Opinion
F076907
02-26-2020
The PEOPLE, Plaintiff and Respondent, v. Jose Luis BOTELLO, Defendant and Appellant.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part I of the Discussion.
Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
SNAUFFER, J.
Jose Luis Botello was convicted of murdering two juveniles he shot and killed at a party. The jury found true multiple murder and active gang participation special circumstances. He was sentenced to serve two consecutive life without the possibility of parole terms.
On appeal, Botello separately challenges his convictions and sentence. He first argues erroneously admitted evidence denied him a fair trial. He then argues the court failed to exercise informed discretion in pronouncing life without parole sentences. We will reverse the judgment and remand for a new sentencing hearing.
BACKGROUND
Two juveniles were shot and killed during a backyard "high school party." Four eyewitnesses—two near the front yard and two in the backyard—testified at trial.
A third person was shot and killed in the front yard. Botello was not charged with any crimes relating to that homicide.
Before the murders, the two witnesses near the front yard had observed a van drive past multiple times. The van's occupants repeatedly shouted "A-Town." Eventually, the van stopped in front of the party house and two individuals—one wearing a white Oakland Raiders jersey—joined the party for a few minutes before reentering the van. One of the witnesses watched the van park down the road and saw the same two individuals "sn[eaking] [back into the party] through the orchards." Worried the sneaking individuals would "start problems," the vigilant witness "alerted" the second witness to "kick them out." Gunfire rang out moments later.
No eyewitness described the jersey as affiliated with the Oakland Raiders, but other evidence established this fact.
The two witnesses in the backyard observed the shooting. They identified the shooter as wearing a white Raiders jersey. One of these witnesses specifically identified Botello as the shooter. The other witness saw an "A-Towner" "throw some gang signs, pull out a gun, and shoot two people ...." This witness identified Botello as wearing the white Raiders jersey but was not sure he was the shooter.
Botello admitted attending the party while wearing a white Raiders jersey. Indeed, he was the only person wearing a white Raiders jersey at the party. He further admitted he was a "Sureño," "A-Town" gang member. Botello claimed he was innocent.
A gang expert witness opined A-Town is a criminal street gang aligned with the Sureño "street faction of ... the Mexican Mafia." The expert testified A-Towns's primary activities included assaults with or without weapons and murder. The gang "consistently and repeatedly committed these types of crimes." The expert further explained the rivalry between A-Town and other gangs, and the importance to gangs of control, power, territory, and violence.
The expert ultimately offered two opinions. The expert first opined Botello was an A-Town gang member based on Botello's admission, various photographs wherein Botello demonstrates gang signs, Botello's tattoos, and a rap song video in which Botello glorifies gang violence. Second, the expert concluded the murders in this case benefited the A-Town criminal street gang in part because they represent a "willingness" to "eliminate" rival gang members—in this case, one victim was adorned in colors rivaling A-Town—and generally fortifies territory by instilling fear.
Verdicts and Sentence
The jury found Botello guilty of two counts of murder with various enhancements and special circumstances. He was sentenced to serve two consecutive life in prison without parole terms.
The full convictions follow:
Count One: First degree murder (Pen. Code, § 187, subd. (a) ) (unlabeled statutory references are to the Penal Code); enhancement for personally discharging a firearm which caused death (§ 12022.53, subd. (d)); enhancement for committing felony for benefit of criminal street gang (§ 186.22, subd. (b)); special circumstances intentional murder while actively participating in criminal street gang (§ 190.2, subd. (a)(22)); special circumstances multiple murder (§ 190.2, subd. (a)(3)).
Count Two: First degree murder (§ 187, subd. (a) ); enhancement for personally discharging a firearm which caused death (§ 12022.53, subd. (d)); special circumstances multiple murder (§ 190.2, subd. (a)(3)).
DISCUSSION
This appeal presents the following questions: Did the trial court prejudicially err in admitting into evidence Botello's rap song video glorifying gang violence? Did the trial court abuse its discretion in sentencing Botello to serve life in prison without the possibility of parole?
