Majority
Opinion
—In 1996, defendant Clifton Lee Gibson was tried as an adult and convicted of first degree murder with special circumstances (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)),[1] assault with a firearm (§ 245, subd. (a)(2)), and robbery (§ 211), which were committed when he was 17 years old, with two adult codefendants. He was ultimately sentenced to life without possibility of parole (LWOP) for the murder, consecutive to a determinate term of 12 years four months in prison. In 2014, he filed a petition to recall his sentence pursuant to section 1170, subdivision (d)(2), which was denied by the trial court on the ground he failed to demonstrate he had been rehabilitated or that he was remorseful. Defendant appealed.
On appeal, defendant argues the trial court (1) improperly limited applicability of section 1170, subdivision (d)(2) relief to juvenile defendants who did not actually kill the victim; (2) abused its discretion in denying the petition
1 All further statutory references are to the Penal Code, unless otherwise indicated.
Background
The facts of the crime are taken from our opinion in the original appeal filed by defendant following his conviction (People v. Gibson (Sept. 9, 1998, E019971) [nonpub. opn.]): On June 8, 1994, in Big Bear, California, defendant, his brother Daniel, and a friend Jeffory Paxton approached a station wagon in which four men were sleeping. (Ibid.) The defendant and his companions wanted money for gas. (Ibid.) Paxton banged on the driver’s side window with a cocked nine-millimeter gun and demanded the men’s wallets. (Ibid.) The men complied with Paxton’s request, offering no resistance. (Ibid.) Paxton’s gun discharged, and subsequently defendant fired a shot from his .22 revolver. (Ibid.) The bullet from defendant’s revolver struck and killed one the men, while the bullet from Paxton’s gun struck another of the men, who suffered permanent injuries. (Ibid.)
After the shooting, defendant and his companions drove away, crashing their car during their flight. (People v. Gibson, supra, E019971.) At the time of the shooting, defendant was 17 years old, and had no prior criminal record. (Ibid.) Defendant alleged Paxton was the ringleader and primary participant in the crime. (Ibid.)
Defendant was charged with murder with special circumstances (§§ 187, subd. (a), 190.2, subd. (a)(17) [felony murder]; count 1); attempted murder (§§ 664, 187, subd. (a); count 2); and robbery (§ 211; count 3). It was further alleged that in the commission of all three counts, defendant and Paxton personally used a firearm (§ 12022.5, subds. (a) & (d)), and that defendant and Paxton personally inflicted great bodily injury as to the robbery victim. (§ 12022.7.)[3] Following a jury trial, defendant was convicted of first degree murder with a true finding of the felony-murder special circumstance, assault with a firearm (§ 245, subd. (a)(2)) as a lesser offense within attempted murder on count two, and robbery. Defendant was sentenced to LWOP on count one, consecutive to a determinate sentence of 18 years four months for the balance of the convictions and enhancement allegations.
In 1998, on direct appeal, the convictions were affirmed, but the matter was remanded for resentencing to correct the improper imposition of multiple
2 Referring to Miller v. Alabama (2012) 567 U.S. 460 [ 183 L.Ed.2d 407 , 132 S.Ct. 2455 ], and People v. Gutierrez (2014) 58 Cal.4th 1354 [ 171 Cal.Rptr.3d 421 , 324 P.3d 245 ] (Gutierrez).
3 Additional allegations that a principal was aimed with a firearm (§ 12022, subd. (a)(1)) and relating to Paxton’s prior convictions were pled, but are not relevant here.
On April 25, 2014, defendant filed a petition for recall of his sentence pursuant to section 1170, subdivision (d)(2). The People opposed the petition. After an evidentiary hearing, the court denied the petition. The court concluded that section 1170, subdivision (d)(2) applied to an aider and abettor, or the nonkiller, and found that defendant did not establish he had been rehabilitated or that he felt remorse. Defendant appeals this ruling.
Discussion
1. Development of Statutory and Decisional Law Affecting Sentences for Juveniles Convicted of Special Circumstances Murder.
In order to provide context for our discussion, we provide a brief review of the statutory enactments and landmark decisions which govern our analysis. We begin with the year of defendant’s offense, 1994.[4] At that time, Penal Code section 190.5, subdivision (a), prohibited the imposition of the death penalty upon any person who was under the age of 18 at the time of the commission of the crime.
Subdivision (b) of section 190.5 provided that “The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.” Prior to 2014, this section was interpreted to mean that 16 or 17 year olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life. (People v. Guinn (1994) 28 Cal.App.4th 1130 , 1141 [ 33 Cal.Rptr.2d 791 ], disapproved by Gutierrez, supra, 58 Cal.4th at pp. 1370-1371.) Defendant was sentenced to LWOP two years after the Guinn decision was published.
