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. KA028967)

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 Attorneys 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. Alabama (2012) 567 

U.S. ___, 132 S.Ct. 2455 (Miller), the life imprisonment without parole (LWOP)

sentence he received in 1996 for a crime he committed when he was 17 years old violates 

the Eighth Amendment prohibition on cruel and unusual punishment. Wilson further 

argues he is entitled to be resentenced 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 habeas relief, and therefore 

grant the petition for writ of habeas corpus, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Crimes

1

On August 22, 1995, three masked males, later identified as Petitioner Wilson, 

Bobby White and Jamon Carr, approached the Chino Valley Bank in Pomona. Wilson, 

White and Carr were all 17 years old at the time. They were armed with handguns. As 

they walked towards the bank, one of the young men fired at the security 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 inside the bank, one of the young men told the customers to “hit the deck.” 

The young men then jumped over the teller counter; one of them grabbed Theresa 

Hernandez, a bank employee. They ordered 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 keys, and as 

she bent down to retrieve 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 crimes and shot Hernandez during the robbery. White said that he shot Hernandez 

because he thought that Hernandez was activating an alarm. Petitioner Wilson admitted 

to his fiancée 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 Background4 

Wilson was born on September 7, 1977. He lived with his parents and two 

younger siblings in Inglewood, and then later in south central Los Angeles. 

According to Wilson and his mother, his family 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 Christian School, where his

mother worked. 

When Wilson was a pre-teen he began to feel frustrated 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 teased 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 the day of 

the robbery, Brown and Smith drove Wilson and his codefendants to the bank. 

According to Wilson, Brown told them that because White, Wilson and Carr were minors 

they would not receive harsh sentences if they were caught. Brown and Smith instructed 

Wilson 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 during 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 parents decided to

send him to a public high school. He initially attended El Camino Real Charter High 

School in the San Fernando Valley. By his early teens, Wilson began using marijuana

and alcohol on a regular basis. Wilson was truant from school. He associated with older 

males in his neighborhood who had made money by selling drugs and committing crimes. 

His parents would lock him out of the house for violating the house rules. 

In ninth grade Wilson was expelled from El Camino Real Charter High School for 

fighting. Wilson’s mother enrolled him at Washington High School in Los Angeles. She 

later discovered that Wilson was not attending classes at Washington 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 relatives for a number of months. After one of Wilson’s friends was 

involved in a shooting, his mother sent him to Arizona to stay with another maternal aunt. 

Wilson soon found himself in trouble with his aunt for skipping school so he returned to 

Los Angeles. Wilson emulated the lifestyle of his friends who sold and abused drugs, 

consumed alcohol and did not attend school. At age 15, he joined the East Coast Crips 

gang and became involved in gang activity. 

During this period, 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 with 

Ms. Kelly. He helped her pay the bills and buy groceries and school supplies for her 

children.

Wilson met two of his codefendants, Carr and White, through one of Ms. Kelly’s 

friends. Wilson and his codefendants began spending time together and were involved in 

some minor robberies. Brown, who was 22 years old at the time, approached Carr, 

White, and Wilson, and proposed that they rob a bank 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 guns 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 circumstance); attempted robbery with an allegation that White 

personally used a firearm; and attempted murder. Wilson 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 attempted 

second degree robbery, and attempted murder. 

On April 30, 1996, Wilson and his codefendants appeared for a sentencing

hearing. During the proceeding, family members and friends of the victim testified and 

asked the court to impose an LWOP sentence on the defendants. No evidence or 

witnesses were presented 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 sentencing. On this date, Wilson 

attempted to substitute out his attorney for another attorney. The court denied the 

motion. No individuals spoke on Wilson’s behalf during that proceeding. The matter 

was continued to September 6, 1996, to allow Wilson to participate 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 mitigation statement, and asked the 

court to exercise its discretion to sentence Wilson 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) Wilson 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) Wilson voluntarily acknowledged his wrongdoing at an early stage of 

the criminal process. 

At sentencing, the court considered evidence submitted by the prosecution that:

the crime involved 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 possibility 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 for 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 totality 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 parole.” 