We first conclude the court erred by admitting the rap song video into evidence. The error, however, is harmless. Second, we vacate the sentence because we are unable to conclude the trial court's sentence complied with the Eighth Amendment prohibition against cruel and unusual punishments.
I. Error in Admitting the Rap Video is Harmless
See footnote *, ante .
II. The Eighth Amendment Commands Strict Compliance for Juvenile Life Without Parole Sentencing; the Sentence is Vacated and We Remand for a New Sentencing Hearing
Botello believes the trial court abused its discretion in sentencing him to serve life without parole in prison. Specifically, he contends "the trial court failed to recognize and apply the correct legal standard to its [sentencing] decision." He further asserts trial courts must find "irreparable corruption resulting in permanent incorrigibility" prior to imposing life without parole sentences on juvenile offenders.
The People only argue section 3051, subdivision (b)(4), which affords juveniles sentenced to life without parole an opportunity to parole after incarceration for 25 years, moots his contention. Before we address the issues, we provide a brief overview to frame them in context.
The United States Supreme Court confronted mandatory life without parole sentences for juveniles in Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ). The Court held the Eighth Amendment demands "individualized sentencing ... before imposing the harshest possible penalty for juveniles." ( Id. at p. 489, 132 S.Ct. 2455.) By "tak[ing] into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison," individualized sentencing "distinguish[es] ... between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ " ( Id. at pp. 479-480, 132 S.Ct. 2455.)
In Montgomery v. Louisiana (2016) 577 U.S. –––– , 193 L.Ed.2d 599 ( Montgomery ), the Court held Miller, supra , 567 U.S. 460, 132 S.Ct. 2455 applied retroactively. Retroactivity, however, "does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them." ( Montgomery, supra , 577 U.S. at p. –––– .)
As a result, California enacted section 3051, subdivision (b)(4). This statute "avoid[s] the Miller issues associated with" sentences pronounced prior to Miller. ( In re Kirchner (2017) 2 Cal.5th 1040, 1054-1055, 216 Cal.Rptr.3d 876, 393 P.3d 364.)
Our analysis proceeds in the following manner: First, we determine section 3051, subdivision (b)(4), does not moot Botello's abuse of discretion claim. Next, we examine and illuminate the transient immaturity versus irreparable corruption legal standard applicable to juvenile life without parole sentencing. We conclude, to faithfully apply this deeply rooted in the Eighth Amendment sentencing standard, a trial court must affirmatively and expressly find the circumstances justify imposing a life without parole sentence upon a juvenile offender.
Finally, we vacate Botello's sentence because we cannot determine from the record whether the trial court applied the correct sentencing standard. Miller and Montgomery demand clear answers to complex questions. Mindful of this dichotomy, we will offer some general guidance to promote clear answers in our trial courts.
A. The Abuse of Discretion Claim is not Moot
Botello argues his abuse of discretion claim is not moot for two reasons. First, a life without parole sentence triggers "disadvantageous collateral consequences." (See People v. DeLeon (2017) 3 Cal.5th 640, 645-646, 220 Cal.Rptr.3d 784, 399 P.3d 13.) He identifies in his briefing several such consequences including access to "rehabilitative programs," "severe movement and time-of-day restrictions," limited access to vocational training which in turn limits the ability to demonstrate parole suitability, "hous[ing]" accommodations, and denial of "compassionate medical release ...." (See generally Cal. Code Regs., tit. 15, § 3375 et seq. ; People v. Scott (2016) 3 Cal.App.5th 1265, 1273-1274, 208 Cal.Rptr.3d 449 ["LWOP prisoners are, for example, foreclosed from vocational training or other programs and rehabilitative services that are available to other prisoners."].)
