Opinion
E067550
07-24-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN RAY BRAZILE, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Collette C. Cavalier and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FBA04130) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Collette C. Cavalier and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
On June 1, 1999, a jury convicted defendant and appellant, Brian Ray Brazile, of first degree murder (Pen. Code, § 187), found true an allegation defendant personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and found true a special circumstance allegation the murder occurred in the course of an attempted robbery (§ 190.2, subd. (a)(17)). The court sentenced defendant to life without the possibility of parole (LWOP) plus a determinate term of 10 years.
All further statutory references are to the Penal Code.
On appeal from his conviction, defendant contended the court abused its discretion by sentencing him to LWOP and that LWOP constituted unconstitutional cruel and unusual punishment for a juvenile. We held, in an opinion dated November 14, 2001, that within the context of the then statutory preference for LWOP, "[a]fter a careful and thorough review of the evidence, the trial court properly found no basis for a reduction in sentence, and properly declined to exercise its discretion" to sentence defendant to something less than LWOP. We also disagreed with defendant's contention that sentencing a juvenile to LWOP was unconstitutionally cruel and unusual punishment, noting that the weight of authority was contrary to his contention.
In 2012, the U.S. Supreme Court held in Miller v. Alabama (2012) 567 U.S. 460 that a mandatory term of life imprisonment without possibility of parole for juvenile offenders where the sentencing authority had no discretion to impose a different punishment was constitutionally infirm as violative of the Eighth Amendment. In 2014, the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), held, contrary to previously existing authority, "that section 190.5[, subdivision] (b) confers discretion on the sentencing court to impose either life without parole or a term of 25 years to life on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption in favor of life without parole." (Id. at p. 1387.) On August 25, 2014, defendant filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(2). Defendant later filed a request that the petition be treated as a petition for writ of habeas corpus, which the court granted. After a hearing on the petitions on January 6, 2017, the court denied defendant relief both pursuant to section 1170, subdivision (d)(2) and the Miller/Gutierrez/section 190.5, subdivision (b) factors. The court resentenced defendant to LWOP.
On appeal, defendant contends the court abused its discretion in denying defendant's petition pursuant to section 1170, subdivision (d)(2). By petition for writ of habeas corpus, case No. E068502, defendant argued that the court abused its discretion in denying him relief by conducting a flawed analysis of the Miller factors. We denied defendant's petition for writ of habeas corpus by separate order finding that defendant had failed to carry his burden of proving the court misunderstood the scope of its discretion. (In re Large (2007) 41 Cal.4th 538, 553.) However, we noted we would address the abuse of discretion claim in the appeal. We affirm the judgment.
I. FACTUAL AND PROCEDURAL STATEMENT
The facts of the offenses as derived from the trial are quoted from the opinion of defendant's appeal from his conviction, case No. E026946.
"On July 22, 1997, at 4:05 a.m., [the victim], left his home in Barstow to walk to a place where he could catch a ride to his job at Fort Irwin. At 4:30 a.m., he was accosted on the street and shot four times by defendant. [The victim] died almost immediately."
"Defendant testified and admitted shooting [the victim]. Specifically, he testified that he was walking on the street when [the victim] crossed and began walking in front of him. [The victim] then turned around and swung at him. Defendant jumped to the side and pulled out a gun. Defendant testified that [the victim] jumped at him and grabbed the gun. As [the victim] pulled on the gun it fired four times. Defendant denied that he intended to rob or shoot [the victim], and he characterized the shooting as an accident."
"On cross-examination, defendant denied he had his finger on the trigger at any time, and he did not claim that he shot [the victim] in self-defense. He admitted lying to the officers in giving various contradictory statements to them, but claimed he was telling the truth on the stand."
"[A] friend of defendant[] testified that defendant visited her the day after the crime and told her that he had shot somebody while he was trying to 'jack' them. She understood the term 'jack' to mean that defendant was trying to rob the person. An officer also testified that his understanding of the meaning of the term 'jack' is that it is used 'generally in a robbery situation where somebody is being robbed, either carjacked, a liquor store robbery, persons will refer to it as the store was "jacked."' Defendant denied having any conversation with [his friend] after the crime."
The jury convicted defendant of first degree murder (§ 187), found true an allegation defendant personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and found true a special circumstance allegation the murder occurred in the course of an attempted robbery (§ 190.2, subd. (a)(17)). The court sentenced defendant to LWOP plus a determinate term of 10 years.
On appeal from his conviction, defendant contended the court abused its discretion by sentencing him to LWOP and that LWOP constituted unconstitutional cruel and unusual punishment for a juvenile. In an opinion dated November 14, 2001, we found "[t]here were . . . two strong aggravating factors and, at most, two weak mitigating factors"; thus, the court, "[a]fter a careful and thorough review of the evidence, . . . properly found no basis" to sentence defendant to something less than LWOP. With respect to defendant's general argument that LWOP for juvenile offenders was broadly unconstitutional, we found the weight of authority against him.
On August 25, 2014, defendant filed a request for recall and resentencing pursuant to section 1170, subdivision (d)(2). Defendant repeatedly expressed remorse for his offense, contended he had been convicted pursuant to the felony-murder rule, and maintained he had no juvenile felony adjudications for assault or other felony crimes with a significant potential for harm to victims prior to the instant case. Defendant attached to his petition evidence of his purported rehabilitation, consisting of numerous certificates of completion of various programs and laudatory chronos. The court continued the matter by stipulation numerous times over the ensuing year and a half.
