Filed 11/3/14




                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                  F067413
         Plaintiff and Respondent,
                                                         (Super. Ct. No. BF125737B)
                  v.

LUIS WILLIAM PALAFOX,                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Heather J. MacKay, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna,
Deputy Attorney General, for Plaintiff and Respondent.
                                         -ooOoo-
       Luis William Palafox (defendant) appeals from the imposition of consecutive
terms of life in prison without the possibility of parole (LWOP) for two special-
circumstance murders he and Kyle Hoffman committed when both were 16 years old. In
this case of first impression, we conclude the sentence is constitutional despite the trial
court’s inability to exclude the possibility of rehabilitation. 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 trial court gives due consideration to an
offender’s youth and attendant characteristics, as required by Miller v. Alabama (2012)
567 U.S. ___ [132 S.Ct. 2455] (Miller), it may, in exercising its discretion under Penal
Code section 190.5, subdivision (b), give such weight to the relevant factors as it
reasonably determines is appropriate under all the circumstances of the case.
Accordingly, we affirm.
                       FACTS AND PROCEDURAL HISTORY1
       Sometime between August 4 and 6, 2008, an elderly couple, Joseph and Dorothy
Parrott, were murdered in their beds at their Bakersfield home. Joseph Parrott was
stabbed multiple times in the neck and beaten about the head and upper body with a
linear object. His death, which was caused by sharp and blunt-force injuries, was not
instantaneous. Dorothy Parrott was severely beaten all over her body with a linear object,
and the entire right side of her face was crushed. The cause of her death was blunt force
head trauma. In each instance, the bruising was consistent with a baseball bat. Several
months later, items taken from the Parrott home were found in defendant’s and
Hoffman’s residences. Blood on defendant’s knife matched Joseph Parrott’s genetic
profile.


1      The facts are taken from our opinion in defendant’s prior appeal. (People v.
Hoffman et al. (July 5, 2012) F061127 [nonpub. opn.].) By separate order, we have taken
judicial notice of the appellate record and opinion in that case.



                                              2.
       Defendant’s and Hoffman’s cases were consolidated for trial, but separate juries
were impaneled. Hoffman’s jury heard evidence Hoffman confessed that the two broke
into the house to get money for drugs. They chose that house because they did not see
any car and no one answered a knock on the front door. Defendant, who was carrying a
wooden baseball bat, said that, if there were any people, he would take care of them,
although Hoffman professed to believe defendant was kidding. According to Hoffman,
he remained outside while defendant went in. By the time Hoffman entered, the Parrotts
were dead. Hoffman and defendant then took various items from the residence. Hoffman
insisted he did not kill anyone or see defendant hurt either victim. Defendant did,
however, tell him what defendant did and how it felt.
       Defendant’s jury heard evidence Hoffman’s sister overheard defendant and
Hoffman talking about going into someone’s house and stealing. They took her baseball
bat with them when they left the Hoffman apartment. She subsequently saw money and
jewelry in Hoffman’s backpack. When she asked defendant about his involvement in the
murders, defendant denied, more than once, knowing what she was talking about.
Eventually, however, he admitted he was involved and told her not to talk about it.
       Defendant and Hoffman each were convicted of two counts of first degree murder
(Pen. Code,2 § 187, subd. (a)), with multiple-murder (§ 190.2, subd. (a)(3)), robbery-
murder (id., subd. (a)(17)(A)), and burglary-murder (id., subd. (a)(17)(G)) special
circumstances. Each was sentenced to two consecutive LWOP terms.3
       We originally affirmed the judgments in their entirety, rejecting claims, inter alia,
that imposition of LWOP on a juvenile — even one who killed — violates the federal and

2      Further statutory references are to the Penal Code.
3      Prior to sentencing, defendant and Hoffman each unsuccessfully challenged the
constitutionality of an LWOP sentence when imposed on a juvenile, and asked the trial
court to exercise its discretion under section 190.5, subdivision (b) to impose a sentence
of 25 years to life.



                                             3.
state Constitutions. Upon petition for rehearing, however, we modified our opinion to
include a lengthy discussion of Miller. We found the trial court did not abuse its
discretion under the law as it stood when it sentenced defendant and Hoffman.
Nevertheless, we concluded that because the “characteristics discussed in Miller were not
at the forefront of the factors considered by the trial court when exercising its discretion
…, [defendant and Hoffman were] entitled to have the trial court reconsider its decision
under section 190.5, subdivision (b) in light of Miller, and to be resentenced
accordingly.” (People v. Hoffman, supra, F061127, as mod. July 30, 2012, fn. omitted.)
As a result, we affirmed the judgments of conviction, but vacated the sentences and
remanded the matters to the trial court “to exercise its discretion under … section 190.5
in light of Miller” and to resentence defendant and Hoffman. (Ibid.)
       In preparation for the resentencing hearing, defendant presented a written report
prepared by Angela Mason, a licensed clinical social worker who specialized in forensic
social work and mitigation.4 In her report, Mason related she had twice interviewed
defendant, who was born in March 1992, and who had the demeanor of an adolescent.
She also interviewed three of his aunts, and his parents. She reviewed the petition for
rehearing filed in this court; our order modifying the opinion and denying rehearing; a



4       Hoffman apparently submitted a statement in mitigation and requested that the
court resentence him to life in prison with the possibility of parole. He also presented
live testimony at the resentencing hearing. Because Hoffman is not before us on this
appeal, we do not summarize the evidence or argument pertinent only to him.
       Defendant presented no witnesses at the hearing, but the trial court stated it had
read and considered Mason’s report (as to which the prosecutor expressly waived any
evidentiary objections). In addition, the court took judicial notice, at defense counsel’s
request, of the evidence adduced at trial; the evidence presented in support of the motions
(including statements made by defendant and Hoffman), and the rulings, that resulted in
two juries hearing the case; and defendant’s submissions and arguments at the original
sentencing hearing.



