Filed 6/21/16
                              CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SIXTH APPELLATE DISTRICT


THE PEOPLE,                                            H042316
                                                      (Monterey County
         Plaintiff and Respondent,                     Super. Ct. No. SM980198)

         v.

NORMAN WILLOVER,

         Defendant and Appellant.




                                    I.     INTRODUCTION
         In 1999, defendant Norman Willover was sentenced to two consecutive terms of
life without the possibility of parole (LWOP) for crimes he committed as a juvenile. In
2014, defendant filed a petition for recall and resentencing pursuant to Penal Code
section 1170, subdivision (d)(2).1 After a hearing, the trial court denied his resentencing
petition. On appeal, defendant claims the trial court erroneously denied his petition based
solely on the circumstances of his crimes and that the relevant factors weighed in favor of
recall and resentencing. For reasons that we will explain, we will affirm the trial court’s
order.




         1
             All further statutory references are to the Penal Code unless otherwise noted.
                                 II.    BACKGROUND
       A.     The Underlying Offenses
              1.     Facts
       The following summary of defendant’s underlying offenses is taken from this
court’s nonpublished opinion (People v. Willover (Oct. 19, 2000, H019899)), issued after
he appealed from his convictions.2
       In December of 1997, defendant, age 17, was living in a residential treatment
center in Provo, Utah. One day, he left the treatment center without authorization. He
bought a Ruger .22-caliber pistol from a teenager in Pleasant Grove, Utah. He then left
for the Monterey area, with the gun in his black backpack. He stated that he planned to
use the gun to rob and kill people and to settle scores with rival gangs.
       When defendant arrived in Monterey on January 31, 1998, he obtained
ammunition for his gun and loaded it. Later that day, defendant got together with Joseph
Manibusan, Adam Tegerdal, and Melissa Contreras. The four young people drove
around the Monterey area in Tegerdal’s Mercury Cougar. Defendant had the gun, bullets,
and clips in his backpack.
       Defendant and Manibusan discussed robbing someone. Manibusan directed
Contreras, who was driving, where to go. He told her to pull over near the Monterey
Sports Center. Defendant and Manibusan left the vehicle with the gun, saying they had
seen someone with a purse. They returned shortly, saying they could not find the person
they had been looking for.
       Manibusan then took over driving. He drove onto the Monterey Wharf, where
Priya Mathews and Jennifer Aninger were drinking coffee and talking. Defendant and
Manibusan discussed whether the women had a purse. Defendant yelled out to the


       2
        On our own motion, we take judicial notice of the prior opinion in People v.
Willover, supra, H019899. (Evid. Code, § 452, subd. (d)(1).)

                                              2
women, “Give me your money.” The women could not hear him, however. Defendant
said something vulgar and then fired nine shots at the two women. Four bullets hit
Mathews and two bullets hit Aninger.
         Mathews was hit in her upper arm, thigh, and the middle of her back. The bullet
that entered the middle of her back punctured her lungs, aorta, and heart. She died at the
scene.
         Bullets entered Aninger’s brain and left arm but she survived. She had three
operations on her brain, and as a result of the shooting she lost her senses of smell and
taste. She had no use of her left arm until after surgery several months later, which
enabled her to regain only some use of the arm.
         After defendant shot Mathews and Aninger, Manibusan drove the car to
Tegerdal’s house, where the group got into Tegerdal’s Chevrolet Monte Carlo in order to
escape police detection. Along the way, Manibusan told defendant that he “wanted his
turn.”
         Manibusan again drove. He handled defendant’s pistol and asserted that he
wanted to find someone to rob. He drove to Salinas and then to Seaside, where he
noticed Frances Olivo walking on the sidewalk.
         Defendant asked if Manibusan was going to rob Olivo. Manibusan said yes, drove
the car up to Olivo, and motioned her over. Manibusan shot at Olivo about six times,
hitting her with three bullets. The bullets entered Olivo’s breast, chest, and shoulder.
She died at the scene.
         On February 4, 1998, a few days after the shootings, defendant gave his backpack
to a friend. The gun, clips, and bullets were inside the backpack. Defendant told his
friend that the gun was “heated,” meaning it was stolen or had been used in a crime.
Defendant was arrested that same day.




                                              3
              2.     Convictions and Jury Findings
       Defendant was convicted of first degree murder of Mathews and first degree
murder of Olivo (§ 187, subd. (a)), attempted premeditated murder of Aninger (§§ 664,
187, subd. (a)), aggravated mayhem (§ 205), and giving false information to a peace
officer (§ 148.9, subd. (a)). The charges of first degree murder were brought on the
theory that they were “perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle with the intent to inflict
death.” (§ 189.)
       The jury found true three special circumstance allegations: multiple murders
(§ 190.2, subd. (a)(3)); murder during the commission of attempted robbery (id.,
subd. (a)(17)); and drive-by shooting (id., subd. (a)(21)). The jury also found that
defendant personally discharged a firearm causing great bodily injury or death
(§ 12022.53, subd. (d)) and intentionally inflicted great bodily injury or death as a
result of discharging a firearm from a vehicle during the commission of a felony or
attempted felony (§ 12022.55).
              3.     Sentencing
       At defendant’s sentencing hearing, held on April 2, 1999, the prosecutor argued
that LWOP was the presumptive sentence for a special circumstance murder committed
by a 16- or 17-year-old juvenile, pursuant to section 190.5, subdivision (b). The
prosecutor advocated for an LWOP sentence, noting that two psychiatric evaluators had
concluded defendant was faking symptoms of a mental illness and that a third evaluator
had referred to defendant as “the most cold blooded, callous killer.” The prosecutor
argued that if defendant was given a sentence other than LWOP, “he will come back
again looking for someone to kill.”
       Defendant’s trial counsel argued that defendant suffered “from a mental condition
that reduced culpability” and that defendant was a “grossly immature” young man who
had “little or no ability to control his own aggression.” Defendant’s trial counsel argued

