Filed 6/27/16 P. v. Castaneda CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070715
         Plaintiff and Respondent,
                                                                                    (Tulare Super. Ct.
                   v.                                                               No. VCF274709B)

JESUS RICARDO CASTANEDA,
                                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.
         Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *   Before Kane, Acting P.J., Poochigian, J. and Franson, J.
                                     INTRODUCTION
       Defendant/appellant Jesus Ricardo Castaneda was born March 1995. He had a
lengthy juvenile record and was on juvenile probation at the time he committed first
degree murder, with special circumstances, on October 20, 2012, four months before his
18th birthday. The trial court imposed a sentence of life without parole (LWOP)
pursuant to Penal Code1 section 190.5, subdivision (b), after an analysis of relevant
sentencing factors as set forth in Miller v. Alabama (2012) ___ U.S. ___ [132 S.Ct.
2455] (Miller). Castaneda contends the sentence is cruel and/or unusual and must be
reversed. We disagree and affirm.
                      FACTUAL AND PROCEDURAL SUMMARY
       Pablo Calderon and Abel Calderon were cousins who were as close as brothers.
At one time, Pablo was a Northern gang member; he dropped out while in prison for a
robbery. Abel was a former member of a Southern gang subset. It was not a good idea
for Abel to hang out with Pablo, because the Southerners considered Abel to be active
still in the Northern gang.
       The neighborhood where Pablo and his family lived was dominated by Northern
gang members and a lot of his family belonged to the Northern gang. There was a house
in the neighborhood where Northern gang members hung out; Pablo met Castaneda there
and knew that Castaneda was a member of the North Side Visa Boys, a subset of the
Northern gang. Pablo and Castaneda has been friends for a few years; and Castaneda
often visited Pablo’s home.
       In the fall of 2012, there was some tension between the Northern and Southern
gangs. There had been several incidents in which Southern gang members shot at
Northern gang members. Castaneda was injured in one of those incidents.



       1   References to code sections are to the Penal Code unless otherwise specified.


                                              2.
       On September 25, 2012, there was a large Quinceañera party. At the party, a
group of Northern gang members, including Victor Moran, were present. Abel also was
present. The Northerners would stare at Abel and then talk amongst themselves; they
were warned they would be kicked out if they started trouble.
       Pablo and Abel were together the night of October 19, 2012, and into the morning
of October 20. They started out drinking and talking with one of Pablo’s cousins, then
ended up on the porch of Pablo’s grandmother’s house.
At the time, Pablo lived there with several family members. Pablo and Abel were sitting
on the porch drinking beer and listening to music.
       Around midnight of October 20, Castaneda walked over from his girlfriend’s
house, which was next door. Castaneda accepted a beer; shared a cigar with Abel; talked
for awhile; then left. At that point, Pablo went into the house to use the restroom.
       From inside the house, Pablo heard “popping noises.” Pablo ran back out and saw
that Castaneda had returned and was pointing a gun at Abel. Moran stood nearby. Pablo
saw flashes from the gun, after which Castaneda and Moran ran in the direction of
Moran’s house. Pablo briefly gave chase, but returned quickly to check on Abel.
       Abel was on the floor of the porch, bleeding profusely. Pablo called 911 and
asked for an ambulance. Meanwhile, Pablo’s uncle, Tim Carrasco, had been awakened
by the first shot. When he heard three more shots, he could tell they were close and
Carrasco called 911 to report shots fired at his home. While on the phone, Carrasco
walked outside and saw that Abel had been shot. Abel was bleeding heavily and the 911
dispatcher coached Carrasco on how to try and stem the bleeding. Eduardo Calderon
lived across the street and came outside after hearing the shots.
       Police and ambulance personnel eventually arrived and took over. When the
ambulance arrived, Carrasco, Calderon, and Pablo were asked to move away from the
porch and out of the yard. Once they had moved away, Pablo told both Carrasco and
Calderon that Castaneda was the shooter, and that Moran had been with Castaneda.