                                              4.
November 20, 2009, psychological evaluation by Eugene Couture, Ph.D.5; the probation
officer’s report; and school records from the Moreno Valley Unified School District.
       Mason’s report related that defendant’s maternal grandfather died in prison after
being convicted of molesting a 12-year-old relative. Two of defendant’s uncles (one of
whom was Hoffman) were serving life sentences for murder. Defendant’s maternal
grandmother beat his mother, who, along with one of her sisters and a brother, got
involved in gangs. Defendant’s father was also a gang member. Defendant’s maternal
grandmother used cocaine and “speed,” and his paternal grandfather was an alcoholic.
       Defendant’s mother became pregnant with him at age 15. Defendant’s father
described it as an unwanted and unplanned pregnancy.6 Although defendant’s mother
denied using drugs during her pregnancy, she smoked marijuana daily and drank —
sometimes heavily — on weekends after defendant was born.7 Gunfire and gang activity
were frequent in the neighborhood in which defendant lived.
       Defendant’s parents separated in 1993. Prior to their separation, defendant was
frequently exposed to incidents of domestic violence.8 After the separation, defendant’s




5      This was a pretrial competency evaluation.
6      According to sources cited by Mason, children born from unplanned or unwanted
pregnancies are at risk for significantly lower cognitive test scores than children born as
the result of intended pregnancies. Such children also have poorer physical and mental
health, and some have higher levels of delinquency.
7      According to Mason, parental alcohol and drug abuse adversely impact children’s
development through inherited substance vulnerability, modeled substance abuse, and
exposure to other drug dependent persons. Such children are also at greater risk for
psychological injury as a result of parental emotional detachment, neglect, physical
and/or emotional abuse, and demands for premature responsibility.
8      According to sources cited by Mason, exposure to violence in the home can harm
the development of the brains of infants and small children, and impair cognitive and
sensory growth.



                                             5.
father rarely chose to see him. Defendant’s mother moved a lot and continued to drink
and smoke marijuana.
       Defendant’s mother became involved with another gang member, Israel Rios, and
together they had four children. Rios and defendant’s mother used drugs, smoked
marijuana with the children in the house, and Rios drank heavily. Rios was aggressive
with the children, and whipped defendant with his hand or a belt until defendant turned
12 years old and was “too big to beat.” Because the family moved around a lot,
defendant never joined a gang.
       Mason related that defendant’s family “suffered from multigenerational abject
poverty.” Research has shown “poverty damages children’s dispositions, blunts their
brains, and causes permanent brain damage from excessive exposure to toxic stress.”
Mason surmised a “‘blunted brain’” may have made defendant appear cold and distant to
doctors and probation officers, when in reality he may have been showing the signs of
poverty and its effects.
       Mason’s report detailed the large number of different schools defendant attended
throughout his life. In high school, he tested below basic in English and algebra, and far
below basic in world history, life science, and biology. According to an aunt, he had
speech problems and a lisp. Another aunt described him, as an adolescent, as “quiet,
withdrawn, and young-minded.” During his school years, he was suspended multiple
times for marijuana, possession of a knife, tagging, and other behavior problems. When,
during high school, defendant got in trouble for marijuana, his mother enrolled him in
individual and group counseling for a few months. According to Mason, however, it was
unlikely counseling would have been effective without addressing the root problems of
the family’s issues with drugs, alcohol, gangs, domestic violence, and delinquent
activities.
       Mason related that, according to an aunt, defendant had “self-injurious behavior,”
including biting and burning. On one occasion, he set the bathroom on fire. He used

                                            6.
drugs and drank, drinking heavily at least three times a year. He started using marijuana
at age 13, and smoked it daily until his arrest in this case.9 He experimented with cocaine
and ecstasy. Three months before his arrest, his mother caught him inhaling Freon.
       Despite everything, defendant was kind and helpful to his family. He babysat and
cared for his younger siblings, and got them ready for school while his mother slept.
After Rios hurt his back in an accident, defendant took care of the house and yard. He
also helped people in need, such as by loading grocery bags into cars for people at the
store and helping his blind grandfather do laundry. His aunt tried to get defendant to live
with her, as she wanted to be a positive influence in his life, but he felt he had to stay
with his mother, because she needed him to care for his younger siblings.
       At the end of July 2008, defendant’s mother lost the family’s rent money. Rios
got drunk, and they had a physical altercation in the front yard of their Moreno Valley
home. Defendant told Rios to leave his mother alone, and he and Rios exchanged words.
Rios threw a beer bottle at defendant’s mother, and it hit her in the back of the head. She
was bleeding and sustained a concussion, but did not seek medical help. No one called
the police.10 Defendant, his mother, and his maternal grandmother and an aunt went to
the maternal grandmother’s home in Bakersfield.11 A couple of weeks later, Rios and


9       Counsel for Hoffman referred to a study that found people who began using
marijuana before age 16, and used it frequently, performed poorly on tests of cognitive
flexibility, the ability to change one’s response to something based on the context of the
situation. He also mentioned an article titled “Teen Brain More Prone to Drug/Alcohol
Damage,” which appears to have discussed how marijuana affects the teenage brain more
significantly than the adult brain.
10     According to sources cited by Mason, children exposed to domestic violence are at
greater risk for substance abuse, juvenile pregnancy, and criminal behavior than those
raised in homes without violence. Some studies suggest social development is also
damaged, with some children losing the ability to feel empathy for others and many
exhibiting signs of aggressive behavior.
11     Defendant’s maternal grandmother was Hoffman’s mother.