Second, Botello correctly points out that the sentences underlying section 3051's protections "remain valid " because those protections are designed to avoid "the Miller issues associated with the earlier sentences." ( In re Cook (2019) 7 Cal.5th 439, 448-449, 247 Cal.Rptr.3d 669, 441 P.3d 912 [§ 3051, subd. (b)(4) enacted to implement Montgomery and Miller ].) He argues that (1) if the underlying sentences "remain valid ," and (2) if section 3051 is aimed at juvenile offenders sentenced before Miller , then he is entitled to a validly imposed sentence because section 3051 is not designed to protect against his life without parole sentence. In other words, if section 3051 is amended or repealed in the future, then he must serve life without parole because his sentence remains valid.
The People argue the exact opposite, i.e., section 3051 moots this claim. The People are incorrect. Section 3051, subdivision (b)(4), moots a constitutional challenge to a life without parole sentence. ( People v. Franklin (2016) 63 Cal.4th 261, 286, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ) ["Franklin's Eighth Amendment challenge to his original sentence has been rendered moot."].) It does not moot Botello's abuse of discretion challenge.
In general, courts must decide only " ‘ "actual controversies by a judgment which can be carried into effect ...." ’ " ( In re Arroyo (2019) 37 Cal.App.5th 727, 732, 250 Cal.Rptr.3d 520 ( Arroyo ).) Courts may not " ‘ "give opinions upon moot questions or abstract propositions, or ... declare principles or rules of law which cannot affect the matter in issue in the case before it." ’ " ( Ibid. ) " ‘ "[A] case becomes moot when a court ruling can have no practical impact or cannot provide ... effect[ive] relief." ’ " ( Ibid. )
The question presented here is not moot for two reasons. First, an ultimate sentence less than life without parole would ameliorate Botello's concern with "disadvantageous collateral consequences."
Second, ensuring that sentences are constitutionally imposed in the first instance protects against any future modification to section 3051's applicability to juveniles in Botello's position, i.e., juveniles sentenced to life without parole after Miller, supra. The People's argument allows trial courts to entirely ignore Miller, supra , 567 U.S. 460, 132 S.Ct. 2455 and instead allow the Legislature to mete justice. Such a position is untenable. We turn next to the merits.
We do not decide whether modifying or rescinding section 3051's protections would violate the Constitution. That question is not ripe for decision. We simply note Botello's argument presents an " ‘ "actual controvers[y]" ’ " in which our ruling can " ‘ "provide ... effect[ive] relief." ’ " (Arroyo, supra , 37 Cal.App.5th at p. 732, 250 Cal.Rptr.3d 520.)
B. The Irreparable Corruption and Permanent Incorrigibility Standard
To help appreciate and understand the true sentencing standard we first recite recent juvenile Eighth Amendment precedent. "The Eighth Amendment prohibition on cruel and unusual punishment ‘guarantees individuals the right not to be subjected to excessive sanctions.’ " ( Franklin, supra , 63 Cal.4th at p. 273, 202 Cal.Rptr.3d 496, 370 P.3d 1053.) "This prohibition encompasses the ‘foundational principle’ that the ‘imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children.’ " ( Ibid. )
The United States Supreme Court squarely addressed life without parole sentences for juvenile homicide offenders in Miller, supra , 567 U.S. 460, 132 S.Ct. 2455. "Because juveniles have diminished culpability and greater prospects for reform, ... ‘they are less deserving of the most severe punishments.’ " ( Id. at p. 471, 132 S.Ct. 2455.)
"[C]hildren have a ‘ "lack of maturity and an underdeveloped sense of responsibility," ’ leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] ... [C]hildren ‘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." ( Miller, supra , 567 U.S. at p. 471, 132 S.Ct. 2455.) A child's "traits are ‘less fixed’ and his [or her] actions less likely to be ‘evidence of irretrievabl[e] deprav[ity]." ( Ibid. )
"[T]he distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because ‘ "[t]he heart of the retribution rationale" ’ relates to an offender's blameworthiness, ‘ "the case for retribution is not as strong with a minor as with an adult." ’ [Citations.] Nor can deterrence do the work in this context, because ‘ "the same characteristics that render juveniles less culpable than adults" ’—their immaturity, recklessness, and impetuosity—make them less likely to consider potential punishment. [Citation.] ... Deciding that a ‘juvenile offender forever will be a danger to society’ would require ‘mak[ing] a judgment that [he or she] is incorrigible’—but ‘ "incorrigibility is inconsistent with youth." ’ " ( Miller, supra , 567 U.S. at pp. 472-473, 132 S.Ct. 2455.)
