Filed 1/22/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re DERRICK LYNN WILSON,

on Habeas Corpus. B254093
(Los Angeles County Super. Ct. No. KA0289 67)

ORIGINAL PROCEEDING on a petition for writ of habeas corpus

. Robert Armstrong , Judge. Petition granted.

Michael J. Brennan and Heidi L. Rummel , Post

- Conviction Justice Project, University of Southern California Law School
, for Petitioner .*

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters , Senior Assistant Attorney General, Steven D.
Matthews and Taylor Nguyen , Deputy Attorney s General, for Respondent.

_____________________________ __________________________________________ *Elizabeth Little, Certified Law Student, presented oral argument.2

Petitioner Derrick Lynn Wilson seeks habeas relief asserting
, among other contentions, that pursuant to the principles announced in Miller v. Ala bama (2012) 567 U.S. ___ , 132 S.Ct. 2455 ( Miller ), the life imprisonment without parole (LWOP)

sentence he received in 1996 for a crime he c ommitted when he was 17 years old violates
the Eighth Amendment prohibition on cruel and unusual punishment. Wilson further

argues he is entitled to be resente nced based on the individual sentencing factors that the
Miller Court directed trial courts to consider when sentencing a juvenile offender for a
homicide conviction. We conclude that Wilson is entitled to habea s relief, and therefore grant the petition for writ of habe as corpus, and remand for res entencing

.

FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime s 1 On August 22, 1995, three masked males, later identified as Petitioner Wilson, Bobby White and Jamon Car r, approached the Chino Valley Bank in Pomona . Wilson
, White and Carr were all 17 year s old at the time. They were armed with handguns. As they walked towards the bank, one of the young men fired at the se curity guard who
stood outside the bank near the ATM machine. The security guard was not hit by the shots; he fled on foot and then alerted police.
Once insi de the bank, one of the young men told the customers to “hit the deck.” The young men then jump ed over the teller counter ; o ne of them grabbe d Theresa Hernandez, a bank employee. They ord ered Hernandez to give them money and pointed to the teller counter. Hernandez responded that the money was not there. At some point during the encounter, Hernandez was struck in the head. She dropped her k eys, and as
she bent down to re trieve them, one of the three assailants shot and killed her. Wilson, Carr and White ran out of the bank. They fled in a car driven by Quentin Smith. Another car occupied by Kareem Jamal Brown also waited nearby for the trio. 2

1 The facts relating to the crimes are taken from this court’s opinion in Wilson’s direct appeal (case No. B104556).3

Shortly after the robbery, White admitted to his girlfriend that he had participated
in the crime s and shot Hernandez during the rob bery. White said that he shot Hernandez because he thought that Hernandez w as activating an alarm. Petitioner W ilson admitted

to his fiancé e that he had “pistol whipped” the victim.
Brown was arrested. 3 Wilson, Carr and White turned themselves into the police a few days after the robbery.
B. Wilson’s Background 4 Wilson was born on September 7, 1977. He lived with his parents and two younger siblings in Inglewood, a nd then later in south central Los Angeles. According to Wilson and his mother, his fami ly life was very structured; his parents were overprotective and were strict disciplinarians . Wilson ’ s mother chose his friends, rarely allowed him to watch television, and would not let him play outside with other neighborhood children

. He was not allowed to spend the night at a friend’s home. Until he was in high school, Wilson attended Los Angeles Ch ristian Schoo l , where his
mother worked.
When Wilson was a pre

- teen he began to feel frust rated by his school and strict
home life; Wilson felt isolated and resentful because of the restrictions placed on him by his parents . He claimed that he was tease d in the neighborhood for attending a charter
school and because he wore a school uniform. Wilson began going out at night without

2 Smith and Brown were adults at the time of the attempted robbery. On t he day of the robbery , Brown and Smith drove Wilson and hi s codefendants to the bank

. According to Wilson, Brown told them that because White, Wi lson and Carr were minors they would not receive harsh sentences if they were cau ght

. Brown and Smith instructed W ilson and his codefendants to throw the money and guns in Brown ’ s car, and then drive away in Smith’s car after the robbery.

3 Smith died prior to trial.

4 The facts relating to Wilson’s background and family history are taken from declarations of Wilson and his mother that were attached as exhibits filed in support of his petition for habeas corpus. This information was not presented duri ng his original sentencing hearing.4

his parents ’ knowledge , and fought with his parents when they attempted to control his
actions. Wilson ’ s father would often hit him with a belt or switch. Wilson began having behavioral problems at his school . His p arents decided to send him to a public high school. He initially attended El Camino Real Charter High
Schoo l in the San Fernando Valley

. By his early teens, W ilson began using marijuana and alcohol on a regular basis. Wilson was truant from school. He associate d with older males in his neighbor hood who had made money b y selling drugs and committing crimes

. His parents would lock him out of the house for viol ating the house rules. In ninth grade Wils on was expelled from El Camino Real Charter High Sch ool for fighting . Wilson ’ s mother enrolled him at Washington H igh School in Los Angeles. She
later discovered that Wilson was not attending classes at Washing ton High School. Wilson ran away to his paternal aunt ’ s house, after his mother found drug paraphernalia in his clothing

. Wilson moved back and forth between his parents’ home
and various r elatives for a number of months. After one of Wilson ’ s friends w as involved in a shooting, his mother sent him t o Arizona to stay with another maternal aunt. Wilson soon found himself in trouble with his aunt for skipping school so he returned to
L os Angeles

. Wilson emulated the lifestyle of his friends who sold and abuse d drugs,
consumed alcohol and did not attend school

. At age 15 , he joined the East Coast Crips gang and b ecame involved in gang activity

. During this peri od, Wilson continued to move from place to place, staying with
extended family, with friends, on the streets, or in motels. When Wilson was 17 years old, he rented an apartment and began dating Keisha Kelly. Wilson soon moved in w ith Ms. Kelly. He helped her pa y the bills and buy groceries and school supplies for her
children.
Wilson met two o f his codefendants, Carr and White, t hrough one of Ms. Kelly ’ s friends. Wilson and his codefendants began spending time together and were involved i n some minor robberies. Brown, who was 22 years old at the time
, approached Carr, White, and Wilson, and p roposed that they rob a b ank in Pomona

. According to Wilson,5

Brown picked them up the night before the robbery, and took them to his house, where they spent the night. Brown also supplied gun s to use in the robbery.
C. Conviction, Sentencing, Appeal and Instant Petition for Habeas Petition Wilson and his three codefendants were charged with first degree murder (with a robbery special circumsta nce); attempted robbery with an allegation that White personally used a firearm; and attempted murder. Wilso n was tried with his codefendants Brown, Carr, and White. On April 12, 1996, Wilson was found guilty of felony murder
in the first degree, in violation of Penal Code section 187 , subdivision ( a ); 5 att empted second degree robbery, and attempted murder

. On April 30, 1996, Wilson and his codefendants appeared for a sentencing hearing. During the proc eeding, family members and friend s of the victim testified and asked the court to impose a n LWOP sentence on the defendants . No evidence or witnesses were pr esented on behalf of Wilson during that hearing. The court continued the sentencing, indicating that any mitigating evidence on behalf of Wilson and his
codefendants could be offered at a later date. On June 7, 1996, Wilson again appeared for sentencin g. On this date, Wilson attempted to substitute out his attorney for another attorney. The court denied the
motion. No individu als spoke on Wilson ’ s behalf during that proceeding

. The matter was continued to September 6, 1996
, to allow Wilson to partic ipate in a psychiatric
evaluation.
Wilson did not participate in the evaluation, however. At the continued sentencing hearing, Wilson ’ s counsel provided the court with a mitigatio n statement, and asked the
court to exercise its discretion to sentence W ilson to 25 years to life rather than LWOP.
The mitigation statement noted that: (1) Wilson was a minor at the time of the offense
and induced by others to participate in the crime; (2 ) Wilso n had no prior criminal record; (3 ) at the time of his arrest he was still pursuing his high school diploma and was

