Filed 6/26/26 P. v. Abram CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A173088
v.
KEVIN ABRAM, (Marin County
Super. Ct. No. SC165001C)
Defendant and Appellant.
Defendant Kevin Abram, age 17 at the time of his offenses, was tried as
an adult and found guilty of first degree murder (Pen. Code, § 187),1
preventing a witness from testifying (§ 136.1), and criminal conspiracy
(§ 182). He was sentenced to a prison term of life without the possibility of
parole (LWOP), plus one year for a firearm enhancement. After two appeals,
the trial court resentenced defendant in 2025 and reimposed an LWOP
sentence, plus one year. Defendant again appeals, arguing the sentence was
an abuse of discretion. We affirm.
BACKGROUND
The Facts
As summarized in our prior opinion in People v. Blay (Sept. 16, 2019,
1 Undesignated statutory references that follow are to the Penal Code.
1
A138380) (nonpub. opn.) (Blay), the facts underlying defendant’s offenses are
these:
“On September 13, 2008, [Tong Van] Le was killed in his car as it
entered the garage of his Novato home. . . . [¶] . . . Le was killed at the
direction of Larry Brian Blay, Jr. because Le was expected to testify against
him. Sean Demetrius Washington drove the vehicle that followed the victim
driving home from the San Francisco market that Larry was accused of
robbing. Deandre Blay, Larry’s brother, identified the victim (‘There he is’)
getting into his car, and gave Washington the orders to follow and ‘Don’t lose
him.’ Le had just opened his garage door, and driven his car into the garage,
when [defendant] jumped out of Washington’s car, ran into Le’s garage, and
fired a bullet into Le’s face, while Le was still seated in his vehicle. Deandre
Blay then left the car, went into the garage, and returned with [defendant],
who was carrying a gun. When Washington inquired ‘are there any bullets
[left] in the gun?’, [defendant] replied, ‘No.’ ” (Blay, supra, A138380.)
Defendant was 17 years old at the time of the offenses. (Blay, supra,
A138380.)
Procedural History
In 2012, a jury convicted defendant of first degree murder (Pen. Code,
§ 187), preventing a witness from testifying (§ 136.1, subd. (c)), and two
counts of conspiring with others to commit those crimes (§ 182). The jury
found true special circumstance allegations that defendant committed the
murder both to prevent Le from testifying (§ 190.2, subd. (a)(10)), and while
lying in wait (§ 190.2, subd. (a)(15)). Firearm enhancements (§ 12022.2,
subd. (a)(1)) as to each count were also found true.
In 2013, the trial court sentenced defendant to LWOP for the murder,
plus one year for the firearm enhancement. The court imposed, but stayed,
2
sentence on the other counts.
Defendant appealed. In 2019, we conditionally reversed the judgment
and remanded the matter for a transfer hearing in light of Proposition 57.2
(Blay, supra, A138380.)
In the event the juvenile court transferred the case to the criminal
court, we directed that the judgment of conviction be reinstated, and that the
criminal court then conduct a resentencing in accordance with the
constitutional standards in Miller v. Alabama (2012) 567 U.S. 460 (Miller), as
well as section 190.5, as construed in People v. Gutierrez (2014) 58 Cal.4th
1354 (Gutierrez). (Blay, supra, A138380.) As discussed in more detail below,
under those authorities a trial court has discretion to sentence a 16- or 17-
year-old juvenile convicted of special circumstance murder to LWOP or to 25
years to life, with no presumption in favor of LWOP. (Gutierrez, supra, 58
Cal.4th at pp. 1379, 1390.) In Blay, we observed that when the trial court
imposed the LWOP sentence, it “probably exercised its full discretion rather
than applying” a presumption in favor of LWOP. But since we were
remanding for other reasons, we directed that, should the case be transferred
back to the criminal court, that court was to conduct a resentencing hearing
so that it could affirm or change its sentencing choice of LWOP “explicitly on
the record.” (Blay, supra, A138380.)
