PEOPLE v. MOFFETT:

Respondent’s Petition for Review

Cal.November 20, 2012

S206771 eo le Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF - CALIFORNIA, Plaintiff and Respondent, Vv. ANDREW L. MOFFETT, Defendant and Appellant. SUPREME COURT FILED NOV 20 2012 Frank A. McGuire Clerk Deputy First Appellate District, Division Five, Case No. A133032 Contra Costa County Superior Court, Case No. 051378-8 The Honorable Laurel Brady, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. SULLIVAN - Supervising Deputy Attorney General RENE A, CHACON Supervising Deputy Attorney General DAVID M. BASKIND Deputy Attorney General State Bar No. 208883 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-1308 Fax: (415) 703-1234 Email: David.Baskind@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Tssue Presented ...........ccccccccsccssesseeceessecennaeeeeeeescceecneeseessusesseneesereeseseseussegeess 1 Statement of the Case and Facts...ceceeesessseeesseeseeeceneeesessensseesenssssassensegs 1 Reasons for REViCW.........ccceeseceesesecseeeeneeteneeseceeseeeseeeessscesuaeecseusaeeeecaseeesenegs 3 This court should grant review to resolve the conflict in the Court of Appeal...eeeeceessseeenreeesenseesereesessenenees 3 A. Review is necessary to resolve the conflict in decisions on the constitutionality of section LOO eecescscececseesecceeceeeseeessecesaueeeeeseeieetieeersseseeesenes 5 B. Review is necessary in light of the unresolved issue of retroactivity Of Miller... .cceceesseesseeneeneees 9 C. Review is necessary to allow a clear standard in resentencing defendants pursuant to Penal Code section 1170, subdivision (d) as amended by SB. Qo. ccecesceessecssecssscecseceeeeesresseecceseseseesessesenesesstseaaseaes 9 CONCIUSION........ceccceceesseeesscecesscenateecesseeseeeeeenscesneaseeseaseeesaseneeeessnenstseneettasees 1] TABLE OF AUTHORITIES Page CASES People v. Moffett (2012) 209 Cal.App.4th 1465, 148 Cal.Rptr.3d 47.0... ccesesceseeeseeeeneees 4,8 Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 78 CalRptr.2d 819... eeecsseseseneereereeensens 8 Miller v. Alabama (2012) 567 U.S. , 132 S.Ct. 2455eeeceeereseteeeeeeeseessasneeseeeespassim People v. Blackwell (2011) 202 Cal.App.4th 144, 134 Cal.Rptr.3d 608.0... ceccseeteeseeeeeeneeees 1 People v. Guinn (1994) 28 Cal.App.4th 1130, 33 Cal.Rptr.2d 791cececeseeeereeeeeeeseees 1,8 People v. Gutierrez (2012) 209 Cal.App.4th 646, 147 Cal.Rptr.3d 249.0...eseseeeeeeees 3, 4,8 People v. Ybarra (2008) 166 Cal.App.4th 1069, 83 Cal.Rptr.3d 340.0... ceeseeseeseseereeseees 1,6 Schriro v. Summerlin (2004) 542 U.S. 348occcceesesceseeseeneeseeseseseesececeessesseesesseseeessneesseeeessseseenens 9 il STATUTES Penal Code § BTo ec ecccccccscssccscescesececsesecseeesseaessecsecaesecacesseaceeseaecseeeeesaesssasneessesseesesseatensees 2 § 190.2, subd. (8)(7)....cseseesseesescesecsseseeeseeseeseneeseeeeesesececseseeearsaesatsesaseateeaees 2 § 190.2, subd. (€)(15)ccc cccececssceecssssseececetceseeseesaseaesseseacersaeesaseneeessacecaeeerees 2 § 190.2, subd. (2)(17)(A) ....ceeeecceccecsseseeeeeseeereceseceseseeesacnesaeesssnsenestenessetenees 2 § 190.3, SUDA. (1) oo... eeeeecceeseesetcecceceeeneeneceseeaetseeeeseneseeeseeeeeeeeseteeesaees veeeneees 6 § 190.5. cecccccscssesccsscsscsesscessesseseceecesecesseneceeeseaesscesaceseseaceeeseessseaensenatees 1, 5,6 § 190.5, subd. (D) oo.eeeeeeeseseeeeeeeeeeeeeeeenesaseeeeessecenenseceseeseseasenaneeessspassim § QLceccceessecseeceeeeeseecneceeeeceeereceeesesseeeseeeaeesaeesseaseeegueeesseeseeceeneaeensaaeeee 2 § 212.5, SUD. (C).... eee eeeereecsetsecceeeseeeeeeeeeseeceeesacensnersesessessesaessueessscesaseneeee 2 § 664. ceccccccccssccssseceseesescsnescessseseesecucenseaeeasecesseseesaceeesaeesssresssseeseeeseessserensaeeees 2 § 1170, subd. (d) we.ecseceeseceeeeeceeeseseeeeeseraeeeeeeaeeeeessssesseeseeetsensaaeees 9, 10 § 1170, subd. (d)(2)(E)......ccecccccssessceseceeceeeseceseeseeecaeesaeeeassaseseaeansseseaaenees 4,10 § 12022.53, sub. (D) on.eccceceeeeseeeeeeceetsetenesceseseeseaseseaseeeeteeesenesereeeeeee 2 § 12022.53, SUDA. (C)...cceeesccceseeseeececeeseseceetersecescessesaesssestseecessesseusessesseeesees 2 § 12022.53, subd. (C) occeesesseeecceeeceeeeeseeeseeseneesseerecsessessueseesessseseseeseesees 2 Vehicle Code § 10851, SUD. (€).....ccccccsscescsssssscsescsesesessseseccnesesessescsesasacseseesecsseeeseasaeseeeensees 2 Welfare and Institutions Code § 707, subds. (b), (Q)(1) oe. ee ce ccecceecssessenceeeseesceeeeseeesesaeeeacsesseceeeseesessetsesneeeeee 1 CONSTITUTIONAL PROVISIONS United States Constitution Eighth AMeNndMent.......cceeeeceseeesscesececececeessetseeesseceesesersaeesesenerserteeaee 3,4, 5,8 COURT RULES California Rules of Court TU] 8.500 oo. eeeecccecesecsncceccceoscsseccccccceceseesececssssecsnecsvesevessssuseseeceeeeseesscesscaseeeras 1 TUle 8.50O(D)(1) ..cceseeccscssessseesesseeeceesceeccaneeeseeeessseeaceseesseesseeesseeeteseaaraeseeaeeees 3 ul Respondentrespectfully petitions for review of the decision of the Court of Appeal for the First Appellate District, Division Five. (Exhibit A.) The Court of Appeal issued its decision on October 12, 2012. The decision is published at 209 Cal.App.4th 1465. Nopetition for rehearing wasfiled. This petition is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUE PRESENTED Does Penal Code section 190.5, subdivision (b), violate the prohibition on mandatory termsoflife without parole for minors (Millerv. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455])? STATEMENT OF THE CASE AND FACTS Penal Codesection 190.5, subdivision (b), provides that the penalty for a defendant who was16 or 17 years old when he committed special circumstance first degree murder “shall be confinementin the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” The Court of Appeal has consistently interpreted this subdivision as making LWOPthe “presumptive sentence,” while also givingtrial courts the discretion to impose the lesser term of 25 years to life. (See, e.g., People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089 [83 Cal.Rptr.3d 340, 358]; People v. Guinn (1994) 28 Cal.App.4th 1130, 1145 [33 Cal.Rptr.2d 791, 799] [“Penal Code section 190.5 provides a presumptive penalty of LWOPfor a 16— or 17—year—old special circumstances murderer....”]; People v. Blackwell (2011) 202 Cal.App.4th 144, 154 [134 Cal.Rptr.3d 608, 617].) . ~ Appellant was four days shy of his 18th birthday when he committed the crimes in this case. (17CT 4668 [probation officer’s report indicates appellant’s date of birth is April 27, 1987].) He was charged as an adult pursuant to Welfare and Institutions Code section 707, subdivisions(b), (d)(1). A five-count information charged him and codefendant Alexander Hamilton with (1) first degree murder (Pen. Code, § 187, further statutory referencesare to this code unless otherwise stated), with three robbery special circumstances (§ 190.2, subd. (a)(17)(A)), a peace-officer special circumstance (§ 190.2, subd. (a)(7)), and as to Hamilton, a lying-in- wait special circumstance (§ 190.2, subd. (a)(15)); (2-4) second degree robbery (§§ 211, 212.5, subd. (c)); and (7) unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). Counts 1 through 4 alleged that appellant personally used a firearm (§ 12022.53, subd. (b)). Counts 5 and 6 charged Hamilton with premeditated attempted murder (§§ 187, 664); and counts 1 through 6 alleged that Hamilton personally used a firearm (§ 12022.53, subd. (b)), intentionally discharged a firearm (§ 12022.53, subd.