5 All references to statute are to the Penal Code unless otherwise indicated.6

employed; and (4 ) W ilson voluntarily acknowledged his wrongdoing at an early s tage of the criminal process. At sentencing, t he court considered evidence submitted by the prosecution that : the crime in volved great violence and bodily harm; Wilson was armed; the victim was in a vulnerable position; Wilson was a leader; Wilson was a participant in a planned robbery; and the crime included an attempted taking of great monetary value. The court imposed on Wilson the sentence of life without the possib ility of parole. In explaining the decision, the court stated: “In this matter, we did have a sentencing hearing and there were many people who gave the court the benefit of input, and of course, I tried the case and heard all of the facts. [¶] And in this matter, the jury found the defendant guilty of the attempted robbery and the attempted murder of the guard and the murder of the victim. And even though he was not the shooter, the evidence was
clear that he was a very active participant and that he did, in fact, pistol

- whip the victim
before the co

- defendant actually shot her to death. [¶] That the jury found the special circumstances to be true would mandate life without the possibility of parole but f or the fact of the defendant’s age. And the court does have some discretion in that manner. [¶] So in passing the sentence, I want to make it clear that I have considered that possibility. I’ve exercised that discretion and I find that in view of the t otality of the circumstances in this case that the defendant does not merit such consideration and the verdict of the jury is compelling and, therefore, as to the count of murder, the defendant is sentenced to life imprisonment without the possibility of p arole.” On July 20, 1998, this c ourt aff irmed the judgment on direct a ppeal ( case No. B104556)

. On May 6, 2013, Wilson filed a petition for writ of habeas corpus in the Los Angeles Count y Superior Court ( c ase No. KA028967), challenging the constitutio nality of his LWOP sentence in light of the United States Supreme Court’s opinion in Miller

. Wilson argued that Miller requires reexamin ation of the constitutionality of his sentenc e, including the validity of the statutory scheme the sentencing court use d to select the punishment and the adeq uacy of the sentencing court ’ s consideration of the distinctive7

mitigating features of youth addressed in the Miller opinion. Wilson also requested that the superior court def

er further briefing pending the ou tcome of two cases

– People v. Moffett (S 206771) and People v. Gutierrez (S206365)

– that were pending before the California Supreme Court

. 6

In July 2013, the Los Angeles County Superior Court issued an order deferring further briefing until 90 days after the C alifornia Supreme Court issued its rulings in People v. Moffett and Peopl e v. Gutierrez

. I n the fall of 2013, however, t he superior court denied Wilson ’ s p etition

. The order did not address any of the constitutional issues raised by Wilson in hi s p e titi on

. Instead, the court found that the enactment of Senate Bill No. 260 , which added section 3051 to the Penal Code, created an administrative remedy for Wilson, making his
constituti onal claims moot. Wilson filed a mot ion for reconsideration

. Wilson arg ued
that Senate Bill No. 26 0 provided no remedy for him bec ause he was sentenced to
LWOP

. 7

6 The California Supreme Court granted review in Moffett and Gutierrez to consider the constitutionality of section 190.5, the statute pursu ant to which Wilson had been sentenced, in light of Miller, and to decide whether the individual sentencing considerations announced in Miller should apply to imposition of sentences under section 190.5. (See People v. Gutierrez (2014) 58 Cal.4 th 1354, 13 60 [“ We granted review to determine whether a presumption in favor of a sentence of life without parole under section 190.5(b) violates the Eighth Amendment to the United States Constitution under the principles announced in Miller .”].) As discussed elsewh ere here, the California Supreme Court filed its opinion in Moffett and Gutierrez in May 2014. ( Ibid. )

7 Under s ection 3 051 of the Penal Code minors sentenced to determinate term of years or a life term have an opportunity to prove their rehabilitation and secure release on parole after serving a p rescribed term of confinement. Senate Bill No. 260, codified as section 3051, provides an opportunity for a juvenile offender to be released on parole irrespective of the sentence imposed by the trial court by requiring the Board of Parole Hearings to conduct “youth offender parole hearings” (Sen. Bill No. 260 (2013

– 2014 Reg. Sess.) ch. 312, § 4, p. 7) to consider the release of juvenile offenders sentenced t o prison for specified crimes. It provides for a you th offender parole hearing during the 15th year of incarceration for a prisoner serving a determinate sentence (§ 3051, subd. (b)(1)), a hearing during the 20th year of incarceration for a prisoner serving a life term less than 25 years to life (§ 3051,8

The court denied Wilson ’ s motion for recon sideration.
DISCUSSION Wilson argues that his LWOP sentence must be vacated an d that he is entitled to resentencing. He asserts that his sentenc e violates the Eighth Ame ndment’s prohibition
on cruel and unusual punishment in light of the Supreme Court’s recent opinion in Miller,
wh ere the Supreme Court held that a mandatory LWOP sentence for a juvenile convicted
of homi cide offenses is unconstitutional, and that a sentencing court must consider individual considerations before imposing an LWOP sentence on a juvenile. The Attorney General disagrees, and also argues that section 1170, subdivision (d)(2) provides a remedy for juve niles with LWOP sentences

. In addition, t he Attorney
General raises several threshold arguments unrelated to the merits. Specifical ly
, the
A ttorney General contends that Wilson’s habeas petition should be summarily denied
because it was filed to o late; and that Miller does not apply to Wilson’s case because
Miller ’s holding and analysis does not warrant retroactive application

. I. Timeliness of Wilson’s Habeas Petition
T he Attorney General asserts that Wilson’s petition should be rejected because i t was filed 15 years after the judgment became final in the case, and almost a year after
Miller was filed. The Attorney General also points out that in Wilson’s 1998 direct

su bd. (b)(2)), and a hearing during the 25th year of incarceration for a prisoner serving a life term of 25 years to life (§ 3051, subd. (b)(3)). Section 3051, subdivision (f)(1) requires that any psychological evaluations and risk assessment instruments be administered by a licensed psychologist employed by the board and that the evaluations and instruments “take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growt h and increased maturity of the individual.” (§ 3051 , subd. (f)(1) .) Section 3051 exempts from its provisions inmates who were sentenced pursuant to the three strikes law (§§ 667, subds. (b)

- (i), 1170.12), the Chelsea King Child Predator Prevention Act o f 2010 (formerly and more commonly known as Jessica's Law) (§ 667.61), or “to life in prison without the possibility of parole” (§ 3051, subd. (h))

. The Attorney General has conceded that section 3051 does not provide a remedy for Wilson or moot his peti tion because it excludes individuals such as Wilson who are serving LWOP sentences.9

appeal
, Wilson asserted a n unsuccessful challenge to his sentence as cruel and un usual punishment in violation of the Eighth Amendm ent

. In general a p etition for a writ of habeas corpus must be filed “as promptly as the
circumstances allow.” ( In re Clark (1 993) 5 Cal.4th 750, 765, fn. 5.) Nonetheless,
neither the Legislature nor the Supreme Court has established an express time limit within which a petitioner must seek habeas relief ( In re Huddleston (1969) 71 Cal.2d 1031, 1034) , although a ny significant delay i n seeking collateral relief must be fully j ustified. ( In re Nunez (2009) 173 Cal.App.4 th 709, 723 .) Delay is measured from the time a petitioner knew, or reasonably should have known, the information in support of
the claim an d the legal basis for the claim. ( In re Huddleston , supra, 71 Cal.2d at
p. 1034 .) Indeed, “[a] defen dant could not be expected to raise at the time of his conviction points of law which had not yet been pronounced. ” ( Ibid .; In re Caffey (1968) 68 Cal.2d 762, 773 .) Wilson’s petition is not untimely. The arguments that Wilson asserts in his petition re garding the constit utionality of his LWOP sentence were not legally viable prior to 2012 when the Supreme Court decided Miller . In addition, the Miller Court
announced new sentencing considerations for juveniles based on scientific research and insights t hat were developed after Wilson ’s original sentenc ing . Although some of the

age

- based sentencing considerations addressed in Miller are included in section 190.3 (and existed when Wilson was sentenced)
, Miller relied on the new scientific information

to e xpand the list of those considerations and recalibrate the weight they should be given by a sentencing court.
W e also conclude that Wilson’s 10

