P. v. Garcia





















Filed 3/19/13 P. v. Garcia CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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opinion has not been certified for publication or ordered published for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





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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THE PEOPLE, Plaintiff and Respondent, v. RICARDO GARCIA, Defendant and Appellant.

A130905 (San Mateo County Super. Ct. No. SC068818)

Seventeen-year-old
Ricardo Garcia shot and killed Solomon Zarate, also 17 years old, in an
impulsive, gang-related altercation at a party.
A jury convicted him of first
degree murder and found true allegations related to Garcia’s use of a gun
and involvement in a criminal street
gang. The trial court sentenced
Garcia to life without the possibility of parole (LWOP), plus 25 years to life>.

Garcia contends the jury was misinstructed on href="http://www.fearnotlaw.com/">self-defense and on the intent required for
the gang allegations. He also claims
sentencing errors, including the trial court’s reliance on improper aggravating
factors, ineffective assistance by his attorney, and the court’s
misapprehension that the sentencing statute, Penal Code section 190.5,
subdivision (b)href="#_ftn1" name="_ftnref1"
title="">[1] prescribed a presumptive
LWOP term. In supplemental briefing,
Garcia argues that section 190.5 is unconstitutional in light of >Miller v. Alabama (2012) 567 U.S. __
[132 S.Ct. 2455] (Miller), in which
the United States Supreme Court held that mandatory LWOP sentences for minors
are unconstitutional and identified factors courts must consider when deciding
whether to sentence a juvenile murderer to LWOP or a lesser term.

We
vacate Garcia’s sentence and remand to allow the court to re-evaluate its
sentencing decision as prescribed by Miller. We reject Garcia’s remaining contentions and
affirm the judgment in all other respects.

>DISCUSSION

>I. The Court Properly
Instructed the Jury on Self-defense Principles

Garcia contends the jury instructions on mutual combat
and the initial aggressor principle, as related to self-defense, were not
supported by substantial evidence, and that they wrongly precluded the jury
from considering self-defense and imperfect self-defense. We disagree.

>A.
Background

We
will discuss the facts surrounding Zarate’s killing in more detail in the
Analysis portion of this opinion addressing the self-defense instructions. But a handwritten document that appeared to
be a poem or lyrics found in Garcia’s cell before trial was admitted into
evidence and it generally summarizes this senseless confrontation. Garcia wrote:
“I started to get myself guns and got caught with one, so I went and
bought another one. This would be my
last one though. One night, after a
party, some drunk rival gang member started to talk shit and I let it go for
awhile, but then he kept going on how he was going to get me, so the biggest,
baddest and best gangster came out of me and shot him three times. He later died in the hospital.”

The
court instructed the jury on mutual combat pursuant to CALCRIM No. 3471, as
follows. “A person who engages in mutual
combat or who is the initial aggressor has the right of self-defense only if: One, he actually, and in good faith, tried to
stop fighting; and two, he indicates by word or by conduct to his opponent in a
way that a reasonable person would have understood that he wants to stop
fighting and that he has stopped fighting; and three, gives his opponent a
chance to stop fighting. If a person
meets these requirements, he has a right to self-defense if the opponent
continues to fight. [¶] A fight is mutual combat when it began or continued by href="http://www.fearnotlaw.com/">mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claim of self-defense arose. If you decide that the defendant started a
fight using non-deadly force and the opponent responded with such sudden and
deadly force that the defendant could not withdraw from the fight, then the
defendant had the right to defend himself with deadly force and was not
required to try to stop fighting.” The
court also gave CALCRIM No. 3472: “A
person does not have the right to
self-defense if he or she provokes a fight or quarrel with the intent to
create an excuse to use force.”

Garcia
objected to CALCRIM No. 3471, but not to CALCRIM No. 3472 or to other
instructions given on the right to defend one’s self with force.

