Filed 9/16/16 P. v. Brown CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B265329

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA020150)
         v.

CINDY I. BROWN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
R. Romero, Judge. Reversed and remanded for resentencing.
         Christopher C. Hawthorne, 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, Theresa A. Patterson and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.




                                       __________________________
       Appellant Cindy Brown plead no contest in 1996 to first degree murder with a
special circumstance allegation, arising out of a crime she committed as a juvenile. She
was sentenced to life without the possibility of parole. In 2013, following her petition for
habeas corpus, the trial court conducted a new sentencing hearing, imposing the same
sentence at its conclusion. Brown has appealed, arguing that the trial court failed to
consider the factors mandated by the United States and California Supreme Courts.
Respondent has conceded the error. We agree, reverse the judgment, and remand for
resentencing.

                               PROCEDURAL HISTORY
       The circumstances of this tragic crime are not before this Court; the underlying
murder has been adjudicated. The issue before this Court relates solely to the sentence
imposed.
       At the time of Brown’s initial plea and sentence in 1996, California courts applied
a presumption in favor of life without parole as the sentence for juveniles convicted of
special circumstance murder. That was the sentence imposed on Brown.
       Two years later, in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 2460,
183 L.Ed.2d 407], “the United States Supreme Court ruled that ‘mandatory life without
parole for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on “cruel and unusual punishments,”’ relying extensively on
differences between juveniles and adults with regard to their culpability and capacity for
change.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360 [applying Miller and
holding there is no presumption in favor of life without parole (LWOP) under Pen. Code,
§ 190.5].)
       Brown filed a petition for habeas corpus seeking resentencing under Miller in
2013; the trial court issued an order to show cause in 2014. Brown filed an extensive
sentencing memorandum and exhibits. The district attorney filed a memorandum seeking
reimposition of the life without parole sentence. The court conducted the resentencing
hearing on May 15, 2015, admitting Brown’s exhibits and hearing testimony from Brown


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and her expert, Dr. Saint Martin. The district attorney cross-examined Brown, but
produced no witnesses or exhibits.
       The trial court indicated it was proceeding in accordance with Gutierrez, and also
indicated that, as the district attorney had urged, it would not consider events subsequent
to the initial sentencing in the matter, including Brown’s conduct in state prison. In a
lengthy statement at the end of the hearing, the trial court confirmed that it did not
consider “any conduct after the date of the original sentencing.” The court concluded
that Brown was “the rare juvenile deserving of LWOP,” and resentenced her to life
without the possibility of parole. Brown appeals.

                                       DISCUSSION
       A. LWOP for Juveniles Should Be Rare
       The last decade has seen a significant change in the law of appropriate sentencing
for juveniles who commit serious crimes. Beginning with Roper v. Simmons (2005) 543
U.S. 551, 578, which held that no person may be executed for a crime committed while a
juvenile, the United States Supreme Court has recognized the science supporting the
conclusion that juveniles are different from adults in their development, ability to control
their actions, and understanding of the consequences of those actions. (See Graham v.
Florida (2010) 560 U.S. 48, 74 [no LWOP for juveniles committing non-homicide
offenses].) In Miller v. Alabama, supra, 132 S.Ct. 2455 the Supreme Court barred
automatic LWOP for homicide offenses as a violation of the Eighth Amendment
prohibition of cruel and unusual punishment; children, it found, are “constitutionally
different from adults for purposes of sentencing” for several reasons based “not only on
common sense--on what ‘any parent knows--but on science and social science as well.”
(Id. at p. 2464.)
       “First, children have a “lack of maturity and an underdeveloped sense of
responsibility,” leading to recklessness, impulsivity, and heedless risk-taking.
[Citations.] Second, children ‘are more vulnerable . . . to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘contro[l] over their


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own environment’ and lack the ability to extricate themselves from horrific, crime-
producing settings. (Ibid.) And third, a child’s character is not as ‘well formed’ as an
adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’” (Miller v. Alabama, supra, 132 S.Ct. at p. 2464.)
       These “distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they commit terrible
crimes. Because “‘[t]he heart of the retribution rationale”’ relates to an offender’s
blameworthiness, ‘the case for retribution is not as strong with a minor as with an adult.’
[Citations.] Nor can deterrence do the work in this context, because “‘the same
characteristics that render juveniles less culpable than adults”’--their
immaturity, recklessness, and impetuosity--make them less likely to consider potential
punishment. [Citations.] Similarly, incapacitation could not support the life-without-
parole sentence in Graham: Deciding that a ‘juvenile offender forever will be a danger
to society’ would require ‘mak[ing] a judgment that [he] is incorrigible’--but
“incorrigibility is inconsistent with youth.” [Citations.] And for the same reason,
rehabilitation could not justify that sentence. Life without parole ‘forswears altogether
the rehabilitative ideal.’ [Citation.] It reflects ‘an irrevocable judgment about [an
offender’s] value and place in society,’ at odds with a child’s capacity for change.’”
[Citation.] (Miller v. Alabama, supra, 132 S.Ct. at p. 2465.)
       The California Supreme Court has, in accordance with this authority, delineated
the factors a sentencing court must consider in sentencing under Penal Code section
190.3 for homicide offenses committed by a juvenile: the offender’s “chronological age
and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate
risks and consequences” (quoting Miller v. Alabama, supra, at p. 2468);1 evidence
concerning the family and home, including childhood abuse or neglect, substance abuse
in the family, lapses in adequate parenting, exposure to violence and susceptibility to