On July 20, 1998, this court affirmed the judgment on direct appeal (case No. 

B104556).

On May 6, 2013, Wilson filed a petition for writ of habeas corpus in the Los 

Angeles County Superior Court (case No. KA028967), challenging the constitutionality 

of his LWOP sentence in light of the United States Supreme Court’s opinion in Miller. 

Wilson argued that Miller requires reexamination of the constitutionality of his sentence, 

including the validity of the statutory scheme the sentencing court used to select the

punishment and the adequacy of the sentencing court’s consideration of the distinctive 
7

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

the superior court defer further briefing pending the outcome of two cases – People v. 

Moffett (S206771) 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 California Supreme Court issued its rulings in 

People v. Moffett and People v. Gutierrez.

In the fall of 2013, however, the superior court denied Wilson’s petition. The 

order did not address any of the constitutional issues raised by Wilson in his petition. 

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 

constitutional claims moot. Wilson filed a motion for reconsideration. Wilson argued 

that Senate Bill No. 260 provided no remedy for him because 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 pursuant 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.4th 1354, 1360 [“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 elsewhere here, the California 

Supreme Court filed its opinion in Moffett and Gutierrez in May 2014. (Ibid.)

7 Under section 3051 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 prescribed 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 to prison for specified crimes. It 

provides for a youth 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 reconsideration. 

DISCUSSION 

Wilson argues that his LWOP sentence must be vacated and that he is entitled to 

resentencing. He asserts that his sentence violates the Eighth Amendment’s prohibition 

on cruel and unusual punishment in light of the Supreme Court’s recent opinion in Miller, 

where the Supreme Court held that a mandatory LWOP sentence for a juvenile convicted 

of homicide 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 juveniles with LWOP sentences. In addition, the Attorney 

General raises several threshold arguments unrelated to the merits. Specifically, the 

Attorney General contends that Wilson’s habeas petition should be summarily denied 

because it was filed too 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

The Attorney General asserts that Wilson’s petition should be rejected because it 

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 

 

subd. (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 growth 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 of 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 petition because it excludes individuals such as Wilson who are serving 

LWOP sentences. 
9

appeal, Wilson asserted an unsuccessful challenge to his sentence as cruel and unusual 

punishment in violation of the Eighth Amendment.

In general a petition for a writ of habeas corpus must be filed “as promptly as the

circumstances allow.” (In re Clark (1993) 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 any significant delay in seeking collateral relief must be fully 

justified. (In re Nunez (2009) 173 Cal.App.4th 709, 723.) Delay is measured from the 

time a petitioner knew, or reasonably should have known, the information in support of 

the claim and the legal basis for the claim. (In re Huddleston, supra, 71 Cal.2d at 

p.1034.) Indeed, “[a] defendant 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 regarding the constitutionality 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 that were developed after Wilson’s original sentencing. 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 expand the list of those considerations and recalibrate the weight they should be given 

by a sentencing court.

We also conclude that Wilson’s 10-month delay in filing his habeas petition after 

Miller became final does not justify the rejection of his claims. (See In re Huddleston, 

supra, 71 Cal.2d at p. 1034 [concluding a lapse 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 been in prison and the 

dormancy of his case since his conviction was affirmed in 1998, the fact that it took him a 
10

number of months to find appellate counsel and to prepare and file a petition is not 

unreasonable. 

II. The Constitutionality of Juvenile LWOP Sentences 

In his petition, Wilson argues that his LWOP sentence violates the Eighth 

Amendment’s prohibition on cruel and unusual punishment in view of recent Eighth 

Amendment jurisprudence. 

A. Eighth 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 subjected to excessive sanctions “flows from the basic 

‘precept 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 historical conceptions to ‘“the evolving standards of decency that mark the 

progress 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 the basic mores of society change.’” (Kennedy v. Louisiana

(2008) 554 U.S. 407, 419.) 