In
his argument to the jury, the prosecutor illustrated how Garcia’s aggression
ruled out reasonable and unreasonable self-defense. “[Prosecutor]: Defendant is the aggressor or
a mutual combatant. That means he agrees
to be in a conflict. He agrees to be in
a fight. Do you really think this
defendant is an innocent victim?
Really? He sticks his nose into a
gang fight.” “The defendant engages in
mutual combat and on a good day, that’s the best you can do. If the defendant didn’t seek out this quarrel
with you, you know—looking for an excuse to use the gun, he certainly was fine
with the fact that this conflict was gonna happen. His own cousin was trying to push him
back. People were saying, ‘Don’t do it,
don’t do it.’ You know? He’s fine with this. He is fine.
And why wouldn’t he be? He’s got
a gun. He ain’t gonna lose. But he’s sure not defusing the situation
either by yelling, ‘F.O.P.’ Somebody
yells, ‘Heller Street,’ I’m trying to defuse the situation by yelling ‘F.O.P.;’
he’s egging him on. He is egging him on,
it ain’t self-defense. On a best day,
it’s mutual combat. . . .” “If you find
that he sought the quarrel, if you find that he was the aggressor and certainly
involved in mutual combat that he had other motives, you find that, he’s not
entitled to self-defense. We’re done
now. We won’t give you your license to
kill. Okay? You lose your 0-0-7 if you’re acting other
than only to defend yourself.”

>B.
Analysis

The
interplay between self-defense and mutual combat is explained in >People v. Ross (2007) 155 Cal.App.4th
1033, which also involved a gang-related slaying. “Like many legal
phrases, ‘mutual combat’ has a dangerously vivid quality. The danger lies in the power of vivid
language to mask ambiguity and even inaccuracy. Here the jury was told that participation
in ‘mutual combat’ conditionally bars the participants from pleading
self-defense if either is prosecuted for assaulting the other. The ‘combat’ element of this rule is clear
enough, at least for present purposes.
It suggests two (or more) persons fighting, whether by fencing with
swords, having a go at fisticuffs, slashing at one another with switchblades,
or facing off with six-guns on the dusty streets of fabled Dodge City. The trouble arises from ‘mutual.’ When, for these purposes, is combat
‘mutual’? What distinguishes ‘mutual’
combat from combat in which one of the participants retains an unconditional
right of self-defense?” (Id. at pp. 1043-1044, fns.
omitted.)

Parsing case and statutory law dating from the
nineteenth century, the court held that “mutual” in this context means a preexisting intent to engage in combat. “Old but intact case law confirms that as
used in this state’s law of self-defense, ‘mutual combat’ means not merely a
reciprocal exchange of blows but one pursuant to mutual intention, consent,
or agreement preceding the initiation of hostilities. The lead case appears to be People v.
Fowler (1918) 178 Cal. 657, 671 . . ., where the court wrote, ‘It
has long been established that one who voluntarily engages in mutual
combat with another must have endeavored to withdraw therefrom before he can be
justified in killing his adversary to save his own life. .
. . Both before and since [the 1872
enactment of Penal Code section 197] the phrase ‘mutual combat’ has been in general
use to designate the branch of the law of self-defense relating to homicides
committed in the course of a duel or other fight begun or continued by
mutual consent or agreement, express or implied. [Citations.]’
In other words, it is not merely the combat, but the preexisting
intention to engage in it, that must be mutual.” (People
v. Ross, supra, 155 Cal.App.4th at
p. 1045.) Thus, “ ‘mutual combat’
consists of fighting by mutual intention or consent, as most clearly reflected
in an express or implied agreement to fight. The agreement need not have all the
characteristics of a legally binding contract; indeed, it necessarily lacks at
least one such characteristic: a lawful
object. But there must be evidence from
which the jury could reasonably find that both combatants actually consented
or intended to fight before the claimed occasion for self-defense arose.” (Id.
at pp. 1046-1047; see also People v. Valenzuela (2011) 199
Cal.App.4th 1214, 1234.)

Here, there was substantial evidence
that Garcia and Zarate intended to fight.
Garcia was a member of the Norteño criminal street gang and wore a red
hoodie (Norteño colors) the night of the murder. Fabian Sandoval, another guest at the party,
testified that Garcia and Zarate were screaming gang-related comments at each
other and “throwing out their sets,” i.e., naming their respective
neighborhoods as a gang challenge. He
described the events just before the shooting as a “gang confrontation.”