1      These criteria relate to the fact of being a juvenile, and are unrelated to the facts of
the crime. The trial court below appeared to analyze this factor as being related to the
crime itself.

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psychological or emotional disturbance; evidence concerning the offense, including the
defendant’s participation and any pressure, whether from family members or peers, that
could have affected defendant; evidence of any affect of the inability of the defendant,
because of youth, to deal with police, prosecutors, or to assist his or her counsel; and any
evidence related to rehabilitation, noting that because a juvenile does not have the fully
formed character of an adult, ‘“his actions[are]less likely to be “evidence of irretrivabl[e]
deprav[ity].””’ (Gutierrez, supra 58 Cal.4th at pp. 1388-1389.)
       After Gutierrez was decided, our Supreme Court again addressed the special
considerations in sentencing juvenile offenders, and reiterated the conclusion that life
sentences for such offenders should be rare and exceptional, quoting Miller:
“[G]iven all we have said in Roper, Graham, and this decision about children’s
diminished culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon.
That is especially so because of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between ‘the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.’ [Citations.] Although we do not foreclose a sentencer’s 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.” (People v. Franklin (2016) 63 Cal.4th 261, 275, Miller v. Alabama,
supra, 132 S.Ct. at p. 2469.)

       B. The Trial Court Failed To Consider All Individual Characteristics of This
          Defendant

       The record produced for the resentencing hearing in this case was extensive,
narrating a story that included childhood sexual abuse by extended family members,
diagnosed learning disabilities and mental illness, and statements by Brown’s parents that
they were unwilling or unable to keep her in their home. The testifying expert performed
a record review, and interviewed and tested Brown; he identified a number of


                                              5
psychological issues, including her susceptibility to having decisions made for her by
others, and identified her mental age as 7.8 years. He concluded that, with treatment
which had not been provided to this point, her prognosis for improvement was fair,
although her intellectual disability was fixed.
       Brown’s prison record was also presented to the court in detail. That record
demonstrated 10 disciplinary actions over the term of her incarceration, but also
contained laudatory statements and records of participation in self-help programming. As
noted above, the trial court, at the urging of the district attorney, declined to consider the
record of her behavior and attempts at rehabilitation while in prison for this offense. This
record, however, is directly relevant to the last Gutierrez factor.
       This same issue was considered by this District earlier this year in People v.
Lozano (2016) 243 Cal.App.4th 1126. There, in a post-Miller resentencing, the trial court
declined to consider the defendant’s record during 15 years of her incarceration. The
Court of Appeal, in reversing, explained: “In light of Miller and Gutierrez, we conclude
the trial court could not categorically exclude Lozano’s proffered evidence of
postconviction rehabilitation. As Gutierrez, supra, 58 Cal.4th at p. 1390, interpreted
Miller, ‘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.”
(Miller, supra, 567 U.S. at p.___ [132 S.Ct. at p. 2465].)’ All relevant evidence, in our
view, includes what Lozano asserts is 15 years of rehabilitation in prison. Disregard of
evidence of rehabilitation, under the circumstances presented here, is inconsistent with
the focus required by Miller and Gutierrez.”’ (Id. at pp. 1137-1138.)
       We agree with the reasoning in Lozano, and reach the same result here. To fail to
consider all of the factors discussed by our Supreme Court is to fail to heed its conclusion
that only the rare juvenile offender should be subject to a LWOP sentence. The trial
court’s failure to consider the evidence relevant to the Gutierrez determination is error




                                               6
that mandates reversal and remand for resentencing.2 On remand, the trial court shall
consider all evidence presented by the parties relevant to the factors set out in Gutierrez,
including evidence concerning Brown’s record during her incarceration.

                                      DISPOSITION
       The judgment is reversed and the matter remanded for resentencing.




                                                  ZELON, Acting P. J.




We concur:




       SEGAL, J.




       GARNETT, J.




2     Brown raises a number of other issues related to the determinations of the
Gutierrez factors by the trial court. Because we remand for a new hearing, those
arguments can be presented on a rehearing of this matter, we do not reach them here.

        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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