Filed 11/21/14 P. v. Tillis CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


THE PEOPLE,                                                                             C070693

                   Plaintiff and Respondent,                              (Super. Ct. No. SF116919A)

         v.

DARRELL MONTE TILLIS,

                   Defendant and Appellant.


THE PEOPLE,                                                               (Super. Ct. No. SF116919B)

                   Plaintiff and Respondent,

         v.

MARQUIS DOMINIQUE MOORE,1

                   Defendant and Appellant.




1 The abstract of judgment reflects the spelling of defendant Moore’s first name as
“Marquise.” In his pro. per. notice of appeal, he sets forth his full name as “Marquis
Dominique Moore” and this should be reflected on an amended abstract.


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       Codefendants Darrell Monte Tillis and Marquis Dominique Moore were 18 and 17
years old, respectively, at the time of their criminal escapades in 2010.

       A jury convicted defendant Moore—based on three criminal escapades involving
eight charges—of three counts of robbery, two counts of assault with a firearm, one count
of attempted murder, one count of burglary, and one count of false imprisonment; the
jury also found true various gun use enhancements, among other enhancements. (Pen.
Code, §§ 211, 245, subd. (a)(2), 664/187, 459, 237, subd. (a) & 12022.53, subds. (b), (c),
(d), respectively.)2

       The jury convicted defendant Tillis of one count of robbery and one count of
assault with a firearm, involving one of these three escapades, and found, as an
enhancement, that a coprincipal (Moore) was armed with a firearm in the robbery.
(§§ 211, 245, subd. (a)(2) &12022, subd. (a)(1), respectively.)

       Both defendants raise sentencing issues only. We affirm their judgments of
conviction but reverse their judgments of sentence, and remand for a new sentencing
hearing for each of them.

       As for defendant Moore, who was 17 at the time of his offenses, we reverse his
de facto sentence of life without parole (LWOP), based on authority from the United
States Supreme Court and from the California Supreme Court; and we remand for the
trial court to resentence him in light of this authority.

       As for defendant Tillis, the People agree with him, and so do we, that a
resentencing remand is required because the trial court mistakenly believed he was
presumptively ineligible for probation.

       Given the nature of the issues on appeal, detailing the facts is unnecessary.


2 Undesignated statutory references are to the Penal Code.



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       Suffice it to say, at this point, that on July 18, 2010, Moore and Tillis robbed a
man on the street, after Moore hit the man in the head with a gun, demanded money, and
directed Tillis to go through the man’s pockets. As Moore and Tillis fled, Moore shot the
gun twice into the air. (Both defendants were found guilty on count 3 [robbery] and
count 4 [assault with a firearm].)

       On July 22, 2010, Moore, while masked, robbed an ice cream shop owner at
gunpoint, after having earlier conversed, unmasked, with the owner. After the owner
made a disparaging comment to Moore and said she recognized him, Moore shot her in
the chest and then left while pointing the gun at her head. (Defendant Moore was found
guilty of count 8 [robbery], count 9 [attempted murder], and count 10 [assault with a
firearm].)

       And, on September 5, 2010, Moore, after conversing flirtatiously with a woman,
later entered her apartment on a pretext, and robbed her at gunpoint. During this ordeal,
Moore grabbed her leg and pulled her toward her bedroom, but she managed to elude his
grasp. (Defendant Moore was found guilty of count 13 [robbery], count 14 [burglary],
and count 15 [felony false imprisonment].)

       We will set forth additional facts in discussing the issues.

                                       DISCUSSION

                                     I. Moore’s Sentence

       The trial court sentenced Moore to an unstayed aggregate term of 83 years to life,
comprised as follows: An upper term of nine years for the attempted murder (count 9),
plus a consecutive enhancement sentence of 25 years to life for discharging a firearm
causing great bodily injury (§ 12022.53, subd. (d)); consecutive sentences of one year
each for two of the robbery convictions (counts 3 and 8), plus consecutive gun use
enhancements of 20 years and 25 years to life for those two counts, respectively


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(§ 12022.53, subds. (c), (d), respectively); and, finally, consecutive terms of one year four
months for the burglary (count 14) and eight months for the false imprisonment (count
15).

       Before we get to Moore’s contention concerning his de facto LWOP sentence, we
must provide some legal background.

       Beginning with Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825]
(Graham), followed by Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407]
(Miller), and concluding with People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the
United States and California Supreme Courts have explored, under the constitutional
prohibitions on cruel and/or unusual punishment, the limits of government’s power to
punish minors (juveniles) tried as adults.