Jose Zavala, Garcia’s cousin,
attended the party with Sandoval and testified similarly. As the party was breaking up around midnight
he heard yelling and screaming from the street.
Garcia and Zarate were arguing.
Zarate was yelling “Heller Street,” and Garcia was yelling “Fair Oaks
Park” or “Fair Oaks.” It sounded like a
challenge, and Zavala thought the two were about to start fighting. Garcia and Zarate were surrounded by a circle
of people. Some were urging them to
fight and others were trying to stop them.
Zarate assumed a fighting stance, with both fists closed as though ready
to throw a punch, and two men with him inside the circle of spectators were
urging him to fight and yelling threats at Garcia. Ignacio Zamora (“Nacho”), also a member of
the Norteño gang and Garcia’s friend, was telling him to “[g]o ahead kick
[Zarate’s] ass.” Zavala tried to
separate Garcia and Zarate. He urged
them to leave, but to no avail.

Then, Garcia pushed Zavala
aside. Zavala heard two shots and saw a
flame from where Garcia was standing. As
Zavala started to run he heard more shots.
Zarate ran across the street and leaned against a car. Garcia ran up to him and shot him two or
three more times. Zavala did not see
Zarate do anything to provoke the shooting.


Eva Puga hosted the party. As it was breaking up, she saw Zarate arguing
with Nacho about gangs and a past gang-related incident. Nacho “called [Zarate] out” and asked if he
was still “claiming” his affiliation with a gang. Puga thought they were going to fight, so she
told them to leave the property. When
Nacho and Zarate walked away, Puga thought the argument was over, “like they
weren’t gonna do anything about it.”

That was when Garcia appeared and
started talking to Zarate. Garcia said
“what’s up?” and was “throwing up his set or whatever and [Zarate] was just
telling him that, like, ‘I don’t know you.’ ”
Puga believed Garcia’s words were a challenge. Zarate “seemed bothered” by Garcia’s actions,
but not angry. Garcia “came at [Zarate]
like, really aggressive,” and Puga thought “they were really gonna fight this
time.” She tried to get in between them
and break it up, but her boyfriend pulled her away.

Puga heard the first gunshot when
she was about two feet from Zarate. She
ran away, but turned to see what had happened.
Zarate was also running away.
Garcia fired a second shot and Zarate stumbled and fell. Garcia ran up to him and shot him three or
four more times on the ground, from “[r]eal close. He was just, like, right on him.”

Garcia’s friend Vanessa Fayad knew
he was a Norteño. During the party Fayad
told Garcia she was going to fight another girl after the party ended. Garcia said he would back her up. When Fayad joked about it, Garcia said he was
not like the other guys at the party, who were punks. He said he was “packed,” meaning that he had
a weapon, and lifted up his shirt and showed her a gun. Garcia also showed the gun to Carla, the girl
Fayad had threatened to fight.

As the party was breaking up, Garcia
went outside with Fayad to look for Carla.
Nacho was arguing with Zarate.
Zarate had his hands up as though ready to box and the two were yelling
back and forth, “a lot of different, like, street gangs and just ‘Fight,’ like,
basically just saying ‘fight.’ ” Fayad
also heard “Heller” and “Fair Oaks.”
Garcia ran towards the two men and joined the argument. Fayad heard Garcia yell “Fair Oaks.” Fayad knew Garcia to be “hot-headed, just
aggressive, angry,” and she was afraid of a fight. Zarate rolled his sleeves up and told Garcia
and Nacho, “I’ll fight the two of you.”
Zarate’s friend, Rob, was with him and was also yelling and
screaming. Rob was not a gang member,
but he had been in a fight at the beginning of the party.

Garcia said “You wanna fight? You
wanna fight?” Then he pulled out the gun
and fired one shot, paused, and fired again.
After the first shot missed, Nacho told Garcia “You better shoot him” or
“You better get him.” Garcia yelled
“It’s Fair Oaks Park” as he fired the second time. Zarate was hit by the second shot and fell as
he fled. Garcia ran up to Zarate and
shot him four more times as he lay on the ground.

