Filed 10/25/16
                 CERTIFIED FOR PUBLICATION




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FOUR

THE PEOPLE,                             B265614
                                        (Los Angeles County
       Plaintiff and Respondent,        Super. Ct. No. TA051184)

       v.

MARIO SALVADOR PADILLA,

       Defendant and Appellant.

      APPEAL from a judgment of the Superior Court of Los
Angeles County, John J. Cheroske, Judge. Reversed and
remanded with directions.
     Jonathan E. Demson, 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 and
Paul M. Roadarmel, Jr., Deputy Attorneys General, for
Plaintiff and Respondent.
       In 1999, appellant Mario Salvador Padilla was
convicted of a murder he committed when sixteen years old,
and was sentenced to a term of life without the possibility of
parole (LWOP). In the underlying proceeding for writ of
habeas corpus, appellant sought resentencing in light of
Miller v. Alabama (2012) 567 U.S. ___, ___ [132 S.Ct. 2455,
2460, 2469] (Miller). After conducting a resentencing
hearing, the trial court reimposed the LWOP term.
Following that ruling, the United States Supreme Court
decided Montgomery v. Louisiana (2016) 577 U.S. ___ [136
S.Ct. 718] (Montgomery), which held that Miller announced
a substantive rule of law that had retroactive application in
state collateral review proceedings. In so holding, the
United States Supreme Court clarified and elaborated on its
earlier holding in Miller. Because the trial court exercised
its discretion in resentencing appellant without the guidance
provided by Montgomery, we reverse its ruling and remand
for a new resentencing hearing.

       RELEVANT FACTUAL AND PROCEDURAL
                       BACKGROUND
      In July 1999, a jury convicted appellant of the murder
of his mother Gina Castillo (Pen. Code § 187, subd. (a)) and
conspiracy to murder his stepfather Pedro Castillo (Pen.
Code, § 182, subd. (a)(1)).1 The jury found true special-
circumstance allegations that the murder was committed in

1    All further statutory citations are to the Penal Code.




                               2
the course of a robbery and while lying in wait (§ 190.2,
subds. (15), (17)(A)). The trial court imposed an LWOP term
on the murder conviction (§ 190.5, subd. (b)), and imposed
and stayed a term of 25 years to life on the conviction for
conspiracy to commit murder (§ 654). In an unpublished
opinion (People v. Padilla (June 1, 2001, B135651), this court
determined there was insufficient evidence to support the
lying-in-wait special-circumstance finding, but otherwise
affirmed appellant’s judgment of conviction.
      In 2012, the United States Supreme Court decided
Miller, which held that the Eighth Amendment of the United
States Constitution “forbids a sentencing scheme that
mandates life in prison without possibility of parole for
juvenile offenders,” and set forth factors controlling the
determination whether that penalty may be imposed on such
a juvenile. (Miller, supra, 132 S.Ct. at pp. 2469-2470.)
      In August 2014, appellant filed a petition for writ of
habeas corpus in the superior court, seeking resentencing
under Miller. On July 15, 2015, after respondent admitted
that appellant was entitled to a resentencing hearing, the
court conducted that hearing and resentenced appellant to
an LWOP term. Appellant noticed this appeal from that
ruling. In January 2016, while the appeal was pending, the
United States Supreme Court issued its decision in
Montgomery, which concluded that Miller announced a
substantive rule of law that applies retroactively on state
collateral review to juvenile offenders whose convictions and
sentences were final when Miller was decided. (Montgomery,




                               3
supra, 136 S.Ct. at pp. 727, 729, 736).2

                         DISCUSSION
      Appellant maintains that the trial court erred in
resentencing him to an LWOP term, contending (1) that
Miller and Montgomery preclude the imposition of such a
sentence on juvenile offenders convicted of a homicide, and
alternatively, (2) that the court exercised its sentencing
discretion without the benefit of Montgomery. As explained
below, we conclude that although neither Miller nor
Montgomery expressly forbids LWOP terms for juvenile
offenders convicted of a homicide, the court’s resentencing
decision does not reflect the guidance provided by
Montgomery.

      A. Governing Principles
      We are governed by the supremacy clause (U.S. Const.,
art. VI, cl. 2), pursuant to which we follow decisions of the
United States Supreme Court on matters of constitutional

2     We note that in August 2013, appellant also filed a
petition for recall and resentencing under section 1170(d)(2),
which authorizes the resentencing of certain defendants
sentenced as juveniles to an LWOP term. The trial court (a
different judge) found that appellant’s offense involved
torture, and thus ruled that he was ineligible for
resentencing under section 1170(d)(2). This court reversed
that order and remanded the matter for further proceedings
(People v. Padilla (Nov. 20, 2015, B257408) [nonpub. opn.]).




