Filed 2/24/14 P. v. Aguirre CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046752

         v.                                                            (Super. Ct. No. 10NF1086)

JESUS ARTURO AGUIRRE,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
                   William J. Kopeny for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Lise Jacobson and Vincent P. LaPietra, Deputy Attorneys General, for
Plaintiff and Respondent.
              A jury found Jesus Arturo Aguirre guilty of attempted murder (Pen. Code,
§§ 664, subd. (a), 187, subd. (a); count 1; all further undesignated statutory references are
to this code), assault with a deadly weapon (§ 245, subd. (a)(2); count 2), and active
participation in a criminal street gang (§ 186.22, subd. (a); count 3). As to count 1, the
jury also found the attempted murder was willful, deliberate and premeditated (§ 664,
subd. (a)), Aguirre vicariously discharged a firearm (§ 12022.53, subds. (c), (e)(1)), and
Aguirre vicariously discharged a firearm causing great bodily injury (§ 12022.53, subds.
(d), (e)(1)). Finally, as to both counts 1 and 2, the jury found the crimes were committed
for the benefit of, at the direction of, or in association with a criminal street gang
(§ 186.22, subd. (b)(1)).
              The court sentenced Aguirre on count 1 to an indeterminate term of life
with the possibility of parole (§ 664, subd. (a)), plus a consecutive term of 25 years to life
(§ 12022.53, subds. (d), (e)(1)), and struck the remaining enhancements under section
12022.53, subdivisions (e)(2) and (f). The court also sentenced Aguirre to determinate
terms on counts 2 and 3, but stayed those terms under section 654. Thus, Aguirre’s total
term of imprisonment is life with the possibility of parole, plus 25 years to life. Because
he was 16 years old at the time he committed these crimes and the minimum period of
confinement on the indeterminate life term is seven years (§ 3046, subd. (a)), Aguirre
will be eligible for parole when he reaches age 49.
              Aguirre challenges the sufficiency of the evidence to support the
convictions. He also claims the prosecutor committed misconduct by arguing transferred
intent, and the trial court committed error by failing to instruct on voluntary
manslaughter. Finally, he argues the sentence imposed is cruel and unusual given his
youth, his limited role in the crimes as an aider and abettor, and his relative lack of prior
criminal record.
              We affirm the convictions, reverse the sentence on ineffective assistance of
counsel grounds, and remand the matter to the trial court for a new sentencing hearing.

                                               2
                                         FACTS
              On March 13, 2010, between 15 and 20 members of the Eastside Buena
Park criminal street gang gathered at the Walden Glen apartment complex in Buena Park.
On the same day, Ramon Magana, a one-time member of the Anaheim Barrio Pobre
criminal street gang with the sobriquet “Knuckles,” was visiting his mother, Tami Pixtun,
his sister, Margarita Mendoza, and several other family members at Pixtun’s apartment in
the Walden Glen complex.
              Around 5:30 p.m., some of the Eastside Buena Park gang members called
out for Mendoza to step outside the apartment.1 She did not want to, so Magana and
Mendoza’s boyfriend went outside to investigate. Pixtun followed Magana outside,
heard a gunshot, and heard Magana say, “Oh, shit.” She saw him throw his hands back,
try to run, and fall to the ground. The gunman fired at least one more shot at Magana, but
Magana collected himself, yelled at his family to get inside, and ran back to Pixtun’s
apartment.
              Buena Park Police Officer Andy Luong was quickly dispatched to the
Walden Glen apartments. Luong arrived to a “very chaotic” scene with people yelling
and screaming. He went to Pixtun’s apartment and saw Magana lying on the floor,
bleeding and screaming in pain. Magana “had several wounds near his upper torso,” and
it looked as though he had been shot by a shotgun loaded with birdshot.
              Magana was taken to the hospital. A short time later Luong went there to
talk to him. By that time, Magana had already been examined and treated for his
wounds. Magana seemed reluctant to talk to Luong, and Luong described him as an
“uncooperative” victim. Magana claimed he did not recognize his assailants, and he


       1  Magana, Mendoza, and to a certain extent, Pixtun, did not cooperate with the
police investigation and were reluctant witnesses at trial. Some of these facts are based
on their pretrial statements which were introduced at trial through other witnesses.


