Filed 9/29/16 (unmodified opn. attached)

                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                           DIVISION FIVE


THE PEOPLE,                                           A144424
     Plaintiff and Respondent,                        (Sonoma County
v.                                                    Super. Ct. No. SCR-511523)
BRADLEY BLACKWELL,                                    ORDER MODIFYING OPINION
    Defendant and Appellant.                          AND DENYING REHEARING
                                                      [NO CHANGE IN JUDGMENT]

THE COURT:*
        IT IS ORDERED that the opinion filed on September 7, 2016, is modified as
follows and the petition for rehearing is DENIED:
    1. On page 1, the first sentence of the first paragraph is deleted and replaced with two
        sentences that now read:
             In 2007, Bradley Blackwell, then 17 years old, committed a burglary and
             attempted robbery with an accomplice. Uriel Carreno was shot and killed in
             the course of those offenses.
    2. On page 21, footnote 10 is modified so that it now reads:
             By accepting Blackwell’s analogy to the death penalty, we do not mean to
             suggest that death is not “ ‘qualitatively different from all other
             punishments.’ ” (People v. Jones (2012) 54 Cal.4th 1, 81.) We reject
             Blackwell’s unsupported attempt to import wholesale the high court’s adult
             death penalty jurisprudence. There is no authority to support Blackwell’s
             additional assertion that the holding of Godfrey v. Georgia (1980) 446 U.S.
             420 “must apply in juvenile life without parole cases.” In any event, the
             California Supreme Court “has consistently rejected the claim that the statutory
             special circumstances, including the felony-murder special circumstance, do


        *   Before Jones, P.J., Simons, J., and Bruiniers, J.

                                                 1
          not adequately narrow the class of persons subject to the death penalty.”
          (People v. Pollock (2004) 32 Cal.4th 1153, 1195.)

The modification effects no change in the judgment.


Date___________________                         ____________________________ Acting
P.J.




                                            2
Superior Court of Sonoma County, No. SCR-511523, Rene A. Chouteau, Judge.

L. Richard Braucher, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Joshua A. Klein, Deputy
Solicitor General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General,
for Plaintiff and Respondent.




                                           3
Filed 9/7/16 (unmodified version)
                                CERTIFIED FOR PUBLICATION

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIRST APPELLATE DISTRICT

                                         DIVISION FIVE


THE PEOPLE,
        Plaintiff and Respondent,
                                                     A144424
v.
BRADLEY BLACKWELL,                                   (Sonoma County
                                                     Super. Ct. No. SCR-511523)
        Defendant and Appellant.


        In 2007, Bradley Blackwell, then 17 years old, committed a burglary and
attempted robbery with an accomplice and shot and killed Uriel Carreno in the course of
those offenses. Although Blackwell was a minor at the time he committed these offenses,
the district attorney elected to directly file the case in adult court under the provisions of
Welfare and Institutions Code section 707, subdivision (d). Blackwell was convicted in
2009 of first degree murder with a robbery-murder special circumstance (Pen. Code,
§§ 187, subd. (a), 189, 190.2, subd. (a)(17)(A)) and sentenced to life without the
possibility of parole (LWOP).1
        In a prior appeal (People v. Blackwell (June 20, 2013, A128197) [nonpub. opn.]),
we reversed Blackwell’s sentence and remanded for resentencing pursuant to the
constitutional standards announced in Miller v. Alabama (2012) 567 U.S. ___, ___
[132 S.Ct. 2455, 2464, 2468–2469] (Miller) [mandatory LWOP sentences for homicide
amount to cruel and unusual punishment under the Eighth Amendment when imposed on




        1   Undesignated statutory references are to the Penal Code.


                                               1
defendant who was a juvenile at time of offense].2 On remand, the trial court considered
the factors outlined in Miller, and again imposed an LWOP sentence. Blackwell again
appeals, arguing that the sentence amounts to cruel and unusual punishment, violates the
Sixth Amendment, and constitutes an abuse of discretion. We affirm.
                  I.     FACTUAL AND PROCEDURAL BACKGROUND3
       Uriel Carreno was living in the converted garage of his aunt and uncle’s home on
Joan Drive in Petaluma. On February 7, 2007, he ate lunch with his aunt and returned to
his garage apartment. A friend of Carreno’s came by later that afternoon and found him
lying on the floor, not moving. Carreno had been shot four times in his side and once in
his back and had died of his wounds. A piece of the wood doorjamb was found across
the room and a muddy shoeprint was on the door adjacent to the doorknob.
       The police found five nine-millimeter shell casings of two different colors within
three to five feet of Carreno’s body. Forensic testing and the position of the casings
revealed they were all fired from the same weapon while the shooter was inside the room.
The coroner recovered five spent bullets from Carreno’s body, all of which were fired
from the same weapon. Two of the bullets had silver jackets (Silvertips) and the other
three were of the Black Talon variety. There was no evidence that another firearm was
discharged inside the room during the incident leading to Carreno’s death.




       2  In appeal No. A128197, Blackwell challenged his sentence and we originally
affirmed. His petition for review was denied by the California Supreme Court (Mar. 14,
2012, S199767), but the United States Supreme Court granted his petition for writ of
certiorari, vacated the judgment, and remanded the case to this court for reconsideration
in light of Miller, supra, 132 S.Ct. 2455, which was decided after issuance of our original
opinion. After reconsideration in light of Miller, we remanded the case for resentencing.
(People v. Blackwell, supra, A128197.) Our Supreme Court granted review of Blackwell,
deferred briefing, and dismissed review (July 9, 2014, S212074) after it decided People v.
Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).
       3 By separate order, we granted Blackwell’s request for judicial notice of the
record in his prior appeal. Our statement of facts is taken largely from People v.
Blackwell, supra, A128197.


                                             2
       Jeffrey Gray, a convicted felon, saw Blackwell with a nine-millimeter Beretta
during early 2007. Gray saw Blackwell load it with different colored bullets, and
Blackwell told Gray that some of them were solid points and some were hollow points.
Blackwell referred to the hollow point bullets as Black Talons.
       On the afternoon Carreno was shot, Blackwell called Christopher Ortele and asked
for a ride to Petaluma near the Kmart so he could pay his cell phone bill. Ortele was in
the process of installing a car stereo for his friend Amber Powell, who agreed to drive.
Powell and Ortele picked up Blackwell, who was with Keith Kellum, and they all drove
from Rohnert Park to the Petaluma Kmart, but when Powell was about to turn into the
parking lot, either Blackwell or Kellum told her to go the other way and directed her to a
residential neighborhood near the corner of Novak and Joan Drive (the street on which
Carreno lived).
       After Powell parked the car, Blackwell and Kellum got out and walked in the
direction of Joan Drive, telling Powell to wait for them. When they returned five to
15 minutes later, their demeanor had changed. They got into the car and were very quiet
during the ride back. It appeared to Powell that Blackwell was “tearing up” and Kellum
was consoling him.
       Gray received a call from Blackwell that same afternoon and arranged to meet him
at a trailer park where Gray was visiting a friend. Blackwell, Kellum, and Blackwell’s
brother, Colby, arrived in Colby’s truck, and Gray got into the truck with them.
Blackwell handed Gray some solvent and a rag and told him he wanted him to go inside a
house or garage and wipe down any fingerprints that might be on the door. They pulled
up to a house on Joan Drive, but saw fire trucks, police cars, and an ambulance outside.
Blackwell appeared upset and explained he shot a “guy” they were trying to rob.
       The group drove back to Blackwell’s house, where Blackwell told Gray what
happened in greater detail. Blackwell said he and Kellum went to Petaluma to rob a guy
of some money and dope (crystal methamphetamine) and Kellum kicked in the door of
the garage. Blackwell claimed that when he went into the garage, the guy inside took a
shot at him, so he shot back several times.


                                              3
       Also on the day of the shooting, Blackwell called his girlfriend, Jacqueline
Pollard, and asked her to come to his house. He sounded very anxious on the phone.
When Pollard arrived she found Blackwell and Kellum stripped to their boxer shorts.
Blackwell took her into the bathroom and told her in a “frantic” manner he had got a ride
to Petaluma with some girl he did not know and had shot someone dead. Blackwell told
Pollard he and Kellum had gone to a house, touched a doorknob, and kicked another door
down, and he was afraid fingerprints and a footprint would be on two separate doors. He
claimed that when they entered the room the person inside had been laying in bed and
fired a shot between his head and Kellum’s, so Blackwell fired a few shots into his chest.
After the victim fell to the ground, Blackwell shot him a few more times. Blackwell
admitted to Pollard he used his own gun, a semiautomatic Pollard had seen before. He
told Pollard he and Kellum were going to burn their clothes, and mentioned a pair of
shoes and a jacket that would be placed in a backpack along with the gun and some extra
bullets. Pollard saw a backpack containing loose bullets and shoes in Blackwell’s
bedroom. Blackwell wiped off a gun, wrapped it in a T-shirt, and placed it in the
backpack, which Blackwell said he was going to bury.
       Sometime later, Blackwell told Pollard he was concerned too many people knew
the gun was in the bag and where it was buried. He drove her into the Santa Rosa hills
and asked her whether he should move it. She told him it might not be a good idea
because they had been stopped by the police a number of times in the car they were
driving.
       On a visit to Bryan Fishtrom’s house in March or April 2007, Blackwell was
carrying a dirty bandana that contained a rusty semiautomatic handgun, bullets, and a lot
of mud. The bullets were different colors and some had hollow tips.
       In March 2007, Gray was picked up on a parole violation and told the police what
he knew about Blackwell’s involvement in Carreno’s murder. In April 2007, after he was
released, Gray saw Blackwell and his brother, Gary, at Fishtrom’s house. Blackwell and
his brother asked Gray how he had gotten out of jail, and Blackwell suggested that they
go for a ride together. Gray declined.