                                4
interpretation (Calderon v. City of Los Angeles (1971) 4
Cal.3d 251, 258 (Calderon)), including the proscription
against cruel and unusual punishment in the Eighth
Amendment (People v. Mantanez (2002) 98 Cal.App.4th 354,
358).

            1. Key United States Supreme Court Decisions
               Prior to Miller
       Miller and Montgomery rely on two prior high court
decisions addressing the application of the proscription
against cruel and unusual punishment to juvenile offenders,
namely, Roper v. Simmons (2005) 543 U.S. 551 (Roper) and
Graham v. Florida (2010) 560 U.S. 48 (Graham). In Roper,
the court held that the Eighth Amendment bars the
imposition of the death penalty on juvenile offenders, relying
on the existence of a consensus against that practice, as well
as certain differences between juveniles and adults. (Roper,
supra, 543 U.S. at pp. 564-570, 578-579.) The court observed
that juveniles generally exhibit less maturity and an
underdeveloped sense of responsibility, are more vulnerable
to outside influences, and lack a well-formed character. (Id.
at pp. 569-570.) In view of those differences, the court
explained, the penological justifications for the death penalty
-- retribution and deterrence -- apply with lesser force to
juveniles; their diminished culpability and lack of foresight
call into question whether the death penalty is merited or
acts as a deterrent. (Id. at pp. 571-572.) While
acknowledging the possibility that in “a rare case” the death




                                5
penalty might be warranted, the court adopted a categorical
rule barring capital punishment in order to foreclose the risk
of its imposition “despite insufficient culpability.” (Id. at
pp. 572-573.) As the court observed: “It is difficult even for
expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile whose crime reflects
irreparable corruption.” (Id. at p. 573.)
        In Graham, the court adopted a categorical rule
barring the imposition of LWOP terms on juvenile
nonhomicide offenders. (Graham, supra, 560 U.S. at p. 81.)
As in Roper, the court relied on the existence of a consensus
against that practice, as well as the features of juveniles
relating to the penological justifications for imposing an
LWOP term. (Graham, supra, at pp. 61-79.) The court
rejected a case-by-case approach to such sentencing, pointing
to the difficulties in distinguishing “with sufficient accuracy
. . . the few incorrigible juvenile offenders from the many
that have the capacity for change.” (Id. at p. 77.)

           2. United States Supreme Court’s Decision in
              Miller
     In Miller, the high court expressly declined to decide
whether the Eighth Amendment requires a “categorical bar”
to LWOP terms for juvenile offenders convicted of a
homicide, but held that the Eighth Amendment forbids
sentencing schemes mandating such punishment. (Miller,
supra, 132 S.Ct. at p. 2469.) The court relied primarily on




                                6
Roper and Graham, and a strand of decisions traceable to
Woodson v. North Carolina (1976) 428 U.S. 280 (plur. opn.),
which required individualized sentencing in death penalty
cases. (Miller, supra, 132 S.Ct. at p. 2463-2464.) In Roper
and Graham, the court explained, “emphasized that the
distinctive attributes of youth diminish the penological
justifications for imposing the harshest sentences on juvenile
offenders, even when they commit terrible crimes.” (Id. at
p. 2465.) The court further stated that Roper and Graham,
like the cases in the second strand of decisions, “teach that
in imposing a State’s harshest penalties, a sentencer misses
too much if he treats every child as an adult.” (Id. at
p. 2468.)
       The court thus concluded that the Eighth Amendment
forbids sentencing schemes mandating LWOP terms for
juvenile offenders: “Mandatory life without parole for a
juvenile precludes consideration of his chronological age and
its hallmark features -- among them, immaturity,
impetuosity, and failure to appreciate risks and
consequences. It prevents taking into account the family
and home environment that surrounds him -- and from
which he cannot usually extricate himself -- no matter how
brutal or dysfunctional. It neglects the circumstances of the
homicide offense, including the extent of his participation in
the conduct and the way familial and peer pressures may
have affected him. Indeed, it ignores that he might have
been charged and convicted of a lesser offense if not for
incompetencies associated with youth -- for example, his




                               7
inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own
attorneys. [Citations.] And finally, this mandatory
punishment disregards the possibility of rehabilitation even
when the circumstances most suggest it.” (Miller, supra, 132
S.Ct. at p. 2468.)
      In declining to examine whether the Eighth
Amendment required a “categorical bar” to LWOP terms for
juveniles, the court remarked: “[W]e think appropriate
occasions for sentencing juveniles to this harshest possible
penalty will be uncommon. That is especially so because of
the great difficulty we noted in Roper and Graham of
distinguishing at this early age between ‘the juvenile
offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.’ [Citations.] Although we do
not foreclose a sentencer’s ability to make that judgment in
homicide cases, we require it to take into account how
children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.”
(Miller, supra, 132 S.Ct. at p. 2469, quoting Roper, 543 U.S.
at p. 573, and Graham, 560 U.S. at pp. 2026-2027.)
      The court further explained that its holding did not
rely on the existence of a consensus against mandatory
LWOP terms for juveniles convicted of murder, even though
there was strong evidence of such a consensus. (Miller,
supra, 132 S.Ct. at pp. 2471-2472.) The court regarded the
case before it as different from “the typical one in which [it] .




