Filed 2/28/14
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIRST APPELLATE DISTRICT

                                        DIVISION ONE


In re CLYDE JAMES RAINEY,                            A138921
        on Habeas Corpus.
                                                     (Contra Costa County
                                                     Super. Ct. No. 9807082)



        Petitioner Clyde James Rainey (Rainey) seeks habeas relief under Miller v.
Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), which holds
mandatory life imprisonment without parole (LWOP) for those under the age of 18 at the
time of their crimes violates the Eighth Amendment prohibition on cruel and unusual
punishment. We conclude Miller applies retroactively to cases on collateral review and
further conclude Rainey is entitled to habeas relief. We therefore grant the petition for
writ of habeas corpus, vacate the sentence, and remand for resentencing in a manner
consistent with the views expressed herein.
                                         BACKGROUND
        In 1999, a jury convicted Rainey of first degree murder, committed during an
attempted robbery and with personal use of a firearm. The trial court sentenced him to
LWOP under Penal Code section 190.5, subdivision (b).1
        The facts as stated in our unpublished opinion affirming the judgment of
conviction are as follows: “On Halloween night, October 31, 1996, 20-year-old Koupou
Saechao was twice shot in the back while in front of his aunt’s apartment building in
North Richmond. The aunt heard two gunshots, and then Saechao came to the door and


        1
            All further statutory references are to the Penal Code.


                                                1
collapsed in her arms. Saechao said a ‘black guy’ shot him. Saechao died four days
later, on November 4. [¶] The police arrested 16-year-old appellant on November 6,
1996. Appellant is African American. Appellant initially denied involvement in the
shooting, then said that he and 14-year-old Donald C. tried to rob Saechao and Donald
shot the victim when a patdown found nothing to steal. Ultimately, after talking with his
mother at the police station, appellant confessed that he was the one who shot Saechao.
When speaking to the police, appellant denied being a member of a gang, or participating
in the shooting as a gang initiation. [¶] Appellant’s trial defense was that he was guilty of
no more than manslaughter or second degree murder because he shot the victim as part of
a gang initiation, not a robbery, and suffers from developmental limitations that impede
his ability to premeditate.” (People v. Rainey (Feb. 7, 2001, A088153) [nonpub. opn.] at
pp. 1–2.)
       At the sentencing hearing, the prosecutor stated the People “would concede . . .
that the driving force of this action did appear to be Donald [C.]; however, . . .
Mr. Rainey is the man who pulled the trigger. And I think it is extremely significant that
he pulled the trigger twice. And it was that act and that act alone that resulted in the
death of the victim in this case.” Defense counsel, on the other hand, argued “the fact
that there was somebody else as the driving force behind this crime . . . is significant in
that . . . there wasn’t a crime of tremendous planning, premeditation, not a whole lot of
thought on Clyde Rainey’s part; that he didn’t walk out onto those streets with the evil
intent of killing somebody that night . . . . [¶] And his response is consistent with the
problems that he had throughout his life that were almost never addressed, that he had
remedial schooling, was placed in remedial schooling in the 2nd grade, . . . that he was
failing out of school, that he was developing a drug and alcohol problem, that he had
severe learning disabilities and intellectual impairment, nobody ever addressed those
issues. [¶] And it seems . . . justice would be fully done if this young man was able to
earn the opportunity to ask the Parole Board [sometime in the future] . . . whether he’s
been rehabilitated or not.”