"Laudatory chronos" is "the prison term for positive write-ups from supervisors." <https://www.pressreader.com/usa/san-francisco-chronicle/20051211/282823596585762> [as of July 24, 2018].
On February 26, 2016, defendant filed supplemental exhibits to the petition, including additional certificates, laudatory chronos, letters of appreciation, and placements to which he had been accepted should the court grant his petition and release him. On October 17, 2016, defendant filed a sentencing memorandum and request that the court treat the petition as a petition for habeas corpus. Attached to the sentencing memorandum were additional exhibits, including heavily redacted police reports, selective transcripts of defense witnesses' testimony at trial, public defender investigative reports, a social services worker's report regarding defendant's family life, the original probation officer's report, the transcript of defendant's sentencing hearing, and an "expert's" investigative review of defendant's Department of Corrections and Rehabilitation file.
On November 3, 2016, the People filed opposition to defendant's petition(s), noting that defendant had neither been convicted under the felony-murder rule nor under an aiding and abetting theory and had prior adjudications for assaultive conduct and felonies that had a significant potential for harm to the victims. Defendant filed a reply on November 16, 2016. On December 6, 2016, defendant filed a third supplement to the exhibits, containing a classification chrono and an affidavit expressing his "deep moral anguish and regret for [his] deeds leading to the murder of" the victim. On December 20, 2016, the court granted defendant's request that the petition be deemed a petition for writ of habeas corpus and ordered the People to show cause why the relief requested should not be granted.
On January 6, 2017, the court held the hearing on the petition(s). Over defendant's objection, the court elected to hold a hearing and rule on both defendant's initial request pursuant to section 1170, subdivision (d)(2) and his petition for writ of habeas corpus as to the Miller/Gutierrez/section 190.5 factors. The court granted defendant's petition for writ of habeas corpus insofar as it would resentence defendant, noting the initial sentencing court had operated under the now incorrect presumption that LWOP was the appropriate sentence: "And the cases indicate that in a situation such as that, where the Court is now going to resentence the defendant, in addition to all of the other factors that the Court would take into consideration at the original sentencing, which would include now all of the Miller criteria and all of the aggravating and mitigating circumstances, the Court should also take into consideration any efforts or indications of rehabilitation of the defendant since the original sentencing."
Defendant requested the court treat the petition only as a habeas, i.e., as a request for relief under Miller/Gutierrez/section 190.5.
The court found "defendant's participation in this offense is a result of a continued pattern of criminal activity, continued course of criminal conduct that would indicate [an] irreparable course of criminal conduct or irreparable corruption under Miller, which would justify the sentence of life without possibility of parole." The court likewise denied the petition pursuant to section 1170, subdivision (d)(2) after consideration of the applicable standards. The court resentenced defendant to LWOP, noting that defendant could file a renewed section 1170, subdivision (d)(2) petition after serving 20 and 25 years of incarceration.
II. DISCUSSION
A. Section 1170, Subdivision (d)
Defendant contends the court abused its discretion by denying defendant's petition for recall and resentencing pursuant to section 1170, subdivision (d)(2). We disagree.
"Section 1170, subdivision (d)(2)(A)(i), provides that when a defendant who was under 18 years of age at the time of the commission of the offense for which he was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may petition the court for recall and resentencing." (People v. Gibson (2016) 2 Cal.App.5th 315, 326 (Gibson).) "A petition pursuant to section 1170, subdivision (d)(2) must include the defendant's statement that he or she was under 18 years of age at the time of the crime, was sentenced to LWOP, and include a statement describing his or her remorse and work towards rehabilitation, as well as defendant's statement that one of the following is true: (1) the defendant was convicted pursuant to felony-murder or aiding and abetting murder provisions of the law, (2) the defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall, (3) the defendant committed the offense with at least one adult codefendant, (4) the defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation." (Ibid.)
"The court must hold a hearing to consider whether to recall the sentence if it finds by a preponderance of the evidence that the statements in the petition are true. [Citation.] At the hearing, the court may consider certain factors, including, but not limited to, the factors set out in the defendant's statement pursuant to section 1170, subdivision (d)(2)(B). [Citation.] One such factor is whether '[t]he defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.' [Citation.]" (Gibson, supra, 2 Cal.App.5th 315 at p. 326.) The other factors include whether the "defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the defendant was sentenced to life without the possibility of parole"; whether the "defendant committed the offense with at least one adult codefendant"; whether, prior to sentencing, "defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress"; whether "defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant's involvement in the offense"; whether "defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse"; whether "defendant has maintained family ties or connections with others through letter writing, calls, or visits, or has eliminated contact with individuals outside of prison who are currently involved with crime"; and whether "defendant has had no disciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor." (§ 1170, subd. (d)(2)(B)(i)-(viii).)
When determining whether to impose a sentence of LWOP on a juvenile offender, "[t]he question is whether [the juvenile] 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. [Citation.]" (Gutierrez, supra, 58 Cal.4th at p. 1391.) "[T]he [re-]sentencing decision involves an assessment of various factors, [to which] the trial court has discretion to accord different weight to each . . . , and its decision need not be determined by the sheer number of factors on one side or the other. Rather, the trial court's exercise of its sentencing discretion 'requires "[a] quantitative and qualitative analysis" of multiple factors. [Citation.]' [Citation.]" (People v. Willover (2016) 248 Cal.App.4th 302, 323.) "The statute thus confers broad discretion on the trial court in considering relevant factors and determining whether to recall the sentence." (Gibson, supra, 2 Cal.App.5th at p. 324.) "Sentencing decisions are reviewed for abuse of discretion. [Citations.] Under this standard, a trial court's exercise of discretion will not be disturbed unless the trial court exercised it in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Id. at p. 325.) "The finding of one proper factor is sufficient to justify the court's decision. [Citation.]" (Id. at p. 329.) Where the court gives both proper and improper reasons for its sentencing decision, we will set aside the judgment only where it is reasonably probable that the court would have imposed a lesser sentence had it been aware some of its reasons were improper. (Id. at p. 328.)