       In Graham, the United States Supreme Court concluded that the “Constitution
prohibits the imposition of [an LWOP] sentence on a juvenile offender who did not
commit homicide. A State need not guarantee the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some realistic opportunity to
obtain release before the end of that term.” (Graham, supra, 560 U.S. at p. 82
[176 L.Ed.2d at p. 850].)

       In Miller, the United States Supreme Court, after noting that LWOP is the harshest
penalty constitutionally available for juveniles, concluded that a sentencing court must
“follow a certain process” before imposing this penalty. (Miller, supra, 567 U.S. at
p. ___ [183 L.Ed.2d at p. 426].) The sentencing court must consider the offender’s youth
and the hallmark features of youth that are indicative of lesser culpability and greater
capacity for change compared to adults (among them, immaturity, impetuosity, and
failure to appreciate risks and consequences); and consider, in an individualized way, the
nature of the offender and the offense (for example, as relevant, the offender’s



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background and upbringing, mental and emotional development, and possibility of
rehabilitation). (Id. at pp. ___-___ [183 L.Ed.2d at pp. 421-423].)

       And, in Caballero, the California Supreme Court concluded that Graham and
Miller applied to a de facto (functionally equivalent) LWOP sentence of 110 years to life
imposed on a 16-year-old defendant convicted of three counts of attempted murder.
(Caballero, supra, 55 Cal.4th at pp. 265, 268-269.) The Caballero court urged “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, at p. 269, fn. 5.)

       The Legislature took the state Supreme Court’s advice and enacted Senate Bill
No. 260 (2013-2014 Reg. Sess.) sections 1 and 4, which added section 3051 to the Penal
Code. As relevant here, section 3051 provides an opportunity to juveniles, who are
sentenced to an LWOP term for nonhomicide offense(s), to obtain release on a showing
of rehabilitation and maturity after serving a prescribed term of confinement. Under
section 3051, a nonhomicide juvenile offender whose sentence is 25 years to life or
greater is “eligible for release on parole by the [Board of Parole Hearings, no later than]
during his or her 25th year of incarceration at a youth offender parole hearing . . . .”
(§ 3051, subds. (b)(3), (e).)

       Moore contends his sentence of 83 years to life amounts to an unconstitutionally
cruel and/or unusual punishment, because it is a de facto LWOP sentence that was
imposed without considering his individual characteristics as a juvenile offender and
without providing him a meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation. Moore claims his case must be remanded for a new
sentencing hearing along these lines.



                                              5
        The People counter that Moore’s sentence is not cruel and/or unusual because
section 3051 makes him eligible for parole during his 25th year of incarceration.
Consequently, a remand for resentencing is unnecessary.

        The dispositive question, then, reduces to—Does the legislative remedy provided
in section 3051 correct the constitutional violation in sentencing that the People concede
is present here? (The trial court did not have the benefit of Miller and Caballero, which
were decided after the court sentenced Moore in April 2012.) We answer this question,
“No.”

        As our state Supreme Court concluded in Caballero, “Although proper authorities
may later determine that youths should remain incarcerated for their natural lives, the
state may not deprive them at sentencing of a meaningful opportunity to demonstrate
their rehabilitation and fitness to reenter society in the future. Under Graham’s
nonhomicide ruling, the sentencing court must consider all [relevant] mitigating
circumstances attendant in the juvenile’s crime and life . . . so that it can impose a time
when the juvenile offender will be able to seek parole from the parole board.”
(Caballero, supra, 55 Cal.4th at pp. 268-269, italics added.)

        Section 3051 does not substitute for the sentencing court’s consideration of all
individual characteristics of the juvenile offender. Regardless of whether section 3051
may eventually convert a de facto LWOP sentence to one with the possibility of parole,
the United States and California Supreme Courts, in Graham, Miller and Caballero, have
constitutionally required the sentencing court to consider the factors of youth and
maturity when selecting the initial punishment. The statutory promise to have a future
parole board review an improperly considered sentence does not cure the constitutional
error. The possibility that Moore will have a board of parole undertake an evaluation 25
years after his sentencing (the year 2037) is not a substitute for the trial court’s evaluation
at sentencing. Without a proper evaluation by the trial court, juvenile offenders will be


                                              6
deprived of their constitutionally guaranteed evaluation at the time of their sentencing
and again when attempting to meet their burden during the much later youth offender
parole hearings.3

       A resentencing remand for Moore is further supported by our state Supreme
Court’s recent decision in People v. Gutierrez (2014) 58 Cal.4th 1354. There the high
court constitutionally invalidated, in light of Graham and Miller, a statutorily construed
presumption in favor of LWOP sentences for 16- and 17-year-old special circumstance
murderers, notwithstanding a later statutory enactment that provided a meaningful
opportunity for such offenders to obtain release. (Gutierrez, at pp. 1386-1387.) In short,
the Gutierrez court recognized that a statutory promise of future correction of a presently
unconstitutional sentence does not obviate the need to remand for resentencing that
comports with the constitutional ban on cruel and/or unusual punishment.