                                              2
       The trial court observed Rainey had been under the jurisdiction of the juvenile
court on “many, many occasions.” And while Rainey may not have intended to “go on a
mission of killing” that night, he knew “when he was given a gun” and “knew what he
was doing and he knew the danger . . . involved.”
       On appeal, Rainey argued: (1) the trial court erred in failing to order a
competency hearing; (2) his waiver of his right to remain silent was unknowing; (3) his
confession was coerced; (4) evidence of the surreptitious monitoring of his police station
conversation with his mother was wrongly admitted; (5) the court erred in instructing the
jury to report juror misconduct; and (6) the court erred in instructing the jury on the
principles of felony-murder when the doctrine was not specifically charged. (People v.
Rainey (Feb. 7, 2001, A088153) [nonpub. opn.] at p. 6.) We rejected these claims, and
affirmed the judgment. (Ibid.) The California Supreme Court denied Rainey’s petition
for review on May 16, 2001.
       On June 13, 2013, Rainey filed the instant petition for writ of habeas corpus. We
issued an order to show cause and granted his motion for appointment of counsel nunc
pro tunc.2 The Attorney General filed a written return, and Rainey thereafter filed a
traverse. The parties declined to request oral argument.
                                        DISCUSSION
A.     Eighth Amendment in Juvenile Context
       In Roper v. Simmons (2005) 543 U.S. 551, 574–575 [161 L.Ed.2d 1, 125 S.Ct.
1183] (Roper), the Unites States Supreme Court held imposing the death penalty on
juvenile offenders older than 15 years of age but younger than 18 years, is cruel and
unusual punishment precluded by the Eighth Amendment. In Graham v. Florida (2010)


       2
          Although a court of review “may refuse to issue a writ of habeas corpus when it
appears that the application should have been first made in the lower court,” we have
decided to entertain this matter in the first instance because the petition raises important
legal issues concerning the constitutionality of juvenile sentencing procedures. (See In re
Moss (1985) 175 Cal.App.3d 913, 922 [221 Cal.Rptr. 645] [“intervention is proper by
this court in the first instance because the issues raised involve fundamental due process
rights [and] . . . it affords us the opportunity to provide guidance to the trial court”].)


                                              3
560 U.S. 48, ___ [176 L.Ed.2d 825, 845, 130 S.Ct. 2011, 2030] (Graham), the high court
extended the constitutional limitations on juvenile punishment, holding the Eighth
Amendment “forbids the sentence of life without parole” for a juvenile offender who
does not commit homicide.
       Most recently, in Miller, the Supreme Court held any sentencing scheme that
“mandates life in prison without possibility of parole for juvenile offenders” is also
forbidden under the Eighth Amendment. (Miller, supra, 132 S.Ct. at p. 2469.) The court
reasoned: “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. [Citations.] And finally, this mandatory punishment disregards the
possibility of rehabilitation even when the circumstances most suggest it.” (Id. at
p. 2468.)
       The court added, “[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


                                             4
ability to make that judgment in homicide cases, we require it to take into account how
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” (Miller, supra, at p. 2469, italics added.)
       Under California law, “[t]he penalty for a defendant found guilty of murder in the
first degree, in any case with one or more special circumstances . . . found to be true . . . ,
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 [LWOP] or, at the
discretion of the court, 25 years to life.” (§ 190.5, subd. (b).) Courts have interpreted
section 190.5, subdivision (b) to mean LWOP is the statutorily identified presumptive
punishment for a 16- or 17-year-old special circumstance murderer, unless the sentencing
court, in the exercise of its discretion, finds good reason to impose the less severe
sentence of 25 years to life. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089 [83
Cal.Rptr.3d 340]; People v. Guinn (1994) 28 Cal.App.4th 1130, 1141–1142 [33
Cal.Rptr.2d 791].)
       Recently, California appellate courts have addressed direct appeals by juvenile
offenders contending their LWOP sentences under section 190.5, subdivision (b), are
unconstitutional under Miller, and have reached differing dispositions. Some courts have
affirmed the LWOP judgment, reasoning the record showed the trial court did not
presumptively impose LWOP, but rather exercised informed discretion in imposing that
sentence. (See, e.g., People v. Gutierrez (2012) 209 Cal.App.4th 646, 659 [147
Cal.Rptr.3d 249, 260] [noting § 190.5 “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 the possibility of parole”], review granted Jan. 3, 2013, S206365.3) Other



       3
         We do not cite Gutierrez and other juvenile LWOP cases in which review has
been granted for precedential purposes, but only to illustrate the differing approaches
taken by the courts of appeal in reviewing Miller claims. In granting review in Gutierrez,
the California Supreme Court identified the issue to be briefed and argued as: “Does the
sentence of life without parole imposed on this juvenile offender under Penal Code
section 190.5, subdivision (b), violate the Eighth Amendment under Miller v. Alabama

