Filed 9/13/13 P. v. Ainsworth CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B240818

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. NA084832)
         v.

TYRELL AINSWORTH,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Tomson T. Ong, Judge. Affirmed and remanded.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
                                    INTRODUCTION


       A jury convicted defendant Tyrell Ainsworth of first degree murder (Pen. Code,
§ 187, subd. (a))1 and found true the allegation that defendant personally used a firearm
within the meaning of section 12022.53, subdivision (d). Defendant admitted the
allegation that he had suffered one prior strike conviction. After defendant’s successful
motion to proceed in propria persona at the sentencing hearing, the court sentenced him
to state prison for 75 years to life, consisting of 25 years to life for the murder, doubled
pursuant to the “Three Strikes” law, plus a consecutive sentence of 25 years to life for the
gun use enhancement.
       Defendant contends on appeal that the trial court erred by refusing to instruct the
jury regarding voluntary manslaughter because there was substantial evidence the killing
was done in the heat of passion, and by admitting evidence that a shotgun not involved in
the killing was found at defendant’s residence. We are not persuaded by either of these
arguments. However, we agree with defendant’s further contention that because he was a
minor at the time of the killing and the court did not consider the factors specified in
Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller)
before imposing a sentence of 75 years to life, we must remand the matter to the trial
court to reconsider its sentencing decision in light of that case. We thus affirm the
judgment of conviction but remand the matter to the trial court for resentencing.
       Defendant also contends and the Attorney General concedes that the trial court
imposed an erroneous fine and erred in calculating his presentence custody credits.
Accordingly, we order that the abstract of judgment be corrected.




1      All further undesignated statutory references are to the Penal Code.

                                              2
                  FACTUAL AND PROCEDURAL BACKGROUND


I.     The Prosecution Case
       A.     The Murder
       On February 7, 2010, Sherrice May, Robert Stepney, and defendant (known as
“South” or “South Side”) were at the home of Andrea Hood along with several other
people. The group was hanging out, drinking, smoking marijuana, and using Ecstasy
pills. The victim, James Withers, approached defendant repeatedly and tried to persuade
him to commit a robbery with him, to “get in with [defendant]” and be able to “make
money, too.” Defendant got angry at Withers for talking openly about robberies in the
group setting and for persisting in discussing the subject. While the group was near the
apartment building’s laundry room, Withers again brought up the subject and defendant
pulled out a gun and pointed it at Withers’s face, telling Withers to stop talking to him.
Defendant said, “If I have to tell you again,” implying they were going to fight.
Defendant called Withers a derogatory name and said, “I’ll kill you.” Defendant’s voice
was not loud during this conversation. Stepney said the gun was a .380 semiautomatic
pistol. May recalled seeing defendant with the gun before, as well as with a Mossberg
shotgun. Defendant put the gun away and said he did not need a gun to fight, or
“handle,” Withers.
       Defendant and Stepney then took Withers and dropped him off somewhere away
from the gathering, expecting not to see him again that night. But shortly thereafter May,
Stepney, and defendant drove a friend home then went to a nearby liquor store and
Withers was there. Withers got in the back seat of the car with May, Stepney, who was
in the front passenger seat, and defendant, who was driving. Withers asked defendant
again about committing a robbery, and defendant responded that they would do it right
then. As defendant drove he repeatedly told Withers that he had better be ready.
       Defendant drove to a residential neighborhood. He said that various houses had
too much light around them and kept driving until he found a dark area. Defendant
stopped the car, told May to get into the driver’s seat, and told Withers to get out of the


