Filed 10/25/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO SALVADOR PADILLA,

Defendant and Appellant. B265 6 14 (Los Angeles County Super. Ct. No. TA051184)

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Cheroske, Judge. Reversed and
remanded with directions. Jonathan E. Demson, under appointment by the Court of Appeal, for De fendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb and Paul M. Roadarmel, Jr., Deputy Attorneys General, for
Plaintiff and R espondent.2 In 1999, appellant Mario Salvador Padilla was convicted of a murder he committed when sixteen years old, and was sentenced to a term of life without the possibility of parole (LWOP). In the underlying proceeding for writ of habeas corpus

, app ellant sought resentencing in light of
Miller v. Alabama (2012) 567 U.S. ___, ___ [132 S.Ct. 2455, 2460, 2469] ( Miller ) . After conducting a resentencing hearing, the trial court re imposed the LWOP term. Following that ruling, the United States Supreme Co urt decided Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718] ( Montgomery )

, which held that Miller announced
a substantive rule of law that had retro active application in state collateral review proceedings. In so holding, the
United States Supr eme Court clarified and elaborated on its earlier holding in Miller. Because the trial court exercised its discretion in resentencing appellant without the guidance provided by Montgomery , we reverse its ruling and remand
for a new resentencing hearing.

RELEVANT FACTUAL AND PROCEDURAL

BACKGROUND
In July 199 9
, a jury convicted appellant of the murder
of his mother Gina Castillo ( Pen. Code § 187, subd. (a) ) and conspiracy to murder his stepfather Pedro Castillo ( Pen. Code, § 182, subd. (a)(1))

. 1 The jur y found true special

circumstance allegations that the murder was committed in

1 All further statutory citations are to the Penal Code.3

the course of a robbery and while lying in wait (§ 190.2, subds. (15), (17)(A))

. T he trial court imposed an LWOP term

on th e murder conviction (§ 190. 5 , subd. ( b )) , and imposed
and stayed a term of 25 years to life on the conviction for conspiracy to commit murder (§ 654). In an unpublished opinion ( People v. Padilla (June 1, 2001, B135651), this court determined there was insufficient evidence to support the lying

- in

- wait spec ial

- circumstance finding, but otherwise
affirmed appellant’s judgment of conviction. In 2012, the United States Supreme Court decided
Miller , which held that the Eighth Amendment of the United States Constitution “forbids a sentencing scheme that
mandat es life in prison without possibility of parole for juvenile offenders

, ” and set forth factors controlling the determination whether that penalty may be imposed on such a juvenile. ( Miller

, supra , 132 S.Ct. at pp. 246 9

- 2470.)
In August 2014, appellant f iled a petition for writ of habeas corpus in the superior court, seeking resentencing
under Miller

. On July 15, 2015, a fter respondent admitted
that appellant was entitled to a resentencing hearing, the

court conducted that hearing and resentenced appella nt to an LWOP term. Appellant noticed th is appeal from that ruling

. In January 2016, while th e appeal was pending, the United States Supreme Court issued its decision in Montgomery , which concluded that Miller announced a
substantive rule of law that app lies retroactive ly on state collateral review to juvenile offenders whose convictions and
sentences were final when Miller was decided

. ( Montgomery

,4

supra , 13 6 S.Ct. at pp. 727, 729, 736). 2

DISCUSSION Appellant maintains that the trial court erred in

re sentencing him to an LWOP term, contending (1) that
Miller and Montgomery preclude the imposition of such a sentence on juvenile offenders convicted of a homicide

, and alternatively, (2) that the court exercised its sentencing
discretion without the benefi t of Montgomery . As explained below, we conclude that although neither Miller nor Montgomery expressly forbid s LWOP terms for juvenile
offenders convicted of a homicide , the court’s re sentencing decision does not reflect the guidance provided by Montgomer

y

.

A. Governing Principles
We are governed by the supremacy clause (U.S. Const., art. VI, cl. 2) , pursuant to which we follow decisions of the United States Supreme Court on matters of constitutional

2 We note that in August 2013, appellant also filed a petition for recall an d resentencing under section 1170(d)(2), which authorizes the resentencing of certain defendants sentenced as juveniles to an LWOP term. The trial court (a different judge) found that appellant’s offense involved torture, and thus ruled that he was inelig ible for resentencing under section 1170(d)(2). This court reversed that order and remanded the matter for further proceedings ( People v. Padilla (Nov. 20, 2015, B257408) [nonpub. opn.]).5

interpretation ( C

alderon v. City of Los Angeles (19 71) 4 Cal.3d 251, 258 ( Calderon ) ), including the proscription against cruel and unusual punishment in the Eighth Amendment (

People v. Mantanez (2002) 98 Cal.App.4th 354, 358).