"[F]or the same reason, rehabilitation could not justify that sentence. Life without parole ‘forswears altogether the rehabilitative ideal.’ [Citation]. It reflects ‘an irrevocable judgment about [an offender's] value and place in society,’ at odds with a child's capacity for change." ( Miller, supra , 567 U.S. at p. 473, 132 S.Ct. 2455.)
"Life-without-parole terms ... ‘share some characteristics with death sentences that are shared by no other sentences.’ [Citation.] Imprisoning an offender until he dies alters the remainder of his life ‘by a forfeiture that is irrevocable.’ [Citation.] And this lengthiest possible incarceration is an ‘especially harsh punishment for a juvenile,’ because he [or she] will almost inevitably serve ‘more years and a greater percentage of his [or her] life in prison than an adult offender.’ [Citation.] The penalty when imposed on a teenager, as compared with an older person, is therefore ‘the same ... in name only.’ " ( Miller, supra , 567 U.S. at pp. 474-475, 132 S.Ct. 2455.) For this reason, "this ultimate penalty for juveniles [i]s akin to the death penalty ...." ( Id. at p. 475, 132 S.Ct. 2455.)
Life without parole is the "ultimate penalty for juveniles" because "no individual may be executed for an offense committed when he or she was a juvenile ...." (Franklin, supra , 63 Cal.4th at p. 274, 202 Cal.Rptr.3d 496, 370 P.3d 1053.)
For these reasons, the Court required "a sentencer" to consider youth "and its hallmark features" prior to imposing life without parole on a juvenile offender. ( Miller, supra , 567 U.S. at pp. 476-480, 132 S.Ct. 2455.) The Court broadly identified five categories or factors to consider: (1) "immaturity, impetuosity, and failure to appreciate risks and consequences."; (2) "family and home environment that surrounds him [or her]—and from which [a juvenile] cannot usually extricate himself [or herself]"; (3) "the circumstances of the homicide offense, including the extent of ... participation in the conduct and the way familial and peer pressures may have" contributed; (4) how "incompetencies associated with youth" may have impacted the charges and convictions; and (5) "the possibility of rehabilitation." ( Id. at pp. 477-478, 132 S.Ct. 2455.)
"But given ... children's diminished culpability and heightened capacity for change," the Court concluded "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty ... of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. ’ ... [W]e do not foreclose a sentencer's ability to make that judgment in homicide cases, [but] 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 pp. 479-480, 132 S.Ct. 2455, fn. omitted, emphasis added.)
In Montgomery, supra , 577 U.S. –––– , the Court explained that " Miller ... did more than require a sentencer to consider a juvenile offender's youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’ [Citation.] Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘ "unfortunate yet transient immaturity ." ’ [Citation.] Because Miller determined that sentencing a child to life without parole is excessive for all but ‘ "the rare juvenile offender whose crime reflects irreparable corruption," ’ [citation], it rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth." ( Id. at p. –––– [136 S.Ct. at p. 734 ], emphasis added.)
In sum, " Miller did bar life without parole ... for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." ( Montgomery, supra , 577 U.S. at p. –––– .) "Before Miller , every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller , it will be the rare juvenile offender who can receive that same sentence." ( Ibid. ) "The question is whether [a juvenile offender] can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society, notwithstanding the ‘diminished culpability and greater prospects for reform’ that ordinarily distinguish juveniles from adults." ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.)
Distinguishing between juvenile offenders "whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption" or "permanent incorrigibility" is constitutionally imperative. ( Montgomery, supra , 577 U.S. at p. –––– .) To properly implement this constitutional mandate, we conclude trial court judges must expressly find "irreparable corruption" or "permanent incorrigibility" prior to imposing life without parole sentences upon juvenile offenders. ( Ibid. ; People v. Padilla (2016) 4 Cal.App.5th 656, 673, 209 Cal.Rptr.3d 209 ( Padilla ) ["trial court must assess the Miller factors with an eye to making an express determination whether the juvenile offender's crime reflects permanent incorrigibility arising from irreparable corruption."].)