                                              3
car. May thought they were going to rob someone. Defendant and Withers exited the car
and May saw them standing at the right rear of the car; she adjusted the rearview mirror
so she could see them. Seconds later, defendant pulled out his black handgun and
pointed it at Withers’s face. May saw a flash and heard a gunshot, then saw Withers fall
and hit the trunk of the car. Stepney also saw the gunshot in the mirror.
       Defendant got back in the car and asked if he had blood on his face. He told May
to drive. He directed her where to go, saying “I noodled that n****r.” Defendant warned
May and Stepney that they “didn’t see nothing.” He said if what had happened got out he
would know it was their fault, and he said if he was caught he would make it seem that all
three of them were involved. He told them he would come get them in the morning to
help him clean the car, and he did so. May said there was “blood and brains and a bunch
of stuff all over the car.”
       May and Stepney knew defendant was a member of the South Side Compton Crips
gang and they were afraid of him. After the shooting, defendant kept seeking them out,
and they heard he was saying that he was going to kill them next. Both May and Stepney
were afraid to testify at trial.


       B.      The Investigation
       Law enforcement agents searched defendant’s residence and found a .45 caliber
revolver and a loaded pistol-grip Mossberg shotgun. Defendant’s grandmother gave
Long Beach Police Detective Daniel Mendoza a live .380 round of ammunition she had
found in her bathroom after she heard defendant “racking” a gun in the bathroom. The
grandmother knew defendant had a Mossberg shotgun and that he had chased a young
man through the apartment courtyard with it.
       Defendant attempted to flee from the police when they arrested him in order to
question him regarding the Withers murder. He told the police he had been at a party
with Withers the night the latter was killed. He said he had a black BB gun he carried for
protection, and that he was waving it around at the party. He claimed to have given the
BB gun to someone else. Defendant denied having anything to do with Withers’s


                                             4
murder. He said Withers had stolen things from the apartment where the party was held.
Defendant told the detective that the police had nothing: no gun, car, or crime scene.
       Police found a spent shell casing near Withers’s body. Marks on that shell casing
were compared to marks on the live .380 round found in defendant’s grandmother’s
bathroom. Both rounds had been cycled through the same handgun.


II.    The Defense Case
       Withers’s mother, Karen Phillips, testified that Withers called her frequently to
check in. On the night he was killed, he called and told her he was with May and would
be staying at Andrea’s home. He said he would be home the following day, after work.
       May called later and asked Phillips if Withers was with her. This worried Phillips
because Withers had said he was with May.


                                      DISCUSSION


I.     Instruction on Voluntary Manslaughter as a Lesser Included Offense
       When discussing jury instructions with counsel, the court stated, “I don’t have any
basis [f]or any lesser in this case, including voluntary manslaughter, because there is no
heat of passion issue and there is also no imperfect self-defense issue. Agree?” Counsel
both agreed, and also agreed that the case involved the jury finding defendant either
guilty or not guilty of murder.
       On appeal, defendant contends that the trial court erred because there was
evidence of an ongoing quarrel that night between defendant and Withers, and therefore
the trial court should have instructed the jury, sua sponte, with CALJIC Nos. 8.40
(voluntary manslaughter), 8.42 (sudden quarrel or heat of passion), 8.43 (murder or
manslaughter), 8.44 (no specific emotion alone constitutes heat of passion), 8.50, and
8.72 (doubt whether murder or manslaughter). Because we agree with the trial court that
the evidence did not support giving the instruction, we find no error.