1. Key U

nited States Supreme Court Decisions
Prior to Miller
Mille r and Montgomery rely on two prior high court
decisions addressing th e application of th e proscription against cruel and unusual punishment to juvenile offenders

, namely, Roper v. Simmons (2005) 543 U.S. 551 ( Roper ) and
Graham v. Florida ( 2010 ) 560 U.S. 48 ( Graham ). In Roper

, the court held that the Eighth Amendment bars the imposition of the death penalty on juvenile offenders , relying

on the existence of a consensus against th at practice , as well as certain differences between juveniles and adults. ( Rop er , supra , 543 U.S. at pp. 564

- 570, 578

- 579 .) Th e court observed that juveniles generally exhibit less maturity and an underdeveloped sense of responsibility, are more vulnerable to outside influences, and lack a well

- formed character

. ( Id

. at pp. 569

- 57 0.) In view of those differences, the court explained, t he penological justifications for the death penalty

-- retribution and deterrence

-- apply with lesser force to juveniles ; their diminished culpability and lack of foresight call into question whethe r the death penalty is merited or

act s as a deterrent

. ( Id . at p p . 57 1

- 572 .) While acknowledging th e possibility that in “a rare case” the death6

penalty might be warranted , the court adopted a categorical rule barring capital punishment in order to forec lose the risk of its imposition “despite insufficient culpability.” ( Id . at

pp. 572

- 573.) As the court observed : “It is difficult even for expert psychologists to differentiate be tween the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile whose crime reflects irreparable corruption.” ( Id . at p. 573.)
In Graham

, the court adopted a categorical rule barring the imposition of LWOP terms on juvenile nonhomicide offenders. ( Graham , supra, 560 U.S. at p. 81 .)
As in Roper , the court relied on the existence of a consensus against that practice, as well as the features of juveniles
rel ating to t he penological justifications for imposing an
LWOP term . ( Graham , supra, at pp. 61

- 79.) The court rejected a case

- b y

- case approach to such sentencing, pointing to the difficulties in distinguishing “with sufficient accuracy

. . . the few incorrigible juvenile offenders from the many that have the capacity for change.” ( Id . at p. 77.)

2. U nited States Su

preme Court’s Decision in
Miller
In Miller , the high court expressly declined to decide whether the Eighth Amendment requires a “ categorical bar”

to LWOP terms for juvenile offenders convicted of a homicide, but held that the Eighth Amendment forbids

sen tencing schemes mandat ing such punishment. ( Miller

, supra , 132 S.Ct. at p. 2469.) T he court relied primarily on7

Roper and Graham , and a strand of decisions traceable to
Woodson v. North Carolina (1976) 428 U.S. 280 (plur. opn

. )

, which requir ed individual ized sentencing in death penalty

cases . ( Miller

, supra , 132 S.Ct. at p. 2463

- 2464.) In Roper
and Graham , the court explained , “emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” ( Id . at

p. 2465.) The court further stated that Roper and Graham

, like the cases in the second strand of decisions

, “ teach that in imposing a State’s harshest penalties, a sentencer misses

t oo much if he treats every child as an adult.” ( Id . at

p. 2468.)
The court thus conclud ed that the Eighth Amendment forbids sentencing schemes mandating LWOP terms for juvenile offenders : “Mandatory life without parole for a juvenile precludes consider ation of his chronological age and
its hallmark features

-- among them, immaturity, impetuosity, and failure to appreciate risks and

consequences. It prevents taking into account the family
and home environment that surrounds him

-- and from
which he cann ot usually extricate himself

-- no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth

-- for example, his8

inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assi st his own attorneys. [Citation s .] A nd finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it. ” ( M iller

, supra , 132 S.Ct. at p. 246 8 .) In declining to examine whether the Eighth
Amen dment required a “ categorical ba r” t o LWOP terms for juveniles, the court remarked: “[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we no ted in Roper and Graham of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” ( Miller

, supra , 13 2 S.Ct. at p. 24 69 , quoting Roper, 543 U.S. at p. 573, and Graham, 560 U.S. at p p . 2026

- 2027 .)
The court further explained that its holding did not rely on the existence of a consensus against mandatory
LWOP terms for juveniles convicted of murder, even t hough
there was strong evidence of such a consensus

. ( Miller

, supra , 132 S.Ct. at pp. 2471

- 2472.) The court regarded the

case before it as differ ent from “the typical one in which [ it ]