                                             3.
       Abel was pronounced dead at the hospital. Abel had been shot four times,
including two shots to his torso, both of which were fatal. The bullets had been fired
from a distance of two or three feet. There were no bullets around the porch or house.
Abel bled to death as a result of the gunshot wounds.
       On the day following the murder, Pablo spoke with Abel’s father, Abel Calderon,
Sr., and Pablo told him everything that had happened. Pablo thought Castaneda had
killed Abel because Abel was a Southerner. Pablo offered to kill Castaneda; Abel Sr.
told him not to and to go to the police with the information. Pablo and Abel Sr. went
together to the police department, and Pablo told the investigating detective everything.
       Law enforcement began a search for Castaneda and Moran. A search warrant was
executed at Moran’s residence. Two shotguns and five types of ammunition were found.
Moran was arrested on October 21, 2012, after a traffic stop.
       An extensive search was conducted for Castaneda; however, it was unsuccessful
for several months. Finally, in February 2013, Castaneda was detained in Phoenix,
Arizona, pursuant to the arrest warrant issued as a result of the shooting, and Castaneda
was returned to California.
       On July 26, 2013, an information was filed in Tulare County charging Castaneda
with one count of murder, a violation of section 187, subdivision (a); the special
circumstance that the murder was carried out by an active gang member to further the
activities of the criminal street gang within the meaning of section 190.2, subdivision
(a)(22), was alleged. It also was alleged that a principal in the offense intentionally and
personally discharged a firearm, causing death, within the meaning of section 12022.53,
subdivisions (c), (d) and (e)(1).
       Further, it was alleged that Castaneda was subject to the provisions of section
186.22, subdivisions (b)(1)(C) and (b)(4) in that he committed the felony for the benefit
of a criminal street gang with the specific intent to promote or further criminal conduct
by gang members.

                                             4.
       Finally, the People alleged that Castaneda was properly charged in adult criminal
court pursuant to Welfare and Institutions Code section 707, subdivision (d)(1), in that he
was 16 years or older at the time of the offense, and the charged offense was set forth in
Welfare and Institutions Code section 707, subdivision (b).
       A jury trial commenced on September 30, 2014. Officer Shane Logan testified as
an expert on gangs. In Logan’s opinion, Castaneda was an active Norteño gang member
at the time of the killing. Castaneda was known by his gang moniker and had been found
in the company of Norteños on at least eight occasions when officers were responding to
or investigating crimes. During at least four police contacts, Castaneda admitted Norteño
gang membership. Logan also opined that Moran was an active Norteño. Logan was of
the opinion the killing had been committed in association with and for the benefit of a
criminal street gang.
       On October 7, 2014, the jury found Castaneda guilty of first degree murder and
found the special circumstance and all the other allegations and enhancements true.
       Castaneda was sentenced on December 11, 2014, to life without the possibility of
parole. A consecutive term of 25 years to life was imposed for the firearm enhancement.
       Castaneda filed a timely notice of appeal on December 18, 2014.
                                      DISCUSSION
       Castaneda’s sole contention in this appeal is that imposition of LWOP in this case
constitutes cruel and/or unusual punishment under the federal and state Constitutions. He
maintains the Eighth Amendment to the United States Constitution, as construed in
Miller, forbids imposition of an LWOP sentence on a juvenile offender except when the
facts show said juvenile is beyond redemption. He asserts the facts do not support an
LWOP sentence and the sentence is cruel and/or unusual punishment. We disagree.
       Constitutional Analysis
       The Eighth Amendment to the United States Constitution applies to the states.
(People v. Caballero (2012) 55 Cal.4th 262, 265, fn. 1.) It prohibits the infliction of