                                             5
       A trial court must instruct the jury on every theory of the case supported by
substantial evidence (People v. Montoya (1994) 7 Cal.4th 1027, 1047), and has a
sua sponte duty to instruct on lesser included offenses when the evidence raises a
question regarding whether all the elements of the charged offense were present and the
evidence would justify a conviction on the lesser offense. (People v. Hughes (2002) 27
Cal.4th 287, 365; People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Breverman
(1998) 19 Cal.4th 142, 148-149.) “On the other hand, the court is not obliged to instruct
on theories that have no such evidentiary support.” (People v. Breverman, supra, at p.
162.) Substantial evidence, in this context, means evidence that a reasonable jury could
find persuasive. (People v. Hughes, supra, at pp. 366-367; People v. Lewis, supra, at p.
645; see also People v. Middleton (1997) 52 Cal.App.4th 19, 33, disapproved on other
grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752-753, fn. 3 [trial court need not
instruct on an issue when the evidence in support is merely minimal and insubstantial].)
On appeal, we review independently the question whether the trial court erred by failing
to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
       “Voluntary manslaughter is a lesser included offense of murder. [Citation.] One
form of the offense is defined as the unlawful killing of a human being without malice
aforethought ‘upon a sudden quarrel or heat of passion.’ (§ 192, subd. (a).) ‘The heat of
passion requirement for manslaughter has both an objective and a subjective component.
[Citation.] The defendant must actually, subjectively, kill under the heat of passion.
[Citation.] But the circumstances giving rise to the heat of passion are also viewed
objectively. As we explained long ago in interpreting the same language of section 192,
“this heat of passion must be such a passion as would naturally be aroused in the mind of
an ordinarily reasonable person under the given facts and circumstances,” because “no
defendant may set up his own standard of conduct and justify or excuse himself because
in fact his passions were aroused, unless further the jury believe that the facts and
circumstances were sufficient to arouse the passions of the ordinarily reasonable man.”’
[Citation.]” (People v. Cole, supra, 33 Cal.4th at pp. 1215-1216.)



                                              6
        Evidence of provocation or heat of passion is simply not present in this case.
Defendant’s state of mind was never argued by the defense; rather, the defense theory
was that defendant was not the shooter. He asserted May and Stepney killed Withers and
blamed defendant. “Generally, when a defendant completely denies complicity in the
charged crime, there is no error in failing to instruct on a lesser included offense. (See
People v. Medina (1978) 78 Cal.App.3d 1000, 1005-1006 [no duty to instruct on
voluntary manslaughter based on diminished capacity when defendant testified he was
not present when victim was shot].)” (People v. Gutierrez (2003) 112 Cal.App.4th 704,
709.)
        In addition, there is no evidence in the record suggesting any objectively
reasonable provocation—that circumstances giving rise to a heat of passion existed from
an objective standpoint—or demonstrating defendant subjectively acted under the heat of
passion. Defendant points to the evidence that he was provoked by Withers bothering
him repeatedly about committing a robbery as being sufficient. However, no rational
trier of fact could conclude that such behavior was sufficient to arouse heat of passion in
the mind of an ordinarily reasonable person. In addition, the evidence showed that
significant time passed between the angry confrontation at Andrea Hood’s party and the
time that defendant calmly and dispassionately drove around looking for a dark place to
stop and kill Withers, which he did moments after exiting the car and without yelling or
appearing upset. Thus, the evidence did not support a finding that defendant was acting
under the heat of passion. Even were we to accept that this was defendant’s state of
mind, we would not find the evidence sufficient to support an instruction on voluntary
manslaughter. These facts and circumstances were not sufficient to arouse the passions
of the ordinarily reasonable person. (People v. Padilla (2002) 103 Cal.App.4th 675,
678.)
        In any event, the omission of instructions on voluntary manslaughter did not
prejudice defendant. “[T]he failure to instruct sua sponte on a lesser included offense in a
noncapital case is, at most, an error of California law alone, and is thus subject only to
state standards of reversibility.” (People v. Breverman, supra, 19 Cal.4th at p. 165.)