                                 8
. . tallied legislative enactments,” stating: “Our decision
does not categorically bar a penalty for a class of offenders or
type of crime -- as, for example, we did in Roper or Graham.
Instead, it mandates only that a sentencer follow a certain
process -- considering an offender’s youth and attendant
characteristics -- before imposing a particular penalty. And
in so requiring, our decision flows straightforwardly from
our precedents: specifically, the principle of Roper, Graham,
and our individualized sentencing cases that youth matters
for purposes of meting out the law’s most serious
punishments. When both of those circumstances have
obtained in the past, we have not scrutinized or relied in the
same way on legislative enactments. [Citations.]” (Miller,
supra, 132 S.Ct. at p. 2471.)

            3. California Decisions Applying Miller
      In the wake of Miller but prior to Montgomery,
California courts examined the consequences of Miller for
sentencing pursuant to subdivision (b) of section 190.5
(section 190.5(b)), under which appellant’s LWOP term was
originally imposed.3 That statute authorizes the trial court

3     Subdivision (b) of section 190.5 provides: “The penalty
for a defendant found guilty of murder in the first degree, in
any case in which one or more special circumstances
enumerated in Section 190.2 or 190.25 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
(Fn. continued on next page.)




                                9
to impose an LWOP term on a juvenile defendant guilty of
first degree murder who was 16 years or older at the time of
the offense, provided at least one special circumstance
enumerated in sections 190.2 or 190.25 is found to be true.
Those special circumstances include the fact that the murder
was committed in the course of a robbery. (§ 190.2, subd.
(a)(17)(A).) Under section 190.5(b), the court has the
discretion to impose an alternative sentence of 25 years to
life.
       People v. Gutierrez (2014) 58 Cal.4th 1354, 1361
(Gutierrez) involved consolidated appeals by two defendants
sentenced before Miller to LWOP terms for murders they
committed as juveniles. Our Supreme Court examined
whether, in light of Miller, section 190.5(b) had properly
been construed by appellate courts to establish a
presumption favoring the imposition of LWOP sentences.
(Gutierrez, supra, 58 Cal.4th at pp. 1368-1370.) The court
concluded that the statute conferred discretion on sentencing
courts to impose either an LWOP term or a term of 25 years
to life on 16- and 17-year-old offenders convicted of special
circumstance murder, with no presumption in favor of an
LWOP term. (Gutierrez, supra, at p. 1387.)
       The court further held that a sentencing court, in
exercising its discretion under section 190.5(b), must
consider the factors identified in Miller. (Gutierrez, supra,

without the possibility of parole or, at the discretion of the
court, 25 years to life.”




                                 10
58 Cal.4th at pp. 1387-1390.) As the court observed, those
factors effectively divide into five categories, namely,
evidence regarding (1) the defendant’s level of maturity at
the time of the crime, (2) the defendant’s family
environment, (3) the circumstances of the crime, (4) the
existence of a youth-related incompetency that prevented the
defendant from being convicted of a lesser crime, and (5) the
defendant’s “‘possibility of rehabilitation.’” (Id. at pp. 1388,
1389, quoting Miller, supra, 132 S.Ct. at p. 2468.) In
remanding the cases before it for resentencing, the court
stated: “The question is whether each [defendant] can be
deemed, at the time of sentencing, to be irreparably corrupt,
beyond redemption, and thus unfit ever to reenter society,
notwithstanding the ‘diminished culpability and greater
prospects for reform’ that ordinarily distinguish juveniles
from adults.” (Gutierrez, supra, at p. 1391, quoting Miller,
supra, 132 S.Ct. at p. 2464.)
      Following Gutierrez, the appellate court in People v.
Palafox (2014) 231 Cal.App.4th 68, 73 (Palafox) examined
how the trial court must evaluate the Miller factors in
imposing an LWOP term under section 190.5(b). There, the
defendant was sentenced to two consecutive LWOP terms for
two special-circumstances murders he committed when 16
years old. (Palafox, supra, 231 Cal.App.4th at p. 73.) As
Miller was decided while his initial appeal from that
judgment was pending, the appellate court remanded the
matter for resentencing. (Id. at pp. 74-75.) Upon remand,
the trial court, in examining the Miller factors, stated that it