                                              7.
defendant’s mother reconciled. This saddened and disappointed defendant, who
remained in Bakersfield with his grandmother. Defendant’s mother blamed herself for
the present offenses, because she left defendant in Bakersfield “in an emotionally
fragmented state.” He had never been violent before; it was not in his character.
       Mason related that defendant felt sorry for the Parrotts’ deaths, and wished things
were different. He knew he did wrong and felt he belonged in prison. He wanted to be a
better person.
       Mason detailed the various risk factors with which defendant grew up, and noted
he had “nearly every imaginable risk factor for violence and delinquency,” while lacking
protective buffering factors other than the positive influence of one of his aunts. She also
listed the various factors that shaped defendant’s life and influenced his involvement in
the instant offense. She ended her report by observing that defendant’s mother left
defendant with his grandmother in Bakersfield. Because of her long history of drug
addiction and poor parenting skills, the grandmother could not supervise or comfort
defendant, who was emotionally distraught over his mother and Rios’s violence and
separation. Mason surmised Hoffman “likely took advantage of his younger nephew by
encouraging his involvement in the instant offense.”12
       Defense counsel acknowledged defendant was a full participant in the Parrott
murders, which counsel termed “horrible” and “inexcusable,” and that defendant and
Hoffman were mature, intelligent, and articulate. Counsel argued defendant was 16 when
these crimes were committed, people change and grow over time, and defendant was
going to be severely punished even without an LWOP sentence. He urged the court not
to “give up on [defendant] totally.” The prosecutor asserted the murders were “about as
bad as it gets,” and pointed out the Parrotts “[did not] have to die.” He argued Miller did

12     The probation officer’s reports submitted in connection with the original
sentencing show Hoffman was not quite seven months older than defendant.



                                             8.
not say LWOP constituted cruel and unusual punishment for juveniles, but merely said
such a sentence could not be mandatory, and so “sort of changed the game a little bit, but
not really in California.” He urged the court to sentence defendant to LWOP.
       In determining whether to reimpose LWOP sentences on defendant, the trial court
considered the factors Miller found appropriate, though not exclusive, for making such a
determination: (1) chronological age and its hallmark features, including immaturity,
impetuosity, and failure to appreciate risks and consequences; (2) family and home
environment, from which the juvenile usually cannot extricate him- or herself, no matter
how brutal or dysfunctional; (3) the circumstances of the homicide offense, including the
extent of the defendant’s participation and the way familial and peer pressures may have
affected him or her; (4) that the defendant might have been charged and convicted of a
lesser offense if not for incompetencies associated with youth; and (5) the possibility of
rehabilitation. The court also considered a sixth factor, the presence or absence of any
criminal history.
       The court found chronological age and its hallmark features not as significant a
factor as it might be in some cases. The court noted defendant and Hoffman both were
older and somewhat more mature, at the time of events, than some juveniles, such as the
14-year-old defendants in Miller. The court further found neither their conduct in the
commission of the offenses nor anything about them exhibited an exceptional or unusual
level of immaturity below that ordinarily experienced with juveniles. The court found a
poor appreciation of risk and consequences, or at least an unwillingness to be concerned;
however, the fact defendant entered the victims’ house armed with a weapon showed an
appreciation of the potential for violent confrontation and ensuing loss of life, yet
defendant decided to proceed. The court did not find this to be an aggravating factor
indicating LWOP necessarily should be imposed; virtually all juvenile offenders exhibit
some level of immaturity, impetuosity, and poor appreciation of risks and consequences.



                                             9.
       The court next found defendant’s family and home environment had some impact
on defendant, who had “a very disruptive and relatively chaotic background.” The court
found the factor pointed, to some extent, in favor of imposition of a non-LWOP sentence,
because defendant’s history affected his ability to learn and adjust to situations in which
decisions had to be made. The court observed, however, that many people came from
similar backgrounds without making the choices and decisions defendant made.
       With respect to the third factor, the court found the circumstances of the offense to
be “one of the worst homicide situations” it had seen in nearly 30 years. The court found
it “shock[ing]” that people could not understand the potentially extreme danger of a
residential burglary, particularly one committed in the nighttime when occupants were
home. The court noted people feel safe in their homes, particularly when asleep at night,
and are in a relatively defenseless position. People are entitled to defend themselves with
deadly force, if necessary, when encountering an intruder, a situation the court found
defendant appreciated, since at least one and possibly two weapons were brought to the
scene. The court characterized the assaults that led to the injuries inflicted as “savage,”
with both victims completely vulnerable and taken by total surprise “at the time they
were attacked with the obvious and sole intent of killing them.” The court concluded
those circumstances pointed to an LWOP sentence.
       The court did not find the fourth factor to be significant, as this was not a situation
in which defendant suffered a conviction more serious than he otherwise might have
suffered had he been older and more able to appreciate and understand the criminal
justice system.
       The court found the possibility of rehabilitation to be a difficult factor, because it
was being asked to predict what defendant would be like after at least a quarter and
perhaps half a century in a “harsh and unforgiving” setting. The court stated:




                                             10.
              “I lack confidence most of the time in my ability to predict what will
       happen next week let alone in my ability to predict what another individual
       will be like after such a period of time.

               “… I certainly will not exclude the possibility in this case, perhaps a
       significant one, that both [defendant] and Mr. Hoffman have some
       significant possibility of rehabilitating, if you will, and becoming useful
       citizens, but it’s difficult to say what they will be like or what they could
       contribute or be in a position to contribute or may be willing to make the
       effort to contribute after the extremely lengthy time … both of them will be
       incarcerated .…

               “That is a factor I think, and I can’t characterize it as an insignificant
       factor it would seem since it does exist to point in the direction of the less
       serious of the potential sentences, … but by the same token I will note as
       again as I mentioned in the first factor, both are older than many juveniles
       who were involved in such cases, did not strike me as being unusually
       immature or uneducated or anything of that nature. So under the
       circumstances I cannot say that is the dispositive factor by itself, though it
       certainly is one to be considered.”
       Last, the court noted defendant had no previous criminal history. Although there
was some admitted narcotics involvement, the court did not find it to be of great weight,
and in any event, it pointed against an LWOP sentence. Based on its experience,
however, the court observed that juveniles often have relatively minimal records because
they have not had time to accumulate a considerable criminal history. It also found it
“not at all uncommon” to have such serious offenses committed by someone with no or
an insignificant prior criminal record. As a result, it found this factor not dispositive.
       The court concluded:

               “Weighing all of those factors and considering them and exercising
       my discretion, I find some factors that are essentially neutral, just a couple
       that tend to weigh in favor of a life without the possibility of parole
       sentence or at least don’t point against it, and a couple of factors that I think
       do weigh in favor of a less than life without the possibility of parole
       sentence, but it isn’t a counting exercise. It is a weighing exercise as it
       would be in a penalty phase in a death penalty case were the jury trying the
       matter.




