Filed 9/16/14 In re Hansen CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re BRAE HANSEN

on

Habeas Corpus.

 D063983

 (San Diego County

 Super. Ct. No. SCD207862)

THE COURT:

Petition for writ of habeas corpus. Relief granted.

Brae Hansen in pro. per., for Petitioner.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

and Charles C. Ragland, Deputy Attorney General, for Respondent.

FACTS

In 2009, a jury convicted petitioner Brae Hansen of first degree murder and 

vicarious use of a firearm. The jury also found true the special circumstance that the 

murder was committed by lying in wait. The court sentenced Hansen to life without the 

possibility of parole. Hansen was 17 at the time she committed the crime.
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DISCUSSION

In her petition for writ of habeas corpus, Hansen contends that Penal Code

section 190.5 (undesignated statutory references are to the Penal Code), which governs 

sentencing of juveniles found guilty of murder in which certain special circumstances are 

found true, violates the Constitution's Eighth Amendment's prohibition on cruel and 

unusual punishment. Hansen's petition is premised on a recent Supreme Court decision, 

Miller v. Alabama (2012) __ U.S. __, 132 S.Ct. 2455 (Miller), which held that a state 

statute imposing a mandatory sentence of life imprisonment without parole for those 

under the age of 18 who commit murder violates the Eighth Amendment and that such 

sentences may be imposed only after the court considers the "distinctive attributes of 

youth" and how those attributes "diminish the penological justifications for imposing the 

harshest sentences on juvenile offenders." (Id. at p. 2465.)

At the time Hansen filed her writ petition, the California Supreme Court was 

reviewing the same question raised by Hansen: whether existing authority interpreting 

section 190.5, subdivision (b), as creating a presumption in favor of a sentence of life 

without parole violates the Eighth Amendment to the United States Constitution under 

the principles announced in Miller. (People v. Gutierrez (2014) 58 Cal.4th 1354 

(Gutierrez).)
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We stayed further proceedings involving Hansen's petition pending the final 

outcome of Gutierrez. In its decision, the Supreme Court held that Miller precludes an 

interpretation of section 190.5 as creating a presumption of life without parole and that 

previous sentencing determinations premised on such a presumption require resentencing. 

(Gutierrez, supra, 58 Cal.4th at pp. 1390-1391.)

After the Supreme Court filed its decision, we requested an informal response 

from the Attorney General regarding the effect of Gutierrez on Hansen's petition. In that 

response, the Attorney General concedes that relief should be granted and the case 

remanded for resentencing. 

As the Attorney General recognizes, relief is warranted. In its sentencing 

memorandum, the prosecution informed the court that under governing authority, section 

190.5 creates a presumption in favor of a sentence of life without the possibility of 

parole. When the court sentenced Hansen, it applied this presumption in favor of a 

sentence of life without parole and found no basis for reducing the sentence. As 

discussed in Gutierrez, although we do not fault the trial court for dutifully applying the 

law as it stood at the time, such a presumption raises serious constitutional concerns that 

require a remand for resentencing.
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DISPOSITION

We may grant relief without issuing an order to show cause or writ of habeas 

corpus when the petitioner's custodian concedes that the requested relief must be granted. 

(People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.) Given the Attorney General's 

concession, we conclude no useful purpose could reasonably be served by issuance of an 

order to show cause and/or plenary disposition of the matter. The conviction is vacated. 

The matter is remanded to the trial court for resentencing not inconsistent with Miller and 

Gutierrez.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.