Filed 1/16/20 P. v. Gines CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ALLEN GINES,

Defendant and Appellant.

F075948

(Super. Ct. No. SC052244A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.

Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen Farris, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In October 1992, defendant Michael Allen Gines, then 16 years old, broke into a mobile home with two other juveniles and one adult. The 62-year-old homeowner was away at the time and the group remained inside for hours, during which time they ransacked the home, ate, drank, smoked and slept. When the victim returned home from a trip, the group fled to the backyard but then decided to reenter the home and confront the victim at gunpoint. After the victim was taken to his bedroom, gagged and hogtied, he was hit with an axe and defendant shot him in the head, killing him. The group then stole the victim’s recreational vehicle and Chevrolet Blazer. They were apprehended in New Mexico the day after the murder in the stolen Blazer.

In December 1992, defendant was charged with one count of willful, deliberate and premeditated murder with an attached burglary-special circumstance allegation and sentence enhancement allegation for personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 189, subd. (a), 190.2, former subd. (a)(17)(vii), 12022.5, subd. (a).) Defendant was also charged with two counts of burglary (former § 460.1), and two counts of taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). In January 1993, defendant pleaded no contest to all charges and, pursuant to the terms of the parties’ plea bargain, was sent to the California Youth Authority (CYA) for a 90-day diagnostic study.

The diagnostic study concluded that defendant was not amenable to the treatment and training offered by the CYA and, in accordance with the terms of the plea bargain, the trial court sentenced defendant on the murder count to a term of life without the possibility of parole (LWOP) plus an additional five years for the firearm enhancement. On the burglary counts, the court imposed two middle terms of four years and on the driving or taking counts, the court imposed two middle terms of two years, with the sentences on all four counts to run concurrently with the term on the murder count.

In December 2016, defendant filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(2). The trial court granted the petition and, after holding an evidentiary hearing, resentenced defendant to the same terms as previously imposed in 1993.

Defendant filed a timely notice of appeal. (§ 1237, subd. (a).) He claims that although the trial court addressed the youth-related factors identified in Miller v. Alabama (2012) 567 U.S. 460 (Miller) and Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718] (Montgomery), its decision to resentence him to LWOP for a crime committed when he was only 16 years old was an abuse of discretion. Defendant also seeks remand for resentencing under Senate Bill No. 620, which amended section 12022.5 effective January 1, 2018, to permit a trial court, in furtherance of justice, to strike or dismiss a firearm enhancement otherwise required to be imposed under the statute. (Stats. 2018, ch. 682, § 1 (Senate Bill No. 620 or Sen. Bill No. 620).)

The People concede that under Senate Bill No. 620, the matter should be remanded for the trial court to consider whether to exercise its discretion regarding the firearm enhancement, but they dispute defendant’s claim of sentencing error.

The record demonstrates that evidence relating to the Miller factors was presented during the resentencing hearing and that the trial court considered the Miller factors before resentencing defendant to LWOP. Therefore, although another court could have reasonably reached a contrary conclusion, we find that defendant did not meet his burden of demonstrating the trial court abused its discretion and we reject his claim of error. We accept the People’s concession regarding remand for resentencing under Senate Bill No. 620 but otherwise affirm the judgment.

DISCUSSION

I. Claim of Sentencing Error

A. Background

1. Consideration of Miller Factors Required

As stated, defendant was 16 years old when he committed first degree murder with special circumstances and received a term of LWOP. Commencing with the United States Supreme Court’s decision in Roper, the law as it relates to juvenile offenders has been dramatically transformed through decisional law, legislation and voter initiative. (E.g., Roper v. Simmons (2005) 543 U.S. 551, 578 (Roper) [death penalty may not be imposed against juvenile offenders]; Graham v. Florida (2010) 560 U.S. 48, 82 (Graham) [in non-homicide cases, LWOP sentences may not be imposed against juvenile offenders]; Miller, supra, 567 U.S. at p. 479 [unconstitutional to mandate a term of LWOP for juvenile offenders]; Sen. Bill. No. 260 (Stats. 2013, ch. 312, § 4) [providing for youth offender parole hearings to ensure those who were under 18 years of age when they committed their controlling offenses have meaningful opportunity to obtain release]; Prop. 57, the “Public Safety and Rehabilitation Act of 2016,” § 4.2 [amending Welf. & Inst. Code, § 707, subd. (a), to prohibit prosecutors from directly filing charges against juvenile offenders in criminal court]; Sen. Bill No. 394 (Stats. 2017, ch. 684, §§ 1, 1.5) [amending § 3051 to provide for youth offender parole hearings for juvenile offenders sentenced to LWOP, subject to certain exceptions]; Assem. Bill No. 1308 (Stats. 2017, ch. 675, § 1) [subject to certain exceptions, including juveniles with LWOP sentences, extending youth offender parole hearings to offenders who were 25 years old or younger when they committed their controlling offenses]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303–304 [holding Prop. 57 applies retroactively]; Sen. Bill No. 1391 (Stats. 2018, ch. 1012, § 1) [limiting transfer motions by prosecutors under Welf. & Inst. Code, § 707, subd. (a), to juveniles who were 16 years or older when they committed controlling offense].)