                                              4
that the crimes “were committed in so close a period of time as to indicate a single period
of aberrant behavior” and that defendant had “played a minor or passive role” in the
second murder. Defendant’s trial counsel noted that defendant had been diagnosed with
antisocial personality disorder and that antisocial behavior was commonly seen in
young males but that “most people by the time they’re in their forties or they’re in their
fifties do not generally tend to exhibit these tendencies.” Defendant’s trial counsel
requested the trial court impose a sentence that would give defendant “the opportunity
to be released from custody at some time during his life if he can demonstrate to the
authorities . . . that he is law abiding, that he is able to control himself, and that he does
not present a danger to public safety.”
       In announcing its sentencing decisions, the trial court first rejected defendant’s
claim that he was suffering from a mental illness that significantly reduced his culpability
for the crimes. The trial court noted it had read the letters submitted in support of
defendant, which all suggested “[t]hat it would be a miscarriage of justice somehow” if
petitioner received an LWOP sentence. The trial court noted that “all of the doctors and
the counselors involved in this case over the years” had characterized defendant as
argumentative, explosive, controlling, defiant, resistant to feedback, and a danger to
society, with poor impulse control. The court described defendant as “a textbook
example and the product of poor, indifferent and inadequate parenting,” noting that
defendant’s mother would often “blow up, call him a loser, give him a knife and ask him
to kill her.” The court believed that “[c]ommon sense dictates that [defendant] must
never be allowed the possibility of drawing another breath in freedom.”
       The trial court ultimately sentenced defendant to two consecutive LWOP terms
for the two first-degree murders, a consecutive term of 15 years to life for the attempted
premeditated murder, and two consecutive terms of 25 years to life for the allegations
that he personally discharged a firearm causing great bodily injury or death. The trial
court stayed the terms for the remaining counts and enhancements.

                                               5
               4.     Appeal and Habeas Petitions
       Defendant appealed following his convictions, and this court modified the
judgment to reflect that defendant’s sentence for the attempted premeditated murder was
life with the possibility of parole instead of 15 years to life.
       On February 28, 2013, defendant filed a petition for writ of habeas corpus in the
trial court, alleging that his LWOP sentence violated the Eighth Amendment. That
petition was denied on January 13, 2014.
       On March 10, 2014, defendant filed a petition for writ of habeas corpus in this
court, again arguing that his LWOP sentence violated the Eighth Amendment. This court
issued an order to show cause and an order vacating defendant’s sentence and remanding
the matter for resentencing, holding that defendant was entitled to a new sentencing
hearing under Miller v. Alabama (2012) 567 U.S. __ [132 S. Ct. 2455] (Miller).
However, the California Supreme Court granted review in that case. (In re Willover
(2015) 235 Cal.App.4th 1328, review granted June 24, 2015, S226523 [further action
“deferred pending consideration and disposition of a related issue in In re Alatriste,
S214652, and In re Bonilla, S214960 . . . , or pending further order of the court”].)
       B.      The Resentencing Petition
               1.     Section 1170, Subdivision (d)(2)
       Section 1170, subdivision (d)(2), enacted in 2012 (Stats. 2012, ch. 828, § 1),
provides a procedural mechanism for resentencing of defendants who were under the
age of 18 at the time of the commission of their offenses and who were given LWOP
sentences. If the defendant has served at least 15 years of the LWOP sentence, he or she
may “submit to the sentencing court a petition for recall and resentencing” (§ 1170,
subd. (d)(2)(A)(i)), so long as the LWOP sentence was not imposed for an offense in
which the defendant tortured the victim or an offense in which the victim was a public
safety official (id., subd. (d)(2)(A)(ii)).



