Filed 6/22/16 P. v. Gutierrez CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B261989
                                                                          (Super. Ct. No. 2008011529)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

LUIS ANGEL GUTIERREZ,

     Defendant and Appellant.


                   In 2008, 17-year-old Luis Angel Gutierrez stabbed his aunt to death during
the commission of a rape or attempted rape. Appellant was convicted by jury of first
degree special circumstances murder and sentenced to life without parole (LWOP). (Pen.
Code, § 190.5, subd. (b).)1 Our state Supreme Court reversed and remanded for
resentencing in light of Miller v. Alabama (2012) 567 U.S. __, [132 S.Ct. 2455] (Miller)
which requires that a trial court, in exercising its sentencing discretion, consider the
" 'distinctive attributes of youth' " and how those attributes " 'diminish the penological
justifications' " for imposing a LWOP sentence. (People v. Gutierrez (2014) 58 Cal.4th

1 All statutory references are to the Penal Code. Section 190.5, subdivision (b) provides
in relevant part: "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
under Section 190.4, who was 16 years of age or older and under the age of 18 years at
the time of the commission of the crime, shall be confinement in the state prison for life
without the possibility of parole or, at the discretion of the court, 25 years to life."
1354, 1361, quoting Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2465].) On remand,
the trial court conducted a new sentencing hearing and imposed an LWOP sentence from
which appellant appeals. We affirm.
                                            Facts
              On March 16, 2008, appellant sexually assaulted Josefina Gutierrez in her
bedroom. He also stabbed her 28 times. Josefina lived with her husband and sons, and
provided appellant a home after he moved to the United States to work as a cook.
Appellant and his father shared a bedroom in the house.
              Josefina was asleep when her husband left for work at 4:20 a.m. that
Sunday morning. Appellant took his shoes off, entered the house, armed himself with a
large kitchen knife, and silently entered Josefina's bedroom. Abraham Gutierrez, a
nephew, heard someone open the bedroom door and saw appellant in the kitchen with a
cut right hand. Appellant tried to hide the injury and said "[s]ome guys cut me" in a
fight. Appellant left five minutes later.
              Jose Luis Mendoza, Josefina's brother, saw blood on the floor and the
bedroom door ajar. Josefina was naked, lying face down with her legs spread apart. A
large knife protruded from her back. There were fresh bruises on her face and body and
28 stab wounds to the back, shoulder, hands, chest, face, and neck.
              Appellant admitted himself to Los Robles Hospital in Simi Valley. He
claimed that a Hispanic gang member stabbed him in the hand at a party.2 A sexual
assault nurse examiner found blood on the head of appellant's penis and Josefina's DNA
on his scrotum. There was blood between appellant's toes, and hairs and fibers stuck to
the bottom of his feet.
              The police found bloody handprints on Josefina's thighs, blood on the
bedroom walls and ceiling, and blood spatter and smears. Appellant's DNA was on

2 Appellant told a detective that 15 drug dealers kidnapped him in front of his house and
drove him to a mall where they cut his hand and stabbed him in the leg because he owed
$200 for methamphetamine. The drug dealers drove appellant back to Simi Valley and
told him that he had 15 days to come up with their money.