Relevant here, the United States Supreme Court held in Miller that “under the Eighth Amendment to the United States Constitution ‘a state may authorize its courts to impose [a sentence of LWOP] on a juvenile homicide offender [only] when the penalty is discretionary and when the sentencing court’s discretion is properly exercised .…’” (In re Kirchner (2017) 2 Cal.5th 1040, 1042 (Kirchner), quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1379 (Gutierrez).) “The proper exercise of discretion in this context requires the sentencing court to consider relevant evidence as may exist concerning factors that Miller identified as bearing on the ‘distinctive attributes of youth’ and how these attributes ‘diminish the penological justifications for imposing the harshest sentences on juvenile offenders.’” (Kirchner, supra, at p. 1042, quoting Miller, supra, 567 U.S. at p. 472.)

“[U]nder Miller a sentencing court considering a sentence of [LWOP] for a juvenile offender must consider evidence that may exist regarding (1) ‘a juvenile offender’s “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences”’; (2) ‘“the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional”’; (3) ‘“the circumstances of the homicide offense, including the extent of [the juvenile defendant’s] participation in the conduct and the way familial and peer pressures may have affected him”’; (4) ‘whether the offender “might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”’; and (5) ‘the possibility of rehabilitation.”’” (Kirchner, supra, 2 Cal.5th at p. 1048, quoting Gutierrez, supra, 58 Cal.4th at pp. 1388–1389.)

Subsequently, in Montgomery, the United States Supreme Court “clarified that Miller announced a substantive rather than a procedural rule, and therefore operates retroactively. (Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 736].) Montgomery explained that ‘Miller … did more than require a sentencer to consider a juvenile offender’s youth before imposing [LWOP]; it established that the penological justifications for [LWOP] collapse in light of “the distinctive attributes of youth.” [Citation.] Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “‘unfortunate yet transient immaturity.’” [Citation.] Because Miller determined that sentencing a child to [LWOP] is excessive for all but “‘the rare juvenile offender whose crime reflects irreparable corruption,’” [citation], it rendered [LWOP] an unconstitutional penalty for “a class of defendants because of their status”—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. [Citation.] As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it “‘necessarily carr[ies] a significant risk that a defendant’”—here, the vast majority of juvenile offenders—“‘faces a punishment that the law cannot impose on him.’” [Citation.]’ ([Montgomery, supra], at p. ___ [136 S.Ct. at p. 734].)” (Kirchner, supra, 2 Cal.5th at pp. 1048–1049.)

2. Recall and Resentencing Under Section 1170, Subdivision (d)(2)

Defendant was sentenced to LWOP in 1993. Twenty-three years later, in 2016, he filed a petition for recall and resentencing under section 1170, subdivision (d)(2)(A)(i), which provides, “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 imprisonment for [LWOP] has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.” The trial court found that defendant was eligible for relief under the statute and granted the petition.

In Kirchner, the California Supreme Court addressed whether the recall and resentencing process under section 1170, subdivision (d)(2), was an adequate remedy for Miller error and, therefore, foreclosed reliance on habeas corpus relief. (Kirchner, supra, 2 Cal.5th at p. 1043.) The court concluded that “[h]aving originally been developed prior to the decision in Miller, the section 1170[, subdivision ](d)(2) process was not designed to provide a remedy for this type of error, and it is not well suited to serve this purpose.” (Id. at p. 1052.) In reaching this conclusion, the court considered that the statute categorically excludes some offenders who are entitled to resentencing in accordance with Miller and that the statutory resentencing criteria is not designed to address Miller error. (Kirchner, supra, at pp. 1052–1054.) Nevertheless, the court recognized the possibility that in some cases, the trial court might, in recalling and resentencing under the statute, take the Miller factors into account and therefore remedy Miller error. (Kirchner, supra, at pp. 1054–1056.)