                                               6
       In the petition, the defendant must describe “his or her remorse and work towards
rehabilitation.” (§ 1170, subd. (d)(2)(B).) The trial court “shall hold a hearing to
consider whether to recall the sentence and commitment previously ordered and to
resentence the defendant in the same manner as if the defendant had not previously been
sentenced” if it “finds by a preponderance of the evidence that the statements in the
petition are true.” (Id., subd. (d)(2)(E).) The statute enumerates a number of factors that
the trial court may consider, in the exercise of its discretion, when determining whether to
grant a petition for recall and resentencing. (Id., subd. (d)(2)(F) & (G).)
       The factors that may be considered in determining whether to grant a petition for
recall and resentencing “include, but are not limited to, the following: [¶] (i) The
defendant was convicted pursuant to felony murder or aiding and abetting murder
provisions of law. [¶] (ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for personal harm to victims
prior to the offense for which the sentence is being considered for recall. [¶] (iii) The
defendant committed the offense with at least one adult codefendant. [¶] (iv) Prior to the
offense for which the sentence is being considered for recall, the defendant had
insufficient adult support or supervision and had suffered from psychological or physical
trauma, or significant stress. [¶] (v) The defendant suffers from cognitive limitations due
to mental illness, developmental disabilities, or other factors that did not constitute a
defense, but influenced the defendant’s involvement in the offense. [¶] (vi) The
defendant has performed acts that tend to indicate rehabilitation or the potential for
rehabilitation, including, but not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been available at his or her
classification level and facility, using self-study for self-improvement, or showing
evidence of remorse. [¶] (vii) The defendant has maintained family ties or connections
with others through letter writing, calls, or visits, or has eliminated contact with
individuals outside of prison who are currently involved with crime. [¶] (viii) The

                                               7
defendant has had no disciplinary actions for violent activities in the last five years in
which the defendant was determined to be the aggressor.” (§ 1170, subd. (d)(2)(F).)
       If the trial court denies the petition, “the defendant may submit another petition for
recall and resentencing to the sentencing court when the defendant has been committed to
the custody of the department for at least 20 years.” (§ 1170, subd. (d)(2)(H).) The
defendant may also file another petition after having served 24 years. (Ibid.)
              2.     Defendant’s Petition
       On April 9, 2014, defendant filed a petition for recall and resentencing pursuant to
section 1170, subdivision (d)(2).
       Defendant’s petition included a narrative statement of remorse and work towards
rehabilitation. In the statement, defendant described how he was “very much a child at
the time of these crimes” and how, while in prison, he had come to realize that he needed
to “acknowledge and take responsibility for [his] poor choices as a youth and to admit
[he] had some problems.” He apologized to the victims and their families and to the
community. Defendant described having gained “a better understanding and insight” into
how his drug addiction had contributed to his involvement in the crimes. Defendant
described prison life and the activities he had engaged in while incarcerated, which
included church services, art and creative writing classes, and various jobs. Defendant
noted that he had not had any CDCR-115 disciplinary reports for violent activities in
which he was the aggressor, and that he had maintained family ties.
       Defendant included the following documents with his petition: a “chrono”
indicating he had been attending bi-weekly Alcoholics Anonymous and Narcotics
Anonymous meetings for the past six months; a certificate from a prison ministry
indicating his completion of a correspondence course; letters of recommendation from
his supervisors at the prison law library; certificates of achievement showing his
completion of vocational machine shop classes; a copy of the associates degree in Bible
Studies he had earned and a copy of his certificate of Bible Missions; documents showing

                                              8
he was a member of the Man’s Advisory Council; a memorandum about the Enhanced
Program Facility program; and “laudatory chronos” from 13 correctional officers, two
correctional sergeants, two correctional lieutenants, a captain’s secretary, and a chaplain.
              3.     The People’s Initial Reply
       The People’s initial reply to the petition was filed on August 22, 2014. The
People acknowledged that defendant was eligible for a hearing and entitled to the
appointment of counsel.
              4.     Defendant’s Brief
       Through counsel, defendant filed a “Resentencing Brief” on January 2, 2015.
Defendant noted that there was not yet any case law concerning the application of the
section 1170, subdivision (d)(2)(F) factors. Defendant argued that under Miller, supra,
567 U.S. __ [132 S. Ct. 2455] and People v. Gutierrez (2014) 58 Cal.4th 1354
(Gutierrez), “LWOP sentences for juvenile offenders should be meted out only in the
rarest of circumstances” and that the prosecution should have the burden to show that
defendant was “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’ ”
       Defendant argued that seven of the eight factors specified in section 1170,
subdivision (d)(2)(F) applied to him.3 First, defendant’s convictions were “pursuant to
felony murder or aiding and abetting murder provisions of law.” Second, defendant did
not have prior juvenile felony adjudications for assault or other felony crimes with a
significant potential for personal harm to victims. Third, defendant committed the
offense with at least one adult codefendant. Fourth, there was evidence that as a child,
defendant had been “shuttled from home to home, placement to placement, and was
suffering from psychological trauma and significant stress.” Fifth, defendant’s


       3
         Defendant did not argue that there was evidence of the eighth factor: that he
suffers from “cognitive limitations due to mental illness, developmental disabilities, or
other factors that did not constitute a defense, but influenced the defendant’s involvement
in the offense.” (See § 1170, subd. (d)(2)(F)(v).)