                                             5.
“cruel and unusual” punishment. (U.S. Const., 8th Amend., italics added.) Article I,
section 17 of the California Constitution prohibits infliction of “[c]ruel or unusual”
punishment. (Italics added.) The distinction in wording is “purposeful and substantive
rather than merely semantic. [Citations.]” (People v. Carmony (2005) 127 Cal.App.4th
1066, 1085.) As a result, we construe the state constitutional provision “separately from
its counterpart in the federal Constitution. [Citation.]” (People v. Cartwright (1995) 39
Cal.App.4th 1123, 1136.) This does not make a difference from an analytic perspective,
however (People v. Mantanez (2002) 98 Cal.App.4th 354, 358, fn. 7), and defendant does
not contend the provisions should be separately analyzed in his case (see People v.
Blackwell (2011) 202 Cal.App.4th 144, 158, disapproved on another ground in People v.
Gutierrez (2014) 58 Cal.4th 1354, 1370–1371, 1387). The touchstone in each is gross
disproportionality. (See Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of
O’Connor, J.); Rummel v. Estelle (1980) 445 U.S. 263, 271; People v. Dillon (1983) 34
Cal.3d 441, 479.) Whether a punishment is cruel and/or unusual is a question of law
subject to our independent review, but underlying disputed facts must be viewed in the
light most favorable to the judgment. (People v. Abundio (2013) 221 Cal.App.4th 1211,
1217; People v. Felix (2003) 108 Cal.App.4th 994, 1000.)
       As the analytic framework for a claim that punishment is excessive requires
reference to “ ‘the evolving standards of decency that mark the progress of a maturing
society[]’ ” (Atkins v. Virginia (2002) 536 U.S. 304, 311–312), the United States
Supreme Court’s views with respect to the sentencing of juvenile offenders have been
evolving for some time. One theme has remained constant for decades: the recognition
that “children are constitutionally different from adults for purposes of sentencing.”
(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2464].)
       In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the U.S. Supreme Court held
the Eighth Amendment forbids imposition of the death penalty on juvenile offenders
under 18 years of age. (Roper, supra, at p. 568.) It observed that the Eighth Amendment

                                             6.
requires that capital punishment “be limited to those offenders who commit ‘a narrow
category of the most serious crimes’ and whose extreme culpability makes them ‘the
most deserving of execution.’ [Citation.]” (Ibid.) Yet, “[t]hree general differences
between juveniles under 18 and adults demonstrate that juvenile offenders cannot with
reliability be classified among the worst offenders. First, as any parent knows and as the
scientific and sociological studies … tend to confirm, ‘[a] lack of maturity and an
underdeveloped sense of responsibility are found in youth more often than in adults .…
These qualities often result in impetuous and ill-considered actions and decisions.’
[Citations.]” (Id. at p. 569.) Second, “juveniles are more vulnerable or susceptible to
negative influences and outside pressures, including peer pressure. [Citation.]” (Ibid.)
Third, “the character of a juvenile is not as well formed as that of an adult. The
personality traits of juveniles are more transitory, less fixed. [Citation.]” (Id. at p. 570.)
Thus,

        “[t]he susceptibility of juveniles to immature and irresponsible behavior
        means ‘their irresponsible conduct is not as morally reprehensible as that of
        an adult.’ [Citation.] Their own vulnerability and comparative lack of
        control over their immediate surroundings mean juveniles have a greater
        claim than adults to be forgiven for failing to escape negative influences in
        their whole environment. [Citation.] The reality that juveniles still struggle
        to define their identity means it is less supportable to conclude that even a
        heinous crime committed by a juvenile is evidence of irretrievably
        depraved character. From a moral standpoint it would be misguided to
        equate the failings of a minor with those of an adult, for a greater
        possibility exists that a minor’s character deficiencies will be reformed.
        Indeed, ‘[t]he relevance of youth as a mitigating factor derives from the fact
        that the signature qualities of youth are transient; as individuals mature, the
        impetuousness and recklessness that may dominate in younger years can
        subside.’ [Citations.]” (Ibid.)
        Because of juveniles’ “diminished culpability,” the court found, the penological
justifications for the death penalty – retribution and deterrence – apply to them with less
force than to adults. (Roper, supra, 543 U.S. at p. 571.) The court acknowledged “the
brutal crimes too many juvenile offenders have committed,” and conceded an argument