                                              7
Such an error is not subject to reversal unless, upon an examination of the entire record, it
appears “reasonably probable” the defendant would have obtained a more favorable
result had the error not occurred. (Id. at p. 149 [citing People v. Watson (1956) 46 Cal.2d
818, 836].) There is no reasonable probability that the jury would have rendered a
verdict more favorable to appellant had voluntary manslaughter instructions been given.
As we have discussed, there was no evidence of provocation.
       In a related argument, defendant also contends that his first degree murder
conviction was not supported by substantial evidence because it was inherently
improbable that he would set out to kill Withers in front of two witnesses, and that if he
had planned to kill Withers at the outset of the car trip he would have left May and
Stepney behind. There is no merit to this argument. Rather, the evidence supports the
conclusion that defendant calmly drove for some time until he found a location to carry
out his plan to kill Withers, and after doing so threatened May and Stepney that if anyone
found out, he would retaliate against them by saying they were involved or by killing
them. He seemed to feel so invincible that he even forced them to clean their friend
Withers’s blood and brains off the car the next day. This was not the act of a person who
had any compunction about killing someone in front of innocent witnesses.
       In People v. Anderson (1968) 70 Cal.2d 15, 26-27, the Supreme Court identified
three categories of evidence which have been found sufficient to sustain a finding of
premeditation and deliberation: (1) facts showing planning activity; (2) facts suggesting
motive; and (3) facts about the manner of killing which suggest a preconceived design.
“[I]t is not necessary that the Anderson ‘factors be present in some special combination or
that they be accorded a particular weight.’ (People v. Pride (1992) 3 Cal.4th 195, 247.)”
(People v. Sanchez (1995) 12 Cal.4th 1, 33.)
       The evidence demonstrated that defendant engaged in planning activity.
Defendant drove until he found a suitably dark spot, then got out of the car, bringing a
gun with him, and immediately accosted Withers. The evidence, as defendant urges with
regard to the previous portion of this discussion, was that defendant was angry that
Withers kept pestering him about committing a robbery with him and defendant wanted


                                             8
him to be quiet. Thus, evidence of a motive to act was present. Finally, facts about the
manner of the killing suggest a preconceived design. As noted above, defendant told
Withers to exit the car and took a gun with him. After a very brief verbal exchange,
defendant pointed a gun at Withers’s head and fired. This evidence readily supports the
inference that defendant had one purpose in mind: to shoot and kill Withers. A
conviction of premeditated murder requires a finding of specific intent to kill. “‘“[I]ntent
is inherently difficult to prove by direct evidence. Therefore, the act itself together with
its surrounding circumstances must generally form the basis from which the intent of the
actor may legitimately be inferred.” [Citation.]’ [Citation.]” (People v. Smith (1998) 64
Cal.App.4th 1458, 1469.) Shooting someone point blank in the head is, without question,
sufficiently lethal that a jury could find there was sufficient evidence of intent to kill
under the circumstances present here.
       Finally, defendant contends that the trial court should have instructed on voluntary
manslaughter because there was substantial evidence to support the instruction, and as a
result of the court’s error, the jury was not fully instructed on the prosecution’s burden of
proving the absence of heat of passion beyond a reasonable doubt. He claims “[t]he trial
court invaded the province of the jury when it determined there was no evidence of
voluntary manslaughter.” As we have discussed, there was no substantial evidence to
support the instruction on this claim.


II.    Introduction of Evidence Regarding a Shotgun Not Used in the Killing
       Defendant next contends that the trial court abused its discretion by admitting
evidence that a Mossberg shotgun was found in the home where defendant sometimes
stayed, even though the shotgun was not involved in the commission of the present
offense. He contends its admission violated his federal and state due process rights to a
fair trial and was more prejudicial than probative. He contends the shotgun was
irrelevant and therefore inadmissible. We disagree.
       “[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence, including one that turns on the