In this case, defendant also brought a petition for habeas corpus relief, but dismissed the petition in favor of pursuing relief for Miller error through his section 1170 petition for recall and resentencing. At the time of resentencing, the parties and the trial court had the benefit of Miller, Montgomery, Gutierrez and Kirchner, and the record reflects that the Miller factors were discussed extensively. Defendant concedes as much and, therefore, the issue here is not whether the trial court sentenced defendant to LWOP without considering the Miller factors but whether the court, notwithstanding its consideration of the Miller factors, abused its discretion in resentencing him to LWOP.

B. Standard of Review

We review the trial court’s sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) As the party challenging the sentence, defendant bears the burden of “‘“clearly show[ing] that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” (People v. Carmony (2004) 33 Cal.4th 367, 376–377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978; accord, People v. Lee (2017) 16 Cal.App.5th 861, 866.) Further, “a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’” (People v. Carmony, supra, at p. 377, quoting People v. Superior Court (Alvarez), supra, at p. 978.) “Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, at p. 377.)

C. Analysis

1. Mootness

As an initial matter, the parties disagree whether defendant’s claim of sentencing error was rendered moot by Senate Bill No. 394, which amended the Penal Code to provide youth offender parole hearings for those defendants who were under the age of 18 when they committed their controlling offenses and were sentenced to LWOP. (Stats. 2017, ch. 684, §§ 1, 1.5.) Courts are “bound to ‘“decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” [Citation.]’” (In re Arroyo (2019) 37 Cal.App.5th 727, 732, quoting In re Miranda (2011) 191 Cal.App.4th 757, 762.) “Consequently, ‘“[a] case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.” [Citations.]’” (In re Arroyo, supra, at p. 732, quoting In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231.)

Following the amendment of section 3051 pursuant to Senate Bill No. 394, subject to certain exceptions not relevant here, youth offenders sentenced to 25 years to life for controlling offenses committed when they were 25 years old or younger and juvenile offenders such as defendant sentenced to LWOP for controlling offenses committed when they were under the age of 18 years are eligible for release on parole during their 25th year of incarceration. (§ 3051, subd. (b)(3)–(4).) The People contend that because defendant is now eligible for parole, the issue of whether the trial court abused its discretion in imposing an LWOP sentence “has little or no practical value.” Defendant counters that his claim is not moot because we may grant relief that has practical effect and he identifies several adverse consequences beyond bare eligibility for parole that accompany an LWOP sentence. (§ 190, former subd. (a) [time credits applicable to reduce minimum terms of 15, 20 or 25 years in prison]; § 3041, subd. (a) [procedures applicable to inmates with minimum eligible release dates]; Cal. Code Regs., tit. 15, §§ 3043.2, subd. (b)(1) [conduct credit], 3375.2, subd. (a)(6) [housing].)

We agree with defendant. The authorities the People rely on hold that Senate Bill No. 394 rendered the defendants’ constitutional claim under Miller moot and as defendant points out, he is advancing a claim of abuse of discretion under state law. (Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 736] [violation of constitutional rule announced in Miller may be remedied by permitting parole consideration]; People v. Franklin (2016) 63 Cal.4th 261, 276–277 [8th Amend. claim under Miller rendered moot by Sen. Bill No. 260, which entitled the defendant to a parole hearing in his 25th year of incarceration]; People v. Lozano (2017) 16 Cal.App.5th 1286, 1288 [8th Amend. claim by the defendant sentenced to LWOP mooted by Sen. Bill No. 394].) Moreover, defendant contends the adverse consequences attendant to an LWOP sentence are not confined to parole eligibility, and we note that courts have recognized a case is not rendered moot where a successful appeal would ameliorate adverse collateral consequences. (People v. DeLeon (2017) 3 Cal.5th 640, 646 [former parolee’s due process claim relating to parole revocation proceedings rendered moot by his discharge from parole & exception for “disadvantageous collateral consequences” did not apply because a parole violation finding “does not involve the same collateral consequences that attach to a criminal conviction”]; People v. Hernandez (2017) 10 Cal.App.5th 192, 204 [request for resentencing under Prop. 47 not moot even though the defendant was serving an indeterminate term & the sentence on count subject to Prop. 47 stayed under § 654]; People v. Valencia (2014) 226 Cal.App.4th 326, 329 [presentence custody credit error moot where the defendant was released from custody & award of credits would not ameliorate any prejudicial collateral consequences]; People v. Ellison (2003) 111 Cal.App.4th 1360, 1368–1369 [challenge to completed sentence not moot where adverse collateral consequences may arise]; People v. DeLong (2002) 101 Cal.App.4th 482, 492 [appeal of trial errors by a defendant whose conviction was later set aside under Prop. 36 not moot because she “continues to suffer disadvantageous and prejudicial collateral consequences therefrom”].)