On remand, the juvenile court conducted a transfer hearing and
transferred the case to criminal court. Defendant appealed. In light of then
recent legislative amendments that raised the prosecution’s burden of proof
2 Under Proposition 57, prosecutors who wish to try a juvenile as an
adult must commence the action in juvenile court and move to transfer the
matter to adult criminal court. (See People v. Superior Court (Lara) (2018) 4
Cal. 5th 299, 303–305.)
3
for transferring a juvenile to criminal court, in 2023 our colleagues in
Division Three conditionally reversed the transfer order and remanded the
matter for a new hearing. (In re K.A. (June 2, 2023, A166316) [nonpub.
opn.].)
On remand, the juvenile court held a new transfer hearing and on May
15, 2024, ordered the case transferred back to the criminal court.
Defendant’s judgment of conviction was reinstated.
On February 27, 2025, the trial court resentenced defendant to LWOP,
plus one year for the firearm enhancement.
This appeal followed.
DISCUSSION
Defendant solely argues the trial court abused its discretion in
resentencing him to LWOP for the murder, rather than 25 years to life.
Despite the People’s sentencing recommendation below, the Attorney General
argues the court acted within its discretion when it reimposed an LWOP
sentence. We agree with the Attorney General.
The Law and Standard of Review
In Miller, supra, 567 U.S. 460, “the United States Supreme Court ruled
that under the Eighth Amendment to the United States Constitution ‘a state
may authorize its courts to impose [a sentence of] life without parole on a
juvenile homicide offender [only] when the penalty is discretionary and when
the sentencing court’s discretion is properly exercised. . . .’ [Citation.] 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.’ ” (In re Kirchner (2017) 2 Cal.5th 1040,
4
1042, citing Miller, supra, 567 U.S. at p. 472 and Gutierrez, supra, 58 Cal.4th
at pp. 1388–1390.) In other words, “a LWOP sentence for juveniles who
committed a homicide offense is allowable only if the court considers the
‘ “mitigating qualities of youth” ’ and limits ‘this harshest possible penalty’ to
those ‘rare juvenile offender[s] whose crime[s] reflect[ ] irreparable
corruption.’ ” (People v. Watson (2017) 8 Cal.App.5th 496, 511–512, quoting
Miller, supra, at pp. 476, 479–480, 489.)
In California, section 190.5 permits a trial court to sentence 16 and 17
year olds convicted of special circumstance murder to either LWOP or 25
years to life. (§ 190.5, subd. (b).) The California Supreme Court has held
that, when properly construed, “section 190.5(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.4th at p. 1387.)
Instead, the sentencing scheme “authorizes and indeed requires
consideration of the distinctive attributes of youth highlighted in Miller.”
(Gutierrez, at p. 1361.)
Thus, in sentencing a minor to LWOP, trial courts must consider the
following factors set forth in Miller: (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
5
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.’ ” (Gutierrez,
supra, 58 Cal.4th at pp. 1388–1389, citing Miller, supra, 567 U.S. at pp. 477–
478.)
“To be sure,” however, “[n]ot every factor will necessarily be relevant in
every case.” (Gutierrez, supra, 58 Cal.4th at p. 1390.) Further, a court
imposing an LWOP sentence is not required to make a separate factual
finding that the offender is permanently incorrigible, or to provide an on-the-
record explanation with an implicit finding that the defendant is
permanently incorrigible. (Jones v. Mississippi (2021) 593 U.S. 98, 101, 113.)
We review the court’s sentencing decision for abuse of discretion. (See
People v. Watson, supra, 8 Cal.App.5th at p. 514.) “The abuse of discretion
standard is not a unified standard; the deference it calls for varies according
to the aspect of a trial court’s ruling under review. The trial court’s findings
of fact are reviewed for substantial evidence . . . and its application of the law
to the facts is reversible only if arbitrary and capricious.” (Haraguchi v.
Superior Court (2008) 43 Cal.4th 706, 711–712, fns. omitted; accord, People v.
Cardenas (2025) 18 Cal.5th 797, 812.)