Here, the court went over all the section 1170, subdivision (d)(2) factors, demonstrating it understood the applicable law. The court indicated it had reviewed the "extensive briefs," exhibits, and reports in the matter. The court heard defendant's testimony. The court specifically addressed the facts as they pertained to defendant relevant to several of the applicable legal factors. The court noted that the sentencing judge found the murder was premediated. It noted the previous court described "the killing as for purely evil reasons, was aggravated, depraved, vicious, cruel, and predatory." The court agreed with this description.
Defendant contends the court mischaracterized the sentencing court's statement regarding the murder. Defendant maintains, without citation to the record, that the sentencing court found the robbery premediated, but not the murder. We have read the transcript of the sentencing hearing and have not found any express finding by the court that just the robbery was premeditated. However, the court did find defendant planned to use a firearm and his "motive was to rob." Defendant "was roaming the streets . . . looking for someone, anyone to rob, and perhaps to harm them." Certainly, the trial court's descriptions of the offenses in their entirety are consistent with both a finding that the robbery and murder were premeditated, even if the jury did not so expressly find. Nevertheless, we shall deal with this issue more fully below.
The court found that defendant had "a significant criminal history prior to this offense." The court noted defendant suffered "prior adjudications for both assaultive or violent conduct, as well as theft-related conduct. Some of those prior offenses did have a significant potential for harm to others. Certainly, the robbery; certainly, the assault, that was an attempted stabbing." The court agreed with the sentencing court's finding that defendant was wily, street smart, and the instant offense was part of a continuing pattern of increasingly serious crimes. The court observed defendant was the sole participant; he was not convicted of merely aiding and abetting the crime, particularly with an adult codefendant.
The court found that defendant's home life was a mitigating factor due to defendant's father's drug and alcohol use, minimal interaction with defendant, and failure to act as a positive role model. The court also observed defendant was living with a 24-year-old gang member at the time of the offenses. The court noted defendant "had used alcohol, but there was no indication that he was an alcoholic or that he was under the influence of alcohol at the time of the commission of this offense." The court found defendant had made "somewhat significant" actions toward rehabilitation. The court noted defendant's expression of remorse, which it found "harder to evaluate as to . . . how sincere it is . . . ."
"On balance, . . . there has been an insufficient showing, at this point, to justify resentencing to 25 years to life. Therefore, the defendant's petition under [section] 1170[, subdivision] (d)(2) to reduce his sentence to 25 years to life is denied. As I indicated, applying all of the standards under Miller . . . , and the circumstances of the offense, and weighing the aggravating and mitigating circumstances, the Court is satisfied that the aggravating factors both outweigh the mitigating factors, and are so substantial in comparison to the mitigating factors, that life without the possibility of parole is the appropriate sentence . . . ." The court noted that it was a close case and that if defendant continued to show efforts toward rehabilitation and refrained from criminal activity or violence, in four more years, when defendant had served 20 years in prison, "there would be, at least, a realistic possibility that a petition would be favorably reviewed at that point in time."
Here, the court acted within its discretion in resentencing defendant to LWOP. The court reviewed the proper law and facts, conducted a qualitative and quantitative analysis of multiple factors, and ultimately concluded that the balance weighed in favor of resentencing defendant to LWOP. We find no abuse of discretion in the court's reasoning. Even if the court gave improper reasons for its decisions, such as a finding that defendant had been convicted of premeditated murder, we hold it was not reasonably probable the court would have imposed a lesser sentence had it been informed there was no express finding that defendant had been found to have premeditatedly murdered the victim. Where one factor alone was sufficient for the court to impose LWOP, the court gave several proper factors for resentencing defendant to LWOP.
1. Whether Defendant Was Convicted of Felony Murder or Aiding and Abetting Murder
Defendant repeatedly contends the jury convicted him of felony murder, going so far as to conclude "the killing was clearly a felony murder." The People contend the record supports the court's finding that the murder was premeditated, even if the jury did not render an express finding as such. We hold that, at best for defendant, the record is inconclusive as to whether the jury convicted defendant pursuant to the felony-murder rule. At worst, the record supports both the court's finding the murder was premeditated and that the jury convicted defendant of premeditated murder.
Here, the court gave the jury instructions on both theories of premeditated and felony murder. However, although the jury found defendant guilty of first degree murder, the court neither asked the jury nor did the jury indicate upon which theory of murder it based its guilty verdict. Indeed, as the People point out, the court is not required to have the jury agree on a theory of first degree murder. (People v. Jennings (2010) 50 Cal.4th 616, 639 ["'A jury may convict a defendant of first degree murder . . . without making a unanimous choice of one or more of several theories proposed by the prosecution . . . .'"]; People v. Morgan (2007) 42 Cal.4th 593, 617 ["'[J]urors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation.'"]; People v. Moore (2011) 51 Cal.4th 386, 413 ["'"Felony murder and premeditated murder are not distinct crimes . . . ."'"].) Thus, there is simply no basis upon which to conclude that the jury necessarily convicted defendant of first degree murder based upon a felony-murder theory.
