light of this
holding, we disapprove People v. Guinn, supra, 28 Cal.App.4th 1130, and its
progeny.
                                          C.
       Defendants contend that even when section 190.5(b) is not construed to
establish a presumption in favor of life without parole, the imposition of life
without parole is unconstitutional because the statute does not allow the
sentencing court to consider the distinctive attributes of youth discussed by the
high court in Miller. We disagree. Section 190.5(b) authorizes and indeed
requires consideration of the Miller factors.
       Under section 190.5(b), a sentencing court must consider the aggravating
and mitigating factors enumerated in Penal Code section 190.3 and the California
Rules of Court. (See Ybarra, supra, 166 Cal.App.4th at pp. 1089–1093.) Section
190.5(b) does not expressly direct the sentencing court to consider those factors,
but ―since all discretionary authority is contextual, those factors that direct similar
sentencing decisions are relevant, including ‗the nature and circumstances of the

                                          40
offense, the defendant‘s appreciation of and attitude toward the offense, or his
traits of character as evidenced by his behavior and demeanor at the trial.‘ ‖
(People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.)
       The factors that a sentencing court must consider under section 190.3
include ―[t]he age of the defendant at the time of the crime.‖ (Pen. Code, § 190.3,
factor (i).) We have said that this factor permits the court to consider not simply a
defendant‘s age but also ―any age-related matter suggested by the evidence or by
common experience or morality that might reasonably inform the choice of
penalty.‖ (People v. Lucky (1988) 45 Cal.3d 259, 302 (Lucky).) Lucky did not
involve a juvenile offender, but as relevant here, Lucky confirms that section
190.3, subdivision (i) provides a basis for the court to consider that ― ‗youth is
more than a chronological fact‘ ‖ and to take into account any mitigating relevance
of ―age and the wealth of characteristics and circumstances attendant to it,‖ as
Miller requires. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2467].)
       Miller discussed a range of factors relevant to a sentencer‘s determination
of whether a particular defendant is a ― ‗rare juvenile offender whose crime
reflects irreparable corruption.‘ ‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2469].) As noted at oral argument by counsel for amicus curiae Juvenile Law
Center, the high court in Miller provided a ―recap‖ of those factors, grouping them
into five categories. (Id. at p. __ [132 S.Ct. at p. 2468]; see ante, at p. 26.) We
understand Miller to require a sentencing court to admit and consider relevant
evidence of the following:
       First, a court must consider a juvenile offender‘s ―chronological age and its
hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2468]; see, e.g., ibid. [―To be sure, Jackson learned on the way to the video
store that his friend Shields was carrying a gun, but his age could well have

                                          41
affected his calculation of the risk that posed, as well as his willingness to walk
away at that point.‖].) Miller observed that ― ‗developments in psychology and
brain science continue to show fundamental differences between juvenile and
adult minds,‘ ‖ and that ―those findings—of transient rashness, proclivity for
risk, and inability to assess consequences—both lessened a child‘s ‗moral
culpability‘ and enhanced the prospect that, as the years go by and neurological
development occurs, his ‗ ―deficiencies will be reformed.‖ ‘ ‖ (Id. at pp. __–__
[132 S.Ct. at pp. 2464–2465]; see Roper, supra, 543 U.S. at p. 573 [―It 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.‖].) Miller further
noted that ―the science and social science supporting [these] conclusions have
become even stronger‖ in recent years. (Miller, at p. __, fn. 5 [132 S.Ct. at
p. 2464, fn. 5].)
       Second, a sentencing court must consider any evidence or other information
in the record regarding ―the family and home environment that surrounds [the
juvenile]—and from which he cannot usually extricate himself—no matter how
brutal or dysfunctional.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2468].)
Relevant ―environmental vulnerabilities‖ include evidence of 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. (Id. at pp. __, __, __–__ [132 S.Ct. at pp. 2465, 2467,
2468–2469].)
       Third, a court must consider any evidence or other information in the
record regarding ―the circumstances of the homicide offense, including the extent
of [the juvenile defendant‘s] participation in the conduct and the way familial and
peer pressures may have affected him.‖ (Miller, supra, 567 U.S. at p. __ [132