“A substantial evidence inquiry examines the record in the light most
favorable to the judgment and upholds it if the record contains reasonable,
credible evidence of solid value upon which a reasonable trier of fact could
have relied in reaching the conclusion in question.” (People v. Barnwell
(2007) 41 Cal.4th 1038, 1052.) We presume in support of the judgment the
existence of every fact the trier of fact could reasonably infer from the
evidence. (People v. Edwards (2013) 57 Cal.4th 658, 715.) We do not resolve
credibility issues or evidentiary conflicts. (People v. Zamudio (2008) 43
6
Cal.4th 327, 357 (Zamudio).) “Where the circumstances reasonably justify
the trier of fact’s findings, a reviewing court’s conclusion the circumstances
might also reasonably be reconciled with a contrary finding does not warrant
the judgment’s reversal.” (Id. at p. 358.)
Additional Background
Prior to resentencing on February 27, 2025, the parties submitted
sentencing statements,3and the trial court held hearings where it heard
arguments on the appropriate sentence. Both sides recommended a sentence
of 25 years to life, rather than LWOP, plus one year for the firearm
enhancement.
At a hearing on December 20, 2024, the court asked the prosecutor to
explain the reasons for the People’s recommendation of 25 years to life, given
that they had previously recommended LWOP when defendant was originally
sentenced. The prosecutor relied on the People’s psychological expert, who
had prepared a report in connection with the most recent transfer hearing
and who, according to the prosecutor, “believes that [defendant] was capable
of rehabilitation.” Although the People opposed parole for defendant, the
3 The People’s sentencing statement was lodged under seal in this court
and apparently also in the trial court. However, the record on appeal does
not contain any sealing order by the trial court. (See Cal. Rules of Court, rule
2.551(a) [“A record must not be filed under seal without a court order”].)
Further, this court has not been requested to, nor has it issued, any separate
order to seal this record. (See id., rule 8.46.) In any event, the parties have
waived confidentiality as to the some of the contents of the People’s
sentencing statement because they freely referred to those contents in both
the trial court and in their appellate briefs. Specifically, below the parties
and the trial court referred to the reports of the parties’ psychological experts
filed in connection with the 2024 transfer proceedings before the juvenile
court. The parties also do so in their appellate briefs, none of which has been
filed under seal. We thus may refer to matters contained in the People’s
sentencing statement.
7
prosecutor stated: “the deciding factor was that, as troubling and as horrific
as the underlying offense is, is it right and appropriate for us to overlook
what a professional, who had the opportunity to interview him, says? And
it’s a fine line, your Honor, absolutely.”
The court disagreed with the prosecutor’s characterization of the
expert’s report, noting that the expert did not say “at all in the report” that
“defendant is clearly on track for rehabilitation.” The court went on to
schedule another hearing so that it could have a “more robust discussion”
with the parties regarding defendant’s sentence. That hearing was held on
February 14, 2025.
At resentencing on February 27, the court indicated it had reviewed the
record, including the parties’ resentencing brief, the expert reports submitted
for the most recent transfer hearing, the juvenile court’s transfer order of
May 15, 2024, the briefs and transcripts from the original sentencing
hearing, and the opinions in the prior appeals.
The court analyzed the factors in aggravation and mitigation set forth
in section 190.3. It found that the circumstances of the crime were “really
horrible” and involved “the execution of a witness to a crime to prevent them
from testifying at trial;” that defendant’s criminal history included “guns,
robberies, and carjackings;” and that he was the actual killer of the victim.
The court found that the aggravating circumstances outweighed those in
mitigation.
The court then stated that pursuant to Miller, it had to consider
“evidence relating to mitigating factors attributed to the age of the defendant
at the time of the commission of the offense and the attributes attendant with
youthful offenders and their lack of maturity and how those youthful
attributes may have diminished the justification to impose an LWOP
8
sentence, which is the harshest penalty for people who are juveniles at the
time of the commission of the offense.” The court then analyzed the Miller
factors at length.