Defendant maintains that the jury's true finding on the special circumstance allegation that defendant committed the murder during his attempt to rob the victim, necessarily means the jury found defendant guilty of felony murder. Defendant cites People v. Bramit (2009) 46 Cal.4th 1221, 1238 and People v. Cleveland (2004) 32 Cal.4th 704, 751 for this proposition. Defendant notes that in Cleveland, the court observed that "the jury convicted each defendant of robbing both victims and found true a robbery-murder special circumstance, thus showing at least that the jury unanimously found the felony-murder rule applied." (Ibid.) Defendant fails to note the glaring terms "at least" in the quoted passage. By noting that the jury had "at least" found defendants guilty of felony murder, the court was not holding that the jury had actually found the defendants guilty of felony murder, but that, at a minimum, the jury had rendered such a finding; the court was also saying the jury could have found the defendants guilty of premeditated murder. Indeed, the court noted that "the court did not have to tell the jury it must unanimously agree on the theory of guilt of first degree murder." (Ibid.)
In Bramit, the court did note that the "jury here unanimously found true a felony-murder special circumstance, demonstrating that that theory of first degree murder garnered the agreement of each juror." (People v. Bramit, supra, 46 Cal.4th at p. 1238.) However, the court also stated that the argument "that the jury should have been required to agree unanimously on whether [the defendant] committed premeditated murder or felony murder . . . has been repeatedly rejected. [Citation.]" (Ibid.) Thus, the implication of the former statement is that the jury unanimously agreed to the felony-murder theory for purposes of finding the special circumstance true, not that that finding necessarily precluded the jury from finding that the defendant also committed premeditated murder. Here, although the jury found true the felony-murder special circumstances, the jury did not expressly indicate that it found defendant guilty of the underlying murder itself exclusively on a felony-murder theory. Thus, the jurors could have found defendant guilty under either theory or even both.
Since the jury did not render an express finding as to which theory of first degree murder it found defendant guilty under, the court was free to make such a determination itself. (Dillon v. United States (2010) 560 U.S. 817, 828-830 [sentence modification proceedings which are not constitutionally compelled do not implicate a defendant's 6th Amend. right to have essential facts found by a jury beyond a reasonable doubt]; accord, People v. Bradford (2014) 227 Cal.App.4th 1322, 1334-1336.) Here, the record before the court was sufficient for it to conclude either that defendant had committed premeditated murder or that he had at least not been convicted under a felony-murder theory.
As the sentencing judge, who was also the trial judge, noted: "But sometimes killings are done under circumstances that are purely evil reasons. The circumstances of the murder of [the victim] was one of those killings, aggravated, depraved, vicious and cruel. . . . [¶] . . . There's evidence that [the victim] was shot even though he begged for his life. The defendant pulled that trigger four times, four separate times. [¶] There's evidence that the defendant laughed immediately afterward when he described the murder. But perhaps the most chilling aspect of the murder is the randomness and the predatory nature of the attack. [Defendant] was roaming the streets of Barstow at 4:30 in the morning looking for someone, anyone to rob, and perhaps to harm them. He tried to flag down a vehicle in the street, but they refused to stop, fortunately for them, just prior to seeing [the victim] walking to his ride to work. The victim was painfully vulnerable at the time of the attack. Few people were around to lend aid to [the victim] as he [lay] dying." This is certainly consistent with a determination that both the robbery and the killing were premeditated. The court ruling on the instant petition agreed with the sentencing court's characterization of the murder. Thus, the court acted within its discretion in finding the killing was premeditated and, thus, was an aggravating factor weighing against the relief requested in the section 1170, subdivision (d)(2) petition.
Defendant notes the court mistakenly stated that the trial court determined the killing was premeditated. This is true. The sentencing court did not expressly state that the killing was premeditated. However, the sentencing court's description of the offense as noted above is consistent with a finding that the killing was premeditated rather than simply a felony murder. In any event, the court obviously came to its own determination that the offense was premeditated based, in part, upon the sentencing court's description of the offense. Thus, despite the court's error in stating that the sentencing court had found the killing premediated, it was not reasonably probable the court would have imposed a lesser sentence had it been aware this statement was incorrect. (People v. Gibson, supra, 2 Cal.App.5th at p. 328.) Thus, this factor, at best, did not weigh in defendant's favor and, at worst, weighed against him.
2. Prior Felony Adjudications for Assault or Other Felony Crimes with a Significant Potential for Personal Harm
Defendant contends this factor only weighed "minimally" against defendant because he had only sustained one prior felony adjudication for robbery, which was not an offense which was "likely to cause significant harm." The People maintain this factor supported the court's decision. We agree with the People.
In support of his petition, defendant submitted a copy of the probation report prepared prior to defendant's original sentencing. The probation report reflects that police arrested defendant on February 12, 1995, on charges of assault by means of force (§ 245, subd. (a)(1)) and robbery (§ 211). A description of the offenses reflected defendant entered a liquor store in an attempt to steal beer; when approached by the owner, defendant hit the owner over the head with a bottle, inflicting a large cut on the owner's left check, a cut on his nose, and swelling and a cut above the left eye. The court found true the robbery allegation. On August 2, 1996, the police arrested defendant for assault with a deadly weapon by means of force with great bodily injury (§ 245, subd. (a)(1)) and assault and battery (§ 242). A description of the offenses reflected that defendant became involved in a verbal dispute with a woman whom he then pushed; the woman informed her husband, who confronted defendant; defendant then attempted to stab the husband with a knife. The court found true a misdemeanor assault allegation.