- month delay in filing his habeas petition after
Miller became final does not justi fy the rej ection of his claims . ( See In re Huddleston
, supra, 71 Cal.2d at p. 1034 [concluding a lap se of two and one

- half years between discovery of the ground to seek relief and filing of the petition does not amount to an unreasonable delay].) Given the length of time Wilson has b een in prison and the dormancy of his case since his conviction was affirmed in 1998 , the fact that it took him a10

number of months to find appellat e counsel and to prepare and file a petition is not
unreasonable.
II. The Constitutionality of Juvenile LWO P Sentences In his petition, Wilson argues that his LWOP sentence violates the Eighth
Ame ndment’s prohibition on cruel and unusual punishment in view of recent Eighth Amendment jurisprudence.
A. Eig hth Amendment in the Context of Sentencing Juveniles
The Eighth Amendment guarantees that “[e] xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const. , 8th
Amend. ) The right not to be s ubjected to excessive sanctions “flows from t he basic

‘ pr ecept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” ( Roper v. Simmons (2005) 543 U.S. 551, 560.) To determine whether a punishment is cruel or unusual in violation of the Eighth Amendment, “courts must look beyond histor ical conceptions to ‘ “the evolving standards of decency that mark the

p rogress of a maturing society.” ’ [Citations].” ( Graham v. Florida (2010) 560 U.S. 48,
58 .) “This is because ‘[t]he standard of extreme cruelty is not merely descriptive , but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as t he basic mores of society change.’ ” ( Kennedy v. Louisiana (2008) 554 U.S. 407, 419 .) In the context of juvenile offenders, the Supr eme Court in Miller held that the Eighth Amendment forbids sentences of non

- discretionary, mandatory life imprisonment without the possibility of parole for individuals who wer e under the age of 18 at the time they committed a homicide offense

. ( Miller v. Alabama, supra, 567 U.S. __, 132 S.Ct. 2455.) Although the Court did not categorically bar the punishment of life imprisonment without parole for minors, it determined that the sentencing court must consider the offending minor ’ s age and youthful charact eristics before imposing such a sentence. ( Id.11

at pp. 2467, 2471.) 8 Concerned with proportionality of punishment, the Court looked to two lines of precedent to reach this result. ( Id. at p. 2463.) The first line of cases held the Eighth Amendment bar against cruel and unusual punishment categorically banned sentencing practices resulting in diverge nce between
the culpability of a class of offenders and the severity of the penalty imposed. ( Miller v. Alabama, supra, 567 U.S. __, 132 S.Ct. 2455 , citing Graham v. Florida, supra, 560 U.S. at pp. 61

- 62 [ holding unconstitutional a sentence of life imprisonment without parole for
a minor who c ommitted a non

- homicide offense] ; Atkins v. Virginia (2002) 536 U.S. 304 [ holding the execution of intellectually disa bled defendants unconstitutional] ; Roper v. Simmons, supra, 543 U.S. 551 [ holding the execution of individuals who were under 18 years of age at the time of their capital crimes unconstitutional ] ; Kennedy v. Louisiana (2008) 554 U.S. 407 [ holding unconstit utional the death pen alty for non

- homicide offenses]

. ) Evaluating these ca ses, the Supreme Court concluded that “chi ldren are different from adults for the purposes of sentencing ” in a number of ways . “First,
children have a ‘ lack of maturity and an unde rdeve loped sense of respon sibility,’ leading to recklessness, impulsivity, and heedless risk

- taking. [Citation.] Second, children ‘are
more vulnerable .

. . to negative influences and outside pressures,’ including from their family and peers; they have l imited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime

- producing settings. [Citation.] And third, a child ’ s character is not as ‘well formed’ as an adult ’ s; his traits are ‘less fixed’
and his acti ons less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ [Citation.]”

8 Two petitioners were before the Supreme Court in Miller

. Evan Miller

– who was convicted of capital murder committed when he was 14 years old and sentenced to life in prison without possibility of parole

– was before the Court on direct appeal from the Alabama Court of Criminal Appeals, which had affirmed his conviction and sentence. ( Miller v. State (Ala. Crim.App.2010) 63 So.3d 676, cert. denied, No. 1091663 (Ala. Oc t. 22, 2010). Kuntrell Jackson

– who was convicted of capital felony murder and aggravated robbery also committed at the age of 14 years and sentenced to life in prison without the possibility of parole

– was before the Court on collateral review, after t he Arkansas Supreme Court affirmed the dismissal of his state habeas petition by the Arkansas C ircuit Court. ( Jackson v. Norris (Ark.2011) 378 S.W.3d 103 .)12

( Miller v. Alabama, supra, 567 U.S. __, 132 S.Ct. at p . 2464

. ) For these reasons, “juveniles have diminished culpability and greater prospec ts for reform,” and are thus

“ ‘less deserving of the most sev ere punishments.’ [Citation.]” ( Id. at pp. 2464

- 24 65. ) 9
Miller then looked to a second line of cases requiring individualized decision

making in capital punishment cases. 10 The Miller Court then applied this jurisprudence
to th e imposition of life imprisonment on juveniles by reasoning that a life imprisonment without parole sentence for a juvenile is tantamount to a death sentence for an adult. ( Miller v. Alabama, supra, 567 U.S. ___, 132 S.Ct. at p. 2463

- 2464

. ) B ecause the E ighth Amendment when applied to adults requires individualized sentencing prior to the imposition of a death sentence, the Eighth Amendment when applied to juveniles requires individualized sentencing prior to the imposition of a sentence of life imprisonm ent without parole. ( Ibid. )

9 The Miller Court also observed : “Our decisions [in Roper and Graham ] rested not only on common sense

– on what ‘any pa rent knows’

– but on science and social science as well. [Citation.] In Roper , we cited studies showing that ‘ “[o]nly a relatively s mall proportion of adolescents” ’ who engage in illegal activity ‘“develop entrenched patterns of p roblem behavior.” ’ [Citation.] And in Graham , we noted that ‘developments in psychology and brain science continue to show fundamental differences b etween juvenile and adult minds’

– for example, in ‘parts of the brain involved in behavior control.’ [Ci tation.] We reasoned that those findings

– o f transient rashness, proclivity for risk, and inability to assess consequence

– both lessened a child ’ s ‘moral culpability’ and enhanced the prospect that, as the years go by and neurolo gical development occurs , his

‘ “deficiencies will be refo rmed.” ’ [Citation.] ” ( Miller v. Alabama
, supra, 567 U.S. at pp.

__ –

__ , 132 S.Ct. at pp. 2464

– 2465, fn. omitted.) “The evidence presented to us in these cases indicates that the science and social science supporting Roper ’s and Graham ’s conclusions have become even stronger.” ( Miller v. Alabama
, supra , at 567 U.S. at p. __ , fn. 5, 132 S.Ct. at p. 2464, fn. 5; see ibid . [“ ‘It is increasingly clear that adolescent brains are not yet fully mature in regions and systems relat ed to higher

- order executive functions such as impulse control, planni ng ahead, and risk avoidance’ ”].)

