>P. v.
Guillen



















Filed 5/9/13 P. v. Guillen CA2/2

Opinion
following remand by U. S. Supreme Court













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO


>

THE PEOPLE, Plaintiff and Respondent, v. JOSE GUILLEN, Defendant and Appellant.

B220310 (Los Angeles County Super. Ct. No. BA341171)

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles County. Robert J. Perry, Judge. Affirmed.



Eric R. Larson, 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, Assistant Attorney General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.







When defendant and
appellant Jose Guillen (defendant or Guillen) was 17 years old, he and three
adults committed an armed robbery
during which defendant personally shot and killed one of the two victims. A jury convicted him of first degree special
circumstance murder, and in 2009, the trial court sentenced him to life without
the possibility of parole (LWOP). We
affirmed the judgment and the California Supreme Court denied review. The United States Supreme Court thereafter
granted defendant’s petition for writ of certiorari, vacated his judgment, and
remanded the case to this court for further consideration in light of >Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (>Miller).
(Guillen v. >California
(2012) 567 U.S.
__ [133 S.Ct. 69].)href="#_ftn1" name="_ftnref1"
title="">^[1]

On
remand, we adopt and incorporate our opinion in Aleman I, including the analysis and conclusions as to defendant’s
contentions made in the original briefing, with the exception of the argument
that the Eighth Amendment to the United States Constitution prohibits an LWOP
sentence under the circumstances of this case.
We now reconsider that contention in light of Miller, and again conclude that defendant’s sentence did not
violate the Eighth Amendment. We affirm
the judgment.

BACKGROUND

The following evidence, facts, and procedural history are
summarized from our opinion in Aleman I,
where they are set forth in detail and need not be repeated at length.

Guillen
was convicted of the first degree special circumstance murder and robbery of
Efrain Leyva (Leyva), the robbery of Maria Sawyer (Sawyer), and burglary. He was sentenced to LWOP in addition to a
consecutive firearm enhancement of 25 years to life, plus a consecutive
five-year term for the robbery of Sawyer and a further consecutive term of 25
years to life for the use of a firearm.
The trial court imposed and stayed sentences as to counts 3 and 4, as
well as the remaining firearm enhancements.

The
evidence at trial established that Guillen, Reyes, Aleman, and Jimenez entered
Leyva’s store while it was open, hid behind merchandise until it closed, and
then robbed Leyva and his employee Sawyer at gunpoint as they were counting the
day’s receipts. Surveillance cameras
recorded much of the crime. One video
shows Guillen standing guard with a firearm over Leyva outside the store’s
office while the defendant’s companions gathered money. After Leyva gestured several times toward the
office, Guillen is seen shooting Leyva in the leg, causing Leyva to squat or
sit and cease moving around. The video
then shows Guillen make a cell phone call, after which he holds the unresisting
Leyva by the shirt, puts the gun close to Leyva’s head, and fires. Although Leyva’s death was directly caused by
the gunshot wound to his head, the bullet fired earlier into Leyva’s leg would
also have been fatal, as it passed through an artery and a vein.

Defendant
was shot in the leg during the robbery.href="#_ftn2" name="_ftnref2" title="">^[2] After their escape, Aleman took defendant to
a hospital emergency room, where they were both arrested. Defendant twice admitted to detectives,
including Detective Miguel Terrazas, that he shot Leyva, but defendant
testified at trial that Reyes had fired the fatal shot. Defendant claimed that he confessed only
because Reyes otherwise refused to allow him to go to the hospital, and because
Reyes threatened to kill defendant and his family if he did not take complete
responsibility. However, when the
prosecutor showed the surveillance video in which defendant was seen shooting
Leyva and limping away, defendant identified Jimenez as the person shooting
Leyva and denied that he was the shooter that was limping in the video. Defendant testified that Reyes and another
gang member had told him to commit the robbery.

In rebuttal, Detective Terrazas testified that defendant
did not claim that he acted under duress during their discussion. He also testified that Jimenez had no limp
and required no medical attention after his arrest 8 to 10 days after the
robbery.

DISCUSSION

In >Aleman I, defendant contended that, as
applied to him, a life term without the possibility of parole violated both the
Eighth Amendment to the United States Constitution, as well as article 1,
section 17 of the California Constitution,
which prohibit cruel or unusual punishment.

