Filed 10/13/15 P. v. McGuire CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B259710

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA115410)
         v.

ANTHONY MCGUIRE,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County. Kelvin D.
Filer, Judge. Reversed.
         Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff
and Respondent.


                                          _______________________
       This appeal comes before us for a second time. Following a jury trial, Anthony
McGuire was convicted of gang-related murder and attempted murders. We reverse and
remand for resentencing.

                  FACTUAL AND PROCEDURAL BACKGROUND
       McGuire was 17 years old at the time he committed the crimes in 2009.1 It was
undisputed at trial that he and codefendant Lance M. Taylor were gang members and that
McGuire fired a gun at unarmed bystanders who did no more than call out to females
walking on the street. One of the bystanders was killed.
       A jury convicted McGuire of one count of first degree murder (Pen. Code, § 187,
subd. (a))2 and two counts of attempted premeditated murder (§§ 664/187, subd. (a)).
The jury found that in all three offenses he personally used and intentionally discharged a
firearm within the meaning of section 12022.53, subdivisions (b) through (e), and that the
offenses were committed for the benefit of a criminal street gang (§ 186.22) In March
2011, McGuire was sentenced to an aggregate state prison term of 90 years to life.3
       Among the issues raised in his first appeal, McGuire contended his sentence
constituted cruel and unusual punishment under the Eighth Amendment because he was
only 17 years old at the time of the crimes. We reversed the sentence and remanded for
resentencing after concluding the trial court had failed to consider the factors identified in
Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller) and



1     McGuire’s birthdate is July 9, 1992. At the time the crimes were committed
(August 19, 2009) he would have been 17 years and 1 month.

2      Statutory references are to the Penal Code, unless otherwise indicated.

3       McGuire was tried jointly with Taylor, who was found guilty of one count of first
degree murder and two counts of attempted premeditated murder. The jury found that in
all three offenses, a principal personally used and intentionally discharged a firearm
within the meaning of section 12022.53, subdivisions (b) through (e) and they were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)). Taylor
was sentenced to an aggregate state prison term of 82 years to life.
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People v. Caballero (2012) 55 Cal.4th 262 (Caballero) in imposing sentence. (People v.
McGuire (July 15, 2013, B232593) [nonpub. opn.].)
       At the resentencing hearing on remand, the trial court indicated it had reviewed the
relevant cases, among them Miller and Caballero, the probation officer’s report and
counsels’ sentencing memoranda.4 Prior to imposing sentence for murder, count 1, the
court observed that McGuire “was 17 years old at the time of the offense, not 15 or 16.
His level of involvement was high and extremely connected, involved. And based upon
the jury’s findings as I recall them, exhibited some leadership on the part of Mr. McGuire
in carrying out these three offenses. Specifically, it was found he personally used a
handgun and fired more than one time. There were numerous shorts [sic] towards the
direction of numerous victims. There is nothing that indicated he has any sort of
physical, mental or emotional health problems. He is not a small young man. He did
complete at least enough schooling to get through 11th grade of high school.” The court
noted that McGuire “was not on any type of drugs or medications” at the time of the
offense. The trial court also considered the fact that section 3051 would provide
McGuire with an opportunity to seek parole in 25 years. The trial court then sentenced
McGuire to an aggregate state prison term of 50 years to life: a term of 25 years to life for
murder (count 1), plus a term of 25 years to life for the firearm-use enhancement.
       With respect to the attempted murders, counts 2 and 3, the court stated, “looking
over my notes and what happened as the events occurred reflecting these convictions, all
of them were committed close in time and place, and I’m finding now that did reflect a
single period of abhorrent behavior on the part of Mr. McGuire, I think it’s clear his main
objective was to facilitate, instigate and continue the gang warfare that was going on at
that time between the two gangs involved. And again, making sure that the record
indicates that I’m cognizant he was a juvenile and I’m considering the factors of his age
and level of involvement and whether there was physical and mental development, I’m

