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.

 B265614

 (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 Defendant 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 Respondent.
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, appellant 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 reimposed the LWOP term. 

Following that ruling, the United States Supreme Court 

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 retroactive application in 

state collateral review proceedings. In so holding, the

United States Supreme 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 1999, 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 jury found true specialcircumstance 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)). The trial court imposed an LWOP term 

on the 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 special-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 

mandates 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. 2469-2470.) 

In August 2014, appellant filed a petition for writ of 

habeas corpus in the superior court, seeking resentencing 

under Miller. On July 15, 2015, after respondent admitted 

that appellant was entitled to a resentencing hearing, the 

court conducted that hearing and resentenced appellant to 

an LWOP term. Appellant noticed this appeal from that 

ruling. In January 2016, while the appeal was pending, the 

United States Supreme Court issued its decision in 

Montgomery, which concluded that Miller announced a 

substantive rule of law that applies retroactively on state 

collateral review to juvenile offenders whose convictions and 

sentences were final when Miller was decided. (Montgomery, 
4

supra, 136 S.Ct. at pp. 727, 729, 736).2

DISCUSSION

Appellant maintains that the trial court erred in 

resentencing 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 benefit of Montgomery. As explained 

below, we conclude that although neither Miller nor

Montgomery expressly forbids LWOP terms for juvenile 

offenders convicted of a homicide, the court’s resentencing 

decision does not reflect the guidance provided by 

Montgomery. 

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 and 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 ineligible 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 (Calderon v. City of Los Angeles (1971) 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 United States Supreme Court Decisions

 Prior to Miller

Miller and Montgomery rely on two prior high court 

decisions addressing the application of the 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 that practice, as well 

as certain differences between juveniles and adults. (Roper, 

supra, 543 U.S. at pp. 564-570, 578-579.) The 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. 569-570.) In view of those differences, the court 

explained, the 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 whether the death penalty is merited or 

acts as a deterrent. (Id. at pp. 571-572.) While 

acknowledging the possibility that in “a rare case” the death 
6

penalty might be warranted, the court adopted a categorical 

rule barring capital punishment in order to foreclose 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 between 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 

relating to the penological justifications for imposing an 

LWOP term. (Graham, supra, at pp. 61-79.) The court 

rejected a case-by-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. United States Supreme 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

sentencing schemes mandating such punishment. (Miller, 

supra, 132 S.Ct. at p. 2469.) The court relied primarily on 
7

Roper and Graham, and a strand of decisions traceable to 

Woodson v. North Carolina (1976) 428 U.S. 280 (plur. opn.),

which required individualized 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 

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

p. 2468.) 

The court thus concluded that the Eighth Amendment 

forbids sentencing schemes mandating LWOP terms for 

juvenile offenders: “Mandatory life without parole for a 

juvenile precludes consideration 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 cannot 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, his 
8

inability to deal with police officers or prosecutors (including 

on a plea agreement) or his incapacity to assist his own 

attorneys. [Citations.] And finally, this mandatory 

punishment disregards the possibility of rehabilitation even 

when the circumstances most suggest it.” (Miller, supra, 132 

S.Ct. at p. 2468.)

In declining to examine whether the Eighth 

Amendment required a “categorical bar” to 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 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, supra, 132 S.Ct. at p. 2469, quoting Roper, 543 U.S. 

at p. 573, and Graham, 560 U.S. at pp. 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 though 

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 different from “the typical one in which [it] . 
9

. . tallied legislative enactments,” stating: “Our decision 

does not 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 Applying Miller

In the wake of Miller but prior 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 That statute authorizes the trial court 

3 Subdivision (b) of section 190.5 provides: “The penalty 

for a defendant 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 at 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 found 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 

life.

People v. Gutierrez (2014) 58 Cal.4th 1354, 1361

(Gutierrez) involved consolidated appeals by two defendants 

sentenced before Miller to LWOP terms for murders they 

committed as juveniles. Our Supreme Court examined 

whether, in light of Miller, section 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 

courts 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 sentencing 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, 

evidence 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 convicted 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 [defendant] 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 adults.” (Gutierrez, supra, at p. 1391, quoting Miller,

supra, 132 S.Ct. at p. 2464.) 

Following Gutierrez, the appellate court in People v. 

Palafox (2014) 231 Cal.App.4th 68, 73 (Palafox) examined 

how the trial court must evaluate the Miller factors in 

imposing 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 it 
12

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 placed 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 question 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 trial 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 all the circumstances of the case.” (Id. at 

pp. 73, 91.) 
13

4. United States Supreme Court’s Decision in

 Montgomery

The overarching issue presented in Montgomery was 

whether Miller had retroactive application in state collateral 

review proceedings. (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, the 

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) 489 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 collateral 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 had

retroactive application in state collateral review proceedings. 

(Montgomery, supra, 136 S.Ct. at pp. 732-737.)