In the context of juvenile offenders, the Supreme Court in Miller held that the 

Eighth Amendment forbids sentences of non-discretionary, mandatory life imprisonment 

without the possibility of parole for individuals who were 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 characteristics 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 divergence 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 committed a non-homicide offense]; Atkins v. Virginia (2002) 536 U.S. 304 

[holding the execution of intellectually disabled 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 unconstitutional the death penalty for non-homicide 

offenses].) Evaluating these cases, the Supreme Court concluded that “children are 

different from adults for the purposes of sentencing” in a number of ways. “First, 

children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ 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 limited ‘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 actions 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. Oct. 

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 the 

Arkansas Supreme Court affirmed the dismissal of his state habeas petition by the 

Arkansas Circuit 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 prospects for reform,” and are thus 

“‘less deserving of the most severe punishments.’ [Citation.]” (Id. at pp. 2464-2465.)

9

Miller then looked to a second line of cases requiring individualized decisionmaking in capital punishment cases.10 The Miller Court then applied this jurisprudence 

to the 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.) Because the Eighth 

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 imprisonment 

without parole. (Ibid.)

 

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

only on common sense – on what ‘any parent knows’ – but on science and social science 

as well. [Citation.] In Roper, we cited studies showing that ‘“[o]nly a relatively small 

proportion of adolescents”’ who engage in illegal activity ‘“develop entrenched patterns 

of problem behavior.”’ [Citation.] And in Graham, we noted that ‘developments in 

psychology and brain science continue to show fundamental differences between juvenile 

and adult minds’ – for example, in ‘parts of the brain involved in behavior control.’ 

[Citation.] We reasoned that those findings – of 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 neurological development occurs, his 

‘“deficiencies will be reformed.”’ [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 related to higher-order executive 

functions such as impulse control, planning 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 individual 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 of 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 charged 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 juvenile’s] own attorneys”; and (5) “the 

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 

accompanies 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 cautioned: “[G]iven all we have said in Roper, Graham, and 

this decision about children’s diminished culpability and heightened capacity for change, 

 

11 The Miller 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. 

at p. 2469.)
14

we think appropriate occasions for sentencing juveniles to this harshest possible penalty 

will be uncommon. That is especially so because of the great difficulty we noted in 

Roper and Graham of distinguishing at this early age between ‘the juvenile offender 

whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender 

whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a 

sentencer’s ability to make that judgment in homicide cases, we require it to take into 

account how children are different, and how those differences counsel against irrevocably 

sentencing them to a lifetime in prison.” (Miller 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 application of Miller’s analysis to California’s sentencing scheme for juvenile 

offenders. (People v. Gutierrez, supra, 58 Cal.4th 1354.) Specifically, the Gutierrez

Court considered the constitutionality of section 190.5,12 which had long been interpreted 

by the California appellate courts as creating a presumption in favor of LWOP as the 

appropriate penalty for juveniles convicted of homicide offenses. (People v. Gutierrez, 

supra, 58 Cal.4th at p. 1360.) Gutierrez expressly disapproved the line of cases that had 

interpreted section 190.5 as establishing a presumption in favor of LWOP sentences for 

juvenile offenders holding “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-yearold juvenile convicted of special circumstance murder, with no presumption in favor of 

life without parole.” (Id. at p. 1387.)

In addition, Guiterrez held that a sentencing court, in exercising its discretion 

under section 190.5, must consider all relevant evidence, including the “Miller factors,” 

bearing on the “distinctive attributes 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 the court, 25 years 

to life.” (§ 190.5.)
15

penological justifications for imposing the harshest sentences on juvenile offenders.”

(People v. Gutierrez, 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 became final 15 years before Miller was decided, Wilson is entitled 

to be resentenced only if the principles announced in Miller apply 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. The 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 similarly situated.” (Id. at 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 criminal cases on collateral review.” (Id. at p. 303.) The 

Court reasoned that collateral review is not designed as a substitute for direct review and 

that the government 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 retroactively 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 Miller 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. (People 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.) Thus “[u]nless they fall within an exception to the general rule, new 

constitutional rules of criminal procedure will not be applicable to those cases which 

have become final before the new rules are announced.” (Id. at p. 310.) 