                                             3
provided only a vague description. Although Magana’s wounds were not life threatening,
Luong testified birdshot fired from a shotgun can be lethal if fired in close proximity to
the person.
              Pixtun told Luong that Mendoza said either “Chico” or “Chuco” from
Eastside Buena Park had been involved in the shooting. Aguirre is the only known
“Chico” from Eastside Buena Park. Based on this information and their preliminary
investigation, Buena Park police officers quickly arrested Aguirre.
              Aguirre denied being at the Walden Glen apartment complex on the day of
the shooting. However, he was put into a monitored cell at the juvenile detention facility
with Julio Aparicio, a fellow Eastside Buena Park gang member. For over four hours, the
two gang members talked about the shooting. Their conversation was recorded and
edited down to about one hour, and this edited version was transcribed and played for the
jury.
              In the edited version of their conversation, Aguirre admitted he and Martin
Solorio, another Eastside Buena Park member with the cognomen “Little Frosty,” were at
the Walden Glen apartments, and that Solorio shot Magana. Aguirre said he and Solorio
thought Magana was a rival gang member who had “called [them] out.” Aguirre said he
argued with Solorio over who should shoot Magana, but he decided to give the loaded
shotgun to Solorio.
              Aguirre thought he recognized Magana, but by the time he handed the gun
to Solorio, “it was too late.” Aguirre also thought Solorio may have recognized Magana,
but decided to shoot him anyway because “Big Frosty and [Magana] had pedo [problems]
before . . . .” After claiming to want to move out of his neighborhood to avoid further
hassles with the gang unit and gang lifestyle, Aguirre called Magana a “bitch” and said,
“I should have smoked that fool . . . .”
              Aguirre repeatedly told Aparicio the police had no evidence linking him to
the shooting, and he intended to stick to his alibi. Aparicio pointed out that shooting

                                             4
Magana would cause “some shit” because Magana’s gang and Eastside Buena Park were
allies. The prosecution’s expert confirmed the two gangs were allies before the shooting
and became rivals after it.
              At trial, Pixtun testified she saw the shooter standing with another person,
but both of them were wearing black hoodies and she could not see their faces, and only
one of them had a gun. She did not identify Aguirre, and she denied telling Luong one of
the individuals involved yelled, “Eastside Buena Park.”
              Mendoza testified she saw her brother walk out of the apartment, and she
heard two shots just before her brother ran back to the apartment. She claimed to not
remember telling the investigating officers anything about the shooting because it had
“been two years.” She denied telling Pixtun that Chico from Eastside Buena Park had
done the shooting.
              Magana testified he was standing outside his mother’s apartment when he
was shot, but he blacked out and did not remember anything about the incident. He
claimed to have not seen the shooter, or remember talking to police officers at the
hospital. Magana did not want to report the crime because he claimed to not know
anything.
                                      DISCUSSION
1. Sufficiency of the Evidence
              “The role of an appellate court in reviewing the sufficiency of the evidence
is limited. The court must ‘review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence — that is,
evidence which is reasonable, credible, and of solid value — such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People
v. Ceja (1993) 4 Cal.4th 1134, 1138.) “Reversal on this ground is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