                                11
could not exclude the “‘significant possibility’” of the
defendant’s rehabilitation, but resentenced the defendant to
two consecutive LWOP terms. (Palafox, supra, at pp. 79,
80.)
      Affirming that ruling, the Palafox court placed special
emphasis on the statement in Miller that it “‘mandate[d]
only that a sentencer follow a certain process -- considering
an offender’s youth and attendant characteristics -- before
imposing a particular penalty.’” (Palafox, supra, 231
Cal.App.4th at p. 88, italics omitted.) While acknowledging
that the key sentencing question was as set forth in
Gutierrez, the appellate court found no specific directive in
Gutierrez regarding how the trial court must assess the
Miller factors. (Id. at p. 90.) The court concluded that the
sentence was constitutionally sound despite the trial court’s
inability to exclude the possibility of rehabilitation, stating:
“No particular factor, relevant to the decision whether to
impose LWOP on a juvenile who has committed murder,
predominates under the law. Hence, as long as a trial court
gives due consideration to an offender’s youth and attendant
characteristics, as required by [Miller] . . . , it may, in
exercising its discretion under [section 190.5], give such
weight to the relevant factors as it reasonably determines is
appropriate under all the circumstances of the case.” (Id. at
pp. 73, 91.)




                                12
            4. United States Supreme Court’s Decision in
               Montgomery
      The overarching issue presented in Montgomery was
whether Miller had retroactive application in state collateral
review proceedings. (Montgomery, supra, 136 S.Ct. at
pp. 727, 729, 736.)4 In resolving that issue, the high court’s
discussion proceeded in two stages. The court first
determined that “when a new substantive rule of
constitutional law controls the outcome of a case, the
Constitution requires state collateral review courts to give
retroactive effect to that rule.” (Id. at p. 729.) In this
context, the court explained, “Substantive rules . . . set forth
categorical constitutional guarantees that place certain
criminal laws and punishments altogether beyond the
State’s power to impose. . . . Procedural rules, in contrast,
are designed to enhance the accuracy of a conviction or
sentence by regulating “‘the manner of determining the
defendant’s culpability.’”” (Id. at pp. 729-730, quoting
Schriro v. Summerlin (2004) 542 U.S. 348, 353, italics


4     It was undisputed that the court’s decision in Teague v.
Lane (1989) 489 U.S. 288 required the retroactive
application of new substantive rules in federal habeas
proceedings. Left open was the question whether states
were required as a constitutional matter to give retroactive
effect to new substantive rules on state collateral review.
(Montgomery, supra, 136 S.Ct. at pp. 728-729.)




                                13
deleted.) Turning to Miller, the high court concluded that it
announced a substantive rule of law, and thus had
retroactive application in state collateral review proceedings.
(Montgomery, supra, 136 S.Ct. at pp. 732-737.)
       Our focus is on the second stage of the discussion in
Montgomery. Miller set forth a substantive rule, the high
court explained, because it identified a class of defendants
for whom LWOP terms were unconstitutional. (Montgomery,
supra, 136 S.Ct. at pp. 732-737.) Miller recognized that “‘the
distinctive attributes of youth’” reduce culpability and
increase the prospect of reform, and thus “‘diminish the
penological justifications’” for imposing LWOP terms on
juveniles. (Montgomery, supra, at p. 733, quoting Miller,
supra, 132 S.Ct. at p. 2465.) “The Court recognized that a
sentencer might encounter the rare juvenile offender who
exhibits such irretrievable depravity that rehabilitation is
impossible . . . . But in light of ‘children’s diminished
culpability and heightened capacity for change,’ Miller made
clear that ‘appropriate occasions for sentencing juveniles to
this harshest possible penalty will be uncommon.”
Montgomery, supra, at pp. 733-734, quoting Miller, supra,
132 S.Ct. at p. 2469. For that reason, the court explained,
“Miller . . . did more than require a sentencer to consider a
juvenile offender’s youth before imposing life without parole
. . . [Citation.] Even if a court considers a child’s age before
sentencing him or her to a lifetime in prison, that sentence
still violates the Eighth Amendment for a child whose crime
reflects ‘“unfortunate yet transient immaturity.”’




                                14
[Citations.] Because Miller determined that sentencing a
child to life without parole is excessive for all but ‘“the rare
juvenile offender whose crime reflects irreparable
corruption”’ [citation], it rendered life without parole an
unconstitutional penalty for ‘a class of defendants because of
their status’ -- that is, juvenile offenders whose crimes reflect
the transient immaturity of youth. [Citation.] As a result,
Miller announced a substantive rule of constitutional law.”
(Montgomery, supra, 136 S.Ct. at p. 734.)
      The court clarified that two remarks in Miller -- first,
that its holding “‘d[id] not categorically bar a penalty for a
class of offenders or type of crime [,] as . . . [done] in Roper or
Graham,’” and second, that the holding “mandate[d] only . . .
a certain process” -- did not support the contrary conclusion.
(Montgomery, supra, 136 S.Ct. at p. 734, quoting Miller,
supra, 132 S.Ct. at p. 2471.) The first remark, the court
explained, reflected an insignificant difference between the
classes designated in Roper and Graham and the class
designated in Miller: “Miller, it is true, did not bar a
punishment for all juvenile offenders, as the Court did in
Roper or Graham. Miller did bar life without parole,
however, for all but the rarest of juvenile offenders, those
whose crimes reflect permanent incorrigibility. For that
reason, Miller is no less substantive than are Roper and
Graham. Before Miller, every juvenile convicted of a
homicide offense could be sentenced to life without parole.
After Miller, it will be the rare juvenile offender who can
receive that same sentence. The only difference between