.9

. . tallied legislative enactments ,” stating: “ Our decision
does n ot categorically bar a penalty for a class of offenders or type of crime

-- as, for example, we did in Roper or Graham

. Instead, it mandates only that a sentencer follow a certain

process

-- considering an offender ’ s youth and attendant
characteristics

-- before imposing a particular penalty. And in so requiring, our decision flows straightforwardly from our precedents: specifically, the principle of Roper, Graham

, and our individualized sentencing cases that youth matters for purposes of meting out the law ’ s most serious punishments. When both of those circumstances have obtained in the past, we have not scrutinized or relied in the same way on legislative enactments. [Citations.]” ( Miller

, supra , 132 S.Ct. at p. 2471.)

3. California Decisions App lying Miller
In the wake of Miller but p rior to Montgomery

, California courts examined the consequences of Miller for sentencing pursuant to subdivision (b) of section 190.5 (section 190.5(b))

, under which appellant’s LWOP term was originally imposed. 3 T hat statute authorizes the trial court

3 Subdivision (b) of section 190.5 provides: “The penalty for a de fendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years a t the time of the commission of the crime, shall be confinement in the state prison for life (Fn. continued on next page.)10

to impose an LWOP term on a juvenile defendant guilty of first degree murder who was 16 years or older at the time of the offense, provided at least one special circumstance
enumerated in sections 190.2 or 190.25 is f ound to be true

. Those special circumstances include the fact that the murder was committed in the course of a robbery . (§ 190 .2 , subd. (a)(17)(A).) Under section 190.5 (b) , the court has the discretion to impose an alternative sentence of 25 years to
li fe. People v. Gutierrez (2014) 58 Cal.4th 1354, 136 1 ( Gutierrez

) involved consolidated appeals by two defendants
sentenced before Miller to LWOP terms for murders they committed as juveniles. O ur Supreme Court examined whether, in light of Miller , sectio n 190.5 (b) had properly
been construed by appellate courts to establish a presumption favoring the imposition of LWOP sentences. ( Gutierrez

, supra , 58 Cal.4th at pp. 1368

- 1370.) The court concluded that the statute conferred discretion on sentencing

cour ts to impose either an LWOP term or a term of 25 years
to life on 16

- and 17

- year

- old offenders convicted of special circumstance murder, with no presumption in favor of an LWOP term. ( Gutierrez

, supra , at p. 1387.)
The court further held that a senten cing court, in exercising its discretion under section 190.5(b) , must consider the factors identified in Miller. ( Gutierrez

, supra ,

without the possibility of parole or, at the discretion of the court, 25 years to life.”11

58 Cal.4th at pp. 1387

- 1390.) As the court observed

, those factors effectively divide into five categories, namely,
eviden ce regarding (1) the defendant’s level of maturity at the time of the crime, (2) the defendant’s family environment, (3) the circumstances of the crime, (4) the
existence of a youth

- related incompetency that prevented the defendant from being convict ed of a lesser crime , and (5) the defendant’s “‘possibility of rehabilitation.’” ( Id

. at pp. 1388
, 1389, quoting Miller

, supra , 132 S.Ct. at p. 2468.) In remanding the cases before it for resentencing, the court
stated: “ The question is whether each [defendan t] can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society, notwithstanding the ‘ diminished culpability and greater prospects for reform ’ that ordinarily distinguish juveniles
from adul ts. ” ( Gutierrez, supra, at p. 1391, quoting Miller,

supra , 132 S.Ct. at p. 2464.) Following Gutierrez , the appellate court i n People v. Palafox (2014) 231 Cal.App.4th 68, 73 ( Palafox ) examined
how the trial court must evaluate the Miller factors in imp osing an LWOP term under section 190.5 (b). There, the
defendant was sentenced to two consecutive LWOP terms for two special

- circumstances murders he committed when 16 years old. ( Palafox, supra, 231 Cal.App.4th at p. 73.) As
Miller was decided while his initial appeal from that judgment was pending, the appellate court remanded the matter for resentencing. ( Id . at pp. 74

- 75.) Upon remand, the trial court, in examining the Miller factors, stated that it12

could not exclude the “ ‘ significant possibility ’ ” of the defendant’s rehabilitation, but resentenced the defendant to two consecutive LWOP terms. ( Palafox, supra, at pp. 79
, 80.) Affirming that ruling, the Palafox court plac ed special emphasis on the statement in Miller that it “ ‘ mandate[d] only that a sentencer follow a certain process