                                               5
courts have vacated the LWOP sentence and remanded for resentencing, reasoning that in
applying the judicially recognized presumption that LWOP is the appropriate term for a
16- or 17-year-old defendant, the sentencing court failed to exercise its discretion in the
manner required by Miller. (See, e.g., People v. Moffett (2012) 209 Cal.App.4th 1465,
1476 [148 Cal.Rptr.3d 47, 55], review granted Jan. 3, 2013, S206771; People v.
Siackasorn (2012) 211 Cal.App.4th 909, 915–916 [149 Cal.Rptr.3d 918, 923], review
granted Mar. 20, 2013, S207973.)
B.     Miller Applies Retroactively to Cases on Collateral Review
       Rainey seeks the benefit of Miller by way of habeas relief. We therefore first
address whether Miller applies retroactively to cases on collateral review.
       Retroactivity is assessed under the test enunciated in Teague v. Lane (1989)
489 U.S. 288 [103 L.Ed.2d 334, 109 S.Ct. 1060] (Teague). (See In re Gomez (2009)
45 Cal.4th 650, 653 [88 Cal.Rptr.3d 177, 199 P.3d 574] (Gomez) [applying Teague and
concluding Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct.
856] applied on collateral review to judgments final before it was decided but after
Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] was
decided].)4
       In Teague, the Supreme Court held that in general “ ‘new constitutional rules of
criminal procedure will not be applicable to those cases which have become final before
the new rules are announced.’ [Citation.]” (Lambrix v. Singletary (1997) 520 U.S. 518,
527 [137 L.Ed2d 771, 117 S.Ct. 1517].) “A holding constitutes a ‘new rule’ within the
meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or
the Federal Government,’ or was not ‘dictated by precedent existing at the time the


(2012) ___U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407]?” (People v. Gutierrez (Jan. 3,
2013, S206365) 150 Cal.Rptr.3d 567.)
       4
         The California Supreme Court also stated in Gomez “we are ‘free to give greater
retroactive impact to a decision than the federal courts choose to give[,]’ ” but added
“[b]ecause we conclude . . . Teague requires the application of Cunningham in the
present case, we need not consider the result we would reach under state retroactivity
principles.” (Gomez, supra, 45 Cal.4th at p. 655, fn. 3, italics added.)


                                              6
defendant’s conviction became final.’ Teague, supra, [489 U.S.] at 301 (emphasis in
original).” (Graham v. Collins (1993) 506 U.S. 461, 467 [122 L.Ed.2d 260, 113 S.Ct.
892].)
         Teague recognized two exceptions to the “new rule” principle: “ ‘The first
exception permits the retroactive application of a new rule if the rule places a class of
private conduct beyond the power of the State to proscribe [citation], or addresses a
“substantive categorical guarante[e] accorded by the Constitution,” such as a rule
“prohibiting a certain category of punishment for a class of defendants because of their
status or offense.” ’ [Citations.]” (Graham v. Collins, supra, 506 U.S. at p. 477.) More
recently, the high court has clarified that new rules falling within the first Teague
exception “are more accurately characterized as substantive rules not subject to
[Teague’s] bar.” (Schriro v. Summerlin (2004) 542 U.S. 348, 352, fn. 4 [159 L.Ed.2d
442, 124 S.Ct. 2519] (Schriro); Beard v. Banks (2004) 542 U.S. 406, 411, fn. 3
[159 L.Ed.2d 494, 124 S.Ct. 2504] [same].) In Schriro, the court explained new
substantive rules “apply retroactively because they ‘necessarily carry a significant risk
that a defendant stands convicted of “an act that the law does not make criminal” ’ or
faces a punishment that the law cannot impose upon him.” (Schriro, supra, 542 U.S. at p.
352.)
         The second exception to Teague’s bar on retroactivity is for “ ‘ “watershed rules of
criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.” ’ [Citations.]” (Beard v. Banks, supra, 542 U.S. at p. 417.) The second
Teague exception is limited in scope and applies “ ‘ “only to a small core of rules
requiring observance of those procedures that . . . are implicit in the concept of ordered
liberty.” ’ [Citations.]” (Ibid. [observing “we have yet to find a new rule that falls under
the second Teague exception”].)
         Teague also made clear that if one petitioner gets the benefit of a new rule, then
the rule should apply retroactively “to others similarly situated,” as any other approach
would be “inequitable.” (Teague, supra, 489 U.S. at p. 315.) “[T]he harm caused by the
failure to treat similarly situated defendants alike cannot be exaggerated: such