                                  15
Roper and Graham, on the one hand, and Miller, on the
other hand, is that Miller drew a line between children
whose crimes reflect transient immaturity and those rare
children whose crimes reflect irreparable corruption.”
(Montgomery, supra, 136 S.Ct. at p. 734, italics added.)
       The second remark, the court explained, conveyed only
that the holding in Miller had “a procedural component,” not
that it was a procedural rule, for purposes of the
retroactivity principle. (Montgomery, supra, 136 S.Ct. at
p. 734.) That procedural component differed from a
procedural rule, as it was “necessary to implement a
substantive guarantee . . . .” (Id. at p. 734.) The court
elaborated: “There are instances in which a substantive
change in the law must be attended by a procedure that
enables a prisoner to show that he falls within the category
of persons whom the law may no longer punish. [Citations.]
. . . Those procedural requirements do not, of course,
transform substantive rules into procedural ones. [¶] The
procedure Miller prescribes is no different. A hearing where
‘youth and its attendant characteristics’ are considered as
sentencing factors is necessary to separate those juveniles
who may be sentenced to life without parole from those who
may not.” (Id. at p. 735, quoting Miller, supra, 132 S.Ct. at
p. 2460.)
       The court also clarified why Miller refrained from
mandating that trial courts make a finding regarding “a
child’s incorrigibility.” (Montgomery, supra, 136 S.Ct. at
p. 735.) That aspect of Miller reflected a concern linked to




                               16
federalism, namely, that states be afforded latitude to
develop appropriate procedures. (Ibid.) Any such latitude,
however, was not open-ended: “That Miller did not impose a
formal factfinding requirement does not leave [s]tates free to
sentence a child whose crime reflects transient immaturity
to life without parole. To the contrary, Miller established
that this punishment is disproportionate under the Eighth
Amendment.” (Ibid.)

       B. Underlying Proceedings
       In ruling on appellant’s request for resentencing, the
trial court had before it the facts established at his trial, as
well as evidence regarding his post-conviction conduct and
potential for rehabilitation.

           1. Trial Evidence
     In January 1998, appellant was 16 years old and lived
with his mother, Gina Castillo, and his stepfather, Pedro
Castillo.5 He shared a bedroom with his baby sister. In that
room, Gina and Pedro placed a piggy bank for the baby
containing more than $100.
     Gina and Pedro forbade appellant to visit his cousin
Samuel Ramirez, who lived with appellant’s grandmother.
On several occasions, appellant told a schoolmate that he
intended to kill his parents because they were strict with

5    As appellant’s victims share a surname, we refer to
them by their first names.




                                 17
him, made him do chores, and would not let him “go out.”
The schoolmate also heard Ramirez say that “it would be
‘cool’ to kill” appellant’s parents.
       During the morning of January 13, 1998, appellant and
Ramirez were in an arcade with a friend. Appellant told the
friend that he and Ramirez were going to kill Gina because
“it was a perfect day to do it.” After showing Hernandez a
knife, appellant said that after killing Gina, he intended to
take some money.
       On the same date, at approximately 2:30 p.m., Los
Angeles County Sheriff’s Department deputy sheriffs
responded to a 911 call regarding appellant’s residence.
Inside, they found Gina lying on the floor, suffering from
multiple wounds and covered with blood. She told the
deputy sheriffs that appellant had inflicted her injuries.
Nearby, they found some knives. Later, Pedro discovered
that the piggy bank in appellant’s bedroom was missing.
       Investigating officers interviewed appellant twice
shortly after Gina’s death. After initially denying
involvement in Gina’s murder, he provided an account of the
crime. Appellant stated that he and Ramirez discussed
killing Gina and Pedro for more than a month prior to
January 13, 1998. According to appellant, killing his
parents was his idea. The idea arose from “frustration”
regarding his lack of freedom, as his parents did not “let
[him] go out anywhere.”
       Appellant further stated that on the day of the murder
he arose and gave the appearance of leaving for school, but




                               18
went to an arcade, where he met Ramirez. At approximately
2:25 p.m, they entered appellant’s residence, where Gina
was seated at a computer table. Although their faces were
covered, Gina recognized appellant. When appellant stabbed
Gina with a knife, she struggled and took away the knife.
Ramirez secured a second knife and held Gina down, but
Gina broke the second knife. At some point, appellant
obtained a third knife that Ramirez had brought with him
and stabbed Gina in the neck and chest. As Gina struggled
with them, she recognized Ramirez and said, “‘Help me!’”
She also said, “I’m dying.” Because Gina was screaming
appellant’s name, he put a rag in her mouth. After attacking
Gina, appellant washed his hands and fled with Ramirez.
      During the second interview, appellant stated that for
three or four weeks, he planned with Ramirez to kill Gina
and Pedro. As part of the plan, they intended to take some
money appellants’ parents had set aside for appellant’s baby
sister. He also acknowledged that at some point, they
contemplated killing a female schoolmate in a manner
derived from a movie called “Scream.” Prior to killing Gina,
appellant and Ramirez smoked marijuana. When asked how
he felt after the killing, appellant replied, “Terrible, I felt
like just killing myself too.”