                                              7.
could be made that “a rare case might arise in which a juvenile offender has sufficient
psychological maturity, and at the same time demonstrates sufficient depravity, to merit a
sentence of death.” (Id. at p. 572.) Nevertheless, it found it necessary to adopt a
categorical rule barring imposition of the death penalty on anyone under the age of 18,
rather than permitting consideration of mitigating arguments related to youth on a case-
by-case basis: “The differences between juvenile and adult offenders are too marked and
well understood to risk allowing a youthful person to receive the death penalty despite
insufficient culpability. An unacceptable likelihood exists that the brutality or cold-
blooded nature of any particular crime would overpower mitigating arguments based on
youth as a matter of course, even where the juvenile offender’s objective immaturity,
vulnerability, and lack of true depravity should require a sentence less severe than death.”
(Id. at pp. 572–573.) The high court concluded: “It is difficult even for expert
psychologists to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption.… When a juvenile offender commits a heinous crime, the State
can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his
life and his potential to attain a mature understanding of his own humanity.” (Id. at
pp. 573–574.)
       Five years later, in Graham v. Florida (2010) 560 U.S. 48 (Graham), the U.S.
Supreme Court relied heavily on Roper to hold: “The Constitution prohibits the
imposition of a life without parole 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, at p. 82.) The court stated:
“Juveniles are more capable of change than are adults, and their actions are less likely to
be evidence of ‘irretrievably depraved character’ than are the actions of adults.
[Citation.]” (Id. at p. 68.) Turning to the nature of the offenses to which LWOP might

                                             8.
apply, the court “recognized that defendants who do not kill, intend to kill, or foresee that
life will be taken are categorically less deserving of the most serious forms of punishment
than are murderers,” and so “[i]t follows that, when compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice diminished moral
culpability.” (Id. at p. 69.)
       The court observed that LWOP “is ‘the second most severe penalty permitted by
law’ ” (Graham, supra, 560 U.S. at p. 69), and “an especially harsh punishment for a
juvenile. Under this sentence a juvenile offender will on average serve more years and a
greater percentage of his life in prison than an adult offender.” (Id. at p. 70.) The court
determined that retribution – a legitimate reason to punish – could not support such a
sentence: “Roper found that ‘[r]etribution is not proportional if the law’s most severe
penalty is imposed’ on the juvenile murderer. [Citation.] The considerations underlying
that holding support as well the conclusion that retribution does not justify imposing the
second most severe penalty on the less culpable juvenile nonhomicide offender.” (Id. at
pp. 71–72.) Deterrence likewise did not justify the sentence; because juveniles lack
maturity and a fully developed sense of responsibility, they are “less likely to take a
possible punishment into consideration when making decisions.” (Id. at p. 72.)
       The court further found that incapacitation – also a legitimate reason for
imprisonment given the serious risk recidivism poses to public safety – could not justify
an LWOP sentence for juveniles who did not commit homicide. (Graham, supra, 560
U.S. at p. 72.) The court reasoned: “To justify life without parole on the assumption that
the juvenile offender forever will be a danger to society requires the sentencer to make a
judgment that the juvenile is incorrigible. The characteristics of juveniles make that
judgment questionable.” (Id. at pp. 72–73.) “A life without parole sentence improperly
denies the juvenile offender a chance to demonstrate growth and maturity.” (Id. at p. 73.)
       Finally, the court considered the penological goal of rehabilitation, and concluded
an LWOP sentence could not be justified by that goal. (Graham, supra, 560 U.S. at