                                             9
rehabilitative efforts in prison and Statement of Remorse showed that he was remorseful.
Sixth, defendant had maintained family ties or connections with others through letter
writing, calls, or visits, or had eliminated contact with individuals outside of prison who
are currently involved with crime; evidence of this would be presented at the hearing.
Seventh, defendant had no disciplinary actions for violence in the last five years; his last
one had been in 2007, and he had not been deemed to be the aggressor.
       A psychiatric discharge summary from the Heritage Center in Utah was attached
to defendant’s brief. Defendant had entered the facility on November 16, 1997 and had
absconded on December 15, 1997. His diagnoses included schizoaffective disorder,
conduct disorder, and polysubstance dependence.
       A report written by correctional consultant Daniel J. Fulks was also attached to
defendant’s brief. Fulks had reviewed defendant’s prison files and found no evidence of
criminal or gang activity, which is rare for those serving LWOP sentences. Defendant
had only nine disciplinary reports, again “far better” than most inmates serving LWOP
sentences. LWOP inmates also rarely participate in higher education courses or self-help
groups. Defendant was deemed to be a “Low Risk” to the public pursuant to a risk
assessment conducted by the Department of Corrections and Rehabilitation.
              5.     The People’s Opposition
       On January 2, 2015, the People filed opposition to defendant’s petition. The
People reviewed the factors listed in section 1170, subdivision (d)(2)(F). The People
emphasized that defendant was “the actual shooter” in the Mathews murder and that
defendant intended to kill her. The People asserted defendant was not convicted of that
murder based on a felony-murder theory even though a felony murder special
circumstance allegation was found true. Although he was not the actual shooter in the
Olivos murder, he was “the leader of th[e] joint expedition” to commit robberies and
shoot victims who did not comply and he had supplied the gun and bullets used to kill
Olivos. The People acknowledged that defendant had not suffered any felony juvenile

                                             10
adjudications before the murders and that defendant had committed the murders with an
adult codefendant, Manibusan, who had been sentenced to death. (See People v.
Manibusan (2013) 58 Cal.4th 40.)
       The People were “unaware” of evidence showing that defendant suffered from
any psychological or physical trauma or significant stress at the time of the murders.
Defendant had been found competent to stand trial, and psychiatric evaluators had
concluded he was sane at the time of the murders. One examiner thought it was likely
that defendant was fabricating symptoms of a severe psychiatric disorder in an effort to
avoid a long prison term.
       The People acknowledged that defendant had taken advantage of programs while
incarcerated in prison and that defendant had no disciplinary history in the past five years
for violent actions. The People did not know whether defendant had maintained family
ties or eliminated contact with criminals outside of prison.
       The People asserted that the trial court should consider that defendant had been
“convicted of multiple murders and one count of attempted murder,” that the two murders
had involved “great violence” and had been “particularly viscous [sic] and callous,” and
that defendant had induced others to participate in the crimes and taken a position of
leadership or dominance. The People also asserted that the trial court should consider the
feelings of the surviving victim and the victims’ families.
       The People’s opposition included the following attachments: the information
showing all of the charges against defendant and Manibusan; this court’s opinion
affirming defendant’s convictions and modifying the judgment; the transcript from
defendant’s sentencing hearing; bill analyses of Senate Bill 9, which enacted
section 1170, subdivision (d)(2); the probation report prepared in defendant’s case; a
copy of the California Supreme Court’s opinion affirming the judgment in Manibusan’s
case; two 1998 psychiatric evaluations of defendant; and letters from Aninger and
relatives of Aninger and Mathews.

                                             11
              6.      The Hearing
       On January 9, 2015, the trial court held a hearing on defendant’s petition for
recall and resentencing. Defendant’s counsel indicated he was prepared to submit on
the briefing. The trial court asked if there was evidence that defendant had maintained
family ties. Defendant’s counsel noted that several members of defendant’s family were
in court. Defendant’s stepfather and mother introduced themselves, and defendant’s
stepfather indicated that “church members and family friends” were also present.
       The trial court noted it had reviewed the parties’ papers, including the attachments.
The court referenced defendant’s “rehabilitative efforts” including the various groups
and programs he had participated in. The court also referenced the lack of “violent
disciplinary actions” taken against defendant and discussed the correctional consultant’s
report. The trial court offered defendant the opportunity to submit any other argument or
evidence relating to the statutory factors or the “catch-all factor.”
       Defendant’s counsel argued that the People’s opposition focused “entirely upon
the circumstances of the crime,” but claimed, “this factor is of minimal importance in
weighing whether or not [defendant] should be resentenced.” Defendant’s counsel
argued that the issue was not whether defendant’s crimes were heinous but whether or not
defendant was “irretrievably corrupt or depraved so that there is no possibility that he
could be rehabilitated.”
       The prosecutor responded by arguing that the nature of defendant’s crimes “has to
be a factor,” that the trial court had “discretion to decide how much of a factor it is,” and
that the facts of the crimes should be “a significant factor” in this case.
       The trial court noted that it had read some of the pertinent case law and discussed
Miller, supra, 567 U.S.__ [132 S. Ct. 2455], in which the defendant had been “a true
aider and abettor” and had been under the influence at the time of the crimes. The trial
court indicated it did not believe the circumstances of defendant’s crimes were similar to
those of the Miller defendant. The trial court discussed the evidence defendant knew that

