PEOPLE v. MOFFETT:Respondent’s Reply Brief on the MeritsCal.June 21, 2013(® (er eer QL118 aN 4 A Jn the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. ANDREW LAWRENCE MOFFETT, Defendant and Appellant. Case No. S$206771 First Appellate District, Division Five, Case No. A133032 Contra Costa County Superior Court, Case No. 051378-8 supReME COURT The Honorable Laurel Brady, Judge FILED JUN 21 2013 RESPONDENT’S REPLY BRIEF KAMALA D. HARRIS Frank A. McGuire Clerk Deputy Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAWRENCEM.DANIELS 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 Trntroduction.........ccccsceccseseceseeeecsecsneceeeseeeessneecsseeseseseecsaseeesensaseasasessaaeeesneeeags 1 ATQUMENEeeeeee eeneeeneeeeneeseeeseeecsseeceseecssneesseseseeseeeeseseersuesseesieanenassrased 3 I. The LWOPpresumption does not violate Miller...3 Il. There is no need for resentencing on the murder count because the LWOPpresumptionis constitutional and the trial court complied with Miller’s sentencing QUICELINES 00...eee eeneecenee ence reneeeenecenssesaeeceeaeeeseseneeetnaeeratenaees 9 Ill. Thetrial court’s mistaken reference to Moffett’s prior assault as a felony was harmless.........cccseeessseesseeessseeesetens 15 A. Thetrial court considered Moffett’s “twice- diminished culpability” 0.0... eeseeeeseeeesteeeeeteesees 16 B. Thetrial court properly considered how Moffett’s conduct impacted his victim... 20 C. Thetrial court mistakenly described Moffett’s prior assault as a felony, but it was harmless............ 22 IV. Moffett’s facial challenge to the constitutionality of LWOPtermsfor juvenile murderers is not within the scope of the issue ON TEVIEW 0.0...eeeteetapeseteeeee 29 V. Remand to the Court of Appeal is appropriate so it can consider whetherthetrial court abused its sentencing discretion, violated Moffett’s right to equal protection, or imposed a cruel and unusual punishment... 26 COncClUSION........cesccccsscecseesnececneeeceenneeesneetseeeseeeeeseecsasecsaeeeessaeseuseenseeessseseaees 28 TABLE OF AUTHORITIES Page CASES Boyde v. California (1990) 494 U.S. 370 wieeecccteeseceereesetenecseeeeeeneeseeeterecienetacineeneresneets 6 Burden v. Snowden (1992) 2 Cal.4th 556... cccccscseeeeseneetesseeeteseseneenenaseesnesesesies 26, 27 Chapman v. California (1967) 386 U.S. 18 cee eceeseeseeecseceeeneeneeenectesieterseresneeesnessnsnseneenens 19 Daugherty v. State (Fla. Dist. Ct. App. 2012) 96 So.3d 1076 [2012 WL 6116103] occceecceseeteeeeseneneeteseeenenertcsnenestererererienens 14 Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011]...ceceeseteeeeeeerereereneees passim Jackson v. Norris (2013) 2013 Ark. 175 ecceseescseeeeeeeeseseeesseserseesetersenereresasieneeerens 15 Johnson v. Texas (1993) 509 U.S. 350 oerwacecaueceeeesesecssaeeteneeterersaeeesatonss 7, 8, 18 Miller v. Alabama (2012) 567 U.S. [132 S.Ct. 2455]. ecceceeeseeeeeeterteteeneneees passim People v. Alvarado (2001) 87 Cal.App.4th 178 .....cccccecseseseeseeeesesenesneetenereressesenererenases 11 People v. Brady (2010) 50 Cal4th 547 .eceeccscsescssssesssesrssesessecssssssneseesnesneneseeneneeesaners 21 People v. Caballero (2012) 55 Cal.4th 262ic cccccceseesenecneseseeseeseseesenecereeenesienereneees 10 People v. Dillon (1983) 34 Cal.3d 441 cessesreceneessneeesenenseeseietereneeesereneness 11 il TABLE OF AUTHORITIES (continued) Page People v. Evans (2008) 44 Cal.4th 590oeeee eeeeeeseececeeeeeeeneeeaeerseeaeeeesaeeneees 13 People v. Guinn (1994) 28 Cal.App.4th 1130weeteres eereenees 4,5, 12, 26 People v. Lewis (2006) 39 Cal.4th 970 oo. ceeecsecesesceeseceeessetsetseseessecnesesresseassaeesesserees 21 People v. Navarro (2007) 40 Cal.4th 668 oo... cece eeeeeeeeeseeesscsesseseesnesseeseessesetieesnseeeees 11 People v. Nelson (2011) 51 Cal.4th 198oeee ceeceeeeeseressesseseensessessesseessessessessereneeas 21 People v. Odle (1951) 37 Cal.2d 52 vec ceccccesecneececseceneessecnnerseeeeseeeessssseeeseasennsees 11 People v. Osband (1996) 13 Cal.4th 622 oo. cceeceeeeceecesesseessecnseseessessanssessseeeeenees 24 People v. Perez (2005) 35 Cal.4th 1219eeeesssssserecseesesssseseseseesnesseenesSener 29 People v. Scott (1994) 9 Cal.4th 331eeeeeceececse cess seecesenesseesessessececseteeenens 21,22 People v. Statum (2002) 28 Cal.4th 682 oo...eceen esse esseeeneeeeeseeseanseeeeneeesesseeeees 22, 23 People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 occcesenencsceseeeseceessesssessessesssenesteenseneenees 5,8 People v. Watson (1956) 46 Cal.2d 818cecesseeersseescnesessesssssecsessesseresseseesess 21, 24 People v. Whitt (1990) 51 Cal.3d 620 occeeeeeeeerersetseseetessesceneceneseseenseessenesseey 19, 24 ill TABLE OF AUTHORITIES (continued) Page People v. Ybarra (2008) 166 Cal.App.4th 1069 oo... ceceeetrter rene teereseeeneeseeeees 4,5, 12 Roper v. Simmons (2005) 543 U.S. 551 vececceesesseseseneeeteeeeeeeeseeerereeerseeserssesessenenenanetes 3 Sen v. State (Wyo. 2013) 301 P.3d 106 [2013 WL L7T4953 1]... eeeeeeteeersseeeenetees 15 Stringer v. Black (1992) 503 U.S. 222 vicecccccccseseseceneeeeteteereeteneeetneneteeeteeeeesteaenenaegs 19 STATUTES Health and Safety Code § 40000.11, subd. (b) occcece cceceneeseeee ete reeneneteeneeeenenerecnenesseneesue 2d Penal Code § 17, SUbA. (b)eee eceeesetesceneneceeeeecseeenerenseneneessstsessenseresssseseneeeeetones 22 § 190.3 cccccccccectstceecersceescsseerscsesenenenecsesensieeetenssnenseerecisiereensesssesenees 8, 12 § 190.3, SUDA.(1) oe eee escesecesereneeeneeeeeeeteneeeeneaeteteeesssenneseneneereesatacey 4,5 § 190.5 cecccscecseteeeesseescseeseseeenscenscsesenesastessereneesesedeeesseneesseneneaspassim § 190.5, subdivision (b)...........leseetcusaseeseveeesnensuscerronccenseoeeesss passim § 245, SUbA. (A)(L)...seeeeesesesesesereteeeeeeteteeesesseeretsteneeseserereeesseneaeneates 22 CONSTITUTIONAL PROVISIONS California Constitution article 1, § 17 w.cceceececcsesscresesseesessseseeeenecisenecneenersesseseeseseseenenseenent® 25 United States Constitution Eighth Amendment........ccccceecerenee tester erereneeseeees 2, 3, 7,25, 27 COURT RULES California Rules of Court ULC 4.423 .ooccccccccsccceeccceccecevecevecceccececceseceeseeeceeeesereeneesunaasnessaaanagaa 5,8, 12 PUle 8.516(a)(2) c.cececceerceccereseeescseeneceeeeseeneenssteeestesteeeessesnseseenssnassesenas 26 tule 8.520(D)(3)...cccceseseceeceesceressseeeseeeesacseeneeeeeeeceeereerereessseneciaas 25, 26 iv INTRODUCTION This Court granted respondent’s petition for review to resolve one discrete question: Does Penal Code section 190.5, subdivision (b), violate the prohibition on mandatory life without parole (““LWOP”) sentences for juveniles set forth in Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller)?' As discussed in respondent’s opening brief, the answer is no. California law does not violate the federal Constitution. Miller requires only that juveniles be permitted to present mitigating factors; that sentencing courts consider the nature of the crime and the youth of the offender; and that sentencing courts have the discretion to imposea lesser term. Section 190.5, subdivision (b), clearly meetsall of thosecriteria. Moffett spends only ten pages of his answering brief addressing the main issue before this Court. (Appellant’s Answering Brief (‘AAB”) 19— 29 [Argument I.C.].) He contendsthat section 190.5, subdivision (b), violates the federal Constitution because the