10 The “second line” of precedents cited in Miller are Woodson v. North Carolina (1976) 428 U.S. 280 and Lockett v. Ohio (1978) 438 U.S. 586.13

The Miller Court summarized the indi vidual sentencing factors (the Miller factors)
that are the critical features of individualized sentencing for juveniles : (1) the “chronological age” of the youth and the hallmark features o f youth, including “immaturity, impetuosity, and failure to appreciate risks and consequences”; (2) the “family and home environment” that surrounded the youth and from which the youth

cannot usually extricate him or herself ; (3) “the circumstances of the homicide offense, including the extent of [the juvenile ’ s] participation in the conduct and the way familial and peer pressures may have affected [the juvenile ]”; (4) the evidence or information in the record as to whether the offender might have been char ged or convicted of a lesser
offense but for the “incompetencies associated with youth

– for example, [the juvenile’s ] inability to deal with police officers or prosecutors (including on a plea agreement) or [the juvenile ’ s] incapacity to assist [the juven ile ’ s] own attorneys”; and (5) “th e possibility of rehabilitation ” along with the extent or absence of a criminal history. ( Miller v. Alabama, supra, 567 U.S. at p. ___ , 132 S .Ct. at p. 2468

. ) Taking into account “the confluence of these two lines of precedent”

– which establish that juvenile offenders are less culpable and more susceptible to reform than adults, and that imposition of the harshest punishment on a juvenile requires individualized sentencing that takes into account an offender ’ s “youth (and all that

acc ompanies it)”

– the Miller Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” ( Miller v. Alabama , supra, 567 U.S. at pp.

__ , __ , 132 S.Ct. at pp. 2464, 2469.) 11
The Miller Court also caution ed : “[G]iven all we have said in Roper, Graham , and
this decision about children ’ s diminished culpability and heightened capacity for change,

11 The M iller Court did not consider the petitioners’ “alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” ( Miller v. Alabama, supra, 567 U.S. at p.

__ , 132 S.Ct.

a t p. 2469.)14

we think appropriate occasions for sentencing juveniles to thi s 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 t hose differences counsel against irrevocably sentencing them to a lifetime in prison.” ( Miller v. Alabama, supra, 567 U.S. at pp. __,

__ , 132 S.Ct. at pp. 2464, 2469.) Following Miller
, the California Supreme Court had the opportunity to determine the ap plication of Miller ’s analysis to California’s sentencing scheme for juvenile
offenders. ( People v. Gutierrez, supra, 58 Cal.4 th 1354.) Specifically
, the Gutierrez
C ourt considered the constitutionality of section 190.5, 12 which had long been interpreted by the California a ppellate c ourts as creating a presumption in favor of LWOP as the appropriate penalty for juveniles c onvicted of homicide offenses. ( People v. Gutierrez
, supra, 58 Cal.4th at p. 1360.) Gutierrez expressly disapprove d the line of cases that had interpreted section 190.5 as establishing a presumption in favor of LWOP sentences for juvenile offenders hold ing “ that section 190.5(b) confers discretion on the sentencing court to impose either life without parole 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 life without parol e.” ( Id. at p. 1387.) In addition, Guiterrez held that a sentencing court , in exercising its discretion under section 190.5, mus t consider all relevant evidence , including the “ Miller factors,” bearing on the “distinctive at tributes of youth” and how those attributes “diminish the

12 Section 190.5 , subdivision (b) provides that the penalty for 16

- or 17

- year

- old juveniles who commit special circumstance murder “shall be confinement in the state prison for life without the possibility of parole or, at the discretion of t he court, 25 years to life.” (§ 190.5.)15

penological justifications for imposing the harshest sentences on juvenile offenders.” ( People v. Gut ierrez , supra, 58 Cal.4th at p. 1390.) 13
B. Retroactive Application of Miller Wilson seeks the benefit of the application of the principles announced in Miller
and applied in Gutierrez

. Because Wilson’s LWOP sentence was imposed and the judgment in his case b ecame final 15 years before Miller was decided, Wilson is entitled

to be resentenced only if the principles announced in Miller a pply retroactively to cases that became final prior to its pronouncement

.

1. Test for Retroactivity
In Teague v. Lane (1989) 489 U.S. 288 , the Supreme Court set forth the test for determining when a new rule of constitutional law will be applied to cases on collateral
review. T he Teague Court explained that “[r]etroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all
who are similarl y situated.” ( Id

. a t p. 300.) According to Teague , “new rules should always be applied retroactively to cases on direct review, but .

. . generally they should not be applied retroactively to crimina l cases on collateral review.” ( Id. a t p. 303.) The
Court reasoned that collateral review is not designed as a substitute for direct review and
that the go vernment has a legitimate interest in having judgments become and remain
final. ( Ibid .)
The Teague Court articulated two exceptions to the general rule of nonretroactivity for new rules in cases on collateral review. First, a new rule should be applied r etroactively if it “places ‘certain kinds of primary, private individual conduct

13 Direct appeals in Gutierrez and Moffett were pending when Miller was decided by the United States Supreme Court. Because the defendants in People v. Gutierrez and People v. Moffett were sentenced prior to Mill er in accord with the prevailing interpretation of section 190.5 which included the presumption in favor of LWOP sentences, the California Supreme Court remanded the two cases for resentencing in light the principles set forth in Miller and Gutierrez. ( Pe ople v. Gutierrez , supra, 58 Cal.4th at p. 1361.)16

beyond the power of the criminal law

- making authority to proscribe.’” ( Teague , supra, 489 U.S. at p. 307.) Second, a new rule should be applied retroactively if it “requires the observance of ‘those procedures that .

. . are “implicit in the concept of ordered liberty. ” ’” ( Ibid .) T hus “ [u]n less they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those c ases which
have become final before the new rules are announced.” ( Id. at p. 310.)
I n Schriro v. Summerlin (2004) 542 U.S. 348, t he Supreme Court revis it ed Teague ’s retroactivity analysis. The Schriro Court defined the key distinction in the

retroact ivity analysis a s whether the new rul e is substantive or procedural.
Schriro held that substantive rules apply retroactively, and include those rules that (1) narrow the scope of a criminal statute by interpreting its terms or (2) “alter the range
of co nduct or the class of persons covered by the statute and place them beyond the
State ’ s power to punish. ” ( Schriro, supra , 542 U.S. at pp. 351

- 342 .) Included within t he second categ ory are rules prohibiting a certain category of punishment for a class of
defendants because of their status or offense . Such rules apply retroactively because th ey carry a “‘significant risk’ ” that a defen dant stands convicted of “ ‘ an act that th e law does
not make criminal ’ ” or “faces a punishment that th e law cannot impose u pon him. ” ( Id. at p. 352.) The C ourt explained that although it had sometimes referred to rules of this type as “falling under an exception to Teague ’ s bar on retroactive application of procedural rules, .

. . they are more accurately characterized as su bstantive rules not subject to the bar.” ( Id. at p. 352 , f n. 4.)
The Court further explained that new “rules of procedure” general ly do not apply retroactively because they do not produce a class of persons convicted on conduct that the
law does not ma ke criminal, but merely raise the possibility that someone convicted with
use of the i nvalidated procedure might have been acquitted otherwise. The Court found that because of the speculative connection to innocen ce, retroactive effect is only given to

a small set of “watershed rules of criminal procedure” implicating the fundamental fairness and accuracy of the criminal proceeding. ( Schriro , supra, 542 U.S. at p. 352.)17

This class of rules is extr emely narrow; a watershed rule is one “without which the likelihood of an accurate conviction is seriously diminished.” 14 ( Ibid. ) In applying the “substantive/procedural” dichotomy announce d in Schriro, courts have included within the substantive category categorical bans , such as r ules forbidding imposition of the death sentence on persons with intellectual disabilities or on juveniles. (See Penry v. Lynaugh (1889) 492 U.S. 302, 330, abrogated on other grounds ; Atkins v. Virginia (2002) 536 U.S. 304; Roper v. Simmons, supra, 543 U.S. 551.) The Court has

treat ed the rule forbidding life imprisonment for a juvenile convicted of a nonhomicide
offens e as a substantive rule ( s ee Graham v. Florida, supra, 560 U.S. at pp. 61