                                              12
Manibusan was going to shoot Olivo, and the evidence that defendant intended to kill
Mathews and Aninger. The trial court acknowledged defendant’s “efforts at
rehabilitation” and “good conduct while in custody.” The trial court again distinguished
defendant’s case from the Miller case, however, with respect to the evidence of childhood
difficulties, noting that there was no evidence defendant’s parents had abused him or used
drugs. The trial court agreed with the prosecutor that although an adult codefendant was
involved, defendant was “really the leader of this crime spree,” a fact that distinguished
the instant case from a case involving an “impressionable” juvenile who was following
an adult’s lead. The trial court also noted that at the time of the crimes, defendant was
“only four months away from turning 18.”
       Defendant’s counsel conceded “the heinous nature of the crimes” and, “for
purposes of argument,” that defendant had been the ringleader. Defendant’s counsel
argued that the relevant question was whether defendant was “redeemable,” and he
argued that defendant had indeed shown “that he is capable of rehabilitation.”
       The trial court asked defendant’s counsel to address the evaluations of defendant
introduced during his original trial proceedings, one of which described defendant as
having a remarkably high degree of sociopathy. The trial court asked defendant’s
counsel how that description reflected on defendant’s ability to rehabilitate. Defendant’s
trial counsel asserted that “[m]any people age out” of antisocial personality disorder, and
noted that the evaluator had not said that defendant had no chance of rehabilitation.
Defendant’s trial counsel pointed to defendant’s good conduct in prison as evidence that
defendant was not a sociopath.
       The trial court noted that even if it denied defendant’s petition, defendant could
bring another petition and show further rehabilitation. The court took the matter under
submission.




                                             13
               7.    The Trial Court’s Ruling
       On April 3, 2015, the trial court issued a written ruling denying defendant’s
petition for recall and resentencing. The trial court noted that it had “considered each of
the factors listed in section 1170, subdivision (d)(2)(F).” The court specified its findings
as to each factor.
       First, “the felony murder and aiding and abetting circumstances do not compel
mitigation of [defendant’s] sentence.” The record indicated that defendant had intended
to kill Mathews, and although the jury found true a felony murder special circumstance,
the case did not involve an inadvertent killing during a felony. Defendant was also “a
fully informed aider and abettor” in the killing of Olivo, since defendant had given
Manibusan the gun when Manibusan asked for “his turn” after the shootings defendant
had personally committed.
       Second, although defendant was on juvenile probation at the time of his crimes,
he had no prior “juvenile felony adjudications for assault or other felony crimes with a
significant potential for personal harm to victims.”
       Third, although Manibusan was an adult, he “did not appear to influence”
defendant, and defendant was “not simply a ‘follower.’ ” Rather, defendant had provided
the gun and ammunition to Manibusan, and defendant had committed the initial
shootings.
       Fourth, “[u]nlike many youthful offenders,” defendant had the support of his
family prior to and at the time of the crimes, and he had not been abused.
       Fifth, the shootings were not attributable to “cognitive limitations due to mental
illness or developmental disabilities,” although there was evidence that defendant had
used methamphetamine and suffered from personality disorders. In the psychiatric
evaluations, defendant had been described as a dangerous sociopath, and there was
insufficient evidence to indicate that defendant had “overcome these dangerous
tendencies.”

                                             14
       Sixth, defendant had “performed several acts that tend to indicate rehabilitation, or
the potential for rehabilitation.” He had participated in self-help groups, taken on roles of
responsibility in prison, and demonstrated “positive behavior,” resulting in a lowered
classification level.
       Seventh, defendant had maintained a connection with his family, and family
friends had been present at the hearing. There was no evidence defendant had contact
with anyone involved in crime outside of prison.
       Eighth, defendant had no disciplinary history for “violent actions” within the past
five years.
       The trial court then addressed defendant’s argument that cases with LWOP
sentences will almost always involve “heinous, atrocious and cruel” crimes. The trial
court found that defendant’s crimes were “particularly viscous [sic], cruel and callous,”
since Mathews and Aninger were not given a chance to respond to the robbery, there
was no attempt to rob Olivo, all three victims were strangers who did nothing to provoke
defendant, and all three victims were “caught completely unaware.” In addition,
defendant was “not a minor or a passive participant” but rather “the leader of the criminal
enterprise that day.”

                                   III.     DISCUSSION
       Defendant contends the trial court erred in denying his petition for recall and
resentencing. He claims the trial court erroneously denied the petition based solely on
the circumstances of his crimes and that the relevant factors weighed in favor of recall
and resentencing.
       A.      Case Law
               1.       Miller v. Alabama
       In 2012, 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



                                             15
Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S.
at p. __ [132 S.Ct. 2455, 2460].)
       In Miller, the Court explained that its prior cases had “establish[ed] that children
are constitutionally different from adults for purposes of sentencing.” (Miller, supra,
567 U.S. at p. __ [132 S.Ct. 2455, 2464]; see Roper v. Simmons (2005) 543 U.S. 551
[invalidating death penalty for juvenile offenders]; Graham v. Florida (2010) 560 U.S.
48 [LWOP sentences for non-homicide juvenile offenders violate the Eighth
Amendment].) Specifically, “juveniles have diminished culpability and greater prospects
for reform,” making them “ ‘less deserving of the most severe punishments.’ ” (Miller,
supra, at p. __ [132 S.Ct. 2455, 2464].)
       The Miller court summarized its holding as follows: “Mandatory life without
parole for a juvenile precludes consideration of his [or her] 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 [or her]—and from which he [or she] cannot usually extricate himself [or
herself]—no matter how brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his [or her] participation in the conduct and the
way familial and peer pressures may have affected him [or her]. Indeed, it ignores that he
[or she] might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth—for example, his [or her] inability to deal with
police officers or prosecutors (including on a plea agreement) or his [or her] incapacity to
assist his [or her] own attorneys. [Citations.] And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most suggest it.”
(Miller, supra, 567 U.S. at p. __ [132 S.Ct. 2455, 2468].)
       While Miller held “that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders,” the court did
not decide “that the Eighth Amendment requires a categorical bar on life without parole