In 2010, the United States Supreme Court decided that the Eighth Amendment prohibited the imposition of an LWOP sentence on a juvenile offender who committed a nonhomicide crime and, while the
4 A criminal defendant is entitled to the application of statutes in effect at the time his offense was committed. (See Miller v. Florida (1987) 482 U.S. 423 , 435-436 [ 96 L.Ed.2d 351 , 107 S.Ct. 2446 ].)
On June 25, 2012, the United States Supreme Court revisited the issue of LWOP sentences for juveniles in holding that the Eighth Amendment forbade a sentencing scheme that mandated LWOP for juvenile offenders convicted of first degree murder because it precludes consideration of the juvenile’s chronological age and its hallmark features. (Miller v. Alabama, supra, 567 U.S. at pp. 477-478 [132 S.Ct. at pp. 2468-2469].) In so holding, however, the Supreme Court cautioned that “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. 480 [132 S.Ct. at p. 2469].) In other words, the “categorical bar” on LWOP terms for juveniles applied “only to nonhomicide crimes.” (Id. at p. 473 [132 S.Ct. at p. 2465].)
On September 30, 2012, the Legislature enacted Senate Bill 9, which went into effect on January 1, 2013. In its final version, the provision affecting juveniles sentenced to LWOP was renumbered as section 1170, subdivision (d)(2), and a defendant could bring a petition for recall and resentencing after serving 15 years, rather than 10, as in the original version. Effective January 1, 2014, the Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.), which added sections 3051, 3046, subdivision (c), and 4801 to the Penal Code. That section requires the Board of Parole Hearings to conduct a youth offender parole hearing during the 15th, 20th, or 25th year of a juvenile offender’s incarceration, depending on the offender’s controlling offense. (§ 3051, subd. (b)(1)—(3).) However, by its terms, section 3051 does not apply to cases in which the offender was sentenced to LWOP. (§ 3051, subd. (h).)
On January 25, 2016, the United States Supreme Court held that Miller s holding that mandatory LWOP sentences for juvenile homicide
We now examine defendant’s claims of error pertaining to the denial of his petition to recall his LWOP sentence.
2. The Decision to Recall a Sentence Pursuant to Section 1170, Subdivision (d)(2) Is Discretionary.
Defendant argues that the trial court abused its discretion in denying his recall petition. He also asserts that reversal is required because the trial court incorrectly interpreted the statute as applying only to persons convicted of murder who were not the actual killers, and that in denying the petition, the lower court “flouted Miller and Gutierrez.” While we agree the trial court misconstrued certain language relating to one factor to be considered, any error was harmless.
Section 1170, subdivision (d)(2), permits a defendant serving an LWOP sentence to file a petition seeking recall and resentencing if he was under the age of 18 at the time of the commission of the offense, providing his offense did not involve torture, and providing the victim was not a public safety official. Section 1170, subdivision (d)(2)(E) requires the court to conduct a hearing to consider whether to recall the sentence. There are several factors to be considered by the court in determining whether to recall and resentence. (§ 1170, subd. (d)(2)(E).)
These provisions authorize a court to recall the sentence and to resentence defendant under certain conditions, but the language is permissive, not mandatory. The court has the discretion to recall the sentence previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, providing that any new sentence is no greater than the original sentence. (§ 1170, subd. (d)(2)(G).)
The statute thus confers broad discretion on the trial court in considering relevant factors and determining whether to recall the sentence. This is the same discretion that is exercised pursuant to section 190.5, subdivision (b), which confers discretion upon the trial court to sentence a 16- or 17-year-old
a. Section 1170, Subdivision (d)(2) Is Not Limited to Aiders/Abettors or Nonkillers.
Defendant argues the trial court incorrectly held that section 1170, subdivision (d)(2) is limited to those convicted of first degree murder under felony-murder or aider/abettor theories who were not the actual killers. At the time of the hearing on the petition, the People orally argued that Senate Bill 9 was not intended for persons like defendant, referring to unspecified legislative history; instead, the People argued it was intended for accomplices. The trial court agreed that the felony-murder factor was intended to apply to persons who were aiders/abettors or the nonkiller. We disagree with the lower court’s interpretation, but our conclusion does not compel a conclusion that the petition should have been granted.