- 62) , as it
has a decision that modifies the elements of an offense because n ew elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful
or vice versa. ( See Bousley v. United States (1998) 523 U.S. 614, 620

- 621.) In the sentencing context, the Court has found a number of rules to be procedural.
Schriro considered whether the rule announced in Ring v. Arizona (2002) 536 U.S. 584

– that a jury, and not a judge, had to find an aggravating circumstance necessary for imposition of the death penalty

– applied retroactively to cases on collateral review

. Schriro held this rule was procedural, noting it merely “altered the range of permissible
methods for determining whether a defendant ’ s conduct is punishable by death.” ( Schriro , supra, 542 U.S. at p. 353.) The Court noted that rules that “allocate
de cisionmaking authority in this fashion are pr ototypical procedural rules” but stated:

“ This Court ’ s holding that, because [a state] has made a certain fact essen tial to the death penalty, that fact must be found by a jury, is not the same as this Court ’ s m aking a certain

14 The Court further observed that the watershed class of rules is extremely narrow, and that it is unlikely that any has yet to emerge. “In providing guidance as to what might fall within this exception , [the Court] has repeatedly referred to the rule of Gideon v. Wainwright (1963) 372 U.S. 335 [right to counsel] a nd only to this rule.” ( Schriro v. Summerlin , supra, 542 U.S. at p. 352.) As the Court observed in Beard v. Banks (2004) 542 U.S. 406, 417, “ it should come as no surprise that we have yet to find a new rule that falls under the second Teague exception.”18

fact essential to the death penalty. The former was a procedural holding; th e latter would
be substantive.” ( Id. at p. 354.) In state courts, the Supreme Court has hel d that the Teague/Schriro r etroactivity analysis applied in federal hab eas actions is not binding when deciding issues of

r etroactivity under state law. ( Danforth v. Minnesota (2008) 52 U.S. 264, 276.) A state court is “ ‘free to choose the degree of retroactivity or prospectivity which [it] believe[s] appropriate to the par ticular rule under consideration, so long as [it] give[s] federal constitutional rights at least as broad a scope as the United State s Supreme Court requires.’” ( Ibid. ) Thus , states can give broader effect to new rules than is required by
the Teague/Schr iro test. 15

2. Application of Teague/Schriro to Miller To determine whether a new rule applies retroactively to a petitioner ’ s conviction on collateral review, the Court has set forth a three

- step approach ; at a minimum, courts

must : (1) determine the da te petitioner ’ s judgment of conviction became final; (2)

“‘ [s]urve[y] the lega l landscape as it then existed,’ and ‘ determine whether a state court considering [the defendant ’ s] claim at the time his conviction became final would have felt compelled by exi sting precedent to conclude that the rule [he] seeks was required by
the Constitution ’ ” ( quoting Saffle v. Parks (1990) 494 U.S. 484, 488) ; and (3) decide
whether one of the two exceptions to nonretroactivity apply

. ( Caspari v. Bohlen (1994) 510 U.S. 383, 390 ; citations omitted. )

15 The California Supreme Court has also acknowledged its authority to give greater retroactive impact to a decision than the federal courts. (See In re Gomez (2009) 45 Cal.4th 650, 653 [applying Teague and concluding Cunningham v. California (2007) 549 U.S. 270 applied on collateral review to judgments final before it was decided].) Nonetheless, because, as we shall explain, we conclude that Teague/Schriro require the retroactive application of Miller in the present case, we need not conduct a separate analysis. Similarly, our conclusion that the principles announced in Miller should be applied here renders unnecessary the consideration of t he Attorney General’s argument that this court should not apply Gutierrez retroactively in this case.19

H ere the parties agree t hat Miller a nnounced a new rule , satisfying the second

prong

. A “ new rul e” is defined as a rule that was not dictated by precedent existing at the
time the defendan t’ s conviction became final. ( Whorton v. Bockting (2007) 549 U.S. 406, 416 .) Indeed, t he rule announced in Miller was not dictated by precedent existing at
th e time the judgment in Wilson’s case became final in 1998

. R ather, Miller relied heavily on Graham, decided in 2010 and Roper , decided i n 2005 . As a result, we look to the third step: is Miller either a substantive or procedural rule ? 16 N o published opinion
of a court in California has resolved the question of retroactivity of Miller

. 17

a. Retroactive Application of Miller in Other Juri sdictions
O ther jurisd ictions have considered the retroactive application of Miller , with
mixed results. T he primary issue in these cases is whether the rule announced in Miller is
substantive or procedural

. Courts that have determined the rule s announc ed in Miller are proced ural focus specifically on language in Miller that “ ‘[o]ur decision does not categorically bar a penalty for a class of offenders or type of crime.’” These courts reason that Miller simply “altered the range of permissible methods” for determining whether a juvenile could be
sentenced to life imprisonment without parole. (See State v. Tate (2013) 130 So. 3d 829, 837 [Louisana State Supreme Court]; Com monwealth v. Cunningham (2013) 81 A.3 d 1, 10 [ Pennsylvania Supreme Court ]; Malvo v. Mathena (E.D. Va. Nov. 12, 2014) 2014 WL

16 Because we conclude that rules announced in Miller are substantive we do not analyze whether Miller falls within the Teague exception for a “waters hed ” rule of criminal procedure.

17 Earlier this year in In re Rainey (2014) 224 Cal.App.4th 280, the First District Court of Appeal held that Miller announced new substantive rules and therefore applied retroactively to cases on collateral review. However, the Supreme Court granted a petition for review in Rainey. ( In re Rainey (2014) __ Cal.4 th __, 326 P.3d 251 (S217567).) In granting review, the Court ordered briefing deferred pending decision in In re Alatriste (S214652) and In re Bonilla (S214960) whic h included the issue: “Does Miller apply retroactively on habeas corpus to a prisoner who was a juvenile at the time of the commitment offense and who is presently serving a sentence that is the functional equivalent of life without the possibility of paro le?”20

2808805 [slip opinion] ; In re Morgan (11 th Cir. 2013) 713 F.3d 1365, 1367; Craig v.
Cain (5th Cir. 2013) No. 12

- 30035, 2013 WL 6 9128, at *l

– 2 [ “ Miller does not satisfy the test for retroactivity because it does not categorically bar all sentences of life imprisonment for juveniles; Miller bars only those sentences made mandatory by a sentencing scheme. Therefore, the first Te ague exception does not apply.”]
, citations omitted; Thompson v. Roy (D.Minn. 2014) No. 13

- c v

- 1524, 20 14 WL 1234498;
Chambers v. State (Minn. 2013 ) 831 N.W.2d 311, 328

- 3 2 9; People v. Carp (Mich.Ct.App. 2012) 828 N.W.2d 685, 709

- 710 [ The Miller Court indicated that its ruling was procedural in nature, stating “ it mandates only that a sentencer fol low a certain

process

– considering an offender ’ s youth and attendant characteristics

– before imposing a particular penalty” ]. ) Overall, this line of precedent concludes that because Miller did not categorically ban a type of punishment for a class of of fenders or type of crime, as the
Court did in Roper and Graham , but instead modified the procedures to implement such a sentence, the rule must be procedural.
A number of other jurisdictions have determined that the rule announced in Miller
is subs tantive

. (See, e.g., Ex parte Maxwell (Tex.Crim.App. 2014) 424 S.W.3d 66 , 75 [ “We conclude that [the Miller rule] is a ‘ new substantive rule ’ that puts a juvenile ’ s mandatory ‘ life without parole ’ sentence outside the ambit of the State ’ s power.” ; italics
delete d ] ; Nebraska v. Mantich (Neb. 2014) 842 N.W.2d 716 , 730 [ “In essence, Miller