While the People do not directly address the question underlying our conclusion, Botello identifies two cases potentially at odds with our conclusion. These cases merit discussion.
First, in People v. Palafox (2014) 231 Cal.App.4th 68, 179 Cal.Rptr.3d 789, this court upheld a juvenile's life without parole sentence where the trial court "implicitly concluded defendant was unfit ever to reenter society." ( Id. at p. 91, 179 Cal.Rptr.3d 789.) The Palafox opinion relied heavily on the fact the Miller court declined to hold "LWOP categorically unconstitutional for juvenile offenders, or at least ... [declined to] explicitly [announce] such a sentence cannot constitutionally stand in [the] face of a potential for rehabilitation." ( Palafox , at p. 90, 179 Cal.Rptr.3d 789.) This basis predates, and is directly at odds with, Montgomery 's explication that " Miller did bar life without parole ... for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." ( Montgomery, supra , 577 U.S. at p. –––– .)
The next case, People v. Blackwell (2016) 3 Cal.App.5th 166, 207 Cal.Rptr.3d 444, held a judge may sentence a juvenile to life without parole in prison without violating the Sixth Amendment right to trial by jury. ( Id. at pp. 186-188, 207 Cal.Rptr.3d 444 ; see generally Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 [explaining right to jury trial as it relates to sentencing].) Blackwell further concluded Miller did "not require a finding of fact regarding a child's incorrigibility or irrevocable corruption." ( Blackwell , at p. 192, 207 Cal.Rptr.3d 444.) In so concluding, Blackwell declares " ‘irreparable corruption’ is not a factual finding, [it] merely ‘encapsulates the [absence] of youth-based mitigation.’ " ( Ibid. )
We respectfully disagree. Miller 's paradigmatic approach encapsulates much more than youth-based mitigation. ( Montgomery, supra , 577 U.S. at p. –––– .) The Court clearly announced, "Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘ "unfortunate yet transient immaturity ." ’ " ( Ibid. , emphasis added.) " Miller did not merely impose an ‘individualized sentencing requirement’; it imposed a substantive rule that life without parole is only an appropriate punishment for ‘the rare juvenile offender whose crime reflects irreparable corruption.’ " ( Adams v. Alabama (2016) ––– U.S. ––––, 136 S. Ct. 1796, 1799, 195 L.Ed.2d 251, Sotomayor, J. concurring in decision to grant writ, vacate judgment, and remand case, quoting Montgomery, supra ; Padilla, supra , 4 Cal.App.5th at p. 673, fn. 7, 209 Cal.Rptr.3d 209.) Blackwell 's "youth-based mitigation" metric is irreconcilable with Montgomery.
We acknowledge Miller itself did not impose a formal factfinding requirement. ( Montgomery, supra , 136 S. Ct. at p. 735.) But the Supreme Court specifically declined to impose such a finding out of "[f]idelity to ... federalism ...." ( Ibid. ) The "Court [was] careful to limit the scope of any attendant procedural requirement [to its Eighth Amendment holding] to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice systems." ( Ibid. ) "That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment." ( Ibid. ) For these reasons, we maintain a formal finding is necessary to faithfully administer Miller and Montgomery.
Three reasons underpin our conclusion. First, a formal finding ensures compliance with the rigorous Eighth Amendment standards pronounced by the United States Supreme Court. Second, requiring trial courts to state their logic on the record imposes no additional burden because they are already required to determine "at the time of sentencing [whether a juvenile offender is] irreparably corrupt, beyond redemption, and thus unfit ever to reenter society" prior to sentencing a juvenile offender to life without parole. ( Gutierrez, supra , 58 Cal.4th at p. 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.) There is simply no reason to permit implicit compliance. There is, however, a vital reason to demand express compliance, which brings us to our third reason.