The United States Supreme
Court had determined that a sentence was not cruel or unusual or violative of
the Eighth Amendment so long as the ultimate punishment was not grossly
disproportionate to the crime, prior to Aleman
I. (Solem v. Helm (1983) 463 U.S. 277, 288-289.) The court had however, identified one type of
categorically disproportionate sentence for defendants who were juveniles at
the time they committed the crimes for which they were sentenced. In Roper
v. Simmons (2005) 543 U.S. 551, 578-579 (Roper), the court held that the Eighth Amendment bars capital
punishment for minors, even for murder.
After defendant was sentenced in this case, but before his conviction
was affirmed on appeal, the court issued its opinion in Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011] (>Graham), in which it held that the
Eighth Amendment categorically bars LWOP for minors who commit nonhomicide
offenses. As neither of these types of
sentence applied to defendant’s case, his LWOP sentence was not categorically
barred. Further, under the state
of the law at that time, an individualized proportionality review for a sentence less than death was
not required, unless the punishment gave rise to an inference that it was
grossly disproportionate to the crime. (>Harmelin v. Michigan (1991) 501 U.S.
957, 995-996.)

We
nevertheless conducted an individualized proportionality review as required by
the California Constitution, to determine whether defendant’s sentence was “so
disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental
notions of human dignity.” (In re
Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch).) We considered the nature of the offense and
the offender under
the analysis suggested in Lynch and People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon). Regarding the
nature of the offender, the only facts cited by defendant in the trial court
were his young age and the absence of a criminal record. We measured those facts against the
deliberate and premeditated murder of the cooperative and incapacitated victim
which the trial court found “gratuitous” and “exceptionally cruel.” We concluded that the LWOP sentence was not
so disproportionate to the crime as to violate the California Constitution or
the Eighth Amendment.

The Supreme Court then
published Miller in which it
concluded that the Eighth Amendment bars mandatory
LWOP sentences for minors, even those who commit murder. (Miller,
supra, 132 S.Ct. at p. 2464.) Synthesizing its reasoning in >Graham and Roper, the Supreme Court explained that immaturity and an
underdeveloped sense of responsibility gave children a tendency toward
“recklessness, impulsivity, heedless risk-taking”; they are “‘more vulnerable .
. . to negative influences and outside pressures’”; “have limited ‘contro[l]
over their own environment’ and lack the ability to extricate themselves from
horrific, crime-producing settings.
[Citation.] And . . . 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].’ [Citation.]” (Miller,
supra, 132 S.Ct. at p. 2464.) The court concluded that “imposition of a
State’s most severe penalties on juvenile offenders cannot proceed as though
they were not children”; and sentencing courts must “have the ability to
consider the ‘mitigating qualities of youth.’
[Citation.]” (>Id. at pp. 2466-2467.) The court therefore held “that the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.
[Citation.]” (>Id. at p. 2469.)

The Miller holding was limited:
“‘A State is not required to guarantee eventual freedom,’ but must
provide ‘some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.’” (>Miller, supra, 132 S.Ct. at p. 2469.)
Respondent contends that the recent amendment to Penal Code section 1170href="#_ftn3" name="_ftnref3" title="">^[3] does just that and thus renders defendant’s
constitutional challenge moot.

With exceptions not
applicable here, section 1170, subdivision (d)(2), applies retroactively to
permit a defendant who was sentenced to LWOP for a crime committed as a
juvenile, to apply for resentencing after serving at least 15 years of the
sentence based upon enumerated factors demonstrating his rehabilitation or
potential for rehabilitation. That
provision affects defendant 15 years in the future; however, where >Miller is applicable, “the state may not
deprive [juvenile offenders] at
sentencing of a meaningful opportunity to demonstrate their rehabilitation
and fitness to reenter society in the future.”
(People v. Caballero (2012) 55
Cal.4th 262, 268-269 (Caballero),
italics added.)

Thus, as defendant
essentially contends he was sentenced under an unconstitutional statute, and as
section 1170, subdivision (d)(2) would not prevent a finding here that his LWOP
sentence was invalid at its inception, his challenge is not moot. (See In
re Sodersten (2007) 146 Cal.App.4th 1163, 1217.)