‘ amounts to something close to a de facto substantive holding, ’ because it sets forth the general rule that life imprisonment without parole should not be imposed upon a juvenile except in the rarest of cases where that juvenile cannot be distinguished from an adult
based on dim inished capacity or culpability .”]; Toye v. Florida (Fla.Dist.Ct.Ap p. 2014 )
133 So.3d 540 [ applying Florida ’ s own retroactivity analysis, and not the Teague analysis] ; Diatc henko v. Dist. Attorney for Suffolk Dist. (Mass. 2013) 1 N.E.3d 270 , 281 [ “The rule explicitly forecloses the imposition of a certain category of punishment

– mandatory life in prison without the possibility of parole

– on a specific class of defendants: those individuals under the age of eighteen when th ey commit the crime of murder.”] ; People v. Davis (2014) 6 N.E.3d 709, 7 22 [ “ Miller mandates a sentencing21

range broader than that provided by statute for minors convicted of first degree mu rder
who could otherwise receive on ly natural life imprisonment.”] , pet. for cert denied,
Illinois v. Davis (2014) ___ U.S. ___, ( Dec. 1, 20 1 4 WL 4094821) ; Jones v. Mississippi (Miss. 2013) 122 So.3d 698, 702 [ “Prior to Miller , everyone convicted of murder in Mississippi was sentenced to life imprisonment and was ineligible for parole. Following
Miller , Mississippi ’ s current sentencing and parole statutes could not be followed in homicide cases involving juvenile defendants. Our sentencing scheme may be a pplied to juveniles only after applicable Miller characteristics and circumstances have been considered by the sentencing authority. As such, Miller modified our substantive law by narrowing its application for juveniles.”]

. )
T he Supreme Court of Iowa in State v. Ragland (2013) 836 N.W.2d 107, 115

- 1 16 held: “ From a broad perspective, Mille r does mandate a new procedure. Yet, the procedural rule for [an individualized sentencing] hearing is the result of a substantive change in the law that prohibits mand atory life

- without

- parole sentencing. Thus, the case bars states from imposing a certain type of punishment on certain people.

. . . ‘ Such rules apply retroactively because they “ necessarily carry a significant risk that a defendant ”

. . . faces a punish ment that t he law cannot impose upon him. ’ ” In reaching its conclusion,
the Ragland Court also cited an article w ritten by Professor Erwi n Chemerinsky in which
he asserted : “There is a strong argument that Miller should apply retroactively: It says
that i t is beyond the authority of the criminal law to impose a mandatory sentence of life without parole. It would be terribly unfair to have individuals imprisoned for life without any chance of parole based on the accident of the timing of the trial [¶]

. . . [¶]

. . . [T]he
Miller Court did more than change procedures; it held that the government cannot constitutionally impose a punishment. As a substantive change in the law which puts matters outside the scope of the government ’ s power, the holdin g shoul d apply retroactively.” ( State v. Ragland
, supra , 836 N.W.2d at p. 117
, quoting Erwin Chemerinsky, Chemerinsky: Juvenile Life

- Without

- Parole Case Means Courts Must Look at Mandatory Sentences , A.B.A. J. Law N ews Now ( Aug. 8, 2012). )22

While t he analysis us ed by these courts varies, most conclude that Miller altered
the substantive law by broaden ing the range of punishment for juveniles convicted of
homicide. B efore Miller , under th ose state ’s law s , life without parole was mandatory and “automatic” for juve niles who committed homicide. ( See , e.g., Ex parte Maxwell , supra, 424 S.W.3d 66 , 70

- 7 5

. ) After Miller
, life without parole remains possible in limited circumstances, but new outcomes and sentences are also available. ( See, e.g., ibid. ; Jones
v. Mississ ippi, supra, 122 So.3d at p. 702

. ) Courts have also reached differing conclusions as to how the procedural posture of
Miller affects the retroactivity analysis. As noted elsewhere here, Kuntrell Jackson was before the Court on collateral review in the co mpanion case to Miller . Jackson sought relief after a state court dismissed his application for a writ of state habeas corpus. In announcing the new rule in Miller , the Court made no distinction between the procedural postures of the two defendants. Ins tead, it simply reversed both of the lower court judgments and remanded the causes “for further proceedings not in consistent with this opinion.” ( Miller v. Alabama, supra , 567 U.S. __, 132 S

. Ct. at p. 2475.)
Several jurisdictions have concluded that the Court ’ s equal treatment of the two
defendants in Miller is a factor that must be considered in the retroactivity analysis. In Ragland, the Iowa Supreme Court noted that Jackson ’ s case was remanded so that Jackson could be given an individualized sentencin g hearing and reasoned that “[t]here
would have been no reason for the Court to direct such an outcome if it did not view the
Miller rule as applying retroactively t o cases on collateral review.” ( State v. Ragland
, supra, 836 N.W.2d 107 at p. 116.) Ragla nd also noted that the dissent in Miller suggested the majority ’ s decision would invalidate other cases across the nation and
reasoned that the dissent would not have raised such a concern if the Court did not intend its holding to apply to cases on collat eral review. The court in Nebraska v. Mantich
, supra, 842 N.W.2d at p age 731 , observed “[w] e also find it noteworthy that the Court applied the rule announced in Miller to Jackson, who was before the Court on collateral
review.

. . . [W]e are not incline d to refuse to apply the rule announced in Miller to a defendant before us on collateral review when the Court has already applied the rule to a23

defendant b efore it on collateral review.” (See also Diatc henko v. Dist. Attorney for Suffolk Dist. , supra, 1 N.E.3d at p. 281 [ “Our conclusion is supported by the fact that in
Miller

. . . the Supreme Court retroactively applied the rule that it was announcing in that case to the defendant in the companion case who was before the Court on collateral review”] ; Peo

ple v. Morfin (2012) 9 81 N.E.2d 1010, 1022

– 10 23 [ “Our decision is reinforced by the fact that one of the two Miller defendants was before the United States Supreme Court on collateral review following completion of his direct appeal and
received relief in the same manner as Miller himself.”].) These decisions used the application of Miller to companion case petitioner Jackson before the Court on collateral
review to bolster their conclusion that Miller announced a substantive rule, not subject to
the bar i n Teague

. Other jurisdictions, however, conclude the Court ’ s treatment of Jackson is not a
relevant factor in th e retroactivity analysis. T he Pennsylvania Supreme Court noted that it was not clear the retroactivity issue was before the Miller Court with respect to Jackson and that in the absence of a “specific, principled retroactivity analysis” by the Court, it
would not deem the Court to have held the Miller rule applied retroactively just because the Court applied it to Jackson. ( See Commonwealth v. C unningham, supra, 81 A.3d at p. 9) Similarly, the Michigan appellate court in Carp reasoned that the “mere fact that the Court remanded Jackson for resentencing does not constitute a ruling or determination on retroactivity.” ( People v. Carp, supra , 828 N.W.2d at p. 712.) Carp further reasoned that the issue of retroactivity was not raised as to Jackson and thus the
Court had no reason to address it. ( Ibid .)

b. This Court’s Resolution
Based on o ur review of the authority from other state and federal jurisdictions , we conclude that the rules announced in Miller are substantive. Miller did not simply change what entity considered the same facts, and did not simply announce a rule that was designed to enhance accuracy in sentencing. Rather
, Miller he l d that the sentencing court must consider specific, individualized factors bef ore handing down an LWOP sentence for a juvenile. Ef

fectively, Miller requires the court to consider new specific facts before24

imposing a life imprisonment sentence with no poss ibility of parole on a juvenile

. Thus,
the Miller holding does not only address the aspect of “how” the de termination is made, it
also defines the “what,” i.e., the substantive limits of that determination

. In our view, it is significant that the Miller Court made no distinction in its
decision between the collateral review afforded the defendant from Arkansas (Jackson)
and the direct review afforded the defendant from Alabama (Miller)