LWOPpresumption places an improper burden of production and persuasion on the juvenile defendant. According to Moffett, Supreme Court law teachesthat the presumption should always be against imposing an LWOPterm on juveniles. (AAB 28.) California’s sentencing scheme, however, excludes the vast majority of juvenile murderers from even being eligible for an LWOPterm. Nothing in Miller suggests that California cannot prefer LWOPfor the small class of juveniles who commit the most egregious murders. Moreover, Miller requires only that juvenile murderers have an opportunity for a lesser term. And California requires sentencing courts to considerall relevant factors, including youth, in imposing a sentence. Therefore, since section 190.5, subdivision (b), gives sentencing courts the’ discretion to impose a lesser ' Further statutory referencesare to the Penal Code unless otherwise indicated. term, it does not violate Miller’s ban on mandatory LWOPtermsfor juveniles. Moffett’s ArgumentsII, III, and IV are unmeritorious and only concern extraneous matters. (AAB 30-69.) In ArgumentII, Moffett argues that even if section 190.5, subdivision (b), is constitutional, this Court should remand for resentencing because Miller sets forth useful principles to guide the sentencing court. However, there waseither error or there was not. As nothing in the sentencing here violated the rule of Miller orits principles, remandis inappropriate. In ArgumentIII, Moffett argues that this Court should remandfor resentencing because thetrial court’s sentencing determination was affected by three mistakes of fact. However, the trial court’s only substantive error wascharacterizing Moffett’s prior assault adjudication as a felony rather than a misdemeanor. That mistake was surely harmlesssince the relevant aspect of the prior was the conduct—not whether it was denominated as a felony or misdemeanor. Indeed,it is likely that the crime had been designated as a misdemeanorsolelyto facilitate a plea agreement. In Argument IV, Moffett contends that this Court should find thathis LWOPsentenceviolates the proportionality tests of the Eighth Amendment and the California Constitution. That argumentis plainly beyond the scope of the issue that this Court granted review on. Finally, in Argument V, Moffett argues that the Court of Appeal did not reach alternative attacks on his LWOPsentence, including that it was cruel and unusual. However,that court implicitly rejected Moffett’s proportionality argument by denying Moffett’s requestthatit direct a sentence of 25 yearsto life. (Typed Opn.at p. 13.) Nevertheless, remand is appropriate so the Court of Appeal can fully considerall of the claims that it did not reach becauseit erroneously found Miller error. In sum, California’s sentencing scheme for juvenile murderers does not offend Miller and thetrial court below properly imposed an LWOP term on Moffett. That sentence was appropriate because Moffett planned and orchestrated an extremely dangerous robbery of a crowded supermarket and bank. He wielded a fully loaded semiautomatic pistol. He held that gun up to the head of a cashier andlater threatened to shoot a bystander. Either Moffett prodded codefendant Hamilton to flee from the police and then left him behind when Officer Lasater approached or else Hamilton shot Lasater to prevent him from arresting Moffett. Either way, Moffett shared responsibility for the officer’s death. Moreover, to the extent Hamilton was the actual killer and a few monthsolder than Moffett, Hamilton received a proportionately greater sentence—death. Accordingly, Moffett was properly sentenced to an appropriate term andthere is no need for the trial court to determine Moffett’s murder sentence for a third time. ARGUMENT I. THE LWOP PRESUMPTION DOES NOT VIOLATE MILLER Miller held “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments’” because it does not allow sentencing courts to make individualized sentencing determinations for those facing the most serious punishment. (Miller, supra, 132 S.Ct. at p. 2460.) The most serious punishment for juveniles convicted of murderis life without the possibility of parole (LWOP). (Roper v. Simmons (2005) 543. U.S. 551, 578 (Roper) [death penalty unconstitutional for juveniles]; Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011, 2034] (Graham) [LWOPunconstitutional for juveniles convicted of nonhomicide offenses].) Section 190.5, subdivision (b), makes LWOPthe presumptive term for a sixteen- or seventeen-year-old convicted of special circumstance murder. (People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089 (Ybarra); People v. Guinn (1994) 28 Cal.App.4th 1130, 1145 (Guinn).) Butit is not mandatory becauseit also gives trial courts the discretion to impose a term of 25 years to life. Nothing in that statute prevents a sentencing court from making an individualized sentencing determination. And otherprovisions of California law require sentencing courts to do exactly that. Therefore, section 190.5, subdivision (b), offends neither Miller’s requirementthat courts make individualized sentencing decisions before imposing the most severe punishments,norits prohibition on mandatory LWOPtermsfor minors. Moreover, California law is distinguishable from the lawsstruck downin Miller in every relevant way. For example, the Miller opinion begins: “[1] The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. [2] In neither case did the sentencing authority have any discretion to impose a different punishment. [3] 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, alongwith thenature ofhiscrime, madea lesser sentence (for example,life with the possibility of parole) more appropriate.” (Miller, supra, 132 S.Ct. at p. 2460.) First, in contrast with the state laws considered in Miller, 14-year-olds are not eligible for LWOPtermsin California. (§ 190.5.) Second, unlike the laws in Miller, California sentencing courts do havethe discretion to impose a lesser sentence. (Compare Miller, supra, 132 S.Ct. at p. 2461 (“Noting that ‘in view of [the] verdict, there’s only one possible punishment,” the judge sentenced Jacksonto life without parole.”] with § 190.5, subd. (b) [trial court has discretion to sentence juvenile to life with parole].) Andthird, unlike the laws in Miller, California law requires sentencing courts to consider mitigating factors such as youth. (§ 190.3, subd.(i); Cal. Rules of Court, rule 4.423; Ybarra, supra, 166 Cal.App.4that p. 1092; People v. Guinn, supra, 28 Cal.App.4th at pp. 1142-1143.) It also requires the sentencing court to imposea life term with the possibility of parole when that lesser sentence is more appropriate. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) Thus, California law clearly differs on every relevant ground from the Arkansas and Alabamalaws considered in Miller. Moffett contends that the LWOP presumption is inconsistent with the rationale underlying Miller. (AAB 13, 20.) According to Moffett, Miller requires courts to approach the imposition of LWOPterms on juveniles with “general penological doubt.” (AAB 20.) Moffett is correct that Miller advised that LWOPshould be imposed on juveniles sparingly. However, that does not compela rule in which there is a presumption against imposing LWOPon juveniles at every decision point. Miller requires only that the sentencing court have an “opportunity” to consider various mitigating factors (including youth) as well as the powerto imposea lesser punishment whenappropriate. (Miller, supra, 132 S.Ct. at p. 2475.) Even though California has an LWOPpreference for juvenile special circumstance murderers,it still requires sentencing courts to consider mitigating factors and it gives those courts the authority to impose the lesser term of 25 years to life. Therefore, section 190.5, subdivision (b), complies with Miller’s fundamental requirements. Further, several aspects of California law ensure that few juvenile defendants will ever reach the point where they will be subject to an LWOP | term. First and foremost, Miller left open the possibility that the two fourteen-year-olds considered there couldstill be sentenced to LWOP. (Miller, supra, 132 S.Ct. at p. 2455.) California, on the other hand,does not permit LWOPtermsfor anyone under sixteen years old. Thus, the defendants in Miller would be better off being sentenced in California than in a jurisdiction that had no LWOP presumption—but extended that punishmentto fourteen-year-olds or younger. In other words, California significantly narrowstheclass ofjuvenile murderers whoare eligible for LWOPbefore a sentencing court even considers the matter. Similarly, Miller does nothing to prohibit the discretionary imposition of LWOPterms on juveniles convicted of murder. Presumably, California could therefore impose LWOPterms on juveniles convicted of even second degree murder. However,California does not provide for LWOPterms for juveniles convicted of that crime. It is only when a sixteen- or seventeen- year-old juvenile commits first degree special circumstance murderthat he or she even becomeseligible for an LWOP term. At that point, California does provide a presumption in favor of that term. But nothing in Miller precludessuch a system. Indeed, California’s sentencing scheme is much more favorable to juvenile defendants whoare statutorily excluded from receiving LWOPthan juveniles in other jurisdictions whoareeligible for LWOP—buthave a more favorable burden of proof. Taken to its logical extreme, Moffett’s rule would prevent a state from preferring LWOP no matter how manypeople a juvenile killed. But, of course, making such choicesis exactly what states always do whenthey set degrees of crimes and concomitant punishment. (See Boyde v. California (1990) 494 US. 370, 377 [“there is no . . . constitutional requirement of unfettered sentencing discretion in the [trier of fact], and Statesare free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’”].) Therefore, if the goal is to make LWOPrare for minors, the most effective way to accomplish that is to statutorily limitits applicability. In short, Miller’s goal is to make LWOPtermsfor minorsrare, but that does not dictate a particular burden of proof. Rather, the Miller Court relies on the natural consequenceof requiring sentencing courts to make individualized determinations based on all relevant considerations, including those attendant to youth. (Miller, supra, 132 S.Ct. at p. 2471, fn. 10 [“when given the choice, sentencers impose life without parole on children relatively rarely.”].) California’s sentencing schemecategorically excludes a large portion ofjuvenile murderers—based on both the age of the minor as well as the nature of the crime. It then affords thetrial courts broad discretion to considerall relevant considerations, including youth, in determining whether defendants who are not categorically excluded from LWOPshould actually receive that sentence. In this manner, California fulfills the spirit as well as the letter of Miller. A capital case that the Miller Court relied on, Johnson v. Texas (1993) 509 U.S. 350, supports the proposition that under the Eighth Amendment,it is enough that a defendant’s youth be available for the sentencer’s consideration. In Johnson, the jury found the defendant guilty of capital murderandthetrial court held a penalty trial. Ud. at p. 354.) The jury was asked whether the defendant committed the murder deliberately, and whetherit was probable that he would constitute a continuing threat to society. The jury was alsotold that if the jury answered both questions affirmatively, the court would impose the death penalty. (/bid.) The jury answered affirmatively and the defendant appealed. (/d. at p. 358.) On appeal, “petitioner contend[ed] that the Texas sentencing system did not allow the jury to give adequate mitigating effect to the evidenceofhis youth.” (Ud. at p. 366.) The court concluded that “there is no reasonable likelihood that the jury would have founditself foreclosed from considering the relevant aspects of petitioner’s youth.” (d. at p. 368.) Thus, in Johnson, the Court found no constitutional error because the jury could have considered the defendant’s youth—even thoughit was neverinstructed that it could or should do so. And similarly, in its reliance on the principles of adult capital sentencing, Miller requires only that the juvenile “sentencer have the ability to consider the ‘mitigating qualities of youth.’” (See Miller, supra, 132 S.Ct. at pp. 2467-2468,italics added; AAB 23-24.) California’s system is therefore constitutional because it permits the sentencing court to consider the defendant’s youth andgives the court the power to imposea lesser term. Moffett argues that respondent has missed the point of Miller because California law does not require sentencing courts to consider the “distinctive Roper/Graham/Miller mitigating developmentalprinciples for juveniles ....” (AAB 26.) To the extent Moffett is suggesting that Miller requires sentencing courtsto tick off a list of possible mitigating factors attendant to youth before it can impose an LWOPterm,he is turning the rule on its head. The state does not have to prove that the sentencing court considered every possible mitigating factor; the defendant must prove that the sentencing court was precluded by law—orrefused to consider—his relevant mitigating evidence. (Miller, supra, 132 S.Ct. at p. 2475; see Johnson v. Texas, supra, 509 U.S. at p. 367.) Thus, the question hereis not whetherthe trial court gave adequate consideration to Moffett’s youth;it is whetherthetrial court was foreclosed from considering his youth. Clearly, it was not. | Moreover, as discussed in respondent’s opening brief, California law required the sentencing court to consider Moffett’s youth. (§ 190.3; Cal. Rules of Court, rule 4.423; People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978.) And contrary to Moffett’s argument, the trial court did not merely mention Moffett’s age. It categorically stated, “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....” (RT 77.) Thus, there can be no doubtthat thetrial court gave Moffett’s youth due consideration and simply foundthat his age did not explain or excuse his conduct. Finally in its opening brief, respondent noted several times that Miller expressly cited section 190.5, subdivision (b), as an example of a constitutional non-mandatory sentencing scheme. Though Moffett never acknowledgesor directly addresses that fact, in a slightly different context he does concede that Supreme Court dicta “is entitled to considerable deference.” (AAB 28, fn. 7.) That is certainly the case here. Not only did Miller specifically