                                              11.
               “I come back to the fact in the end when I weigh these factors, the
       one that is by far the greatest weight to me is the circumstances of the
       offences [sic] that were committed in this particular case and not just the
       severity and brutality of the crimes involved, but the fact that there is
       absolutely no question that the potential consequences to the Parrotts, who
       were doing nothing other than sleeping in their own home, were unaware
       prior to the assaults at the beginning, as far as anyone can tell presence,
       certainly outside their home as the discussion is taking place that
       [defendant] and Mr. Hoffman were calculating and considering violating
       their rights and perhaps even inflicting harm on them, and the fact that there
       was discussion of the fact and the presence of the weapon, at least one
       weapon, ultimately more, to for lack of a better term execute the Parrotts if
       in fact their presence became or was perceived to be a problem in terms of
       Mr. Hoffman and [defendant] carrying out their objectives of taking what
       property they wished to be found inside.

               “I find almost more chilling than … what happened … when the
       offences [sic] were committed the fact two individuals in question stood
       outside at some point and had a discussion about what to do to the people
       inside if they were located. That to me is almost a very definition of
       premeditated murder.”
       The court then resentenced defendant (and Hoffman) to two consecutive terms of
LWOP, which, in the exercise of its discretion, it found to be the appropriate sentence. It
also ordered payment of various fees, fines, and restitution.
                                      DISCUSSION
       Defendant contends imposition of LWOP terms in this case constitutes cruel
and/or unusual punishment under the federal and state Constitutions. He says the Eighth
Amendment to the United States Constitution, as construed in Miller, forbids imposition
of an LWOP sentence on a juvenile offender except when the facts show said juvenile is
irreparably corrupt. He asserts the facts did not show irreparable corruption and the trial
court’s statement regarding rehabilitation constituted a finding of “significant possibility
that [defendant] could someday demonstrate rehabilitation.” He argues we must,
therefore, again vacate the sentence and remand the matter to the trial court with
instructions to impose a term that includes “a meaningful possibility of parole.”



                                             12.
       Whether defendant is correct depends on whether the Miller factors, applied to an
exercise of discretion under section 190.5, subdivision (b), can be given whatever weight
the trial court reasonably finds to be appropriate in light of the particular circumstances of
the case, or whether one factor — the possibility of rehabilitation — predominates. If the
former, the sentence stands as constitutional. If the latter, defendant is entitled to a
sentence that affords him a realistic opportunity to obtain release.13
       The Eighth Amendment to the United States Constitution applies to the states.
(People v. Caballero (2012) 55 Cal.4th 262, 265, fn. 1.) It prohibits the infliction of
“cruel and unusual” punishment. (U.S. Const., 8th Amend., italics added.) Article I,
section 17 of the California Constitution prohibits infliction of “[c]ruel or unusual”
punishment. (Italics added.) The distinction in wording is “purposeful and substantive
rather than merely semantic. [Citations.]” (People v. Carmony (2005) 127 Cal.App.4th


13     The Attorney General argues the sentence is constitutional under Miller because it
was not mandatory, the trial court engaged in an individualized consideration of the
pertinent sentencing factors, and defendant may seek recall of his sentence, after 15 to 24
years, under section 1170, subdivision (d)(2).
       In People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), the California Supreme
Court rejected the assertion section 1170, subdivision (d)(2) “removes life without parole
sentences for juvenile offenders from the ambit of Miller’s concerns because the statute
provides a meaningful opportunity for such offenders to obtain release.” (Gutierrez, at
p. 1386.) Rather, the court observed, “… Miller repeatedly made clear that the
sentencing authority must … consider[] how children are different and how those
differences counsel against a sentence of life without parole ‘before imposing a particular
penalty.’ [Citations.]” (Id. at p. 1387.)
       Although the overriding question in Gutierrez was whether section 190.5,
subdivision (b) contains a presumption in favor of LWOP, its analysis of section 1170,
subdivision (d)(2) applies equally to the Attorney General’s argument here (which, we
recognize, was made before Gutierrez was decided). Accordingly, we reject, without
further discussion, the Attorney General’s claim the possibility of a sentence recall in the
future enters into a determination of constitutionality under Miller. (We do not address
the youthful offender parole hearing process contained in § 3051, since it does not apply
to individuals sentenced to LWOP. (Id., subd. (h).))



