P. v. Ainsworth
Filed 9/13/13 P. v. Ainsworth CA2/4
NOT TO BE PUBLISHED IN THE
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TYRELL AINSWORTH,
Defendant and Appellant.
B240818
(Los Angeles County
Super. Ct. No. NA084832)
APPEAL
from a judgment of the Superior Court of
County, Tomson T. Ong, Judge. Affirmed and remanded.
Deborah
L. Hawkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., and Robert C. Schneider, Deputy Attorneys General, for
Plaintiff and Respondent.
introduction
A
jury convicted defendant Tyrell Ainsworth of
subd. (a))
title="">[1] and found true the allegation that defendant
personally used a firearm within the meaning of section 12022.53, subdivision
(d). Defendant admitted the allegation
that he had suffered one prior strike conviction. After defendant’s successful motion to proceed
in propria persona at the sentencing
hearing, the court sentenced him to state prison for 75 years to life,
consisting of 25 years to life for the murder, doubled pursuant to the “Three
Strikes†law, plus a consecutive sentence of 25 years to life for the gun use
enhancement.
Defendant
contends on appeal that the trial court erred by refusing to instruct the jury
regarding voluntary manslaughter
because there was substantial evidence the killing was done in the heat of
passion, and by admitting evidence that a shotgun not involved in the killing
was found at defendant’s residence. We are
not persuaded by either of these arguments.
However, we agree with defendant’s further contention that because he
was a minor at the time of the killing and the court did not consider the
factors specified in Miller v. Alabama
(2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller) before imposing a sentence of 75 years to life, we must
remand the matter to the trial court to reconsider its sentencing decision in
light of that case. We thus affirm the
judgment of conviction but remand the matter to the trial court for
resentencing.
Defendant
also contends and the Attorney General concedes that the trial court imposed an
erroneous fine and erred in calculating his presentence
judgment be corrected.
factual and
procedural background
Prosecution Case
Murder
On
February 7, 2010, Sherrice May, Robert Stepney, and defendant (known as “Southâ€
or “South Sideâ€) were at the home of Andrea Hood along with several other
people. The group was hanging out,
drinking, smoking marijuana, and using Ecstasy pills. The victim, James Withers, approached
defendant repeatedly and tried to persuade him to commit a robbery with him, to
“get in with [defendant]†and be able to “make money, too.†Defendant got angry at Withers for talking
openly about robberies in the group setting and for persisting in discussing
the subject. While the group was near
the apartment building’s laundry room, Withers again brought up the subject and
defendant pulled out a gun and pointed it at Withers’s face, telling Withers to
stop talking to him. Defendant said, “If
I have to tell you again,†implying they were going to fight. Defendant called Withers a derogatory name
and said, “I’ll kill you.†Defendant’s
voice was not loud during this conversation. Stepney said the gun was a .380 semiautomatic
pistol. May recalled seeing defendant
with the gun before, as well as with a Mossberg shotgun. Defendant put the gun away and said he did not
need a gun to fight, or “handle,†Withers.
Defendant
and Stepney then took Withers and dropped him off somewhere away from the
gathering, expecting not to see him again that night. But shortly thereafter May, Stepney, and
defendant drove a friend home then went to a nearby liquor store and Withers
was there. Withers got in the back seat
of the car with May, Stepney, who was in the front passenger seat, and
defendant, who was driving. Withers
asked defendant again about committing a robbery, and defendant responded that
they would do it right then. As
defendant drove he repeatedly told Withers that he had better be ready.
Defendant
drove to a residential neighborhood. He
said that various houses had too much light around them and kept driving until
he found a dark area. Defendant stopped
the car, told May to get into the driver’s seat, and told Withers to get out of
the car. May thought they were going to
rob someone. Defendant and Withers
exited the car and May saw them standing at the right rear of the car; she
adjusted the rearview mirror so she could see them. Seconds later, defendant pulled out his black
handgun and pointed it at Withers’s face.