Defendant was sentenced
under section 190.5, subdivision (b):
“The penalty for a defendant found guilty of [first degree special
circumstance] murder . . . , 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.” (Italics added.) As section 190.5 does not expressly mandate
LWOP for juvenile offenders and as there is no language in the statute limiting
the factors the sentencing court may consider in exercising its discretion, we
conclude that it is not unconstitutional on its face. (See People
v. Rodriguez (1998) 66 Cal.App.4th 157, 166 [a statute capable of
constitutional application is not facially invalid].)

Defendant contends that
although section 190.5 gave the trial court discretion to sentence him to less
than LWOP, an LWOP sentence was nevertheless mandatory and therefore invalid
under Miller’s prohibition against
statutes mandating LWOP for juvenile offenders.
Defendant’s reasoning is based upon language in a pre->Miller appellate court decision which
construed section 190.5 as making LWOP the “statutory preference” and
“presumptive punishment” and thus, “generally mandatory.” (People
v. Guinn (1994) 28 Cal.App.4th 1130, 1142 (Guinn); accord, People v.
Ybarra (2008) 166 Cal.App.4th 1069 (Ybarra).) Defendant suggests that this construction of
section 190.5 violates Miller’s
dictate that the sentencing court “follow a certain process -- [by] considering
an offender’s youth and attendant characteristics -- before imposing
[LWOP].” (Miller, supra, 132 S.Ct.
at p. 2471.)

When read in context,
however, the terms used in Guinn and
quoted in Ybarra do not preclude a
reasoned consideration of the defendant’s youth or its attendant
characteristics. The >Guinn court described the statute as
“generally mandatory” in order to counter a contention that the statute was
unconstitutional because it did not contain specific guidelines; it explained
that the implied preference for LWOP circumscribed the court’s discretion to
the extent that it was not free to act arbitrarily or capriciously, but was
instead required to apply “sensible criteria” to its exercise of discretion,
such as existing factors stated in the California Rules of Court, rule 4.423,
and Penal Code section 190.3.href="#_ftn4" name="_ftnref4" title="">^[4] (Guinn,
supra, 28 Cal.App.4th at pp.
1141-1143.)

Indeed, the >Guinn court recognized that the statute
allows the sentencing courts to grant juvenile murderers more lenient
treatment, and acknowledged that a statutory preference for LWOP did not
prevent defense counsel from offering, or the trial court from considering,
“evidence in mitigation at the sentence hearing [or] evidence of [the
defendant’s] personal background and circumstances, through a report and
testimony of a psychologist, as well as the testimony of defendant’s father and
defendant’s girlfriend in his behalf.” (>Guinn, supra, 28 Cal.App.4th at p. 1144.)

Nor did the trial court
refuse to consider defendant’s youth or its attendant characteristics in this
case. The court made no mention of >Guinn or Ybarra and gave no indication that it believed its discretion was
limited. The court heard defendant’s
motion under section 190.5, and expressly recognized that it could impose a
lesser sentence. Defendant presented no
mitigating facts to support his section 190.5 motion other than his age and
absence of a prior criminal record.

Defendant nevertheless
suggests that the trial court applied the statute in an unconstitutional manner
because the sentencing court did not consider factors set forth in >Miller relating to the offender’s
immaturity, such as his upbringing, mental and emotional development,
impetuosity, ability to appreciate risks and consequences, and his potential
for rehabilitation. (See Miller,
supra, 132 S.Ct. at pp.
2464-2465, 2468-2469.) Defendant
suggests that resentencing is required in all pre-Miller juvenile LWOP cases in which the sentencing court did not
have the benefit of Miller’s
definition of the appropriate and lawful scope of its discretion and thus did not conduct an individualized
analysis of the suggested factors.