                                              13.
1066, 1085.) As a result, we construe the state constitutional provision “separately from
its counterpart in the federal Constitution. [Citation.]” (People v. Cartwright (1995) 39
Cal.App.4th 1123, 1136.) This does not make a difference from an analytic perspective,
however (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7), and defendant does
not contend the provisions should be separately analyzed in his case (see People v.
Blackwell (2011) 202 Cal.App.4th 144, 158, disapproved on another ground in Gutierrez,
supra, 58 Cal.4th at pp. 1370-1371, 1387). The touchstone in each is gross
disproportionality. (See Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of
O’Connor, J.); Rummel v. Estelle (1980) 445 U.S. 263, 271; People v. Dillon (1983) 34
Cal.3d 441, 479.) 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. Abundio (2013) 221 Cal.App.4th 1211,
1217; People v. Felix (2003) 108 Cal.App.4th 994, 1000.)
       As the analytic framework for a claim punishment is excessive requires reference
to “‘the evolving standards of decency that mark the progress of a maturing society’”
(Atkins v. Virginia (2002) 536 U.S. 304, 311-312), the United States Supreme Court’s
views with respect to the sentencing of juvenile offenders have been evolving for some
time. One theme has remained constant for decades: the recognition that “children are
constitutionally different from adults for purposes of sentencing.” (Miller, supra, 567
U.S. at p. ___ [132 S.Ct. at p. 2464].) Because Miller, the case with which we are most
concerned, arises from what came before it, we examine several of its underpinnings.
       In Eddings v. Oklahoma (1982) 455 U.S. 104, the high court reversed a sentence
of death imposed on a juvenile who was 16 at the time he murdered a police officer, and
remanded with directions to consider all relevant mitigating evidence. (Id. at pp. 105-
106, 117.) The sentencer took the defendant’s youth into account as a mitigating factor,
but not evidence of his troubled upbringing and emotional disturbance. (Id. at pp. 108-
109.) In holding that a sentencer cannot refuse to consider, or be precluded from

                                           14.
considering, any relevant mitigating evidence (id. at pp. 113-115), the high court
observed: “The trial judge recognized that youth must be considered a relevant
mitigating factor. But youth is more than a chronological fact. It is a time and condition
of life when a person may be most susceptible to influence and to psychological
damage.… [¶] Even the normal 16-year-old customarily lacks the maturity of an adult.”
(Id. at pp. 115-116, fn. omitted.)
       In Thompson v. Oklahoma (1988) 487 U.S. 815, the court held the Eighth
Amendment bars the execution of any offender under the age of 16 at the time of the
crime. (Thompson v. Oklahoma, supra, at pp. 822-823, 838.) The court noted: “The
reasons why juveniles are not trusted with the privileges and responsibilities of an adult
also explain why their irresponsible conduct is not as morally reprehensible as that of an
adult.” (Id. at p. 835, fn. omitted.)
       In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the court held the Eighth
Amendment forbids imposition of the death penalty on juvenile offenders under 18 years
of age. (Roper, supra, at p. 568.) It observed that the Eighth Amendment requires that
capital punishment “be limited to those offenders who commit ‘a narrow category of the
most serious crimes’ and whose extreme culpability makes them ‘the most deserving of
execution.’ [Citation.]” (Ibid.) Yet, “[t]hree general differences between juveniles under
18 and adults demonstrate that juvenile offenders cannot with reliability be classified
among the worst offenders. First, as any parent knows and as the scientific and
sociological studies … tend to confirm, ‘[a] lack of maturity and an underdeveloped
sense of responsibility are found in youth more often than in adults .… These qualities
often result in impetuous and ill-considered actions and decisions.’ [Citations.]” (Id. at
p. 569.) Second, “juveniles are more vulnerable or susceptible to negative influences and
outside pressures, including peer pressure. [Citation.]” (Ibid.) Third, “the character of a
juvenile is not as well formed as that of an adult. The personality traits of juveniles are
more transitory, less fixed. [Citation.]” (Id. at p. 570.) Thus,

                                             15.
       “[t]he susceptibility of juveniles to immature and irresponsible behavior
       means ‘their irresponsible conduct is not as morally reprehensible as that of
       an adult.’ [Citation.] Their own vulnerability and comparative lack of
       control over their immediate surroundings mean juveniles have a greater
       claim than adults to be forgiven for failing to escape negative influences in
       their whole environment. [Citation.] The reality that juveniles still struggle
       to define their identity means it is less supportable to conclude that even a
       heinous crime committed by a juvenile is evidence of irretrievably
       depraved character. From a moral standpoint it would be misguided to
       equate the failings of a minor with those of an adult, for a greater
       possibility exists that a minor’s character deficiencies will be reformed.
       Indeed, ‘[t]he relevance of youth as a mitigating factor derives from the fact
       that the signature qualities of youth are transient; as individuals mature, the
       impetuousness and recklessness that may dominate in younger years can
       subside.’ [Citations.]” (Ibid.)
       Because of juveniles’ “diminished culpability,” the court found, the penological
justifications for the death penalty — retribution and deterrence — apply to them with
less force than to adults. (Roper, supra, 543 U.S. at p. 571.) The court acknowledged
“the brutal crimes too many juvenile offenders have committed,” and conceded an
argument could be made that “a rare case might arise in which a juvenile offender has
sufficient psychological maturity, and at the same time demonstrates sufficient depravity,
to merit a sentence of death.” (Id. at p. 572.) Nevertheless, it found it necessary to adopt
a categorical rule barring imposition of the death penalty on anyone under the age of 18,
rather than permitting consideration of mitigating arguments related to youth on a case-
by-case basis: “The differences between juvenile and adult offenders are too marked and
well understood to risk allowing a youthful person to receive the death penalty despite
insufficient culpability. An unacceptable likelihood exists that the brutality or cold-
blooded nature of any particular crime would overpower mitigating arguments based on
youth as a matter of course, even where the juvenile offender’s objective immaturity,
vulnerability, and lack of true depravity should require a sentence less severe than death.”
(Id. at pp. 572-573.) The high court concluded: “It is difficult even for expert
psychologists to differentiate between the juvenile offender whose crime reflects