           2. Evaluations of Potential for Rehabilitation and
              Reports Regarding Post-Conviction Conduct
     Prior to the resentencing hearing, appellant submitted
several reports and declarations regarding his potential for




                                19
rehabilitation and conduct while in prison. According to a
social history and assessment prepared with the assistance
of Licensed Clinical Social Worker Miya Sumii, appellant
was immature at the time of his offenses, as he then “had
limited life experiences and limited ability to weigh the
risk[s] and consequences of his actions.” The social history
and assessment noted that at the time of the murder,
appellant was subject to fantasies derived from horror
movies, and killed Gina while under the influence of
marijuana. The social history and assessment opined that
appellant had “great potential” for rehabilitation, in view of
the steps he had taken toward rehabilitation while serving
his sentence.
      In a review of records for appellant held by the
California Department of Correction and Rehabilitation,
retired associate warden Daniel J. Fulks stated that
Appellant’s disciplinary history was “extremely
commendable.” Appellant had been discipline-free for 14 of
his 15 years of incarceration, and there was no documented
criminal or gang activity. According to Fulks, appellant’s
sole disciplinary violation, which occurred in 2000, was for
possession of inmate-manufactured alcohol. Fulks further
stated that while incarcerated, appellant had earned his
GED and participated in several vocational training
programs.
      Barry A. Krisberg, a Ph.D. in sociology, opined that
appellant exhibited “an excellent capacity to rehabilitate and
reintegrate into society.” According to Krisberg, appellant




                               20
had a “remarkable record of good behavior” while
imprisoned, was respectful to staff and peers, and “took
advantage of every program and self-help opportunity
available to him.”
      In addition to this evidence, appellant submitted
declarations from several persons familiar with his religious
beliefs. John Pape stated he was a religious volunteer at
Central Juvenile Hall, where appellant was once placed.
When appellant was moved to prison, Pape maintained
contact with him through visits, phone calls, and letters.
According to Pape, appellant was an immature 16-year-old
when they first met. Since that time, appellant had matured
and acquired religious beliefs. Pape opined that appellant’s
ongoing participation in religious programs reflected “a
genuine desire and capacity for rehabilitation.”
      David Waagan, a member of the Jehovah’s Witnesses,
stated that in 2006, he conducted appellant’s baptism while
appellant was incarcerated at Pelican Bay State Prison.
According to Waagan, “[n]ot anyone can be baptized,” as an
individual must undergo lengthy preparation and
demonstrate “progressive changes.”
      Gerald Gormly and David Griffin, who had contact
with appellant at Pelican Bay State Prison as religious
volunteers, stated that he demonstrated maturity and
sincere religious convictions.

           3. Testimony at Resentencing Hearing
     Griffin and Pape also testified at the resentencing




                               21
hearing. Griffin stated that in 2006, he encountered
appellant for approximately six months. Appellant had then
been baptized as a Jehovah’s Witness. Few inmates had
done so, as baptism as a Jehovah’s Witness required
comprehensive knowledge of the Bible. Griffin regarded
appellant as a “very sincere” and “very serious” person.
According to Griffin, appellant was also well regarded by the
prison staff because he was among the small group of
inmates who had a job. Griffin acknowledged that he was
not a trained psychologist, and that he was unaware of some
aspects of appellant’s crime.
      Pape testified that he believed appellant’s mature
conduct to be sincere. In addition to acknowledging that he
had no background in psychology, Pape stated that he did
not know that after the murder, appellant displayed an
interest in the movie “Scream,” and asked his counselors to
secure a copy of its sequel.

           4. Trial Court’s Ruling
      Following the presentation of evidence, the trial court
resentenced appellant to an LWOP term on the murder
conviction. After summarizing the Miller factors and other
applicable principles, the court found that that there was no
evidence of “abuse, neglect, family alcohol [abuse], drug
abuse, lack of parenting, lack of education[,] or any prior acts
of exposure to any violence,” and no evidence that appellant
might have been convicted of a lesser crime but for his
youth. The court made detailed findings regarding the




                                22
circumstances surrounding the murder, but no express
finding regarding appellant’s potential for rehabilitation.6

      C. Analysis
      For the reasons discussed below, we conclude that
although the United States Supreme Court has not
announced a categorical bar to the imposition of an LWOP
term on appellant’s offense, the matter must be remanded
for resentencing in light of Montgomery.