Antonio Flores, a friend of
Zarate’s, was also at the party that night.
Like Zarate, he belonged to the Heller Street Boys, a Crips gang, from
2004 until about 2006, but he had since moved to the other side of town and was
no longer in the gang. The Heller Street
boys claim the color blue and align with the Sureños against the Norteños. They frequently engage in fistfights with
Norteños. Zarate liked to box with his
fists, and Flores never knew him to use a weapon.

Flores also saw Garcia shoot
Zarate. He testified that both of the
initial shots struck Zarate at close range.
Zarate fled across the street and had collapsed on the sidewalk when
Garcia approached and shot him four more times from about 10 feet away. Zarate was unarmed.

There was further evidence
concerning Garcia’s gang affiliation and participation, but we need not belabor
it here. The above testimony plainly
depicts a decision to fight by two individuals affiliated with rival gangs,
which then tragically escalated into homicide when Garcia decided to pull his
gun. The evidence was more than
sufficient to support a finding of mutual combat. There is no reasonable question that Garcia
and Zarate intended, and implicitly or expressly agreed, to fight “before the claimed occasion for self-defense
arose.” (People v. Ross, supra,
155
Cal.App.4th at pp.
1046-1047; People v. Valenzuela, supra, 199
Cal.App.4th at p. 1234.) Accordingly,
the trial court correctly instructed the jury with CALCRIM No. 3471. Moreover, although Garcia forfeited any claim
of error as to the “initial aggressor” instruction in CALCRIM No. 3472 by
failing to object to it at trial, we are satisfied that CALCRIM No. 3472 was
also amply warranted by the evidence discussed here.

>II. Garcia Forfeited His Claim Regarding CALCRIM
Nos. 1401 and 736

The jury was instructed on the gang
enhancement under CALCRIM No. 1401, that “If you find the defendant guilty of
the crimes charged or the lesser offense of manslaughter, you must then decide
whether the People have proved the additional allegations that the defendant
committed that crime for the benefit or in association with a criminal street
gang. You must decide whether the People
have proved this allegation for each crime and return a separate finding for
each crime I should say a separate
finding for each crime. [¶] To prove this allegation, the People must
prove that: One, the defendant committed
the crime for the benefit of or in association with a criminal street gang; and
two, the defendant intended to assist, further or promote criminal conduct by
gang members.”

The court also read the jury CALCRIM
No. 736 on the special circumstance for murder due to gang participation. The jury was instructed that “The defendant
is charged with the special circumstance of committing murder while an active
participant in a criminal street gang in violation of Penal Code Section
190.2(a) subdivision 22. To prove that
this special circumstance is true, the People must prove that: One, the defendant intentionally killed
Solomon Zarate; two, at the time of the killing, the defendant was an active
participant in a criminal street gang; three, the defendant knew that members
of the gang engaged in or have engaged in a pattern of criminal gang activity;
and four, the murder was carried out to further the activities of the criminal
street gang.”

Garcia contends the street gang
enhancement and special circumstance findings must be reversed because the instructions
fail to articulate the required intent with sufficient clarity when the
defendant is the sole perpetrator, rather than an aider and abettor. Specifically, he contends that the jury
should have been instructed on the enhancement that the defendant must have
intended to benefit the gang, and for the special circumstances finding that he
must have intended to further the gang’s activities. Garcia concedes his position “is not entirely
straightforward,” but maintains that its circuitry derives from the statutory
language and case law.