A formal finding of irreparable corruption or permanent incorrigibility guarantees meaningful appellate review. (See People v. Elliott (2012) 53 Cal.4th 535, 595, 137 Cal.Rptr.3d 59, 269 P.3d 494 ["Under the due process and equal protection clauses of the federal Constitution's Fourteenth Amendment, and under state law, a criminal defendant is entitled to an appellate record that is ‘sufficient to permit adequate and effective appellate review.’ "].) The pronounced judgment in this case amply illustrates the need for detailed, explicit, and precise sentencing in the juvenile life without parole context.
C. Applying Miller and Montgomery to This Case
To recap, Botello argues the trial court "failed to recognize and apply the correct legal standard to its discretion." The People simply argue the issue is moot and do not directly address the point other than to note "the court considered the youth-related factors set forth in Miller , [and] was unwilling to decide whether Botello's murders ... showed irreparable corruption." The record leaves us unable to determine if the court applied the correct legal standard. Accordingly, we will vacate the sentence.
i. Additional Background
The court commenced the sentencing hearing by acknowledging "the top end of the sentence is sentenced to life without the possibility of parole. Based on the special circumstances, the Court has discretion with respect to various other alternatives."
Botello's attorney then informed the court they would like to submit a transcript of the juvenile court transfer hearing testimony to aid in Botello's eventual Penal Code section 3051 parole hearing. That transcript contained no less than four direct expressions that Botello "is probably going to be successful in treatment or rehabilitation."
The juvenile court judge was not the trial court judge.
The record does not indicate the trial court read the transcript or was otherwise aware of its content prior to pronouncing judgment. We note this testimony not because we find it determinative—credibility and weight are for the trial court to determine—but rather because it indicates the court did not fully engage in the process Miller and Montgomery elucidate.
Next, the prosecution, after presenting two emotionally powerful victim impact statements, argued "[t]his was an execution." Referring to the rap video, the prosecution stated, "the video clearly shows [Botello] for what he is.... There is not one hint of remorse in that video for taking two innocent human lives. If anything, the defendant brags, talks about killing, and this is after he's already committed these callous crimes."
While recognizing section 3051's applicability to the ultimate outcome, the prosecution concluded, "Nonetheless, it's the role of this Court, as the Court knows, regardless of what the [L]egislature decrees is going to happen in the future, it's the role of this Court to today to impose a just sentence. And the People would urge this Court that in this case ... the maximum sentence is the appropriate sentence."
Botello's attorney asked "the Court to use its discretion" and acknowledged the court "does not have to sentence Mr. Botello to life without parole." The attorney urged the court "to consider something other than life without parole."
In pronouncing judgment, the trial court stated,
"I have considered Mr. Botello's age at the time the crime was committed. He was just three or four months shy of 18 years of age. ...
"Now the only information I have about his family environment is nothing significant. ... There was no father influence in his upbringing, at least that the Court is aware of.
"And then I focus on the nature of these offenses. These were two murders that were callous, calculated, and, I agree with the prosecution, that it amounted to an execution ...
[¶] ... [¶]
"So those are the comments that I have regarding Mr. Botello with respect to his future.
"As to whether or not he can rehabilitate, I just can't make that prediction for anyone. You know, people can change, but – so to make that prediction today, I think, is unfair. The parole board should have to make that assessment after 25 years of imprisonment.
"But I do make the comments about the nature of this offense and the circumstances on which it occurred and the glorification that he made of it in his rap video."
The court subsequently imposed two consecutive life without parole sentences.
ii. Analysis
" ‘Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.’ " ( Gutierrez, supra , 58 Cal.4th at p. 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.) "[A]n abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard." ( People v. Knoller (2007) 41 Cal.4th 139, 156, 59 Cal.Rptr.3d 157, 158 P.3d 731.) " ‘ "Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal." ’ " ( People v. Leon (2016) 243 Cal.App.4th 1003, 1023, 197 Cal.Rptr.3d 600 ( Leon ).) "[T]he appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion" had it faithfully discharged its duty. ( Gutierrez, supra , 58 Cal.4th at p. 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.)