                                             5
              a. Intent to Kill, Transferred Intent and Mistaken Identity
              Aguirre first challenges the sufficiency of the evidence to support the intent
to kill element of his attempted murder conviction. We find the evidence sufficient. As
the trial court correctly instructed the jury, “To prove that a defendant is guilty of
attempted murder, the People must prove that: [¶] 1. The defendant took at least one
direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant
intended to kill that person.” (CALCRIM No. 600, italics added.)
              There is ample evidence in the record which is reasonable, credible, and of
solid value, and from which a reasonable trier of fact could find Aguirre and Solorio both
took direct but ineffective steps toward killing another person, and they both intended to
kill that person. Solorio was the shooter, and Aguirre was the aider and abettor of the
shooter. And there is no question the person actually shot was their intended target.
              Attempting to avoid this inevitable conclusion, Aguirre argues, “The
People tried this case on a ‘transferred intent’ theory, arguing to the jury that the shooting
of the victim . . . was a case of ‘mistaken identity’ and that the intent was not to kill the
victim, but that other person who was assumed to be a member of a rival gang.”
              The premise of this argument is faulty. The People did not try this case on
a transferred intent theory. The People did try this case on a mistaken identity theory.
During closing argument, the prosecutor mused, “Remember Barrio Pobre at the time of
the shooting was actually a gang that got along with Eastside Buena Park. They were
sort of friendly, sort of allies. I guess you could say this is a case of mistaken identity in
a way.” Similarly, the prosecutor said Eastside Buena Park gang members thought
Magana was a rival gang member, but “they were mistaken.”
              Furthermore, Aguirre incorrectly equates this mistaken identity situation
with a transferred intent situation. The mistaken identity situation here was not a case of
transferred intent, because the person Solorio actually aimed at was the intended victim.
This is to be contrasted with the bad aim situation where a defendant aims at one person

                                               6
and hits another person by mistake, which does require an actual transfer of intent. Thus,
it is irrelevant that Aguirre may have mistakenly thought the person aimed at was a rival
gang member, but only realized his mistake after he handed the shotgun to Solorio.
              b. Aiding and Abetting
              Aguirre also challenges the sufficiency of the evidence to prove his acts
went beyond mere preparation, thus defeating the prosecution’s aiding and abetting
theory and precluding a conviction for attempted premeditated murder or assault with a
deadly weapon. We disagree.
              Of course, attempted murder requires “sufficient evidence of the intent to
commit the murder plus a direct but ineffectual act toward its commission. [Citation.]”
(People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) However, the requisite intent
may be established by circumstantial evidence (People v. Boyd (1987) 43 Cal.3d 333,
348), and may be inferred from the circumstances surrounding the attempt, including the
actions of the defendant. (People v. Chinchilla, supra, 52 Cal.App.4th at p. 690.)
              In this case, Aguirre joined his fellow gang members in their confrontation
with Magana outside Pixtun’s apartment, carrying the loaded shotgun. As he later told
Aparicio, Aguirre originally intended to shoot Magana himself, but he handed the
shotgun to Solorio instead. There was nothing ineffectual about these acts which went
well beyond mere preparation. He was just lucky Magana did not die. Afterward,
Aguirre took flight and denied being at the Walden Glen apartments that day. Thus, the
evidence shows Aguirre acted with the requisite intent, and took direct but ineffectual
acts to commit the attempted murder and the assault with a deadly weapon.
2. Prosecutorial Misconduct
              Again referencing the prosecutor’s mistaken identity comments to the jury,
Aguirre claims the prosecutor impermissibly argued “the equivalent of an erroneous
‘transferred intent’ instruction” and gave “misadvice on the law” sufficient to constitute
prosecutorial misconduct that required the trial court’s intervention and a defense