We need not unravel the argument,
because Garcia forfeited these claims by failing to raise them in the trial
court. In discussing the jury charge
with counsel, the court stated without objection that “[CALCRIM No.] 736 will
be given.” With respect to CALCRIM No.
1401, the court revised the parenthetical language, “for the benefit of, at the
direction of, or in the association with a criminal street gang” by deleting
“at the direction of,” because there was no evidence or claim that Garcia acted
at the direction of a gang. Garcia
objected to the deletion because he had elicited testimony that the killing was
not “at the direction of” a gang, but he did not object to the instruction’s
articulation of the required intent.
“ ‘ “ ‘ “[A] party may not complain on appeal that
an instruction correct in law and responsive to the evidence was too general> or incomplete unless the party has
requested an appropriate clarifying or amplifying
language.” ’ ” ’ ” (People
v. Tuggles (2009) 179 Cal.App.4th 339, 364-365; People v. Cole (2004) 33 Cal.4th 1158, 1211; People v. Alvarez (1996) 14 Cal.4th 155, 223.) This principle bars Garcia’s attempt to raise
these contentions on appeal.

>III. The Trial Court Exercised Informed Discretion
When It Sentenced Garcia Under Section 190.5

Section
190.5, subdivision (b) provides 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
. . ., 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.” Garcia contends the
court failed to exercise informed discretion when it sentenced him to LWOP
under this provision because, as we understand his argument, it relied on
improper sentencing factors. He also
contends his counsel rendered ineffective assistance when he failed to object
to an allegedly inadequate probation report or to the court’s choice of
sentencing factors. Neither contention
has merit.

Garcia also argues his sentence must
be reversed because the probation report “failed to address that sentencing
question at all, in apparent ignorance of the fact that Mr. Garcia has been a
juvenile at the time of the homicide.”
But, the relevant question is whether the trial court understood and
appropriately exercised its discretion.
While the nature and extent of information available to the court is
relevant to that inquiry, alleged deficiencies in the probation report must be
viewed in context of the other information before the court.

A. Background

After the verdict, Garcia filed a
motion asking the court to exercise its discretion to sentence him to 25 years
to life rather than LWOP. With
enhancements, his lesser term would be 60 years to life in prison.

The probation report identified LWOP
as the appropriate sentence. It said
Garcia “committed a violent and callous criminal
act and was an active validated member of a criminal street gang during the
commission of the offense. The defendant
has no prior criminal convictions but, had adjustment difficulties
. . . . [¶] Pursuant to [California Rules of Court] Rule
4.421, circumstances in aggravation include that the crime involved great
bodily harm, which resulted in the death of the victim, and the victim was
particularly vulnerable, as the defendant was armed with a weapon. The defendant’s prior sustained petitions as
a juvenile are of increasing seriousness and his failure to reform from the
Court’s past efforts clearly show he is a menace to himself and society. [¶] In view of Rule 4.423, there appear
to be no factors in mitigation.” The
probation report gave Garcia’s date of birth, but did not mention or discuss
any ramifications of his age at the time of Zarate’s murder.

At the beginning of the href="http://www.mcmillanlaw.com/">sentencing hearing, the court said it
had read and considered the probation report and several attached letters, as
well as the defense motion. The
prosecutor observed that the lesser sentence “appears to me to be 60 to life
which would make the defendant eligible for parole at 77. And at first blush, that could be
appropriate.” But, the prosecutor
explained, he believed LWOP was appropriate in the circumstances. “It seems to me that my primary concern ought
to be, and the Court’s concern should be as well, not just person[al] but
public safety. And I believe this young
man, for whatever reason, and I don’t cast [aspersions] on his family, I don’t
know what the matter would amiss [sic]
but he’s extraordinarily dangerous. From
a very early age, he’s evidenced a propensity for extreme violence.
[¶] The violence in this case was gratuitous. He was going around armed. I think I might have actually said to the
jury he was looking for somebody to kill and found him. But for that reason, your Honor, I believe
the Court should not strike the special circumstance and should sentence in
accordance with the law of life without the possibility of parole.”

Defense counsel argued for the
lesser term. Addressing Garcia’s age,
counsel argued “the notion that this 17-year-old carefully considered the
consequences of his action and the notion that any 17-year-old carefully
considers the reasons for and the reasons against any course of action is
somewhat bewildering. And all of us who
have dealt with and had our own 17-year-olds know that that concept is
difficult to grasp that any 17-year-old carefully considers any conduct.” Counsel also argued the lesser term was
appropriate because, in his view, the evidence presented a “close call” on premeditation,
deliberation, and the criminal street gang special circumstance.