Under these circumstances, we find the People’s assertion of mootness unpersuasive.

2. Presumption in Favor of Life with Possibility of Parole and Finding of Permanent Incorrigibility

Defendant argues first that the trial court abused its discretion in resentencing him to LWOP because, although it addressed the Miller factors, it neither began with a presumption favoring life with the possibility of parole nor ended with a finding, supported by substantial evidence, that defendant’s “crimes reflect permanent incorrigibility.” (Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 734].) In this regard, defendant urges us to follow the post-Montgomery decision in People v. Padilla (2016) 4 Cal.App.5th 656, 673 (Padilla), holding that “the stringent standard set forth in Montgomery cannot be satisfied unless the trial court, in imposing an LWOP term, determines that in light of all the Miller factors, the juvenile offender’s crime reflects irreparable corruption resulting in permanent incorrigibility, rather than transient immaturity,” and reject this court’s pre-Montgomery decision in People v. Palafox (2014) 231 Cal.App.4th 68, 73 (Palafox), holding that “as long as a trial court gives due consideration to an offender’s youth and attendant characteristics, as required by Miller …, it may, in exercising its discretion under Penal Code section 190.5, subdivision (b), give such weight to the relevant factors as it reasonably determines is appropriate under all the circumstances of the case.”

In Gutierrez, the California Supreme Court held “that section 190.5[, subdivision ](b) confers discretion on the sentencing court to impose either [LWOP] or a term of 25 years to life on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption in favor of [LWOP].” (Gutierrez, supra, 58 Cal.54th at p. 1387, italics added.) Subsequently, this court observed in Palafox that the high court “did not suggest section 190.5, subdivision (b) evinces a preference for a sentence of 25 years to life. Rather, the court determined that ‘[u]nder Miller, a state may authorize its courts to impose [LWOP] on a juvenile homicide offender when the penalty is discretionary and when the sentencing court’s discretion is properly exercised in accordance with Miller.’” (Palafox, supra, 231 Cal.App.4th at p. 91, quoting Gutierrez, supra, at p. 1379.)

The United States Supreme Court went on to hold in Montgomery that Miller announced a rule that, while it had a procedural component, was substantive and “established that the penological justifications for [LWOP] collapse in light of ‘the distinctive attributes of youth.’” (Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 734].) Under Miller, “sentencing a child to [LWOP] is excessive for all but ‘“the rare juvenile offender whose crime reflects irreparable corruption .…”’” (Montgomery, supra, at p. ___ [136 S.Ct. at p. 734]; accord, Gutierrez, supra, 58 Cal.4th at p. 1380.)

In this case, we need not decide whether defendant is correct regarding the need to begin with a presumption favoring a sentence of 25 years to life and end with an express determination of irreparable corruption because, even assuming so, the trial court expressly recognized that in light of Roper, Graham, Miller and Montgomery, a sentence of LWOP is precluded unless the defendant is found incorrigible. The court stated, “[W]here the courts used to think the presumed sentence was [LWOP], and you had to make—you had to find an exception to go 25 to life under these circumstances, now they’re say, no, it’s the opposite. You have to find circumstances to give [LWOP] as opposed—the presumed sentence would be 25 to life.” (Italics added.) The court later reiterated that under United States Supreme Court precedent, “[C]ourts can’t impose [LWOP], except, like, in an exceptional circumstance. We all agree that that’s what they’re telling us.”

The court went on to recognize that to impose an LWOP sentence, it had to find the defendant’s crimes reflected “‘“irreparable corruption”’” or “permanent incorrigibility” (Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 734]), and it expressed such a finding, concluding that it could not find defendant was not permanently incorrigible. In this respect, the court’s finding was somewhat inartful, as the court acknowledged, but it is nevertheless clear that the court made the requisite finding. Given the express record regarding both matters, we find defendant’s assertion that the trial court failed to apply the correct standards unpersuasive.