                                            16.
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.… When a juvenile offender commits a heinous crime, the State
can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his
life and his potential to attain a mature understanding of his own humanity.” (Id. at
pp. 573-574.)
       Five years later, in Graham v. Florida (2010) 560 U.S. 48 (Graham), the high
court relied heavily on Roper to hold: “The Constitution prohibits the imposition of a life
without parole sentence on a juvenile offender who did not commit homicide. A State
need not guarantee the offender eventual release, but if it imposes a sentence of life it
must provide him or her with some realistic opportunity to obtain release before the end
of that term.” (Id. at p. 82.) The court stated: “Juveniles are more capable of change
than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved
character’ than are the actions of adults. [Citation.]” (Id. at p. 68.) Turning to the nature
of the offenses to which LWOP might apply, the court “recognized that 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,” and so “[i]t follows that,
when compared to an adult murderer, a juvenile offender who did not kill or intend to kill
has a twice diminished moral culpability.” (Id. at p. 69.)
       The court observed that LWOP “is ‘the second most severe penalty permitted by
law’” (Graham, supra, 560 U.S. at p. 69), and “an especially harsh punishment for a
juvenile. Under this sentence a juvenile offender will on average serve more years and a
greater percentage of his life in prison than an adult offender.” (Id. at p. 70.) The court
determined that retribution — a legitimate reason to punish — could not support such a
sentence: “Roper found that ‘[r]etribution is not proportional if the law’s most severe
penalty is imposed’ on the juvenile murderer. [Citation.] The considerations underlying
that holding support as well the conclusion that retribution does not justify imposing the
second most severe penalty on the less culpable juvenile nonhomicide offender.” (Id. at

                                              17.
pp. 71-72.) Deterrence likewise did not justify the sentence; because juveniles lack
maturity and a fully developed sense of responsibility, they are “less likely to take a
possible punishment into consideration when making decisions.” (Id. at p. 72.)
       The court further found that incapacitation — also a legitimate reason for
imprisonment given the serious risk recidivism poses to public safety — could not justify
an LWOP sentence for juveniles who did not commit homicide. (Graham, supra, 560
U.S. at p. 72.) The court reasoned: “To justify life without parole on the assumption that
the juvenile offender forever will be a danger to society requires the sentencer to make a
judgment that the juvenile is incorrigible. The characteristics of juveniles make that
judgment questionable.” (Id. at pp. 72-73.) “A life without parole sentence improperly
denies the juvenile offender a chance to demonstrate growth and maturity.” (Id. at p. 73.)
       Finally, the court considered the penological goal of rehabilitation, and concluded
an LWOP sentence could not be justified by that goal. (Graham, supra, 560 U.S. at
pp. 73-74.) It explained: “The penalty [of LWOP] forswears altogether the rehabilitative
ideal. By denying the defendant the right to reenter the community, the State makes an
irrevocable judgment about that person’s value and place in society. This judgment is not
appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited
moral culpability.” (Id. at p. 74.)
       The court concluded: “In sum, penological theory is not adequate to justify life
without parole for juvenile nonhomicide offenders. This determination; the limited
culpability of juvenile nonhomicide offenders; and the severity of life without parole
sentences all lead to the conclusion that the sentencing practice under consideration is
cruel and unusual. This Court now holds that for a juvenile offender who did not commit
homicide the Eighth Amendment forbids the sentence of life without parole. This clear
line is necessary to prevent the possibility that life without parole sentences will be
imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit
that punishment.” (Graham, supra, 560 U.S. at p. 74.)

                                             18.
       Miller was decided two years after Graham, and drew extensively from that and
from the Roper opinion. In Miller and its companion case, two 14-year-old offenders
were convicted of murder and sentenced to LWOP, the term mandated by state law.
(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2460].) Because “[s]uch a scheme
prevents those meting out punishment from considering a juvenile’s ‘lessened
culpability’ and greater ‘capacity for change,’ [citation]” and runs afoul of the
requirement in the high court’s cases of “individualized sentencing for defendants facing
the most serious penalties,” the court held “mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” (Ibid., italics added.)
       Miller reiterated many of the findings of Graham and Roper with respect to
children’s “distinctive (and transitory) mental traits and environmental vulnerabilities,” as
well as Graham’s insistence that “youth matters in determining the appropriateness of a
lifetime of incarceration without the possibility of parole.” (Miller, supra, 567 U.S. at
p. ___ [132 S.Ct. at p. 2465].) The court stated: “By removing youth from the balance
— by subjecting a juvenile to the same life-without-parole sentence applicable to an adult
— [mandatory penalty schemes] prohibit a sentencing authority from assessing whether
the law’s harshest term of imprisonment proportionately punishes a juvenile offender.
That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of
a State’s most severe penalties on juvenile offenders cannot proceed as though they were
not children.” (Id. at p. ___ [132 S.Ct. at p. 2466].)
       The high court required “that a sentencer have the ability to consider the
‘mitigating qualities of youth,’” which, it observed, “‘is more than a chronological fact.’
[Citation.] It is a time of immaturity, irresponsibility, ‘impetuousness[,] and
recklessness.’ [Citation.] It is a moment and ‘condition of life when a person may be
most susceptible to influence and to psychological damage.’ [Citation.] And its



                                             19.
‘signature qualities’ are all ‘transient.’ [Citation.]” (Miller, supra, 567 U.S. at p. ___
[132 S.Ct. at p. 2467].) The court explained:

               “So Graham and Roper and our individualized sentencing cases
       alike teach that in imposing a State’s harshest penalties, a sentencer misses
       too much if he treats every child as an adult. To recap: Mandatory life
       without parole for a juvenile precludes consideration of his chronological
       age and its hallmark features — among them, immaturity, impetuosity, and
       failure to appreciate risks and consequences. It prevents taking into
       account the family and home environment that surrounds him — and from
       which he cannot usually extricate himself — no matter how brutal or
       dysfunctional. It neglects the circumstances of the homicide offense,
       including the extent of his participation in the conduct and the way familial
       and peer pressures may have affected him. Indeed, it ignores that he might
       have been charged and convicted of a lesser offense if not for
       incompetencies associated with youth — for example, his inability to deal
       with police officers or prosecutors (including on a plea agreement) or his
       incapacity to assist his own attorneys. [Citations.] And finally, this
       mandatory punishment disregards the possibility of rehabilitation even
       when the circumstances most suggest it.” (Id. at p. ___ [132 S.Ct. at
       p. 2468].)
       The court turned to the two cases before it. It observed that the juvenile in one
case was neither the killer, nor did the prosecution argue he intended to kill. Rather, he
was convicted as an aider and abettor. Although he knew his companion had a gun, the
court found his age may have affected his calculation of the risk it posed, as well as his
willingness to disengage from his companions before anything happened. In addition, his
family background was one of violence, with both his mother and grandmother having
previously shot other individuals. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at
p. 2468].) Although the juvenile in the other case committed a “vicious” murder, he and
his companion did so when high on drugs and alcohol consumed with the adult victim.
Moreover, the juvenile’s background was one of neglect and physical abuse, as well as
four suicide attempts, the earliest when he was kindergarten age. The high court found it
“beyond question” that the juvenile deserved “severe punishment” for killing the victim,
but, in each of the cases, also found the sentencer needed to examine all the