Unfortunately, we are unable to determine whether the trial court properly applied Miller and Montgomery. The record undoubtedly demonstrates the court was aware of its discretion to impose a sentence other than life without parole. The court clearly considered Botello's age and certainly felt the circumstances of the offense were egregious. But "[t]he record in this case does not reflect that the sentencing court ever considered ‘the ultimate question posed by the courts in both Miller and Gutierrez , ...: Did th[is] crime[ ] reflect transient immaturity or irreparable corruption?’ " ( In re Berg (2016) 247 Cal.App.4th 418, 431, 202 Cal.Rptr.3d 786 ( Berg ).) The record contains no clear indication the court "deemed [Botello], at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society, notwithstanding the ‘diminished culpability and greater prospects for reform’ that ordinarily distinguish juveniles from adults." ( Gutierrez, supra , 58 Cal.4th at p. 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.)
To the contrary, the court specifically stated, "whether or not he can rehabilitate, I just can't make that prediction for anyone. You know, people can change, but – so to make that prediction today, I think, is unfair." It is unclear whether the court's comment is addressing a singular factor for consideration or whether the court is declining to answer the ultimate question. On one hand the statement strongly indicates, as the People put it, the court "was unwilling to decide whether Botello's murders ... showed irreparable corruption." The statement is also, on the other hand, conceivably consistent with a less than artful articulation that Botello is irreparably corrupt while simultaneously acknowledging a philosophical or theoretical principle that "people can change ...."
As noted, the record contains direct testimony relating to Botello's rehabilitative prospects. The record does not indicate the sentencing court engaged this testimony. Again, it is for the trial court, not this court, to assess the testimony's credibility and weight. We sympathize with the trial court expressing its frustration and acknowledge the "great difficulty ... of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ " (Miller, supra , 567 U.S. at p. 480, 132 S.Ct. 2455.) For this exact reason the Court believed such sentences would be "rare" and "uncommon." (Ibid. )
Nonetheless, trial courts may not refuse to comply with Miller and Montgomery by instead asking "[t]he parole board ... to make that assessment after 25 years of imprisonment." Indeed, such a refusal is incompatible with precedent because juvenile offenders are entitled to a validly imposed sentence "at the outset. " (Gutierrez, supra , 58 Cal.4th at pp. 1386-1387, 171 Cal.Rptr.3d 421, 324 P.3d 245.)
This record leaves us unable to conclude "that the trial court would have [impos]ed the same" sentence had it diligently applied Miller and Montgomery. ( Gutierrez, supra , 58 Cal.4th at p. 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245.) Consequently, we will remand for resentencing. D. Considerations Moving Forward
Like both the trial court here and the United States Supreme Court, we recognize the "great difficulty" these sentencing decisions present. ( Miller, supra , 567 U.S. at p. 479, 132 S.Ct. 2455.) To help ease this difficulty, we offer a few suggestions and highlight a few tools to assist trial courts. By no means are these suggestions or tools comprehensive or exclusive.
In each case the trial court will have at its disposal "the probation officer['s] ... report on the behavioral patterns and social history of the" juvenile offender. ( Welf. & Inst. Code, § 707, subd. (a)(2).) The court will also have at its disposal the "probation officer['s] ... report ... upon the circumstances surrounding the crime and the prior history and record of the" juvenile offender. (§ 1203, subd. (b)(1).) These reports will provide some insight into two fruitful and important areas: Prior rehabilitative efforts and social structure.
Prior rehabilitative efforts may present in two ways. First, juvenile and criminal history may disclose an individual's previous success in completing rehabilitative programs. Of course, repeated delinquency and criminality, and any escalating behavior, might reveal prior success failed to bear actual fruit. Second, the absence of any history is itself evidence of rehabilitative potential. The proper inference in any given case is appropriately left to the trial court's sound discretion.