                                             2
Josefina's perianal area, her buttocks and inner thighs. The blood marks on Josefina's
back were consistent with an erect penis being dragged across her back. Officers
searched appellant's bedroom and found bloody socks, shoes, and pants. Blood was on
the outside and inside of appellant's car and a bloodstained dress shirt was in the car.
              Appellant underwent hand surgery and was released three days later. In a
Miranda interview (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), he gave
conflicting accounts about what happened. Appellant said that he purchased
methamphetamine at a birthday party and that 10 to 15 men beat and stabbed him. Simi
Valley Police Officer Lincoln Purcell told appellant that the house had been under
surveillance and no one saw a group of men harm anyone at the party.
              Appellant changed his story and said that he got home at 5:30 a.m. and
knocked on Josefina's bedroom door. The two argued and Josefina attacked him with a
knife. Appellant claimed that Josefina cut him and then stabbed herself.
              When Officer Purcell informed appellant that Josefina was stabbed in the
back multiple times, appellant said that Josefina stabbed herself to falsely incriminate
him. After Josefina cut his hand, appellant said that he grabbed the knife and stabbed her
in the back two times. Appellant denied stabbing Josefina in the face or neck or having
sex with her. Officer Purcell asked why blood was on appellant's penis. Appellant said
that Josefina sexually assaulted him, took off her nightshirt, and that he fell on top of her
after she pulled his pants down.
              Appellant was convicted of first degree murder with the special
circumstances finding that the murder was committed during the commission of a rape or
attempted rape. (Pen. Code, §§ 187, subd. (a); 189; 190.2, subd. (a)(17)(C); 261.) The
jury found that appellant personally used a deadly weapon (§ 12022, subd. (b)(1)) and
was over 14 years of age at the time of the offense (Welf. & Inst. Code, § 602, subd.
(b)(1)). Appellant was sentenced to life without possibility of parole (LWOP) plus one
year on the weapon enhancement (§§ 190.5, subd. (b); 12022, subd. (b)(1)).




                                              3
                                  Remand for Resentencing
              After we affirmed the conviction (B227606), our state Supreme Court
remanded for resentencing in light of Miller which was decided after appellant's trial.
(Gutierrez, supra, 58 Cal.4th at p. 1361.) Before Miller, California courts interpreted
section 190.5, subdivision (b) "as establishing a presumption in favor of life without
parole for juvenile offenders who were 16 years of age or older when they committed
special circumstance murder." (Gutierrez, supra, 58 Cal.4th at p. 1369.) Harmonizing
section 190.5, subdivision (b) with the Eighth Amendment protections clarified in Miller,
the Gutierrez court held that section 190.5, subdivision (b) "confers discretion on the
sentencing court to impose either life without parole or a term of 25 years to life on a 16-
or 17-year-old juvenile convicted of special circumstance murder, with no presumption in
favor of life without parole." (Id., at p. 1387.) Before imposing a LWOP sentence on a
juvenile homicide offender, the sentencing court must consider five factors enumerated in
Miller: (1) the inherent impact of the juvenile's age on his culpability; (2) the juvenile's
home and family environment; (3) the circumstances of the homicide offense; (4) the
juvenile's cognitive ability to deal with law enforcement officers and prosecutors as well
as effectively assist in his own defense; and (5) the possibility of rehabilitation. (Id., at
pp. 1388-1389.)
              The Gutierrez court acknowledged that "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.) In a concurring opinion, Justice Corrigan emphasized that
"[t]he appropriate sentence for any particular minor remains a question for the
sentencing court. As the Miller majority observed: 'Our decision does not categorically
bar a penalty for a class of offenders or type of crime . . . . Instead, it mandates only that
a sentencer follow a certain process - considering an offender's youth and attendant