indicate that section 190.5, subdivision (b), was constitutional, that statute satisfies the express requirementsset forth in Miller. Respondent submits, therefore, that when the Supreme Court speaksthat plainly, this Court should not parse the Supreme Court’s opinion for a hidden meaning that supports an opposite result. II. THERE IS NO NEED FOR RESENTENCING ON THE MURDER COUNT BECAUSE THE LWOP PRESUMPTIONIS CONSTITUTIONAL AND THE TRIAL COURT COMPLIED WITH MILLER’S SENTENCING GUIDELINES Moffett argues that even if section 190.5, subdivision (b), is constitutional, Miller requires that this Court remand the mattersothetrial court can resentence him with the benefit of Miller’s sentencing guidance. (AAB 26-27, 30.) Not so. Miller does, of course, give relevant guidance on standards to be applied when courts consider whether to impose LWOP on a minor. However, remand for resentencing is required only when the trial court erred. As discussed above—and as Moffett concedes for purposesofthis argument (AAB 30)—California’s sentencing schemefor special circumstance juvenile murderersis constitutional. Therefore, there wasno Miller error and no reason for remand. In summarizing its analysis, Miller noted that mandatory LWOP terms for juveniles were unconstitutional because they did not allow sentencing courts to consider: (1) a defendant’s “chronological age andits hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences” (Miller, supra, 132 S.Ct. at p. 2468); (2) “the family and home environmentthat surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional” (ibid.); (3) “the circumstances of the homicide offense, including the extentofhis participation in the conduct and the way familial and peer pressures may have affected him”(ibid.); and (4) “that he might have been charged and convicted ofa lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) orhis incapacity to assist his own attorneys”(ibid. ). Moffett seems to argue that Miller established new sentencing guidelines that were previously unknown andunavailable to sentencing courts. However, Miller repeatedly declares that its repudiation of mandatory .WOPtermsfor juveniles naturally arose out ofits earlier sentencing jurisprudence—particularly Roper and Graham. (Miller, supra, 132 S.Ct. at pp. 2461-2462, 2463-2468; see People v. Caballero (2012) 55 Cal.4th 262, 267 [“In Miller, the United States Supreme Court extended Graham’s reasoning... .”].) “While Graham’s flat ban on life without parole was for nonhomicide crimes, nothing that Graham said about | children is crime-specific. Thus, its reasoning implicates any life-without- parole sentence for a juvenile, even as its categorical bar relates only to nonhomicide offenses. Most fundamentally, Graham insists that youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole.” (Miller, at p. 2458.) Furthermore, Miller explained, “Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” (Miller, supra, 132 S.Ct. at p. 2465.) Thus, Moffett’s suggestionthat the trial court could not have been awareofthese considerations without the benefit of Miller is incorrect. (See id. at p. 2464 10 (“Our decisions rested not only on common sense—on what‘any parent knows’—buton science andsocial science as well.”’].) Moreover, contrary to Moffett’s argument that Miller created newand unforeseen factors that must be considered on remand,this Court explained the relevance of factors relating to youth thirty years ago. In Peoplev. Dillon—which Moffett cites repeatedly—this Court stated that a proportionate sentence for youthful offenders should include a consideration of such factors as age, prior criminality, personal characteristics, and character. (People v. Dillon (1983) 34 Cal.3d 441, 479-482.) Most importantly, Moffett did not face a mandatory sentencing scheme. Andthetrial court had the opportunity to considerthe attributes attendant to youth discussed in Graham, Roper, and Dillon. Thus, there wasnoerror and there is no reason to remand. “‘The test for determining what action should be taken remains the same: wasthere prejudicial error in the proceedings? When,as in this case, the trial court is vested with discretion to determine the punishment . . . and there has been noerror,this court has no powerto substitute its judgmentfor thatof the trial court.’” (People v. Navarro (2007) 40 Cal.4th 668, 678, quoting People v. Odle (1951) 37 Cal.2d 52, 58-59; see People v. Alvarado (2001) 87 Cal.App.4th 178, 195, fn. 5 [remand necessary only if defendant can demonstrate that trial court misunderstood its sentencing discretion].) Furthermore, to the extent Moffett has an equitable claim in seeking resentencing,it bears repeating that Miller requires only the opportunity to present mitigating circumstancesrelating to youth, not a checklist for the trial court to mechanically put on the record. Thetrial court below was not under a misapprehensionthat it could not exerciseits discretion under section 190.5. It never expressed a belief that it could not consider Moffett’s upbringing, mental and emotional development, impetuosity, 11 ability to appreciate risks and consequences, or his potential for rehabilitation. Noris there any indication that the trial court excluded any proffered evidence of Moffett’s character, background,history, mental condition, or physical condition. On the contrary,the trial court considered everything Moffett presented—asit was required to do. (See Guinn, supra, 28 Cal.App.4th at pp. 1141-1143; Ybarra, supra, 166 Cal.App.4th at p. 1089; see Cal. Rules of Court, rule 4.423; § 190.3.) Moffett filed a sentencing memorandum requesting imposition ofthe lesser term of 25 yearstolife. (CT 62-81.) Moffett also filed a reply to the prosecution’s opposition to reducing the term from LWOPto 25 yearsto life. (CT 96-103.) In his sentencing memorandum, Moffett made extensive arguments about whyhis youth made the lower term more appropriate. (CT 66-76.) Moffett argued: “[A] lack of maturity and an underdevelopedsense of responsibility are found in youth moreoften than in adults... .” (CT 66.) “[Jjuveniles have less control, or less experience with control, over their own environment.” (CT 67.) “Mr. Moffett’s age at the time he committed the crimesis highly relevantto the analysis of the court imposing twenty five yearsto life.” (Ibid.) “‘{P]arts of the brain involved in behavior control continue to mature throughlate adolescence. Juveniles are more capable of change than are adults, and their actionsareless likely to be evidence of “irretrievably depraved character” than are the actionsof adults.’” (CT 68, quoting Graham, supra, 130 S.Ct. at pp. 2026-2027.) The young have “diminished culpability.” (CT 69.) “[I]t is requested that the court in fashioning a sentence. . . set forth a punishmentscaled to the age of Mr. Moffett.” (CT 80.) “In many cases, juvenile crimes are related to the impulsive and immature nature of youth .... [{] Accordingly,it is requested that this court not impose life without parole... .” (CT 81.) 