                                               7
inequitable treatment ‘hardly comports with the ideal of “administration of justice with an
even hand.” ’ [Citations.]” (Ibid.) Thus, the court stated it would “simply refuse to
announce a new rule in a given case unless the rule would be applied retroactively to the
defendant in the case and to all others similarly situated.” (Id. at p. 316 [“implicit in the
retroactivity approach we adopt today, is the principle that habeas corpus cannot be used
as a vehicle to create new constitutional rules of criminal procedure unless those rules
would be applied retroactively to all defendants on collateral review through one of the
two exceptions we have articulated”].)
       In view of Teague’s statement to the effect equal justice requires that when a new
substantive rule is applied to a habeas petitioner in a case announcing the new rule, the
rule must “be applied retroactively to all who are similarly situated” (Teague, supra,
489 U.S. at p. 300), the procedural posture of Miller, itself, supports its retroactive
application. As the Supreme Court of Iowa observed in State v. Ragland (Iowa 2013)
836 N.W.2d 107 (Ragland), “Miller involved the companion case of Jackson v. Hobbs.
See Miller, 567 U.S. at __, 132 S.Ct. at pp. 2461–2462 . . . . Miller was a direct appeal,
but Jackson involved a petition for habeas corpus brought after the conviction had been
affirmed on direct appeal. See id . . . . Nevertheless, the Supreme Court specifically held
the new rule applied not only to the defendant in Miller, but also to the defendant in
Jackson on collateral review. See id. at __, 132 S.Ct. at 2475, 183 L.Ed.2d at 430. The
Court directed that the defendant in Jackson be given an individualized hearing. See id.
There would have been no reason for the Court to direct such an outcome if it did not
view the Miller rule as applying retroactively to cases on collateral review. We also
recognize that the dissent in Miller suggested the majority’s decision would invalidate
other cases across the nation. See id. at __, 132 S.Ct. at 2479–80, 183 L.Ed.2d at 433
(Roberts, C.J., dissenting). Again, the dissent would not have raised this concern if the
Court did not believe its holding applied to cases on collateral review.” (Ragland, supra,
836 N.W.2d at p. 116.)
       We agree with this analysis—that the United States Supreme Court’s application
of the rule announced in Miller to the habeas petitioner in the companion case


                                              8
demonstrates the high court announced a new “substantive” rule of law and intended the
rule to apply “retroactively to all who are similarly situated.” (Teague, supra, 489 U.S. at
p. 300.)
       This conclusion is bolstered by the fact decisions in both lines of cases Miller
relied on in announcing the bar on mandatory LWOP sentences for juveniles have been
applied with retroactive effect. (See, e.g., In re Sparks (5th Cir. 2011) 657 F.3d 258, 262
[noting “the Supreme Court’s decision in Atkins v. Virginia (2002) 536 U.S. 304
[153 L.Ed.2d 335, 122 S.Ct. 2242],] barring the execution of the mentally retarded has
been given retroactive effect, [citation], as has the Court’s decision in Roper . . . , barring
the execution of juvenile offenders”]; see also Songer v. Wainwright (1985) 769 F.2d
1488, 1489 [noting that Lockett v. Ohio (1978) 438 U.S. 586, 604–605 [57 L.Ed.2d 973,
98 S.Ct. 2954], fn. omitted (“[T]he Eight and Fourteenth Amendments require that the
sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death”) has been given retroactive
effect].) The Iowa Supreme Court made the same point in holding Miller applied
retroactively, stating the “practical observation of the treatment of the underlying
authority of Miller is instructive. If a substantial portion of the authority used in Miller
has been applied retroactively, Miller should logically receive the same treatment.”
(Ragland, supra, 836 N.W.2d at p. 116.)
       Furthermore, Miller held the Eighth Amendment prohibits the imposition of an
LWOP sentence upon a juvenile offender unless the sentencing court considers the
offender’s “chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences,” as well as the offender’s
“family and home environment” and “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.” (Miller, supra, 132 S.Ct. at p. 2468.) Thus, the Miller
rule constitutes a new substantive rule, and is not subject to Teague’s retroactivity bar,
because it prohibits “a certain category of punishment [LWOP] for a class of defendants