In interpreting this statutory provision, we follow well-settled principles: Our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. (Gutierrez, supra, 58 Cal.4th at p. 1369.) We first look to the statutory language, the words themselves, as the most reliable indicator of legislative intent. (Ibid.; see also People v. Woodhead (1987) 43 Cal.3d 1002 , 1007 [ 239 Cal.Rptr. 656 , 741 P.2d 154 ].) “ ‘When the language is clear and unambiguous, there is no need for construction.’ ” (In re Nathaniel C. (1991) 228 Cal.App.3d 990 , 1002 [ 279 Cal.Rptr. 236 ] (Nathaniel C.).) We give the language its usual and ordinary meaning. (Gutierrez, supra, 58 Cal.4th at p. 1369.) Courts should “strive to give meaning to every word of the statute and to avoid constructions that render words, phrases, or clauses superfluous.” (Klein v. United States of America (2010) 50 Cal.4th 68 , 80 [ 112 Cal.Rptr.3d 722 , 235 P.3d 42 ].) We will “decline to follow the plain meaning of a statute only when to do so would inevitably frustrate the manifest purpose of the legislation as a whole or lead to absurd results.” (Nathaniel C., supra, 228 Cal.App.3d at p. 1002, citing People v. Belleci (1979) 24 Cal.3d 879 , 884 [ 157 Cal.Rptr. 503 , 598 P.2d 473 ].)
Section 1170, subdivision (d)(2)(A)(i), provides that when a defendant who was under 18 years of age at the time of the commission of the offense for which he was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may petition the court for recall and resentencing. This provision does not apply to defendants sentenced to LWOP for an offense where the defendant tortured the victim, or where the victim was a public safety official. (§ 1170, subd. (d)(2)(A)(ii).)
A petition pursuant to section 1170, subdivision (d)(2) must include the defendant’s statement that he or she was under 18 years of age at the time of the crime, was sentenced to LWOP, and include a statement describing his or her remorse and work towards rehabilitation, as well as defendant’s statement that one of the following is true: (1) the defendant was convicted pursuant to felony-murder or aiding and abetting murder provisions of the law, (2) the defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall, (3) the defendant committed the offense with at least one adult codefendant, (4) the defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation. (§ 1170, subd. (d)(2)(B).)
The court must hold a hearing to consider whether to recall the sentence if it finds by a preponderance of the evidence that the statements in the petition are true. (§ 1170, subd. (d)(2)(E).) At the hearing, the court may consider certain factors, including, but not limited to, the factors set out in the defendant’s statement pursuant to section 1170, subdivision (d)(2)(B). (§ 1170, subd. (d)(2)(F).) One such factor is whether ‘“[t]he defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.” (§ 1170, subd. (d)(1)(F)(i).)
In construing statutes, we must rely on the usual, ordinary import of the language used. (In re Jesusa V. (2004) 32 Cal.4th 588 , 622 [ 10 Cal.Rptr.3d 205 , 85 P.3d 2 ].) The “ ‘ ‘“ordinary and popular” ’ ” meaning of the word ‘“or” is well settled as having a disjunctive meaning. (Ibid.) The plain and ordinary meaning of the word ‘“or” is well established: it indicates an intention to
By referring to felony murder as a theory disjoined from aider and abettor liability, it appears more likely the Legislature intended to include persons who would have been convicted of a lesser degree of homicide but for the fact it occurred during the commission of a dangerous felony. Any other interpretation renders the inclusion of the reference to “felony murder” as surplusage. The fact that the legislation does not extend to persons convicted of premeditated or deliberate murder bolsters our interpretation.
At the hearing, the People argued that “[Senate Bill] 9 was not meant for him. When you look through the legislative history, it was meant for accomplices, felony murders, it wasn’t meant for the executioner.” We reviewed the legislative history and found no evidence of such an intention. Had the Legislature intended to limit relief to persons convicted under a theory of vicarious liability but who were not the actual killers, it could have said that relief was limited to juveniles convicted under a theory of vicarious liability.
In none of the legislative materials is there a reference to a requirement that relief be limited to persons who did not actually commit the homicide. (Sen. Bill 9) Instead, section 1170, subdivision (d)(2) constitutes a legislative “act of lenity” designed to permit defendants to secure a “ ‘modification downward’ ” of their sentences, in much the same way that section 1170.126 does for “Three Strike” defendants. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 , 1304 [ 155 Cal.Rptr.3d 856 ].)
There is nothing in the legislative history of section 1170, subdivision (d)(2), or in our review of the cases interpreting the statute, evincing an intent to restrict the right to seek recall and resentencing to persons convicted as accomplices or aiders and abettors. We therefore agree with the defendant’s argument that the trial court erroneously stated that relief was limited to persons who did not actually cause the death. However, the trial court’s view of legislative intent did not result in a summary denial of the petition, so any error was harmless. An ineligible defendant would not have been granted a hearing on the petition pursuant to section 1170, subdivision (d)(2)(B)(i).
b. The Trial Court Did Not Abuse Its Discretion
Defendant presented numerous certificates and documents in support of his petition. Other than the certificates and the “chronos,”[5] the information provided to the court in support of the petition consisted of documents prepared by defendant himself. Of these documents, the great majority of them were created after the enactment of Senate Bill 9. There is thus a self-serving quality to much of the information submitted in support of the petition.