Defendant had been arrested for seven additional, prior offenses for behavior, including robbery by force and two incidents of fighting, one which was gang-related and resulted in injuries to a victim. Most of defendant's additional arrests resulted in out-of-court settlements. The probation officer noted defendant "is a highly sophisticated, gang oriented, assaultive individual, exhibiting the same types of behavior in custody that he exhibits out of custody." He further observed that defendant "has committed an adult offense that is sophisticated and violent in nature . . . . He is attempting to manipulate the system in order to elicit sympathy for his circumstances, when in fact, he is continuing to participate in the same types of aggressive activities that led him to commit the present offense. This is a dangerous individual who should not be released back into society. The loss of life that he was responsible for and the devastation that he has imposed upon other members of the victim's family in this case is exceptionally severe. [Defendant] shows little concern for either the victim or the family members."
The sentencing court noted defendant "does not have any prior felony convictions, but only in the sense that he was a juvenile at the time that he suffered the prior juvenile adjudications." That court observed the "prior sustained petitions in [the] juvenile proceedings are increasing [in] seriousness and involve the use of force and violence." Defendant was on probation when he committed the murder.
It is unclear from the record whether the true finding on the assault allegation on February 12, 1995, was for a felony or misdemeanor.
The court which ruled on the instant petition agreed with the sentencing court's finding that defendant's current offense was part of a continuing pattern of increasingly serious crimes. The court agreed with the sentencing court that defendant had "prior adjudications for both assaultive or violent conduct, as well as theft-related conduct." It noted that "[s]ome of those prior offenses did have a significant potential for harm to others. Certainly, the robbery; certainly, the assault, that was an attempted stabbing." Thus, the court acted within its discretion to the extent it found this factor weighed against defendant.
3. Committed with an Adult Codefendant
Defendant concedes this factor did not weigh in defendant's favor as he did not commit the instant offenses with an adult codefendant.
4 Insufficient Adult Supervision
Defendant contends the court abused its discretion because it "showed an insufficient comprehension of the lack of positive adult support [defendant] had received and the significant stress [defendant] suffered due to his environment and matters outside his control, from which he failed to extricate himself in a favorable manner at the age of 16." We disagree.
Defendant attached to his petition an interoffice memorandum from a social services practitioner which addressed defendant's family life as a minor derived largely from speaking with defendant's sister. Defendant's sister reported they lived in "constant turmoil, arguments fanned by" their father's "drug and alcohol use, criminal history[,] and their mother's lack of support and parental consistency." Growing up, defendant "had no direction and no one was setting any boundaries or limits for his behavior." Defendant "recall[ed] being 'whooped' by his father who used many different objects which left welts and bruises and their mother standing by and doing nothing." "The product of [the parents'] failure of parenting was [defendant's] rebelliousness and [his] search for a familial style unit to meet [his] needs, which became [his] peers and what life on the streets could provide for [him]." Defendant's mother informed the probation officer that she never married defendant's father; they had an on-again, off-again relationship; and that defendant's father did not communicate with defendant even when living in the same home with him.
When defendant turned 13 years of age, he relied on his older brother, who was involved in the subculture of gang life, for guidance. Defendant had denied ever being a gang member, but mimicked their dress and behaviors. Defendant's sister reported their gang member brother was killed in 2003. When defendant turned 15, he began living with a 24-year-old gang member with whom he was living when he committed the instant offenses. Defense counsel apparently intended to have defendant's mother testify at trial, but she failed to appear. Defense counsel noted that, as throughout trial, defendant's mother failed to appear unless she was subpoenaed.
The probation officer's report reflected that defendant was a gang member.
The court expressly found that defendant's home life was a mitigating factor due to defendant's father's drug and alcohol abuse, noninteraction with defendant, and failure to provide a positive role model. The court also noted that the fact defendant lived with a 24-year-old gang member at the time he committed the murder further supported this factor. Defendant appears to claim that although the court explicitly found this factor weighed in defendant's favor, the court still did not afford it sufficient weight. The weight to be accorded evidence is the exclusive province of the court below and this court does not reweigh the evidence on appeal. (People v. Williams (2018) 23 Cal.App.5th 396, 408-409.) Thus, the court acted within its discretion in finding defendant's home life weighed in favor of his petition.
5. Intoxication
Defendant contends his purported intoxication at the time he committed the murder weighed heavily in favor of the relief requested. We disagree.
Defendant attached to his petition heavily redacted police reports, which included interviews with witnesses Larry Maestas and Misty Slife. Maestas described defendant as appearing "'out of it,'" under the influence of drugs and alcohol, "'dazed,'" and "'glassy eyed.'" Slife said defendant smoked a marijuana cigarette with her that day. In a public defender report of investigation, Maestas said defendant's eyes looked "red and glossy" and his voice had an unusual and drugged tone to it. Maestas was certain that defendant was "drunk-high." Another public defender investigative report reflected a witness named Robert Burden described defendant as acting "'wildly like he was drunk or high'" at the time of the murder.