12 Thetrial court stated at the sentencing hearing that it had read the sentencing briefs. (RT 42.) Thetrial court allowed Moffett to make an unsworn statement in mitigation even though he had no right to do so. (RT 54-55; see People v. Evans (2008) 44 Cal.4th 590, 600.) And defense counsel made an extensive argument regarding why Moffett should receive the lower sentence. (RT 62—73.) For example, counsel argued: “[W]e know that Andrew was a minorat the time it happened. We know... Andrewdid not pull the trigger.” (RT 67.) Moffett did not have the “specific intent to kill the officer.” (bid.) “[A]ge is the line we use.” (RT 68.) “{Y]outh is more than a chronological fact. It is [a] time and condition of life when a person may be more susceptible to influence andto psychological damage.” (/bid.) “I would argue to this Court that compared to the adult murder, a juvenile who did not intendto kill has a twice | diminished culpability.” (/bid.) After considering Moffett’s arguments,the trial court noted that Moffett’s actions “were not those of an irresponsible child. They were the very adult, very violent acts of a young man....” (RT 77.) The court concluded, “Although Mr. Moffett was slightly under eighteen years old at the time, his actions on that day, coupled with his criminalhistory, do not support, in my opinion, this Court exercising discretion and sentencing him to a determinate term of twenty-five years to life.” (/bid.) Thus, thetrial court considered Moffett’s arguments; it simply concluded that Moffett’s age and other circumstances did not excuse his behavior. In sum,the trial court had the opportunity to consider numerous circumstances in mitigation prior to sentencing. Morespecifically, it heard various arguments about why Moffett’s youth made a sentence of 25 years to life more appropriate. Accordingly, there can be no doubt that the sentencing hearing complied with the requirements of Miller. (Miller, supra, 132 S.Ct. at p. 2475.) 13 Moffett’s argumentto the contrary begs the question of what exactly this Court would remand for. Moffett already argued he should have the possibility of parole because he wasnotthe actual killer; he was a minor; he was immature; and he was capable of change. Certainly, if the exact same hearing were held today—with a nod to Miller—Moffett would have no basisfor relief. (See Miller, supra, 132 §.Ct. at p. 2468.) Nevertheless, Moffett insists that respondent focuses too much on Miller’ s proscription of mandatory LWOPtermsandfails to recognize the importance of Miller’s sentencing guidance. According to Moffett, respondentarguesthat “everything else Miller says beyond proscribing mandatory LWOPis meredicta.” (AAB 26.) Thatis not the case. Respondent acknowledgesthe value of Miller’s sentencing advice. Andif a sentencing court refuses to consider “Miller evidence,” that would be error. But here the sentencing court heard everything that Moffett wanted to say. And every indicationis that the court understood it could use that evidenceto impose the lesser term. Therefore, Moffett’s claim that thetrial court needed Miller’s sentencing guidance makeslittle sense. Moffett relies on three state cases to support his claim that remandis necessary in all instances when a court sentenced a juvenile to LWOP withoutfirst considering Miller. (AAB 30-31.) The first of these cases, Daugherty v. State (Fla. Dist. Ct. App. 2012) 96 So.3d 1076 [2012 WL 6116103], remandedsothetrial court could “conductfurther sentencing proceedings and expressly consider whether any of the numerous ‘distinctive attributes of youth’ referenced in Miller apply in this case ....” (Id. at p. 1080.) However, Daugherty never expressly found Miller error, nor did it suggest that Miller required remand. The remandappearsto have been no more than an exercise of the court’s discretionary power. In any case, an opinion by Florida’s lower appellate court—whichlacked any relevant analysis—is far from persuasive. 14 Moffett also claims that Sen v. State (Wyo. 2013) 301 P.3d 106 [2013 WL 1749531] stands for the proposition thatit is insufficient if a sentencing court considered somefactors relating to youth if it did not have the benefit of Miller’s guidance. (AAB 31.) However, Sen held that remand was necessary because Wyoming’s sentencing scheme was mandatory,i.e., there was Miller error. (2013 WL 1749531 at pp. 15-18.) Underthat circumstance, any “opportunity” to present mitigating evidence was a hollow procedure. In contrast, California trial courts are empowered (indeed, required) to hear and act on mitigating evidence when considering LWOPforjuveniles. Finally, Moffett cites Jackson v. Norris (2013) 2013 Ark. 175 (after remand by the Supreme Court) for the proposition that Miller error cannot be fixed by an appellate court. (AAB 31.) However, that case is inapplicable to Moffett. Since there was no Miller error here, remandis unnecessary. In sum, none of the reasons given by Moffett justify remand. As Moffett acknowledges, “after a lengthy trial and two sentencing hearings, there are no remaining material or supportable conflicts of historical fact warranting remandor deference here .... [R]Jemandfor further litigation is not appropriate here... .” (AAB 45; see also AAB 55 [Remand for further factfinding is not necessary on these facts... .”].) Ill. THE TRIAL COURT’S MISTAKEN REFERENCE TO MOFFETT’S PRIOR ASSAULT AS A FELONY WAS HARMLESS Moffett contends that this Court should remandfor resentencing because(1) the trial court failed to consider that he was a juvenile and not the actualkiller, i.e., he had “twice-diminished culpability”; (2) the trial court placed too much emphasis on the trauma suffered by a victim; and (3) the trial court mistakenly thought that Moffett had a prior adjudication for felony assault with a deadly weapon, but the assault wasactually a 15 misdemeanor. (AAB 34-35.) Only the first of these three assertions concerns Miller. The second and third simply involve an alleged abuse of sentencing discretion, not an alleged failure to consider factors mandated by Miller. Moreover, the sentencing court was aware of Moffett’s “twice- diminished culpability”; it acted well within its discretion to weigh the effects of Moffett’s threatening behavior; and thetrial court’s misstatement aboutthe nature of the prior assault adjudication was harmless. A. The Trial Court Considered Moffett’s “Twice- Diminished Culpability” Moffett contends that he should be resentencedsothetrial court can properly consider the fact of his “twice diminished culpability,” i.e., that he was a juvenile and notthe actual killer. (AAB 34.) However, defense counsel made that point in his sentencing memorandum (CT 68), and the trial court noted both facts at the sentencing hearing (RT 76-77). Moreover, the prosecution never suggested that Moffett was the actual killer. And respondent concededin the first appeal that there was no evidence that Moffett harbored the intent to kill Officer Lasater. Furthermore,thetrial court reasonably determined that Moffett was the person most responsible for creating the dangeroussituation that led to Officer Lasater’s death. Thetrial court explained that Moffett “very actively participated in a series of events, starting with the theft of the car ...; the takeover style robbery of the Raley’s store and the bank window;the wild drive and crash in a nearby neighborhood: the confrontation of a resident where Mr. Moffett told him, ‘Stop or I’ll cap you’; and the shooting of Officer Lasater....” (RT 76.) It is also worth noting that in Miller, defendant Jackson wasalso not the actual killer and there was no evidence that he intended to kill. (Miller, supra, 132 S.Ct. at pp. 2461, 2468.) Nevertheless, Miller expressly held that if the proper procedures were followed, the lower court could again 16 sentence Jackson to LWOP.