May saw a flash and heard a gunshot, then saw Withers fall and hit the
trunk of the car. Stepney also saw the
gunshot in the mirror.
Defendant
got back in the car and asked if he had blood on his face. He told May to drive. He directed her where to go, saying “I
noodled that n****r.†Defendant warned
May and Stepney that they “didn’t see nothing.â€
He said if what had happened got out he would know it was their fault,
and he said if he was caught he would make it seem that all three of them were
involved. He told them he would come get
them in the morning to help him clean the car, and he did so. May said there was “blood and brains and a
bunch of stuff all over the car.â€
May
and Stepney knew defendant was a member of the South Side Compton Crips gang
and they were afraid of him. After the
shooting, defendant kept seeking them out, and they heard he was saying that he
was going to kill them next. Both May
and Stepney were afraid to testify at trial.
Investigation
Law
enforcement agents searched defendant’s residence and found a .45 caliber
revolver and a loaded pistol-grip Mossberg shotgun. Defendant’s grandmother gave Long Beach
Police Detective Daniel Mendoza a live .380 round of ammunition she had found
in her bathroom after she heard defendant “racking†a gun in the bathroom. The grandmother knew defendant had a Mossberg
shotgun and that he had chased a young man through the apartment courtyard with
it.
Defendant
attempted to flee from the police when they arrested him in order to question
him regarding the Withers murder. He
told the police he had been at a party with Withers the night the latter was
killed. He said he had a black BB gun he
carried for protection, and that he was waving it around at the party. He claimed to have given the BB gun to
someone else. Defendant denied having anything
to do with Withers’s murder. He said
Withers had stolen things from the apartment where the party was held. Defendant told the detective that the police
had nothing: no gun, car, or crime
scene.
Police
found a spent shell casing near Withers’s body.
Marks on that shell casing were compared to marks on the live .380 round
found in defendant’s grandmother’s bathroom.
Both rounds had been cycled through the same handgun.
II. The Defense Case
Withers’s
mother, Karen Phillips, testified that Withers called her frequently to check
in. On the night he was killed, he
called and told her he was with May and would be staying at Andrea’s home. He said he would be home the following day,
after work.
May
called later and asked Phillips if Withers was with her. This worried Phillips because Withers had
said he was with May.
discussion
I. Instruction on Voluntary Manslaughter
as a Lesser Included Offense
When
discussing jury instructions with counsel, the court stated, “I don’t have any
basis [f]or any lesser in this case, including voluntary manslaughter, because
there is no heat of passion issue and there is also no imperfect self-defense
issue. Agree?†Counsel both agreed, and also agreed that the
case involved the jury finding defendant either guilty or not guilty of murder.
On
appeal, defendant contends that the trial court erred because there was
evidence of an ongoing quarrel that night between defendant and Withers, and
therefore the trial court should have instructed the jury, sua sponte, with
CALJIC Nos. 8.40 (voluntary manslaughter), 8.42 (sudden quarrel or heat of
passion), 8.43 (murder or manslaughter), 8.44 (no specific emotion alone
constitutes heat of passion), 8.50, and 8.72 (doubt whether murder or
manslaughter). Because we agree
with the trial court that the evidence did not support giving the instruction,
we find no error.
A
trial court must instruct the jury on every theory of the case supported by
substantial evidence (People v. Montoya
(1994) 7 Cal.4th 1027, 1047), and has a sua sponte duty to instruct on
lesser included offenses when the evidence raises a question regarding whether
all the elements of the charged offense were present and the evidence would
justify a conviction on the lesser offense.
(People v. Hughes (2002) 27
Cal.4th 287, 365; People v. Lewis
(2001) 25 Cal.4th 610, 645; People v.
Breverman (1998) 19 Cal.4th 142, 148-149.)