3. Miller Factor Evidence

We turn to whether the trial court otherwise abused its discretion in resentencing defendant to LWOP. “Section 190.5[, subdivision ](b) authorizes and indeed requires consideration of the Miller factors. [¶] Under section 190.5[, subdivision ](b), a sentencing court must consider the aggravating and mitigating factors enumerated in Penal Code section 190.3 and the California Rules of Court. [Citation.] Section 190.5[, subdivision ](b) does not expressly direct the sentencing court to consider those factors, but ‘since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including “the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.”’” (Gutierrez, supra, 58 Cal.4th at p. 1387, quoting People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 978; accord, Palafox, supra, 231 Cal.App.4th at p. 89.)

“The factors that a sentencing court must consider under section 190.3 include ‘[t]he age of the defendant at the time of the crime.’ (Pen.Code, § 190.3, factor (i).) We have said that this factor permits the court to consider not simply a defendant’s age but also ‘any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.’” (Gutierrez, supra, 58 Cal.4th at p. 1388.) “[S]ection 190.3, subdivision (i) provides a basis for the court to consider that ‘“youth is more than a chronological fact”’ and to take into account any mitigating relevance of ‘age and the wealth of characteristics and circumstances attendant to it,’ as Miller requires.” (Ibid., quoting Miller, supra, 567 U.S. at p. 476.)

a. Chronological Age and Hallmark Features

The first Miller factor requires the trial court to “consider a juvenile offender’s ‘chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences.’ [Citation.] Miller observed that ‘“developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,”’ and that ‘those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s “moral culpability” and enhanced the prospect that, as the years go by and neurological development occurs, his “‘deficiencies will be reformed.’”’ [Citations.] Miller further noted that ‘the science and social science supporting [these] conclusions have become even stronger’ in recent years.” (Gutierrez, supra, 58 Cal.4th at p. 1388, quoting Miller, supra, 567 U.S. at pp. 471–472 & fn. 5, 477.)

In this case, Carolyn Murphy, a forensic psychologist, evaluated defendant in light of the Miller factors, prepared a report and testified during the resentencing hearing. During the hearing, she explained the difference between the brains of an adult and a 16-year-old child. As there is no evidence that defendant’s development was affected by any underlying disabilities, Dr. Murphy addressed his development within the context of a normal 16-year-old and explained that based on his chronological age at the time of the crime, one would expect to see impulsivity and poor reasoning in judgment, planning and sequencing. Additionally, the diagnostic evaluation conducted at the CYA prior to sentencing in 1993 reflects the absence of mental or physical disabilities, but the evaluator found defendant to be “severely disturbed emotionally.”

b. Family and Home Environment

The second Miller factor requires the trial court to “consider any evidence or other information in the record regarding ‘the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional.’ [Citation.] Relevant ‘environmental vulnerabilities’ include evidence of childhood abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or education, prior exposure to violence, and susceptibility to psychological damage or emotional disturbance.” (Gutierrez, supra, 58 Cal.4th at pp. 1388–1389, quoting Miller, supra, 567 U.S. at pp. 473, 477.)

The evidence, which was corroborated by family members, shows that defendant grew up in an intact but dysfunctional household, and the trial court expressly recognized the evidence of some dysfunction and brutality in defendant’s family life. In general, the evidence paints a picture of neglectfulness and lack of adult supervision, interspersed with incidents of serious physical abuse.

In his younger years, defendant had the support of his extended family, including a loving, supportive relationship with his grandparents, but his parents eventually relocated away from those extended family members, which left defendant without that support system. Defendant’s mother was distant and largely ignored him after his younger sister was born when he was three years old, but he recalled one violent incident of physical abuse at his mother’s hands. Defendant related that he and his mother argued after he had showered. He was only wearing a towel and she grabbed his scrotum and yanked, causing it to bleed. When his father found out, his parents got into a terrible fight during which he and his sister hid in a bedroom.

Defendant’s father was an alcoholic who also abused drugs, and he was intermittently physically abusive toward defendant while disciplining him. While apparently sporadic, his father’s methods of discipline were brutal and reportedly included breaking defendant’s nose twice, burning defendant’s hand on a hot stove for playing with matches and when defendant was caught huffing gasoline, dousing him with gasoline and chasing him around with a lighter.