4      Both parties urged the court to delay sentencing until the California Supreme
Court decided the relevant issues pending before it. (See infra.) The court declined the
proffered stipulation.
                                             3
considering that as well in determining that these offenses as to count 2 and 3 should run
concurrent. And I think this will provide a meaningful opportunity for [McGuire] to
obtain his release based on any subsequent rehabilitation. Granted, it will be late in his
life, but at least there will be some opportunity. And again, the court has considered the
social and psychological factors that make juveniles less culpable than adults. That is
why I decided to run the time concurrent in counts 2 and 3 with the 50 years in count 1.”
The court then imposed two concurrent terms of 25 years to life on Count 1 plus 25 years
to life for the firearm-use enhancement with a concurrent sentence of life, with a fifteen
year minimum parole eligibility plus 25 years to life for firearm enhancement on each of
Count 2 and Count 3. McGuire timely appealed, again contending his sentence violated
the Eighth Amendment prohibition on cruel and unusual punishment.

                                           DISCUSSION
       1.      Relevant Legal Principles

       In Miller, supra, 132 S.Ct. at p. 2460, the United States Supreme Court held the
Eighth Amendment prohibits the imposition of a mandatory sentence of life without the
possibility of parole (LWOP) for a juvenile who commits murder. (Miller, supra, 132
S.Ct. at p. 2460.) While not imposing a categorical ban, the Court explained that
“[G]iven all we have said in Roper [v. Simmons (2005) 543 U.S. 551], Graham [v.
Florida (2010) 560 U.S. 48], 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.”
(Id. at p. 2469.)

                                             4
       The Miller Court set forth five categories of factors which the trial court is to
consider in determining whether an LWOP sentence is warranted: (1) the juvenile
offender’s “chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences;” (2) “the family and home
environment that surrounds [the juvenile]—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional;” (3) “the circumstances of the
homicide offense, including the extent of [the juvenile’s] participation in the conduct and
the way familial and peer pressures may have affected him,” including whether substance
abuse influenced the juvenile’s criminal conduct; (4) whether the juvenile “might have
been charged and convicted of a lesser offense if not for incompetencies associated with
youth—for example, his inability to deal with police officers or prosecutors (including on
a plea agreement) or his incapacity to assist his own attorneys;” and (5) whether there is a
possibility of rehabilitation, for which the absence or existence of a criminal history is
relevant. (Id. at pp. 2468-2469.)
       In Graham v. Florida (2010) 560 U.S. 48, 82 [130 S.Ct. 2011, 176 L.Ed.2d 825]
(Graham) , the United States Supreme Court held a categorical ban on sentences of life
without parole for juvenile offenders applies to all nonhomicide cases including a term of
years sentence that is the functional equivalent of an LWOP sentence.
       In Caballero, supra, 55 Cal.4th at p. 268, the California Supreme Court applied
the principals of Miller and Graham to hold that an aggregate determinate sentence of
110 years for a 16-year-old, who was convicted of three gang-related attempted murders,
was the functional equivalent of an LWOP sentence, and violated Graham’s requirement
that “a state must provide a [nonhomicide] juvenile offender ‘with some realistic
opportunity to obtain release’ from prison during his or her expected lifetime.”
(Caballero, at p. 268, quoting Graham, 560 U.S. at p. 82.)
       Finally, in People v. Gutierrez (2014) 58 Cal.4th 1354, the California Supreme
Court revisited the issue, addressing the question of whether section 190.5 establishes a
presumption in favor of life without parole. In holding that it does not, the Court returned
to Miller, finding, “At the core of Miller’s rationale is the proposition-articulated in

                                              5
Roper, amplified in Graham, and further elaborated in Miller itself-that constitutionally
significant differences between children and adults ‘diminish the penological
justifications for imposing the harshest sentences on juvenile offenders.’” (Id. at
p. 1379.) The Gutierrez court held “that the trial court must consider all relevant
evidence bearing on the distinctive attributes of youth’ discussed in Miller. (Id. at
p. 1390.)