“On the other hand, the court is not obliged to instruct on theories
that have no such evidentiary support.â€
(People v. Breverman,
evidence that a reasonable jury could find persuasive. (People
v. Hughes, supra, at pp. 366-367;
People v. Lewis, supra, at p. 645; see also People
v. Middleton (1997) 52 Cal.App.4th 19, 33, disapproved on other grounds in
745, 752-753, fn. 3 [trial court need not instruct on an issue when the
evidence in support is merely minimal and insubstantial].) On appeal, we review independently the
question whether the trial court erred by failing to instruct on a lesser
included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
“Voluntary
manslaughter is a lesser included offense of murder. [Citation.]
One form of the offense is defined as the unlawful killing of a human
being without malice aforethought ‘upon a sudden quarrel or heat of passion.’ (§ 192, subd. (a).) ‘The heat of passion requirement for
manslaughter has both an objective and a subjective component. [Citation.]
The defendant must actually, subjectively, kill under the heat of
passion. [Citation.] But the circumstances giving rise to the heat
of passion are also viewed objectively.
As we explained long ago in interpreting the same language of section
192, “this heat of passion must be such a passion as would naturally be aroused
in the mind of an ordinarily reasonable person under the given facts and
circumstances,†because “no defendant may set up his own standard of conduct
and justify or excuse himself because in fact his passions were aroused, unless
further the jury believe that the facts and circumstances were sufficient to
arouse the passions of the ordinarily reasonable man.â€â€™ [Citation.]â€
(People v. Cole, supra, 33
Cal.4th at pp. 1215-1216.)
Evidence
of provocation or heat of passion is simply not present in this case. Defendant’s state of mind was never argued by
the defense; rather, the defense theory was that defendant was not the shooter. He asserted May and Stepney killed Withers
and blamed defendant. “Generally, when a
defendant completely denies complicity in the charged crime, there is no error
in failing to instruct on a lesser included offense. (See People v. Medina (1978) 78
Cal.App.3d 1000, 1005-1006 [no duty to instruct on voluntary manslaughter based
on diminished capacity when defendant testified he was not present when victim
was shot].)†(People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.)
In
addition, there is no evidence in the record suggesting any objectively
reasonable provocation—that circumstances giving rise to a heat of
passion existed from an objective standpoint—or demonstrating defendant subjectively acted under
the heat of passion. Defendant points to the evidence that he was
provoked by Withers bothering him repeatedly about committing a robbery as
being sufficient. However, no rational
trier of fact could conclude that such behavior was sufficient to arouse heat
of passion in the mind of an ordinarily reasonable person. In addition, the evidence showed that
significant time passed between the angry confrontation at Andrea Hood’s party
and the time that defendant calmly and dispassionately drove around looking for
a dark place to stop and kill Withers, which he did moments after exiting the
car and without yelling or appearing upset.
Thus, the evidence did not support a finding that defendant was acting
under the heat of passion. Even were we
to accept that this was defendant’s state of mind, we would not find the
evidence sufficient to support an instruction on voluntary manslaughter. These facts and circumstances were not
sufficient to arouse the passions of the ordinarily reasonable person. (People
v. Padilla (2002) 103 Cal.App.4th 675, 678.)
In
any event, the omission of instructions on voluntary manslaughter did not
prejudice defendant. “[T]he failure to
instruct sua sponte on a lesser included offense in a noncapital case is, at
most, an error of California law
alone, and is thus subject only to state standards of reversibility.†(People
v. Breverman, supra, 19 Cal.4th
at p. 165.) Such an error is not subject
to reversal unless, upon an examination of the entire record, it appears
“reasonably probable†the defendant would have obtained a more favorable result
had the error not occurred. (
836].) There is no reasonable
probability that the jury would have rendered a verdict more favorable to
appellant had voluntary manslaughter instructions been given. As we have discussed, there was no evidence
of provocation.
