Filed 8/27/14 In re Pulido CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re MICHAEL PULIDO,                                                A136960
         on Habeas Corpus.
                                                                     (San Mateo County
                                                                     Super. Ct. No. SC29805)
                                                INTRODUCTION
         In 1994, petitioner Michael Pulido was sentenced to life without the possibility of
parole for crimes he committed when he was 16 years old. In our original opinion in this
matter filed July 15, 2013, we granted petitioner habeas relief under Miller v. Alabama
(2012) 567 U.S. ____ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), which held that
mandatory life imprisonment without parole (LWOP) for those under the age of 18 at the
time of their crimes violates the Eighth Amendment’s prohibition against cruel and
unusual punishment. We vacated petitioner’s sentence of life without possibility of
parole and remanded for resentencing.
         The People petitioned the Supreme Court for review. (In re Michael Pulido,
review granted October 16, 2013.) The Court granted the People’s petition pending
resolution of similar issues in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez).
(Appellate case no. S206365; see also appellate case no. S206771.) On May 5, 2014, our
Supreme Court issued its opinion. (Gutierrez, supra, 58 Cal.4th 1354.) On July 10, 2014,
the Court transferred petitioner’s case to us with directions to vacate our prior decision
and reconsider the cause in light of Gutierrez.


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       We asked the parties for further briefing to address the effect of Gutierrez on our
previous ruling and disposition. Specifically, we asked the parties to address “whether
the trial court record complies with the Gutierrez holding that ‘the trial court must
consider all relevant evidence bearing on the “distinctive attributes of youth” discussed in
Miller and how those attributes “diminish the penological justifications for imposing the
harshest sentences on juvenile offenders.” ’ (People v. Gutierrez, supra, 58 Cal.4th at p.
1390, quoting Miller v. Alabama (2012) 567 U.S. ____ [132 S.Ct. 2455, 2465].)” Having
independently reviewed the sentencing transcript and other documents relevant to the
sentencing court’s decision in light of the supplemental briefing, we now re-affirm our
original decision, vacate the sentence, and remand for resentencing.
                                      DISCUSSION
       Gutierrez held the availability (after serving 15 years of an LWOP sentence) of a
sentence recall mechanism pursuant to Penal Code section 1170, subdivision (d)(2) does
not preclude a Miller challenge to that sentence on direct review. (Gutierrez, supra, 58
Cal.4th at pp. 1384, 1386-1387.) This court came to the same conclusion, and the parties
agree this court’s prior remand order is consistent with that holding.
       Gutierrez also held “that the trial court must consider all relevant evidence bearing
on the ‘distinctive attributes of youth’ discussed in Miller and how those attributes
‘diminish the penological justifications for imposing the harshest sentences on juvenile
offenders.’ (Miller, supra, 567 U.S. at p. ____, [132 S.Ct. at p. 2465].)” (People v.
Gutierrez, supra, 58 Cal.4th at p. 1390.) The Court distilled from Miller the following
five relevant considerations: “First, a court must consider a juvenile offender’s
‘chronological age and its hallmark features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.’ [Citation.] . . . [¶ ] Second, a sentencing
court must consider any evidence or other information in the record regarding ‘the family
and home environment that surrounds [the juvenile]—and from which he cannot usually
extricate himself—no matter how brutal or dysfunctional.’ [Citation.] . . . [¶ ] Third, a

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court must consider any evidence or other information in the record regarding ‘the
circumstances of the homicide offense, including the extent of [the juvenile defendant’s]
participation in the conduct and the way familial and peer pressures may have affected
him.’ [Citation.] Also relevant is whether substance abuse played a role in the juvenile
offender’s commission of the crime. [Citation.] [¶] Fourth, a court must consider any
evidence or other information in the record as to whether the offender ‘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.]’ [Citation.]
[¶] Finally, a sentencing court must consider any evidence or other information in the
record bearing on ‘the possibility of rehabilitation.’ [Citations.] The extent or absence of
‘past criminal history’ is relevant here. [Citation.] [¶] Although courts elsewhere have
enumerated or categorized these factors in different ways, we note that the emerging
body of post-Miller case law has uniformly held that a sentencing court must consider the
factors discussed above before imposing life without parole on a juvenile homicide
offender.” (People v. Gutierrez, supra, 58 Cal.4th 1354, 1388-1389; quoting Miller,
supra, 567 U.S. at p. ____, 132 S.Ct. at pp. 2468-2469.)
       Our Supreme Court observed: “To be sure, not every factor will necessarily be
relevant in every case. For example, if there is no indication in the presentence report, in
the parties’ submissions, or in other court filings that a juvenile offender has had a
troubled childhood, then that factor cannot have mitigating relevance. But Miller
‘require[s] [the sentencer] to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.’
[Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1390.)
       Our prior review of the record below demonstrated “the sentencing judge imposed
LWOP based on his understandable sympathy for the victim, whom he described as ‘a
hard working, young man from Mexico’ who held several jobs and ‘obviously hoped for

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more than life gave him.’ Also, the sentencing judge imposed LWOP based on his
judgment the evidence showed [petitioner] was the shooter, stating, ‘There is no question
in my mind, whatsoever, that this defendant . . . shot the victim. He had the gun before.
He had the gun afterwards. And since then he has distinguished himself in custody by
formulating plans for an escape, apparently[,] and evidencing no remorse whatsoever.’
For those reasons, the court stated, ‘I can see no reason to, in effect, do anything to thrust
this man back in society.’ ” (Slip opn., pp. 5-6, fn. omitted.) We concluded: “Patently,
prior to imposing LWOP, the sentencing judge did not focus on the factors now
constitutionally mandated under Miller, in particular the offender’s ‘chronological age
and its hallmark features—among them, immaturity, impetuosity, and failure to
appreciate risks and consequences.’ [Citation.] In sum, because Miller refocused the
sentencing decision on ‘how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison’ [citation] and the trial court
did not consider the ‘hallmark features’ of youth now mandated under Miller [citation],
we conclude habeas relief is warranted in this case.” (Slip opn., p. 6, fn. omitted.)
       Further re-review of the record, including the amenability determination report
and the probation report in light of the parties’ supplemental briefs, confirms our original
view. Although these reports included some factual information relevant to the Miller
inquiry about petitioner’s childhood, juvenile record, and the circumstances of the
offense, it is clear the trial court did not view or analyze that information through the
prism Miller now requires. For as the People’s sentencing memorandum argued, such
analysis was beside the point in 1994: “If the imposition of the punishment of death for
16 or 17 year old minors found guilty of capital murder does not violate federal
guarantees against cruel and unusual punishment, it inevitably follows that the lesser
punishment of life in prison without the possibility of parole does not constitute cruel and
unusual punishment.” A remand for resentencing is required by Gutierrez and Miller.



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                                    DISPOSITION
      The petition for habeas corpus is granted. Petitioner’s LWOP sentence is vacated
and the matter is remanded for resentencing.




                                               _________________________
                                               Dondero, J.


We concur:


_________________________
Margulies, Acting P.J.


_________________________
Banke, J.




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