                                               9
relative probativeness and prejudice of the evidence in question (e.g., People v. Alvarez
[(1996)] 14 Cal.4th [155,] 214-215; People v. Rowland [(1992)] 4 Cal.4th [238,] 264).
Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if,
broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or the
reliability of the outcome’ (People v. Alvarez, supra, 14 Cal.4th at p. 204, fn. 14).”
(People v. Waidla (2000) 22 Cal.4th 690, 724.)
       Defendant contends that admission of evidence regarding the shotgun was
erroneous because it served only to prove his “prior bad acts,” and as such is made
inadmissible by Evidence Code section 1101, subdivision (a) (evidence of his character
or a trait of his character offered to prove his conduct on the specified occasion of the
charged murder). In People v. Riser (1956) 47 Cal.2d 566, our Supreme Court held:
“When the prosecution relies . . . on a specific type of weapon, it is error to admit
evidence that other weapons were found in [the defendant’s] possession, for such
evidence tends to show, not that he committed the crime, but only that he is the sort of
person who carries deadly weapons.” (Id. at p. 577.) On the other hand, the court has
also held “‘that when weapons are otherwise relevant to the crime’s commission, but are
not the actual murder weapons, they may still be admissible.’ (People v. Cox (2003) 30
Cal.4th 916, 956.)” (People v. Homick (2012) 55 Cal.4th 816, 876.)
       Some degree of connection between the weapon and the crime must be shown in
order for evidence of the weapon to be admissible. Here, evidence of the shotgun was
relevant to show defendant’s consciousness of guilt. Other evidence established that the
murder weapon was a handgun defendant had in his possession when he racked the gun
in his grandmother’s bathroom; the markings on a live round of ammunition found on her
bathroom floor immediately thereafter matched the markings on the bullet that killed
Withers. May said before the murder she frequently saw defendant in possession of a
black handgun, and that he often played with and stared at it. However, when
defendant’s residence was searched, other weapons were found, including the Mossberg
shotgun witnesses testified defendant owned, but the black handgun was not recovered.
The reasonable inference is that defendant disposed of the handgun after killing Withers


                                              10
because he knew it could be connected to the murder. That inference was made stronger
by comparison with the fact that he did not dispose of the shotgun. In other words, he
specifically chose to discard the murder weapon, but kept a gun with no connection to the
murder. Thus, the evidence of consciousness of guilt was established by the presence of
the shotgun and the absence of the black handgun.
        Further, we do not find that admission of the evidence of the shotgun was more
prejudicial than probative. The trial court’s decision to admit evidence of the shotgun
was not beyond the bounds of reason, and cannot be said to have resulted in a manifest
miscarriage of justice. (People v. Waidla, supra, 22 Cal.4th at p. 724.)
        Even assuming for the sake of argument that admission of the shotgun was
erroneous, there is no reasonable basis to argue that the jury’s decision turned on the
evidence that defendant possessed a shotgun. (People v. Watson (1956) 46 Cal.2d 818,
836.) The evidence of defendant’s guilt was overwhelming.


III.    Sentence Must Be Reconsidered in Light of Miller
        Because he was 17 at the time of the murder, defendant argues that his sentence of
75 years to life is unconstitutional.2 He claims his sentence is cruel and unusual as
shown by recent federal and state high court case law, specifically Miller, supra, 567
U.S. ___ [132 S.Ct. 2455]; Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011, 176
L.Ed.2d 825] (Graham); and People v. Caballero (2012) 55 Cal.4th 262 (Caballero). We
conclude this matter should be remanded for resentencing in light of recent case law.3
        In Miller, supra, 567 U.S. at page ___ [132 S.Ct. at page 2475], the Supreme
Court recently determined mandatory life-without-possibility-of-parole sentences for
juvenile offenders who commit homicide violate the Eighth Amendment’s ban on cruel