Although there are exceptions, generally the introduction of a probation officer's report, police reports, and investigators' reports in lieu of witness testimony is inadmissible hearsay. (In re Kentron D. (2002) 101 Cal.App.4th 1381, 1392-1393; In re Rose G. (1976) 57 Cal.App.3d 406, 426 ["A probation report is itself hearsay evidence as it constitutes the hearsay statements of the probation officer. To the extent that it relates statements made by others to the probation officer, it constitutes double and sometimes multiple hearsay."]; accord, In re George G. (1977) 68 Cal.App.3d 146, 156; People v. Reed (1996) 13 Cal.4th 217, 230-231; see People v. Scrivens (1969) 276 Cal.App.2d 429, 435.) We will assume for the sake of argument that these documents were properly admitted and considered because no one raised any objection to them.
Defendant also attached his brother's trial testimony and the trial testimony of Carletta Carpenter. Defendant's brother testified defendant was drinking, but he was not watching to see how much defendant drank. That night, defendant "seemed normal to me." "I didn't see him drink." He did not see defendant smoking anything. Nonetheless, defendant's brother admitted he told an investigator that night that they were all drunk. Carpenter testified that at the time of the shooting she was "[p]robably drunk, so I really don't remember what kind of condition [defendant] was in." She told the detective defendant was drinking, but did not recall telling him defendant was drunk or intoxicated. The probation officer's report reflected defendant stated, "'I was drinking beer that night. I was in between drunk. I wasn't falling down drunk.'"
In addressing the claim on defendant's initial appeal that the sentencing court had abused its discretion, we noted the "trial court did not exceed the bounds of discretion when it characterized the testimony on this subject as follows: '[T]here was evidence of alcohol consumption by [defendant] prior to this murder, but the evidence in my opinion is sketchy and contradictory. [¶] Some of the witnesses said [defendant] was not intoxicated . . . . Some of them said that he was not intoxicated. The defendant said various things depending on which point in time. He said, "I was kind of drunk." He said "I knew what I was doing. I wasn't really drunk." In any event, there was no evidence that [defendant] was so drunk that he didn't know what he was doing. [¶] This is not a case of a falling-down drunk who shoots a man he would not otherwise have shot. And the evidence of intoxication didn't significantly reduce the culpability.' The trial court also pointed out that instructions were given relating the limited defense of voluntary intoxication to the issue of formation of a specific intent to commit the crime. The jury rejected that evidence in finding the requisite specific intent."
The trial court instructed the jury with CALJIC Nos. 4.21.1 and 4.22 on the issue of voluntary intoxication.
In ruling on the petition, the court noted defendant "had used alcohol, but there was no indication that he was an alcoholic or that he was under the influence of alcohol at the time of the commission of this offense." The court's determination that this factor did not weigh in defendant's favor was within its discretion.
6. Acts of Rehabilitation
Defendant contends the "court abused its discretion by not giving significant weight to [defendant's] massive rehabilitation efforts and his growth in maturity during the 20 years after the crime." We disagree.
During defendant's 15 years of incarceration he completed numerous programs and engaged in an extensive number of courses. Indeed, the number of certificates, chronos, and letters attached to his petition are simply too numerous for us to enumerate here. Rather, we will attempt to summarize them. Defendant completed his high school equivalency certificate on July 22, 2003. He completed numerous job training programs, including the following: work as a laundry steam presser, programs from the National Center for Construction Education and Research, and programs for computer literacy. Defendant participated in programs aimed at dealing with the abuse of addictive substances. He completed anger management courses, Bible studies programs, and life management/self-development courses. Defendant became certified in and participated as a peer education specialist on the spread of infectious diseases. Defendant received a number of laudatory chronos and letters of appreciation for his efforts.
Defendant submitted an affidavit conveying his "deep moral anguish and regret for [his] deeds leading to the murder of" the victim. He testified as to his remorse, admission of guilt, and acceptance of full responsibility for his actions. He read statements of remorse to the victim and the victim's family and friends. Defendant pledged to work to offset the harm he had done. The court noted defendant had "a good work history in state prison" and found defendant had completed "somewhat significant" acts toward rehabilitation.
Although we might characterize defendant's acts toward rehabilitation as something more than "somewhat significant," it was entirely within the court's discretion to determine how much weight should be accorded defendant's acts on this factor. (People v. Verducci (2016) 243 Cal.App.4th 952, 967; People v. Willover, supra, 248 Cal.App.4th at p. 323 ["When the . . . decision involves an assessment of various factors, the trial court has discretion to accord different weight to each factor . . . ."]; In re Barker (2007) 151 Cal.App.4th 346, 365 [the appellate court is precluded from independently determining the weight to be given evidence considered by the authority below].) The court acted within its discretion in both determining how much weight to accord defendant's actions on this factor and in determining how much weight this factor should be accorded in consideration with all the other factors it considered.
Defendant argues that he maintained connections with others, another aspect of this factor, by participating in a program of writing letters to at-risk youth. Although both true and commendable, this is not what this factor appears to mean. Rather, on its face, it would appear to mean the type of correspondence which would form a relationship and basis upon which defendant would have connections upon any release from prison. Likewise, the fact that defendant had been accepted to several transitional homes was largely irrelevant as, at best, if the court granted defendant's petition, he would only receive a parole hearing once he had spent 25 years incarcerated. Had the court granted defendant's petition, he would not have been immediately released from prison.
Defendant contends the "court abused its discretion by ignoring this factor, which favored" defendant. We disagree.
The only evidence on defendant's contact with his family came from the report prepared by the social services practitioner who reported defendant had remained in contact with his mother and father throughout the past 17 years of his incarceration, though he had not had visits with them for many years. His mother purportedly wrote him several times a month and defendant would call to speak with both his mother and father. Defendant stated in the petition that he now had a fiancé and stepdaughter who anchored him. Although the court did not expressly mention this factor, neither did defense counsel below argue for its applicability.