       We conclude that Moore’s judgment of sentence must be reversed, and we remand
his case to the trial court for a new sentencing hearing consistent with the authority noted
above.4



3 The question whether section 3051 resolves any constitutional infirmity with juvenile
de facto LWOP sentences by offering the possibility of parole after 25 years, is a question
pending before the state Supreme Court.
4 Moore raises two other sentencing issues that are largely superfluous in light of our
sentencing remand. Nevertheless, we note, first, the trial court did not err prejudicially in
sentencing Moore to the upper term of nine years for the attempted murder (count 9).
Assuming for the sake of argument the trial court erred in using the same fact to impose
both the upper term and a sentence enhancement (i.e., improper dual use of facts—here,
the facts of gun use and infliction of great bodily injury), the trial court also cited to
several other aggravating factors supported in the record. (See People v. Osband (1996)
13 Cal.4th 622, 728-729 [a single aggravating factor is sufficient to impose an upper
term].) And, second, the trial court properly declined to stay, under section 654, Moore’s
false imprisonment sentence of eight months (count 15) because there is substantial
evidence he committed this offense with a different intent and objective than the
burglary-robbery accompanying it (counts 14, 13, respectively). (People v. Coleman

                                              7
                                    II. Tillis’s Sentence

       Tillis contends, the People agree, and we echo, that Tillis’s aggregate sentence of
four years must be reversed, and his case remanded for a new sentencing hearing. Tillis’s
four-year aggregate sentence was comprised as follows: count 3, robbery (three years),
with a one-year gun enhancement (§ 12022, subd. (a)(1), coprincipal armed); and count
4, assault with a firearm (§ 654 stay of sentence).

       In sentencing Tillis, the trial court mistakenly believed that Tillis was
presumptively ineligible for probation because Moore was armed with a firearm during
these two offenses. This presumption of probation ineligibility applies only if the
defendant being sentenced was personally armed with (or personally used) a firearm.
(§ 1203, subd. (e)(2); People v. Alvarez (2002) 95 Cal.App.4th 403, 406-409.)

                                      DISPOSITION

       The judgments of conviction are affirmed. The judgment of sentence for
defendant Moore is reversed, and his case is remanded for a new sentencing hearing as
explained herein. The judgment of sentence for defendant Tillis is reversed, and his case
is remanded for a new sentencing hearing as explained herein.

                                                            BUTZ               , J.

I concur:

            HULL            , J.


(1989) 48 Cal.3d 112, 162.) Given the prelude of Moore’s flirtatious, sexual
conversation with the female victim, and later Moore’s act of dragging the victim toward
her bedroom, it reasonably can be inferred (as the victim inferred, who managed to free
herself from Moore’s clutches) that the false imprisonment was committed for purposes
beyond the burglary-robbery, i.e., rape.
   Finally, our resolution of this appeal renders moot Moore’s claim that his counsel acted
ineffectively to the extent Moore’s sentencing issues have not been preserved for
appellate review.


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Nicholson, Acting P. J., Concurring and Dissenting.