                                             9.
pp. 73–74.) It explained: “The penalty [of LWOP] forswears altogether the
rehabilitative ideal. By denying the defendant the right to reenter the community, the
State makes an irrevocable judgment about that person’s value and place in society. This
judgment is not appropriate in light of a juvenile nonhomicide offender’s capacity for
change and limited moral culpability.” (Id. at p. 74.)
       The court concluded: “In sum, penological theory is not adequate to justify life
without parole for juvenile nonhomicide offenders. This determination; the limited
culpability of juvenile nonhomicide offenders; and the severity of life without parole
sentences all lead to the conclusion that the sentencing practice under consideration is
cruel and unusual. This Court now holds that for a juvenile offender who did not commit
homicide the Eighth Amendment forbids the sentence of life without parole. This clear
line is necessary to prevent the possibility that life without parole sentences will be
imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit
that punishment.” (Graham, supra, 560 U.S. at p. 74, italics added.)
       Miller was decided two years after Graham, and drew extensively from that
opinion and from the Roper opinion. In Miller and its companion case, two 14-year-old
offenders were convicted of murder and sentenced to LWOP, the term mandated by state
law. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2460].) Because “[s]uch a scheme
prevents those meting out punishment from considering a juvenile’s ‘lessened
culpability’ and greater ‘capacity for change,’ [citation]” and runs afoul of the
requirement in the high court’s cases of “individualized sentencing for defendants facing
the most serious penalties,” the court held “mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’ ” (Ibid., italics added.)
       Miller reiterated many of the findings of Graham and Roper with respect to
children’s “distinctive (and transitory) mental traits and environmental vulnerabilities,” as



                                             10.
determining the appropriateness of a lifetime of incarceration without the possibility of
parole. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2465].) The court stated: “By
removing youth from the balance – by subjecting a juvenile to the same life-without-
parole sentence applicable to an adult – [mandatory penalty schemes] prohibit a
sentencing authority from assessing whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender. That contravenes Graham’s (and also
Roper’s) foundational principle: that imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were not children.” (Id. at p. ___ [132
S.Ct. at p. 2466].)
       The high court required “that a sentencer have the ability to consider the
‘mitigating qualities of youth,’ ” which, it observed, “ ‘is more than a chronological fact.’
[Citation.] It is a time of immaturity, irresponsibility, ‘impetuousness[,] and
recklessness.’ [Citation.] It is a moment and ‘condition of life when a person may be
most susceptible to influence and to psychological damage.’ [Citation.] And its
‘signature qualities’ are all ‘transient.’ [Citation.]” (Miller, supra, 567 U.S. at p. ___
[132 S.Ct. at p. 2467].) The court explained:

               “So Graham and Roper and our individualized sentencing cases
       alike teach that in imposing a State’s harshest penalties, a sentencer misses
       too much if he treats every child as an adult. To recap: 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


                                             11.
       when the circumstances most suggest it.” (Id. at p. ___ [132 S.Ct. at
       p. 2468].)
       In Miller, the U.S. Supreme Court observed that the juvenile in one case was not
the killer, nor did the prosecution argue he intended to kill. Rather, he was convicted as
an aider and abettor. Although he knew his companion had a gun, the court found his age
may have affected his calculation of the risk it posed, as well as his willingness to
disengage from his companions before anything happened. In addition, his family
background was one of violence, with both his mother and grandmother having
previously shot other individuals. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at
p. 2468].) Although the juvenile in the other case committed a “vicious” murder, he and
his companion did so when high on drugs and alcohol consumed with the adult victim.
Moreover, the juvenile’s background was one of neglect and physical abuse, as well as
four suicide attempts, the earliest when he was kindergarten age. The high court found it
“beyond question” that the juvenile deserved “severe punishment” for killing the victim,
but, in each of the cases, also found the sentencer needed to examine all the
circumstances before concluding LWOP was the appropriate penalty. (Id. at p. ___ [132
S.Ct. at p. 2469].)
       The high court stated:

                “We therefore hold that the Eighth Amendment forbids a sentencing
       scheme that mandates life in prison without possibility of parole for
       juvenile offenders. [Citation.] By making youth (and all that accompanies
       it) irrelevant to imposition of that harshest prison sentence, such a scheme
       poses too great a risk of disproportionate punishment. Because that holding
       is sufficient to decide these cases, we do not consider [the juveniles’]
       alternative argument that the Eighth Amendment requires a categorical bar
       on life without parole for juveniles, or at least for those 14 and younger.
       But given all we have said in Roper, Graham, 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