To support his suggestion,
defendant relies on Caballero, >People v. Thomas (2012) 211 Cal.App.4th
987 (Thomas), and People v. Argeta (2012) 210 Cal.App.4th 1478
(Argeta).href="#_ftn5" name="_ftnref5" title="">^[5] In Caballero,
the California Supreme Court followed the reasoning of Miller to hold a cumulative sentence of 110 years to life for
attempted murder committed by a juvenile was the “functional equivalent of a
life without parole sentence” and thus categorically barred under >Graham as it was not a murder case. (Caballero,
supra, 55 Cal.4th at pp.
267-268.) The court expressly left “>Miller’s application in the homicide
context to a case that poses the issue.”
(Caballero, at p. 268, fn.
4.) The court ruled that in nonhomicide
cases, either upon sentencing or pursuant to a defendant’s petition for habeas
corpus, “the sentencing court must consider all mitigating circumstances attendant
in the juvenile’s crime and life, including but not limited to his or her
chronological age at the time of the crime, whether the juvenile offender was a
direct perpetrator or an aider and abettor, and his or her physical and mental
development, so that it can impose a time when the juvenile offender will be
able to seek parole from the parole board [which] will then determine whether
the juvenile offender must be released from prison ‘based on demonstrated
maturity and rehabilitation.’ [Citation.]” (Id.
at pp. 268-269.)

>Caballero’s reasoning was extended to sentences for murder in >Thomas and Argeta, where the appellate court in each case ordered
resentencing, because the trial court had not considered the >Caballero/Miller factors due to a
mistaken belief that cumulative sentences totaling more than 100 years were not
the equivalent of LWOP. (>Thomas, supra, 211 Cal.App.4th at pp. 1015-1016; Argeta, supra, 210
Cal.App.4th at p. 1482.) Neither >Caballero, Thomas, nor Argeta held
that section 190.5 was facially invalid under Miller or that all pre-Miller
juvenile LWOP sentences must be reversed.
Unlike defendant here, the defendants in Caballero, Thomas, and >Argeta had not been sentenced under
section 190.5, which expressly requires the trial court to exercise its
discretion to consider a lesser sentence.

The sentencing court in this
case was not under a misapprehension that it could not exercise its discretion
under section 190.5. Nor did the trial
court express a belief that it could not consider defendant’s upbringing,
mental and emotional development, impetuosity, ability to appreciate risks and
consequences, or his potential for rehabilitation. Finally, there is no indication in this
record that the trial court excluded any proffered evidence of defendant’s
character, background, history, mental condition, or physical condition.

Had defendant presented such
evidence, the court would have been required to consider such. (Guinn,
supra, 28 Cal.App.4th at pp.
1141-1143; Ybarra, >supra, 166 Cal.App.4th at p. 1089; see Cal. Rules of Court,
rule 4.423; § 190.3.) Indeed, years
before defendant was sentenced in this case, the California Supreme Court held
that a proportionate sentence for youthful offenders should include a
consideration of such factors as age, prior criminality, personal
characteristics, individual potential, and state of mind. (See Dillon,
supra, 34 Cal.3d at pp. 479-480, 482 [17-year-old
offender].) In Dillon,
“a clinical psychologist testified that after conducting a series of
tests and examinations he concluded that defendant was immature in a number of
ways: intellectually, he showed poor judgment and planning; socially, he
functioned ‘like a much younger child’; emotionally, he reacted ‘again, much
like a younger child’ by denying the reality of stressful events and living
rather in a world of make-believe. In
particular, the psychologist gave as his opinion that when confronted by the
figure of [the victim] armed with a shotgun in the circumstances of this case,
defendant probably ‘blocked out’ the reality of the situation and reacted
reflexively, without thinking at all.”
This uncontradicted assessment was corroborated by defendant’s plausible
version of the events which was given substantial weight by the judge and jury. (Id.
at p. 482-483.)

Guillen does not suggest he
was prevented from submitting testimony, letters, a psychologist’s report, or
any other evidence upon which the trial court might have exercised its
discretion under section 190.5 to sentence him to less than LWOP. Thus, it appears on this record, that the
only reason the sentencing court did not consider the offender’s upbringing,
mental and emotional development, impetuosity, ability to appreciate risks and
consequences, or his potential for rehabilitation, was the defendant’s choice
not to present evidence of any such factors.

In sum, we conclude that
section 190.5 is not unconstitutional on its face and that it was not applied
to defendant in a manner that violated the Eighth
Amendment to the United States Constitution.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.





______________________________,
J.

CHAVEZ



We concur:







______________________________,
P. J.

BOREN







______________________________,
J.

ASHMANN-GERST