                                             16
for juveniles . . . .” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. 2455, 2469].) However,
the court specified it believed that LWOP sentences for juveniles would be “uncommon”
and limited to “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’
[Citations.]” (Ibid.) The court specified that before such a sentence is imposed on a
juvenile in a homicide case, the sentencing court must “take into account how children
are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” (Ibid., fn. omitted.)
              2.      People v. Gutierrez
       In Gutierrez, supra, 58 Cal.4th 1354, the California Supreme Court considered
the impact of Miller on section 190.5, subdivision (b). The Gutierrez court noted that
“[f]or two decades, the Courts of Appeal ha[d] uniformly 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, at p. 1369.) The California Supreme Court effectively
overturned that line of appellate precedent, concluding that “section 190.5[,
subdivision ](b), properly construed, 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, with no presumption in favor of life without parole.” (Id. at p. 1360,
italics added.) The Gutierrez court further held that “consideration of the Miller factors”
is required when a sentencing court is determining whether to impose an LWOP sentence
pursuant to section 190.5, subdivision (b). (Gutierrez, supra, at p. 1387.)
       In Gutierrez, the issue arose on direct appeal, and “[b]ecause the two
defendants . . . were sentenced before Miller in accordance with the interpretation of
section 190.5[, subdivision ](b) prevailing at the time,” the court remanded for
resentencing. (Gutierrez, supra, 58 Cal.4th at p. 1361.)
       The Gutierrez court rejected the Attorney General’s argument that a remand
was unnecessary because the “potential mechanism for resentencing” provided by

                                             17
section 1170, subdivision (d)(2) “mean[s] that the initial sentence ‘is thus no longer
effectively a sentence of life without the possibility of parole.’ ” (Gutierrez, supra,
58 Cal.4th at p. 1386.) The Gutierrez court reasoned: “A sentence of life without parole
under section 190.5[, subdivision ](b) remains fully effective after the enactment of
section 1170[, subdivision ](d)(2). That is why section 1170[, subdivision ](d)(2) sets
forth a scheme for recalling the sentence and resentencing the defendant.” (Ibid.) The
Gutierrez court further rejected the Attorney General’s claim that 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, supra, at p. 1386.) The court held that what
Miller required for juvenile offenders sentenced to LWOP was not a “ ‘meaningful
opportunity to obtain release’ ” but a sentencing court’s exercise of discretion “ ‘at the
outset.’ ” (Gutierrez, supra, at p. 1386.)
              3.     Montgomery v. Louisiana
       In Montgomery v. Louisiana (2016) __ U.S. __ [136 S.Ct. 718] (Montgomery), the
United States Supreme Court held that Miller must be given retroactive application. The
petitioner in that case had murdered a deputy sheriff when he was 17 years old.
(Montgomery, supra, at p. __ [136 S.Ct. 718, 725].) He was convicted of murder and
ultimately given an automatic LWOP sentence. (Id. at p. __ [136 S.Ct. 718, 725-726].)
       After the Miller decision, the Montgomery petitioner sought collateral review of
his mandatory LWOP sentence. (Montgomery, supra, __ U.S. at p. __ [136 S.Ct. 718,
726.) The trial court refused to grant relief on the ground that Miller was not retroactive
on collateral review. (Montgomery, supra, at p. __ [136 S.Ct. 718, 727].) The United
States Supreme Court reversed, holding that Miller had announced “a new substantive
rule that, under the Constitution, must be retroactive.” (Montgomery, supra, at p. __
[136 S.Ct. 718, 732].)



                                             18
       The Montgomery court addressed the concern that giving Miller retroactive
effect would “require States to relitigate sentences . . . in every case where a juvenile
offender received mandatory life without parole.” (Montgomery, supra, __ U.S. at p. __
[136 S.Ct. 718, 736].) The court explained: “A State may remedy a Miller violation by
permitting juvenile homicide offenders to be considered for parole, rather than by
resentencing them. [Citation.] Allowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—and who have
since matured—will not be forced to serve a disproportionate sentence in violation of the
Eighth Amendment.” (Id. at p. __ [136 S.Ct. 718, 736].)
       B.     Analysis of the Trial Court’s Ruling
       Defendant contends the trial court erroneously denied his petition for recall and
resentencing “based solely on the facts of the life crimes.” The record does not support
this claim. The transcript of the hearing on defendant’s petition for recall and
resentencing shows that the trial court considered defendant’s “rehabilitative efforts”
and favorable prison record. The trial court also indicated it had considered whether
defendant had childhood difficulties and whether defendant had been influenced by an
adult. Additionally, the trial court referenced the fact that defendant had been very close
to 18 years old at the time of the offenses. The trial court’s written order also reflects
that the trial court considered all eight of the factors set forth in section 1170,
subdivision (d)(2)(F), and that the trial court found four of the factors applied to
defendant.
       Defendant also argues that a majority of the factors listed in section 1170,
subdivision (d)(2)(F) favored recall and resentencing. In essence, defendant is arguing
that the trial court abused its discretion by finding certain factors were not applicable to
defendant and in failing to accord appropriate weight to the applicable factors. (See
§ 1170, subd. (d)(2)(G) [in considering a petition for recall and resentencing, the trial
court exercises discretion “in consideration of” the enumerated criteria].) We proceed to