                                             4
       In May 2007, Blackwell’s brother, Colby, directed police officers to a 50-gallon
drum in a rural area. Colby moved the drum, revealing a hole in the ground that
contained wet clothing, shoes, pieces of a rifle-cleaning kit, five rounds of nine-
millimeter ammunition, and rifle grease. A T-shirt had rust stains and bore the imprint of
a gun consistent with a Beretta nine-millimeter handgun.
       Blackwell was interviewed by the police and initially denied knowing anything
about Carreno’s murder. Later, he said he and Kellum went to a house to “burn a guy for
drugs,” and Kellum kicked open the door and shot the person inside several times.
Blackwell told officers he knew Kellum had a handgun before they went, his brother
Colby buried some of the evidence, and he (Blackwell) sold the gun Kellum used in
Santa Rosa.
       Blackwell and Kellum were charged with first degree murder with felony-murder
special circumstances (murder in the commission of an attempted robbery and a burglary
or attempted burglary), burglary of an inhabited dwelling house, and attempted robbery in
an inhabited dwelling house.4 The information further alleged Blackwell personally used
and intentionally discharged a firearm. (§§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (G),
211, 459, 664, 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b)–(d).)
Although Blackwell was 17 years old at the time of the killing, the district attorney
elected to directly file the case in adult court pursuant to Welfare and Institutions Code
section 707, subdivision (d).
       Based on the foregoing evidence, a jury convicted Blackwell of first degree
murder with felony-murder special circumstances (murder in the commission of an
attempted robbery and a burglary or attempted burglary), burglary of an inhabited
dwelling house, and attempted robbery of an inhabited dwelling house. The jury rejected
allegations Blackwell had personally used and/or intentionally discharged a firearm in the
commission of these offenses, causing death or great bodily injury.



       4   Kellum pleaded guilty to second degree murder before the jury was sworn.


                                              5
       After the jury returned its verdict, Blackwell’s trial counsel filed a sentencing
memorandum arguing that, under Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi), the court could not impose an “adult” sentence without a jury finding
regarding Blackwell’s age at the time of the offenses. The court rejected this argument
and imposed an LWOP term on the murder count. The trial court acknowledged its
discretion to impose a lesser term of 25 years to life because Blackwell was under
18 when he committed the murder (see § 190.5, subd. (b); hereafter section 190.5(b)),5
but declined to exercise that discretion in light of Blackwell’s juvenile court history and
the “heinous” nature of the current offenses.
       After remand in his prior appeal, Blackwell’s counsel submitted a resentencing
brief, arguing for a sentence of 25 years to life based on Blackwell’s drug use, his
purported lack of a violent criminal history, and the assertion that Blackwell was “not the
shooter.” The trial court also considered a supplemental presentencing report, in which
the probation officer wrote: “[Blackwell] was approximately six months from the age of
majority when the murder was committed. He was under the auspices of the Juvenile
Court for approximately four years prior to the instant offense being committed, during
which he spent a considerable amount of time away from his family while in placement
and Juvenile Hall. We note his performance while a ward was completely unsatisfactory,
and he was released from Juvenile Hall less than a month before the commission of the
murder. While it is not definitively known who actually shot the victim, by at least one
account [Blackwell] reportedly admitted he was the shooter and that Blackwell,
[Kellum], and two other individuals attempted to go back to the scene of the murder to
clean the area of fingerprints, but were dissuaded by the appearance of police and
emergency personnel, who [had] already arrived. At no time during the trial . . . did it


       5  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 . . . has been
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.”


                                                6
appear [Blackwell] was coerced or manipulated by [Kellum] during the commission of
the crimes. In fact, it appears it was [Blackwell] who secured the ride over to the
victim’s residence on the day of the murder. [Blackwell’s] juvenile history is replete
with offenses, including stealing semi-automatic handguns from his parents, possessing a
knife on his person, and attacking another juvenile hall resident. [¶] . . . This officer
believes, as the Miller Court described, that [Blackwell] is a ‘rare juvenile offender
whose crime reflects irreparable corruption’ and, given the totality of factors present, has
rightfully earned a lifetime in custody.”
       Over defense objection, the trial court also considered Blackwell’s records from
the California Department of Corrections and Rehabilitation (CDCR). The CDCR
records were summarized in an additional presentencing report.6 “[T]here was little in-
depth information regarding overall performance outside the scope of his mental/physical
health issues. However, in an evaluation memo dated 02/26/14, records indicate
[Blackwell], at the time, was facing a ‘115 disciplinary process’ regarding an incident at
Kern Valley State Prison for allegations of ‘Conspiracy to Commit Murder.’ It is
unknown what the outcome of this 115 was. Nevertheless, the same memo outlined the
fact [Blackwell] had ‘been [previously] found guilty of 4 RVR’s [(rules violation
reports)] for Fighting, 1 RVR for Battery on an Inmate, and 1 RVR for Participation in a
Riot.’ It appears that over the years [Blackwell] was sent to the emergency room for
treatment on at least two occasions for fighting or being assaulted. The 2014 memo
noted his mental health was considered stable for the most part, with ‘no indication of
severe mental illness, danger to self, or grave disability’ at the time of the assessment. . . .
Notes further indicate by August 2014 [Blackwell] had distanced himself from the prison




       6 Although neither Blackwell’s CDCR records, nor the probation department’s
supplemental presentencing reports initially appeared in the record before us, we have
augmented the record to include the supplemental probation reports. There appears to be
no dispute the probation report accurately summarizes the content of Blackwell’s CDCR
records.


                                               7
gang ‘2-5ers.’ We note that according to current custody information, [Blackwell] has
several tattoos, including ‘187’ in fangs on his chest.”
       On February 24, 2015, at the conclusion of a resentencing hearing, the trial court
resentenced Blackwell to an LWOP term on the murder count. The trial court concluded
“the sentence initially imposed was appropriate based on the factors existing at the time
of the initial sentencing and is still the appropriate sentence after consideration of
[Blackwell]’s performance as a prisoner at [CDCR]. The record before the court
indicates that [Blackwell] is a ‘rare juvenile offender whose crime reflects irreparable
corruption’ Miller, supra.” The court explained:
       “a. Age: [Blackwell] was 17 years and six months of age at the time of
committing the murder. There is no evidence that [Blackwell] was particularly immature,
impetuous, or failed to appreciate the risks and consequences of his act.
       “b. Environmental vulnerabilities: There is no evidence of childhood abuse or
neglect. Blackwell committed his first felony, theft of firearms, at the age of 13 and
spent considerable periods outside the family home, in the custody of the Juvenile Court
during the remainder of his childhood. There is no evidence that Blackwell’s educational
opportunities were limited, but the [CDCR] records indicate that he did not take full
advantage of the opportunities that were offered to him. There is no evidence of
susceptibility to psychological damage or emotional disturbance.
       “c. Circumstances of the offense: The evidence indicates that Blackwell fully
participated in the planning, execution and attempted cover-up of the crime, the brutal
execution of the victim, who was lying in his own bed. There is no indication of familial
or peer pressure. There is some evidence that Blackwell was using methamphetamine
around the time of the crime, but no evidence of intoxication during the commission of
the crime. At trial, the jury verdict found not true the allegation that Blackwell used a
gun. However, before trial, Blackwell admitted to his girlfriend . . . that he shot the
victim with his 9 mm gun. At trial, Ms. Pollard testified credibly to this fact.
       “d. Possible lesser charges: The record contains no indication that a lesser
offense should have been charged.


                                              8
       “e. Possibility of rehabilitation: The court has reviewed Blackwell’s [CDCR]
records to determine whether there is an indication of a possibility of rehabilitation.
These records do not show any attempts by [Blackwell] to rehabilitate himself. In fact,
the records show a history of violent assaults involving [Blackwell], some of which he
was not the primary aggressor, and some of which he was found to have initiated,
including incidents in April of 2012 and July and December of 2013. In January of 2014,
[Blackwell] was found in possession of a razor which had been embedded in a toothbrush
and which was possibly involved in a conspiracy to commit murder on another inmate.
In addition, the records indicate that at some time during his incarceration he participated
in a criminal prison gang, although he later attempted to separate himself from that gang.
[Blackwell’s] attorney argues strenuously that a lack of rehabilitation cannot be inferred
from his prison records because as a life prisoner he is not afforded rehabilitative
opportunities afforded to other prisoners. While this may be true, the record does not
indicate any effort by [Blackwell] to reject a life of violence.”
       The trial court also considered the following section 190.3 factors:7


       7  Section 190.3 provides in relevant part: “If the defendant has been found guilty
of murder in the first degree, and a special circumstance has been charged and found to
be true . . . the trier of fact shall determine whether the penalty shall be death or [LWOP].
In the proceedings on the question of penalty, evidence may be presented by both the
people and the defendant as to any matter relevant to aggravation, mitigation, and
sentence including, but not limited to, the nature and circumstances of the present
offense, any prior felony conviction or convictions whether or not such conviction or
convictions involved a crime of violence, the presence or absence of other criminal
activity by the defendant which involved the use or attempted use of force or violence or
which involved the express or implied threat to use force or violence, and the defendant’s
character, background, history, mental condition and physical condition. [¶] . . . [¶] In
determining the penalty, the trier of fact shall take into account any of the following
factors if relevant: [¶] (a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any special circumstances found
to be true pursuant to Section 190.1. [¶] (b) The presence or absence of criminal activity
by the defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence. [¶] (c) The presence or absence of any
prior felony conviction. [¶] (d) Whether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional disturbance. [¶] (e)

                                              9
         “A. Circumstances of crime: This was a cold-blooded murder committed in the
course of a residential burglary. The murder was planned by [Blackwell] and his
accomplice. They also planned and attempted to execute a failed cleanup of the crime
scene.
         “B. Prior criminal activities, use of force: In 2002 Blackwell stole firearms. In
2004 Blackwell escaped from Hannah Boys Center and was found in possession of
knives. In 2005 Blackwell threatened his girlfriend while in possession of a knife and
instigated fights at his girlfriend’s school. In 2006 Blackwell attacked a rival gang
member in the Juvenile Hall.
         “C. Felony convictions: Blackwell suffered juvenile adjudications based on theft
of guns and possession of methamphetamine.
         “D. Offense committed under influence of extreme emotional or mental
disturbance: There is no evidence of either extreme emotional or mental disturbance.
         “E. The victim participated in the homicide. The victim was in his own home
lying on his bed at the time that he was brutally murdered.
         “F. Reasonable belief in moral justification: There is no evidence that
[Blackwell] believed in a moral justification for his acts.