An individual's social structure may shed light on the potential for rehabilitation. A court might find a strong social structure signals a higher chance for rehabilitation. For example, actively involved parents, siblings, and friends may improve an offender's prospects. The absence of such a structure may reduce such prospects or, on the other hand, indicate transient immaturity. Again, the appropriate inference is for the trial court to determine.
Of course, we strongly emphasize potential inferences are simple to state but in reality highly complex to correctly identify. To this end, expert testimony presented on the issue of potential rehabilitation may prove valuable. Such expert testimony may be presented by the People, the juvenile offender, or both. The court itself may find expert testimony necessary to aid its ultimate decision. The court may, in the absence of or in addition to any expert testimony on the topic, appoint an expert to conduct a specific evaluation. ( People v. Stuckey (2009) 175 Cal.App.4th 898, 913, 96 Cal.Rptr.3d 477 ["the court always has the power to appoint its own experts to assist the court, if the need arises."]; Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941 P.2d 1203 [describing a court's inherent powers].)
A court may also find it appropriate "that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period." (§ 1203.03, subd. (a).) Then, "[t]he Director of the Department of Corrections shall, within the 90 days, cause defendant to be observed and examined and shall forward to the court his diagnosis and recommendation concerning the disposition of defendant's case. Such diagnosis and recommendation shall be embodied in a written report ...." (Id. , at subd. (b).) Courts should also consider evidence evincing remorse or lack thereof. Lack of remorse in one case might rightfully favor incorrigibility, and in another case it might indicate transient immaturity. Again, the appropriate inference is best left to the trial court's sound discretion.
Finally, courts should consider evidence of actual rehabilitation. Actual, self reflective rehabilitative efforts are important. This is especially true when several years have passed between the crime and the sentencing hearing. This may occur due to delays within the criminal justice system, or delays in establishing the juvenile offender's identity.
In either situation, but especially the latter, courts should carefully note the juvenile offender's education, rehabilitative efforts, and work history as it relates to his or her future prospects. The court should also consider whether the juvenile offender has children or a partner or spouse. These circumstances may signal rehabilitative potential.
Our hope is that trial courts may find these suggestions beneficial. We reiterate these suggestions are by no means comprehensive or exclusive. In an adversarial system, the possibilities are curtailed only by the limits of imagination.
CONCLUSION
Commitment to the Eighth Amendment cannot rest on beleaguered attempts to reconstruct a potentially implicit rationale underlying life without parole sentences. We cannot divine a court's logic or reason if we are unsure what question, if any, the court is answering. Permitting implied compliance with this constitutional mandate invites unwarranted conjecture and hypothesis into " ‘an irrevocable judgment about [a juvenile offender's] value and place in society ....’ " ( Miller, supra , 567 U.S. at p. 473, 132 S.Ct. 2455.) Because such judgments are "akin to the death penalty," the stakes are too high for assumptions. ( Id. at p. 475, 132 S.Ct. 2455.)
Explicit compliance with Miller and Montgomery precludes speculation and promotes judicial economy by facilitating meaningful appellate review. The appropriate remedy here is to vacate the sentence and remand to the trial court for a clear and reasoned pronouncement of judgment, including an express answer to "the ultimate question posed by the courts in both Miller and Gutierrez , ...: Did th[ese] crime[s] reflect transient immaturity or irreparable corruption?" ( Berg, supra , 247 Cal.App.4th at p. 431, 202 Cal.Rptr.3d 786 ; Gutierrez, supra , 58 Cal.4th at p. 1391, 171 Cal.Rptr.3d 421, 324 P.3d 245 ; Padilla, supra , 4 Cal.App.5th at p. 673, 209 Cal.Rptr.3d 209.)
DISPOSITION
The judgment is reversed. We remand to the trial court to conduct a new sentencing hearing in explicit compliance with Miller , Montgomery , and this opinion.
We note the trial court failed to award custody credits at sentencing. The abstract of judgment mirrored this failure. Any subsequently pronounced judgment shall appropriately award custody credits.
WE CONCUR:
FRANSON, Acting P.J.
SMITH, J.