                                             7
objection. Not so. Nothing the prosecutor said in closing argument invoked the
transferred intent doctrine. There was no prosecutorial misconduct, trial court error, or
ineffective assistance of counsel on this point.
3. Instructional Error
              Next Aguirre contends the facts presented at trial and his theory of the case
obligated the trial court to instruct sua sponte on the lesser included offense of attempted
voluntary manslaughter. Again, we disagree.
              The trial court’s duty to instruct on lesser included offenses is well
established. “‘“That obligation has been held to include giving instructions on lesser
included offenses when the evidence raises a question as to whether all of the elements of
the charged offense were present [citation], but not when there is no evidence that the
offense was less than that charged. [Citations.]”’” (People v. Breverman (1998) 19
Cal.4th 142, 154-155.)
              “Voluntary manslaughter is a lesser included offense of murder when the
requisite mental element of malice is negated by a sudden quarrel or heat of passion, or
by an unreasonable but good faith belief in the necessity of self-defense. ‘Only these
circumstances negate malice when a defendant intends to kill.’ [Citation.]” (People v.
Gutierrez (2003) 112 Cal.App.4th 704, 708.) Aguirre did not even argue he acted in self-
defense, and there is no evidence of any provocation or heat of passion.
              Likewise, we reject Aguirre’s assertion his conviction for assault with a
deadly weapon means “there is doubt whether the jury may have convicted on the lesser
included offense of attempted voluntary manslaughter.” Aguirre does not explain this
argument and it makes no sense to us. Nevertheless, with all the evidence of the charged
offenses and no evidence of the lesser included offense, the court did not have any duty
to instruct on attempted voluntary manslaughter.




                                              8
4. Cruel and/or Unusual Punishment
              The federal Constitution prohibits imposition of punishment that is “cruel
and unusual.” (U.S. Const., 8th Amend.; see Robinson v. State of California (1962) 370
U.S. 660, 666–667.) Similarly, the state Constitution provides: “Cruel or unusual
punishment may not be inflicted or excessive fines imposed.” (Cal. Const., art. I, § 17.)
“Whereas the federal Constitution prohibits cruel ‘and’ unusual punishment, California
affords greater protection to criminal defendants by prohibiting cruel ‘or’ unusual
punishment.” (People v. Haller (2009) 174 Cal.App.4th 1080, 1092.)
              Aguirre, who was just shy of his 17th birthday when he committed the
instant crimes, claims the sentence imposed violates the California Constitution, relying
primarily on People v. Dillon (1983) 34 Cal.3d 441 (Dillon). Aguirre also claims the
sentence imposed violates the federal Constitution, citing “recent case law” including
Miller v. Alabama (2012) 567 U.S. __; [132 S.Ct. 2455] (Miller); Graham v. Florida
(2010) 560 U.S. 48 __ [130 S.Ct. 2011, 2030] (Graham); and Roper v. Simmons (2005)
543 U.S. 551, 575 (Roper). Aguirre raised these constitutional claims for the first time
on appeal, and we invited supplemental briefing on whether trial counsel’s failure to raise
them in the trial court constitutes prejudicial ineffective of counsel.
              As we shall explain, since the sentence imposed is not the functional
equivalent of life without the possibility of parole (LWOP), it does not constitute cruel
and unusual punishment in violation of the federal Constitution under Miller, Graham
and Roper. But it may constitute cruel and unusual punishment in violation of the
California Constitution under Dillon. And defense counsel’s failure to raise the point in
the trial court constitutes ineffective assistance in connection with the sentencing.
              a. Federal Cruel and Unusual Claim
              “The issue of how long someone under the age of 18 may be sentenced to
prison has been the subject of considerable judicial attention recently in the wake of
Miller.” (People v. Perez (2013) 214 Cal.App.4th 49, 55 (Perez).) “These cases follow a