Whether or not the victim was a participant in the defendant’s homicidal conduct or
consented to the homicidal act. [¶] (f) Whether or not the offense was committed under
circumstances which the defendant reasonably believed to be a moral justification or
extenuation for his conduct. [¶] (g) Whether or not defendant acted under extreme duress
or under the substantial domination of another person. [¶] (h) Whether or not at the time
of the offense the capacity of the defendant to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law was impaired as a result of mental
disease or defect, or the affects of intoxication. [¶] (i) The age of the defendant at the time
of the crime. [¶] (j) Whether or not the defendant was an accomplice to the offense and
his participation in the commission of the offense was relatively minor. [¶] (k) Any other
circumstance which extenuates the gravity of the crime even though it is not a legal
excuse for the crime.”


                                              10
       “G. Extreme duress: [Blackwell] was an active participant in the murder,
furnished the murder weapon, and organized the cleanup attempt. He was not under
duress.
       “H. Mental disease or defect or intoxication impairing capacity to appreciate
criminality: There is no evidence that [Blackwell] suffered from a disease or defect.
There is evidence that he has achieved only a low level of education. It is possible
[Blackwell] was under the influence of methamphetamine but there is no evidence that
his ability to appreciate the criminality of what he did was impaired.
       “I. Age: [Blackwell] was within six months of becoming an adult.
       “J. Accomplice with minor participation: [Blackwell] was an active participant.
He organized the murder, arranged for a ride to the crime scene, and broke into the
bedroom of the victim.
       “K. Circumstances extenuating gravity: There are no such circumstances.”
       The trial court also considered the following factors in aggravation:
       “A1. Crime of great cruelty viciousness and callousness. [Blackwell] broke into
the bedroom of a victim lying on his bed and participated in the execution of the victim;
       “A3. Vulnerability of the victim. The victim was at home lying in bed at the time
that he was executed.
       “A4. Inducement of others to participate. [Blackwell] planned the crime and
obtained a ride to the scene both to commit the murder and an aborted attempt to clean up
the scene afterward. [Blackwell] also furnished the gun which was the murder weapon.
       “A8. Planning and sophistication. This was not a crime of passion, but a well-
planned residential burglary. The execution was planned in advance of the entry into the
bedroom.
       “B1. Violent conduct. [Blackwell] exhibits an escalating level of violence as a
juvenile culminating in the execution style murder for which he was convicted.
       “B5. Performance on probation. While a ward of the court as a juvenile,
[Blackwell] escaped twice, committed new offenses, and was found in possession of
weapons.”


                                            11
       The trial court determined, “[t]here are no applicable factors in mitigation.” It
explained: “A1. [Blackwell] was an active rather than passive participant in the crime.
[¶] A2. The victim did not initiate or willingly participate in the crime. [¶] A3. There
were no unusual circumstances such as great provocation to make it unlikely that the
crime would occur. [¶] A4. No coercion or duress has been shown. [¶] A5. [Blackwell]
was not induced by others and did show a predisposition to commit the offense. [¶]
A6. [Blackwell] did not exercise caution to avoid harm. [¶] A7. There is no claim of right
shown. [¶] A8. The crime was not committed to provide for the necessities of life. [¶]
A9. [Blackwell] was not abused by the victim. [¶] B1. [Blackwell] has a substantial prior
record. [¶] B2. [Blackwell] has not demonstrated a mental condition which reduces his
culpability. [¶] B3. [Blackwell] did not acknowledge culpability at an early stage. [¶]
B4. Probation is precluded in this case. [¶] B5. Restitution is not an issue. [¶] B6. There is
no evidence that [Blackwell] could perform satisfactorily when under the jurisdiction of
the juvenile court. To the contrary, he escaped a number of times, committed crimes,
was found in possession of weapons, and created disruption at the Juvenile Hall by
engaging in gang violence and by taunting rival gang members.” Blackwell filed a
timely notice of appeal.
                                     II.    DISCUSSION
       Blackwell argues his LWOP sentence must be reversed for the following reasons:
(1) the sentence violates his Sixth Amendment rights under Apprendi, supra, 530 U.S.
466 because it exceeds the punishment allowable absent a jury finding of irreparable
corruption; (2) his sentence amounts to cruel and unusual punishment under the Eighth
Amendment, as construed in Graham v. Florida (2010) 560 U.S. 48 (Graham), because
he did not personally kill or intend to kill Carreno; (3) the trial court violated both Miller,
supra, 132 S.Ct. 2455 and Ring v. Arizona (2002) 536 U.S. 584 (Ring) in “elevating” his
punishment to LWOP in reliance on a finding in conflict with the jury’s implicit findings;
(4) the trial court abused its discretion; and (5) the trial court violated Graham in
considering his CDCR records from the time period after his original sentencing.
Blackwell’s arguments are without merit as they are premised on fundamental


                                              12
misconceptions about the application of Miller, Graham, section 190.5(b), as well as
Apprendi and its progeny.
A.     Legal Framework
       The primary question presented by Blackwell’s appeal is one of first impression in
California. Who determines the sentence in a case involving the potential for imposition
of LWOP against a juvenile offender tried as an adult and convicted of first degree
murder with special circumstances—the court or a jury? Blackwell argues that the
Eighth Amendment limits on juvenile sentencing established in Miller and Graham
trigger a Sixth Amendment right to jury findings before a juvenile offender convicted of
homicide can be sentenced to LWOP. Our review leads us to a different conclusion. As
the question involves the intersection of the Sixth and Eighth Amendments to the federal
Constitution, we begin by summarizing the relevant precedent from the United States
Supreme Court.
       The Sixth Amendment provides: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury . . . .” “The Federal
Constitution’s jury-trial guarantee assigns the determination of certain facts to the jury’s
exclusive province.” (Oregon v. Ice (2009) 555 U.S. 160, 167.) “This right, in
conjunction with the Due Process Clause, requires that each element of a crime be proved
to a jury beyond a reasonable doubt.” (Hurst v. Florida (2016) 577 U.S. ___, ___
[136 S.Ct. 616, 621].) In Apprendi, the United States Supreme Court held: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490, italics added.) In Blakely v.
Washington (2004) 542 U.S. 296 (Blakely), the high court further defined “statutory
maximum” as the “maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.)
       The United States Supreme Court has since applied “Apprendi’s rule to facts
subjecting a defendant to the death penalty, [(Ring, supra, 536 U.S. at pp. 602, 609)],
facts allowing a sentence exceeding the ‘standard’ range in Washington’s sentencing


                                             13
system, [(Blakely, supra, 542 U.S., at pp. 304–305)], and facts prompting an elevated
sentence under then-mandatory Federal Sentencing Guidelines, [(United States v. Booker
(2005) 543 U.S. 220, 244)].” (Oregon v. Ice, supra, 555 U.S. at p. 167.) And in
Cunningham v. California (2007) 549 U.S. 270 (Cunningham), the high court held
California’s then operative determinate sentencing law (DSL) violated the Sixth
Amendment by “allow[ing] a judge to impose a sentence above the statutory maximum
based on a fact, other than a prior conviction, not found by a jury or admitted by the
defendant.” (Cunningham, at p. 275.)8
       “The high court’s decision in [Oregon v. Ice,] supra, 555 U.S. 160, refined and
circumscribed the scope of the rule of Apprendi and its progeny in significant ways.”
(People v. Mosley (2015) 60 Cal.4th 1044, 1057.) In concluding that the decision to
impose consecutive sentences is not subject to Apprendi, the Oregon v. Ice court
observed: “The [Apprendi] rule’s animating principle is the preservation of the jury’s
historic role as a bulwark between the State and the accused at the trial for an alleged
offense. [Citation.] Guided by that principle, our opinions make clear that the Sixth
Amendment does not countenance legislative encroachment on the jury’s traditional
domain.” (Oregon v. Ice, at p. 168.) But the Supreme Court also emphasized that
Apprendi does not extend “beyond the offense-specific context that supplied the historic
grounding for the decisions.” (Oregon v. Ice, at p. 163.)
       The Eighth Amendment provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” This provision



       8 Following Cunningham, supra, 549 U.S. 270, our Legislature reformed the DSL
and eliminated its provision that the middle term is the default term in the absence of
aggravating or mitigating factors. (People v. Sandoval (2007) 41 Cal.4th 825, 850;
former § 1170, subd. (b), as amended by Stats. 2007, ch. 3, § 2, p. 5 [“[w]hen a judgment
of imprisonment is to be imposed and the statute specifies three possible terms, the
choice of the appropriate term shall rest within the sound discretion of the court” (italics
added)].) The DSL was also amended to eliminate the prior requirement that the court
state “facts” in support of its decision to impose an upper or lower term. (Compare Stats.
2007, ch. 3, § 2, p. 5 with Stats. 2004, ch. 747, § 1, p. 5807.)