2      Defendant was born on July 11, 1992. When the murder took place in February
2010, defendant was 17 years old.

3       Sentencing took place on April 26, 2012, and Miller was decided on June 25,
2012.

                                             11
and unusual punishment, emphasizing the necessity for “the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for juveniles.”
       The Miller court explained: “Roper [v. Simmons (2005) 543 U.S. 551, 125 S.Ct.
1183] and Graham establish that children are constitutionally different from adults for
purposes of sentencing. Because juveniles have diminished culpability and greater
prospects for reform, we explained, ‘they are less deserving of the most severe
punishments.’ Graham, 560 U.S., at ___, 130 S.Ct. 2011, 176 L.Ed.2d 825. Those cases
relied on three significant gaps between juveniles and adults. First, children have a ‘“lack
of maturity and an underdeveloped sense of responsibility,”’ leading to recklessness,
impulsivity, and heedless risk-taking. Roper, 543 U.S., at 569, 125 S.Ct. 1183, 161
L.Ed.2d 1. Second, children ‘are more vulnerable . . . to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘contro[l] over their
own environment’ and lack the ability to extricate themselves from horrific, crime-
producing settings. Ibid. And third, a child’s character is not as ‘well formed’ as an
adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’ Id., at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1.” (Miller, supra,
567 U.S. at p. ___ [132 S.Ct. at p. 2464].)
       “[N]one of what Graham said about children—about their distinctive (and
transitory) mental traits and environmental vulnerabilities—is crime-specific. Those
features are evident in the same way, and to the same degree, when (as in both cases
here) a botched robbery turns into a killing. So Graham’s reasoning implicates any life-
without-parole sentence imposed on a juvenile, even if its categorical bar relates only to
nonhomicide offenses.” (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2465].) “Most
fundamentally, Graham insists that youth matters in determining the appropriateness of a
lifetime of incarceration without the possibility of parole.” (Ibid.) “By removing youth
from the balance—by subjecting a juvenile to the same life-without-parole sentence
applicable to an adult—these laws prohibit a sentencing authority from assessing whether
the law’s harshest terms of imprisonment proportionately punishes a juvenile offender.
That contravenes Graham’s (and also Roper’s) foundational principle: that imposition of


                                               12
a State’s most severe penalties on juvenile offenders cannot proceed as though they were
not children.” (Id. at p. 2466.)
       In addition, “Graham’s ‘[t]reat[ment] [of] juvenile life sentences as analogous to
capital punishment,’ [citation], makes relevant here a second line of our precedents,
demanding individualized sentencing when imposing the death penalty.” (Miller, supra,
567 U.S. at p. ___ [132 S.Ct. at p. 2467].) “Of special pertinence here, we insisted in
these rulings that a sentencer have the ability to consider the ‘mitigating qualities of
youth.’ [Citation.] Everything we said in Roper and Graham about that stage of life also
appears in these decisions.” (Ibid.) “‘[J]ust as the chronological age of a minor is itself a
relevant mitigating factor of great weight, so must the background and mental and
emotional development of a youthful defendant be duly considered’ in assessing his
culpability. [Citation.]” (Ibid.)
       In summary, “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. ___ [132 S.Ct. at p. 2468].)
       “We therefore hold that the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.” (Miller,
supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2469], citation omitted.) “Although we do not
foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to


                                              13
take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.”4 (Ibid., italics added.)
       In Caballero, supra, 55 Cal.4th 262, 265, the California Supreme Court
considered whether a 110-year-to-life sentence imposed on a juvenile convicted of
nonhomicide offenses contravenes Graham’s mandate against cruel and unusual
punishment under the Eighth Amendment, and concluded that it does. The Caballero
court expressly acknowledged that Miller “requires sentencers in homicide cases ‘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. ___
[132 S.Ct. at p. 2469].) [However,] [w]e leave Miller’s application in the homicide
context to a case that poses the issue.” (Caballero, supra, 55 Cal.4th at p. 268, fn. 4.)
       Defendant’s sentencing predated Miller, supra, 567 U.S. ___ [132 S.Ct. 2455],
and Caballero, supra, 55 Cal.4th 262. Defendant represented himself at sentencing and
did not present to the trial court any evidence regarding the factors influencing his
juvenile criminality, such as the nature of his home life or peer influences. We cannot
conclude the trial court recognized the significance for sentencing purposes of
defendant’s youth in imposing a sentence that was the “functional equivalent” of life
without possibility of parole. In light of the Supreme Court’s clear admonitions that a
sentence of life without possibility of parole is to be imposed on “‘the rare juvenile
offender whose crime reflects irreparable corruption,’” and that “we do not foreclose a
sentencer’s ability to make that judgment in homicide cases, [but] we require [a
sentencer] 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. ___ [132 S.Ct. at p. 2469], italics added), we conclude the required course in




4     The Miller court emphasized: “[O]ur decision today retains [the] distinction
[between homicide and nonhomicide cases]: Graham established one rule (a flat ban) for
nonhomicide offenses, while we set out a different one (individualized sentencing) for
homicide offenses.” (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2466, fn. 6.)