For the first factor—the juvenile’s age and its hallmark features,
including immaturity, impetuosity, and failure to appreciate risks and
consequences—the court noted that defendant was 17 years old at the time of
the offenses, and thus was on the “older on the scale of minors” and “just
about a year before being majority.” By that time, “defendant had
accumulated a very impressive juvenile record.” In separate incidents while
he was 13 years old, he “hit a female student and threatened to kill officers
and students,” shot paintball guns at passing cars, and drove a stolen car and
crashed it into a light pole while recklessly evading police. At age 14, “he
committed eight different robberies at gunpoint, carjacking at gunpoint, and
assaulted . . . several victims, leaving one bleeding and unconscious with
head wounds. A handgun was involved then as well.” And at age 17,
defendant committed a robbery with a gun and other crimes before the
instant murder.
The court observed defendant had been given “extensive” rehabilitation
opportunities before the murder. In 2004, he was in an intensive program
that included anger management classes and “for a short time was doing
well.” But in 2005 and 2006, he “was exhibiting a lot of behavioral issues.”
Defendant refused various services, including mental health services, and
absconded from one juvenile facility. In 2007, he appeared to be “on a
positive path” when he was placed in a program for 20 months, during which
time he “obtained a high school diploma, participated in classes and
programs for anger management, peer relationships, gang involvement,
substance abuse.” But two days after leaving that program, “he began his
9
conspiracy with his codefendants to kill Mr. Le, and 24 days after leaving
that program, Mr. Le was killed, shot at close range by the defendant in the
head.”
Turning to the second Miller factor, the juvenile’s family and home
environment, the court explained that defendant’s “family life and upbringing
was poor;” “[h]is childhood was fraught with problems;” he was exposed to
violence and drugs early; and “started carrying a gun at ten years old when
he started selling crack cocaine.” Although his parents were not present or
supportive, he had two grandmothers who appeared to have loved and cared
for him and tried to help him, “but he was largely uncontrollable.”
As to the third Miller factor, the circumstances of the offense, the court
observed that the circumstances surrounding the murder were “horrible,”
with defendant and his codefendants killing the victim because the victim
was going to testify against one of the codefendants. Defendant participated
in planning the killing, armed himself, followed the victim from San
Francisco to his home in Novato, and then shot the victim several times “at
close range . . . in the head.” The court expressed, “[I]t’s hard to imagine a
worst set of circumstances than this. . . . [T]his was a cold-blooded
premeditated murder, and all because the victim had the nerve to be the
victim of a crime in San Francisco and report it.”
The court found no evidence that would suggest the fourth Miller
factor—whether the defendant might have been charged with a lesser offense
but for incompetencies associated with youth—applied. The court added that
there also was “no evidence that the defendant was forced to commit the
offense by any type of peer pressure, which he, when speaking to the
psychiatrists or psychologists, confirmed.”
The court turned to the fifth Miller factor, the possibility of
10
rehabilitation. It acknowledged that in the last five years while in prison,
defendant had shown some positive conduct, including finding jobs. Yet,
defendant’s record in prison was not “stellar,” as he had violations including
for fighting, submitting a “dirty” urine test, refusing to take a urine test,
tattooing a cellmate, disobeying a court order, and engaging in improper
sexual activity with a visitor.
The court then pointed to the following opinions of the defense’s and
prosecutor’s experts from the transfer hearing that caused the court
“concern.” The court explained: “Dr. Rokop, who was hired by the defense,
had the following to say . . . . ‘The current risk for future violence and
criminality is moderate. The potential lethality of future violence is a
concern, but his level of violence in prison has been minimal. Any
rehabilitation efforts will need to be fairly intense to ensure the safety of the
public.’ ” The court continued: “Dr. Carmichael, hired by the
prosecution, . . . similarly came to the following conclusion: ‘The defendant’s
risk for future violence and criminality is moderate. There is a higher risk
for criminal behavior for longer periods of time even with targeted
programming in place. People with the defendant’s experiences often
struggle to sustain gains from treatment programs. Heightened risk of
future violence is present. The passage of time is not a proven safeguard that
effectively reduces a person’s risk of recidivism.”