In a
related argument, defendant also contends that his first degree murder
conviction was not supported by substantial
evidence because it was inherently improbable that he would set out to kill
Withers in front of two witnesses, and that if he had planned to kill Withers
at the outset of the car trip he would have left May and Stepney behind. There is no merit to this argument. Rather, the evidence supports the conclusion
that defendant calmly drove for some time until he found a location to carry
out his plan to kill Withers, and after doing so threatened May and Stepney
that if anyone found out, he would retaliate against them by saying they were
involved or by killing them. He seemed
to feel so invincible that he even forced them to clean their friend Withers’s
blood and brains off the car the next day.
This was not the act of a person who had any compunction about killing
someone in front of innocent witnesses.
In
People v. Anderson (1968) 70 Cal.2d
15, 26-27, the Supreme Court identified three categories of evidence which have
been found sufficient to sustain a finding of premeditation and deliberation: (1) facts showing planning activity; (2) facts
suggesting motive; and (3) facts about the manner of killing which suggest a
preconceived design. “[I]t is not
necessary that the Anderson ‘factors
be present in some special combination or that they be accorded a particular
weight.’ (People v. Pride (1992) 3 Cal.4th 195, 247.)†(People
v. Sanchez (1995) 12 Cal.4th 1, 33.)
The
evidence demonstrated that defendant engaged in planning activity. Defendant drove until he found a suitably
dark spot, then got out of the car, bringing a gun with him, and immediately
accosted Withers. The evidence, as
defendant urges with regard to the previous portion of this discussion, was
that defendant was angry that Withers kept pestering him about committing a
robbery with him and defendant wanted him to be quiet. Thus, evidence of a motive to act was
present. Finally, facts about the manner
of the killing suggest a preconceived design.
As noted above, defendant told Withers to exit the car and took a gun
with him. After a very brief verbal
exchange, defendant pointed a gun at
Withers’s head and fired. This evidence
readily supports the inference that defendant had one purpose in mind: to shoot and kill Withers. A conviction of premeditated murder requires
a finding of specific intent to kill.
“‘“[I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself together with its
surrounding circumstances must generally form the basis from which the intent
of the actor may legitimately be inferred.â€
[Citation.]’ [Citation.]†(People
v. Smith (1998) 64 Cal.App.4th 1458, 1469.)
Shooting someone point blank in the head is, without question,
sufficiently lethal that a jury could find there was sufficient evidence of
intent to kill under the circumstances present here.
Finally,
defendant contends that the trial court should have instructed on voluntary
manslaughter because there was substantial evidence to support the instruction,
and as a result of the court’s error, the jury was not fully instructed on the
prosecution’s burden of proving the absence of heat of passion beyond a
reasonable doubt. He claims “[t]he trial
court invaded the province of the jury when it determined there was no evidence
of voluntary manslaughter.†As we have
discussed, there was no substantial evidence to support the instruction on this
claim.
II. Introduction of Evidence Regarding a
Shotgun Not Used in the Killing
Defendant
next contends that the trial court abused its discretion by admitting evidence
that a Mossberg shotgun was found in the home where defendant sometimes stayed,
even though the shotgun was not involved in the commission of the present
offense. He contends its admission
violated his federal and state due process rights to a fair trial and was more
prejudicial than probative. He contends
the shotgun was irrelevant and therefore inadmissible. We disagree.
“[A]n
appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence, including one that
turns on the relative probativeness and prejudice of the evidence in question
(e.g., People v. Alvarez [(1996)] 14
Cal.4th [155,] 214-215; People v. Rowland
[(1992)] 4 Cal.4th [238,] 264).
Evidence is substantially more prejudicial than probative (see Evid.
Code, § 352) if, broadly stated, it poses an intolerable ‘risk to the fairness
of the proceedings or the reliability of the outcome’ (People v. Alvarez, supra,
14 Cal.4th at p. 204, fn. 14).†(
724.)