(c)), and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). (4CT 994-1000.)! On August 13, 2007, the jury found defendants guilty as charged.It found the murderto be in the first degree. And it foundall special circumstances and enhancements true. (14CT 3939-3941; 33RT 7296— 7314.) On September 11, 2007, after a separate penaltytrial, the jury returned a verdict of death as to Hamilton. (15CT 4235.) On November 2, 2007,the trial court entered a judgment of death. (L6RT 4307-4314, 4324- 4327.) On July 24, 2008,the trial court sentenced appellant to 24 years pluslife without the possibility of parole (LWOP). (17CT 4655-4660, 34RT 7759-7764.) On appellant’s appeal from the judgmentin case no. A122763, the Court of Appeal reversed the peace-officer special circumstance. The court " The Court of Appeal (No. A133032) granted appellant’s request for judicial notice of the recordin his previous appeal (No. A122763). References to Clerk’s and Reporter’s Transcripts with volume numbers are to the record in the first appeal. References to transcripts without a volume numberare to the second appeal. remanded for resentencing on counts two, three, and four, and affirmed in all other respects. On July 22, 2011, the trial court resentenced appellantto 24 years plus LWOP. (CT 108-109, 114-117; RT 73-78.) On appellant’s second appealin this case, the Court of Appeal held that the presumptive LWOPsentenceprovidedin section 190.5, subdivision (b), violates the Eighth Amendmentas interpreted by Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller). The Court of Appeal vacated the sentence and remanded the matterso thetrial court could resentence appellant to either 25 years to life or LWOP. REASONS FOR REVIEW THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT IN THE COURT OF APPEAL The People respectfully request review of the Court of Appeal’s opinion “to secure uniformity of decision or to settle an important question of law.” (California Rules of Court, rule 8.500(b)(1).) The United States Supreme Court in Miller v. Alabama, supra, 567 U.S. _ [132 S.Ct. 2455] (Miller) recently held a mandatory LWOP sentence violates the Eighth Amendmentright of minors because the sentence does not encompassconsideration by thetrial court of “their age and age-related characteristics and the nature oftheir crimes.” (Miller, supra, 132 S.Ct. at p. 2475.) On September 24, 2012, the Second District of the Court of Appeal held that because section 190.5, subdivision (b), givestrial courts the discretion to impose a term of 25 years to life with the possibility of parole, it is not a mandatory LWOPterm within the ambit ofMiller. (Peoplev. Gutierrez (2012) 209 Cal.App.4th 646, 659 [147 Cal.Rptr.3d 249, 260] (Gutierrez), petn. for review pending,petn. filed Nov. 2, 2012, $206365.) Less than three weekslater, the First District of the Court of Appeal cameto the opposite conclusion in the present matter and did not address Gutierrez. The court held that “Ta] presumption in favor of LWOP,such as that applied in this case, is contrary to the spirit, if not the letter, of Miller. ...° (People v. Moffett (2012) 209 Cal.App.4th 1465 [148 Cal.Rptr.3d 47, 55] (Moffett).) It vacated the sentence and remandedso the trial court could resentence appellant without a presumption in favor of imposing LWOP. This Court should grant review becausethe opinions of the First and Second Districts of the Court of Appeal conflict on the constitutionality of section 190.5, subdivision (b), under the Eighth Amendment. Unless the conflictis resolved, trial courts will not know whatstandard to apply when choosing between 25 years to life or LWOP for 16 and 17-year-old special- circumstancefirst degree murderers. Resolution of the conflict by a grant of review would be dispositive of the present matter and similar non-final cases in a matter of significant importance in the administration of California’s sentencing laws. Moreover, unless thedecisional conflict is resolved, prisoners with final judgments ofLWOP imposedpursuant to section 190.5, subdivision (b), can be expected to seek resentencing by asserting that Miller promulgated a new substantive rule that applies retroactively in California cases. Lastly, review is necessary in light of the recent enactment of S.B. 9, which gives most minors sentenced to LWOPtheright to petition for a resentencing hearing after 15 years. That new Statutory right is retroactive and requiresthe trial court to exercise its discretion “in the same manneras if the defendant had not previously been sentenced.” (§ 1170, subd. (d)(2)(E), eff. Jan. 1, 2013.) Trial courts will need to know what standard to employ when resentencing defendants who were sentenced pursuantto section 190.5, subdivision (b), more than 15 years ago. Therefore, this Court should grant review to resolve whether the presumptive LWOPterm in section 190.5, subdivision (b), violates Miller. A. Review Is Necessary to Resolve the Conflict in Decisions on the Constitutionality of Section 190.5 The Miller court summarizedits holding in the following passage: The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or Jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U.S. ——, ——, ——,, 130 S.Ct. 2011, 2026-2027, 2029-2030 (2010), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold that mandatory life without parole for those under the age of 18 at the time oftheir crimesviolates the Eighth Amendment’s prohibition on “cruel and unusual punishments.” (Miller, supra, 132 S.Ct. at p. 2460.) Appellant was convicted of special-circumstance first degree murder. Thetrial court twice sentenced appellant to LWOPpursuantto section 190.5, subdivision (b), recognizing its discretion to impose a term of 25 years to life. It found no compelling reason to depart from the presumptive LWOPterm. Appellant’s circumstancesplainly differ from those of the defendants in Miller. Those differences are highly significant to the Eighth Amendmentissue. First, the 14-year-old defendants in Miller committed their crimes whenthey weresubstantially younger than appellant—who wasliterally days away from his 18th birthday. Second, the sentences invalidated in Miller were imposedby a court that lacked authority to give a sentence other than LWOP. Bycontrast, appellant was sentenced under section 190.5, subdivision (b), which authorized the trial court to impose a life term with the possibility of parole. Third, unlike the sentencing court in Miller, appellant’s sentencing authority was allowed to consider whether his “youth and its attendant characteristics, along with the nature ofhis crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate,” and,if it so concluded,it was free to impose that lesser sentence. (Miller, supra, 132 S.Ct. at p. 2460.) ‘Despite that statutory preference [for LWOP], section 190.5, subdivision (b) requires ‘a proper exercise of discretion in choosing whetherto grant leniency and imposethe lesser penalty of 25 years to life for 16-year-old or 17-year-old special circumstance murderers. The choice whetherto grant leniency of necessity involves an assessment of what, in logic, would mitigate or not mitigate the crime. The factors listed in [former] rules 421 [now 4.421] and 423 [now 4.423], implementing the determinate sentencing law, do not lose their logical relevance to the issue of mitigation merely because [this is not] a determinate sentencing matter.’ (People v. Guinn [1994] 28 Cal.App.4th [1130,] 1149, 33 Cal.Rptr.2d 791.) (People v. Ybarra, supra, 166 Cal.App.4th at p. 1089, footnotes omitted.) Unlike the law struck down in Miller, section 190.5, subdivision (b), expressly authorizesa life term with the possibility of parole. Not only was the trial court allowed to consider that sentence in this case, the court expressly did considerit. The trial court commenced the pronouncement of sentence bystating, “One of the central issues today is whether or not the Court will exercise discretion pursuant to Penal Code Section 190.5 and deviate from the statutory requirementoflife without the possibility of parole and sentence Mr. Moffett to a... term of 25 years to life.” (RT 73.) Clearly,the trial court was well aware ofits discretion not to impose LWOP. (See § 190.3, subd. (i).) It was likewise aware of its authority to take appellant’s youth into consideration. Thetrial court expressly considered appellant’s age, the nature of the crimes, and mitigating and aggravating factors. (RT 75-77.) It also complied with Miller’s requirementthat “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” (Miller, supra, 132 S.Ct. at p. 2475.) Appellant was allowed to speak directly to the trial court. (RT 54-55.) Defense counsel argued extensively for the lesser sentence, emphasizing that appellant was not the actual killer and did not intend to kill the victim. (RT 62-73.) Counsel asserted: “[C]omparedto the adult murder[er], a juvenile who did not intend to kill has a twice diminished moral culpability.” (RT 68.) Noting that appellant “wasslightly under eighteen years old at the time,” the trial court concluded“his actions on that day, coupled with his criminal history, do not support, in my opinion, this Court exercising discretion and sentencing him to” the lesser term. (RT 77.) Numerous aggravating factors convincedthetrial court that LWOP wasthe appropriate sentence: (1) Appellant held a gun to cashier Rima Bosso’s head andthreatened to kill her. As a result, she was fearful night and day, and the event “changedherlife profoundly and forever.” (RT 75.) (2) The two bank robbery victims also suffered after the robberies. (/bid.) (3) Officer Lasater’s death was a traumatic event for both his family and his community. (RT 76.) (4) Appellant was an active and aggressive participant in the crimes leading up to the shooting. (/bid.) (5) Appellant’s juvenile record contained four entries, including assault with a deadly weapon. (/bid.) (6) Appellant’s “performance on probation was marginal at best.” (/bid.) And (7), appellant’s actions “were not those of an irresponsible child. They were the very adult, very violent acts of a young man....” (RT 77.) Despite the fact that the trial court expressly exercised its discretion not to imposea sentence oflife with the possibility of parole, the First District of the Court of Appeal found the LWOPsentencein this case violates Miller’s prohibition of mandatory LWOPterms. (Moffett, supra, 148 Cal.Rptr.3d at p. 55.) The Court of Appeal overreachedin its interpretation ofMiller. Indeed, Miller cites section 190.5, subdivision (b), as an example of one of the “[f]ifteen jurisdictions [that] make life without parole discretionary for juveniles.” (Miller, supra, 132 S.Ct. at p. 2471, in. 10, italics added.) The high court’s reference to the California statute as a discretionary statute, even if deemedto be dicta, refutes the Court of Appeal’s opinion that section 190.5, subdivision (b), “is contrary to the spirit, if not the letter, of Miller... .” (Moffett, supra, 148 Cal.Rptr.3dat p. 55; see Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 [78 Cal.Rptr.2d 819, 822] [“Even if properly characterized as dictum, statements of the Supreme Court should be considered persuasive.”].) The “letter” ofMiller showssection 190.5, subdivision (b), is not considered by the Supreme Court to be a mandatory LWOPsentencing statute for purposes of the Eighth Amendment. The Court of Appeal had no need to divine Miller’s “spirit.” In Gutierrez, the Second District of the Court of Appeal recognized the crucial distinction that justifies review of this case: “Unlike Miller, appellant’s LWOPsentence was not mandatory. Appellant was sentenced pursuantto section 190.5, subdivision (b).... The statute does not require a mandatory LWOPsentence andvests sentencing courts with the discretion to sentence the defendant to a term of 25 years to life with possibility of parole. It does not violate the proscription against cruel or unusual punishment. ([People v. Guinn, supra, 28 Cal.App.4th] at pp. 1143-1144, 33 Cal.Rptr.2d 791.)” (People v. Gutierrez, supra, 209 Cal.App.4th at p. 659 [147 Cal.Rptr.3d at p. 260].) B. Review Is Necessary in Light of the Unresolved Issue of Retroactivity of Miller Newssources estimate approximately 300 California prisoners may be serving LWOPfor crimes committed when they were minors.” Presumably, many or most of these convictions are now final. Those prisoners can be expected to seek retroactive application ofMiller. While a determination of whether Miller applies retroactively is beyond the scope of this case, Moffett’s invalidation of section 190.5, subdivision (b), might lead to fewer LWOPtermsand, potentially, to retroactive application of Miller. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352.) Werethis Court to grant review and reverse, Moffett would not © provide a basis for resentencing—regardless ofMiller’s retroactivity. Accordingly, this Court should grant review not only to resolve the proper interpretation of section 190.5, subdivision (b), in light ofMiller,but to minimize litigation over Miller’s application to final judgments. C. Review Is Necessary to Allow a Clear Standard in Resentencing Defendants Pursuant to Penal Code Section 1170, Subdivision (d) as AmendedbyS.B. 9 The Governor recently signed S.B. 9. The statute amendssection — 1170, subdivision (d), to allow most minors serving LWOPto petition the court to resentenceto a term oflife with parole after service ofat least 15 years of the sentence. S.B. 9 is expressly retroactive to all defendants currently serving a juvenile LWOP sentence. However, it does not apply in cases where the victim was a peaceofficer. Appellant was convicted of special-circumstance first degree murder of a peace officer. Therefore, the amendmentto section 