In Schriro v. Summerlin (2004) 542 U.S. 348, the Supreme Court revisited

Teague’s retroactivity analysis. The Schriro Court defined the key distinction in the 

retroactivity analysis as whether the new rule 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 conduct 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 the 

second category are rules prohibiting a certain category of punishment for a class of 

defendants because of their status or offense. Such rules apply retroactively because they 

carry a “‘significant risk’” that a defendant stands convicted of “‘an act that the law does 

not make criminal’” or “faces a punishment that the law cannot impose upon him.” (Id.

at p. 352.) The Court 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 substantive rules not 

subject to the bar.” (Id. at p. 352, f n. 4.) 

The Court further explained that new “rules of procedure” generally do not apply 

retroactively because they do not produce a class of persons convicted on conduct that the 

law does not make criminal, but merely raise the possibility that someone convicted with 

use of the invalidated procedure might have been acquitted otherwise. The Court found 

that because of the speculative connection to innocence, 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 extremely 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 announced in Schriro, courts 

have included within the substantive category categorical bans, such as rules 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 

treated the rule forbidding life imprisonment for a juvenile convicted of a nonhomicide 

offense as a substantive rule (see Graham v. Florida, supra, 560 U.S. at pp. 61-62), as it 

has a decision that modifies the elements of an offense because new 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 

decisionmaking authority in this fashion are prototypical procedural rules” but stated:

“This Court’s holding that, because [a state] has made a certain fact essential to the death 

penalty, that fact must be found by a jury, is not the same as this Court’s making 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] and 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; the latter would 

be substantive.” (Id. at p. 354.)

In state courts, the Supreme Court has held that the Teague/Schriro retroactivity 

analysis applied in federal habeas actions is not binding when deciding issues of 

retroactivity 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 particular rule under consideration, so long as [it] give[s] federal 

constitutional rights at least as broad a scope as the United States Supreme Court 

requires.’” (Ibid.) Thus, states can give broader effect to new rules than is required by 

the Teague/Schriro 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 date petitioner’s judgment of conviction became final; (2)

“‘[s]urve[y] the legal 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 existing 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 the Attorney General’s argument 

that this court should not apply Gutierrez retroactively in this case.
19

Here the parties agree that Miller announced a new rule, satisfying the second 

prong. A “new rule” is defined as a rule that was not dictated by precedent existing at the 

time the defendant’s conviction became final. (Whorton v. Bockting (2007) 549 U.S. 

406, 416.) Indeed, the rule announced in Miller was not dictated by precedent existing at 

the time the judgment in Wilson’s case became final in 1998. Rather, Miller relied 

heavily on Graham, decided in 2010 and Roper, decided in 2005. As a result, we look to 

the third step: is Miller either a substantive or procedural rule?

16 No published opinion 

of a court in California has resolved the question of retroactivity of Miller.

17

a. Retroactive Application of Miller in Other Jurisdictions

Other jurisdictions have considered the retroactive application of Miller, with 

mixed results. The primary issue in these cases is whether the rule announced in Miller is 

substantive or procedural.

Courts that have determined the rules announced in Miller are procedural 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]; Commonwealth v. Cunningham (2013) 81 A.3d 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 “watershed” 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.4th __, 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) which 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 parole?” 
20

2808805 [slip opinion]; In re Morgan (11th Cir. 2013) 713 F.3d 1365, 1367; Craig v. 

Cain (5th Cir. 2013) No. 12-30035, 2013 WL 69128, 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 Teague exception does not apply.”], citations 

omitted; Thompson v. Roy (D.Minn. 2014) No. 13-cv-1524, 2014 WL 1234498; 

Chambers v. State (Minn. 2013) 831 N.W.2d 311, 328-329; 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 follow 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 offenders 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 substantive. (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 

deleted]; 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 diminished capacity or culpability.”]; Toye v. Florida (Fla.Dist.Ct.App. 2014) 

133 So.3d 540 [applying Florida’s own retroactivity analysis, and not the Teague

analysis]; Diatchenko 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 they commit the crime of 

murder.”]; People v. Davis (2014) 6 N.E.3d 709, 722 [“Miller mandates a sentencing 
21

range broader than that provided by statute for minors convicted of first degree murder 

who could otherwise receive only natural life imprisonment.”], pet. for cert denied, 

Illinois v. Davis (2014) ___ U.S. ___, (Dec. 1, 2014 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 applied 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.”].)