                                             12.
       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, 567 U.S. at p. ___, fn. omitted [132 S.Ct. at p. 2469, fn.
       omitted].)
       The court reiterated: “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….” (Miller, supra, 567
U.S. at p. ___, italics added [132 S.Ct. at p. 2471, italics added].)
       California’s statutory scheme has long afforded trial courts sentencing discretion
where defendants who were tried as adults were 16 or 17 years old when they committed
murder. Thus, 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 … has been found to be true …, 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 without the possibility of parole or, at the
discretion of the court, 25 years to life.”
       Properly construed so as not to impose a presumption in favor of LWOP, “the
sentencing regime created by section 190.5[, subdivision ](b) authorizes and indeed
requires consideration of the distinctive attributes of youth highlighted in Miller .…”
(People v. Gutierrez, supra, 58 Cal.4th at p. 1361.) Accordingly, the statute “confers
discretion on a trial court to sentence a 16- or 17-year-old juvenile convicted of special
circumstance murder to life without parole or to 25 years to life .…” (Id. at p. 1360.) In


                                              13.
exercising that discretion, “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.’
[Citation.] 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.]” (Id. at p. 1390.)

       Exercise of Discretion

       At sentencing, the trial court noted that it had reviewed the probation report, and
the probation report “goes through” the Miller analysis. Castaneda was a violent man,
having committed multiple assaults as a juvenile, between November of 2007 and
October 2011, before committing murder four months before his 18th birthday. He also
committed other offenses as a juvenile and was on juvenile probation at the time of the
murder. Castaneda’s record showed multiple unprovoked assaults on others; that he
failed to participate in court ordered anger management; and he had continued to
associate with gang members despite probation conditions.
       The trial court opined that attempts at rehabilitation as a juvenile offender clearly
had been unsuccessful. The trial court described the murder as an “execution” in which
Castaneda was the actual shooter; noted Castaneda had induced another gang member to
participate in the murder; and Castaneda exhibited a high degree of planning and
sophistication in carrying out the murder. After the murder, Castaneda fled the scene and
was arrested several months later in Arizona.
       It also was noted by the trial court that Castaneda came from a “good family, good
upbringing” but chose a gang lifestyle; nothing in his family background explained his


                                             14.
numerous criminal offenses. His family members did not have criminal records and
Castaneda’s school records showed he obtained B’s and C’s in his classes. The trial court
also opined that Castaneda “never has shown any remorse for what he did” and “might be
somewhat proud of the fact that maybe this will give him more clout or more status in his
gang.”
         The probation report recommended Castaneda be sentenced to LWOP. The trial
court, after reviewing the probation report and analyzing the Miller factors, concluded “I
don’t see any indication that he can ever be rehabilitated, and that is clear from his
juvenile record where he was given substantial efforts for rehabilitation. So I’m adopting
the probation report [recommendation].”
         As required by Miller, the trial court here “consider[ed] all relevant evidence
bearing on the ‘distinctive attributes of youth’ … and how those attributes ‘diminish the
penological justifications for imposing the harshest sentences on juvenile offenders.’
[Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1390.) It “ ‘[took] into account how
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.’ [Citation.]” (Ibid.) The sentence it imposed did not violate
the federal or state Constitution. (People v. Palafox (2014) 231 Cal.App.4th 68, 91–92.)
         The trial court here thoughtfully weighed the applicable factors, including
Castaneda’s youth, his juvenile criminal record, family background and upbringing, and
the circumstances of the murder offense, and concluded Castaneda was unfit ever to
reenter society. We cannot say it exceeded the bounds of reason, all of the circumstances
being considered, under section 190.5, subdivision (b). (People v. Palafox, supra, 231
Cal.App.4th at p. 91.)
                                       DISPOSITION
         The judgment is affirmed.




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