-- considering an offender’s youth and attendant characteristics

-- before imposing a particular penalty. ’ ” ( Palafox

, supra , 231 Cal.App.4th at p. 88, italics omitted .) While acknowledging that the key sentencing ques tion was as set forth in
Gutierrez , the appellate court found no specific directive in
Gutierrez regarding how the trial court must assess the
Miller factors. (

Id

. at p. 90. ) The court concluded that the sentence was constitutionally sound despite the tr ial court’s inability to exclude the possibility of rehabilitation, stating :

“ No particular factor, relevant to the decision whether to impose LWOP on a juvenile who has committed murder, predominates under the law. Hence, as long as a trial court gives due consideration to an offender ’ s youth and attendant characteristics, as required by [ Miller ]

. . . , it may, in exercising its discretion under [section 190.5 ], give such weight to the relevant factors as it reasonably determines is appropriate under al l the circumstances of the case.” ( Id . at

pp. 73, 91.)13 4

. U nited S tates Supreme Court’s Decision in Montgomery The overarching issue presented in Montgomery was whether Miller had retroactive application in state collateral review proceedi ngs. ( Montgomery

, supra , 136 S.Ct. at

pp. 727, 729, 736.) 4 In resolving that issue, the high court’s discussion proceeded in two stages . The court first
determined that “when a new substantive rule of
constitutional law controls the outcome of a case , t he Constitution requires state collateral review courts to give retroactive effect to that rule.” ( Id . at p. 729.) In this context, the court explained, “Substantive rules .

. . set forth categorical constitutional guarantees that place certain
criminal laws and punishments altogether beyond the State’s power to impose. .

. . Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating “ ‘ the manner of determining the defendant’s culpability. ’ ” ” ( Id . at pp . 729

- 730, quoting
Schriro v

. Summerlin (2004) 542 U.S. 348 , 353 , italics

4 It was undisputed that the court’s decision in Teague v. Lane (1989) 48 9 U.S. 288 required the retroactive application of new substantive rules in federal habeas proceedings. Left open was the question whether states were required as a constitutional matter to give retroactive effect to new substantive rules on state collate ral review. ( Montgomery, supra, 136 S.Ct. at pp. 728

- 729.)14

deleted .) Turning to Miller , the high court concluded that it
announced a substantive rule of law , and thus ha d
retroactive application in state collateral review proceedings. ( Mon tgomery , supra , 136 S.Ct. at pp. 732

- 737.)
Our focus i s on the second stage of the discussion in Montgomery

. Miller set forth a substantive rule , the high court explained, because it identified a class of defendants
for whom LWOP terms were un constituti onal

. ( Montgomery

, supra , 136 S.Ct. at pp. 732

- 737.) Miller recognized that “‘the distinctive attributes of youth’” reduce culpability and increase the prospect of reform, and thus “‘diminish the penological justifications ’” for imposing LWOP terms on ju veniles. ( Montgomery, supra, at p. 733, quoting Miller

, supra , 132 S.Ct. at p. 2465.) “The Court recognized that a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible . . . . B ut in light of ‘children’s diminished culpability and heightened capacity for change,’ Miller made clear that ‘appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Montgomery, supra, at pp. 733

- 734, quoting M iller, supra, 132 S.Ct. at p. 2469. For that reason, the court explained,

“ Miller .

. . did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole

. . . [Citation.] Even if a court considers a child’s a ge before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘“unfortunate yet transient immaturity.”’15

[Citation s .] Because Miller determined that sentencing a
child to life w ithout parole is excessive for all but ‘ “ the rare juvenile offender whose crime reflects irreparable corruption ” ’ [citation], it rendered life without parole an unconstitutional penalty for ‘ a class of defendants because of
their status ’

-- that is, juveni le offenders whose crimes reflect the transient immaturity of youth. [Citation.] As a result,
Miller announced a substantive rule of constitutional law.” ( Montgomery

, supra , 1 36 S.Ct. at p. 7 34 .)
The court clarified that two remarks in Miller

-- first

, that it s holding “ ‘ d[id] not categorically bar a penalty for a class of offenders or type of crime [,] as .