Again, this evidence would typically be considered inadmissible hearsay; however, there was no objection to its consideration.
Defendant did not indicate how often he called to speak with his mother and father. Defendant did not inform the court precisely how or when he became engaged and what the nature of his relationship with his fiancé and stepdaughter involved, i.e., how much he visited or communicated with them. The court noted that it had reviewed defendant's "extensive briefs," including the reports. The court indicated that it had weighed everything in rendering its decision. Thus, there is simply no basis for determining the court ignored this factor or that this factor would have outweighed the other factors the court found weighed against defendant in its calculus.
8. No Disciplinary Actions for Violence in the Last Five Years Where Defendant was the Aggressor
Defendant contends this factor weighed in favor of defendant. We disagree.
Although not specifically referenced by the court, defendant attached to his supporting exhibits an investigative review of defendant's Department of Corrections and Rehabilitation file by a purported expert in correctional matters. The expert noted defendant had incurred 13 rule violation reports, the most recent occurring in 2012 for fighting, resulting in the use of force for which defendant pled guilty. This, in and of itself, places defendant in the position of having disciplinary action within the five years preceding his petition for which he apparently pled to being the aggressor. Thus, this factor weighed against defendant.
We find no abuse of discretion in the court's analysis as to any of the factors it considered. Here, again, we observe the court acted within its discretion in resentencing defendant to LWOP. The court reviewed the proper law and facts, conducted a qualitative and quantitative analysis of multiple factors, and ultimately concluded that the balance weighed in favor of resentencing defendant to LWOP. Even if the court gave a single improper reason for its decision, such as the finding that defendant had been convicted of premeditated murder, we hold it was not reasonably probable the court would have imposed a lesser sentence had it been informed there was no express finding by the jury that defendant had been found to have premeditatedly murdered the victim. Where one factor alone was sufficient for the court to impose LWOP, the court gave several proper factors for resentencing defendant to LWOP. As the court noted, it was a close case and if defendant continued to show efforts toward rehabilitation and refrained from criminal activity or violence, in four more years, when defendant had served 20 years in prison, "there would be, at least, a realistic possibility that a petition would be favorably reviewed at that point in time." (§ 1170, subd. (d)(2)(H) [defendant may file additional § 1170, subd. (d) petitions once he has served 20 and 25 years in prison].) B. Miller/Gutierrez/Section 190.5
Defendant filed a petition for writ of habeas corpus in case No. E068502, which we denied, finding defendant had failed to carry his burden of proving the court misunderstood the scope of its discretion. (In re Large, supra, 41 Cal.4th at p. 553.) However, we noted we would address the abuse of discretion claims he raised in this appeal. Defendant contends the court abused its discretion in resentencing him to LWOP "based on a flawed analysis of the Miller factors and an erroneous finding that [defendant] is irreparably corrupt." (Capitalization omitted.) We disagree.
In 2012, the United States Supreme Court held that "[m]andatory life-without-parole sentences for juveniles violate the Eighth Amendment." (Miller v. Alabama, supra, 567 U.S. at p. 470 [juveniles sentenced to mandatory term of LWOP where sentencing authority had no discretion to impose a different punishment was constitutionally infirm as violative of 8th Amend.]; accord, Montgomery v. Louisiana (2016) ___ U.S. ___, ___ [136 S.Ct. 718, 726].) Miller announced a new substantive constitutional rule which was retroactive on state collateral review. (Montgomery v. Louisiana, supra, at pp. 732-733; Gibson, supra, 2 Cal.App.5th at pp. 323-324.)
At the time of defendant's conviction, section 190.5, subdivision (b) "provided that 'The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, 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.' Prior to 2014, this section was interpreted to mean that 16 or 17 year olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life. [Citation.]" (Gibson, supra, 2 Cal.App.5th at p. 322.)
In 2014, the California Supreme Court in Gutierrez, supra, 58 Cal.4th 1354 held "that section 190.5[, subdivision] (b) confers discretion on the sentencing court to impose either life without parole or a term of 25 years to life on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption in favor of life without parole." (Id. at p. 1387.) The court further held that a 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.'" (Id. at p. 1390.) In the cases at hand, Gutierrez held that although both underlying trial courts understood they had a degree of discretion in sentencing the defendants, each also operated at a time when LWOP was considered the presumptive sentence; thus, the court remanded both cases to the trial courts for resentencing with awareness of the full scope of their discretion. (Id. at pp. 1391-1392.)
Gutierrez noted that "[j]uveniles who commit crimes that reflect impetuosity, irresponsibility, inability to assess risks and consequences, vulnerability to peer pressure, substance abuse, or pathologies traceable to an unstable childhood cannot and should not escape punishment. And when the crime is 'a vicious murder,' it is 'beyond question' that a juvenile offender 'deserve[s] severe punishment.' [Citation.]" (Gutierrez, supra, 58 Cal.4th at p. 1391.) However, when determining whether to impose a sentence of LWOP on a juvenile offender, Gutierrez held that "[t]he question is whether [juveniles] 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. [Citation.]" (Ibid., italics added.) In conducting such a determination, the court must consider five factors: (1) the juvenile's age and its hallmark features, i.e., immaturity, impetuosity, and failure to appreciate consequences; (2) any evidence regarding vulnerabilities of the family and home environment, including physical abuse, neglect, familial drug or alcohol abuse, lack of parenting, exposure to violence, and psychological damage; (3) the circumstances of the homicide offense; (4) any incapacity to deal with police, prosecutors, and defense counsel due to the offender's youth; and (5) any evidence on the possibility of rehabilitation. (Id. at pp. 1388-1389.) So long as the court takes into consideration all relevant evidence regarding those five factors when sentencing a juvenile offender to LWOP, the sentence does not violate the federal or state constitution. (People v. Palafox (2014) 231 Cal.App.4th 68, 92.)