Defendant
contends that admission of evidence regarding the shotgun was erroneous because
it served only to prove his “prior bad acts,†and as such is made inadmissible
by Evidence Code section 1101, subdivision (a) (evidence of his character or a
trait of his character offered to prove his conduct on the specified occasion
of the charged murder). In
our Supreme Court held: “When the
prosecution relies . . . on a specific type of weapon, it is error to
admit evidence that other weapons were found in [the defendant’s] possession, for
such evidence tends to show, not that he committed the crime, but only that he
is the sort of person who carries deadly weapons.†(Id.
at p. 577.) On the other hand, the court
has also held “‘that when weapons are otherwise relevant to the crime’s commission,
but are not the actual murder weapons, they may still be admissible.’ (People
v. Cox (2003) 30 Cal.4th 916, 956.)â€
(People v. Homick (2012) 55
Cal.4th 816, 876.)
Some
degree of connection between the weapon and the crime must be shown in order for
evidence of the weapon to be admissible.
Here, evidence of the shotgun was relevant to show defendant’s
consciousness of guilt. Other evidence
established that the murder weapon was a handgun defendant had in his
possession when he racked the gun in his grandmother’s bathroom; the markings
on a live round of ammunition found on her bathroom floor immediately
thereafter matched the markings on the bullet that killed Withers. May said before the murder she frequently saw
defendant in possession of a black handgun, and that he often played with and
stared at it. However, when defendant’s
residence was searched, other weapons were found, including the Mossberg
shotgun witnesses testified defendant owned, but the black handgun was not
recovered. The reasonable inference is
that defendant disposed of the handgun after killing Withers because he knew it
could be connected to the murder. That
inference was made stronger by comparison with the fact that he did not dispose
of the shotgun. In other words, he specifically
chose to discard the murder weapon, but kept a gun with no connection to the
murder. Thus, the evidence of
consciousness of guilt was established by the presence of the shotgun and the
absence of the black handgun.
Further,
we do not find that admission of the evidence of the shotgun was more
prejudicial than probative. The trial
court’s decision to admit evidence of the shotgun was not beyond the bounds of
reason, and cannot be said to have resulted in a manifest miscarriage of
justice. (People v. Waidla, supra,
22 Cal.4th at p. 724.)
Even assuming
for the sake of argument that admission of the shotgun was erroneous, there is
no reasonable basis to argue that the jury’s decision turned on the evidence
that defendant possessed a shotgun. (
836.) The evidence of defendant’s guilt
was overwhelming.
Be Reconsidered in Light of Miller
Because
he was 17 at the time of the murder, defendant argues that his sentence of 75
years to life is unconstitutional.
claims his sentence is cruel and unusual as shown by recent federal and state
high court case law, specifically Miller,
supra, 567 U.S. ___ [132 S.Ct. 2455];
Graham v. Florida (2010) 560 U.S. 48 [130
S.Ct. 2011, 176 L.Ed.2d 825] (Graham);
and People v. Caballero (2012) 55
Cal.4th 262 (Caballero). We conclude this matter should be remanded for
resentencing in light of recent case law.
In
567 U.S. at page ___ [132 S.Ct. at page 2475], the Supreme Court recently determined
mandatory life-without-possibility-of-parole sentences for juvenile offenders
who commit homicide violate the Eighth Amendment’s ban on cruel and unusual
punishment, emphasizing the necessity for “the opportunity to consider
mitigating circumstances before imposing the harshest possible penalty for
juveniles.â€
The
S.Ct. 1183] and Graham establish that
children are constitutionally different from adults for purposes of sentencing.
Because juveniles have diminished
culpability and greater prospects for reform, we explained, ‘they are less
deserving of the most severe punishments.’ Graham,
560 U.S., at ___, 130 S.Ct. 2011, 176 L.Ed.2d 825. Those cases relied on three significant gaps
between juveniles and adults. First,
children have a ‘“lack of maturity and an underdeveloped sense of
responsibility,â€â€™ leading to recklessness, impulsivity, and heedless
risk-taking. Roper, 543 U.S., at 569, 125 S.Ct. 1183, 161 L.Ed.2d 1. Second, children ‘are more vulnerable . . . to
negative influences and outside pressures,’ including from their family and
peers; they have limited ‘contro[l] over their own environment’ and lack the
ability to extricate themselves from horrific, crime-producing settings. Ibid.