. . [done] in Roper or Graham

, ’ ” and second, that the holding “mandate[d] only

. . . a certain process”

-- did not support the contrary conclusion. ( Montgomery

, supra , 136 S.Ct. at p. 734, quoting Miller,

supra, 132 S.Ct. at p. 24 71 .) The first remark, the court explained, reflected an insignificant difference between the classes designated in Roper and Graham and the class
des ignated in Miller : “ Miller , it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that

reason, Miller is no less substantive than are Roper and
Graham. Before Miller , every juvenile convicted of a homicide offense could be sentenced to life without parole.
After Miller , it will be the rare juvenile offender who can
receive that s ame sentence. The only difference between16

Roper and Graham, on the one hand, and Miller , on the other hand, is that Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corr uption.” ( Montgomery

, supra , 136 S.Ct. at p. 7 34 , italics added. )
T he second remark , the court explained

, conveyed only

t hat the holding in Miller had “a procedural component,” not
that it was a procedural rule, for purposes of the retroactivity principl e. ( Montgomery

, supra , 136 S.Ct. at

p. 7 34 .) T h at procedural component differed from a procedural rule, as it was “necessary to implement a substantive guarantee

. . . . ” ( Id . at p. 734.) The court

e laborated : “ There are instances in which a substanti ve change in the law must be attended by a procedure that enables a prisoner to show that he falls within the category of persons whom the law may no longer punish. [Citations.]

. . . Those procedural requirements do not, of course,
transform substantive rules into procedural ones. [¶] The procedure Miller prescribes is no different. A hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” ( Id . at p. 735, quoting Miller

, supra , 132 S.Ct. at p. 2460.) The court also clarified why Miller refrained from mandating that trial courts make a finding regarding “ a child’s incorrigibility

. ” ( Montgomery

, supra , 136 S.Ct. at

p. 73 5 .) T hat aspect of Miller reflected a con cern linked to17

federalism, namely, that states be afforded latitude to develop appropriate procedures. ( I bid. ) A ny such latitude

, however, was not open

- ended: “That Miller did not impose a
formal factfinding requirement does not leave [s] tates free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth
Amendment. ” ( Ibid .)

B

. Underlying Pr oceedings In ruling on appellant’s request for resentencing, the
trial court had before it the facts established at his trial, as
well as evidence regarding his post

- conviction conduct and potential for rehabilitation

.

1. Trial Evidence In January 1998, appellant was 16 years old and lived with his mother, Gina Castillo, and his stepfather, Pedro
Castillo. 5 He shared a bedroom with his baby sister. In that room, Gina and Pedro placed a piggy bank for the baby containing more than $100.
Gina and Pedro forbade appellant to visit his cousin Samuel Ramirez, who lived with appellant’s grandmother. On several occasions, appellant told a schoolmate that he intended to kill his parents because they were strict with

5 As appellant’s victims share a surname, we refer to them by their first names.18

him, made him do chores, an d would not let him “go out.” The schoolmate also heard Ramirez say that “it would be

‘ cool ’ to kill” appellant’s parents. During the morning of January 13, 199 8 , appellant and
Ramirez were in an arcade with a friend . Appellant told the
friend that he and Ramirez were going to kill Gina because “it was a perfect day to do it.” After showing Hernandez a knife, appellant said that after killing Gina, he intended to take some money

. On the same date, at approximately 2:30 p.m., Los Angeles Cou nty Sheriff’s Department deputy sheriffs responded to a 911 call regarding appellant’s residence. Inside, they found Gina lying on the floor, suffering from multiple wounds and covered with blood. She told the deputy sheriffs that appellant had inflicted her injuries. Nearby, they found some knives. Later, Pedro discovered that the piggy bank in appellant’s bedroom was missing. Investigating officers interviewed appellant twice shortly after Gina’s death. A fter initially denying
involvement in Gina’ s murder, he provided an account of the crime. Appellant stated that he and Ramirez discussed killing Gina and Pedro for more than a month prior to January 13, 1998 . According to appellant, killing his parents was his idea. The idea arose from “frustrat ion” regarding his lack of freedom, as his parents did not “let [him] go out anywhere.”
A ppellant further stated that on the day of the murder he arose and gave the appearance of leaving for school, but19

went to an arcade, where he met Ramirez. At appro ximately 2:25 p.m, they entered appellant’s residence, where Gina was seated at a computer table. Although their faces were covered, Gina recognized appellant. When appellant stabbed Gina with a knife, she struggled and took away the knife.
R amirez secu red a second knife and held Gina down, but Gina broke the second knife. At some point, appellant obtained a third knife that Ramirez had brought with him and stabbed Gina in the neck and chest. As Gina struggled with them, she recognized Ramirez and said , “ ‘ Help me ! ’ ” She also said, “I’m dying.” Because Gina was screaming appellant’s name, he put a rag in her mouth. After attacking Gina, appellant washed his hands and fled with Ramirez. During the second interview, appellant stated that for
three or four weeks, he planned with Ramirez to kill Gina and Pedro. As part of the plan, they intended to take some money appellants’ parents had set aside for appellant’s baby
sister. He also acknowledged that at some point, they contemplated killing a female schoolmate in a manner
derived from a movie called “Scream.” Prior to killing Gina, appellant and Ramirez smoked m arijuana. When asked how
he felt after the killin g , appellant replied, “Terrible, I felt like just killing myself too.”