       As to defendant Tillis, I concur in the result of the majority opinion.
       As to defendant Moore, however, I respectfully dissent.
       The majority reverses for resentencing based on language in Graham v. Florida
(2010) 560 U.S. 48 [176 L.Ed.2d 825] (Graham), Miller v. Alabama (2012) 567 U.S. ___
[183 L.Ed.2d 407] (Miller), and People v. Caballero (2012) 55 Cal.4th 262 (Caballero).
I do not believe that reversal is required even if, applying the after-acquired wisdom of
Graham, Miller, and Caballero, the trial court erred by sentencing defendant Moore to a
term that is the functional equivalent of a sentence of life without parole. No reversal is
required because, since the enactment of Senate Bill No. 260 (Pen. Code, § 3051), his
sentence is no longer the functional equivalent of a sentence of life without parole. The
later-legislated limit of 25 years to life for a juvenile nonhomicide offender eliminates the
concerns of the high courts in Graham, Miller, and Caballero and renders our
expenditure of further time and resources on the issue both unnecessary and imprudent.
       To explain, I must put the issue in context.
       The Eighth Amendment categorically bans imposition of a sentence of life without
parole on a juvenile nonhomicide offender. (Graham, supra, 560 U.S. at p. 75.) The
Eighth Amendment also categorically bans imposition of the functional equivalent of a
sentence of life without parole on a juvenile nonhomicide offender. (Caballero, supra,
55 Cal.4th at p. 268.) That summarizes Graham and Caballero.
       Miller dealt with whether the Eighth Amendment allowed mandatory imposition
of a term of life without parole on a juvenile murderer. (Miller, supra, 567 U.S. at pp.
___ [183 L.Ed.2d at pp. 414-415].) The court held that a life-without-parole term cannot
be mandatory, but such a term is permissible if the term is discretionary and the court
takes into account certain relevant circumstances. Miller summarized those
circumstances as follows (which I call the Miller factors):



                                              1
         “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 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, 567 U.S. at p. ___ [183 L.Ed.2d at p.
423].)
         Miller did not hold that every court sentencing any juvenile must consider the
Miller factors. It pertained only to the discretionary determination of whether a juvenile
murderer should be sentenced to a term of life without parole. Therefore, quoting Miller
in a case of a juvenile offender who did not commit homicide misapplies that Miller
requirement. In fact, no amount of considering Miller factors with respect to a juvenile
who did not commit homicide can justify imposing a sentence of life without parole
because the high court, in Graham, categorically banned such sentences for juveniles
who committed crimes short of homicide.
         Caballero applied Graham, according to the first and last paragraphs in the
Caballero opinion. (Caballero, supra, 55 Cal.4th at pp. 266, 268-269.) Since the Eighth
Amendment categorically bans a term of life without parole for a juvenile who did not
commit homicide, reasoned the California high court, it also categorically bans the
functional equivalent of a term of life without parole. (Id. at p. 268.)



                                              2
       While it is true that Caballero includes statements about what a sentencing court
must consider when imposing a sentence on a juvenile nonhomicide offender, those
statements are dicta. (Caballero, supra, 55 Cal.4th at pp. 266, 268-269.) The holding of
Caballero, the sole ratio decidendi, is that the Eighth Amendment categorically bans
sentences of life without parole for juvenile nonhomicide offenders. Again, no amount of
considering the Miller factors can justify imposing a term of life without parole or its
functional equivalent on a juvenile nonhomicide offender.
       On the other hand, there is no authority that the Eighth Amendment bans a
legislature from prescribing a mandatory term of 25 years to life for a juvenile convicted
of heinous crimes, or series of crimes, short of homicide. (People v. Dillon (1983) 34
Cal.3d 441 is an outlier confined to its own facts.) Such a sentence is not a term of life
without parole or the functional equivalent of life without parole and, therefore, Graham,
Miller, and Caballero are not implicated. So why cannot the Legislature impose such a
term retrospectively and eliminate Eighth Amendment concerns? I believe it can and did.
       With these thoughts in mind, I believe the majority misreads Graham, Miller, and
Caballero.
       The majority concludes that Senate Bill No. 260 does not eliminate the necessity
of reversing and remanding for resentencing a functional equivalent of a life-without-
parole sentence for a youthful nonhomicide offense. It determines that the trial court
must resentence the youthful defendant. In making this determination, the majority uses
statements in Miller and Caballero about how the sentencing court must consider factors
pertaining to the defendant’s age. This approach, however, ignores the actual holdings of
Miller and Caballero. Miller related to discretionary sentencing of a juvenile murderer to
a term of life without parole, and, as I have already said, the language now cited from
Caballero is dicta. Also, the statements in Caballero concerning what the sentencing
court must consider pertained to the law as it existed at the time Caballero was decided,