6      Regarding the circumstances surrounding the murder,
the trial court found that it was planned as a crime for
robbery and murder, and that appellant appreciated the
pertinent consequences and risks. The court further stated:
“[Appellant] planned to kill several people. . . . Other girls in
school. He planned to first terrorize them by making
telephone calls using a voice modulator to disguise his voice
but more importantly to be that of a sinister film character.
He didn’t have the money to purchase such a device and he
knew his 2 months old sister had a donation bag in her room
which contained donations of those making visits to the new
baby and to the family. He further planned to create the
appearance of a botched robbery gone bad by the presence of
his mother catching the robber. He knew he had to kill her
when he went into the house. He brought knives for that
very purpose. During the 45 stab wounds to her body, some
of those knives broke. He supplemented his weapons by
using household kitchen knives and finally when that didn’t
work he used a screwdriver to finish her, he thought. While
he and his accomplice fled with the [baby’s] money . . . . He
left a one or 2 months old infant to be on her own. . . .”




                                 23
            1. No Categorical Ban Against LWOP Terms for
               Juvenile Offenders
      We begin with appellant’s contention that in view of
the analytical framework underlying Miller, Roper, and
Graham, the Eighth Amendment must be “understood to
prohibit any sentence of life without parole in the case of the
juvenile offender.” As appellant notes, Miller acknowledged
the “great difficulty” noted in Roper and Graham “of
distinguishing . . . between ‘the juvenile offender whose
crime reflects . . . transient immaturity, and the rare
juvenile offender whose crime reflects irreparable
corruption.’” (Miller, supra, 132 S.Ct. at p. 2469, quoting
Roper, 543 U.S. at p. 573, and Graham, 560 U.S. at p. 2026.)
Appellant argues that because the risk of error attendant to
drawing such a distinction underpinned the categorical bans
on punishment announced in Roper and Graham, that risk
also mandates the same result with respect to LWOP terms
for juvenile offenders convicted of murder.
      Although fully informed by Roper and Graham, Miller
expressly declined to announce such a categorical ban.
(Miller, supra, 132 S.Ct. at p. 2469.) Rather, as explained in
Montgomery, Miller set forth a substantive ban on LWOP
terms for juveniles whose crimes reflect transient
immaturity, rather than irreparable corruption, together
with procedural requirements for distinguishing that class of
juveniles. In so holding, Miller impliedly found that for
purposes of the substantive ban in question, the risk of error
attending such a procedure, if properly implemented, did not




                                24
manifestly offend the Eighth Amendment. We are bound by
that ruling. (Calderon, supra, 4 Cal.3d at p. 258.)

             2. Application of Miller in Light of Montgomery
      We turn to appellant’s challenges to the trial court’s
application of Miller. Because we must follow the United
States Supreme Court’s most recent pronouncement on the
Eighth Amendment when the high court’s decisions may
differ on a legal point, we apply the interpretation of Miller
set forth in Montgomery. (See Sei Fujii v. State of California
(1952) 38 Cal.2d 718, 728; In re Lane (1962) 58 Cal.2d 99,
105; Meddock v. County of Yolo (2013) 220 Cal.App.4th 170,
176, fn. 6; 9 Witkin, Cal.Procedure (5th ed. 2008) Appeal,
§ 541, pp. 611-613.)
      In determining that Miller applies retroactively on
state collateral review, Montgomery significantly recast
Miller. Under Montgomery, Miller must be regarded as
announcing a substantive rule barring LWOP terms for a
specific class of juvenile offenders, namely, those “‘whose
crimes reflect the transient immaturity of youth,’” not
irreparable corruption. (Montgomery, supra, 136 S.Ct. at p.
743.) As explained in Montgomery, that substantive rule
bars LWOP terms “for all but the rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility.” (Montgomery, supra, at p. 734.) The
application of Miller in state collateral review proceedings
thus targets a specific question -- that is, whether the
juvenile offender’s crime arose from irreparable corruption,