       2.      The Trial Court’s Imposition of a 50 Years to Life Sentence
       McGuire contends, in selecting a term of 50 years to life, the trial court (1) failed
to consider the relevant Miller factors in sentencing McGuire as a juvenile, and (2)
imposed a sentence which, at the time of sentencing, was the functional equivalent of
LWOP in violation of the Eighth Amendment. The People argue (1) the trial court
considered and properly applied the Miller factors in making its sentencing decision, (2)
the sentence did not amount to LWOP, and (3) McGuire’s challenge to the sentence is
moot under section 3051.5

            a. The Court Failed to Consider All of the Miller Factors
       We agree with McGuire’s first contention that the trial court did not follow our
mandate to reconsider its sentence in light of Miller and Caballero. The court’s
comments showed it imposed an aggregate term of 50 years to life after considering only

5      The Caballero Court encouraged the Legislature “to enact legislation establishing
a parole eligibility mechanism that provides a defendant serving a de facto life sentence
without possibility of parole for nonhomicide crimes that he or she committed as a
juvenile with the opportunity to obtain release on a showing of rehabilitation and
maturity.” (Caballero, supra, 55 Cal.4th at p. 269, fn. 5.)

        In response, the Legislature enacted section 3051, which states, “[a] person who
was convicted of a controlling offense that was committed before the person had attained
18 years of age and for which the sentence is a life term of 25 years to life shall be
eligible for release on parole by the board during his or her 25th year of incarceration at a
youth offender parole hearing, unless previously released or entitled to an earlier parole
consideration hearing pursuant to other statutory provisions.” (§ 3051, subd. (b)(3).)
That hearing must provide a “meaningful opportunity for release.” (§ 3051, subd. (e).)

                                              6
McGuire’s chronological age, role in the offenses, size, lack of health issues, educational
status, and lack of substance abuse. While the court considered the unrelated factors of
health and physical size, the court did not appear to consider the “hallmark features” of
McGuire’s age, his competency to deal with police, his home environment, and whether
his history demonstrated a possibility of rehabilitation, all as required by Miller.6

          b. We Need Not Determine if the Sentence was LWOP
       With respect to McGuire’s second contention, the California Supreme Court has
granted review to determine whether a sentence of 50 years to life for a defendant
convicted of a murder committed as a juvenile is the functional equivalent of an LWOP
sentence. (In re Alatriste, review granted Feb. 19, 2014, S214652, and In re Bonilla,
review granted Feb. 19, 2014, S214960.)
       We need not decide this issue in this case, as the sentence imposed by the
trial court, as set forth above, did not comply with the order on remand. We
note, however, that the record shows McGuire was 19 years old when he was
originally sentenced in 2011. We take judicial notice that the life expectancy for
a Black male age 19 is approximately 54 years. (National Vital Statistics
Reports, United States Life Tables, 2010 (Nov. 6, 2014) at p. 29, available at
http://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_07.pdf [as of September 8, 2015].)
Thus, McGuire’s expected year of death is approximately 2065 while his earliest parole
eligibility date is 2060. Pending decision of the Supreme Court, we do not believe that
this minimal 5 year potential difference removes the necessity of considering the Miller
factors, as the functional equivalent of LWOP.