                                             3
with the possibility that a youthful nonhomicide offender might be subject to a sentence
that is the functional equivalent of a term of life without parole.
       But now the law has changed. With the passage of Senate Bill No. 260, as
recounted in the majority opinion, no defendant who committed a nonhomicide offense
as a juvenile is currently subject to the functional equivalent of a life-without-parole
sentence because the possibility for parole exists after 25 years of incarceration, at the
latest. Since there can be no dispute that a sentence of 25 years to life is not the
functional equivalent of a life-without-parole sentence for a juvenile, there is no Eighth
Amendment problem, at least as it relates to Graham, Miller, and Caballero.
       The majority relies in part on People v. Gutierrez (2014) 58 Cal.4th 1354
(Gutierrez), which is a case involving life without parole for special circumstance
murder, a homicide offense. In Gutierrez, the California Supreme Court found that
California’s special circumstance law, Penal Code section 190.5, subdivision (b), does
not violate the Eighth Amendment because it does not impose a mandatory sentence of
life without parole, neither does it create a presumption of life without parole. However,
because the sentencing court did not know that there was no presumption for a life-
without-parole sentence, as opposed to a term of 25 years to life, the Supreme Court
reversed and remanded for resentencing. (Id. at pp. 1360-1361.)
       The different, though also later-legislated, scheme considered in Gutierrez
provides a youthful homicide offender the opportunity to petition for recall of the
sentence after 15 years of incarceration and assigns to the youthful offender the burden of
showing rehabilitation. (Pen. Code, § 1170, subd. (d)(2); Gutierrez, supra, 58 Cal.4th at
p. 1384.) The court held that this sentence recall scheme did not alleviate the need to
remand for resentencing. It said: “Graham spoke of providing juvenile offenders with a
‘meaningful opportunity to obtain release’ as a constitutionally required alternative to –
not as an after-the-fact corrective for – ‘making the judgment at the outset that those
offenders never will be fit to reenter society.’ (Graham, at p. 75, italics added.)

                                              4
Likewise, Miller’s “cf.” citation to the ‘meaningful opportunity’ language in Graham
occurred in the context of prohibiting ‘imposition of that harshest prison sentence’ on
juveniles under a mandatory scheme. (Miller, at p. ___ [132 S. Ct. at p. 2469].) Neither
Miller nor Graham indicated that an opportunity to recall a sentence of life without
parole 15 to 24 years into the future would somehow make more reliable or justifiable the
imposition of that sentence and its underlying judgment of the offender's incorrigibility
‘at the outset.’ (Graham, at p. 75.)” (Gutierrez, supra, 58 Cal.4th at p. 1386.)
       This text from Gutierrez superficially seems to support remand in a case of a
youthful nonhomicide offender subject to the functional equivalent of a life-without-
parole sentence, despite the enactment of Senate Bill No. 260. But a close look at the two
recent statutes in question exposes the folly of equating them.
       Penal Code section 1170, subdivision (d)(2), at issue in Gutierrez, gives a youthful
homicide offender the opportunity to petition the sentencing court for recall of the
sentence after 15 years. In other words, the statute does not have the effect of modifying
the sentence. Instead, it provides an opportunity, later, to petition to be resentenced,
which opportunity can be lost by failing to file a petition to recall the sentence.
       Senate Bill No. 260, on the other hand, makes a youthful offender eligible for
release on parole after the prescribed number of years, at most 25. (Pen. Code, § 3051,
subd. (b).) The youthful offender need not file any petition because the youthful offender
parole board is required to hold the parole hearing (Pen. Code, § 3051, subd. (d)), which
makes the situation the functional equivalent of having been sentenced to 25 years to life
originally (since we are talking about functional equivalents).
       The majority does not acknowledge the considerable difference between the two
schemes. Under the Penal Code section 1170, subdivision (d)(2) scheme, the life-
without-parole sentence is unaltered if the youthful offender fails to file the petition or
fails to establish rehabilitation. Under the Senate Bill No. 260 scheme, however, the



                                              5
youthful offender’s sentence is effectively changed to a sentence of 25 (or less) years to
life because the parole eligibility and hearing are automatic.
       Therefore, neither Gutierrez nor reason support a remand for resentencing after
enactment of Senate Bill No. 260 in the case of a youthful nonhomicide offender
sentenced to the functional equivalent of life without parole. Defendant here is not
currently subject to a sentence that is the functional equivalent of life without parole;
therefore, his punishment is neither cruel nor unusual – that is, it does not violate the
Eighth Amendment.
       One final consideration bears mention. The majority remands for resentencing,
effectively ordering the trial court to impose a sentence that does not violate the Eighth
Amendment (which apparently means a term that is not the functional equivalent of a
life-without-parole sentence). The majority, however, does not and cannot give the trial
court authority to impose a sentence that is not authorized by statute. That is another
reason why relying on Senate Bill No. 260 as a remedy is sound, while remand for
resentencing is not.
       I would affirm as to defendant Moore.

                                                         NICHOLSON              , Acting P. J.




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