                                          42
S.Ct. at p. 2468]; see ibid. [― ‗a juvenile offender who did not kill or intend to kill
has a twice diminished moral culpability‘ ‖].) Also relevant is whether substance
abuse played a role in the juvenile offender‘s commission of the crime. (Id. at
p. __ [132 S.Ct. at p. 2469].)
       Fourth, a court must consider any evidence or other information in the
record as to whether the offender ―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. See, e.g., Graham, 560 U.S. at —,
130 S.Ct., at 2032 (‗[T]he features that distinguish juveniles from adults also put
them at a significant disadvantage in criminal proceedings‘); J.D.B. v. North
Carolina, 564 U.S. —, —, 131 S.Ct. 2394, 2400–2401 (2011) (discussing
children‘s responses to interrogation). ‖ (Miller, supra, 567 U.S. at p. __ [132
S.Ct. at p. 2468].)
       Finally, a sentencing court must consider any evidence or other information
in the record bearing on ―the possibility of rehabilitation.‖ (Miller, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2468]; see id. at p. __ [132 S.Ct. at p. 2464] [―[A]
child‘s character is not as ‗well formed‘ as an adult‘s; his traits are ‗less fixed‘ and
his actions less likely to be ‗evidence of irretrievabl[e] deprav[ity].‘ ‖].) The
extent or absence of ―past criminal history‖ is relevant here. (Id. at p. __ [132
S.Ct. at p. 2469].)
       Although courts elsewhere have enumerated or categorized these factors in
different ways, we note that the emerging body of post-Miller case law has
uniformly held that a sentencing court must consider the factors discussed above
before imposing life without parole on a juvenile homicide offender. (See State v.
Henderson (Ala. 2013) __ So.3d __, __ [2013 WL 4873077, at p. *21]; State v.
Null (Iowa 2013) 836 N.W.2d 41, 74; Parker v. State (Miss. 2013) 119 So.3d 987,

                                           43
995–996, 998 & fn. 18; State v. Hart (Mo. 2013) 404 S.W.3d 232, 241;
Commonwealth v. Batts (Pa. 2013) 66 A.3d 286, 297; Bear Cloud v. State (Wyo.
2013) 294 P.3d 36, 47; People v. Carp (Mich.Ct.App. 2012) 828 N.W.2d 685,
720; Daugherty v. State (Fla.Dist.Ct.App. 2012) 96 So.3d 1076, 1079; State v.
Fletcher (La.Ct.App. 2013) 112 So.3d 1031, 1036–1037; see also Williams v.
Virgin Islands (V.I. 2013) __ V.I. __, __ [2013 WL 5913305 at p. *8]; cf. Conley
v. State (Ind. 2012) 972 N.E.2d 864, 875 [upholding a discretionary life without
parole sentence with detailed findings].) This approach complements our recent
holding in Caballero that a trial court must consider many of the same factors
when imposing a sentence on a juvenile nonhomicide offender. (See Caballero,
supra, 55 Cal.4th at pp. 268–269.)
       In sum, we hold that 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.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2465].) To be sure, not every factor will necessarily be relevant in every case.
For example, if there is no indication in the presentence report, in the parties‘
submissions, or in other court filings that a juvenile offender has had a troubled
childhood, then that factor cannot have mitigating relevance. But Miller
―require[s] [the sentencer] 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. __ [132 S.Ct. at p. 2469].)




                                          44
                                          III.
       We now determine the proper disposition of these cases in light of the
principles above. In each case, the record indicates that the trial court understood
it had a degree of discretion in sentencing the defendant. However, both courts
imposed life without parole at a time when Guinn was the prevailing authority.
In Moffett‘s case, the trial court expressly acknowledged Guinn‘s holding when it
framed the pertinent question as whether it should ―deviate from the statutory
requirement of life without the possibility of parole and sentence Mr. Moffett to
a determinate term of 25 years to life.‖ In Gutierrez‘s case, the trial court did
not explicitly refer to a presumption in favor of life without parole. But, as
the Attorney General notes in her briefing, the ―presumption . . . had previously
been undisturbed for over 20 years.‖ Absent evidence to the contrary, we
presume that the trial court knew and applied the governing law. (See People v.
Thomas (2011) 52 Cal.4th 336, 361.) To be clear, we do not fault the trial
courts in these cases; they dutifully applied the law as it stood at the time.
But we conclude that neither court made its sentencing decision with awareness
of the full scope of discretion conferred by section 190.5(b) or with the guidance
set forth in Miller and this opinion for the proper exercise of its discretion.
       ―Defendants are entitled to sentencing decisions made in the exercise of the
‗informed discretion‘ of the sentencing court. (See United States v. Tucker (1972)
404 U.S. 443, 447 [30 L.Ed.2d 592, 596, 92S.Ct. 589]; Townsend v. Burke (1948)
334 U.S. 736, 741 [92 L.Ed. 1690, 1693, 68 S.Ct. 1252].) A court which is
unaware of the scope of its discretionary powers can no more exercise that
‗informed discretion‘ than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant‘s record.‖ (People v.
Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) In such circumstances, we have held
that the appropriate remedy is to remand for resentencing unless the record