The court disagreed and imposed
LWOP. It explained: “We make choices throughout our lives. And sometimes, regardless of our youth, the
decisions that we make may damn us for the rest of our lives. And for that, I see that [defendant] had
previously had a gun, it was taken from him, he was placed on probation for
that and, notwithstanding that omen, he chose to re-arm himself and come to
this particular party. And with that, I
think he came with this sense of empowerment.
And when placed in a situation where he was in an argument, the
senseless violence, to me, is that which he should and could have avoided, yet
it was his choice. It was his choice to
pull the weapon. It was his choice to
fire the first shots into Solomon Zarate.
And when Mr. Zarate turned and fell to the ground helpless, it was his
choice to murder him. And with those
five shots, he condemned himself to life without the possibility of parole.
[¶] The aggravating factors are the great bodily harm to the victim, that
the defendant was armed—even had re-armed himself over the time in a sense that
he knew the dangers of carrying a weapon.
He understood that he was gang-affiliated, and there’s no question this
is a criminal street gang. And he knew
the consequences of carrying a weapon and he took advantage of those
consequences on an unarmed, vulnerable victim and then pursued that victim to
the point where the victim laid helpless and he shot him again and again.
[¶] . . . In looking at the aggravating and the mitigating factors here
and deciding, because this man is 17-years-old, whether or not he should
receive a sentence of life without the possibility of parole, and as stated
forth just now in terms of the aggravating factors, pursuant to California
Rule[s] of Court 4.421, the Court exercises its discretion to find the
aggravating factors of such that the appropriate sentence under 190.2(a)
subdivision 22 that the defendant was an active participant in which the murder
was carried out, an active participant in a street gang is such that what is
warranted here is life without the possibility of parole.”

>B. Analysis

Garcia argues the
court based the exercise of its sentencing discretion on improper factors. Specifically, he asserts the court erred in
considering the infliction of great bodily harm, because murder necessarily
involves great bodily harm; his gang membership should not have been
considered, because that was the basis for the special circumstance finding;
and the court should not have considered the victim’s vulnerability, primarily
because Zarate was a large man, but also because his unarmed status could not
be used as an aggravating factor in light of the enhancement imposed on Garcia. But, Garcia forfeited these claims by failing
to object to the trial court’s articulations of its sentencing decision. (People v. Scott (1994) 9 Cal.4th 331,
356 [complaints about the manner in which the court exercises its sentencing
discretion and articulates its supporting reasons cannot be raised for the
first time on appeal].)

Nor can Garcia show a
reasonable possibility that the court would have imposed the lesser sentence
had defense counsel objected to the court’s statement of sentencing
reasons. (See Strickland v.
Washington (1984) 466 U.S. 668, 694.)
The court emphasized that Garcia pursued the wounded and fleeing Zarate,
and shot him multiple times as he lay helpless on the sidewalk. Despite his size, then, Zarate could be
considered a particularly vulnerable victim.
(See Cal. Rules of Court, rule 4.421(a)(3) [vulnerable
victim].) The court also emphasized that
Garcia decided to obtain and carry a gun, despite knowing the dangers and
having previously been on probation for gun possession. That, too, is a valid reason for the court’s
decision to impose the harsher sentence.
[See rule 4.421(b)(1)[defendant’s violent conduct indicates serious
danger to society].) In addition, the
court was apprised of Garcia’s history of dangerous and violent conduct. His history included possessing a knife at
school, along with gang indicia and drug paraphernalia. Garcia planned and participated in a gang
assault against rival gang members while in juvenile custody. He performed poorly on probation and suffered
numerous referrals for violence, possession of weapons, and drug use. There was also evidence that he threatened
Fayad and other potential witnesses to dissuade them from testifying against
him. These were all appropriate sentencing
considerations. (See
rules 4.421(a)(6), 4.421(b)(2), 4.421(b)(4).) On this record, we think it unlikely that a
defense objection to allegedly improper aggravating factors would have resulted
in a different sentence.