2. Evaluations of Potential for Rehabilitation and Reports Regarding Post

- Conviction Conduct Prior to the resentencing hearing, appellant submitted several reports and declarations regarding his potential for20

rehabilitation and conduct while in prison. According to a social history and assessment prepared with the assistance of Licensed Clinical Social Worker Miya Sumii

, appellant
was immature at the time of his offenses

, as he then “had limited life experiences and limited ability to weigh the
risk [ s ] and conseq uences of his actions.” The social history
and assessment noted that at the time of the murder

, appellant was subject to fantasies derived from horror movies, and killed Gina while under the influence of marijuana. The social history and assessment opine d that appellant had “great potential ” for rehabilit at ion, in view of the steps he had taken toward rehabilitation while serving
his sentence. In a review of records for appellant held by the California Department of Correction and Rehabilitation,
retir ed associate warden Daniel J. Fulks stated that Appellant’s disciplinary history was “extremely commendable.” Appellant had been discipline

- free for 14 of his 15 years of incarceration, and there was no documented criminal or gang activity. According to Fulks, appellant’s sole disciplinary violation , which occurred in 2000, was for possession of inmate

- manufactured alcohol. Fulks further stated that while incarcerated, appellant had earned his GED and participated in several vocational training

programs. Barry A. Krisberg, a Ph.D. i n sociology, opined that appellant exhibited “an excellent capacity to rehabilitate and reintegrate into society.” According to Krisberg, appellant21

had a “remarkable record of good behavior” while imprisoned, was respectful to staff and peers, and “took advantage of every program and self

- help opportunity
available to him.” In addition to this evidence, appellant submitted declarations from several persons familiar with his religious
beliefs. John Pape stated he was a re ligious volunteer at Central Juvenile Hall, where appellant was once placed.
When appellant was moved to prison, Pape maintained contact with him through visits, phone calls, and letters. According to Pape, appellant was an immature 16

- year

- old when they first met. Since that time , appellant had matured and acquired religious beliefs. Pape opined that appellant’s ongoing participation in religious programs reflect ed “ a genuine desire and capacity for rehabilitation.” David Waagan, a member of the Jeh ovah’s Witnesses,
stated that in 2006, he conducted appellant’s baptism while appellant was incarcerated at Pelican Bay State Prison. According to Waagan, “[n]ot anyone can be baptized,” as an individual must undergo lengthy preparation and demonstrate “p rogressive changes. ” Gerald Gormly and D avi d Griffin, who had contact with appellant at Pelican Bay State Prison as religious volunteers, stated that he demonstrated maturity and sincere religious convictions.

3. Testimony at Resentencing Hearing
Griffin and Pape also testified at the resentencing22

hearing. Griffin stated that in 2006, he encountered appellant for approximately six months. Appellant had then been baptized as a Jehovah’s Witness. Few inmates had done so, as baptism as a Jehova h’s Witness required comprehensive knowledge of the Bible. Griffin regarded appellant as a “very sincere” and “very serious” person. According to Griffin , appellant was also well regarded by the prison staff because he was among the small group of
inmate s who had a job. Griffin acknowledged that he was not a trained psychologist, and that he was unaware of some aspects of appellant’s crime. Pape testified that he believed appellant’s mature
conduct to be sincere. In addition to a cknowledg ing that he had no background in psychology, Pape stated that he did
not know that after the murder, appellant displayed an
interest in the movie “Scream

, ” and asked his counselors to secure a copy of its sequel.

4. Trial Court’s Ruling Following the presentation of evidence, the trial court

re sentenced appellant to an LWOP term on the murder
conviction

. After summarizing the Miller factors and other applicable principles, the court found that that there was no evidence of “abuse, neglect, family alco hol [abuse], drug abuse, lack of parenting, lack of education[,] or any prior acts of exposure to any violence,” and no evidence that appellant might have been convicted of a lesser crime but for his youth. The court made detailed f indings regarding the23

c ircumstances surrounding the murder, but no express finding regarding appellant’s po tential for rehabilitation. 6

C. Analysis For the reasons discussed below, we conclude that although the United States Supreme Court has not

announce d a categorical b ar to the imposition of an LWOP term on appellant’s offense, the matter must be remanded for resentencing in light of Montgomery

.