                                               9
[juvenile offenders convicted of homicide] because of their status [chronological age and
its hallmark features] or offense.” (Penry v. Lynaugh (1989) 492 U.S. 302, 330 [106
L.Ed.2d 256, 109 S.Ct. 2934], abrogated on other grounds by Atkins v. Virginia, supra,
536 U.S. 304.) In short, the Miller rule—prohibiting the imposition of an LWOP
sentence on a juvenile offender absent a consideration of the juvenile “chronological age
and its hallmark features” (Miller, supra, 132 S.Ct. at pp. 2468–2469)—applies
retroactively because it “ ‘necessarily carr[ies] a significant risk that a defendant . . . faces
a punishment that the law cannot impose upon him.’ ” (Schriro, supra, 542 U.S. at
p. 352.)
       We therefore conclude Miller announced a new substantive rule that applies
retroactively to cases on collateral review.
C.     Merits
       Turning to the merits of Rainey’s claim, he contends he is entitled to habeas relief
under Miller on two separate grounds. First, he asserts California’s presumption of
LWOP for any special circumstance murder committed by a juvenile violates the
command of Miller that such sentences must be the exception rather than the norm.
Second, he maintains his sentence must be vacated because the trial court did not
adequately consider the distinctive mitigating circumstances of his youth and
background, as required by Miller.
       As to the first asserted ground for relief, a review of the sentencing documents
included in the appendix to the habeas petition does not support the conclusion the trial
court imposed the LWOP sentence in a presumptive manner.5 Rather, the record
indicates the sentencing court understood it could choose to impose the lesser punishment
of 25 years to life.


       5
          These documents include a transcript of the sentencing hearing, a defense
sentencing memorandum, the probation report and a neuropsychological evaluation
finding Rainey had a “Full Scale I.Q. of 75, placing him in the borderline range of overall
intellectual ability,” and concluding that testing indicated Rainey “exhibits significant
neuropsychological impairment.”


                                               10
       Nevertheless, we conclude Rainey is entitled to habeas relief on the second ground
asserted. The record demonstrates the sentencing judge imposed LWOP on the basis of
several factors, including Rainey’s lengthy juvenile court record, the jury’s special
circumstance finding that he committed murder during a robbery, the jury’s finding
Rainey personally used a firearm during the commission of the crime, and the court’s
determination he “knew what he was doing and . . . knew the danger in which he was
involved.” Missing from the court’s sentencing discourse is a full consideration of the
factors, now constitutionally mandated under Miller, related to “the distinctive attributes
of youth [that] diminish the penological justifications for imposing the harshest sentences
on juvenile offenders, even when they commit terrible crimes.” (Miller, supra, 132 S. Ct
at p. 2465.) Because Miller requires sentencing courts to consider “how children are
different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison” (id. at p. 2469), and the trial court here did not consider the “hallmark
features” of youth now mandated under Miller (id. at p. 2468), we conclude habeas relief
must be granted.
       We reject the Attorney General’s contention that habeas relief should be denied
because Rainey “now has the possibility of parole” under section 1170, subdivision
(d)(2). This subdivision, enacted in 2012, provides a “recall” procedure for a juvenile
LWOP sentence, after a period of 15 years. (§ 1170, subd. (d)(2)(A)(i) [“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.”].)6
       The legislative history reflects section 1170, subdivision (d)(2), was enacted in
response to Roper and Graham. (Assem. Comm. on Public Safety, Analysis of Sen. Bill
No. 9 (2011–2012 Reg. Sess.) as amended May 27, 2011.) This legislation pre-dated by

       6
         If a sentence is not recalled, the defendant may submit another petition after
serving 20 years, and if unsuccessful then may submit one additional petition after
serving 24 years. (§ 1170, subd. (d)(2)(H).)