                                               4
characteristics - before imposing a particular penalty.' [Citation.]" (Id., at pp. 1393-
1394.)
              On remand, the trial court considered the prosecution's sentencing memo,
appellant's sentencing brief, a neuropsychological report prepared by Inés Monguió,
Ph.D., photographic evidence admitted at trial, the probation report, the court's notes
from the original sentencing hearing, the Supreme Court Gutierrez decision, a DVD
chronicling the victim's life, a victim impact statement, and a YouTube video on the
developing brain of an adolescent. The trial court found that appellant suffered no mental
illness or developmental disability and that none of the youth-related factors articulated in
Miller warranted a sentence of 25 years to life. It found that the murder was "well
planned as demonstrated by the evidence including the knowledge of the victim's
husband's work schedule, the evidence of waiting outside the home, the evidence of
secretly or unnoticingly entering the house by taking off his shoes, [and] by arming
himself prior to the crime. Those things in my view are entirely inconsistent with
recklessness, impulsivity and [an] underdeveloped sense of consequences." The trial
court found that appellant, despite his youth, appreciated the consequences of his action,
had no remorse, and that appellant's motive was to commit a violent sex act on an
unsuspecting victim. "There is no factor, no extraneous factor . . . that . . . you could . . .
look at and say oh, that's the way a youthful offender would respond."
                                      Right to Jury Trial
              Appellant argues that he was denied the right to a jury trial at sentencing.
Appellant forfeited the issue by not objecting or requesting a jury. The matter was
remanded in light of Miller which requires that the trial court, in exercising its sentencing
discretion, consider the " 'distinctive attributes of youth' and how those attributes
'diminish the penological justifications for imposing the harshest sentences on juvenile
offenders' before imposing life without parole on a juvenile offender. [Citation.]"
(Gutierrez, supra, 58 Cal.4th at p. 1361.) Because it was a limited remand, appellant is
precluded from arguing that the Miller factors should have been decided by a jury. (See
People v. Deere (1991) 53 Cal.3d 705, 713 [only errors within the scope of the remand


                                               5
are cognizable in second appeal]; People v. Murphy (2001) 88 Cal.App.4th 392, 396–397
["In an appeal following a limited remand, the scope of the issues before the court is
determined by the remand order."].)
              On the merits, appellant cites no authority that a juvenile homicide offender
has a statutory or constitutional right to jury trial on Miller sentencing factors. Miller
makes clear that the special considerations attendant to youth are to be decided at time of
sentencing. (See e.g., Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2466].) Juries are
not "sentencers" and do not decide punishment in a non-capital case. (CALCRIM 3550;
People v. Nichols (1997) 54 Cal.App.4th 21, 24.)
              It is well settled that any fact that increases the penalty for a crime beyond
the statutory maximum must be proved to a jury beyond a reasonable doubt in order to
satisfy the Sixth Amendment right to jury trial. (Apprendi v. New Jersey (2000) 530 U.S.
466, 490 [147 L.Ed.2d 435, 455] (Apprendi); People v. Black (2007) 41 Cal.4th 799,
812.)3 Here, the jury found that it was a special circumstances murder and that appellant
was over 14 years of age at the time of the offense. What, then, is the maximum sentence
authorized by the verdict? Section 190.5, subdivision (b) provides that the trial court
may, in its discretion, sentence appellant to LWOP or 25 years to life state prison.
LWOP is the statutory maximum sentence but the Miller factors may reduce the
punishment to 25 years to life state prison. Apprendi, however, does not afford appellant
the right to have a jury decide or weigh those factors. (See e.g., People v. Sandoval
(2007) 41 Cal.4th 825, 839; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230.)
"[S]o long as a defendant is eligible for the upper term by virtue of facts that have been
established consistently with Sixth Amendment principles, the federal Constitution

3 In Hurst v. Florida (2016) __ U.S. __ [136 S.Ct. 616], the maximum sentence a capital
felon could receive on the basis of a conviction alone was life imprisonment. The trial
court, however, had the authority to impose a death sentence if the jury rendered an
"advisory sentence" of death and the court found an aggravating circumstance. The
United States Supreme Court concluded tht the "hybrid" procedure violated Apprendi and
Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428] because the jury's function was
advisory only. (Hurst v. Floridia, supra, __ U.S. at p. __ [136 S.Ct. at pp. 621-622].)