1170, subdivision (d), does not apply to his case. Nevertheless, the Court of Appeal’s opinion * See . . remains highly relevant to current and future juvenile LWOPprisoners who will petition for resentencing. As amended, section 1170, subdivision (d)(2)(E), provides that resentencing will take place “in the same mannerasifthe defendant had not reviously been sentenced.” In the case of defendants sentenced pursuantp y p > Beginning January 1, 2013, section 1170, subdivision (d), will provide,in part: “(2)(A)(i) When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonmentfor life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing. “(ii) Notwithstanding clause(i), this paragraph shall not apply to defendants sentencedto life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim wasa public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed bythe federal government,the state, or any ofits political subdivisions. “(B) The defendant shall file the original petition with the sentencing court.... “(E) If the court finds by a preponderanceofthe evidence that the statements in the petition are true, the court shall hold a hearing to consider whetherto recall the sentence and commitment previously ordered and to resentence the defendant in the same manneras if the defendant had not previously been sentenced, provided that the new sentence,if any, is not greater than the initial sentence. Victims, or victim family members if the victim is deceased, shall retain the rights to participate in the hearing.... “(J) This subdivision shall have retroactive application.” 10 to section 190.5, subdivision (b), trial courts will have to decide whether or not the LWOP presumption should be applied to any resentencing. Manyofthe reported 300 California prisoners serving LWOPterms for crimes committed as a minor presumably will have served 15 years of their sentence and beeligible to petition for resentencing on January 1, 2013. An expeditious resolution of the division in the Court of Appeal over the constitutionality of section 190.5, subdivision (b) is neededso thattrial courts know whether to employ the LWOP presumption. Therefore, this Court should grant review so trial courts can be assured ofusing the correct standard when resentencing prisoners affected by S.B. 9. CONCLUSION For the reasons discussed above,petitioner respectfully requests that this Court grant review in this matter. Dated: November20, 2012 Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General RENE A. CHACON Supervising Deputy Attorney General HUEL DAVID M. BASKIND Deputy Attorney General Attorneysfor Respondent DMB:er SF2011202751 20651149.doc 11 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 3,234 words. (California Rules of Court, rule 8.504(d)(1).) Dated: November 20, 2012 KAMALAD. HARRIS Attorney General of California Moe AVID M. BASKIND Deputy Attorney General Attorneysfor Respondent EXHIBIT A Filed 10/12/12. CERTIFIED FOR PUBLICATION IN THE. COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE : THE PEOPLE, | Plaintiff and Respondent, 4133032 | Dy v. ANDREW LAWRENCE MOFFETT, (Contra Costa County S . Ct. No. 051378-8 Defendant and Appellant. uper ° ) Andrew Lawrence Moffett was 17 years old when he and an accomplice committed anarmed robbery and his accomplice shot and killed a police officer during their attempt to escape. He appeals from a judgment sentencing him to life without the possibility of parole (LWOP) for his convictionoffirst degree murder with felony- murder special circumstances, arguing that the sentence amounts to cruel and unusual punishment. (Pen. Code, §§ 187, subd. (a); 189; 190.2, subd. (a)(17).)' We conclude that the case must be remandedfor resentencing in light of the recent United States Supreme Court decision in Miller v. Alabama (2012) 567 U.S. [132 S.Ct. 2455] (Miller). . 1. BACKGROUND A. Underlying Facts Elijah Moorestole a white Toyota Camry at appellant’s request in exchange for some marijuana. On April 23, 2005, Moore delivered the Camry to appellant, who was with Alexander Hamilton. Later that same day, appellantand Hamilton drove the Camry to a Raley’s supermarketin Pittsburg, which was having a grand reopening celebration. ' Further statutory references are to the Penal Code unless otherwise indicated. 1 They entered the store shortly before 5:47 p.m., wearing facial coverings and carrying semi-automatic handguns. Appellant ran to a checkout stand manned by RimaBosso, pointed the gun at her head and demandedthat she give him the money. Bossoinitially thought it was a joke by one ofher coworkers, but whensherealized the situation was serious, she became flustered and could not get the register drawer to open. Appellant put his gun up againsther left ear and repeatedly demanded the money,telling her “Come _ on, bitch. Comeon, bitch. You’re taking too fucking long.” The drawer finally opened and Bosso put about $800 in a bag. Bossoclosed her eyes becauseshe thought appellant was going to shoot her, but when she opened them he had run away. As appellant was robbing Bosso, Hamilton approached a Wells Fargo bank counter inside the Raley’s, where bankers Anjila Sanehi and Adrianna Beaman were sitting at the counter helping customers. Hamilton stood between the two customers (one of whom waswith her 12-year-old daughter) and pointed the gun back and forth between Sanehi and Beaman. He focused on Beaman,telling her, “Bitch, give me the moneyorI will shoot you.” Beaman and Sanehi both put money in a bag that Hamilton was carrying. Appellant and Hamilton ran out ofthe store, dropping some money justoutside the exit. They got inside the Camry, sped out of the parking lot, and drove through a nearby residential neighborhood. A few minuteslater, the car crashed into the back of a pickup truck parked on the street. Appellant and Hamilton got out of the car and a neighbor saw appellant (the taller of the two) drop and pick up a gun. Another neighbor started to chase them asthey ran through a cul-de-sac, but he was warnedoffby the neighbor who had seen the gun. Appellant told the neighbor who was chasing them, “Stop or I'll cap you, motherfucker.” Appellant and Hamilton continued running through the yards of several homesnear the Delta de Anza Trail, scaling fences as they went. Shortly after the robbery, police officers responded to the Raley’s while others drove the likely escape routes. Information about the car crash andsuspects running on foot near the Delta de Anza Trail was broadcast over the police radio. Pittsburg Police Officers Larry Lasater and John Florance drove their patrol cars as far as they could and then got out and ran a couple of hundred yards down a path until they reachedthetrail. Theofficers surveyed the trail with their backs toward one another, with Officer Lasater looking east and Officer Florance looking west. Officer Lasater said, “Is that some one down there?” and Officer Florence turned around and saw a dark figure standing in some trees and greenery that was south of the trail. The figure disappeared into the greenery and Officer Lasater started running, calling