                                             20.
circumstances before concluding LWOP was the appropriate penalty. (Id. at p. ___ [132
S.Ct. at p. 2469].)14
       The high court stated:

                “We therefore hold that the Eighth Amendment forbids a sentencing
       scheme that mandates life in prison without possibility of parole for
       juvenile offenders. [Citation.] By making youth (and all that accompanies
       it) irrelevant to imposition of that harshest prison sentence, such a scheme
       poses too great a risk of disproportionate punishment. Because that holding
       is sufficient to decide these cases, we do not consider [the juveniles’]
       alternative argument that the Eighth Amendment requires a categorical bar
       on life without parole for juveniles, or at least for those 14 and younger.
       But given all we have said in Roper, Graham, and this decision about
       children’s diminished culpability and heightened capacity for change, we
       think appropriate occasions for sentencing juveniles to this harshest
       possible penalty will be uncommon. That is especially so because of the
       great difficulty we noted in Roper and Graham of distinguishing at this
       early age between ‘the juvenile offender whose crime reflects unfortunate
       yet transient immaturity, and the rare juvenile offender whose crime reflects
       irreparable corruption.’ [Citations.] Although we do not foreclose a
       sentencer’s ability to make that judgment in homicide cases, we require it
       to take into account how children are different, and how those differences
       counsel against irrevocably sentencing them to a lifetime in prison.”
       (Miller, supra, 567 U.S. at p. ___, fn. omitted [132 S.Ct. at p. 2469, fn.
       omitted].)
       The court reiterated: “Our decision does not categorically bar a penalty for a class
of offenders or type of crime — as, for example, we 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. And in so


14       The majority took the dissent to task for repeatedly referring to 17-year-olds who
had committed “the ‘most heinous’ offenses,” such as deliberately murdering an innocent
victim or setting off a bomb in a crowded shopping mall, and the 14-year-olds at issue in
the cases before the court. The majority noted: “Our holding requires factfinders to
attend to exactly such circumstances — to take into account the differences among
defendants and crimes.” (Miller, supra, 567 U.S. at p. ___, fn. 8 [132 S.Ct. at p. 2469,
fn. 8].)



                                            21.
requiring, our decision flows straightforwardly from our precedents: specifically, the
principle of Roper, Graham, and our individualized sentencing cases that youth matters
for purposes of meting out the law’s most serious punishments.” (Miller, supra, 567 U.S.
at p. ___, italics added [132 S.Ct. at p. 2471, italics added].)
       California’s statutory scheme has long afforded trial courts sentencing discretion
where defendants who were tried as adults but were 16 or 17 years old when they
committed murder are concerned. Thus, subdivision (b) of section 190.5 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 life without the possibility of parole or, at the
discretion of the court, 25 years to life.”
       Properly construed so as not to impose a presumption in favor of LWOP, “the
sentencing regime created by section 190.5[, subdivision ](b) authorizes and indeed
requires consideration of the distinctive attributes of youth highlighted in Miller .…”
(Gutierrez, supra, 58 Cal.4th at p. 1361.) Accordingly, the statute “confers discretion on
a trial court to sentence a 16- or 17-year-old juvenile convicted of special circumstance
murder to life without parole or to 25 years to life .…” (Id. at p. 1360.) In exercising that
discretion, “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.’ [Citation.]” (Id. at p. 1390.)

                                              22.
       Although section 190.5, subdivision (b) does not expressly so provide, in making a
decision under that statute, “a sentencing court must consider the aggravating and
mitigating factors enumerated in Penal Code section 190.3 and the California Rules of
Court. [Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1387; accord, People v. Ybarra
(2008) 166 Cal.App.4th 1069, 1089, 1092, disapproved on another ground in Gutierrez,
supra, at pp. 1370-1371, 1387.) The trial court here considered the applicable factors —
particularly those set out in Miller— with no presumption in favor of LWOP.15 It then
weighed the various factors and determined LWOP was the appropriate sentence.
       Defendant says the resulting sentence is unconstitutional. He argues that because
terms of life in prison with the possibility of parole allow the state to incarcerate a
prisoner until he or she has demonstrated full rehabilitation, “it is never appropriate for a
California court to impose an LWOP term on any juvenile.” The California Supreme
Court implicitly rejected this assertion in Gutierrez, when it remanded for resentencing
because the two trial courts involved imposed LWOP sentences “without proper guidance
on the sentencing discretion conferred by section 190.5[, subdivision ](b) and the
considerations that must inform the exercise of that discretion .…” (Gutierrez, supra, 58
Cal.4th at pp. 1391-1392.) The high court left open the possibility an LWOP term could
constitutionally be imposed on each defendant.16 Thus, while we agree a life-with-parole
term may, in reality, become an LWOP sentence if the defendant does not demonstrate

15    At the original sentencing, the court expressly stated it would exercise no such
presumption. Although it did not expressly so state at resentencing, the absence of such
presumption is clear from the record, and defendant does not claim otherwise.
16     Both defendants in Gutierrez were 17 at the time of their offenses. One
(Gutierrez) was the actual killer; the jury found he stabbed his victim to death during the
commission of rape or attempted rape. (Gutierrez, supra, 58 Cal.4th at pp. 1366-1367.)
The other (Moffett) neither killed nor, apparently, intended anyone be killed, but was
convicted under the felony-murder rule when his 18-year-old accomplice shot and killed
a peace officer as the pair were attempting to escape following a robbery. (Id. at
pp. 1362-1363, 1365.)