                                              6
permits the trial court to rely upon any number of aggravating circumstances in
exercising its discretion to select the appropriate term by balancing aggravating and
mitigating circumstances, regardless of whether the facts underlying those circumstances
have been found to be true by a jury." (People v. Black, supra, 41 Cal.4th at p. 813.)
                                       People v. Dillon
              Appellant contends that the LWOP sentence is grossly disproportionate to
the offense and should be reduced to a life sentence based on People v. Dillon (1983) 34
Cal.3d 441 (Dillon). We rejected a similar argument in the first appeal. The case was not
remanded for a Dillon analysis nor did appellant ask the trial court to make a Dillon
analysis at resentencing. "Since the determination of the applicability of Dillon in a
particular case is fact specific, the issue must be raised in the trial court. Here, the matter
was not raised below, and is therefore waived on appeal." (People v. DeJesus (1995) 38
Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.)
              Appellant makes no showing that the LWOP sentence is grossly
disproportionate to the severity of the crime or violates the constitutional prohibition
against cruel and/or unusual punishment. (Solem v. Helm (1983) 463 U.S. 277, 287 [77
L.Ed.2d 637, 647-648]; Dillon, supra, 34 Cal.3d at pp. 477-478.) It was a heinous
murder. Appellant repeatedly stabbed the victim during the commission of a brutal
sexual assault. Appellant lied to family members, and was calm and collected when he
left the house. He showed no remorse and, when confronted by the evidence, had the
audacity to say the victim sexually assaulted him and stabbed herself. Following the
Miranda interview, appellant accompanied the officers to the crime scene and calmly
walked through the bloodstained bedroom. His only concern was that his socks might get
stained by the blood.
              Successful challenges to a LWOP sentence based on Dillon are extremely
rare. (See e.g., In re Nuñez (2009) 173 Cal.App.4th 709, 725 ["rarest of the rare"];
People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 ["exquisite rarity"]; People v. Em
(2009) 171 Cal.App.4th 964, 977 [successful grossly disproportionate challenges are



                                               7
' "exceedingly rare" ' and appear only in an ' "extreme" ' case].) Appellant makes no
showing that the LWOP sentence shocks the conscience, is grossly disproportionate to
the offense, or is cruel and/or unusual punishment under the federal and state
Constitutions. (People v. Dillon, supra, 34 Cal.3d at p. 478; People v. Cunningham
(2001) 25 Cal.4th 926, 1042.)
                             Miller Factors On Resentencing
              On resentencing, the trial court considered a neuropsychological report
detailing appellant's family history and upbringing, his substance abuse, his mental
development, and pertinent psychosocial factors. Based on self-serving statements in the
report, appellant argues that the following Miller factors weigh against the imposition of
a LWOP sentence.

                            Upbringing and Living Conditions
              Appellant claims that he suffered an impoverished and unsupervised
childhood that rendered him a vulnerable and immature 17-year-old. Appellant's father
left Mexico to work in the United States and told six-year old appellant he would have to
be the "man of the house." Appellant grew up near Mexico City and supported his
mother and sisters. He worked for a neighbor, lost his job, and sold chocolates in the
streets which older men commonly did to support their families. Appellant was sexually
involved with a woman who was eight years his senior and an alcoholic. He had plans to
expand his chocolate business. At age 16, appellant decided to move to California and
work as a cook under his father's mentorship. The trial court found that appellant was
quite industrious in Mexico, got along well with adults, and had very normal sexual
experiences with women. "[N]one of those things demonstrate to me that the
characteristics of an immature brain were acting upon [appellant] in his everyday life."
              Appellant argues that it is "shocking" that the trial court did not consider his
upbringing to be a mitigating factor. Miller requires that the sentencing court focus on
family factors that render the juvenile offender vulnerable to negative influences and
outside pressures. If the juvenile offender had an abusive and dysfunctional family life,