                                             14
“guarantees individuals the right not to be subjected to excessive sanctions” and “flows
from the basic ‘ “precept of justice that punishment for crime should be graduated and
proportioned” ’ ” to both the offense and the offender. (Roper v. Simmons (2005)
543 U.S. 551, 560 (Roper).) “The concept of proportionality is central to the Eighth
Amendment.” (Graham, supra, 560 U.S. at p. 59.) Cases addressing the proportionality
of sentences have fallen into two general classifications: challenges to the length of a
term-of-years sentence as disproportionate in a particular case, and categorical challenges
to the type of sentence imposed in certain types of cases, against a certain type of
defendant. (Ibid.)
       Particularly relevant here, the Eighth Amendment prohibition “encompasses the
‘foundational principle’ that the ‘imposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children.’ (Miller, supra, [132 S.Ct. at
p. 2466].) From this principle, the high court has derived a number of limitations on
juvenile sentencing: (1) no individual may be executed for an offense committed when
he or she was a juvenile (Roper, supra, 543 U.S. at p. 578); (2) no juvenile who commits
a nonhomicide offense may be sentenced to LWOP (Graham, supra, 560 U.S. at p. 74);
and (3) no juvenile who commits a homicide offense may be automatically sentenced to
LWOP ([Miller, at p. 2460]).” (People v. Franklin (2016) 63 Cal.4th 261, 273–274.)
       “As to homicide offenses, the United States Supreme Court has held that a state
may not impose a mandatory LWOP sentence on a juvenile offender, although the
sentencing court might impose such a sentence if it has adequately considered the
offender’s age and environment and found ‘ “irreparable corruption.” ’ (Miller[, supra,
132 S.Ct. at pp. 2468–2469] [noting LWOP sentence for a juvenile offender would be
‘uncommon’ and imposed against the ‘ “rare juvenile offender whose crime reflects
irreparable corruption” ’] . . . .)” (People v. Lewis (2013) 222 Cal.App.4th 108, 118.)
Building on its categorical precedents in Roper, supra, 543 U.S. 551 and Graham, supra,
560 U.S. 48, the Miller court explained, “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without the possibility of parole for juvenile
offenders. [Citation.] By making youth (and all that accompanies it) irrelevant to


                                             15
imposition of that harshest prison sentence, such a scheme poses too great a risk of
disproportionate punishment.” (Miller, at p. 2469.)
       The Miller court discussed the reasons that juveniles are “constitutionally
different” from adults for sentencing purposes, including their lack of maturity and
underdeveloped sense of responsibility, their vulnerability to outside pressure and
negative influences, their limited control over their own environment and their inability
to extricate themselves from crime-producing settings, and their greater ability to change
due to their possession of a character not as “ ‘well formed’ ” as that of an adult. (Miller,
supra, 132 S.Ct. at p. 2464.) The court further observed that scientific studies show
“ ‘ “[o]nly a relatively small proportion of adolescents” ’ who engage in illegal activity
‘ “develop entrenched patterns of problem behavior.” ’ ” (Ibid.) These characteristics
were deemed “at odds” with the defining features of LWOP, which “ ‘forswears
altogether the rehabilitative ideal’ ” and “reflects ‘an irrevocable judgment about [an
offender’s] value and place in society . . . .’ ” (Id. at p. 2465.) Thus, mandatory LWOP
for a juvenile “disregards the possibility of rehabilitation even when the circumstances
most suggest it.” (Id. at p. 2468.) However, in prohibiting mandatory LWOP sentences,
Miller made clear that it was not establishing a categorical prohibition on LWOP
sentences for juvenile offenders convicted of homicide, but requiring individualized
sentencing for such offenses. (Id. at pp. 2466, fn. 6, 2469.)
B.     Is a Jury Finding of Irreparable Corruption Required Under Apprendi?
       Blackwell’s primary premise on appeal is that “the categorical Eighth Amendment
limits” established in Miller and Graham trigger a Sixth Amendment right to jury
findings before a juvenile offender convicted of homicide can be sentenced to LWOP.
According to Blackwell, absent a jury finding of irreparable corruption, a sentence of 25-
years-to-life is the “statutory maximum” a juvenile offender convicted of homicide can
receive under section 190.5(b), and/or Miller. Thus, the trial court’s imposition of an
LWOP term violated his Sixth Amendment right to a jury trial because a judge, rather
than a jury, made a “finding” he was irreparably corrupt. Blackwell’s first premise is
flawed.


                                             16
       Miller does not address the issue of who should decide whether a juvenile offender
receives an LWOP sentence. The court simply states: “Graham, Roper, and our
individualized sentencing decisions make clear that a judge or jury must have the
opportunity to consider mitigating circumstances before imposing the harshest possible
penalty for juveniles.” (Miller, supra, 132 S.Ct. at p. 2475, italics added.) Instead,
Blackwell reasons that a jury must determine the sentence because section 190.5(b)
and/or Miller create a new “statutory maximum” sentence of 25 years to life for juvenile
offenders convicted of special circumstance murder. We first address California’s
statutory scheme, an area in which we do not write on a blank slate.
       Miller involved two 14-year-old offenders who were tried as adults, convicted of
murder, and sentenced to LWOP terms under state laws that gave the sentencing court no
discretion to impose a lesser sentence. (Miller, supra, 132 S.Ct. at pp. 2460–2463, 2468.)
Section 190.5(b) differs from the mandatory schemes found unconstitutional in Miller,
because it has long afforded courts discretion to impose a term that affords the possibility
of parole. After Miller, our Supreme Court has construed this discretion as involving no
presumption in favor of LWOP for defendants who were tried as adults but were 16 or 17
when they committed first degree murder with a special circumstance. (Gutierrez, supra,
58 Cal.4th at p. 1360; People v. Palafox (2014) 231 Cal.App.4th 68, 89.)
       In Gutierrez, our Supreme Court considered LWOP sentences imposed against
two 17-year-olds who, like Blackwell, had been convicted of first-degree murder with
special circumstances. (Gutierrez, supra, 58 Cal.4th at p. 1360.) The high court first
observed that “[f]or two decades, the Courts of Appeal have uniformly interpreted
section 190.5(b) as establishing a presumption in favor of [LWOP] for juvenile offenders
who were 16 years of age or older when they committed special circumstance murder.”
(Gutierrez, at p. 1369.) In order to render section 190.5(b) “ ‘ “free from doubt as to its
constitutionality” ’ ” (Gutierrez, at p. 1387), the court disapproved that presumption and
construed section 190.5(b), as “confer[ring] discretion on a trial court to sentence a 16- or
17-year-old juvenile convicted of special circumstance murder to [LWOP] or to 25 years
to life, with no presumption in favor of [LWOP]” (Gutierrez, at p. 1360, italics added).


                                             17
(See id. at pp. 1379–1380.) So construed, section 190.5(b) does not violate the Eighth
Amendment “[b]ecause the sentencing regime created by section 190.5(b) authorizes and
indeed requires consideration of the distinctive attributes of youth highlighted in
Miller. . . .” (Gutierrez, at p. 1361; id. at p. 1387.)
       The Gutierrez court did not address the Apprendi issue Blackwell raises.
Gutierrez merely stated that “a sentencing court” considering LWOP or a 25-years-to-life
term for a juvenile offender must consider the aggravating and mitigating factors
enumerated in section 190.3 and the California Rules of Court, as well as the offender’s
chronological age and its hallmark features, any information regarding the juvenile’s
family and home environment, all information available regarding the circumstances of
the homicide offense, including the extent of the juvenile’s participation and the
existence of any familial or peer pressure, any information as to whether the juvenile
might have been charged and convicted of a lesser offense if not for the incompetencies
of youth, and any other information bearing on the possibility of rehabilitation.
(Gutierrez, supra, 58 Cal.4th at pp. 1387–1389.) The court reiterated, “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.’ [Citation.] 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.’ ” (Gutierrez, at p. 1390, italics added.)
       Thus, contrary to Blackwell’s assertion, 25 years to life is not the “statutory
maximum” under section 190.5(b). (Gutierrez, supra, 58 Cal.4th at pp. 1360, 1379–
1380, 1387.) Section 190.5(b) and Gutierrez make clear that judges in California have
discretion to determine the appropriate sentence for a 16 or 17-year-old offender
convicted of first degree murder with special circumstances—LWOP or life with the


                                               18
possibility of parole after 25 years. (Gutierrez, at pp. 1360, 1379–1380, 1387.) Nor did
the Gutierrez court “suggest section 190.5(b) evinces a preference for a sentence of
25 years to life.” (People v. Palafox, supra, 231 Cal.App.4th at p. 91; accord, Gutierrez,
at p. 1379.)
       Thus, we agree with the People that after the jury convicted Blackwell of first
degree murder with special circumstances, LWOP was the maximum statutory sentence
the court could impose. The trial court’s consideration of the Miller/Gutierrez factors
relating to the offense and offender in exercising its discretion to impose sentence within
a prescribed range did not violate Apprendi. (See Alleyne v. United States (2013) 570
U.S. ___, ___ [133 S.Ct. 2151, 2163] [“[w]e have long recognized that broad sentencing
discretion, informed by judicial factfinding, does not violate the Sixth Amendment”];
Cunningham, supra, 549 U.S. at p. 294 [in the wake of Apprendi and Blakely some states
“have chosen to permit judges genuinely ‘to exercise broad discretion . . . within a
statutory range,’ which, ‘everyone agrees,’ encounters no Sixth Amendment shoal” (fn.
omitted)]; Apprendi, supra, 530 U.S. at p. 481 [“nothing in this history suggests that it is
impermissible for judges to exercise discretion—taking into consideration various factors
relating both to offense and offender—in imposing a judgment within the range
prescribed by statute”]; People v. Sandoval, supra, 41 Cal.4th at pp. 843–844, 852
[reformation of DSL to afford trial court broad discretion to select among three specified
terms cures constitutional defect in statute].)
       Nor does Blackwell’s reliance on Ring, supra, 536 U.S. 584 persuade us to reach a
different conclusion. In Ring, the United States Supreme Court held the Sixth
Amendment requires a jury, not a judge, to make the determination of any aggravating
factor that makes a defendant eligible for imposition of the death penalty. (Ring, at
p. 609.) However, Ring has had limited impact on California’s death penalty scheme.
(People v. Prieto (2003) 30 Cal.4th 226, 263.)
       “[A] state capital sentencing system must: (1) rationally narrow the class of death-
eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing
determination based on a death-eligible defendant’s record, personal characteristics, and