There was also reportedly some mutual domestic violence between defendant’s parents. His parents were often absent from the home working, which left defendant without supervision, support and structure. Notably, defendant had a “vicious fist fight” with his father before leaving the house and committing the murder at issue here and after defendant’s arrest, his parents abandoned him: they never attended a court appearance and moved without leaving a forwarding address.

c. Circumstances of Homicide Offense

Third, the trial court “must consider any evidence or other information in the record regarding ‘the circumstances of the homicide offense, including the extent of [the juvenile defendant’s] participation in the conduct and the way familial and peer pressures may have affected him.’ [Citations.] Also relevant is whether substance abuse played a role in the juvenile offender’s commission of the crime.” (Gutierrez, supra, 58 Cal.4th at p. 1389, quoting Miller, supra, 567 U.S. at p. 477.)

Defendant committed the crimes in this case with two other juveniles and a 26-year-old man, Ricky Mitchell. At some point, defendant and Mitchell both armed themselves with guns they found inside the victim’s home. The group exited the home when the victim arrived, but they then reentered the home, confronted the victim and questioned him regarding money and other valuables. The victim pleaded for his life before defendant shot him twice, killing him.

In addition to being shot, the victim had a broken neck from being hit with something or stomped. After the group’s arrest, Mitchell reported that defendant hit the victim in the neck with an axe, which law enforcement located under a couch. Mitchell also reported that in between hitting the victim with an axe and shooting him, defendant said, “‘The old man won’t die.’” Defendant, however, denied he was the one who hit the victim with an axe, and he claimed he shot the victim because Mitchell threatened to kill his family if he did not do so.

One of the other two juveniles, in a declaration executed prior to the resentencing at issue in this appeal, indicated that he was the one who made the decision the group should reenter the residence from the backyard. He also stated that he put the axe in defendant’s hand “and basically sent him on the path,” and he described defendant as more of a follower than a leader. At the time of his arrest in 1992, the juvenile related that when the victim arrived home and they fled to the backyard, Mitchell said, “‘What the hell are we doing?’” Defendant responded, “‘Let’s do it,’” and once inside the residence, defendant held a gun on the victim and then tied the victim up after the juvenile located some rope. The juvenile said that after Mitchell decided to kill the victim, defendant went into the bedroom and shot him.

The remaining juvenile stated in his declaration, executed prior to the resentencing, that none of them were leaders, but acknowledged that now, as an adult, he sees that their relationship with Mitchell, an adult 11 years older, “was weird.” At the time of their arrests, the juvenile stated that he did not know who killed the victim.

Regarding substance abuse, defendant began using drugs and alcohol at the age of 11 or 12, and by the time defendant and his family moved to Kern County, where the murder occurred, defendant was a heroin addict. Defendant reported that he was under the influence of alcohol when the murder was committed. Defendant’s substance abuse continued in prison, but he reported being largely drug free since 2006, other than a relapse in 2012.

d. Incompetencies Associated with Youth

Fourth, the trial court “must consider any evidence or other information in the record as to whether the offender ‘might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.’” (Gutierrez, supra, 58 Cal.4th at p. 1389, quoting Miller, supra, 567 U.S. at pp. 477–478.)

On this factor, the trial court had minimal information to consider, as defendant pleaded no contest fairly early on, approximately four months after the crime. Dr. Murphy testified that she had no information suggesting “any developmental disability [or] cognitive or intellectual limitations that would have significantly impaired or impacted his capacity.” The court noted that defense counsel visited defendant twice, but there were no details with respect to the substance of those visits, and the record reflects that defendant’s parents were not present to support or guide him. However, there is no dispute that defendant was directly involved in killing the victim, whom he admitted shooting and killing.

e. Possibility of Rehabilitation

Finally, the trial court “must consider any evidence or other information in the record bearing on ‘the possibility of rehabilitation.’ [Citations.] The extent or absence of ‘past criminal history’ is relevant here.” (Gutierrez, supra, 58 Cal.4th at p. 1389, quoting Miller, supra, 567 U.S. at p. 478.)

Dr. Murphy testified that in this case, mental illness was and is not an issue and defendant has expressed remorse. In evaluating the possibility of rehabilitation, she eliminated psychopathy and she explained that although defendant cannot technically be diagnosed with antisocial personality disorder because he has been incarcerated his entire adult life, she assessed the possibility of his rehabilitation by assuming conservatively that he has antisocial personality disorder, the behaviors attendant to which decrease with age. She also took into account defendant’s two documented incidents of violence in his approximately 25 years in prison, both of which came later in his incarceration, but she found “no pattern of ongoing violence.”