                                              23.
full rehabilitation, we reject the notion this somehow means an LWOP term cannot
properly be imposed under California law or the Eighth Amendment.
       Defendant’s argument is that he has not been shown to be “‘the rare juvenile
offender whose crime reflects irreparable corruption.’” (Miller, supra, 567 U.S. at p. ___
[132 S.Ct. at p. 2469].) He says the trial court’s own words — that it would not exclude
the possibility defendant had some significant chance of rehabilitation — belie such a
conclusion.
       The trial court here did not find defendant had a significant chance of
rehabilitation; it simply refused to rule out the possibility. Because no one can see into
the future or predict it with any accuracy, presumably there is always the possibility of
rehabilitation — however remote — where a juvenile is concerned. That is the point of
Miller. Despite this, Miller did not say the possibility of rehabilitation overrides all other
relevant factors. If the potential for rehabilitation were dispositive — or even the
preeminent factor — we do not believe the high court would simply have listed the
possibility of rehabilitation as one of several factors applicable to an individualized
determination whether to impose LWOP on a juvenile offender. (See Miller, supra, 567
U.S. at p. ___ [132 S.Ct. at p. 2468].) Rather, the court would have held LWOP
categorically unconstitutional for juvenile offenders, or at least would have explicitly said
such a sentence cannot constitutionally stand in face of a potential for rehabilitation.
       That the court expressed belief appropriate occasions for sentencing juveniles to
LWOP would be rare because of the difficulty distinguishing “between ‘the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption’” (Miller, supra, 567 U.S. at p. ___
[132 S.Ct. at p. 2469]) does not change this. Miller made clear that a sentencer has the
ability to make such a judgment in homicide cases (ibid.): The decision “mandates only
that a sentencer follow a certain process — considering an offender’s youth and attendant



                                             24.
characteristics — before imposing a particular penalty.” (Id. at p. ___, italics added [132
S.Ct. at p. 2471, italics added].)
       Similarly, in Gutierrez, the California Supreme Court stated: “Because Moffett
and Gutierrez have been convicted of special circumstance murder, each will receive a
life sentence. [Citation.] The question is whether each can be deemed, at the time of
sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter
society, notwithstanding the ‘diminished culpability and greater prospects for reform’
that ordinarily distinguish juveniles from adults. [Citation.]” (Gutierrez, supra, 58
Cal.4th at p. 1391.) Yet the court did not suggest section 190.5, subdivision (b) evinces a
preference for a sentence of 25 years to life. Rather, the court determined that “[u]nder
Miller, a state may authorize its courts to impose life without parole on a juvenile
homicide offender when the penalty is discretionary and when the sentencing court’s
discretion is properly exercised in accordance with Miller.” (Gutierrez, supra, at
p. 1379.)
       The trial court here thoughtfully weighed the applicable factors, particularly
defendant’s youth and its attendant circumstances, and implicitly concluded defendant
was unfit ever to reenter society. We cannot say it exceeded the bounds of reason, all of
the circumstances being considered, under section 190.5, subdivision (b). (See People v.
Giminez (1975) 14 Cal.3d 68, 72 [“discretion is abused whenever the court exceeds the
bounds of reason, all of the circumstances being considered”].)
       Moreover, we have subjected the constitutionality of the sentence to our
independent review, taking into consideration defendant’s age and its hallmark features
(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468]; Gutierrez, supra, 58 Cal.4th at
p. 1388), record information regarding defendant’s family and home environment
(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468]; Gutierrez, supra, 58 Cal.4th at
pp. 1388-1389), and record evidence and information regarding the circumstances of the
murders, including whether substance abuse played a role (Miller, supra, 567 U.S. at

                                            25.
p. ___ [132 S.Ct. at p. 2468]; Gutierrez, supra, 58 Cal.4th at p. 1389). We have
considered whether defendant’s youth had any effect on how he was charged or whether
he was somehow disadvantaged in the criminal proceedings (Miller, supra, 567 U.S. at
p. ___ [132 S.Ct. at p. 2468]; Gutierrez, supra, 58 Cal.4th at p. 1389), but find no
evidence or information suggesting this factor is applicable to defendant’s case. Finally,
we have examined the record for any evidence or other information bearing on the
possibility of rehabilitation. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468];
Gutierrez, supra, 58 Cal.4th at p. 1389.) Other than defendant’s age and lack of past
criminal history, we find none — only speculation.17 Speculation is insufficient to render
unconstitutional a sentence that otherwise passes constitutional muster.
       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.]” (Gutierrez, supra, 58 Cal.4th at p. 1390.) It “‘[took] into account how
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.’ [Citation.]” (Ibid.) The sentence it imposed did not violate
the federal or state Constitution. (See Bell v. Uribe (9th Cir. 2014) 748 F.3d 857, 869-
870, petn. for cert. pending, petn. filed May 21, 2014.)




17      Mason’s report detailed defendant’s chaotic and unfortunate upbringing and
environment, and explained how various aspects could affect brain development and
behavior. Other than conveying defendant’s expression of remorse and desire to be a
better person, however, the report did not address any potential for rehabilitation.



                                             26.
                                DISPOSITION
    The judgment is affirmed.

                                              _____________________
                                                        DETJEN, J.
WE CONCUR:


_____________________
GOMES, Acting P. J.


_____________________
FRANSON, J.




                                    27.