                                              9
remarkably consistent pattern. There is a bright line between LWOP’s and long
sentences with eligibility for parole if there is some meaningful life expectancy left when
the offender becomes eligible for parole. We are aware of — and have been cited to —
no case which has used the Roper–Graham–Miller–Caballero [People v. Caballero
(2012) 55 Cal.4th 262] line of jurisprudence to strike down as cruel and unusual any
sentence against anyone under the age of 18 where the perpetrator still has substantial life
expectancy left at the time of eligibility for parole.” (Id. at p. 57.)
              “How much life expectancy must remain at the time of eligibility for parole
of course remains a matter for future judicial development, but we can safely say that in
the case before us there is plenty of time left for [Aguirre] to demonstrate, as the Graham
court put it, ‘some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’ [Citation].” (People v. Perez, supra, 214 Cal.App.4th at pp.
57-58.) Here, much like in Perez, there is no dispute that Aguirre will be eligible for
parole when he reaches age 49.2 “That is, by no stretch of the imagination can this case
be called a ‘functional’ or ‘de facto’ LWOP, and therefore neither Miller, Graham, nor
Caballero apply. And, of course, Roper was a death penalty case and does not apply for
that reason.” (Id. at p. 58.) There simply is no federal 8th Amendment issue here.
              b. State Cruel and Unusual Claim
              A lengthy juvenile sentence may be reduced under the older California
Supreme Court jurisprudence of gross disproportionality, as shown in Dillon. The Dillon
proportionality analysis is rigorous, multi-faceted and fact specific. (Dillon, supra, 34
Cal.3d at pp. 476-489.) On the record currently before us we cannot, and fortunately
given our resolution of the related ineffective assistance claim discussed below need not,
perform this analysis in the first instance. It is sufficient to note that while we recognize


       2  Because we conclude the sentence imposed is not the functional equivalent of
LWOP, the alternative and earlier parole date determined under newly enacted section
3051 is irrelevant to our analysis of the federal cruel and unusual claim.

                                               10
successful challenges based on Dillon are “extremely rare” (Perez, supra, 214
Cal.App.4th at p. 60), the present case might be among those which merit a lesser
punishment under Dillon than that which was imposed. Moreover, “Since the
determination of the applicability of Dillon in a particular case is fact specific, the issue
must be raised in the trial court. Here, the matter was not raised below, and is therefore
waived on appeal.” (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
              c. Ineffective Assistance of Counsel Claim
              “Under existing law, a defense attorney who fails to adequately understand
the available sentencing alternatives, promote their proper application, or pursue the most
advantageous disposition for his client may be found incompetent. [Citations.]” (People
v. Scott (1994) 9 Cal.4th 331, 350-351.)
              “A defendant claiming ineffective assistance of counsel must satisfy
Strickland’s [Strickland v. Washington (1984) 466 U.S. 668] two-part test requiring a
showing of counsel’s deficient performance and prejudice. [Citation.] As to deficient
performance, a defendant ‘must show that counsel’s representation fell below an
objective standard of reasonableness’ measured against ‘prevailing professional norms.’
[Citation.] ‘Judicial scrutiny of counsel’s performance must be highly deferential,’ a
court must evaluate counsel’s performance ‘from counsel’s perspective at the time’
without the ‘the distorting effects of hindsight,’ and ‘a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’ [Citation.]” (People v. Jacobs (2013) 220 Cal.App.4th 67, 75 (Jacobs).)
              Even under these highly deferential standards, defense counsel’s
performance in connection with the sentencing was deficient. Defense counsel did not
file a sentencing brief and did not even review the probation report with Aguirre.
Defense counsel admitted he was ill prepared for the sentencing hearing, and he failed to
properly request a continuance, although good cause for a continuance may have existed.
Most importantly, defense counsel did not assert Dillon and the well-established

                                              11
California Constitution protections against grossly disproportionate cruel and unusual
juvenile punishments discussed above. In essence, defense counsel did nothing to
advocate on behalf of Aguirre regarding the sentencing in this case.
              Of course, Aguirre must also demonstrate prejudice as a result. “The
prejudice prong requires a defendant to establish that ‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ [Citation.] ‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ [Citation.]” (Jacobs, supra, 220 Cal.App.4th at p. 75.)
Aguirre has certainly been prejudiced by the waiver which resulted from defense
counsel’s failure to assert Dillon in the trial court. Therefore, our confidence in the
outcome of the sentencing hearing is sufficiently undermined.
              Under these circumstances it is appropriate for us to remand the case to the
trial court for a new sentencing hearing. (§ 1260.)
                                       DISPOSITION
              The convictions are affirmed, the sentence is reversed, and the matter
remanded to the trial court for a new sentencing hearing. In light of this disposition the
clerk of this court is directed to give the required notice to the State Bar and to trial
counsel. (Bus. & Prof. Code, § 6086.7; Cal. Rules of Court, rule 10.1017.)