(Jd. at p. 2469 [“we do not foreclose a sentencer’s ability to make that judgment”]; see also id. at p. 2471; but see id. at p. 2475 (concurring opinion of Breyer, J.).) If Arkansas could still impose an LWOPterm on Jackson,it is meritless to suggest that “the spirit of Miller” precludes California from doing the same to Moffett. Afterall, Jackson was much youngerthan Moffett. Jackson was unarmed, but Moffett carried a fully loaded semiautomatic weapon and usedit to threaten two people. And Jackson only joined the crime (perhaps unwittingly) at the Jast second, while Moffett planned and orchestrated the armed robberies. Moffett argues that court-appointed psychologist Larry Wornian ultimately determined that Moffett was competentto standtrial, but not before finding that he was a “profoundly immature adult.” (AAB 15, 32, citing 17 CT 4520.) Moffett neglects to mention, however, that Dr. Wornianretracted his initial evaluation and determination of incompetence. (34RT 7399.) Wornian concluded that he had been fooled with “deceit and manipulation” and that Moffett was “eminently competent.” (17CT 4574, boldface in original; see also 17CT 4562, 4566 [Dr. Paul Good found that two of three tests for malingering and additional competency tests showed that Moffett was intentionally withholding his best efforts].) Needless to say, evidence that Moffett malingered andinitially fooled an experienced psychiatrist demonstrated his cleverness and criminal sophistication. (See also 17CT 4567-4568 [Dr. Paul Good’s report listed seven observations which showed that Moffett was mature and sophisticated in his interactions with the police and legal system.].) Thus, contrary to Moffett’s argument, there was not “evidence of profound immaturity here... .” (AAB 33.) The evidence supportedthetrial court’s determination that Moffett had the cunning of a depraved adult. Moffett repeatedly asserts that respondent“insist[ed] the relevance of appellant’s age at just under 18 was‘virtually nil’ (RAOB 20)....” (AAB 17 33, 41, 54-55.) On the contrary, respondent argued that Moffett’s age was probative. That is why Moffett’s proximity to his eighteenth birthday was so important. In fact, Miller itself supports the relevant distinction at sentencing between 17-year-olds and 14-year-olds. In Miller, the court reiteratedits observation from Graham, supra, 130 S.Ct. at page 2026, “that ‘developments in psychology and brain science continue to show fundamental differences between juvenile andadult minds’—for example, in ‘parts of the brain involved in behaviorcontrol.’” (Miller, supra, 132 S.Ct. at p. at p. 2464.) It is implicit that brain development occurs on a somewhatlinear basis. Children do not have poorbehavior control when they are seventeen and then suddenly acquire the peak of their control on their eighteenth birthday. Undoubtedly, most people continue to develop their ability to control their behavior and gain the ability to foresee negative consequencesthroughouttheir lives. But in the realm ofjuvenile law, the day before a minor’s eighteenth birthday is the maximum relevantage. Thus, within that closed universe, it is presumed that someone approaching his eighteenth birthday is the most mature. (See Johnson v. Texas, supra, 509 U.S.at p. 368 [“The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in youngeryears can subside.”].) That fact supported the trial court’s determination that Moffett’s actions “were the very adult, very violent acts of a young man... .” (RT 77.) Indeed, Miller noted that a significant flaw in mandatory sentencing schemes wasthat they failed to distinguish between fourteen-year-old and seventeen-year-old murderers. “Our holding requires factfinders to attend to exactly such circumstances—to take into accountthe differences among defendants and crimes.” (Miller, supra, 132 S.Ct. at p. 2469, fn. 8.) 18 Accordingly, Moffett’s age was quite relevant: The fact that he was days shy of majority tended to prove that he was more mature and responsible than a child several years younger. | Finally, Miller observed that juveniles deserved individualized sentencing consideration because they had a “heightened capacity for change”and courts had “great difficulty .. . distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crimereflects irreparable corruption.’” (Miller, supra, 132 §.Ct. at p. 2469, quoting Roper, 543 U.S. at p. 573 and Graham, supra, 130 S.Ct. at p. 2026-2027.) Here, however, Moffett’s proximity to his eighteenth birthday meantthere wasthe least chance that his behavior reflected transient immaturity. Indeed,thetrial court implicitly found that Moffett was in the class of juveniles who were irreparably corrupt. After noting that Moffett had spent time in a juvenile facility and had done poorly onprobation,the trial court stated, “The juvenile justice system has infinitely more resources than the adult system. Andit appears those resources werenot sufficiently taken advantage of to choose a different path.” (RT 76-77.) In other words, the trial court believed that Moffett would not change. In sum, there can be no doubtthat the trial court had the opportunity to consider—and did consider—Moffett’s nominally “twice-diminished culpability.” It simply concluded that Moffett’s age neither excusedhis actions nor afforded any hope that he would change his ways. Thus, there was no Miller error. Moreover, evenifthe trial court fell short in form or substance, it is clear from its sentencing statements that any error was harmless beyond a reasonable doubt. (See Chapmanv. California (1967) 386 U.S. 18, 24; Stringer v. Black (1992) 503 U.S. 222, 230; People v. Whitt (1990) 51 Cal.3d 620, 647 [no need to remandfor resentencing when 19 it can be shown beyonda reasonable doubtthat a sentencing court would have imposed the samesentenceif the error had not occurred].) B. The Trial Court Properly Considered How Moffett’s Conduct Impacted His Victim The evidence showedthat Moffett went up to Raley’s cashier Rima Bosso andsaid, “‘Give me the money.’” When she paused, Moffett said, “Bitch, I said give me the money.’” Bosso panicked and could not open the register. Moffett put his gun up against her left ear, pushed her head with it, and repeated, “‘Give me the money.’” He also commanded, “‘Open the drawer, bitch. Open the drawer.’ But Bosso could not figure out why the drawer would not open. Moffett said, ““Come on, bitch. Come on, bitch. You’re taking too fucking long.’” (22RT 5034, 5044, 5084, 5154— 5156, 5161-5168, 5174, 5179, 5207; 23RT 5231-5232, 5334, 5340, 5347, 5349-5351, 5371-5372, 5396; 26RT 6008, 6029.) Bossofinally figured out what was not working, opened the drawer, and gave Moffett $800. Then Bosso closed her eyes because she thought Moffett would shoot and kill her. When she opened her eyes and saw that Moffett had run away, Bossofell to the floor and cried hysterically. (22RT 5168-5175; 23RT 5337.) | Thetrial court noted atthe first sentencing hearing that Bosso had indicated shelived in fear; she kept the curtains pulled and the doors locked at all times. Moreover, the incident had “changedherlife profoundly.” (34RT 7761-7762; see 22RT 5037, 5168-5175; 23RT 5337.) At the second sentencing hearing, the trial court reiterated that Bosso was fearful night and day and the event “changedherlife profoundly and forever.” (RT 75.) Moffett contends that he had a “lack of intent to harm anyone”and the trial court erred by placing heavy reliance on the trauma suffered by cashier Rima Bosso. (AAB 34-35, 38.) Moffett’s protestation of blamelessness 20 rings hollow. Indeed, his mental-state excuse underscores the relevance of the victim impact evidence that Bosso was harmed. In any case, Moffett forfeited this claim. Thetrial court stated thatit “ha[d] discretion regarding sentencing.” (RT 75.) The first aggravating factor it discussed was how Moffett’s conduct profoundly affected Bosso. (Ibid.) But Moffett did not object. (RT 75-78.) Therefore, he has forfeited this claim on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354 [‘“‘claims deemed waived on appeal involve sentences which, though otherwise permitted by law, were imposedin a procedurally or factually flawed manner.”’].) Moreover, there is no merit to Moffett’s claim. This Court has affirmed the relevance and constitutionality of victim impact evidenceat capital sentencing. (People v. Lewis (2006) 39 Cal.4th 970, 1066.) As discussed above and propounded by Moffett, the sentencing considerations (although not the procedures) that apply to adult capital defendants generally apply to juvenile defendants facing LWOP. (See Miller, supra, 132 S.Ct. at p. 2467 [juvenile life sentences are analogizedto capital punishment].) Therefore, just as victim impact evidence is admissible in capital penaltytrials (Peoplev. Brady (2010) 50 Cal.4th 547, 574), it should be admissible in LWOPsentencing hearings for juveniles. Accordingly, Moffett has no basis to claim it was improperorprejudicial. (See People v. Lewis, at p. 1066.) Moreover, any error in “over-emphasizing” the victim impact evidence was harmless. Thetrial court’s reference to Bosso’s ongoing trauma wascertainly not extensive or overly-emotional. Thus, there is no reasonable probability that Moffett would have received a more favorable sentence absent the alleged error. (See People v. Watson (1956) 46 Cal.2d 818, 837; People v. Nelson (2011) 51 Cal.4th 198, 224 [use of improper aggravating factor in sentencing is subject to state test for harmlessness].) 21 C. The Trial Court Mistakenly Described Moffett’s Prior Assault As a Felony, But It Was Harmless Moffett’s probation report indicated that Moffett pleaded no contest to a misdemeanorcountof assault with a deadly weaponorforce likely to producegreat bodily injury. (17CT 4692; § 245, subd.(a)(1)). That court imposed a six-month wardship at the Orin Allen Youth Rehabilitation Facility (OAYRF) Boy’s Ranch in Byron, Contra Costa County. (17CT 4692.) At Moffett’s sentencing on the current matter, the trial court stated, “I’ve also considered Mr. Moffett’s juvenile criminal history. There were fourentries, including a felony, 245(a)(1) Penal Code, assault with a deadly weapon.” (RT 76.) Thus,the trial court mistakenly referred to the misdemeanoradjudication as afelony. Moffett contends that the mistake influencedthe trial court’s decision to impose the LWOP term. (AAB 16, 34.) However, Moffett forfeited his claim oferror by failing to object. (RT 76; see People v. Scott, supra, 9 Cal.4th at p. 354 [forfeiture doctrine applies to “factually flawed” sentencingerrors].) Moreover, the mistake was inconsequential because the relevant fact was the underlying conduct, not whetherthe crime was denominated a felony or misdemeanor. Assault with a deadly weaponorforce likely to producegreat bodily injury can be charged as a felony or misdemeanor. (§ 245, subd. (a)(1)). An offense that is punishable either as a felony oras a misdemeanoris commonlycalled a “wobbler.” The prosecutor has the discretion to decide whether to charge a wobbler as a misdemeanoror felony. (§ 17, subd. (b); People v. Statum (2002) 28 Cal.4th 682, 689.) The elements of a violation of section 245, subdivision (a)(1), are the same regardless of whether the crime is charged as a misdemeanoror felony. Therefore, the prosecutornot only had broad discretion to decide whether to charge Moffett with a misdemeanoror felony (see People v. 22 Statum, supra, 28 Cal.4th at p. 689), but also whether to make a plea agreement. Since Moffett pleaded no contest, it is likely that the prosecutor agreed to the misdemeanorterm to facilitate the plea. In any case, whether the crime was punished as a felony or misdemeanor wasirrelevantto the nature of Moffett’s history of criminal activity. Further, the nature of the offense,i.e., “shot 18 yr. old male victim w/CO2 powered B-B pistol— victim struck 4 times” (17CT 4692), communicated the nature of Moffett’s conduct more accurately than its characterization as a felony or misdemeanor. Finally,the trial court’s mistake in referring to the assault as a felony was counterbalanced by two additional minor mistakes. First, the trial court stated that Moffett had four juvenile violations. (34RT 7762.) He actually had five.” (17CT 4692.) Thetrial court also mistakenly thought that “Moffett was under 18 by a few monthsat the time ofthis incident....” In fact, he was just four days shy ofhis eighteenth birthday. (17CT 4691 [Moffett’s date of birth was April 27, 1987]; 22RT 5006 [crimes took place on April 23, 2005].) In sum,all of these mistakes were relatively minor. Given thetrial court’s statements about the appropriatenessofthe LWOPsentence, any error in describing the prior assault as a felony was * The probation report lists five violations: (1) possession of marijuana for sale; (2) assault with a deadly weaponorforce likely to producegreat bodily injury; (3) fighting with another ward;(4) testing — positive for cocaine; and (5) possession of crack for sale. (17CT 4692.) The probation report also indicates that Moffett never obtained a driver’s license because he caused an accident when he wassixteen years old. (17CT 4691.) That means Moffett drove the stolen car to the crime scene without a license. (23RT 5362; 27RT 5767; see Health & Saf. Code, § 40000.11, subd. (b).) Moffett demonstrates his lack of appreciation for the seriousness ofhis violations by arguing they constitute nothing more than the typical record “of a teenager.” (AAB 38.) 23 harmless, There is no reasonable probability that Moffett would have received a more favorable sentence absentthe alleged error. (See People v. Watson, supra, 46 Cal.2d at p. 837; People v. Osband (1996)13 Cal.4th 622, 728 [improper use of fact to impose upper term reviewed understate harmlessnesstest]; see People v. Whitt (1990) 51 Cal.3d 620, 660 [“The judge placed primary aggravating weight on the callous nature of the crimes and defendant’s prior conviction .... [Therefore, a]ny mischaracterization of factors was therefore harmless under any standard.”].)