                                              8
the offender may lack the ability to extricate himself/herself from horrific, crime-
producing settings. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2464].) But none of
those factors describe appellant's childhood. Appellant completed eight years of
schooling with better than average grades and exhibited few behavioral problems. As a
teenager, he drank beer with friends but declined to participate in their "stupid" behavior.
His mother never saw him drunk and no one thought he had a drinking problem.
Appellant felt responsible for the safety of his family, supported his family, and acted
older than his age. He got along well with adults and had normal sexual experiences with
older woman, and had no history of violence or sexual abuse.
              The trial court acknowledged that the Miller attributes of a youthful
offender include "immaturity and recklessness and impulsivity . . . . [W]e are talking
about immaturity and recklessness and impulsivity. . . [W]e are talking about
vulnerability to negative influences and outside pressures or limited control over an
environment and limited ability to extricate oneself from a crime-producing setting or
susceptibility or influence in psychological damage[.] [N]one of those things are
evidence[d] in [appellant's] general behavior."
              Appellant argues that he had no parental supervision and worked in the
streets selling chocolates even though state law prohibits children from working during
school hours. That may be the law in the United States but not in Mexico where
appellant was raised. In Mexico, six years of education is the norm. Appellant
completed eight years of schooling, was gainfully employed, acted older than his age, and
was not influenced by peers.
              Appellant was raised by his mother but kept in contact with his father. If
appellant misbehaved, his father chastised him over the phone. Appellant was close to
his father and moved to California to be mentored by his father. Before the murder,
appellant rented a room with his father in Josefina's house and was treated like family. It
was a close knit, supportive family. All of the male adults in the household were
gainfully employed and either encouraged or obtained employment for appellant. A


                                             9
month before the murder, Josefina got the family together to celebrate appellant's
birthday. There is no evidence that appellant had an abusive childhood or was raised in a
dysfunctional home environment. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p.
2468].)
                                   Cognitive Limitations
              Appellant argues that he suffers from cognitive limitations and substance
abuse problems that are mitigating sentence factors. The trial court found that appellant
"suffered no mental illness or . . . developmental disabilities. . . . Dr. Monguió, of course,
talked about a long and extreme history of substance abuse. [Appellant] denies that in his
assessment with the California Department of Corrections. He denies having a substance
abuse problem." Appellant did not believe he had a substance abuse problem or seek
treatment in prison. Appellant denied that he bought or sold drugs or knew the price of
drugs, and told Dr. Monguió that he only used drugs when he partied with his cousins.
              The neuropsychological report states that appellant tested in the mentally
retarded range and had a boarder line verbal comprehension. The trial court found that
the test results were not credible. Appellant had the mental acumen to dupe the police
into believing that he was 21 years old and fabricated stories about his innocence. In a
two-hour-forty-minute Miranda interview that was videotaped, appellant presents himself
as an alert young man who is sober, calm, and responsive to the officers' questions. The
trial court found that appellant understood his rights and was in control of the situation.
That is consistent with Dr. Monguió's report which states that appellant is alert, oriented
in all spheres, has an average intellect with no thought disorders, and has fair to good
insight and judgment with "tight" associations. The report states that "[t]here appears to
be no deficits of executive functions that would lead to impulsivity or poor judgment."
              The trial court found that appellant "immediately appreciated the
consequence of his actions when he left [the victim's bedroom], when he lied, when he
convinced -- under that very horrific scenario convinced the victim's family members that
nothing other than a boyhood folly . . . caused his injuries . . . . He fled to what he would