6 Regarding the circumstances surrounding the murder, the trial court found that it was planned as a crime for robbery and murder, and that appellant appreciated the pertinent consequences and risks. The court further stated: “[Appellant] planned to kill several people. . . . Other girls in school. He planned to first terrorize them by making telephone calls usi ng a voice modulator to disguise his voice but more importantly to be that of a sinister film character. He didn’t have the money to purchase such a device and he knew his 2 months old sister had a donation bag in her room which contained donations of tho se making visits to the new baby and to the family. He further planned to create the appearance of a botched robbery gone bad by the presence of his mother catching the robber. He knew he had to kill her when he went into the house. He brought knives fo r that very purpose. During the 45 stab wounds to her body, some of those knives broke. He supplemented his weapons by using household kitchen knives and finally when that didn’t work he used a screwdriver to finish her, he thought. While he and his acc omplice fled with the [baby’s] money . . . . He left a one or 2 months old infant to be on her own. . . .”24 1. No Categorical Ban Against LWOP Terms for Juvenile Offenders
We begin with appellant’s contention that in vie w of
the analytical framework underlying Miller, Roper, and
Graham

, the Eighth Amendment must be “ understood to prohibit any sentence of life without parole in the case of the juvenile offender.” As appellant notes, Miller acknowledged the “great difficul ty” noted in Roper and Graham “of distinguishing .

. . between ‘the juvenile offender whose
crime reflects .

. . transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption .’” ( Miller

, supra , 132 S.Ct. at p. 2469, quot ing Roper, 543 U.S. at p. 573, and Graham, 560 U.S. at p. 2026.) Appellant argues that because the risk of error attendant to drawing such a distinction underpinned t he categorical bans on punishment announced in Roper and Graham , th at risk
also mandate s the same result with respect to LWOP terms for juvenile offenders convicted of murder. Although fully informed by Roper and Graham

, Miller expressly declined to announce such a categorical ban. ( Miller

, supra , 132 S.Ct. at p. 2469.) Rather, as explain ed in Montgomery

, Miller set forth a substantive ban on LWOP terms for juveniles whose crimes reflect transient immaturity, rather than irreparable corruption, together
with procedural requirements for distinguishing that class of juveniles. In so holding

, Miller impliedly found that for purposes of the substantive ban in question, the risk of error attending such a procedure , if properly implemented, did not25

manifestly offend the Eighth Amendment. We are bound by that ruling

. ( C

alderon

, supra , 4 Cal.3d at p. 258.)

2. Application of Miller in Light of Montgomery We turn to appellant’s c hallenges to the trial court ’s application of Miller

. Because we must follow the United
States Supreme Court’s most recent pronouncement on the Eighth Amendment whe n the high court’s decisions may differ on a legal point , we apply the interpretation of Miller
set forth in Montgomery. ( See Sei Fujii v. State of California (1952) 38 Cal.2d 718, 728 ; In re Lane (1962) 58 Cal.2d 99, 105; Meddock v. County of Yolo (2013) 220 Cal.App.4th 170,
17 6 , fn. 6; 9 Witkin, Cal.Procedure ( 5th ed. 2008 ) Appeal, § 541, pp. 611

- 613.)
I n determining that Miller applies retroactively on
state collateral review

, Montgomery significantly recast
Miller . U nder Montgomery

, Miller must be regarded as announcing a substanti ve rule barring LWOP terms for a specific class of juvenile offenders, namely, those “ ‘ whose crimes reflect the transient immaturity of youth

, ’ ” not irreparable corruption. ( Montgomery

, supra , 136 S.Ct. at p. 743.) A s ex plained in Montgomery , that substantive rule bars LWOP terms “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” ( Montgomery

, supra , at p. 734.) The application of Miller in state collateral review procee dings thus targets a specific question

-- that is, whether the juvenile offender’s crime arose from i rreparable corruption,26

rather than transient immaturity

-- the focal point of which is the existence of “permanent incorrigibility.” ( Id . at

p. 734.)
Further more, under Montgomery

, Miller mandates the employment of a procedure that clearly addresses and resolves that question. As set forth in Montgomery

, Miller requires “ a procedure that enables a prisoner to show that he falls within the category of p ersons whom the law may no longer punish.” ( Montgomery

, supra , 1 36 S.Ct. at p. 735.) Only considerations regarding federalism motivated Miller to refrain from requiring that trial courts make a finding regarding “a child’s incorrigibility.” ( I bid .) Alt hough states are afforded latitude regarding the procedure, it s design as implemented must resolv e the key question , as states are not “free to sentence a child whose crime reflects transient immaturity to life without parole.” ( Ibid .) In our view, th e stringent standard set forth in Montgomery cannot be satisfied unless the trial court, in imposing an LWOP term