                                               19
review the trial court’s findings for abuse of discretion, beginning with the eight factors
listed in section 1170, subdivision (d)(2)(F).
       The first factor is “[t]he defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.” (§ 1170, subd. (d)(2)(F)(i).) The trial
court correctly found that defendant had not been convicted of the Mathews murder
based on a felony murder theory. Although a felony-murder special circumstance was
found true (see § 190.2, subd. (a)(17)), the underlying murder itself was not prosecuted
on a felony-murder theory. (See People v. Kainzrants (1996) 45 Cal.App.4th 1068,
1080 [felony-murder special circumstance is not coextensive with felony-murder theory
of first degree murder].) The trial court also found that even though defendant had been
convicted of the Olivo murder based on an aiding and abetting theory, defendant was
“a fully informed aider and abettor” who had supplied the gun to Manibusan after
shooting Mathews and Aninger. The trial court’s determination—that this factor did
not weigh in favor of recall and resentencing—is consistent with the legislative intent
concerning this factor. An analysis of Senate Bill 9, which enacted section 1170,
subdivision (d), referenced the fact that many juveniles “were convicted of felony murder
or for aiding and abetting because they acted as lookouts or participated in another felony
during which the murder unexpected[ly] occurred.” (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.) as introduced Dec. 6, 2010 for
hearing on Apr. 5, 2011.) As defendant did not act as a lookout or have a similarly
minor role in the Olivo murder, but provided the gun and ammunition to the shooter, the
trial court’s finding was not an abuse of discretion.
       The second factor is “[t]he defendant does not have juvenile felony adjudications
for assault or other felony crimes with a significant potential for personal harm to victims
prior to the offense for which the sentence is being considered for recall.” (§ 1170,
subd. (d)(2)(F)(ii).) The trial court essentially found that this factor applied to defendant:



                                              20
the trial court noted that defendant had been on juvenile probation at the time of the
offenses but that he had no juvenile felony adjudications for assault or similar crimes.
       The third factor is “[t]he defendant committed the offense with at least one adult
codefendant.” (§ 1170, subd. (d)(2)(F)(iii).) The trial court found that this fact was
technically true, but that it did not weigh in favor of recall and resentencing because the
adult (Manibusan) “did not appear to influence” defendant. The trial court noted that
defendant was “not simply a ‘follower’ ” but rather the person who provided the gun and
ammunition and the person who had committed the initial shootings. The trial court’s
finding is consistent with the legislative intent behind this factor. The legislative history
of Senate Bill 9 shows that the Legislature was concerned about juveniles who were
sentenced to LWOP for crimes they committed while “ ‘acting under the influence of an
adult.’ ” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 9 (2011-2012 Reg.
Sess.) as amended May 27, 2011 for hearing on July 5, 2011, p. 11.) As the record
supports the trial court’s finding that defendant was not acting under the influence of an
adult, the trial court did not abuse its discretion by determining that this factor did not
weigh in favor of recall and resentencing.
       The fourth factor is “[p]rior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support or supervision and
had suffered from psychological or physical trauma, or significant stress.” (§ 1170,
subd. (d)(2)(F)(iv).) Defendant contends that the record is “replete with evidence that
from age 11 until he committed the life crimes, [he] was shuttled from home to home,
placement to placement, and was suffering from psychological trauma and significant
stress.” He cites to the 1997 discharge summary from the Heritage Center in Utah as
support for his claim. That document reflects that defendant was terminated from two
group homes and transferred to the Heritage Center from juvenile hall. The discharge
summary also reflects that defendant “described his difficulties as family problems”
and described having a “strained relationship” with his mother and her boyfriend. The