                                          45
―clearly indicate[s]‖ that the trial court would have reached the same conclusion
―even if it had been aware that it had such discretion.‖ (Ibid.; see People v.
Rodriguez (1998) 17 Cal.4th 253, 257; Romero, supra, 13 Cal.4th at p. 530,
fn. 13.) Although the trial courts in these cases understood that they had some
discretion in sentencing, the records do not clearly indicate that they would have
imposed the same sentence had they been aware of the full scope of their
discretion. Because the trial courts operated under a governing presumption in
favor of life without parole, we cannot say with confidence what sentence they
would have imposed absent the presumption. Accordingly, we remand both cases
for resentencing.
                                  CONCLUSION
       Juveniles who commit crimes that reflect impetuosity, irresponsibility,
inability to assess risks and consequences, vulnerability to peer pressure, substance
abuse, or pathologies traceable to an unstable childhood cannot and should not
escape punishment. And when the crime is ―a vicious murder,‖ it is ―beyond
question‖ that a juvenile offender ―deserve[s] severe punishment.‖ (Miller, supra,
567 U.S. at p. __ [132 S.Ct. at p. 2469].) Because Moffett and Gutierrez have
been convicted of special circumstance murder, each will receive a life sentence.
(§ 190.5(b).) The question is whether each can be deemed, at the time of
sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to
reenter society, notwithstanding the ―diminished culpability and greater prospects
for reform‖ that ordinarily distinguish juveniles from adults. (Miller, at p. __ [132
S.Ct. at p. 2464].) Because the trial courts here decided that question without
proper guidance on the sentencing discretion conferred by section 190.5(b) and the




                                         46
considerations that must inform the exercise of that discretion, we remand both
cases for proceedings not inconsistent with this opinion.


                                             LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.
           WERDEGAR, J.
           CHIN, J.
           KENNARD, J.*




*      Retired Associate Justice of the Supreme Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.



                                        47
                 CONCURRING OPINION BY CORRIGAN, J.

       I agree with the majority‘s conclusion that Penal Code section 190.5,
subdivision (b) (section 190.5(b)) imposes no presumption in favor of life without
parole. So construed, the statute fully satisfies current federal constitutional
concerns. I write separately to stress that California‘s individualized, discretionary
sentencing scheme is very different from the mandatory life without parole
sentence the United States Supreme Court addressed in Miller v. Alabama (2012)
567 U.S. __ [132 S.Ct. 2455] (Miller).
       Discretionary decisions occur at multiple steps in our state‘s process. First,
the prosecutor exercises discretion in charging a minor as an adult. Next, unless
the crime is one for which trial in criminal court is prescribed (see Welf. & Inst.
Code, § 602, subd. (b)),1 the court determines whether the minor is unfit to be
tried in juvenile court. Finally, if a minor is tried and convicted as an adult, the
court makes an individualized determination about the appropriate sentence in
light of all the evidence presented.
       In Miller, the Supreme Court commented that judicial discretion regarding
a minor‘s transfer to adult court is of ―limited utility‖ if the court receives only



1      Trial as an adult is automatic for special circumstance murder only if the
prosecutor alleges the minor personally killed the victim. (Welf. & Inst. Code,
§ 602, subd. (b)(1).)