                               25
rather than transient immaturity -- the focal point of which
is the existence of “permanent incorrigibility.” (Id. at
p. 734.)
      Furthermore, under Montgomery, Miller mandates the
employment of a procedure that clearly addresses and
resolves that question. As set forth in Montgomery, Miller
requires “a procedure that enables a prisoner to show that
he falls within the category of persons whom the law may no
longer punish.” (Montgomery, supra, 136 S.Ct. at p. 735.)
Only considerations regarding federalism motivated Miller
to refrain from requiring that trial courts make a finding
regarding “a child’s incorrigibility.” (Ibid.) Although states
are afforded latitude regarding the procedure, its design as
implemented must resolve the key question, as states are
not “free to sentence a child whose crime reflects transient
immaturity to life without parole.” (Ibid.)
      In our view, the stringent standard set forth in
Montgomery cannot be satisfied unless the trial court, in
imposing an LWOP term, determines that in light of all the
Miller factors, the juvenile offender’s crime reflects
irreparable corruption resulting in permanent incorrigibility,
rather than transient immaturity. Montgomery thus vitiates
Palafox, upon which respondent relies, which concluded,
without the benefit of Montgomery, that a trial court
complies with Miller “as long as [it] gives due consideration
to an offender’s youth and attendant characteristics,”
without ruling out the possibility that the offender was
subject to rehabilitation. (Palafox, supra, 231 Cal.App.4th at




                               26
pp. 73, 90-92.) In view of Montgomery, the trial court must
assess the Miller factors with an eye to making an express
determination whether the juvenile offender’s crime reflects
permanent incorrigibility arising from irreparable
corruption.7

7     People v. Chavez (2014) 228 Cal.App.4th 18, upon
which respondent also relies, does not assist respondent. In
Chavez, prior to Miller and Gutierrez the trial court imposed
an LWOP term following a juvenile offender’s murder
conviction. (Chavez, supra, 228 Cal.App.4th at pp. 32-34.)
As the trial court had failed to consider the “ultimate
question” set forth in Miller -- whether the defendant was
irreparably corrupt -- and the record did not answer that
question, the appellate court reversed the sentence and
remanded the matter for resentencing. Because Chavez
predates Montgomery, it provides no guidance regarding that
decision.
      Following the completion of briefing, respondent
directed our attention to People v. Blackwell (2016) 3
Cal.App.5th 166 (Blackwell). There, the trial court assessed
the Miller factors and imposed an LWOP term following a
juvenile offender’s murder conviction. (Blackwell, supra, 3
Cal.App.5th at pp. 173-174.) On appeal, the juvenile
offender contended that the absence of jury findings
regarding the Miller factors contravened Apprendi v. New
Jersey (2000) 530 U.S. 466, and that the LWOP term
constituted cruel and unusual punishment. (Blackwell,
supra, 3 Cal.App.5th at p. 182.) In rejecting the contention
under Apprendi, the appellate court concluded that
notwithstanding Montgomery, a determination that a
juvenile offender’s crime reflects irreparable corruption
(Fn. continued on next page.)




                                27
      As the trial court resentenced appellant without the
benefit of Montgomery, it did not examine the Miller factors
in that manner. In reimposing the LWOP term, the court
neither stated that appellant was irreparably corrupt nor
made a determination of permanent incorrigibility. Rather,
the court focused on the circumstances of the crime, without
reference to the evidence bearing on appellant’s possibility of
rehabilitation. In short, in resentencing appellant, the court
did not apply the substantive rule Montgomery has now
stated Miller established.
      The remaining issue concerns the appropriate remedy.
In view of the evolving standards for sentencing juveniles
reflected in Montgomery, the parties were not fully apprised
in advance of the resentencing hearing of the types of
evidence potentially relevant to the trial court’s


“merely ‘encapsulates the [absence] of youth-based
mitigation.’” (Id. at p. 192.) The appellate court further
concluded that the trial court’s assessment of the Miller
factors did not contravene the Eighth Amendment, relying
primarily on Palafox. (Blackwell, supra, at pp. 199-203.)
      For the reasons discussed above, we do not find
Blackwell persuasive on the issues before us. Under
Montgomery, irreparable corruption requires “permanent
incorrigibility,” not simply the absence of youth-based
mitigation. (Montgomery, supra, 136 S.Ct. at p. 734.)
Furthermore, in view of Montgomery, Palafox reflects an
interpretation of Miller that is no longer tenable.




                                28
determination. For that reason, we decline to examine
whether the evidence before the trial court demonstrated
that appellant is not irreparably corrupt, as he contends on
appeal.8 (Boyle v. Hawkins (1969) 71 Cal.2d 229, 232, fn. 3
[“Before an appellate court may make new findings as the
basis of a reversal, with directions to enter judgment for
appellant . . . ‘it must appear from the record . . . that on no
theory grounded in reason and justice could the party
defeated on appeal make a further substantial showing in
the trial court in support of his cause,’” quoting Tupman v.
Haberken (1929) 208 Cal. 256, 269].) We therefore remand
the matter for resentencing.




8     Nor do we examine appellant’s contention that his
LWOP sentence contravenes the prohibition against cruel or
unusual punishment in the California Constitution (art. I,
sec. 17), as it rests entirely on the same argument.




                                 29
                       DISPOSITION
      The order of the court is reversed, and the matter is
remanded for further proceedings in accordance with this
opinion.
      CERTIFIED FOR PUBLICATION




                                        MANELLA, J.

We concur:




WILLHITE, Acting P. J.




COLLINS, J.




                                30