                                             14
this case is to remand the matter so the trial court will have the opportunity to reconsider
its sentence in light of Miller.
       We reject the People’s argument that “the consecutive sentencing scheme under
which [defendant] was sentenced differs from the mandatory schemes found
unconstitutional in Miller, because it gives the court the discretion to impose a term that
affords the possibility of parole,” and the trial court was free to consider any relevant
aggravating and mitigating factors, including defendant’s youth. The salient point is that
the trial court did not exercise its discretion to consider the significance for sentencing
purposes of defendant’s youth in imposing a sentence that was the “functional
equivalent” of life without possibility of parole. Theoretically the trial court could have
exercised its discretion to strike defendant’s prior strike, but it did not so exercise its
discretion on any grounds, let alone based upon defendant’s youth or personal
circumstances. The sentence imposed by the trial court was indeed based upon a
mandatory sentencing scheme. (§§ 190, subd. (a), 12022.53, subd. (d).) On remand, the
trial court is not foreclosed from imposing the current sentence, but it is required to
consider defendant’s individual circumstances and “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. ___ [132 S.Ct. at p. 2469].)


IV.    Custody Credits
       Defendant contends, and the People concede, that he is entitled to additional days
of presentence custody credit. Defendant was arrested on February 19, 2010, and
sentenced on April 26, 2012. The period between those two dates, including the day of
sentencing, is 798 days. He received only 654 days of custody credit.
       Pursuant to section 2900.5, subdivision (a), a defendant convicted of a felony is
entitled to credit against a state prison term for actual time spent in custody before
commencement of the prison sentence, including the day of sentencing. (§ 2900.5, subd.
(a); People v. Smith (1989) 211 Cal.App.3d 523, 526.) Generally, an appellant may not
appeal an error in the calculation of presentence custody credit unless the claim is first


                                               15
presented in the trial court, which did not occur here. (§ 1237.1.) However, the Court of
Appeal may address a presentence custody credit issue if other claims are also raised on
appeal. (People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101; People v. Acosta (1996)
48 Cal.App.4th 411, 420-421.)
       Because the trial court only awarded defendant 654 days of custody credit, the
abstract of judgment must be amended to reflect 798 days of actual custody credit.


V.     Penalty Assessment
       Defendant contends, and the People correctly concede, that the trial court erred in
imposing a $1,000 assessment under section 1464 and Government Code section 76000.
The fines imposed at sentencing were $10,000 restitution and parole revocation fines.
(§§ 1202.4, subd. (b), 1202.45.) However, the additional penalty assessment does not
apply to restitution fines. (§ 1464, subd. (a)(3)(A); Gov. Code, § 76000, subd. (a)(3)(A);
People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
       We note that the assessment was included in the minute order memorializing the
sentencing, but does not appear in the abstract of judgment. Correction of the abstract of
judgment is therefore not required, but we do find that the $1,000 assessment constituted
an unauthorized sentence; such sentence may be corrected at any time even if the error
was not raised in the trial court. (In re Sheena K. (2007) 40 Cal.4th 875, 886.)


                                      DISPOSITION


       The judgment of conviction is affirmed, and the matter is remanded to the trial
court with directions to reconsider its sentencing decision in light of the dictates of
Miller, supra, 567 U.S. ___ [132 S.Ct. 2455]. After sentencing, the trial court is directed
to prepare a new abstract of judgment reflecting the term imposed and the award of 798




                                              16
days of presentence custody credit. A copy of the abstract is to be forwarded to the
Department of Corrections and Rehabilitation.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                 SUZUKAWA, J.

We concur:



      EPSTEIN, P. J.



      MANELLA, J.




                                            17