The first incident occurred in 2007 or 2009, when defendant jumped into a fight believing he was assisting a friend. He later learned his friend was the aggressor. The second incident occurred in 2012, during defendant’s drug relapse. Defendant and his cellmate had accrued drug debt and although they paid most of it off, to settle the remaining $500 debt, their yard’s shotcaller ordered them to stab someone who had been “greenlit.” Defendant stated he did so out of fear for his own safety, but he stabbed the victim in an area he hoped would not be lethal because he did not want to kill the victim. He said, “Prison is a kill or be killed place. I did what I needed to do to survive.”

Dr. Murphy noted that defendant obtained his high school diploma and completed some correspondence courses, as well as substance abuse courses. His lack of additional coursework has been due to status rather than lack of interest, and Dr. Murphy noted that defendant has extended family members in Florida who have offered to assist him and that he is in contact with his sister.

In her report, Dr. Murphy concluded that defendant’s “risk for re-offense is moderate.” In her trial testimony, she explained, “I see no variables that would immediately suggest he is not capable of rehabilitating were he to make that choice. Ultimately, all human behavior is a choice. He was able to state to me the need for continued substance abuse treatment, the need for family involvement and assistance, and the need for work, meaningful work, not just practically, to support himself, but to keep himself busy and to establish that new identity. But outside of that, I don’t have a crystal ball. It’s going to have to be choice and some good discharge planning.” She opined that his parole agent could provide some structure and accountability, which will be necessary because transitioning to the outside world “will be overwhelming.”

4. Conclusion

We reiterate that the abuse of discretion standard is deferential, and we review the trial court’s decision to determine whether it was “‘arbitrary or capricious’ or otherwise exceed[ed] the bounds of reason under the circumstances.” (People v. Olguin (2008) 45 Cal.4th 375, 384; accord, People v. Westerfield (2019) 6 Cal.5th 632, 682; Palafox, supra, 231 Cal.App.4th at p. 91.) Neither defendant’s nor another court’s disagreement with the trial court’s decision in this case suffices to demonstrate an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 377.)

The trial court’s decision here rested heavily on the circumstances of the crime, in particular that defendant was armed with a weapon, affording him a choice in the matter and that he “free[ly] and voluntar[ily]” killed the victim, and on the two incidents of violence in prison. Defendant characterizes the prison incidents as remote in time, and the stabbing incident in particular as “situational and the product of pressure and other factors not likely to be repeated.” The trial court acknowledged understanding how things work in prison, but its consideration of the incident cannot be described as unreasonable given that it was an act of violence committed within five years of the resentencing hearing (§ 1170, subd. (d)(2)(F)(viii)), and the existence of some similarities between the murder defendant committed and the stabbing incident, the most obvious being the role played by defendant’s long-term struggles with substance abuse and his willingness, even as an adult, to yield to peer pressure and commit an act of violence. At the time of the murder, defendant claimed he had to kill the victim because Mitchell threatened his family and he more recently claimed he had to commit the prison stabbing because, “[o]nce you get an order like that, it means that you either do it, or you’re next. I[t] was us or [him].”

We recognize the agonizing difficulties inherent in the adjudication of cases involving offenders who commit violent offenses while still juveniles. The trial court articulated such difficulty, stating, “[T]his is one of the hardest decisions I’ve had to make. And I’ve been struggling with this since the day we’ve started, and it’s been the hardest decision today all day long. You know, I had an idea one way this morning, then another way .…” This is understandable inasmuch as the record here would also support a contrary disposition.

The evidence demonstrates that in addition to the inherent shortcomings of a 16-year-old mind, defendant was subjected to incidents of horrific violence at the hands of his parents and was left to his own devices most of the time, which, unsurprisingly, led to alcohol and drug abuse and association with others on a similar destructive path. As previously stated, the crime in this case was committed after defendant left his house following “a vicious fist fight” with his father and met up with the two juveniles and Mitchell. Moreover, after defendant was arrested, his parents failed him by abandoning him and leaving him without any guidance in navigating the criminal justice system, other than that communicated to him through two visits with his attorney. These circumstances would justify a finding that defendant was not that “‘“rare juvenile offender whose crime reflects irreparable corruption.”’” (Gutierrez, supra, 58 Cal.4th at p. 1388.)