. As the Iowa Supreme Court observed, “ [t] here would have been no reas on for the Court to direct such
an outcome if it did not view the Miller rule as applying retroactively to cases on
collateral review.” ( State v. Ragland, supra, 83 6 N.W.2d at p. 116.) Indeed, long ago the United State Supreme Court stated that it would not announce or apply a new constitutional rule in a case before it on collateral review unless that rule would apply to
all def endants on collateral review. (See Penry v. Lynaugh, supra, 492 U .S. at p. 330.)
The Court adopted this policy to ensure that justice is administered evenhandedly. ( Ibid ; Teague, 4 89 U.S. at p. 300.) As a result, we are dis inclined to refuse to apply the rule s announced in Miller to a petitioner before us on collateral review when the Court has

a lready applied the rule to a pet itioner before it on collateral review. Evenhanded administration of justice is carried out only if Wilson , like Jackson, is entitled to the
benefit of the new rule announced in Miller

. As noted by the Supreme Court of Iowa, any other resul t would be “‘t erribly unfair.’ ” ( State v. Ragland , supra , 83 6 N.W.2d at p. 116.)
Furthermore , the rules announced in Miller are akin to the type of rules the Schriro
Court determined are new substantive rule s : t he Court made a certain fact (consideration of mitigating evidence) essential to imposition of a sentence of life imprisonment withou t parole. I t imposed a new requirement as to what a sentencer must consider in order to

const itutionally impose LWOP

. Miller also recognized that when mitigating evidence is

cons idered, a sentence of life imprisonment without parole for a juvenile should be rare. This is consistent with the underlying logic of Mille r, based on Graham, that “ ‘[i]t is difficult even for expert psychologists to differentiate between the juvenile off ender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender25

whose crime reflec ts irreparable corruption.’” ( Graham v. Florida
, supra , 560 U.S. at p.
73. ) By setting forth the general rule that life imprisonment without parole should not be imposed upon a juvenile except in the rarest of cases where that juvenile cannot be distinguished from an adult based on diminished capacity or culpability
, Miller has changed the determination. T he requirement that the sentencing co urts acknowledge and
consider the differences between adults and juvenile s in terms of brain development and
social and emotional maturity, represents nothing short of a paradigm shift in the juvenile sentencing scheme. These new considerations have effec tively recalibrated the balance of factors the courts apply during sentencing. Furthermore, in rejecting as unconstitutional mandatory LWOP sentences for juvenile homicide offenses, Miller significantly alter ed the size and composition o f the class that w ould receive such a
sentence in the future. I n short, the Miller rule

– prohibiting the imposition of an LWOP sentence on a juvenile offender absent a consideration of the juvenile ’s “chronological age and its hallmark features”

– app lies retroactively be cause it “ ‘necessarily carr[ies] a significant risk that a defendant .

. . faces a punishment that t he law cannot impose upon him.’ ” ( Schriro, supra, 54 2 U.S. at p. 352. ) In addition, we find it instructive that the two lines of cases relied upon by the
Court in Miller to support its holding s have been applied retroactively on both direct and
collateral review. (See In re Sparks ( 5th Cir.2011) 657 F.3d 258, 261

- 2 62 [ indicating
Graham , Roper and Atkins were made retroactive on collateral review by the Sup reme Court ] ; see also Tyler v. Cain
, supra, 533 U.S. at p. 669, 121 S.Ct. at p. 2486, 150
L.Ed.2d at pp. 646

– 6 47 (O ’ Connor, J., conc

. ) [ describing the syllogistic relationship
between Teague ’ s exception to nonretroactivity for rules placing certain conduct beyond the power of the state to proscribe and subsequent cases that fit into Teague ’ s exception]; Songer v. Wainwright (1985) 769 F.2d 1488, 1489 [ noting that Lockett v. Ohio (1978)
4 38 U.S. 586, 604

- 605 [ “[T]he Eight h and Fourteenth Amendments require t hat the

sentencer .

. . not be precluded from considering, as a mitigating factor , any aspect of a
defendant ’ s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death” ] has been given retroactive26

effect ]; original italics; Penry v. Lynaugh, supra, 492 U .S. at p. 330 [ “[T]he first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohi biting a certain category of punishment for a class of defendants becau se of their status or offense”]
, abrogated on other grounds by Atkins
, supra, 536 U.S. at p. 321 .) The retroactive application of the authority underlying Miller support s our decision here

. Ultimately, we are persuaded that Wilson is entitled to the benefit of Miller
because of the unfairness that would result fr om the contrary outcome

. We find particularly troubl ing the apparent inequity that would arise if the prospect that an indiv idualized, discretionary judicial determination of whether a juvenile murderer
should be afforded parole eligibility would depend solely upon the happenstance of the precise moment that the defendant ’ s conv iction became final. No court that has rejected

t he retroactive application of Miller has advanced a r ationale to resolve this inequity.
Li kewise
, t he Attorney General in this case does not address the issue

. Scientific insights and the development of the law have not always kept pace with
the reali ty of peoples’ daily lives. To be sure, o ur understanding of the cognitive, social and emotional development of juveniles and the effect of that maturation process on the
conduct of minors has incr eased significantly in the 15 years since W ilson’s judgmen t became final. O ur legal system’s recent recogniti on of the impact of that development on the culpability of juveniles is profound . In our view, justice is served if Wilson obtains
th e benef it of these insights

. Reconciling science and the law with rea lity requires retroactive appli cation of the Miller decision in this case. W e , therefore, conclude that
the rule s announced in Miller should apply to Wilson

. C. The M erits

– Miller Applied Here
Wi lson contends he is entitled to habeas relief unde r Mill er for several reasons. First, he asserts he was sentenced when the California courts applied the presumption of LWOP for any special circumstance murder committed by a juvenile

. Second, Wilson
maintains his sentence must be vacated because the trial cou rt did not adequately27

consider the distinctive mitigating circumstances of his youth and background, as required by Miller

. As to the first asserted ground for relief, a rev iew of the transcript from the sentencing hearing does not support the conclusion the trial court presumptively imposed
the LWOP sen tence. Rather, the record indicates that the sentencing court understood it could choose to impose the lesser punishment of 25 years to life. Nevertheless, we c onclude Wilson is entitled to habeas relief on the second ground

as serted. The record shows the sentencing judge imposed LWOP primarily based on the factors in aggravation , including that the crime involved great violence and bodily harm; that Wilson was armed; that the victim was in a vulnerable p osition; that Wilson was a leader; that Wilson was a participant in a planned robbery; and that the crime included an attempted taking of great monetary value. While the court did mention Wilson’s age,
absent from the court ’ s sentencing discourse is a ful l consideration of the factors, now constitutionally mandated under Miller, related to “the distinctive attributes of youth [that] diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terr ible crimes.” ( Miller v. Alabama , supra, 567 U.S

.