° 3 At sentencing,the trial court stated, “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 not fire the weapon, he wasclose to it whenit was fired; shoe prints matching Mr. Moffett’s [were] ten feet away from where Officer Lasater fell; and Mr. Moffett’s cell phone [was found] a few feet away from Officer Lasater.” (RT 76.) Moffett arguedat the Court of Appealthat the trial court was mistaken aboutthe significance of the gunshot residue (GSR). (A133032 AOB 55.) Indeed,the parties stipulated that Moffett could have acquired the GSRsolely from handling his own gun. (29RT 6691.) Here, however, Moffett makes only passing referenceto this claim. (AAB 11-12 & fn. 4, 45.) To the extent Moffett relies on that reason as a further mistakeof fact that justifies remand, the claim is forfeited for failure to object. (See People v. Scott, supra, 9 Cal.4th at p. 354.) Moreover, any error was harmless because the evidence did suggest that Moffett was near Hamilton and Officer Lasater when the officer was shot. (See A133032 RB 12-18.) Further, the trial court acknowledged thatit did not “know exactly where Mr. Moffett was... .” (RT 76.) Therefore,it is not reasonably probable thatthe trial court would have imposeda lesser term if it had not relied on the GSR as evidence that Moffett was near Hamilton when Officer Lasater was shot. (See People v. Osband, supra, 13 Cal.4th atp. 728.) 24 IV. MOFFETT’S FACIAL CHALLENGE TO THE CONSTITUTIONALITY OF LWOP TERMSFOR JUVENILE MURDERERSIS NOT WITHIN THE SCOPE OF THE ISSUE ON REVIEW Miller expressly declined to decide whetherit violates the Eighth Amendment to impose LWOPonjuveniles convicted of a homicide. (Miller, supra, 132 S.Ct. at p. 2469.) It also declined to “foreclose a sentencer’s ability to” impose LWOPonsuchjuveniles defendants. (/bid.) Nevertheless, Moffett contends that his LWOPterm categorically violates article 1, section 17 of the California Constitution as well as the Eighth Amendment. (AAB 42.) This Court should reject the claim as beyond the | scope of the issue on review. (See People v. Perez (2005) 35 Cal.4th 1219, 1228 [the court “may considerall issues fairly embracedin the petition.”’]; Cal. Rules of Court, rule 8.520(b)(3) [Unless the court orders otherwise, briefs on the merits must be limited to the issues stated in [the statement of issues in the petition for review and answer] andanyissuesfairly included in them.”].*) This Court granted respondent’s petition for review on only one issue: whether Penal Code section 190.5, subdivision (b), violates the prohibition on mandatory termsoflife without parole for minors set forth in Miller. Consideration of the separate issue of the constitutionality of a facial Eighth Amendmentchallenge would be inappropriate, particularly in light of the fact that Miller specifically refused to rule on the facial constitutionality of juvenile LWOPterms. Accordingly, this Court should decline to address “ Moffett did not file an answerto the petition for review. 25 Moffett’s additional claim on the merits.” (See People v. Perez, supra, 35 Cal.4th at p. 1228; Cal. Rules of Court, rule 8.520(b)(3).) V. REMAND TO THE COURT OF APPEAL IS APPROPRIATESO IT CAN CONSIDER WHETHERTHE TRIAL COURT ABUSED ITS SENTENCING DISCRETION, VIOLATED MOFFETT’S RIGHT TO EQUAL PROTECTION, OR IMPOSED A CRUEL AND UNUSUAL PUNISHMENT . Moffett argues that even if “the Court of Appeal erred in remanding on the section 190.5 issues, reinstatement of LWOPisstill not the proper remedy. Dueprocess andthe interests ofjustice plainly require remandfor the Court of Appeal to: [1] address appellant’s separate arguments regarding abuseofdiscretion and [2] other constitutional challenges to section 190.5 as applied here; and indeed to [3] rule more fully on both state and federal disproportionality challenges ....” (AAB 69.) Respondent agrees that remandis appropriate. First, Moffett argued below that the trial court abusedits discretion by giving too much weightto the impactof his actions on victim Rima Bosso; misstating facts about the crime; and misstating Moffett’s prior record. (A133032 AOB 48-56.) As discussed above, Moffett forfeited those claims and anyerrors were harmless. Nevertheless, the Court of Appeal did not reach those claims and should be given the opportunity to address them on remand. (See Burden v. Snowden (1992) 2 Cal.4th 556, 570.) Second, Moffett argued below that section 190.5 is unconstitutionally vague and arbitrary andviolates equal protection. (AAB 69; see A133032 AOB 58-62.) Those claims have already beenraised andrejected by California courts. (See, e.g., Guinn, supra, 28 Cal.App.4th at pp. 1141— 1143.) Nevertheless, the Court of Appeal should begiventhe opportunity > Respondentrespectfully requests an opportunity to briefthis issue if this Court decides to address it on the merits. (See Cal. Rules of Court, rule 8.516(a)(2).) 26 to address those deferred claims on remand. (See Burden v. Snowden, supra, 2 Cal.4th at p. 570.) Third, Moffett argued below that the LWOPsentence violated the California Constitution and Eighth Amendmentprotections from cruel and unusual punishments. The Court of Appeal implicitly rejected that claim whenit declined to orderthe trial court to reduce the term to 25 years to life. In support of that determination, the court noted that Miller “declined to consider the defendants’ alternative argumentthat the Eighth Amendmentcategorically bars LWOPsentences for juveniles, even for those who were 14 years of age or youngerat the time oftheir offenses.” (Typed Opn.at p. 13, citing Miller, supra, 132 S.Ct. at p. 2469.) By refusing to exclude LWOPas an appropriate penalty for Moffett, and holding that either LWOPor 25 years to life was appropriate so long as the trial court first considered Moffett’s “twice diminished moral culpability,’” the Court of Appeal implicitly rejected Moffett’s proportionality claim. Nevertheless, because remandis appropriate on the other claims, the Court of Appeal should be given the opportunity to also address Moffett’s proportionality claim more fully. (See Burden v. Snowden, supra, 2 Cal.4th at p. 570.) | 27 CONCLUSION Accordingly, respondent requests that the judgment of the Court of Appealbe reversed. Dated: June 21, 2013 DMB:er SF2013205378 20703089.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAWRENCEM.DANIELS Supervising Deputy Attorney General RENE A. CHACON Supervising Deputy Attorney General Vad DAVID M. BASKIND Deputy Attorney General Attorneysfor Respondent 28 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S REPLY BRIEF uses a 13 point Times New Romanfont and contains 8,400 words. Dated: June 21, 2013 KAMALA D. HARRIS Attorney General of California DAVID M.BASKIND Deputy Attorney General Attorneysfor Respondent DECLARATIONOF SERVICEBYU.S. MAIL Case Name: People v. Moffett No.: $206771 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. J am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondencefor 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 June 21, 2013, I served the attached RESPONDENT’S REPLY BRIEFbyplacing 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 (2 copies) 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 (sent via email: eservice@fdap.org) The Honorable Mark Peterson District Attorney Clerk, California Court of Appeal Contra Costa County District Attorney's First Appellate District, Division Five Office © * 350 McAllister Street 900 Ward Street San Francisco, CA 94102 Martinez, CA94553 County of Contra Costa Main Courthouse Superior Court of California P.O. Box 911 Martinez, CA 94553 I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct andthat this declaration was executed on June 21, 2013, at San Francisco, California. E. Rios A Eve Declarant Signature SF2013205378 20704079.doc