                                              21
discharge summary indicates that defendant “had a lengthy history of drug and alcohol
use” and that he had been diagnosed with schizoaffective disorder, conduct disorder, and
polysubstance dependence. The discharge summary does not, however, show that
defendant had “insufficient adult support or supervision” or contain any evidence that
defendant “had suffered from psychological or physical trauma, or significant stress.”
(§ 1170, subd. (d)(2)(F)(iv).) Thus, the trial court did not abuse its discretion by finding
that this factor did not apply to defendant.
       The fifth factor is “[t]he defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not constitute a defense, but
influenced the defendant’s involvement in the offense.” (§ 1170, subd. (d)(2)(F)(v).)
Defendant concedes that this factor “does not apply.”
       The sixth factor is “[t]he defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but not limited to, availing
himself or herself of rehabilitative, educational, or vocational programs, if those
programs have been available at his or her classification level and facility, using self-
study for self-improvement, or showing evidence of remorse.” (§ 1170,
subd. (d)(2)(F)(vi).) Defendant references the evidence submitted as to this factor, and
the trial court found that this factor applied to defendant.
       The seventh factor is “[t]he defendant has maintained family ties or connections
with others through letter writing, calls, or visits, or has eliminated contact with
individuals outside of prison who are currently involved with crime.” (§ 1170,
subd. (d)(2)(F)(vii).) The trial court found that this factor applied to defendant.
       The eighth factor is “[t]he defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was determined to be the
aggressor.” (§ 1170, subd. (d)(2)(F)(viii).) The trial court found that this factor applied
to defendant.



                                               22
       We have concluded that the trial court did not abuse its discretion by finding that
only four of the eight factors listed in section 1170, subdivision (d)(2)(F) applied
favorably to defendant. We next proceed to consider whether the trial court abused its
discretion by determining that, although four of the enumerated factors applied, those
factors did not warrant recall and resentencing when considered in light of other relevant
circumstances concerning defendant and his offenses. (See § 1170, subd. (d)(2)(F) [trial
court is not limited to consideration of enumerated factors].)
       A trial court abuses its sentencing discretion when its decision is arbitrary or
capricious, inconsistent with the letter and spirit of the law, or based on “circumstances
that are not relevant to the decision or that otherwise constitute an improper basis for
decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) When the sentencing
decision involves an assessment of various factors, the trial court has discretion to accord
different weight to each factor, and its decision need not be determined by the sheer
number of factors on one side or the other. Rather, the trial court’s exercise of its
sentencing discretion “requires ‘[a] quantative and qualitative analysis’ of multiple
factors. [Citation.]” (People v. Wright (1982) 30 Cal.3d 705, 719.)
       Here, the trial court’s decision to deny defendant’s petition was not based solely
on its evaluation of the factors listed in section 1170, subdivision (d)(2)(F) but also on
its finding that defendant’s crimes were “particularly [vicious], cruel and callous,” and
that defendant was “the leader of the criminal enterprise that day.” Section 1170,
subdivision (d)(2)(F) specifies that the trial court is not restricted to a consideration of
the enumerated factors, and Miller expressly states that “the circumstances of the
homicide offense, including the extent of [the defendant’s] participation in the conduct”
is relevant to the determination of whether to impose an LWOP sentence. (Miller, supra,
567 U.S. at p. __ [132 S.Ct. 2455, 2468].)
       On this record, we find no abuse of discretion in the trial court’s determination
that the four favorable statutory factors did not outweigh the other relevant factors,

                                              23
including the circumstances of the offense. It was not unreasonable or arbitrary for the
trial court to deny the petition for recall and resentencing, despite finding that defendant
lacked a violent juvenile record, had made efforts at rehabilitation, maintained family
ties, and performed positively while in prison, in light of the other circumstances:
defendant’s significant role in the crimes and the vicious, cruel, and callous nature of the
shootings of three unsuspecting, unarmed women. (See Miller, supra, 567 U.S. at p. __
[132 S.Ct. 2455, 2468] [extent of defendant’s participation in the criminal conduct should
be considered].)
       Last, we consider defendant’s argument that, despite the “atrocious nature of his
life crimes,” three other factors identified in Miller—the inherent impact of his age on his
culpability, the effect of his family and home environment, and his demonstrated capacity
for rehabilitation—weighed in favor of resentencing. While Miller did recognize that
juveniles are generally immature, impetuous, and unable to appreciate risks and
consequences, here defendant was nearly 18 years old at the time of his offenses, so the
trial court could reasonably determine that defendant’s age did not weigh strongly in
favor of resentencing. As to defendant’s claim that his family and home environment
weighed in favor of resentencing, we have already noted that the record does not show
that defendant was physically or emotionally abused or exposed to trauma; there is no
evidence that defendant was unable to “extricate himself” from a “brutal or
dysfunctional” home. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. 2455, 2468].) Having
carefully reviewed the record, we conclude the trial court did not abuse its discretion by
determining that defendant’s age, participation in rehabilitative programs, and
demonstrated responsibility in prison did not warrant granting his petition for recall and
resentencing.

                                  IV.     DISPOSITION
       The order denying the petition for recall and resentencing is affirmed.



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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.




People v. Willover
H042316
Trial Court:                              Monterey County Superior Court
                                          Superior Court No.: SM980198


Trial Judge:                              Hon. Carrie M. Panetta


Attorney for Defendant and Appellant:     Michael Evan Beckman
Norman Willover


Attorneys for Plaintiff and Respondent:   Kamala D. Harris, Attorney General
The People                                Gerald A. Engler, Chief Assistant Attorney
                                          General
                                          Jeffrey M. Laurence, Senior Assistant
                                          Attorney General
                                          Laurence K. Sullivan, Supervising Deputy
                                          Attorney General
                                          Rene A. Chacon, Supervising Deputy
                                          Attorney General




People v. Willover
H042316