And third, a child’s character is not as ‘well formed’ as an adult’s; his
traits are ‘less fixed’ and his actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’
1.†(Miller,
supra, 567 U.S. at p. ___ [132 S.Ct.
at p. 2464].)
“[N]one
of what Graham said about
children—about their distinctive (and transitory) mental traits and
environmental vulnerabilities—is crime-specific. Those features are evident in the same way,
and to the same degree, when (as in both cases here) a botched robbery turns
into a killing. So Graham’s reasoning implicates any life-without-parole sentence
imposed on a juvenile, even if its categorical bar relates only to nonhomicide
offenses.†(Miller, supra, 567 U.S.
at p. ___ [132 S.Ct. at p. 2465].) “Most
fundamentally, Graham insists that
youth matters in determining the appropriateness of a lifetime of incarceration
without the possibility of parole.†(
subjecting a juvenile to the same life-without-parole sentence applicable to an
adult—these laws prohibit a sentencing authority from assessing whether the law’s
harshest terms of imprisonment proportionately punishes a juvenile offender. That contravenes Graham’s (and also Roper’s)
foundational principle: that imposition
of a State’s most severe penalties on juvenile offenders cannot proceed as
though they were not children.†(
In
addition, “Graham’s ‘[t]reat[ment]
[of] juvenile life sentences as analogous to capital punishment,’ [citation],
makes relevant here a second line of our precedents, demanding individualized
sentencing when imposing the death penalty.†(Miller,
supra, 567 U.S. at p. ___ [132 S.Ct.
at p. 2467].) “Of special pertinence here,
we insisted in these rulings that a sentencer have the ability to consider the
‘mitigating qualities of youth.’ [Citation.] Everything we said in Roper and Graham about
that stage of life also appears in these decisions.†(Ibid.)
“‘[J]ust as the chronological age of a
minor is itself a relevant mitigating factor of great weight, so must the
background and mental and emotional development of a youthful defendant be duly
considered’ in assessing his culpability. [Citation.]†(Ibid.)
In
summary, “Mandatory life without parole for a juvenile precludes consideration
of his chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and
home environment that surrounds him—and from which he cannot usually extricate
himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the conduct and the way
familial and peer pressures may have affected him. Indeed, it ignores that he 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. [Citations.] And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most
suggest it.†(Miller, supra, 567 U.S.
at p. ___ [132 S.Ct. at p. 2468].)
“We
therefore hold that the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility of
parole for juvenile offenders.†(
omitted.) “Although we do not foreclose
a sentencer’s ability to make that judgment in homicide cases, we
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.â€
In
whether a 110-year-to-life sentence imposed on a juvenile convicted of
nonhomicide offenses contravenes Graham’s
mandate against cruel and unusual punishment under the Eighth Amendment, and
concluded that it does. The
that Miller “requires sentencers in
homicide cases ‘to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.’ (Miller, supra, 567 U.S.
at p. ___ [132 S.Ct. at p. 2469].) [However,] [w]e leave Miller’s application in the homicide context to a case that poses
the issue.†(Caballero, supra, 55
Cal.4th at p. 268, fn. 4.)