                                                   THOMPSON, J.

I CONCUR:



ARONSON, ACTING P. J.




                                              12
FYBEL, J., concurring.
              I agree with the majority opinion except that I also believe Jesus Arturo
Aguirre—a juvenile convicted of a nonhomicide offense—should be resentenced with
consideration given to the Eighth Amendment to the United States Constitution, which
forbids the imposition of “cruel and unusual punishments.”
              Consideration of the Eight Amendment in this case, I conclude, flows
logically and compellingly from the Supreme Court’s opinion in Miller v. Alabama
(2012) 567 U.S. __ [132 S.Ct. 2455] (Miller). The analysis and language of Miller
support the application of an Eighth Amendment analysis whenever a juvenile faces a
lengthy prison sentence for a nonhomicide offense.
              The United States Supreme Court has long recognized, and still recognizes,
the Eighth Amendment contains a “‘narrow proportionality principle’ that ‘applies to
noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20, citing Harmelin v.
Michigan (1991) 501 U.S. 957, 996-997 [conc. opn. of Kennedy, J., joined by O’Connor
and Souter, JJ.] (Harmelin); see In re Coley (2012) 55 Cal.4th 524, 538.) In Miller, the
United States Supreme Court extended this proportionality principle to juvenile offenders
who face mandatory life without parole sentences for homicide offenses. The court held
that “mandatory life without parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2460].) In reaching this
holding, the court set forth principles governing the constitutionality of juvenile sentences
under the Eighth Amendment.
              The Miller court emphasized both that juvenile offenders are different from
adult offenders and that the proportionality principle remains a core precept of Eight
Amendment scrutiny of juvenile sentencing. The Miller court distinguished Harmelin,
which had rejected an Eighth Amendment proportionality claim, on the ground
“Harmelin had nothing to do with children and did not purport to apply its holding to the

                                             1
sentencing of juvenile offenders.” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2470].) The Miller court analyzed its prior opinions in Roper v. Simmons (2005) 543
U.S. 551 (Roper) and Graham v. Florida (2010) 560 U.S. 48 (Graham) and concluded,
“Roper and Graham establish that children are constitutionally different from adults for
purposes of sentencing.” (Miller, supra, at p. __ [132 S.Ct. at p. 2464].). The court cited
to “Graham’s admonition that ‘“[a]n offender’s age is relevant to the Eighth Amendment,
and criminal procedure laws that fail to take defendants’ youthfulness into account at all
would be flawed.”’” (Id. at p. __ [132 S.Ct. at p. 2462].) The court relied on Roper and
Weems v. United States (1910) 217 U.S. 349, 367, for “‘the basic “precept of justice that
punishment for crime should be graduated and proportioned”’ to both the offender and
the offense.” (Miller, supra, at p. __ [132 S.Ct. at p. 2463].) Indeed, “‘[t]he concept of
proportionality is central to the Eighth Amendment.’” (Ibid.)
                After discussing Graham’s emphasis on “individualized sentencing,” albeit
in the context of the death penalty, the Miller court listed Supreme Court cases requiring
that the “sentencer have the ability to consider the ‘mitigating qualities of youth’”
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2467]), and stated that Graham
“indicates that a similar rule should apply when a juvenile confronts a sentence of life
(and death) in prison” (Miller, supra, p. __ [132 S.Ct. at p. 2468]). Again emphasizing
that juvenile offenders are different, the Supreme Court stated, “[w]e have by now held
on multiple occasions that a sentencing rule permissible for adults may not be so for
children.” (Id. at p. __ [132 S.Ct. at p. 2470].) The court described its “mandate[]” as
follows: “[A] sentencer follow[s] a certain process—considering an offender’s youth and
attendant characteristics—before imposing a particular penalty.” (Id. at p. __ [132 S.Ct.
at p. 2471].)
                The critical point in Miller is its explanation how and why juvenile
offenders differ from adult offenders. The Miller court invested a significant amount of
its analysis in so doing and, citing Graham and Roper, made three points: (1) “juveniles