out, ““Black male, black sweatshirt.” Officer Florance heard the sound of a fence being hopped and Officer Lasater quickly stopped and drew his weapon. Officer Florance saw Officer Lasater walking heel-to-toe toward the area where the figure had disappeared, holding his gun out in front of him. Officer Lasater pointed his gun downwardand shouted, “Show me your hands.” Hamilton, who was lying down in the bushes, fired several shots at Officer Lasater, one of whichshattered a vertebrae in his neck, and another of which went through his calf. Officer Lasater collapsed and ultimately died of the neck wound. A numberof other officers came to the sceneto assist in capturing the shooter and moving Officer Lasater from the area where he hadfallen. Hamilton fired shots at two other officers until his gun ran out of ammunition, at which point he droppedhis gun, crawled out of the grass, and was taken into custody. Meanwhile, appellant had jumped the fence adjacentto the site of the shooting and had run through the backyard of Elizabeth Huyuck. Huyuck did not hear gunshots until after he ran through her yard. She noticed a dark sweatshirt caught on her backyard fence and some cash on the ground near the fence. Another neighbor, Jerilynn Privratsky, heard the soundof a helicopter andstarted to go to her backyard via her garage to see what was happening. She saw a bare-chested young African-American man start to come into her garage and yelled, “No!” The man ran across the street. A numberof other neighbors in the area also saw a young,shirtless African-American man running thoughthe streets and backyards. Appellant, whois African American, was eventually discovered lying shirtless in a backyard in a fetal position under a tree. When police apprehended him (about 50 minutesafter the first robbery dispatch) he said “Don’t kill me,” and surrendered unarmed.. Atleast one ofhis wrists was bleeding. Larry Pitts lived in the neighborhood where appellant was apprehended but was out of town on the day of the robbery. When he returned home the following evening, he noticed that the gate to his yard was open and that some dirt had been pulled out of one of his flower pots. The next morning he checked the flower pot and discovered a handgun buried under about six inches of soil. The gun was fully loaded automatic with a bullet in the chamber. . After the police recoveredthe gun from Pitts, they searched the backyard next door. Inside a garbage can they found a white plastic bag with $4027 cash and a black shirt. Blood matching appellant’s DNA was discovered onthe plastic bag containing the cash and ontop of the garbage can lid. The black shirt also had a mixed sample bloodstain consistent with appellant’s DNA,although that match was to a much lower probability (one in 1100 African Americans versus one in 4.9 quadrillion African Americans) than the other bloodstains. | It had been raining on the day of the robbery, and muddy shoeprints consistent with the shoes worn by appellant when he was arrested were discovered in many of the backyards in the area. Shoe prints consistent with Hamilton’s shoes were foundas well. Those shoe prints, along with damaged and muddiedfences, a bloody palm print on a gate, and discardedlatex gloves similar to those used in the robbery enabledthe police to trace appellant’s path offlight from the car crash to the backyard where he wasarrested. Oneof appellant’s shoeprints was found about 10 feet from the gun that Officer Lasater had dropped when he wasshot. Forensic testing showed that gunshot residue was present on appellant’s hands after his arrest, which indicated that he had fired a gun, was near a gun whenit wasfired, or had handleda gun or other object contaminated with gunshotresidue. A cell phone recovered a few feet away from where Officer Lasater was shot was traced to appellant and contained Elijah Moore’s telephone number. A dark hooded sweatshirt with blood on the left arm cuff was found on or near the fence adjacent to the site of the shooting. The blood on the cuff of the sweatshirt appeared to correspondto a wound on appellant’s wrist at the time ofhis arrest. No DNA type could be developed from the sample on the sweatshirt. Appellant’s teenage cousin, Brian Berry, was inside the Raley’s whenit was robbed. After he learned from his mother that appellant had been arrested for the robbery and shooting,he told police that he had heard one of the robbers saying, “Shut up, bitch,” and thought the voice soundedlike appellant’s. Berry later denied that the robber’s voice was familiar to him. B. Trial and Conviction The Contra Costa District Attorney charged appellant and Hamilton with first degree murderwith special circumstances and other related charges, and soughtthe death penalty against Hamilton. Appellant wasnoteligible for the death penalty because he was under 18 at the time of the offenses. (See § 190.5, subds. (a) & (b).) Following a jointtrial with Hamilton, appellant was convicted of one countoffirst degree murder, three counts of second degree robbery and one countofdriving a stolen vehicle. (Pen. Code, §§ 187, 211; Veh. Code, § 10851.) The jury also found true three felony-murderspecial circumstance allegations, one killing of a peace officer special circumstance allegation, and firearm use allegations as to the murder and robbery counts. (Pen. Code, §§ 190.2, subds. (a)(7) & (a)(17), 12022.53, subd. (b).) The jury returned the same verdict as to Hamilton and additionally found him guilty of two counts of attempted murder and foundtrue a lying-in-wait special circumstance allegation. Appellant received a sentence of LWOP on the murder count, plus a 10-year enhancementfor the firearm use allegation attached to that count. The court also imposed a consecutive sentence for one of the robbery counts and the attached firearm use enhancement, along with concurrent sentences on the remaining two robbery counts and enhancements. Sentence on the stolen vehicle count was stayed. Hamilton received the death penalty. C. First Appeal | Appellant filed an appeal from the judgmentin his case, raising a number of claims oftrial and sentencing error. In an unpublished opinion, this court reversed the peace officer special circumstance because, as the People conceded, there was no substantial evidence that appellant acted with an intent to kill. (People v. Andrew Lawrence Moffett (Nov. 9, 2010, A122763) [nonpub. opn.].) We remandedthe case to the superior court for resentencing so the court could consider whether an LWOP sentence was appropriate in light of the reversal of one of the special circumstances, and additionally directed the court to correct sentencing errors on the robbery counts. (Jbid.) In light of this remand, we foundit unnecessary to reach a claim by appellant that an ~ LWOPsentence amounts to cruel and unusual punishment when imposed on a defendant who wasa juvenileat the time of the offense. | D. Sentencing Hearing on Remand | Defense counselfiled a written sentencing statement arguing that appellant would be subjected to cruel and unusual punishmentif