Here, much of the analysis is similar, if not on some points, exactly the same as the one we conducted above. The court went over all the Miller factors, demonstrating it understood the applicable law. The court indicated it had reviewed the "extensive briefs," exhibits, and reports in the matter. The court heard defendant's testimony. The court specifically addressed the facts as they pertained to defendant relevant to several of the applicable, legal factors. In "weighing everything, [the court] c[a]me to the conclusion under [the] Miller standards, that the defendant's participation in this offense is a result of a continued pattern of criminal activity, continued course of criminal conduct that would indicate [an] irreparable course of criminal conduct or irreparable corruption under Miller, which would justify the sentence of life without the possibility of parole."
The court noted that the sentencing judge found the murder was premediated. It noted the previous court described "the killing as for purely evil reasons, was aggravated, depraved, vicious, cruel, and predatory." The court agreed with this description.
The court found that defendant had "a significant criminal history prior to this offense." The court noted defendant suffered "prior adjudications for both assaultive or violent conduct, as well as theft-related conduct. Some of those prior offenses did have a significant potential for harm to others. Certainly, the robbery; certainly, the assault, that was an attempted stabbing." The court agreed with the sentencing court's finding that defendant was wily, street smart, and the instant offense was part of a continuing pattern of increasingly serious crimes. The court observed defendant was the sole participant; he was not convicted of merely aiding and abetting the crime, particularly with an adult codefendant.
The court found that defendant's home life was a mitigating factor due to defendant's father's drug and alcohol use, minimal interaction with defendant, and failure to act as a positive role model. The court also observed defendant was living with a 24-year-old gang member at the time of the offenses. The court noted defendant "had used alcohol, but there was no indication that he was an alcoholic or that he was under the influence of alcohol at the time of the commission of this offense." The court found defendant had made "somewhat significant" actions toward rehabilitation. The court noted defendant's expression of remorse, which it found "harder to evaluate as to . . . . how sincere it is . . . ."
It is unclear whether the court properly considered defendant's postsentencing rehabilitative efforts since Gutierrez indicates that the core question is "whether [juveniles] 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." (Gutierrez, supra, 58 Cal.4th at p. 1391, italics added.) "[A]t the time of sentencing" conceivably means at the time of the defendant's original sentencing hearing or a resentencing hearing after a direct appeal or petition for review. After all, all the published cases we could find on this issue are from direct appeals and petitions for review. This would mean, at worst, a two- to five-year lag time between the defendant's original sentencing date and his resentencing date. However, here we have a defendant whose resentencing occurred 17 and a half years after he was originally sentenced, giving him an extraordinarily long time to engage in and create a record of rehabilitative activities. Compare this with a juvenile who is sentenced today without the presumption of an LWOP sentence who has had little or no time to develop a record of rehabilitation and would not be given another opportunity to do so, at least under the Miller/Gutierrez/section 190.5 legal framework. This would appear grossly unfair to the latter defendant. Nevertheless, we shall assume arguendo that the court properly considered defendant's 17-year record of rehabilitation, though we note that the vast majority of defendant's rehabilitation efforts were concentrated in only the four and a half years preceding his filing of the instant petition.
Where that analysis differs, the court also made a sufficient record: "So the starting analysis is, number one, the defendant's chronological age. The defendant was 16 and a half at the time of the commission of the crime, putting him, basically, closer to the young age of 16, where the attributes of youth would be stronger, as opposed to someone who is 17 and a half or 17 and three-quarters, where they are much closer to an adult age." "And the defendant, being only 16 and a half years old at the time, was certainly more susceptible to be influenced by someone like [the gang member with whom he was living] than, perhaps, he would have been had he been 19 or 20 years old, and would have been in a better position to break off that relationship and go off on his own, if he were 19 or 20 years old, where he was un[able] to do that at age 16 and a half. So again, that is, obviously, a mitigating factor, and is part of the hallmarks of youth cited in Miller, where a minor is unable to escape their environment." Thus, the court viewed defendant's age as a factor weighing in favor of the relief requested in his petition.
The court recounted the sentencing court's observation that "during the course of the trial, tapes were played of the defendant's interview with the arresting detectives after his arrest, and [the sentencing judge] found the defendant to be . . . holding his own in spar[r]ing with the interviewing detectives." Thus, the only evidence on the issue of defendant's capacity in dealing with police, prosecutors, and defense counsel weighed against him.
Here, the court took into consideration all relevant evidence regarding the five applicable factors when sentencing a juvenile offender to LWOP. The court conducted a proper analysis in determining defendant displayed "irreparable corruption under Miller, which would justify the sentence of life without the possibility of parole."
In light of the passage of Senate Bill No. 394, which was signed into law on October 11, 2017, and became effective on January 1, 2018, we note defendant will become eligible for parole in his 25th year of incarceration despite his nominal LWOP sentence. Section 3051, subdivision (b)(4) now provides: "A person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." --------
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.