                                               2
have diminished culpability and greater prospects for reform” and are “‘less deserving of
the most severe punishments’”; (2) “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”; and (3) “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].’” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2464.)
The Miller court noted its decision was based not only on “what ‘any parent knows’” but
on “‘developments in psychology and brain science [that] continue to show fundamental
differences between juvenile and adult minds’—for example, in ‘parts of the brain
involved in behavior control.’” (Ibid.) These 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 p. __ [132 S.Ct. at pp. 2464-2465].)
              In a key paragraph, the Miller court concluded: “So Graham and Roper
and our individualized sentencing cases alike teach that in imposing a State’s harshest
penalties, a sentencer misses too much if he treats every child as an adult. To recap:
Mandatory life without parole for a juvenile precludes consideration of his chronological
age and its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and 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. See, e.g., Graham, 560

                                               3
U.S., at ___, 130 S.Ct. 2011 . . . (‘[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 . . . (2011) (discussing children’s responses to
interrogation). 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].)
              I recognize Miller holds a mandatory sentence of life without the possibility
of parole for juvenile offenders in a homicide case violates the Eighth Amendment’s
prohibition on cruel and unusual punishments (Miller, supra, 567 U.S. at p. __ [132 S.Ct.
at p. 2460]) and Aguirre was not sentenced to life without the possibility of parole or its
functional equivalent (People v. Caballero (2012) 55 Cal.4th 262 (Caballero)).
However, neither expressly nor by implication does Miller limit Eighth Amendment
protections to juvenile offenders sentenced to life without the possibility of parole or its
functional equivalent. Indeed, the differences between an adult mind and a juvenile
mind—the driving force in the reasoning of Miller, Graham, and Roper—do not vanish
when, as in this case, a juvenile offender is sentenced under a determinate sentencing
system to a term of 25 years to life instead of life without the possibility of parole for a
nonhomicide offense. A juvenile offender’s neurological development does not
automatically and suddenly advance to that of an adult with the imposition of a sentence
other than life without the possibility of parole or its functional equivalent.
              An opinion from this division has collected and reviewed decisions from
the United States Supreme Court, California Supreme Court, and California Court of
Appeal applying the Roper, Graham, Miller, and Caballero opinions, and found that
cases finding an Eighth Amendment violation all concerned sentences of death, or life
without the possibility of parole or its functional equivalent. (People v. Perez (2013) 214
Cal.App.4th 49, 55-57.) But no United States Supreme Court or California Supreme
Court opinion, and none of the opinions listed in People v. Perez, holds Eighth

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Amendment protections for juvenile offenders in nonhomicide cases are limited to those
sentences. As Miller, Roper, and Graham all acknowledge, juvenile offenders are
different from adult offenders, and the offender’s status as a juvenile is a critical factor in
Eighth Amendment analysis. The hallmarks of the immature juvenile mind—“transient
rashness, proclivity for risk, and inability to assess consequences” (Miller, supra, 567
U.S. at p. __ [132 S.Ct. at p. 2465])—are no less present in a juvenile offender sentenced
to 25 years to life for a nonhomicide offense as they are in a juvenile offender sentenced
to life without the possibility of parole.
              The principles discussed in Miller lead me to conclude the Eighth
Amendment permits the imposition against a juvenile offender of a lengthy sentence for a
nonhomicide offense (such as the one imposed on Aguirre) only after consideration of the
juvenile’s age and other individual factors, including whether he or she was a principal or
an aider and abettor.
              At what time must a court consider these factors? Again, the answer is
found in Miller. In section III of the majority opinion, the Supreme Court continually
focuses on “individualized consideration before sentencing.” (Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at pp. 2469-2470], italics added.) Indeed, the Miller court described its
own opinions in Roper and Graham as “mandat[ing] only that a sentencer follow a
certain process—considering an offender’s youth and attendant characteristics—before
imposing a particular penalty. And in so requiring, our decision flows straightforwardly
from our precedents: specifically, the principle of Roper, Graham, and our
individualized sentencing cases that youth matters for purposes of meting out the law’s
most serious punishments.” (Miller, supra, at p. __ [132 S.Ct. at p. 2471], italics added.)
It appears to me that a sentence of life with the possibility of parole, plus 25 years to life,
qualifies as one of the “law’s most serious punishments” (ibid.), especially when imposed
on a juvenile for a nonhomicide crime he committed at the age of 16.