the court imposed an LWOP sentence on remand. At the resentencing hearing, counsel argued that the court should consider reducing the first degree murder conviction to second degree murder, or alternatively, should impose a sentence affording appellant the chance to obtain parole at some future date. Counsel emphasized appellant’s youth and his lack of any intent to kill, arguing that those circumstances resulted in a “twice diminished moral culpability.” (See Graham v. Florida (2010) 560 U.S. __ [130 S.Ct. 2011, 2027] (Graham) [describing culpability ofjuvenile convicted of non-homicide offense].) The prosecution argued that the court should again sentence appellant to LWOP on the murder count, and statements urging the imposition of an LWOP sentence were made by Officer Lasater’s mother, widow, and brother, as well as one ofhis police officer colleagues. The court prefaced its imposition of sentence bynoting, “Oneofthe central issues today is whether or not the court will exercise discretion pursuant to Penal Code section 190.5 and deviate from the statutory requirementoflife without the possibility of parole and sentence Mr. Moffett to a determinate term of 25 yearsto life. We are not here today to debate the legality of the felony murder rule, nor can we engage ina philosophical discussion aboutits merits. It is the currentstate of the law in California. [{] The law also provides discretion for the trial court in certain limited circumstances such as this where the defendant in a capital case was a juveniletried as an adult.” After pronouncing sentence on the robbery and stolen vehicle counts, the court turned to the murder conviction: “As for Count 1, Mr. Moffett was under the age of eighteen by just a few monthsatthe time ofthis incident, thus the court hasdiscretion regarding sentencing.[{] ... . [{] Sometimes with the passage of time, people tend to forget or minimize the impact of incidents such as this. But the impactis just as vivid and continues for the victims and the victims’ families and that doesn’t change.[{] The testimony of Rima Bosso,the robbery victim in Count 2, was extremely profound. She testified that the individual who waslater identified as Mr. Moffett, took his gun, put it to her head andthreatened to kill her with it. Not only did she see her own death that day, but she said for years afterwards and up until and as of the day shetestified in thetrial, she lived in a house wherethe curtains werepulled shut, the doors were locked. She - didn’t go out. She was fearful day and night. The trauma damagedherrelationship with her family. It has changedherlife profoundly and forever. She will-never be the same. The fact that she was not physically harmed does not mean that she was not profoundly affected. Her testimony was very compelling. [{] The other two robbery victims described similar experiences. I take all of this into account in determining the appropriate sentence. “As for Officer Lasater’s family, there’s probably no way to describe in words the traumatic effect of this event, nor on the larger community that he was a part of. Mr. Moffett was very actively — he very actively participated in a series of events, starting with the theft of the car at his request by Elijah Moore; the takeover style robbery of the Raley’s store and the bank window;the wild drive and crash in a nearby neighborhood; the confrontationof a resident where Mr. Moffett told him, ‘Stop or (Ul cap you’; and the shooting of Officer Lasater by Mr. Hamilton shortly thereafter. [{] Mr. Moffett’s role was not a passive role nor was he a peripheral player as compared with those factual scenarios described in the cases cited by the defense in their sentencing memorandum. “I will note that although we don’t know exactly where Mr. Moffett was when Mr. Hamilton shot Officer Lasater, the police found gun residue on Mr. Moffett’s hands, meaning that even if he did notfire the weapon,he was close to it when it was fired; shoe prints matching Mr. Moffett’s ten feet away from where Officer Lasater fell; and Mr. Moffett’s cell phone a few feet away from Officer Lasater. [{]] The actions taken that day by Mr. Moffett are not those of someone who didn’t know what was going on or who wasled by others. | “T’ve also considered Mr. Moffett’s juvenile criminal history. There were four entries, including a felony, 245(a)(1) Penal Code, assault with a deadly weapon. It was noted that his performance on probation was marginal at best. The juvenile justice system has infinitely more resources than the adult system. And it appears those resources were not sufficiently taken advantage of to choose a different path. “The actions taken by Mr. Moffett on the day of this event were not those of an irresponsible child. They were the very adult, very violent acts of a young man who showed no regard for the impactof his actions on the victim in this case. I might add that his actions on that day also have had a profoundeffect anddirectly affected his own family and loved ones. Although Mr. Moffett was slightly under eighteen years old at the time, his actions on that day, coupled with his criminal history, do not support, in my opinion, this Court exercising[its] discretion and sentencing him to a determinate [sic] term of twenty-five yearsto life. I do not find that sentence appropriate in this particular case under the circumstancesofthis case, takinginto account everything that is in front of me. [{] On Count1, I will sentence Mr. Moffett to life without the possibility of parole. I will impose the ten year enhancementfora weapon pursuant to Penal Code section 12022.53(b) to run consecutiveto the other determinate sentences. . .” As to the remaining convictions, the court imposed a consecutive four-year “midterm” for the robbery in count 2 (victim: Rima Bosso) along with a consecutive ten- year enhancement undersection 12022.53, subdivision (b). Four-year “middle” terms and ten-year enhancements were imposed for the robberiesin counts 3 and 4 and ordered to run concurrently; sentence on the stolen vehicle count was stayed under section 654. E. Appealfrom the Sentence on Remand In this appeal from the sentence imposed on remand, appellant filed an opening brief arguing that (1) the LWOP term amounted to cruel and unusual punishment under the state and federal Constitutions because he was a juvenile at the time, was not the actual shooter, and did not intend to kill (U.S. Const., 8th & 14th Amend.; Cal. Const., art. I, § 17); (2) the court abused its discretion whenit declined to impose the lesser term — of 25 years to life under Penal Codesection 190.5, subdivision (b); and (3) the consecutive sentence imposed for the robbery conviction under count 2 was unauthorized - because the court selected the “midterm of four years” whereas the sentencing range for second degree robbery is two,three, or five years. After briefing was complete, the United States Supreme Court issued its decision in Miller, supra, 567 U.S. __ [132 S.Ct. 2455], in which it held that a mandatory LWOP sentence in a homicide case violates the Eighth