                                             10
consider a safe haven at his cousin's house. There's no doubt and there's no other logical
conclusion from the evidence other than he appreciated the consequences of his behavior
and there would be no other reason to lie or to dispose of evidence, no other explanation
for that." The court found that appellant was not "vulnerable to negative influences or
outside pressures. There is no one else associated with this crime. There are no
codefendants. There are no older cousins encouraging him to behave badly. There is no
one dragging him along in a group mentality to commit some type of group offense. . . .
There is no evidence to support the conclusion that his youthful brain caused him to have
limited control over his environment or the ability to extricate himself from the crime-
producing setting."
              Appellant argues that he tested positive for alcohol and methamphetamine
the day of the murder, but that is not a mitigating Miller factor. Appellant carried out a
well-planned murder by removing his shoes, quietly entering the house, and arming
himself with a kitchen knife. Appellant went in and out of the victim's bedroom without
alerting family members, hid evidence, and lied to family members. At the hospital, he
fabricated an elaborate story about how he was attacked by a gang member. Although a
lab report indicated that appellant had alcohol and methamphetamine in his system, none
of the people who spoke to appellant the day of the murder -- family members, a cousin,
hospital staff, and police officers --- reported that appellant was intoxicated or appeared
to be under the influence of drugs.
                                      Nature of the Crime
              Appellant argues that the nature of the crime demonstrates lack of maturity
and recklessness and impulsivity. We disagree. The murder was well planned and
carried out with stealth. The trial court found that the victim and victim's family "treated
him as [their] own. And I can't identify any reason why he would do this except to
satisfy his own selfish sexual desires, which in my view are completely inconsistent with
the youthful offender."



                                              11
                                 Inability to Explain Crime
              Appellant argues that he would not have killed anyone "if not for the drugs"
and that his inability to explain the murder "can itself be attributed to the drugs."
Although appellant had methamphetamine in his system the day of the murder, there is
no evidence that appellant was drug impaired. In a presentence probation interview,
appellant laughed, smiled, and smirked when asked about the murder. Appellant was
almost jovial and said he got a "little crazy." The trial court found that appellant provided
"absolutely no explanation as to why he did this. . . . [H]e couldn't explain it to the doctor
that was there to . . . evaluate him and present the best evidence to the court."
                                Potential for Rehabilitation
              Miller requires that the sentencing court consider the potential for
rehabilitation and whether the defendant appreciated the risks and consequences of
committing the murder. Appellant repeatedly stabbed the victim during a violent sexual
assault and, three days later, told the police that the victim sexually assaulted him and
stabbed herself. When appellant was told that the victim was dead, he smiled and
showed no signs of remorse. At trial, appellant seemed proud of what he did when
photographs of the murder scene were displayed to the jury.
              The trial court found that there are no "circumstances that demonstrate that
[appellant] can be rehabilitated. [Appellant's] behavior in custody prior to trial was
atrocious. . . ." When appellant got to prison, his crimes included "fighting, mutual
combat, fighting in custody." Taking into account appellant's age, background, maturity,
and lack of remorse, the trial court reasonably concluded that appellant is incorrigible, is
extremely dangerous, and exhibits such irretrievable depravity that rehabilitation is
impossible. (Gutierrez, supra, 58 Cal.4th at p. 1391.) "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,



                                              12
under section 190.5, subdivision (b). [Citation.]" (People v. Palafox (2014) 231
Cal.App..4th 68, 91.)
                                         Conclusion
              Substantial evidence supports the finding that appellant is a " 'rare juvenile
offender whose crime reflects irreparable corruption.' [Citations.]" (Miller, supra, 567
U.S., at p. __ [132 S.Ct. at p. 2469].) In sentencing appellant to life without parole, the
trial court gave due consideration to all the Miller factors including appellant's age and
"its hallmark features - among them, immaturity, impetuosity, and failure to appreciate
risks and consequences," family and home environment, the circumstances of the
homicide, and family and peer pressures. (Id., at p. __ [132 S.Ct. at p. 2468].) Appellant
makes no showing that the trial court abused its discretion by imposing an LWOP
sentence.
              The judgment (order resentencing appellant to LWOP) is affirmed.
              NOT TO BE PUBLISHED.


                                                         YEGAN, Acting P. J.

We concur:


              PERREN, J.


              TANGEMAN, J.




                                             13
                               Patricia M. Murphy, Judge

                           Superior Court County of Ventura

                         ______________________________


             Jean F. Matulis, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn
McGahey Webb, Supervising Deputy Attorney General, David F. Glassman, Deputy
Attorney General, for Plaintiff and Respondent.