                                              19
the circumstances of his crime.” (Kansas v. Marsh (2006) 548 U.S. 163, 173–174.) In
holding that a jury must find beyond a reasonable doubt any fact that makes a defendant
eligible for imposition of the death penalty, Ring involved the first Kansas v. Marsh
requirement.9 (Ring, supra, 536 U.S. at p. 609.) Yet, “[t]he federal Constitution does not
require the jury to find beyond a reasonable doubt that the prosecution proved each
aggravating factor, that the circumstances in aggravation outweigh those in mitigation, or
that death is the appropriate penalty.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79.)
       “ ‘[U]nder the California death penalty scheme, once the defendant has been
convicted of first degree murder and one or more special circumstances has been found
true beyond a reasonable doubt, death is no more than the prescribed statutory maximum
for the offense; the only alternative is life imprisonment without the possibility of parole.’
[Citation.] Thus, in the penalty phase, the jury merely weighs the factors enumerated in
section 190.3 and determines ‘whether a defendant eligible for the death penalty should
in fact receive that sentence.’ (Tuilaepa v. California (1994) 512 U.S. 967, 972.) No
single factor therefore determines which penalty—death or [LWOP]—is appropriate. [¶]
[T]he penalty phase determination ‘is inherently moral and normative, not factual . . . .’


       9  Ring involved Arizona’s first-degree murder statute, which “ ‘authorizes a
maximum penalty of death only in a formal sense,’ [citation], for it explicitly cross-
references the statutory provision requiring the finding of an aggravating circumstance
before imposition of the death penalty.” (Ring, supra, 536 U.S. at p. 604; id. at p. 597.)
Thus, “ ‘[a] defendant convicted of first-degree murder in Arizona cannot receive a death
sentence unless a judge makes the factual determination that a statutory aggravating
factor exists. Without that critical finding, the maximum sentence to which the defendant
is exposed is life imprisonment, and not the death penalty.’ ” (Id. at p. 596.) “Because
Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an
element of a greater offense,’ ” the court held that “the Sixth Amendment requires that
they be found by a jury.” (Id. at p. 609.)
        The high court has frequently used the terms “ ‘aggravating circumstance’ ” or
“ ‘aggravating factor’ to refer to those statutory factors which determine death
eligibility . . . . This terminology becomes confusing when, as in [California], a State
employs the term ‘aggravating circumstance’ to refer to factors that play a different role,
determining which defendants eligible for the death penalty will actually receive that
penalty.” (Brown v. Sanders (2006) 546 U.S. 212, 216, fn. 2.)


                                             20
[Citation.] Because any finding of aggravating factors during the penalty phase does not
‘increase[] the penalty for a crime beyond the prescribed statutory maximum’ (Apprendi,
supra, 530 U.S. at p. 490), Ring imposes no new constitutional requirements on
California’s penalty phase proceedings.” (People v. Prieto, supra, 30 Cal.4th at p. 263,
italics added; accord, People v. Prince (2007) 40 Cal.4th 1179, 1297–1298; People v.
Manriquez (2005) 37 Cal.4th 547, 589.)
       Sections 190.2 and 190.5(b), similarly require a special circumstance finding
before a 16 or 17-year-old convicted of first degree murder is eligible for an LWOP
term.10 Once such a juvenile offender has been convicted of first degree murder and one
or more special circumstances has been found true beyond a reasonable doubt, the
sentencing court need not find any particular fact before imposing LWOP. The “statutory
maximum” for Apprendi purposes was determined when the jury returned its guilty
verdict on the charge of first degree murder with special circumstances. (§ 190.5(b);
Gutierrez, supra, 58 Cal.4th at pp. 1360, 1379–1380, 1387.) No additional fact finding
by the judge was required to impose an LWOP sentence.
       The only cited authority supporting Blackwell’s argument is People v. Skinner
(2015) 312 Mich.Ct.App. 15 (Skinner), in which a divided panel of the Michigan Court of
Appeals held “the Sixth Amendment mandates that juveniles convicted of homicide who
face the possibility of a sentence of [LWOP] have a right to have their sentences
determined by a jury.” (Id. at p. 20.)
       In Skinner, the juvenile defendant was convicted of first-degree premeditated
murder, attempted murder, and conspiracy to commit murder. In a proceeding under
their applicable sentencing statute (Mich. Comp. Laws, § 769.25),11 the defendant was



       10 By accepting Blackwell’s analogy to the death penalty, we do not mean to
suggest that death is not “ ‘qualitatively different from all other punishments.’ ” (People
v. Jones (2012) 54 Cal.4th 1, 81.) We reject Blackwell’s unsupported attempt to import
wholesale the high court’s adult death penalty jurisprudence.
       11
        In response to Miller, the Michigan Legislature enacted Michigan Compiled
Laws section 769.25 to permit the prosecutor to move for imposition of an LWOP

                                            21
sentenced to LWOP for the first-degree murder conviction. (Skinner, supra,
312 Mich.Ct.App. at pp. 21–22.) The defendant argued on appeal that the facts necessary
to impose such a sentence under Miller and the Michigan sentencing statute had to be
found by a jury because such facts exposed her to a penalty greater than otherwise
authorized by the jury’s verdict. (Skinner, at pp. 22, 32.) Relying on Apprendi, supra,
530 U.S. 466 and its progeny, the Skinner court agreed. The court relied on the
sentencing statute, which provided that absent a prosecutor’s motion, “ ‘the court shall
sentence the defendant to a term of years.’ ” (Skinner, at p. 43.) Thus, “[i]n order to
enhance a juvenile’s default sentence to [LWOP], absent a waiver, a jury must make
findings on the Miller factors as codified [in the statute] to determine beyond a
reasonable doubt whether the juvenile’s crime reflects irreparable corruption.” (Id. at pp.
58–59, italics added.)
       Skinner is distinguishable because the Michigan statute, unlike our own,
established a default term-of-years sentence and “the Miller factors are used to seek
enhancement of defendant’s punishment.” (Skinner, supra, 312 Mich.Ct.App. at p. 52;
id. at p. 43.) Our Supreme Court, on the other hand, has explicitly construed
section 190.5(b) to provide discretion to the sentencing court to choose either 25 years to
life or LWOP. (Gutierrez, supra, 58 Cal.4th at pp. 1360, 1379–1380, 1387.) LWOP is
the statutory maximum sentence for a 16 or 17-year old convicted of first-degree murder
with special circumstances. (Ibid.; § 190.5(b).)12
       Our statutory analysis does not completely resolve Blackwell’s argument,
however. Blackwell raises an additional argument that, notwithstanding section 190.5(b)


sentence after conviction on an eligible offense. On such a motion, the trial court was
instructed to conduct a hearing to consider the Miller factors, in addition to any other
relevant aggravating and mitigating circumstances specified under the statute. (Skinner,
supra, 312 Mich.Ct.App. at pp. 28–31.)
       12Subsequent authority suggests Skinner is no longer good law in Michigan. (See
People v. Hyatt (2016) ___ Mich.App. ___ [2016 Mich.App.Lexis 1404] [“[n]either
Miller nor [the Michigan sentencing statute] implicates the right to a jury trial under
Apprendi and its progeny”].)

                                            22
and Gutierrez, Miller alone imposes a categorical Eighth Amendment limit that acts as a
ceiling beyond which a juvenile offender convicted of homicide cannot be sentenced,
unless a jury finds beyond a reasonable doubt that he is irreparably corrupt. The People
disagree, contending that Miller is only about the “process for selecting the appropriate
penalty, not about . . . determining who is eligible for a particular penalty.” (Italics
added.) Neither position is entirely accurate.
       The Miller opinion “does not categorically bar a penalty for a class of offenders or
type of crime—as, for example, [the high court] did in Roper or Graham. 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,
132 S.Ct. at p. 2471.) But Miller also cautioned: “[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 . . . 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.” (Id. at p. 2469, italics added & fn. omitted.)
       The United States Supreme Court has since concluded that Miller’s prohibition on
mandatory LWOP for juvenile offenders announced a substantive rule of constitutional
law that must be given retroactive effect. (Montgomery v. Louisiana (2016) 577 U.S.
___, ___ [136 S.Ct. 718, 729, 732] (Montgomery).) In reaching that conclusion, the
Montgomery court said, “Because Miller determined that sentencing a child to [LWOP] is
excessive for all but ‘ “the rare juvenile offender whose crime reflects irreparable
corruption,” ’ [citation], it rendered [LWOP] an unconstitutional penalty for ‘a class of
defendants because of their status’—that is, juvenile offenders whose crimes reflect the
transient immaturity of youth. . . . [¶] . . . Miller is no less substantive than are Roper and