Amendment’s prohibition of cruel and unusual punishment when applied to a defendant who wasless than 18 years of age at the time of the offense. In a supplemental brief discussing the effect of the Miller decision, appellant arguesthat (1) he is not the “rare juvenile offender” suitable for an LWOP sentence under Miller; and (2) the superior court employed an unconstitutional presumption infavor of LWOP whenexercising its discretion under section 190.5, subdivision (b) at the resentencing. Il. DISCUSSION The Eighth Amendmentofthe federal Constitution (applicable to the states through the Fourteenth Amendment) prohibits the infliction of “cruel and unusual punishment.” (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 727.) This provision “guarantees individuals the right not to be subjected to excessive sanctions” (Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper)) and “flows from the basic ‘precept ofjustice that punishment for crime should be graduated and proportioned’”to both the offense and the offender (ibid). “The concept of proportionality is central to the Eighth Amendment.” (Graham, supra, 560 U.S. atp.___ [130 S.Ct. at p. 2021].) Cases addressing the proportionality of sentences have fallen into two general classifications: challenges to the length of a term-of-years sentence as disproportionate in a particular case, and categorical challenges to the type of sentence imposedin certain types of cases, against a certain type of defendant. (Graham, supra, 560 US. atp.___ [130 S.Ct. at pp. 2021-2022].) With respect to defendants who were juveniles at the time of the offense, the Supreme Court has found that the cruel and unusual punishmentclause categorically bars the imposition ofthe death penalty (Roper, supra, 543 U.S.at pp. 572- 573), as well as the imposition of an LWOPterm in cases where the crimesare nonhomicide offenses (Graham, supra, 560 U.S. atp.___ [130 S.Ct. at p. 2033]; see also People v. Caballero (2012) 55 Cal.4th 262 [sentenceof | 10 years to life for nonhomicide offenses was equivalent of LWOPandviolated U.S. Const., 8th Amend.]). In Miller, supra, 567 U.S. __ [132 S.Ct. 2455], the high court considered the _ sentences of two murder defendants who were 14 years old when they committed their crimes and who were sentenced to LWOPterms that were mandatory understate law. It held: “The Eighth Amendmentforbids a sentencing scheme that mandateslife in prison without the possibility of parole for juvenile offenders. [Citation.] By making youth (and all that accompaniesit) irrelevant to imposition ofthat harshest prison sentence, such a schemeposes too great a risk of disproportionate punishment.” (Miller, at p. 2469.) The court discussed in great detail the reasons that juveniles are “constitutionally different” than adults for sentencing purposes, including their lack of maturity and undeveloped sense of responsibility; their vulnerability to outside pressure and negative influences; their limited control over their own environment and their inability to extricate themselves from crime-producing settings; and their greater ability to change due totheir possession of a characterthat is not as “well formed”as an adult’s. (/d. at p. 2464.) Appellant was 17 years old when he committed the crimes in this case. His sentence for special circumstance murder was governed by section 190.5, subdivision (b), which provides: “The penaltyfor a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances .. . has been foundto be true... who was 16 years of age or older and under the age of 18 years at the time of the 10 commission of the crime, shall be confinementin the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” Section 190.5 allows the court to impose LWOPor25 yearsto life in cases where the defendant was 16 or 17 years old at the time of the offense; for defendants who were 15 years of age or younger, LWOP maynot be imposedat all. (People v. Demirdjian (2006) 144 Cal.App.4th 10, 17.) Section 190.5, subdivision (b) differs from the mandatory schemes found unconstitutional in Miller, becauseit gives the court the discretion to impose a term that affords the possibility of parole in lieu of an LWOPsentence. But, as appellant notes, the statute has been judicially construedto establish a presumption that LWOPis the | appropriate term for a 16- or 17-year-old defendant. In People v. Guinn (1994) 28 ‘Cal.App.4th 1130, the court interpreted section 190.5, subdivision (b) 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 choosethe less severe sentence of 25 years to life” (Guinn, at p. 1141), and further describes the statute asmaking LWOP the “generally mandatory” punishment for a youthful special circumstance murderer(id. at p. 1142). Other decisions (including one by this district), have characterized LWOPas the “presumptive” sentence under section 190.5, subdivision (b). (See People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Blackwell (2011) 202 Cal.App.4th 144, 159 (Blackwell); People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089.) The presumption in favor of LWOP wasapplied by the sentencing court in this case. The court prefaced the imposition of sentence by stating, “Oneofthe central issues today is whether or not the court will exercise discretion pursuant to Penal Code section 190.5 and deviate from the statutory requirementoflife without the possibility of parole.” It concluded by explaining, “Although Mr. Moffett was slightly under eighteen years oldat the time, his actions that day, coupled with his criminalhistory, do not support, in my opinion, this Court exercising discretion and sentencing him toa... term of twenty-five yearsto life.” 1] A presumption in favor of LWOP,such as that applied in this case, is contrary to the spirit, if notthe letter, of Miller, which cautions that LWOPsentences should be “uncommon” given the “great difficulty. . . of distinguishing at this early age between ‘the juvenile offender whose crimereflects unfortunate yet transient immaturity, and the rare juvenile offender whose crimereflects irreparable corruption.’ ” (Miller, supra, 567 U.S. atp. _ [132 S.Ct. at p. 2469].) Though Miller did not categorically bar LWOP sentences in juvenile homicide cases,it recognizes that juveniles are different from adults in ways that “counsel against irrevocably sentencing them to a lifetime in prison.” ([bid.) Treating LWOPasthe default sentence takes the premise in Miller that such sentences should berarities and turns that premise on its head, instead placing the burden on a youthful defendant to affirmatively demonstrate that he or she deserves an opportunity for parole. Weconclude remandis necessary so the court can consider the appropriate sentence on the murder count without reference to a presumption in favor of LWOP. - While we do notfault the sentencing court for applying a presumption that reflected the law as it stood at the time of the sentencing hearing, the court did not exercise its discretion under section 190.5, subdivision (b) with the benefit of the Miller opinion. Other comments by the court at the resentencing hearing convince us that remand is appropriate. . In response to defense counsel’s observation that appellant had been convicted under the felony murderrule, the court stated, “We are not here today to debate the legality of the felony murderrule, nor can-we engagein a philosophical discussion about its merits. It is the current state of the law in California.” Though the court was correct that appellant was properly convicted offirst degree felony murder underthe law ofthis state, Miller makes clear that when a court is contemplating an LWOPsentence for a juvenile defendant, it should consider whether the defendant was the actual killer or intended tokill, noting that a juvenile who “ ‘did notkill or intend to kill has a twice diminished moral culpability.’ ” (Miller, supra. 567 U.S. at p.___ [132 S.Ct. at p. 2468], quoting Graham, supra, 560 U.S. atp.___‘ [130 S.Ct. at p. 2027].) On remand, weare 12 confident the court will give appropriate weightto the fact that appellant was a non-killer convicted under the felony-murderrule. Wealso note that the trial court placed great reliance on the trauma causedto the robbery victims in this case when determining the appropriate sentence for the murder count. Though appellant’s conduct during the robbery bears on whether he was an active participant in and instigator of the criminal conductthat led to the shooting (which in turn bears on whether he was influenced byothers), the psychological reactions of the robbery victims do not say much aboutappellant’s maturity, prospects for reform, or mentalstate with respect to the homicideitself—the factors paramount under Miller. (Miller, supra, 567 U.S. atp.__ [132 S.Ct. at p. 2468].) Finally, when considering appellant’s previous criminal history, the trial court mistakenly characterized a juvenile adjudicationfor assault as a felony, when it was designated a misdemeanor. On remand,the court can consider appellant’s record without this misapprehension. Appellant argues that instead of a remand for resentencing, we should direct the court to impose a sentence of 25 yearsto life, because his is not that rare case suitable for an LWOPsentence. He emphasizes that he was convicted of murder underthe felony- murderrule, and did not kill or intend to kill Officer Lasater. We disagree. | The Miller court disapproved of mandatory LWOPsentencesfor juvenile defendants convicted of homicide offenses, but it declined to consider the defendants’ alternative argument that the Eighth Amendmentcategorically bars LWOPsentencesfor juveniles, even for those who were 14 years of age or youngerat the time oftheir offenses. (Miller, supra, 567 U.S. atp.___ [132 S.Ct. at p. 2469].) “Our decision does not categorically bar a penalty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” (132 S.Ct. at p. 2471.) 13 Appellant is correct that the evidence attrial was insufficient to establish that he intended to kill Officer Lasater.” But, by finding the felony-murder special circumstances to be true, the jury necessarily determinedthat appellant wasat least a major participant in the underlying robbery who acted with reckless indifference to humanlife. (§ 190.2, subd. (d); People v. Estrada (1995) 11 Cal.4th 568; 575; see also Tison v. Arizona (1987) 481 US. 137.) “Such conduct, even when committed by a person whois 16 or 17 years of age, is highly culpable and may justify an LWOPsentence.” (Blackwell, supra, 202 Cal.App.4th at p. 157.) Though two ofthe justices in Miller signed a concurring opinion indicating that an LWOPsentence would be unconstitutional if applied to a juvenile defendant who wasnotthe actual killer and did notintend to kill, the majority did not adopt such a bright-line rule. (See Miller, supra, 567U.S. at pp. __ [132 S.Ct.at pp. 2475-2477[conc. opn. of Breyer, J.].) Instead, it concluded that a sentencing court must considerthis “twice diminished moral culpability” when making its sentencing decision. (/d. at p. 2468-2469.) We expect the court in this case will do so on remand, though we express no opinion as to what the ultimate sentence should be whenthis factor is taken into account.” _ As the People concede, the court imposed a four-year consecutive sentenceas the purported middle term for the robbery charged in count 2, whereas the actual middle term for second degree robbery is three years. (§ 213, subd. (a)(2) (“Robbery of the second degree is punishable by imprisonmentin the state prison for two,three, or five years.”].) | The court also imposed four-year concurrent terms for the robberies in counts 3 and 4. On remand, any middle-term sentence imposed for robbery must be three rather than four years. * As previously noted, the Attorney General conceded as much and agreed that the killing of a peace officer special circumstance undersection 190.2, subdivision (a)(7) had to be reversed based on the lack of intent to kill. (§ 190.2, subds. (c) & (d).) > For the reasonsstated in our previous opinion (No. A122763), we deny appellant’s request that the case be remandedto a different judge for resentencing. 14 Il. DISPOSITION The sentence is vacated and the case is remanded for resentencing consistent with the views expressed in Miller and in this opinion. Although the focus of this appeal has been the sentence on the murder conviction, the court on remand may reconsider the entire sentence so long as it does not imposea total term in excess ofthe original sentence. (People v. Lai (2006) 138 Cal.App.4th 1227, 1235; People v. Burns (1984) 158 Cal.App.3d 1178, 1184.) Should the court again elect to impose the middle term on any of the robbery counts, that term must be three years as provided bystatute. 15 NEEDHAM,J. We concur. SIMONS,Acting P. J. BRUINIERS,J. (4133032) 16 People v. Moffett A133032 Trial court: Contra Costa County Superior Court Trial judge: Hon. Laurel S. Brady Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, René A. Chacon, Supervising Deputy Attorney General and David M. Baskind, Deputy Attorney General, for Plaintiff and Respondent. DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Moffett First Appellate District No.: A133032 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. Iam 18 years of age or older and not a party to this matter. [ am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On November20, 2012, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: . Joseph C. Shipp First District Appellate Project Attorney at Law Attn: Executive Director P.O. Box 20347 730 Harrison St., Room 201 Oakland, CA 94620 San Francisco, CA 94107 (2 copies) County of Contra Costa Clerk, California Court of Appeal Main Courthouse First Appellate District, Division Five Superior Court of California 350 McAllister Street P.O. Box 911 San Francisco, CA 94102 Martinez, CA 94553 | The Honorable Mark Peterson District Attorney Contra Costa County District Attorney's Office 900 WardStreet Martinez, CA 94553 I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on November20, 2012, at San Francisco, California. E. Rios EFEn Declarant Signature $F2011202751 20651974.doc