>IV. The Effect of Miller

Our conclusion that
the trial court exercised its informed discretion when it sentenced Garcia to
LWOP does not end our analysis. After
Garcia appealed, the United States Supreme Court decided Miller, supra,
567 U.S. __ [132 S.Ct. 2455.] Miller
holds that the Eighth Amendment
prohibition against cruel and unusual punishment forbids laws that mandate
the imposition of an LWOP sentence for juveniles convicted of murder. (Id. at p. 2469.) The court explained: “[I]n imposing a State’s harshest penalties,
a sentencer misses too much if he treats every child as an adult. To recap:
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.” (Id. at p.
2468.)

Referencing its prior
discussions of juveniles’ diminished culpability and heightened capacity for
change in decisions barring capital sentences for minors (Roper v. Simmons (2005)> 543 U.S. 551) and LWOP sentences for
minors committed of nonhomicide offenses (Graham v. Florida (2010) 560
U.S. __ [130 S.Ct. 2011]), the Supreme Court predicted that “appropriate
occasions for sentencing juveniles to this harshest possible penalty will be
uncommon. That is especially so because
of the great difficulty we noted in Roper and Graham of
distinguishing at this early age between ‘the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.’
[Citations.] 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.” (Miller, supra, 567 U.S.
at p. __ [132 S.Ct. at p. 2469].) The
court emphasized that its decision “does not categorically bar a penalty for a
class of offenders or type of crime . . . . Instead, it mandates only that a sentencer
follow a certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.” (Id. at p. 2471, italics added.)

Garcia argues that
section 190.5, subdivision (b) is unconstitutional under Miller because,
as construed by several pre-Miller decisions, it makes LWOP the
presumptive or “generally mandatory” sentence and thereby conflicts with the
spirit, if not the letter, of Miller.
(See People v. Guinn (1994) 28 Cal.App.4th 1130; People v.
Ybarra (2008) 166 Cal.App.4th 1069, 1089; but see People v.
Siacksorn (2012) 211 Cal.App.4th 909, 914-916 [rejecting Guinn in
light of Miller].) Alternatively,
Garcia contends that decisions construing section 190.5, subdivision (b) to
prescribe a presumption for LWOP were wrongly decided. We need not resolve these questions, which
are currently before the California Supreme Court. (People v. Moffett (2012) 209
Cal.App.4th 1465, review granted Jan. 18, 2013, S206771; People v. Gutierrez
(2012) 209 Cal.App.4th 646, review granted Jan. 3, 2013, S206365.) Neither defense counsel, the prosecutor, nor
the trial court referred to LWOP as the presumptive punishment in this case or
gave any indication that they viewed it as such. To the contrary, the court’s explanation of
its decision indicates that it balanced sentencing considerations in favor of
the life term without reference to a presumption.

Nonetheless, it is
necessary to remand this case for a new sentencing hearing in light of Miller. Since Garcia was sentenced, the United States
Supreme Court’s opinion in Miller has refocused the sentencing decision
on “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].) Miller also
instructs that life terms for juveniles will be “uncommon” and “rare.” (Ibid.) Although the trial court here was plainly
aware of and considered Garcia’s age at the time of the killing, it did so
without the benefit of Miller’s instruction and with no input
from the probation officer (and almost none from defense counsel) regarding how
the “hallmark features” (id. at p. 2468) of Garcia’s youth might affect
its sentencing decision. Accordingly,
remand is appropriate so that the court may reconsider its sentencing choice in
light of Miller. Whether it will
reach the same or a different decision, we cannot say. Miller “mandates only that a sentencer
follow a certain process—considering an offender’s youth and attendant
characteristics”—before sentencing a juvenile to spend the remainder of his
life in prison. (Id. at p.
2471.) We remand to provide the trial
court the opportunity to follow that process.

>DISPOSITION

The sentence is vacated and the case is remanded
for resentencing. The judgment is
otherwise affirmed.





_________________________

Siggins,
J.





We concur:





_________________________

Pollak, Acting P.J.





_________________________

Jenkins, J.