The People drew attention to the fact that nearly one-half of the exhibits point to rehabilitative efforts made just in the two years prior to the hearing. The trial court agreed with the points raised by the People in their opposition to the petition, in which the People asserted defendant’s statements of remorse and work towards rehabilitation were neither credible nor adequate given the length of time defendant had to work on those issues. The People also noted that defendant’s statements of remorse were not believable and that he made excuses for his behavior on the night of the crime. The trial court agreed.
Defendant argues in his reply brief that there is insufficient evidence to support the trial court’s findings that he did not demonstrate remorse or rehabilitation, citing the testimony of the defense expert that he believed defendant was sincerely remorseful. The record supports the court’s conclusion: the majority of defendant’s efforts at rehabilitation, as evidenced by the
5 A “chrono” is a Department of Corrections and Rehabilitation form 128-B, which is used to document information about inmates and inmate behavior. (Cal. Code Regs., tit. 15, § 3000.)
The court’s misunderstanding that section 1170, subdivision (d)(2) was intended for nonkillers was but one factor out of many that were considered by the trial court. The remaining factors were properly considered and there was substantial evidence to support the trial court’s ruling on the petition. The finding of one proper factor is sufficient to justify the court’s decision. (See People v. Castaneda (1999) 75 Cal.App.4th 611 , 615 [ 89 Cal.Rptr.2d 367 ] [regarding factors in aggravation to justify upper term], citing People v. Cruz (1995) 38 Cal.App.4th 427 , 433-34 [ 45 Cal.Rptr.2d 148 ].) There was no abuse of discretion.
3. The Trial Court Did Not “Flout Miller and Gutierrez. ”
Defendant argues that the trial court’s ruling “flout[ed] Miller and Gutierrez.” Specifically, he asserts that the recent decisions barring mandatory LWOP terms for juveniles require that the defendant be permitted “to present all types of mitigation and that the sentencing authority is required to meaningfully consider” it. Moreover, he argues that the trial court refused to weigh all of the applicable factors, and that such refusal “transcends a statutory violation and has the potential to violate the ‘evolving standards of decency’ and the requirement of ‘individualized sentencing’ required by the Eighth Amendment.” Because of the limited focus of section 1170, subdivision (d)(2), we disagree.
The recent holding of Miller v. Alabama, supra, 567 U.S. at pages 472-473 [132 S.Ct. at page 2465] does not hold that an LWOP sentence may never be imposed upon a person who was under the age of 18 at the time of the offense. It merely requires a trial court, in exercising its discretion, to consider the “distinctive attributes of youth” and how those attributes “diminish the penological justifications for imposing the harshest sentences on juvenile offenders” before imposing LWOP on a juvenile. (Ibid.)
In Gutierrez, supra, 58 Cal.4th at page 1379, the California Supreme Court considered the constitutionality of section 190.5 in fight of the pre- Miller line of cases interpreting the statute as creating a presumption favoring LWOP. The court held that section 190.5, applicable to persons who were 16
Neither Miller nor Graham held that LWOP sentences could never be lawfully imposed on a person who was under the age of 18 at the time of the offense. Those cases only held that mandatory life without possibility of parole for a juvenile was improper and that imposition of the harshest punishment on a juvenile requires individualized sentencing that takes into account an offender’s “ ‘youth [and all that accompanies it].’ ” (Gutierrez, supra, 58 Cal.4th at p. 1377, quoting Miller v. Alabama, supra, 567 U.S. at p. 411 [132 S.Ct. at p. 2468].)
Nor does section 1170, subdivision (d)(2) mandate resentencing of all persons who were under the age of 18 at the time of their offenses who were sentenced to LWOP. If it were intended to be so, the Legislature would have drafted a statute mandating recall and resentencing for all persons sentenced to LWOP for crimes committed before they were 18. It would not have set out circumstances to be weighed by the court in exercising discretion to either recall the sentence, or not to recall it.