                                           1
partial information about the minor and circumstances of the offense. (Miller,
supra, 567 U.S. at p. __ [132 S.Ct. at p. 2474].) California‘s transfer process
entails a substantial inquiry, however. When a motion for transfer is made, the
court is required to order an investigation and written report on the minor‘s
behavioral patterns and social history. (Welf. & Inst. Code, § 707, subd. (c).) The
court must also consider ―any other relevant evidence‖ the minor wishes to
submit. (Ibid.) Although there is a presumption of unfitness for extremely violent
felonies such as murder, it is overcome if the court finds the minor amenable to
juvenile court treatment based on an evaluation of (1) the degree of criminal
sophistication the minor exhibits, (2) the possibility of rehabilitation, (3) the
minor‘s history of delinquency, (4) the success of previous attempts at
rehabilitation, and (5) the circumstances and gravity of the alleged offense. (Ibid.)
       Miller also criticized transfer-stage discretion as a poor substitute for
discretion at posttrial sentencing. (See Miller, supra, 567 U.S. at p. __ [132 S.Ct.
at pp. 2474-2475].) But in California the discretion available to a juvenile court in
the transfer process is not a substitute for, but a supplement to, the robust
discretion exercised at sentencing. Miller was addressing states in which the only
discretionary review of a minor‘s background and offense occurs at a pretrial
fitness hearing. In those states, once a decision has been made to try a minor as an
adult, a life-without-parole sentence is mandatory if the minor is found guilty of
the charged offense. (See Miller, at p. __ [132 S.Ct. at p. 2474].) Evidence
presented at the transfer hearing cannot be offered in mitigation at sentencing.
(Ibid.) The situation is quite different in California. Courts in our state must
consider all relevant circumstances in determining the appropriate sentence for a
minor. When a minor between the ages of 16 and 18 is convicted of special
circumstance murder, the court has discretion to impose a sentence of 25 years to
life imprisonment or life without possibility of parole. (§ 190.5(b).) The harsher
sentence is not available for any defendant who was under age 16 when the crime
was committed. (Ibid.) This reality again sets California quite apart from the


                                           2
states mentioned in Miller that expose minors to life without parole at ―any age—
be it 17 or 14 or 10 or 6.‖ (Miller, at p. __ [132 S.Ct. at p. 2473 & fn. 14].) Even
for older teenagers, no mandatory sentence is ever required in California.
       Accordingly, while I agree that the concerns expressed in Miller are
important, careful attention should be given to how a defendant‘s age and maturity
actually factor into each case when the court exercises its discretion under
section 190.5(b). The special attributes of youth mentioned in Miller may well be
present in the case of some minors. There will be other minors, however, who
have grown beyond them. It is because each case is different, and should be
treated accordingly, that we repose confidence in the discretion of the court to
impose a sentence that is appropriate in light of all relevant circumstances.
Whether ―appropriate occasions‖ for sentencing juveniles to life without parole
will be uncommon is not a prognostication that should be made globally and in the
abstract. (See maj. opn. ante, at pp. 27, 28, quoting Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2469].) The Miller majority made this comment in the
context of two 14-year-olds, one of whom had a delinquency history comprised of
no more than truancy and one instance of ― ‗second-degree criminal mischief.‘ ‖
(Miller, at p. __ [132 S.Ct. at p. 2469].) As noted, the court was also addressing
very different state statutes, which imposed mandatory lifetime sentences on much
younger children whose individual circumstances were never considered except at
a limited pretrial fitness hearing.
       The appropriate sentence for any particular minor remains a question for
the sentencing court. As the Miller majority itself observed: ―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.‖ (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2471].) We make clear
today that this process is fully embraced in California. The majority opinion here
should not be read to suggest otherwise.


                                           3
                            CORRIGAN, J.


WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.




                        4
                      CONCURRING OPINION BY LIU, J.


       In light of Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller),
the court today holds that Penal Code ―section 190.5(b) confers discretion on the
sentencing court to impose either life without parole or a term of 25 years to life
on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no
presumption in favor of life without parole.‖ (Maj. opn., ante, at p. 40.) We also
hold that ―[s]ection 190.5(b) authorizes and indeed requires consideration of the
Miller factors.‖ (Ibid.) Justice Corrigan‘s concurring opinion does not disagree
with either proposition.
       Justice Corrigan observes that our trial courts have discretion to decide
whether trial as an adult is appropriate in cases where a juvenile is charged with
murder but not charged with personally killing the victim. (Conc. opn., ante, at
pp. 1–2 & fn. 1.) I agree that our trial courts have such discretion, but I would
note Miller‘s admonition that ―transfer-stage discretion . . . has limited utility‖
because ―the judge often does not know then what she will learn, about the
offender or the offense, over the course of the proceedings.‖ (Miller, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2474].) Further, ―and still more important,‖ Miller
said, ―the question at transfer hearings may differ dramatically from the issue at a
post-trial sentencing. Because many juvenile systems require that the offender be
released at a particular age or after a certain number of years, transfer decisions


