Filed 9/25/14 In re Hansen CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re BRAE HANSEN                                                   D063983

on                                                                  (San Diego County
                                                                    Super. Ct. No. SCD207862)
Habeas Corpus.
                                                                   ORDER MODIFYING OPINION

                                                                   NO CHANGE IN JUDGMENT

THE COURT:

         The opinion filed September 16, 2014, is modified as follows:

         Page four, fifth line is modified to read: The sentence is vacated.

         THERE IS NO CHANGE IN JUDGMENT.



                                                                                         McINTYRE, Acting P. J.
Filed 9/16/14 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re BRAE HANSEN                                                   D063983

on                                                                  (San Diego County
                                                                    Super. Ct. No. SCD207862)
Habeas Corpus.



THE COURT:

         Petition for writ of habeas corpus. Relief granted.

         Brae Hansen in pro. per., for Petitioner.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Charles C. Ragland, Deputy Attorney General, for Respondent.

                                                         FACTS

         In 2009, a jury convicted petitioner Brae Hansen of first degree murder and

vicarious use of a firearm. The jury also found true the special circumstance that the

murder was committed by lying in wait. The court sentenced Hansen to life without the

possibility of parole. Hansen was 17 at the time she committed the crime.
                                      DISCUSSION

       In her petition for writ of habeas corpus, Hansen contends that Penal Code

section 190.5 (undesignated statutory references are to the Penal Code), which governs

sentencing of juveniles found guilty of murder in which certain special circumstances are

found true, violates the Constitution's Eighth Amendment's prohibition on cruel and

unusual punishment. Hansen's petition is premised on a recent Supreme Court decision,

Miller v. Alabama (2012) __ U.S. __, 132 S.Ct. 2455 (Miller), which held that a state

statute imposing a mandatory sentence of life imprisonment without parole for those

under the age of 18 who commit murder violates the Eighth Amendment and that such

sentences may be imposed only after the court considers the "distinctive attributes of

youth" and how those attributes "diminish the penological justifications for imposing the

harshest sentences on juvenile offenders." (Id. at p. 2465.)

       At the time Hansen filed her writ petition, the California Supreme Court was

reviewing the same question raised by Hansen: whether existing authority interpreting

section 190.5, subdivision (b), as creating a presumption in favor of a sentence of life

without parole violates the Eighth Amendment to the United States Constitution under

the principles announced in Miller. (People v. Gutierrez (2014) 58 Cal.4th 1354

(Gutierrez).)




                                             2
       We stayed further proceedings involving Hansen's petition pending the final

outcome of Gutierrez. In its decision, the Supreme Court held that Miller precludes an

interpretation of section 190.5 as creating a presumption of life without parole and that

previous sentencing determinations premised on such a presumption require resentencing.

(Gutierrez, supra, 58 Cal.4th at pp. 1390-1391.)

       After the Supreme Court filed its decision, we requested an informal response

from the Attorney General regarding the effect of Gutierrez on Hansen's petition. In that

response, the Attorney General concedes that relief should be granted and the case

remanded for resentencing.

       As the Attorney General recognizes, relief is warranted. In its sentencing

memorandum, the prosecution informed the court that under governing authority, section

190.5 creates a presumption in favor of a sentence of life without the possibility of

parole. When the court sentenced Hansen, it applied this presumption in favor of a

sentence of life without parole and found no basis for reducing the sentence. As

discussed in Gutierrez, although we do not fault the trial court for dutifully applying the

law as it stood at the time, such a presumption raises serious constitutional concerns that

require a remand for resentencing.




                                             3
                                     DISPOSITION

       We may grant relief without issuing an order to show cause or writ of habeas

corpus when the petitioner's custodian concedes that the requested relief must be granted.

(People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.) Given the Attorney General's

concession, we conclude no useful purpose could reasonably be served by issuance of an

order to show cause and/or plenary disposition of the matter. The conviction is vacated.

The matter is remanded to the trial court for resentencing not inconsistent with Miller and

Gutierrez.



                                                                           McINTYRE, J.

WE CONCUR:



             BENKE, Acting P. J.



                   HUFFMAN, J.




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