After going through the Miller factors, the court expressed that the fact
that both sides were recommending 25 years to life and not LWOP “weighed
very heavily on [it] in determining what to do here.” Nonetheless, the court
concluded: “if this case is not an LWOP case, what is? The defendant was 17
at the time. He had an extensive criminal record. The offense is very
serious. He had exhaustive rehabilitative efforts. He murdered the victim in
11
cold blood with premeditation and lying in wait. I have tried to find a way to
follow the guidance and recommendation of the parties here, but I simply
cannot.” Accordingly, the court reimposed a sentence of LWOP, plus one
year.
The Trial Court Did Not Abuse Its Discretion In Reimposing an
LWOP Sentence
The argument section of defendant’s opening brief is entitled, “Points
and Authorities,” and consists of two headings: (1) “The Sentencing Court
Abused Its Discretion By Sentencing [Defendant] to Life Without the
Possibility of Parole” and (2) “The Appropriate Sentence for [Defendant] Is
Life With the Possibility of Parole.”
Under the first heading, defendant contends that “[t]he sentencing
court abused its discretion when determining whether there was information
sufficient to modify the sentence to life with parole from life without parole.”
He points to this statement by the court at resentencing: “this court must
decide if the LWOP plus one is and continues to be the appropriate sentence
or if 25 years to life is a more appropriate sentence after considering all of the
information.” Defendant contends: “Based on this statement, the sentencing
court presumed that the life without parole sentence originally imposed was
the preferred sentence. This is in contradiction to the requirement of Penal
Code Section 190.5(b) which, when properly construed, confers discretion on a
trial court to sentence a 16- or 17-year-old juvenile convicted of special
circumstance murder to life without parole or to 25 years to life, with no
presumption in favor of life without parole. [Citation.] The failure to treat
the two sentencing options as equivalent options was therefore an abuse of
the trial court’s discretion.” (Emphasis omitted.) This argument lacks merit.
Defendant’s interpretation of the court’s statement is strained and
unreasonable. When the court stated it must decide if the LWOP sentence “is
12
and continues to be the appropriate sentence,” it was not suggesting any
preference in favor of LWOP. Rather, a reasonable reading of that statement
is that the court was merely referring to the fact that defendant had been
originally sentenced to LWOP and explaining that it had to decide whether it
should impose that same sentence again based on the information before it.
Indeed, the record as a whole reflects that the court understood and
properly exercised its full discretion. The court and the parties specifically
discussed Gutierrez’s holding that section 190.5 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.4th at p. 1387.)
The court also recognized that under Miller it was required to consider
“evidence relating to mitigating factors attributed to the age of the defendant
at the time of the commission of the offense and the attributes attendant with
youthful offenders and their lack of maturity and how those youthful
attributes may have diminished the justification to impose an LWOP
sentence, which is the harshest penalty for people who are juveniles at the
time of the commission of the offense.” The court proceeded to thoughtfully
and thoroughly analyze the Miller factors, make factual findings, and explain
its reasoning. Thus, as the Attorney General observes, “the record makes
clear the court properly understood its discretion.”
The remainder of defendant’s arguments under the first heading of the
argument section of his opening brief overlaps with his arguments under the
second heading. Those arguments effectively assert the same thing, which is
that “the appropriate sentence for [him] was life with the possibility of
parole.” This position is described in various ways throughout his briefing,
exemplified by this description in his reply brief: “[Defendant] is capable of
13
rehabilitation. Therefore, the Trial Court erred in sentencing [him] to life in
prison without the possibility of parole.”
Although not entirely clear, defendant seems to argue that the evidence
was insufficient to support his LWOP sentence because the evidence
demonstrates he was “capable of rehabilitation” and thus “worthy” of a
sentence of life with the possibility of parole. In claimed support, defendant
relies on: (1) the People’s recommendation of a sentence of 25 years to life,
plus one year; (2) certain statements of the juvenile court in its May 15, 2024
transfer order; and (3) purported evidence of “his good conduct while
incarcerated and his continued progress towards rehabilitation.”