                                           1
often present a choice between extremes: light punishment as a child or standard
sentencing as an adult (here, life without parole).‖ (Ibid.; see Welf. & Inst. Code,
§ 607 [minor must be discharged from juvenile court‘s jurisdiction at age 21 in
most cases and at age 25 in any case, unless civilly committed].) ―Discretionary
sentencing in adult court would provide different options: There, a judge or jury
could choose, rather than a life-without-parole sentence, a lifetime prison term
with the possibility of parole or a lengthy term of years. It is easy to imagine a
judge deciding that a minor deserves a (much) harsher sentence than he would
receive in juvenile court, while still not thinking life-without-parole appropriate.‖
(Miller, at pp. __–__ [132 S.Ct. at pp. 2474–2475].) This, too, informed Miller‘s
judgment that ―transfer-stage discretion . . . has limited utility.‖ (Id. at p. __ [132
S.Ct. at p. 2474].)
       Finally, although Justice Corrigan is correct that Miller involved two 14-
year-olds (conc. opn., ante, at p. 3), lower courts should take note that Miller, in
clear language, announced a principle that applies to all juveniles, not just 14-year-
olds: ―[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.‘ ‖ (Miller, supra,
567 U.S. at p. __ [132 S.Ct. at p. 2469].)
                                                           LIU, J.




                                             2
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gutierrez and People v. Moffett
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 209 Cal.App.4th 646 and 209 Cal.App.4th 1465
Rehearing Granted
__________________________________________________________________________________

Opinion No. S206365 and S206771
Date Filed: May 5, 2014
__________________________________________________________________________________

Court: Superior
County: Ventura and Contra Costa
Judge: Patricia M. Murphy and Laurel S. Brady
__________________________________________________________________________________

Counsel:

Jean Matulis, under appointment by the Supreme Court, for Defendant and Appellant Luis Angel Gutierrez.

Joseph Shipp, under appointment by the Supreme Court, for Defendant and Appellant Andrew Lawrence
Moffett.

L. Richard Braucher; and Susan L. Burrell for Pacific Juvenile Defender Center and Youth Law Center as
Amici Curiae on behalf of Defendant and Appellant Luis Angel Gutierrez.

Latham & Watkins, Aaron Murphy and Anthony J. Bruno for United Mexican States as Amicus Curiae on
behalf of Defendant and Appellant Luis Angel Gutierrez.

Elizabeth M. Calvin; DLA Piper and Steven S. Kimball for Human Rights Watch as Amicus Curiae on
behalf of Defendant and Appellant Luis Angel Gutierrez.

International Human Rights Clinic, Elizabeth A. Henneke; Frank C. Newman International Human Rights
Law Clinic, Constance de la Vega and Lani Virostko for Amnesty International, Disability Rights Legal
Center, Human Rights Advocates, Loyola Law School Center for Juvenile Law and Policy and University
of San Francisco Center for Law and Global Justice as Amici Curiae on behalf of Defendants and
Appellants.

Jessica R. Feierman and Marsha L. Levick for Juvenile Law Center as Amicus Curiae on behalf of
Defendants and Appellants.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Lawrence M. Daniels, Steven D. Matthews and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent in S206365.




                                                   1
Page 2 – S206365 and S206771 – counsel continued

Counsel:

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Lawrence M. Daniels, René A. Chacón
and David M. Baskind, Deputy Attorneys General, for Plaintiff and Respondent in S206771.

Criminal Justice Legal Foundation and Kent S. Scheidegger for Jo Ann Lasater, Phyllis Loya and James
Lasater as Amici Curiae on behalf of Plaintiff and Respondent.




                                                   2
Counsel who argued in Supreme Court (not intended for publication with opinion):

Jean Matulis
Post Office Box 1237
Cambria, CA 93428
(805) 927-1990

Joseph Shipp
Post Office Box 20347
Oakland, CA 94620
(510) 530-9043

Marsha L. Levick
Juvenile Law Center
1315 Walnut Street, 4th Floor
Philadelphia, PA 19107
(215) 625-0551

David F. Glassman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2355

David M. Baskind
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1308




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