Our focus is 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 unconstitutional. (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 

juveniles. (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 . . . . But 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 Miller, 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 age 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

[Citations.] Because Miller determined that sentencing a 

child to life without 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, juvenile offenders whose crimes reflect 

the transient immaturity of youth. [Citation.] As a result, 

Miller announced a substantive rule of constitutional law.” 

(Montgomery, supra, 136 S.Ct. at p. 734.)

The court clarified that two remarks in Miller -- first,

that its 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. 2471.) The first remark, the court 

explained, reflected an insignificant difference between the 

classes designated in Roper and Graham and the class 

designated 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 same sentence. The only difference between 
16

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 corruption.” 

(Montgomery, supra, 136 S.Ct. at p. 734, italics added.)

The second remark, the court explained, conveyed only 

that the holding in Miller had “a procedural component,” not 

that it was a procedural rule, for purposes of the 

retroactivity principle. (Montgomery, supra, 136 S.Ct. at 

p. 734.) That procedural component differed from a 

procedural rule, as it was “necessary to implement a 

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

elaborated: “There are instances in which a substantive 

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. 735.) That aspect of Miller reflected a concern linked to 
17

federalism, namely, that states be afforded latitude to 

develop appropriate procedures. (Ibid.) Any 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 Proceedings

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, and 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, 1998, 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 County 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. After 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 “frustration” 

regarding his lack of freedom, as his parents did not “let 

[him] go out anywhere.” 

Appellant further stated that on the day of the murder

he arose and gave the appearance of leaving for school, but 
19

went to an arcade, where he met Ramirez. At approximately 

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. 

Ramirez secured 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 marijuana. When asked how 

he felt after the killing, 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 for 
20

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 consequences 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 opined that 

appellant had “great potential” for rehabilitation, 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, 

retired 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. in sociology, opined that 

appellant exhibited “an excellent capacity to rehabilitate and 

reintegrate into society.” According to Krisberg, appellant 
21

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 religious 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 reflected “a 

genuine desire and capacity for rehabilitation.” 

David Waagan, a member of the Jehovah’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 “progressive changes.” 

Gerald Gormly and David 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 resentencing 
22

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 Jehovah’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 

inmates 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 acknowledging 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 

resentenced 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 alcohol [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 findings regarding the 
23

circumstances surrounding the murder, but no express

finding regarding appellant’s potential for rehabilitation.6

C. Analysis

For the reasons discussed below, we conclude that 

although the United States Supreme Court has not 

announced a categorical bar 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 using 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 those 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 for 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 accomplice 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 view 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 difficulty” 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, quoting 

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 the categorical bans 

on punishment announced in Roper and Graham, that risk 

also mandates 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 explained 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 not 
25

manifestly offend the Eighth Amendment. We are bound by 

that ruling. (Calderon, supra, 4 Cal.3d at p. 258.)

2. Application of Miller in Light of Montgomery

We turn to appellant’s challenges 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 when 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, 

176, fn. 6; 9 Witkin, Cal.Procedure (5th ed. 2008) Appeal, 

§ 541, pp. 611-613.) 

In determining that Miller applies retroactively on 

state collateral review, Montgomery significantly recast 

Miller. Under Montgomery, Miller must be regarded as 

announcing a substantive 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.) As explained 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 proceedings 

thus targets a specific question -- that is, whether the 

juvenile offender’s crime arose from irreparable corruption, 
26

rather than transient immaturity -- the focal point of which 

is the existence of “permanent incorrigibility.” (Id. at 

p. 734.) 

Furthermore, 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 persons whom the law may no 

longer punish.” (Montgomery, supra, 136 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.” (Ibid.) Although states 

are afforded latitude regarding the procedure, its design as 

implemented must resolve 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, the 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 incorrigibility, 

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 offender’s youth and attendant characteristics,” 

without ruling out the possibility that the offender was 

subject to rehabilitation. (Palafox, supra, 231 Cal.App.4th at 
27

pp. 73, 90-92.) In view of Montgomery, the trial court must 

assess the Miller factors with an eye to making an express 

determination whether the juvenile offender’s crime reflects 

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 Gutierrez 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. (Blackwell, 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 unusual 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 reimposing the LWOP term, the court 

neither stated that appellant was irreparably corrupt nor 

made a determination of permanent incorrigibility. Rather, 

the court focused on the circumstances of the crime, without 

reference to the evidence bearing on appellant’s possibility of 

rehabilitation. 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 

 

“merely ‘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 

Montgomery, irreparable corruption requires “permanent 

incorrigibility,” not simply the absence of youth-based 

mitigation. (Montgomery, supra, 136 S.Ct. at p. 734.) 

Furthermore, in view of Montgomery, Palafox reflects an 

interpretation of Miller that is no longer tenable. 

 
29

determination. For that reason, we decline to examine 

whether the evidence before the trial court demonstrated 

that appellant is not irreparably 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 court 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 cruel 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.