Finally, as Gutierrez makes clear, section 1170, subdivision (d)(2) is not a substitute for the initial exercise of discretion pursuant to section 190.5 at the initial sentencing, and does not eliminate the constitutional doubts arising from a presumption in favor of LWOP under the pre-Miller line of cases.[6] (Gutierrez, supra, 58 Cal.4th at p. 1385.) The court pointed out that
6 This precise question is addressed in In re Willover (Cal.App.). We note that at least one court has expressed the view that section 1170, subdivision (d)(2) remedied any defect in the imposition of an LWOP sentence imposed before Miller, and that the statutory procedure under section 1170, subdivision (d)(2) constitutes an adequate remedy at law foreclosing relief by way of habeas corpus. However, that case is pending review by the Supreme Court. (In re Kirchner (2016) 244 Cal.App.4th 1398 [ 199 Cal.Rptr.3d 416 ], review granted May 18, 2016, S233508.) For the reasons explained in Gutierrez, we disagree with that conclusion.
The trial court did not “flout Miller and Gutierrez” because the vehicle defendant chose to implement does not compel a review of the constitutionality of an LWOP sentence imposed upon a defendant who was under the age of 18 at the time of his crime. Defendant chose to file a petition to recall and resentence him pursuant to section 1170, subdivision (d)(2), a discretionary application addressed to the court’s consideration of circumstances showing the defendant has rehabilitated himself or demonstrated remorse. It is not a vehicle for reconsidering the constitutionality of a sentence in light of the “distinctive attributes of youth,” as required by Miller and its progeny, in light of an improper presumption favoring imposition of LWOP.
Defendant could have filed a petition for writ of habeas corpus, seeking retroactive application of Miller on collateral review. (See Montgomery v. Louisiana, supra, 577 U.S._[ 193 L.Ed.2d 599 , 136 S.Ct. 718 , 734]; see also In re Rainey (2014) 224 Cal.App.4th 280 , 287-290 [ 168 Cal.Rptr.3d 719 ], review granted June 11, 2014, S217567 [decided before Montgomery, but reaching the same conclusion].) We do not foreclose that option here if defendant has not already availed himself of that remedy, notwithstanding our conclusion that the trial court did not abuse its discretion: defendant’s sentence was imposed at a time when Guinn was the prevailing authority and he would be entitled to a new sentencing hearing at which the Miller criteria were properly considered, if that was not done.[8] We simply hold that based on the material presented to the trial court in support of a recall petition filed pursuant to section 1170, subdivision (d)(2), the trial court did not abuse its discretion.
7 However, the record does not include the original sentencing proceedings, so we cannot determine if the court found defendant to be someone for whom LWOP would be an appropriate sentence in the first instance. (See Gutierrez, supra. 58 Cal.4th at p. 1380.)
The judgment is affirmed.
Hollenhorst, J., and Slough, J., concurred.
Appellant’s petition for review by the Supreme Court was denied November 16, 2016, S237364.
Cases cited
- People v. Guinn 28 Cal.App.4th 1130 at 1141 p. 322, p. 330
- Graham v. Florida 560 U.S. 48 at 74-75 p. 323
- People v. Sandoval 41 Cal.4th 825 at 847 p. 325
- People v. Superior Court 14 Cal.4th 968 at 976-977 p. 325
- People v. Jordan 42 Cal.3d 308 at 316 p. 325
- People v. Woodhead 43 Cal.3d 1002 at 1007 p. 325
- People v. Nathaniel C. 228 Cal.App.3d 990 at 1002 p. 325
- Klein v. United States of America 50 Cal.4th 68 at 80 p. 325
- People v. Belleci 24 Cal.3d 879 at 884 p. 325
- People v. Whitmer 230 Cal.App.4th 906 at 917 p. 326
- People v. Palmer 133 Cal.App.4th 1141 at 1149 p. 326
- People v. Christman 229 Cal.App.4th 810 at 816 p. 326
- Los Angeles County Department of Children & Family Services v. Heriberto C. 32 Cal.4th 588 at 622 p. 326
- Smith v. Selma Community Hospital 188 Cal.App.4th 1 at 30 p. 327
- White v. County of Sacramento 31 Cal.3d 676 at 680 p. 327
- People v. Superior Court 215 Cal.App.4th 1279 at 1304 p. 327
- People v. Price 1 Cal.4th 324 at 492 p. 328
- People v. Avalos 37 Cal.3d 216 at 233 p. 328
- People v. Van Leonard 228 Cal.App.4th 465 at 503 p. 328
- People v. Superior Court 13 Cal.4th 497 p. 328
- People v. Cluff 87 Cal.App.4th 991 at 998 p. 328
- People v. McWhorter 47 Cal.4th 318 at 362-363 p. 329
- People v. Castaneda 75 Cal.App.4th 611 at 615 p. 329
- People v. Cruz 38 Cal.App.4th 427 at 433-34 p. 329