The Supreme Court of Iowa in State v. Ragland (2013) 836 N.W.2d 107, 115-116 

held: “From a broad perspective, Miller 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 mandatory 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 punishment that the law cannot impose upon him.’” In reaching its conclusion, 

the Ragland Court also cited an article written by Professor Erwin Chemerinsky in which 

he asserted: “There is a strong argument that Miller should apply retroactively: It says 

that it 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 holding should 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 News Now (Aug. 8, 2012).)
22

While the analysis used by these courts varies, most conclude that Miller altered 

the substantive law by broadening the range of punishment for juveniles convicted of 

homicide. Before Miller, under those state’s laws, life without parole was mandatory and 

“automatic” for juveniles who committed homicide. (See, e.g., Ex parte Maxwell, supra,

424 S.W.3d 66, 70-75.) After Miller, life without parole remains possible in limited 

circumstances, but new outcomes and sentences are also available. (See, e.g., ibid.; Jones 

v. Mississippi, 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 companion 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. Instead, it simply reversed both of the lower court 

judgments and remanded the causes “for further proceedings not inconsistent 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 sentencing 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 to cases on collateral review.” (State v. Ragland, 

supra, 836 N.W.2d 107 at p. 116.) Ragland 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 collateral review. The court in Nebraska v. Mantich, 

supra, 842 N.W.2d at page 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 inclined 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 a 
23

defendant before it on collateral review.” (See also Diatchenko 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”]; People v. Morfin (2012) 981 N.E.2d 1010, 1022–1023 [“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 in Teague.

Other jurisdictions, however, conclude the Court’s treatment of Jackson is not a 

relevant factor in the retroactivity analysis. The 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. Cunningham, 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 our 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 held that the sentencing court

must consider specific, individualized factors before handing down an LWOP sentence 

for a juvenile. Effectively, Miller requires the court to consider new specific facts before 
24

imposing a life imprisonment sentence with no possibility of parole on a juvenile. Thus,

the Miller holding does not only address the aspect of “how” the determination 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 reason 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, 836 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 defendants 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, 489 U.S. at p. 300.) As a result, we are disinclined to refuse to apply the rules

announced in Miller to a petitioner before us on collateral review when the Court has 

already applied the rule to a petitioner 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 result would be “‘terribly unfair.’” (State v. Ragland, supra, 836 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 rules: the Court made a certain fact (consideration 

of mitigating evidence) essential to imposition of a sentence of life imprisonment without 

parole. It imposed a new requirement as to what a sentencer must consider in order to 

constitutionally impose LWOP. Miller also recognized that when mitigating evidence is 

considered, a sentence of life imprisonment without parole for a juvenile should be rare. 

This is consistent with the underlying logic of Miller, based on Graham, that “‘[i]t is 

difficult even for expert psychologists to differentiate between the juvenile offender 

whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender 
25

whose crime reflects 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. The requirement that the sentencing courts acknowledge and 

consider the differences between adults and juveniles 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 effectively recalibrated the balance 

of factors the courts apply during sentencing. Furthermore, in rejecting as 

unconstitutional mandatory LWOP sentences for juvenile homicide offenses, Miller

significantly altered the size and composition of the class that would receive such a 

sentence in the future. In 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” – applies retroactively because it “‘necessarily carr[ies] a 

significant risk that a defendant . . . faces a punishment that the law cannot impose upon 

him.’” (Schriro, supra, 542 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 holdings have been applied retroactively on both direct and 

collateral review. (See In re Sparks (5th Cir.2011) 657 F.3d 258, 261-262 [indicating 

Graham, Roper and Atkins were made retroactive on collateral review by the Supreme 

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. 646–647 (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) 

438 U.S. 586, 604-605 [“[T]he Eighth and Fourteenth Amendments require that 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 retroactive 
26

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 prohibiting a certain 

category of punishment for a class of defendants because 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 supports our decision here.