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              Thus, the principle that Aguirre, a juvenile, is entitled to individualized
consideration before sentencing “flows straightforwardly from” Miller and the Supreme
Court precedent described in Miller. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at
p. 2471].)
              Recently enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), codified at
Penal Code section 3051, provides that juvenile offenders may be eligible for release on
parole at a youth offender parole hearing. Section 3051, subdivision (a)(1), states that
“any prisoner who was under 18 years of age at the time of his or her controlling offense”
shall be afforded a “youth offender parole hearing.” Juvenile offenders with determinate
sentences of any length shall receive a hearing during the 15th year of incarceration (Pen.
Code, § 3051, subd. (b)(l)), juvenile offenders sentenced to life terms of less than 25
years to life shall receive a hearing during the 20th year of incarceration (id., § 3051,
subd. (b)(2)), and juvenile offenders sentenced to an indeterminate base term of 25 years
to life shall receive a hearing during the 25th year of incarceration (id., § 3051,
subd. (b)(3).) The youth offender parole hearing “shall provide for a meaningful
opportunity to obtain release.” (Id., § 3051, subd. (e).)
              If Penal Code section 3051 applies to him, Aguirre would first be eligible
for consideration in 25 years, when he will be approximately 42 years old. While
section 3051 certainly is a significant step toward addressing the concerns expressed in
Miller, it does not address the court’s need to consider Aguirre’s age and related factors
before and at the time of sentencing. In this regard, I agree with the court in In re Heard
(2014) 223 Cal.App.4th 115, 130, which concluded that section 3051 is a “‘safety net’”
only, and is not a “replacement for the sentencing court’s execution of its constitutional
duties as required under Graham . . . , Miller . . . and Caballero to consider the
differences between juveniles and adults when sentencing a juvenile offender.” I
respectfully disagree, as did the court in In re Heard, with People v. Martin (2013) 222
Cal.App.4th 98 and In re Alatriste (Oct. 29, 2013, B248072) (nonpub. opn.), review

                                              6
granted February 19, 2014, S214652, both of which reached the contrary conclusion that
section 3051 affords juvenile offenders the type of evaluation compelled by Miller,
Graham, and Caballero and gives them “‘some meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’” (People v. Martin, supra, at
p. 105.)
             The Attorney General, relying on Penal Code section 12022.53,
subdivision (h), argues Aguirre’s sentence was the only one authorized because “the
court did not have the authority to strike the firearm use enhancement.” This argument is
based on the sentence provided under section 12022.53; it does not address whether the
statutory sentence passes constitutional muster as applied. For the reasons I have
explained, it may not, depending on the required individualized analysis of the proper
sentence of a juvenile offender in a nonhomicide offense.
             Under the cited authority, before a sentence is imposed, the sentencing
court should give Aguirre’s sentence individualized consideration by applying the factors
set forth in Miller. Accordingly, I would reverse the sentence and remand for
resentencing under both the California Constitution and the United States Constitution. It
is premature to conclude whether Aguirre’s sentence should be reduced, precisely
because no individualized analysis of his sentence has yet been conducted.




                                                FYBEL, J.




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