                                              23
Graham. Before Miller, every juvenile convicted of a homicide offense could be
sentenced to [LWOP]. After Miller, it will be the rare juvenile offender who can receive
that same sentence. The only difference between Roper and Graham, on the one hand,
and Miller, on the other hand, is that Miller drew a line between children whose crimes
reflect transient immaturity and those rare children whose crimes reflect irreparable
corruption. The fact that [LWOP] could be a proportionate sentence for the latter kind of
juvenile offender does not mean that all other children imprisoned under a
disproportionate sentence have not suffered the deprivation of a substantive right.”
(Montgomery, at p. 734.)
       Montgomery is inconsistent with the People’s position that Miller is entirely
procedural, but it is not determinative of Blackwell’s Sixth Amendment argument. The
Montgomery court recognized Miller has “a procedural component” and also confirmed
Miller does not require a finding of fact regarding a child’s incorrigibility or irrevocable
corruption. (Montgomery, supra, 136 S.Ct. at pp. 734–735 [“Miller did not impose a
formal factfinding requirement”]; see State v. Fletcher (La.Ct.App. 2014) 149 So.3d 934,
943.) Rather, to comply with Miller’s procedural component, “[a] hearing where ‘youth
and its attendant characteristics’ are considered as sentencing factors is necessary to
separate those juveniles who may be sentenced to [LWOP] from those who may not.
[Citation.] The hearing does not replace but rather gives effect to Miller’s substantive
holding that [LWOP] is an excessive sentence for children whose crimes reflect transient
immaturity.” (Montgomery, at p. 735.) As the People put it, “irreparable corruption” is
not a factual finding, but merely “encapsulates the [absence] of youth-based mitigation.”
       This brings us to another reason Blackwell’s Apprendi argument is unpersuasive.
Blackwell urges us to apply Apprendi beyond situations where the facts authorizing a
particular sentence are specified by the Legislature in statutes. (See Apprendi, supra,
530 U.S. at p. 490 [“[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt” (italics added)]; Russell, Eighth Amendment
Limits and Sixth Amendment Rights (2015) 56 B.C. L.Rev. 553, 577.) In Blackwell’s


                                             24
view, nothing bars the extension of the Apprendi principle to not only statutorily
prescribed facts, but also to facts with constitutional origins. (See In re Coley (2012) 55
Cal.4th 524, 565 (conc. opn. of Liu, J.) [observing that the aggravating factors in Ring
were statutorily specified, but only “because the high court’s Eighth Amendment
jurisprudence had required legislatures to specify such factors to distinguish death-
eligible crimes”]; Ring, supra, 536 U.S. at p. 606 [“States have constructed elaborate
sentencing procedures in death cases . . . because of constraints we have said the Eighth
Amendment places on capital sentencing”]; United States v. Booker, supra, 543 U.S. at
pp. 237, 244 [distinction between maximum sentences set by statute and those set by
sentencing guidelines “lacks constitutional significance”].) But we know of no authority
directly holding Apprendi applicable to such constitutionally prescribed facts.
       In fact, there is authority to the contrary. In Enmund v. Florida (1982) 458 U.S.
782 (Enmund), the United States Supreme Court concluded that the Eighth Amendment
forbids the imposition of the death penalty on “one . . . who aids and abets a felony in the
course of which a murder is committed by others but who does not himself kill, attempt
to kill, or intend that a killing take place or that lethal force will be employed.” (Id. at
p. 797; see id. at pp. 788, 801.) In Tison v. Arizona (1987) 481 U.S. 137 (Tison), the high
court qualified that ruling, holding “major participation in the felony committed,
combined with reckless indifference to human life, is sufficient to satisfy the Enmund
culpability requirement.” (Id. at p. 158, fn. omitted.)
       In a case decided before Apprendi or Ring, the United States Supreme Court held
the Sixth Amendment does not require Enmund/Tison findings be made by a jury.
(Cabana v. Bullock (1986) 474 U.S. 376, 386 (Cabana), disapproved on other grounds by
Pope v. Illinois (1987) 481 U.S. 497, 503–504, fn. 7.) The court reasoned: “[O]ur ruling
in Enmund does not concern the guilt or innocence of the defendant—it establishes no
new elements of the crime of murder that must be found by the jury. . . . Enmund holds
only that the principles of proportionality embodied in the Eighth Amendment bar
imposition of the death penalty upon a class of persons who may nonetheless be guilty of
the crime of capital murder as defined by state law: that is, the class of murderers who


                                              25
did not themselves kill, attempt to kill, or intend to kill. [¶] The decision whether a
particular punishment—even the death penalty—is appropriate in any given case is not
one that we have ever required to be made by a jury.” (Cabana, at p. 385, fn. omitted.)
Some of the Cabana court’s reasoning is reminiscent of Oregon v. Ice. (Cabana, at
p. 386 [“decision whether a sentence is so disproportionate as to violate the Eighth
Amendment in any particular case, like other questions bearing on whether a criminal
defendant’s constitutional rights have been violated, has long been viewed as one that a
trial judge or an appellate court is fully competent to make”].) Yet other portions of
Cabana’s reasoning appear irreconcilable with Apprendi and Ring. (See Cabana, at
p. 386 [“the rule remains a substantive limitation on sentencing, and like other such limits
it need not be enforced by the jury”]; Ring, supra, 536 U.S. at pp. 589, 598, 609
[disapproving Walton v. Arizona (1990) 497 U.S. 639, which “drew support from
Cabana”].)13
       The high court has never explicitly overruled Cabana’s holding that a judge may
make the Eighth Amendment findings mandated by Enmund and Tison. Because the
Enmund/Tison findings serve to disqualify otherwise death-eligible defendants, and thus
mitigate punishment, we view Cabana’s holding as not inconsistent with Apprendi. (See
People v. Ring (2003) 204 Ariz. 534, 564 [“difference between aggravating
circumstances as substantive elements of a greater offense and the Enmund-Tison
findings as a restraint on capital sentencing dictates our decision that Apprendi/Ring does
not require these findings to be made by the jury” (italics added)]; People v. Retanan
(2007) 154 Cal.App.4th 1219, 1229–1230 [Apprendi and its progeny not implicated by


       13 The defendant’s argument in Ring was “tightly delineated.” (Ring, supra,
536 U.S. at p. 597, fn. 4.) The defendant argued “only that the Sixth Amendment
required jury findings on the aggravating circumstances asserted against him.” (Ibid.)
The defendant made no Sixth Amendment claim that a jury was required to find
mitigating circumstances or make the ultimate determination whether to impose the death
penalty. (Ibid.) Contrary to Blackwell’s repeated suggestion, the Ring case also did not
involve an Apprendi challenge to the trial court’s Enmund/Tison finding that the
defendant was the actual killer. (Id. at pp. 594–595, 597, fn. 4.)


                                              26
consideration of factors that mitigate punishment]; People v. Cleveland (2001)
87 Cal.App.4th 263, 267 [same]; People v. Glasper (2003) 113 Cal.App.4th 1104, 1115
[same].)
        Similarly, Miller does not require irreparable corruption be proved to a jury
beyond a reasonable doubt in order to “aggravate” or “enhance” the sentence for juvenile
offender convicted of homicide. Miller, like Enmund/Tison, avoids disproportionate
punishment by mandating consideration of mitigating circumstances specific to youth.
This is not the same as increasing the punishment authorized by a jury’s verdict based on
a fact not found by the jury. (State v. Fletcher, supra, 149 So.3d at p. 943.)
        Our review of California’s statutory scheme and the relevant Eighth Amendment
jurisprudence leads us to conclude that Miller, Gutierrez, and section 190.5(b), require
only a discretionary consideration of mitigating circumstances so that a sentencer can
reach a moral judgment about an individual juvenile’s irreparable corruption—i.e., a
determination of what sentence is proportionate to a particular offense and offender. We
find no constitutional or statutory requirement that this exercise be accomplished by a
jury.
C.      Does the Eighth Amendment Categorically Prohibit LWOP for Juvenile Offenders
        Who Do Not Kill or Intend to Kill?
        In an attempt to extend Graham, Blackwell also claims that an LWOP sentence is
categorically prohibited under the Eighth Amendment unless a juvenile offender
personally killed or intended to kill. He asserts the jury found he neither killed nor
intended to kill, and his sentence consequently constitutes cruel and unusual punishment.
“Whether a punishment is cruel and/or unusual is a question of law subject to our
independent review, but underlying disputed facts must be viewed in the light most
favorable to the judgment.” (People v. Palafox, supra, 231 Cal.App.4th at p. 82.)
        Graham does provide a categorical limit on punishment—the Eighth Amendment
prohibits LWOP for juvenile offenders who commit nonhomicide offenses. (Graham,
supra, 560 U.S. at pp. 74–75, 82.) In reaching that conclusion, the court applied a two-
step approach appropriate for categorical challenges to punishment as cruel and unusual:


                                             27
“The Court first considers ‘objective indicia of society’s standards, as expressed in
legislative enactments and state practice’ to determine whether there is a national
consensus against the sentencing practice at issue. [Citation.] Next, guided by ‘the
standards elaborated by controlling precedents and by the Court’s own understanding and
interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation],
the Court must determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution.” (Id. at p. 61.)
       The Graham court found that although legislatively prohibited in very few
jurisdictions, an examination of actual sentencing practices revealed a consensus against
the use of LWOP for juveniles committing nonhomicide offenses. (Graham, supra,
560 U.S. at p. 62.) Because “defendants who do not kill, intend to kill, or foresee that life
will be taken are categorically less deserving of the most serious forms of punishment
than are murderers” (id. at p. 69, italics added), and because of the severity of LWOP
sentences applied to juveniles who are, by reason of their immaturity, less culpable when
compared to adults (id. at pp. 68, 69, 74–75), the practice of sentencing minors to LWOP
was deemed unjustifiable under penological theory and unconstitutional in nonhomicide
cases. (Id. at p. 74). The court reasoned: “[W]hen compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability. The age of the offender and the nature of the crime each bear on the
analysis.” (Id. at p. 69, italics added.)
       Recognizing that Graham’s categorical prohibition is limited only to nonhomicide
cases, Blackwell argues that its rationale should also prohibit LWOP for a juvenile
offender convicted of homicide who did not personally kill or intend to kill. According
to Blackwell, the jury’s rejection of the firearm enhancement allegations demonstrates he
was convicted as an aider and abettor on a felony-murder theory and became eligible for
LWOP only because someone else fired a fatal shot.
       Blackwell both mischaracterizes the implications of the jury’s verdict and reads
Graham too expansively. The jury’s rejection of the firearm allegations may simply
reflect “a reasonable doubt in the minds of the jurors that [Blackwell] specifically used a