                                             11
three months the Supreme Court’s decision in Miller, but Roper and Graham, as we have
discussed, were the analytical foundation for Miller and established the fundamental
principle that the inherent attributes of youth must be considered before a State imposes
the harshest of criminal penalties. Accordingly, it appears the Legislature believed this
legislation rectified constitutional shortcomings that might otherwise be attendant to
juvenile LWOP sentences under section 190.5, subdivision (b).
       However, section 1170, subdivision (d)(2), is not fully congruent with Miller. To
begin with, we believe Miller makes clear the special considerations attendant to youth
are to be considered at the time of sentencing. (E.g., Miller, supra, 132 S. Ct. at p. 2466
[mandatory penalty schemes “prevent the sentencer from taking account of these central
considerations”]; id. at p. 2476 (conc. opn. of Breyer, J.) [Court has “insisted” that “a
sentencer have the ability to consider the ‘mitigating qualities’ of youth”]; id. at pp. 2468
[“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”], 2469 [ “sentencer needed to examine all these circumstances before concluding
that life without any possibility of parole was the appropriate penalty”].) Indeed, the
Supreme Court pointed out that, “given all we have said in Roper and 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
[LWOP] will be uncommon.” (Id. at p. 2469.)
       We cannot square Section 1170, subdivision (d)(2)’s petitioning process—at the
soonest 15 years after sentencing—with the import of the Supreme Court’s discussion
and analysis in Miller. The statute effectively makes Miller’s mandate irrelevant to our
sentencing courts, under the rubric that constitutionally mandated youth sentencing
factors can be deferred at a minimum for a decade and a half. We do not believe the high
court had in mind any such deferral of constitutionally required sentencing
considerations, particularly since the court envisions that such consideration will result in
the harshest of sentences being “uncommon.”



                                             12
       Furthermore, there is no guarantee that a petition seeking recall and resentencing
under section 1170, subdivision (d)(2), will be heard on the merits. Rather, a hearing is
conditioned on the defendant “describing his or her remorse and work towards
rehabilitation” and stating that one of the following four circumstances is true: (1) he or
she “was convicted pursuant to felony murder or aiding and abetting murder provisions”;
(2) he or she does not have other prior juvenile felony adjudications “for assault or other
felony crimes with a significant potential for personal harm to victims”; (3) he or she
“committed the offense with at least one adult codefendant”; or (4) he or she “has
performed acts that tend to indicate rehabilitation or 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.” (§ 1170, subd. (d)(2)(B)(i)–(iv).) Nothing in Miller remotely suggests that a
juvenile must make a threshold showing of some sort before a sentencing court is
constitutionally required to consider the implications of his or her youth.
       Additionally, even when a section 1170, subdivision (d) petition is heard on the
merits, the enumerated factors the court may consider in deciding whether to resentence
the defendant do not embrace the totality of the considerations the Supreme Court
discussed in Miller, Roper and Graham. In addition to the factors, except rehabilitation
efforts, just mentioned (§ 1170, subd. (d)(2)(F)(i)–(iii)), a court ruling on the merits of a
recall petition may consider: whether, prior to the crime, the defendant “had insufficient
adult support or supervision and had suffered from psychological or physical trauma, or
significant stress” (id., subd. (d)(2)(F)(iv)); whether 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” (id.,
subd. (d)(2)(v)); whether 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 in crime” (id., subd. (d)(2)(F)(vii)); and
whether the defendant “has had no disciplinary actions for violent activities in the last


                                              13
five years in which the defendant was determined to be the aggressor” (id., subd.
(d)(2)(F)(viii).
       These factors describe what might be called causative agents of criminal conduct,
i.e., lack of parental supervision or positive adult role models, and mental or physical
impairment. Missing from this list is the fundamental fact of youth, and its attendant
attributes, on which the Supreme Court has focused—“Roper and Graham establish that
children are constitutionally different from adults for purposes of sentencing.”7 (Miller,
supra, 132 S. Ct. at p. 2464.) Youth, the court has said, “ ‘is more than a chronological
fact.’ ” (Id. at p. 2467, quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 115
[71 L.Ed.2d. 1, 102 S. Ct. 869].) “It is a time of immaturity, irresponsibility,
“ ‘impetuousness[,] and recklessness.’ ” (Miller, at p. 2467, quoting Johnson v. Texas
(1993) 509 U.S. 350, 368 [125 L.Ed.2d 290, 113 S. Ct. 2658].) Thus, “a sentencer misses
too much if he treats every child as an adult.” (Miller, at p. 2468.) While section 1170,
subdivision (d)(2)(I), provides that a court hearing a recall petition “may” also “consider
any other criteria that the court deems relevant to its decision, ” this proviso neither
identifies, nor requires the court to consider, the inherent “mitigating qualities of youth”