Defendant’s
sentencing predated Miller,
and Caballero, supra, 55 Cal.4th 262. Defendant represented himself at sentencing
and did not present to the trial court any evidence regarding the factors influencing
his juvenile criminality, such as the nature of his home life or peer
influences. We cannot conclude the trial
court recognized the significance for sentencing purposes of defendant’s youth in
imposing a sentence that was the “functional equivalent†of life without
possibility of parole. In light of the
Supreme Court’s clear admonitions that a sentence of life without possibility
of parole is to be imposed on “‘the rare juvenile
offender whose crime reflects irreparable corruption,’†and that “we do not
foreclose a sentencer’s ability to make that judgment in homicide cases, [but] we
require [a sentencer] to take into
account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison†(Miller, supra, 567 U.S.
at p. ___ [132 S.Ct. at p. 2469], italics added), we conclude the required
course in this case is to remand the matter so the trial court will have the
opportunity to reconsider its sentence in light of Miller.
We
reject the People’s argument that “the consecutive sentencing scheme under
which [defendant] was sentenced differs from the mandatory schemes found
unconstitutional in Miller, because
it gives the court the discretion to impose a term that affords the possibility
of parole,†and the trial court was free to consider any relevant aggravating
and mitigating factors, including defendant’s youth. The salient point is that the trial court
consider the significance for sentencing purposes of defendant’s youth in
imposing a sentence that was the “functional equivalent†of life without
possibility of parole. Theoretically the
trial court could have exercised its discretion to strike defendant’s prior
strike, but it did not so exercise its discretion on any grounds, let alone
based upon defendant’s youth or personal circumstances. The sentence imposed by the trial court was
indeed based upon a mandatory sentencing scheme. (§§ 190, subd. (a), 12022.53, subd. (d).) On remand, the trial court is not foreclosed
from imposing the current sentence, but it is required to consider defendant’s
individual circumstances and “to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.†(
IV. Custody Credits
concede, that he is entitled to additional days of presentence custody credit. Defendant was arrested on February 19, 2010,
and sentenced on April 26, 2012. The
period between those two dates, including the day of sentencing, is 798
days. He received only 654 days of
custody credit.
Pursuant to section 2900.5,
subdivision (a), a defendant convicted of a felony is entitled to credit
against a state prison term for actual time spent in custody before
commencement of the prison sentence, including the day of sentencing. (§ 2900.5, subd. (a); People v. Smith
(1989) 211 Cal.App.3d 523, 526.) Generally,
an appellant may not appeal an error in the calculation of presentence
presented in the trial court, which did not occur here. (§ 1237.1.) However, the Court of Appeal may address a
presentence custody credit issue if other claims are also raised on appeal. (People v. Mendez (1999) 19 Cal.4th
1084, 1100-1101; People v. Acosta (1996) 48 Cal.App.4th 411, 420-421.)
Because the trial court only awarded defendant
654 days of custody credit, the abstract of judgment must be amended to reflect
798 days of actual custody credit.
V. Penalty Assessment
Defendant
contends, and the People correctly concede, that the trial court erred in
imposing a $1,000 assessment under section 1464 and Government Code section 76000.
The fines imposed at sentencing were
$10,000 restitution and parole revocation fines. (§§ 1202.4, subd. (b), 1202.45.) However, the additional penalty assessment
does not apply to restitution fines. (§ 1464,
subd. (a)(3)(A); Gov. Code, § 76000, subd. (a)(3)(A); People v. Walz (2008) 160 Cal.App.4th 1364, 1372.)
We
note that the assessment was included in the minute order memorializing the
sentencing, but does not appear in the abstract of judgment. Correction of the abstract of judgment is
therefore not required, but we do find that the $1,000 assessment constituted
an unauthorized sentence; such sentence may be corrected at any time even if
the error was not raised in the trial court.
(In re Sheena K. (2007) 40
Cal.4th 875, 886.)
disposition
The judgment of
conviction is affirmed, and the matter is remanded to the trial court with
directions to reconsider its sentencing decision in light of the dictates of
to prepare a new abstract of judgment reflecting the term imposed and the award
of 798
>
days
of presentence custody credit. A copy of
the abstract is to be forwarded to the Department
of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
name="_ftn1" title="">[1] All further undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] Defendant was born on July 11, 1992. When the murder took place in February 2010,
defendant was 17 years old.