6      The court did indicate, without any elaboration, that it considered the “factors that
make juveniles less culpable than adults,” but only in relation to its decision to make the
sentences on Count 2 and 3 concurrent.
                                              7
       3.     Section 3051 Does Not Moot This Case
       Finally, the People argue, as they did at the trial court, that section 3051 provides
the meaningful opportunity for release required in juvenile sentencing.7 The trial court
relied on this provision in its sentencing decision, as set forth above. We conclude this
was error.
       First, section 3051, by its terms, excludes individuals who are serving LWOP
sentences. (3051, subd. (h).) Thus, if the sentence, as imposed by the trial court, remains
the functional equivalent of LWOP, no relief would be available to appellant.
       Moreover, while the LWOP issue remains pending, we believe the Supreme
Court’s decision on a closely related provision provides critical guidance on this issue.
Based on that authority, we conclude that section 3051 does not remove the mandate to
consider the hallmark features of youth at the time of sentencing.
       Section 1170, subdivision (d)(2), enacted in 2012, provides a “recall” procedure
for a juvenile LWOP sentence, after a period of 15 years. (§ 1170, subd. (d)(2)(A)(i)
[“When a defendant who was under 18 years of age at the time of the commission of the
offense for which the defendant was sentenced to imprisonment for life without the
possibility of parole has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and resentencing.”].)
       In Gutierrez the California Supreme Court rejected the Attorney General’s
argument that the enactment of section 1170, subdivision (d)(2) resolved the
constitutional problems arising from the fact that California courts had interpreted section
190.5, subdivision (b) as creating a presumption for LWOP sentences for juveniles. The
Gutierrez Court opined that: “the potential for relief under section 1170(d)(2) does not
eliminate the serious constitutional doubts arising from a presumption in favor of life
without parole under section 190.5(b) . . . .” (People v. Gutierrez, supra, 58 Cal.4th at
p. 1385.)

7      The Court will also decide in Alatriste, supra, S214652, and Bonilla, supra,
S214960 whether, as the People argue, section 3051 effectively moots any claim that
such a sentence amounts to cruel and unusual punishment.
                                              8
         In our view, both section 3051 and section 1170, subdivision (d)(2), fall short of
what Miller requires. First of all, Miller makes clear the special considerations attendant
to youth are to be considered at the time of sentencing. As the Gutierrez Court observed:
“Miller repeatedly made clear that the sentencing authority must address this risk of error
by considering how children are different and how those differences counsel against a
sentence of life without parole ‘before imposing a particular penalty.’” (People v.
Gutierrez, supra, 58 Cal.4th at p. 1387, quoting Miller v. Alabama, supra, 567 U.S. at
p. __, 132 S.Ct. at p. 2471, italics added; see id. at pp. __, __, 132 S.Ct. at pp. 2469,
2475.)
         In addition, both provisions’ petitioning processes—15 years after sentencing in
the case of section 1170, subdivision (d)(2) and 25 years in section 3051—are
inconsistent with the Supreme Court’s analysis in Miller. Allowing the deferral of
constitutionally mandated sentencing factors for a minimum of a decade and a half after
conviction rather than requiring consideration of those facts before incarceration
effectively makes Miller’s mandate irrelevant to our sentencing courts. Nothing in Miller
indicates that the Supreme Court envisioned any such deferral of constitutionally required
sentencing considerations; that deferral stands in opposition to the Court’s observation
that such consideration will result in the harshest of sentences being “uncommon.”

         4.     Joint and Several Liability for Victim Restitution

         In our earlier opinion, we noted the record showed the trial court intended to make
the liability for victim restitution to be joint and several between McGuire and
codefendant Taylor and directed the trial court to modify the judgment accordingly.
(People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534-1535.) On remand, we again
direct the trial court to do so.

         5.     Modification of Criminal Conviction Assessment

         Similarly, the trial court did not correct the amount that McGuire owes under
Government Code, section 70373 as we previously ordered. Therefore on remand the

                                               9
court must impose a $30 criminal conviction assessment for each count, for a total of
$90, rather than the $40 for each count, for a total of $120, that the trial court erroneously
imposed on McGuire when he was originally sentenced.

                                          DISPOSITION
         The judgment is reversed and the matter remanded for resentencing consistent
with this opinion.



                                                  ZELON, Acting P. J.




    We concur:




         SEGAL, J.




         BECKLOFF, J.*




*
        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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