Ultimately, we are persuaded that Wilson is entitled to the benefit of Miller

because of the unfairness that would result from the contrary outcome. We find 

particularly troubling the apparent inequity that would arise if the prospect that an 

individualized, 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 conviction became final. No court that has rejected 

the retroactive application of Miller has advanced a rationale to resolve this inequity.

Likewise, the 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 reality of peoples’ daily lives. To be sure, our understanding of the cognitive, social 

and emotional development of juveniles and the effect of that maturation process on the 

conduct of minors has increased significantly in the 15 years since Wilson’s judgment 

became final. Our legal system’s recent recognition of the impact of that development on 

the culpability of juveniles is profound. In our view, justice is served if Wilson obtains 

the benefit of these insights. Reconciling science and the law with reality requires 

retroactive application of the Miller decision in this case. We, therefore, conclude that 

the rules announced in Miller should apply to Wilson.

C. The Merits – Miller Applied Here

Wilson contends he is entitled to habeas relief under Miller 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 court did not adequately 
27

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

required by Miller.

As to the first asserted ground for relief, a review of the transcript from the 

sentencing hearing does not support the conclusion the trial court presumptively imposed 

the LWOP sentence. Rather, the record indicates that the sentencing court understood it 

could choose to impose the lesser punishment of 25 years to life.

Nevertheless, we conclude Wilson is entitled to habeas relief on the second ground 

asserted. 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 position; 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 full 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 terrible 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 them to a lifetime in prison” (id. at p. 2469) and because the trial court here 

did not consider the “hallmark features” of youth now mandated under Miller (id. 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 the
28

possibility of parole has served at least 15 years of that sentence, the defendant may 

submit to the sentencing court a petition for recall and resentencing.”].) Section 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 must be considered before the court imposes 

the harshest of criminal penalties. The Legislature apparently believed this legislation 

rectified constitutional shortcomings of juvenile LWOP sentences under section 190.5, 

subdivision (b).

However, in Gutierrez the California Supreme Court rejected the Attorney 

General’s argument that the enactment of section 1170, subdivision (d)(2) resolved the 

constitutional problems arising from the fact that California courts had interpreted section 

190.5, subdivision (b) as creating a presumption for LWOP sentences for juveniles. The 

Gutierrez Court opined that: “the potential for relief under section 1170(d)(2) does not 

eliminate the serious constitutional doubts arising from a presumption in favor of life 

without parole under section 190.5(b) . . . .” (People v. Gutierrez, supra, 58 Cal.4th at p. 

1385.) We agree.

In our view, section 1170, subdivision (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.4th 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, section 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 sentencing 

courts. Nothing in Miller indicates that the Supreme Court envisioned any such deferral 

of constitutionally required sentencing considerations; that deferral stands in opposition 

to the Court’s observation 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 is 

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 or 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 rehabilitation 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 incorrigibility 
30

underlying the imposition of life without parole turned out to be erroneous.” (People v. 

Gutierrez, supra, 58 Cal.4th at pp. 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 rehabilitation 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 “suffers 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 maintained family ties or connections with others 

through letter writing, calls, or visits, or has eliminated contact with individuals outside 

of prison who are currently involved in crime” (§ 1170, subd. (d)(2)(F)(vii)); and whether 

the defendant “has had no disciplinary 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 describe organic, foundational elements of criminal conduct: lack of 

parental supervision 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 constitutionally different from adults for purposes of sentencing.” (Miller v. 

Alabama, supra, 567 U.S. ___,132 S.Ct. at p. 2464.) Youth, the Court has said, “‘is more 

than a chronological fact.’ . . . It is a time of immaturity, irresponsibility, 

‘impetuousness[,] and recklessness.’” (Id. at pp. 2467, 2468; citations omitted.) As a 

result, “a sentencer misses too much if he treats every 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 its 
31

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 

considered 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 concerns with Wilson’s sentence, and it does not comport 

with the holding in Miller. Therefore it does not provide Wilson with an adequate 

remedy. 

VI. Other Claims

In Wilson’s habeas petition he also argued that (1) his LWOP sentence violated 

the California Constitution’s prohibition on 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 

categorically 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 arguments about his original sentence. If on remand, 

Wilson is resentenced 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 Justice 

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, however, 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 California Constitution.