As an initial matter, we note that defendant’s argument focuses solely
on the fifth Miller factor—the possibility of rehabilitation—and thus eschews
any discussion of the other four factors. As detailed above, the trial court
analyzed each of the Miller factors. By failing to address the trial court’s
analysis of the first four Miller factors, defendant effectively concedes the
correctness of that analysis. (See Westside Center Associates v. Safeway
Stores 23, Inc. (1996) 42 Cal.App.4th 507, 529 [party “effectively concedes”
issue by failing to address it in brief]; Glendale Redevelopment Agency v.
Parks (1993) 18 Cal.App.4th 1409, 1424 [parties “impliedly concede” an issue
by failing to address it].)
As another initial matter, to the extent defendant is attempting to
challenge the sufficiency of the evidence supporting the trial court’s factual
findings, the claim is forfeited because he fails to set forth a complete
summary of the evidence material to the issue. “ ‘ “[A] reviewing court must
presume that the record contains evidence to support every finding of fact,
and an appellant who contends that some particular finding is not supported
is required to set forth in his brief a summary of the material evidence upon
14
that issue. Unless this is done, the error assigned is deemed to be waived.” ’ ”
(People v. Dougherty (1982) 138 Cal.App.3d 278, 282, quoting In re Marriage
of Fink (1978) 25 Cal.3d 877, 887–888.)
Forfeiture aside, defendant’s argument fails. To begin with, he fails to
provide any evidence to support the factual premise of his argument: he was
capable of rehabilitation. As noted above, defendant relies in part on the fact
that at resentencing, the People recommended a sentence of one year plus 25
years to life, instead of one year plus LWOP—a change from their
recommendation at the original sentencing. Defendant asserts, “the Marin
County District Attorney recognized that [he] was capable of some form of
redemption and, given his juvenile status at the time of the offense, was
worthy of the opportunity of parole eligibility.” Defendant treats the
prosecutor’s argument about his “capabil[ity] of . . . redemption” as evidence
of that purported fact. However, “[a]rgument by counsel is not evidence”
(Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, 1433) and for
that reason, an appellate court will “not consider counsel’s argument in
determining whether there is substantial evidence to support” a trial court’s
finding. (Ibid.)
As another basis of his claimed capability of rehabilitation, defendant
points to the following statements of the juvenile court in its May 15, 2024
transfer order: “It is respectfully suggested that [defendant’s] rehabilitation
lies in the direction of a system that can provide appropriate programing,
housing, vocational training and close monitoring and consequences that will
forever break the cycle that [defendant] has lived and from which he can
materially benefit. That path will materially benefit [defendant], give him an
opportunity to live a sustained, law-abiding life, and provide the public with
the safety it requires and the benefit that a rehabilitated [defendant] has to
15
offer.” This statement, defendant contends, “indicates a realistic path for
[his] rehabilitation” and “shows that the court did not believe [him] to be
incorrigible.” Defendant’s reliance on the juvenile court’s transfer order is
misplaced. That the juvenile recognized a “path” for defendant’s
rehabilitation did not necessarily mean that it also found him amenable to
any such rehabilitation. In fact, in deciding to transfer the case to the
criminal court, the juvenile court concluded that defendant was not amenable
to rehabilitation.
This leaves us with defendant’s bare assertions peppered throughout
his briefing such as: “The decade plus years that have passed since the
homicide occurred have shown that [he] is capable of following his current arc
towards rehabilitation;” he is “worthy of an opportunity to become eligible for
parole based on his good conduct while incarcerated and his continued
progress towards rehabilitation;” and his “progress and movement towards
rehabilitation in the years since his original conviction strongly indicate that
he is worthy of a life with the possibility of parole sentence.” In the first
place, defendant has forfeited these contentions because he fails to support
them with citations to the record and cogent legal analysis. (See People v.
Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should contain a legal
argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it
without consideration.’ ”]; Hernandez v. First Student, Inc. (2019) 37
Cal.App.5th 270, 277 [“By failing to provide adequate record citations or
make any cognizable claims of error . . . , appellants have waived [their]
challenge [on appeal]”].) But even if not forfeited, defendant’s claim is
unavailing.