, determines that in light of all the
Miller factors, the juvenile offender’s crime reflects irreparable corruption resulting in permanent inco rrigibility, rather than transient immaturity. Montgomery thus vitiates Palafox

, upon which respondent relies, which concluded

, without the benefit of Montgomery

, that a trial court complies with Miller “ as long as [it] gives due consideration
to an offen der’s youth and attendant characteristics,”
without ruling out the possibility that the offender was subject to rehabilitation. ( Palafox

, supra , 231 Cal.App.4th at27

pp. 73, 90

- 92.) In view of Montgomery , the trial court must

assess the Miller factors with an eye to making a n express determin ation whether the juvenile offender’s crime reflect s permanent incorrigibility arising from irreparable corruption. 7

7 People v. Chavez (2014) 228 Cal.App.4th 18

, upon which respondent also relies, does not assist respondent. In Chavez , prior to Miller and Gutie rrez the trial court imposed an LWOP term following a juvenile offender’s murder conviction. ( Chavez

, supra , 228 Cal.App.4th at pp. 32

- 34.) As the trial court had failed to consider the “ultimate question” set forth in Miller

-- whether the defendant was irreparably corrupt

-- and the record did not answer that question, the appellate court reversed the sentence and remanded the matter for resentencing. Because Chavez predates Montgomery , it provides no guidance regarding that decision. Following the completion of briefing, respondent directed our attention to People v. Blackwell (2016) 3 Cal.App.5th 166 (

Blackwell ). There, the trial court assessed the Miller factors and imposed an LWOP term following a juvenile offender’s murder conviction. ( Blackw ell, supra, 3 Cal.App.5th at pp. 173

- 174.) On appeal, the juvenile offender contended that the absence of jury findings regarding the Miller factors contravened Apprendi v. New Jersey (2000) 530 U.S. 466 , and that the LWOP term constituted cruel and unusu al punishment. ( Blackwell

, supra , 3 Cal.App.5th at p. 182.) In rejecting the contention under Apprendi , the appellate court concluded that notwithstanding Montgomery , a determination that a juvenile offender’s crime reflects irreparable corruption (Fn. continued on next page.)28 As the trial court resentenced appellant without the
benefit of Montgomery , it did not examine the Miller factors
in that manner. In re imposing the LWOP term, the court neither state d that appellant was irreparably corrupt n or made a determination of permanent incorrigibility. Rather,

t he court focused on the circumstances of the crime, without
refere nce to the evidence bearing on appellant’s possibility of

r ehabilitation. In short, in resentencing appellant, the court did not apply the substantive rule Montgomery has now
stated Miller established. The remaining issue concerns the appropriate remedy. In view of the evolving standards for sentencing juveniles
reflected in Montgomery , the parties were not fully apprised in advance of the resentencing hearing of the types of evidence potentially relevant to the trial court’s

“merel y ‘encapsulates the [absence] of youth

- based mitigation.’” ( Id . at p. 192.) The appellate court further concluded that the trial court’s assessment of the Miller factors did not contravene the Eighth Amendment, relying primarily on Palafox . ( Blackwell, supra, at pp. 199

- 203.) For the reasons discussed above, we do not find Blackwell persuasive on the issues before us. Under Mon tgomery , irreparable corruption requires “permanent incorrigibility,” not simply the absence of youth

- based mitigation. ( Mon tgomery , supra , 136 S.Ct. at p. 73 4 .) Furthermore, in view of Montgomery

, Palafox reflects an interpretation of Miller that is no longer tenable.29

determination. For that rea son, we decline to examine
whether the evidence before the trial court demonstrated that appellant is not irreparabl y corrupt, as he contends on appeal. 8 ( Boyle v. Hawkins (1969) 71 Cal.2d 229, 232, fn. 3 [“Before an appellate court may make new findings as the basis of a reversal, with directions to enter judgment for appellant .

. . ‘it must appear from the record .

. . that on no theory grounded in reason and justice could the party defeated on appeal make a further substantial showing in
the trial cour t in support of his cause,’” quoting Tupman v.
Haberken (1929) 208 Cal. 256, 269 ] .) We therefore remand
the matter for resentencing.

8 Nor do we examine appellant’s contention that his LWOP sentence contravenes the prohibition against cr uel or unusual punishment in the California Constitution (art. I, sec. 17), as it rests entirely on the same argument.30 DISPOSITION The order of the court is reversed, and the matter is remanded for further proceedings in accordance with this opinion.
CERTIFIED FOR PUBLICATION

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

COLLINS, J.