                                             28
[gun]. It does not show the reverse, that the jury specifically found [that Blackwell] was
an aider and abettor. . . . The jury may merely have believed, and most likely did believe,
that [Blackwell] was guilty of murder as either a personal [gun] user or an aider and
abettor but it may have been uncertain exactly which role [Blackwell] played.” (People
v. Santamaria (1994) 8 Cal.4th 903, 919, italics omitted; see People v. Thompson (2010)
49 Cal.4th 79, 120.)
       In any event, even if we assume Blackwell was convicted as an aider and abettor
under a felony-murder theory, it does not follow that his LWOP sentence is categorically
barred. The only authority supporting Blackwell’s proposed extension of Graham is a
concurring opinion in Miller, signed only by two justices. (See Miller, supra, 132 S.Ct.
at pp. 2475–2477 (conc. opn. of Breyer, J.).) Joined by Justice Sotomayor, Justice Breyer
wrote: “I join the Court’s opinion in full. I add that, if the State continues to seek a
sentence of [LWOP] for Kuntrell Jackson, there will have to be a determination whether
Jackson ‘kill[ed] or intend[ed] to kill’ the robbery victim. [(Graham, supra, 560 U.S. at
p. 69.)] In my view, without such a finding, the Eighth Amendment as interpreted in
Graham forbids sentencing Jackson to such a sentence, regardless of whether its
application is mandatory or discretionary under state law. [¶] In Graham we said that
‘when compared to an adult murderer, a juvenile offender who did not kill or intend to
kill has a twice diminished moral culpability.’ Ibid. . . . And we concluded that, because
of this ‘twice diminished moral culpability,’ the Eighth Amendment forbids the
imposition upon juveniles of a sentence of [LWOP] for nonhomicide cases. [(Graham, at
pp. 69, 74–75.)]” (Id. at p. 2475, italics omitted.) Justice Breyer continued: “Indeed,
even juveniles who meet the Tison standard of ‘reckless disregard’ may not be eligible
for [LWOP]. Rather, Graham dictates a clear rule: The only juveniles who may
constitutionally be sentenced to [LWOP] are those convicted of homicide offenses who
‘kill or intend to kill.’ ” (Id. at p. 2476.)
       But the Miller majority did not adopt Justice Breyer’s suggested categorical rule.
Instead, in illustrating the problem of mandatory LWOP sentences for juvenile offenders
convicted of homicide, it observed that whether a juvenile actually killed, intended to kill,


                                                29
or acted with reckless indifference to human life were circumstances affecting the
juvenile’s culpability for the offense that should be considered in determining
punishment. (Miller, supra, 132 S.Ct. at p. 2468, citing Graham, supra, 560 U.S. at
p. 69.)
          In asking us to announce a categorical bar against LWOP for juvenile felony
murder offenders who did not kill or intend to kill, Blackwell seeks a significant
extension of the high court’s Eighth Amendment jurisprudence. We decline to read
Graham for that broader proposition, especially where Blackwell has not even attempted
to argue there is a national consensus against imposing an LWOP sentence in a case
where a 17-year-old defendant committed a homicide offense that would have rendered
him eligible for the death penalty had he been an adult.14 (§ 190.2.)
D.        Purported Conflict in “Fact Finding”
          In an extension of his initial arguments, Blackwell insists “the jury made a factual
finding [he] was not the shooter” and contends the trial court improperly “elevated” his
punishment to LWOP based on a finding in conflict with the jury’s. In resentencing
Blackwell to LWOP, the trial court made the following observations regarding the
circumstances of the offense: “The evidence indicates that Blackwell fully participated in
the planning, execution and attempted cover-up of the crime, the brutal execution of the
victim, who was lying in his own bed. There is no indication of familial or peer pressure.
There is some evidence that Blackwell was using methamphetamine around the time of
the crime, but no evidence of intoxication during the commission of the crime. At trial,
the jury verdict found not true the allegation that Blackwell used a gun. However, before
trial, Blackwell admitted to his girlfriend . . . that he shot the victim with his 9 mm gun.
At trial, Ms. Pollard testified credibly to this fact.”


          14
          The jury could not have found the robbery-murder special circumstance to be
true unless it determined that Blackwell, if not the actual killer, either intended to kill or
was a major participant in the underlying felony and acted with reckless indifference to
human life. (§ 190.2, subd. (d); People v. Estrada (1995) 11 Cal.4th 568, 575; see Tison,
supra, 481 U.S. at p. 158.)


                                               30
       Blackwell insists the trial court violated both the Sixth and Eighth Amendments by
“basing [the] choice of LWOP primarily on [the judge’s] own belief that [Blackwell] was
the actual killer, despite the jurors’ acquittal on the allegations of personal use and
intentional discharge of a firearm.” Blackwell maintains that “[b]ecause 12 jurors found
[he] was not the actual killer,” the judge’s finding offended the Sixth Amendment.
       As we discussed above, we do not agree with Blackwell’s interpretation of the
jury’s verdicts. (See People v. Santamaria, supra, 8 Cal.4th at p. 919; People v.
Thompson, supra, 49 Cal.4th at p. 120.) The jury made no affirmative finding that
Blackwell was not the killer. In imposing a sentence, the trial court is not prohibited
from making findings of fact that are inconsistent with a jury’s verdict of acquittal on
other counts. (People v. Towne (2008) 44 Cal.4th 63, 71 (Towne).) “[B]ecause facts
considered by the court in selecting the appropriate sentence within the available
sentencing range need not be proved beyond a reasonable doubt, a trial court, in this
setting, is not prohibited from considering evidence underlying charges of which a
defendant has been acquitted.” (Ibid.) “[T]he Apprendi line of decisions does not apply
[in such a] context. Both the United States Supreme Court and this court have expressly
held that a trial court, in exercising its discretion in sentencing a defendant on an offense
of which he or she has been convicted, may take into account the court’s own factual
findings with regard to the defendant’s conduct related to an offense of which the
defendant has been acquitted, so long as the trial court properly finds that the evidence
establishes such conduct by a preponderance of the evidence.” (In re Coley, supra,
55 Cal.4th at pp. 557–558 [trial court’s reliance on its own view of facts underlying
acquitted charge, in exercising its discretion not to strike any of the defendant’s prior
serious or violent felony convictions, did not violate right to jury trial].)
       In Towne, the defendant was charged with carjacking, kidnapping, robbery, grand
theft of an automobile, making criminal threats, kidnapping to commit carjacking,
kidnapping to commit robbery, and joyriding. (Towne, supra, 44 Cal.4th at p. 72.)
However, the jury acquitted the defendant of all counts except for felony joyriding. (Id.
at p. 73.) Under the unmodified DSL, the trial court selected the upper term for joyriding


                                              31
based upon the defendant’s lengthy criminal history and its conclusion the crime was
aggravated because the victim was afraid for his life. (Id. at pp. 73–74.) Despite the
jury’s acquittal of the defendant on all counts involving force or violence, the trial court
noted it was convinced, based on the testimony of the victim and other witnesses, that the
victim had been terrified. (Ibid.)
       Our Supreme Court rejected the defendant’s claim that his federal constitutional
right to jury trial as established in Apprendi and its progeny had been violated by the trial
court’s reliance on “facts that the jury implicitly found not to be true.” (Towne, supra,
44 Cal.4th at p. 83.) The court explained: “California law affords the trial court broad
discretion to consider relevant evidence at sentencing. . . . Nothing in the applicable
statute or rules suggests that a trial court must ignore evidence related to the offense of
which the defendant was convicted, merely because that evidence did not convince a jury
that the defendant was guilty beyond a reasonable doubt of related offenses. [¶] . . .
[¶] Nor did the sentencing judge’s consideration of conduct underlying acquitted charges
violates defendant’s Sixth Amendment right to a jury trial. . . . Because in the present
case other aggravating factors rendered defendant eligible for the upper term [under the
unmodified DSL], the judge’s consideration of evidence of conduct underlying counts of
which defendant was acquitted, in selecting the sentence, did not implicate defendant’s
constitutional rights to a jury trial or to proof beyond a reasonable doubt. [¶] . . . [¶]
Permitting a judge to consider evidence of conduct underlying counts of which the
defendant was acquitted does not in any way undermine the jury’s role in establishing, by
its verdict, the maximum authorized sentence.” (Towne, at pp. 85–87, italics added & fn.
omitted.)
       Blackwell contends Towne and In re Coley are distinguishable, in that they
involve “ordinary discretionary sentencing decisions,” whereas “the central teaching of
[Graham] and [Miller] is that imposition of [LWOP] on a juvenile offender is not like
other sentence choices.” Because of such Eighth Amendment constitutional limitations,
Blackwell asks us to analogize to death penalty sentencing. However, it is not at all clear
how this analogy advances Blackwell’s argument.