In focusing on purported evidence of “his good conduct while
16
incarcerated,” defendant essentially asks us to reweigh the evidence, draw
inferences contrary to those the trial court drew, and substitute a factual
finding favorable to him with the adverse finding the trial court made. In
doing so, defendant misconstrues the substantial evidence test. In reviewing
a trial court’s factual finding, we do not determine whether substantial
evidence might support the appealing party’s version of events, but rather
whether substantial evidence supports the trial court’s factual finding.
(Zamudio, supra, 43 Cal.4th at p. 358.) Here, there was such evidence.
The trial court was required to, and did, “consider any evidence or other
information in the record bearing on ‘the possibility of rehabilitation,’ ” and,
as relevant to that question, “[t]he extent or absence of ‘past criminal
history.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1389, citing Miller, supra, 567
U.S. at pp. 478, 479.) We infer from the court’s comments and ruling at
resentencing that it impliedly found the possibility of rehabilitation was low.
The record, as recounted by the court, contains substantial evidence to
support that implied finding.
The court found that prior to committing the murder, “defendant had
accumulated a very impressive juvenile record,” which included several
incidents involving assault, criminal threats, and multiple robberies at
gunpoint. The court noted there were “exhaustive rehabilitative efforts” that
were unsuccessful. Although defendant had shown some progress in one
program, “24 days after leaving that program, [the victim in this case] was
killed, shot at close range by the defendant in the head.”
The court also considered defendant’s conduct while in prison during
the five years prior to resentencing. Although defendant showed some
positive conduct such as finding jobs, he also committed numerous rule
violations including for fighting, submitting a dirty urine test, refusing to
17
take a urine test, tattooing a cellmate without authority, disobeying a direct
order, and engaging in improper sexual activity with a visitor.
In addition, the court noted that both parties’ psychological experts
provided “concern[ing]” opinions about the possibility of rehabilitation. As
the court noted, according to the defense expert, “ ‘The current risk for future
violence and criminality is moderate. The potential lethality of future
violence is a concern, but his level of violence in prison has been minimal.
Any rehabilitation efforts will need to be fairly intense to ensure the safety of
the public.’ ” And the prosecution’s expert opined: “ ‘The defendant’s risk for
future violence and criminality is moderate. There is a higher risk for
criminal behavior for longer periods of time even with targeted programming
in place. People with the defendant’s experiences often struggle to sustain
gains from treatment programs. Heightened risk of future violence is
present. The passage of time is not a proven safeguard that effectively
reduces a person’s risk of recidivism.’ ”
In sum, there was substantial evidence from which the court could
reasonably find, as it impliedly did, that the possibility of rehabilitation was
low. Consequently, defendant has failed to establish the factual premise of
his argument that he was capable of rehabilitation.
Moreover, as noted above, defendant does not challenge the court’s
analysis of the other Miller factors. And in any event, we see no abuse of
discretion in the court’s analysis of those other factors, or in its overall
weighing of all of the factors to conclude that an LWOP sentence was
warranted. In imposing an LWOP sentence, the court found, in addition to
the unlikelihood of rehabilitation, that defendant was only one year shy of 18
years old when he committed the murder; had accumulated an extensive
criminal history by the time of the murder, including eight different robberies
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at gunpoint and violent assault of several victims; the circumstances of the
murder were “horrible,” with defendant “participat[ing] in the planning
leading up to the killing,” arming himself, and following the victim, and
shooting him several times “in the head at close range;” and there was no
evidence defendant committed the murder due to peer pressure. Given these
findings, the court could reasonably conclude that defendant was a “ ‘rare
juvenile offender whose crime reflect[ed] irreparable corruption.’ ” (Miller,
supra, 567 U.S. at pp. 479–480.)
Accordingly, the court did not abuse its discretion in reimposing a
sentence of LWOP plus one year.
DISPOSITION
The judgment is affirmed.
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RICHMAN, J.
We concur.
STEWART, P. J.
MILLER, J.
(A173088N)
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