However, “[o]n appeal, we presume that a judgment or order of the trial court is correct, ‘“[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.”’” (People v. Giordano (2007) 42 Cal.4th 644, 666.) As the law presently stands, as long as the sentencing court exercises its discretion through the lens of the youth-related Miller factors, juvenile offenders who commit homicide in California may be sentenced to LWOP, although here, it bears repeating, defendant is eligible for parole. (§§ 190.5, 3051, subd. (b)(4); Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 734]; Miller, supra, 567 U.S. at pp. 479–480; Gutierrez, supra, 58 Cal.4th at pp. 1360–1361.)

In resentencing defendant, the trial court focused on the nature of the crime and defendant’s subsequent in-prison crimes, as previously stated, and did not elaborate with respect to its balancing of other factors considered. Therefore, on review, we do not have the benefit of a record that provides insight into the details of the court’s full evaluation of the Miller factors. However, the record in this case does not support a finding that the court was unaware of the scope of its sentencing discretion or that it failed to consider the Miller factors and “unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules.” (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637, citing People v. Mendonsa (1982) 137 Cal.App.3d 888, 896; Cal. Rules of Court, rule 4.409.) Here, the court affirmatively stated that it had reviewed the evidence and the record expressly reflects that the court considered the Miller factors, along with the absence of any mitigating factors, the presence of seven aggravating factors and defendant’s involvement in two incidents of prison violence, in exercising that discretion. (Gutierrez, supra, 58 Cal.4th at pp. 1387–1388; Pen. Code, § 1170, subds. (d)(2)(F)(viii), (I); Evid. Code, § 664; Cal. Rules of Court, rules 4.421, 4.423.) As discussed, the record also expressly reflects that the trial court started with a presumption favoring life with the possibility of parole and, after considering the Miller factors, concluded that defendant was permanently incorrigible.

That defendant disagrees with the decision and that another trial court—or an appellate court—might have reached a different conclusion does not render the decision in this case arbitrary or irrational. (People v. Carmony, supra, 44 Cal.4th at p. 377.) Although the record here would also support a contrary sentencing determination that defendant’s crime, viewed through the lens of the Miller factors, does not reflect irreparable corruption or permanent incorrigibility, resulting in a sentence of 25 years to life, defendant bears the burden of showing error on appeal and on this record and given the deferential standard of review that applies, we cannot conclude that the trial court’s decision exceeded the bounds of reason. We therefore reject defendant’s claim of error and affirm the trial court. In so doing, we reiterate that defendant is entitled to a youth offender parole hearing and we emphasize that neither the trial court’s decision in this case nor our affirmance on review should be interpreted as constraining or impinging on the parole board’s independent decisionmaking authority. (See § 3041.5, subd. (c) [“The board shall conduct a parole hearing pursuant to this section as a de novo hearing.”]; In re Stevenson (2013) 213 Cal.App.4th 841, 863.)

II. Remand for Resentencing Under Senate Bill No. 620

Effective January 1, 2018, Senate Bill No. 620 amended section 12022.5, subdivision (c), to permit a trial court, in furtherance of justice, to strike or dismiss an enhancement otherwise required to be imposed under the statutes. (Stats. 2018, ch. 682, § 1.) The parties agree that the amendment to section 12022.5 applies retroactively in this case and they also agree that remand for resentencing in light of Senate Bill No. 620 is required.

Defendant is entitled to be sentenced in the exercise of informed discretion and, therefore, we concur with the parties that remand is appropriate so that the trial court may exercise its discretion in the first instance in light of the amendment to section 12022.5. (Gutierrez, supra, 58 Cal.4th at p. 1391; People v. Zamora (2019) 35 Cal.App.5th 200, 206–208; People v. Garcia (2018) 28 Cal.App.5th 961, 971–973 [analyzing analogous amendment to firearm enhancement statute pursuant to Sen. Bill No. 1393]; People v. McDaniels (2018) 22 Cal.App.5th 420, 424–428.) We express no opinion on how the trial court should exercise its discretion on remand.

DISPOSITION

This matter is remanded for resentencing under section 12022.5, subdivision (c), as amended by Senate Bill No. 620. The trial court shall issue and transmit an amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.

MEEHAN, J.

WE CONCUR:

LEVY, Acting P.J.

SNAUFFER, J.