                                               32
       We have already concluded that the jury found all facts required to make
Blackwell eligible for an LWOP sentence and that the trial court’s consideration of the
circumstances of the offense, and other Miller/Gutierrez factors, in selecting the
appropriate sentence does not violate Apprendi. Thus, we are untroubled by the trial
court’s recitation of the evidence Blackwell was the shooter. We are bound to follow our
Supreme Court’s decision in Towne. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
E.     Abuse of Discretion
       Finally, Blackwell argues the trial court abused its discretion when it selected
LWOP, rather than the lesser term of 25 years to life. A court’s exercise of discretion
will not be disturbed on appeal absent a showing that the court acted in an arbitrary,
capricious, or patently absurd way, resulting in a manifest miscarriage of justice. (People
v. Jordan (1986) 42 Cal.3d 308, 316.) “In reviewing for abuse of discretion, we are
guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision
will not be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.’ ” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376–377.)
       Blackwell maintains the trial court abused its discretion by assigning too much
weight to the circumstances of the crime, and not enough to the immaturity of the
offender. Blackwell urges us to conclude Miller established a presumption of immaturity
and that 25 years to life is the presumptive sentence. We disagree. Gutierrez “[does] not
suggest section [190.5(b)] evinces a preference for a sentence of 25 years to life.”
(People v. Palafox, supra, 231 Cal.App.4th at p. 91; see Gutierrez, supra, 58 Cal.4th at
p. 1379.) “No particular factor, relevant to the decision whether to impose LWOP on a
juvenile who has committed murder, predominates under the law. Hence, as long as a


                                             33
trial court gives due consideration to an offender’s youth and attendant characteristics, as
required by Miller[, supra, 132 S.Ct. 2455], it may, in exercising its discretion under . . .
section [190.5(b)], give such weight to the relevant factors as it reasonably determines is
appropriate under all the circumstances of the case.” (Palafox, at p. 73.)
       In People v. Palafox, supra, 231 Cal.App.4th 68, the defendant and another 16-
year-old were convicted of two counts of first degree murder with special circumstances
after they committed a burglary and murdered the residents of the home in their beds.
(Id. at pp. 73–74.) After Miller, the juvenile defendant, who was originally sentenced to
two consecutive LWOP terms, was resentenced. (Id. at pp. 74–75.) At resentencing, the
trial court considered psychological evidence of the defendant’s immaturity, as well as
evidence of a violent and chaotic family background, weighed all the Miller factors with
no presumption in favor of LWOP, but gave the greatest weight to the circumstances of
the offenses. (Id. at pp. 75–76, 78–81, 89.)
       The reviewing court concluded the trial court had not “exceeded the bounds of
reason” in reimposing consecutive LWOP terms. (People v. Palafox, supra,
231 Cal.App.4th at p. 91; id. at pp. 90–91.) Rather, “[t]he trial court . . . thoughtfully
weighed the applicable factors, particularly defendant’s youth and its attendant
circumstances, and implicitly concluded defendant was unfit ever to reenter society.” (Id.
at p. 91.) The Palafox court concluded: “As required by Miller, the trial court here
‘consider[ed] all relevant evidence bearing on the “distinctive attributes of youth” . . . and
how those attributes “diminish the penological justifications for imposing the harshest
sentences on juvenile offenders.” [Citation.]’ [Citation.] It ‘ “[took] into account how
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” ’ [Citation.] The sentence it imposed did not violate the
federal or state Constitution.” (Palafox, at pp. 91–92, quoting Gutierrez, supra,
58 Cal.4th at p. 1390.)
       Here too, in resentencing Blackwell to LWOP, the trial court explicitly considered
all of the relevant Miller/Gutierrez factors, with no presumption in favor of LWOP. The
trial court was well aware that it had discretion to sentence Blackwell to 25 years to life


                                               34
or LWOP and that the latter sentence should be reserved for the “ ‘rare juvenile offender
whose crime reflects irreparable corruption.’ ” (Miller, supra, 132 S.Ct. at p. 2469.) In
selecting LWOP as the appropriate sentence, based primarily on Blackwell’s
circumstances and the heinous nature of the offense, the trial court did not abuse its
discretion.
       Just as in People v. Palafox, Blackwell was significantly chronologically older
than the 14-year-old defendants in Miller. In fact, Blackwell was six months shy of his
18th birthday when he committed an offense that showed planning, organization, and
callous calculation. The trial court recognized Blackwell’s youth, but found “no
evidence” he was particularly immature or impetuous. Other than his unsuccessful
attempt to shift responsibility to Kellum, Blackwell points to no evidence suggesting the
crime was the result of his impulsiveness, a lack of sophistication, peer pressure, or
general immaturity. Yet, the evidence is undisputed that Blackwell arranged a ride for
himself and Kellum to Carreno’s apartment, that they entered unannounced, apparently
intending to rob him of drugs and/or money, kicked down his door, and that either he or
Kellum shot Carreno, who was laying in bed, several times. Blackwell then attempted to
destroy or hide any evidence linking him to the crime. Furthermore, Blackwell had an
extensive juvenile record involving weapons and violence, had been provided numerous
opportunities within the juvenile system to reform, but his criminal behavior has only
escalated. In fact, Carreno’s murder was committed less than a month after Blackwell
was released from juvenile hall.
       We do not foreclose the possibility that in some cases, “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 sentence less severe than
[LWOP].” (Roper, supra, 543 U.S. at p. 573; see id. at pp. 572–573 [discussing the
“unacceptable likelihood” this would occur in death penalty sentencing “despite
insufficient culpability”].) This is not such a case. With the exception of evidence of
Blackwell’s use of methamphetamines around the time of the offense, there was little to


                                             35
no particularized mitigating evidence before the court. Even if a presumption of
immaturity applies, the People rebutted such a presumption in this case.
       We are similarly unpersuaded that Blackwell’s LWOP sentence is
disproportionate to his individual culpability and amounts to cruel and unusual
punishment in his particular case.15 A sentence in an individual case violates the Eighth
Amendment proscription against cruel and unusual punishment only if it is grossly
disproportionate to the crime. (Graham, supra, 560 U.S. at p. 60.) “A court must begin
by comparing the gravity of the offense and the severity of the sentence. [Citation.] ‘[I]n
the rare case in which [this] threshold comparison . . . leads to an inference of gross
disproportionality’ the court should then compare the defendant’s sentence with the
sentences received by other offenders in the same jurisdiction and with the sentences
imposed for the same crime in other jurisdictions.” (Ibid.)
       The sentence in this case, though undoubtedly harsh, does not shock the
conscience and is not disproportionate. Blackwell was convicted of first degree murder
with special circumstances. First degree special circumstance murder, viewed in the
abstract, is perhaps the most serious offense under California law, and the facts of this
particular case do not remove it from this category.
       LWOP may be “an unconstitutional penalty for . . . juvenile offenders whose
crimes reflect the transient immaturity of youth” (Montgomery, supra, 136 S.Ct. at p.
734), but the record before us does not compel the conclusion Blackwell falls within that
class. Although he was six months short of the age of majority when he committed the


       15  Amendments to California’s sentencing law provide Blackwell with the
opportunity for parole. Subject to exceptions not relevant here, section 1170,
subdivision (d)(2) retroactively permits a defendant who was sentenced to LWOP for a
crime committed as a juvenile to petition the court for recall and resentencing after
serving at least 15 years of that sentence. The possibility of a sentence recall under this
provision does not “enter[] into a determination of constitutionality under Miller.”
(People v. Palafox, supra, 231 Cal.App.4th at p. 82, fn. 13; accord, Gutierrez, supra,
58 Cal.4th at p. 1386.) “Miller repeatedly made clear that the sentencing authority must
. . . consider[] how children are different and how those differences counsel against a
sentence of [LWOP] ‘before imposing a particular penalty.’ ” (Gutierrez, at p. 1387.)


                                             36
murder in this case, his criminal history as a juvenile was extensive. In light of his
history and the very serious nature of his crime, Blackwell has not demonstrated that his
LWOP sentence is disproportionate to his individual culpability. He has not even
attempted to argue that it is disproportionate when compared to the sentences of other
offenders convicted of the same crime.
       Blackwell received a resentencing hearing at which the trial court exercised the
individualized sentencing discretion that Miller and Gutierrez mandate. Imposing LWOP
based on the reasons the trial court stated was within its discretion. The trial court did not
abuse its discretion or impose cruel and unusual punishment.
F.     Consideration of CDCR Records
       In his opening brief, Blackwell also argues the sentencing court erred by
considering his CDCR records from the time period after his initial sentencing. The
argument is unsupported and we reject it.
       Gutierrez emphasized: “The question is whether [a juvenile offender] 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.” (Gutierrez,
supra, 58 Cal.4th at p. 1391, italics added.) In exercising its discretion under Miller, “a
sentencing court must consider any evidence or other information in the record bearing
on ‘the possibility of rehabilitation.’ ” (Id. at p. 1389, italics added.) “[T]here is nothing
in Miller, Gutierrez, or Montgomery that suggests, much less states, that a trial court is
precluded from considering evidence of a defendant’s postconviction conduct in
conducting a resentencing as a remedy for Miller error. On the contrary, a trial court is
required to consider such evidence in determining a defendant’s amenability to
rehabilitation upon resentencing.” (In re Berg (2016) 247 Cal.App.4th 418, 440,
fn. omitted, review granted July 27, 2016, S235277; People v. Lozano (2016)
243 Cal.App.4th 1126, 1137–1138 [addressing admissibility of positive postconviction
behavior].)



                                              37
       Blackwell relies on language taken out of context from Graham: “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; see
Gutierrez, supra, 58 Cal.4th at pp. 1386–1387.) Neither Graham nor Gutierrez were
considering whether custodial records could be considered in a resentencing scenario.
“ ‘ “It is axiomatic that language in a judicial opinion is to be understood in accordance
with the facts and issues before the court. An opinion is not authority for propositions
not considered.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154–155.)
       Here, Blackwell’s postconviction behavior was used “at the outset” to assess his
prospects for rehabilitation. In any event, the trial court made clear that it would have
reached the same conclusion without consideration of Blackwell’s CDCR records.
                                   III.    DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.




                                             38
Superior Court of Sonoma County, No. SCR-511523, Rene A. Chouteau, Judge.

L. Richard Braucher, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Joshua A. Klein, Deputy
Solicitor General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General,
for Plaintiff and Respondent.




                                          39