___ 132 S.Ct. at p. 2465.) Because Miller requires sentencing courts to consider “how children are different, and how those differences counsel against irrevocably sentencing th em to a lifetime in prison” ( i d. at p. 2469) and because t he trial court here did not consider the “hallmark features” of youth now mandated under Miller ( i d. at p. 2468), we conclude habeas relief must be granted

. III

. Section 1170, Subdivision ( d )(2) In reaching our conclusion, we also reject the Attorney General ’ s contention that
habeas relief should be denied because Wilson “now has the possibility of parole” under section 1170, subdivision (d)(2).
Section 1170, subdivision (d)(2) enacted in 2012, provides a “recall” procedure for a juvenile LWOP sentence, after a period of 15 years. (§ 1170, subd. (d)(2)(A)(i) [“When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the28

possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition f or recall and resentencing.”].) S ection 1170, subdivision (d)(2), was enacted in response to Roper and Graham . (Assem. Comm. on Public Safety, Analysis of Sen. Bill No. 9 (2011

– 2012 Reg. Sess.) as amended May 27, 2011.) This legislation pre

- dated the decision in Miller , but Roper and Graham , as we have discussed, were the analytical foundation for Miller and established the fundamental principle that the inherent attributes of youth m ust be considered before the court imposes the harshest of criminal penalti es. The Legislature apparently believed this legislation
rectified c onstitutional shortcomings of juvenile LWOP sentenc es under section 190.5, subdivision (b). However, in Gu t i errez the California Supreme Court rejected the Attorney General’s argument that the enactment of section 1170, subdivision (d)(2) resolved the
constitutio nal problems arising from the fact that Cal ifornia courts had interpreted section
190.5 , subdivision (b) as creating a presumption for LWOP sentences for juveniles. The Gutierrez Court opined that: “t he potential for relief under section 1170(d)(2) does not
eliminate the serious constitutional dou bts arising from a presumption in favor of life without parole under section 190.5(b)

. . . .” ( People v. Gutierrez
, supra, 58 Cal.4 th at p. 1385.) We agre e

. In our view, s ection 1170, subdivis ion (d)(2), falls short of what Miller requires
, even where no presumption was applied

. First of all, Miller makes clear the special considerations attendant to youth are to be considered at the time of sentencing

. As the Gutierrez Court observed: “ Miller repeatedly made clear that the sentencing authority

must address this risk of error by considering how children are different and how those differences counsel against a sentence of life without parole ‘ before imposing a particular penalty

. ’ ” ( People v. Gutierrez , supra, 58 Cal.4 th at p. 1387
, quoting Miller v. Alabama, supra, 567 U.S. at p.

__ , 132 S.Ct. at p. 2471, italics added; see id. at pp.

__ ,

__ , 132 S.Ct. at pp. 2469, 2475.)29

In addition, s ection 1170, subdivision (d)(2) ’ s petitioning process

– at the earliest 15 years after sentencing

– is inconsistent with the Supreme Court ’ s analysis in Miller

. Allowing the deferral of constitutionally mandated sentencing factors for a minimum of a decade and a half after conviction rather than requiring consideration of those facts before incarceration, effectively makes Miller ’s mandate irrelevant to our sent encing

courts

. Nothing in Miller indicates that t he Supreme Court envisioned any such deferral of constitutionally required sentencing co nsiderations ; that deferral stands in opposition

to the Court’s observati on that such consideration will result in the harshest of sentences being “uncommon.”
Moreover , there is no guarantee that a petition seeking recall and resentencing under section 1170, subdivision (d)(2), will be heard on the merits. Rather, a hearing i s conditioned on the defendant “describing his or her remorse and work towards rehabilitation” and stating that one of the following four circumstances is true: (1) he or she “was convicted pursuant to felony murder or aiding and abetting murder provisions ”; (2) he or she does not have other prior juvenile felony adjudications “for assault or other felony crimes with a significant potential for personal harm to victims”; (3) he or she “committed the offense with at least one adult codefendant”; or (4) he or she “has performed acts that tend to indicate rehabilitation or potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his o r her classification level and facility, using self

- study for self

- improvement, or showing evidence of remorse.” (§ 1170, subd. (d)(2)(B)(i)

– (iv).) Nothing in Miller allows the conclusion that a juvenile must make a threshold showing of some sort before a sentencing court is constitutionally required to consider the implications of his or her youth. Indeed, as the
court in Gutierrez reasoned: “ it is doubtful that the potential to recall a life without parole
sentence based on a future demonstration of reh abilitation can make such a sentence any

more valid when it was imposed. If anything, a decision to recall the sentence pursuant to section 1170(d)(2) is a recognition that the initial judgment of incorrigibility30

underlying the imposition of life without parole turned out to be erroneous. ” ( People v. Gutierrez, supra, 58 Cal.4 th at p p. 1386

- 1387.)
Furthermore , even when a section 1170, subdivision (d) petition is heard on the merits, the enumerated factors the court may consider in deciding whether to resentence the defendant are under

- inclusive; they do not embrace the totality of the considerations the Supreme Court discussed in Miller
, Roper and Graham. In addition to the factors relating to rehabilit ation efforts , a court ruling on the merits of a recall petition may consider: whether, prior to the crime, the defendant “had insufficient adult support or supervision and had suffered from psychological or physical trauma, or significant stress” ( § 1170, subd. (d)(2)(F)(iv)); whether the defendant “su ffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, but influenced the defendant ’ s involvement in the offense” ( § 1170, subd. (d)(2)(v)); whether the defendant “has maintai ned family ties or connections with others through letter writing, calls, or visits, or has eliminated contact with ind ividuals outside of prison who are currently involved in crime” ( § 1170, subd. (d)(2)(F)(vii)); and whether the defendant “has had no dis ciplinary actions for violent activities in the last five years in which the defendant was determined to be the aggressor” ( § 1170, subd. (d)(2)(F)(viii)).
These factors describ e organic, foundational elements of criminal conduct : lack of parental supervi sion or positive adult role models, and mental or physical impairment.
Absent from the list of factors is the fundamental fact of youth, and its attendant attributes, on which the Supreme Court has focused

– “ Roper and Graham establish that
children are c onstitutionally different from adul ts for purposes of sentencing.” ( Miller v. Alabama , supra, 567 U.S. ___, 132 S.Ct. at p. 2464.) Youth, the C ourt has said, “‘is mor e than a chronological fact

. ’

. . . It is a time of immaturity, irresponsibility, ‘impe t uousness[,] and recklessness

. ’ ” ( Id. at p p. 2467, 2468 ; c itations omitted. ) As a result, “a sentencer misses too much if he treats eve ry child as an adult.” ( Id. at p. 2468.) Finally, although section 1170, subdivision (d)(2)(I), provides that a court hearing a recall petition “may” also “consider any other criteria that the court deems relevant to its31

decision,” this proviso neither identifies, nor requires the court to consider, the inherent “mitigating qualities of youth” which the Supreme Court has instructed must be
consi dered before imposing an LWOP sentence on a juvenile

. ( Miller v. Alabama
, supra, 567 U.S.

__ , 132 S.Ct. at p. 2467.) In view of the foregoing, we conclude section 1170, subdivision, (d)(2) does not
eliminate the constitutional co ncerns with Wilson’s sentence, and it does not comport with the holding in Miller . Therefore it does not provide Wilson with an adequate remedy.
V I

. Other Claims In Wilson’s habeas petition he also argued that (1) his LWOP sentence violated
the Califo rnia Constitution’s prohibition o n cruel and unusual punishment; (2) the trial court in sentencing him improperly considered an aggravating fact (i.e., evidence that Wilson “pistol

- whipped the victim”); and (3) “the principles of Graham and Miller categor ically bar LWOP for a juvenile offender such as Wilson, who neither killed nor specifically intended to kill.” 18
Because we find Wilson is entitled to be resentenced under the dictates of Miller
, we do not reach these additional argument s about his origi nal sentence

. If on remand,
Wilson is resen tenced to LWOP , he is of course free to assert a new challenge based on the circumstances of, and facts and evidence presented during
, his new sentencing proceeding

.

18 Whether the principles of Miller and Graham impose a categorical ban to the imposition of LWOP sentences for juveniles who did not personally kill or intend to kill was raised in Miller in the concurring opinion of Justice Breyer, joined by Justi ce Sotomayor. ( Miller v. Alabama, supra, 567 U.S. ___, ___, 132 S.Ct. at pp. 2475

- 2477.) In our view, Justice Breyer’s concurrence raises important questions about the application of Eight Amendment to situations such as the one before us. We observe, h owever, that no court has followed or adopted Justice Breyer’s analysis, and we need not decide the issue in light of our conclusion here.32 DISPOSITION

The petition for habeas corpus is granted. Petitioner ’ s LWOP sentence is vacated and the matter is remanded for resentencing.

WOODS, Acting P. J.

We concur:

ZELON, J. SEGAL, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the C alifornia Constitution.