       7
           “Those cases relied on three significant gaps between juveniles and adults.
First, children have a ‘ “lack of maturity and an undeveloped sense of responsibility,” ’
leading to recklessness, impulsivity, and heedless risk taking. Roper, 543 U.S., at 569
. . . . 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. Ibid. 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] depravi[ity].’ Id., at 570 . . . .” (Miller, supra, 132 S.Ct. at p. 2464.) The
Miller court further stated that in Graham, the court elaborated “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.’ 560
at U.S., at ___, 130 S.Ct., 2011 . . . . We reasoned that those findings—of transient
rashness, proclivity for risk, and inability to assess consequences—both lessen a child’s
‘moral culpability’ and enhanced the prospect that, as years go by and neurological
development occurs, his ‘ “deficiencies will be reformed.” ’ [Citations.]” (Miller, supra,
at pp. 2464–2465, fn. omitted.)


                                              14
which the Supreme Court has instructed must be considered before imposing a State’s
harshest penalties. (Miller, at p. 2467.)
       Our conclusion that section 1170, subdivision (d)(2), does not foreclose Rainey
from obtaining habeas relief is also consistent with the reasoning in In re Heard (2014)
223 Cal.App.4th 115 [166 Cal.Rptr.3d 824] (Heard). In Heard, the Court of Appeal
concluded section 3051, subdivision (a)(1), enacted in 2013 in response to Miller and
Graham and allowing for earlier “youth offender parole hearing[s],” does not avoid the
necessity of a remand for resentencing to consider the factors constitutionally mandated
by Miller. (Heard, supra, 223 Cal.App.4th at pp. 127–131.) While the new statute offers
most juvenile offenders (but not Rainey8) a “meaningful opportunity to obtain parole
during their lifetimes” (Heard, at p. 130), it effectively transfers to the parole authority,
well after the fact, the constitutional obligation Miller imposes on sentencers to consider
the attributes of youth in determining whether to impose the state’s harshest penalties.
The appellate court refused to adopt a construction of section 3051, subdivision (a)(1),
that “relieves the sentencing court[s]” of their “constitutional duty to consider the
differences between juveniles and adults when sentencing juvenile offenders.”9 (Heard,
supra, 223 Cal.App.4th at pp. 130–131.) We have concluded the same as to
section 1170, subdivision (d)(2).




       8
          Because he was sentenced to LWOP, Rainey is among the few defendants to
which the section 3051, subdivision (a)(1), does not apply. (§ 3051, subd. (h).)
       9
          Heard, supra, 223 Cal.App.4th at pages 129–130 and footnote 9 acknowledged
its conclusion is contrary to that in In re Alatriste (2013) 220 Cal.App.4th 1232, 1238–
1239 [163 Cal.Rptr.3d 748], and People v. Martin (2013) 222 Cal.App.4th 98, 103–105
[165 Cal.Rptr.3d 605], both of which concluded section 3051’s juvenile parole provisions
avoided constitutional deficiencies with sentences arguably the functional equivalent of
LWOP. Heard disagreed, as do we, with the view expressed in those cases that “Graham
[and] Miller . . . only hold that a juvenile may not be incarcerated for life or its functional
equivalent without some meaningful opportunity for release on parole during his or her
lifetime” and do not impose any obligation in that regard on a sentencing court. (Heard,
supra, 223 Cal.app.4th at pp. 129–130 & fn. 9.)


                                              15
                                     DISPOSITION
      The petition for habeas corpus is granted. Petitioner’s LWOP sentence is vacated
and the matter is remanded for resentencing.



                                                _________________________
                                                Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero. J,




A138921, In re Rainey




                                           16
Trial Judge:                            Honorable Richard E. Arnason
Trial Court:                            Contra Costa County Superior Court


L. Richard Braucher for Petitioner.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan and René A.
Chacón, Supervising Deputy Attorneys General for Respondent.




                                          17
