Filed 10/13/15 P. v. McGuire CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.

ANTHONY M CGUIRE,
Defendant and Appellant. B259710
(Los Angeles County Super. Ct. No. TA115410)

APPEAL from an order of the Superior Court of Los Angeles County. Kelvin D.
Fil er, Judge. Reversed

. Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

______________________ _2

This appeal comes before us for a second time. Following a jury trial, Anthony McGuire was convicted of gang

- related murder and attempted murders. We reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND McGuire was 17 years old at the time he committed the crimes in 2009. 1 It was undisputed at trial that he and codefendant Lance M. Taylor were gang members and that McGuire fired a gun at unarmed bystanders who did no more than call out to females walking on the street. One of the bystanders was killed. A jury convicted McGuire of one count of first degree murder (Pen. Code, § 187, subd. (a)) 2 and two counts of attempted premeditated murder (§§ 664/187, subd. (a)). The jury found that in all three offenses he personally used and i ntentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (e), and that the offenses were committed for the benefit of a criminal street gang (§ 186.22) In March 2011, McGuire was sentenced to an aggregate state pr ison term of 90 years to life. 3 Among the issues raised in his first appeal, McGuire contended his sentence constituted cruel and unusual punishment under the Eighth Amendment because he was only 17 years old at the time of the crimes. We reversed the se ntence and remanded for resentencing after concluding the trial court had failed to consider the factors identified in
Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] ( Miller ) and

1 McGuire’s birthdate is July 9, 1992. At the time the crimes were committed (August 19, 2009) he would have been 17 years and 1 month.

2 Statutory references are to the Penal Code, unless o therwise indicated.

3 McGuire was tried jointly with Taylor, who was found guilty of one count of first degree murder and two counts of attempted premeditated murder. The jury found that in all three offenses, a principal personally used and intentional ly discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (e) and they were committed for the benefit of a criminal street gang ( § 186.22, subd. (b)(1)(c)). Taylor was sentenced to an aggregate state prison term of 82 years to life.3

People v. Caballero (2012) 55 Cal.4th 262 ( Caballero ) in imposing sentence . ( People v.
McGuire (July 15, 2013, B232593) [nonpub. opn.].) At the resentencing hearing on remand, the trial court indicated it had reviewed the relevant cases, among them Miller and Caballero , the probation officer’s report and

c ounsels’ sentencing memoranda. 4 Prior to imposing sentence for murder, count 1, the court observed that McGuire “was 17 years old at the time of the offense, not 15 or 16. His level of involvement was high and extremely connected, involved. And based up on the jury’s findings as I recall them, exhibited some leadership on the part of Mr. McGuire in carrying out these three offenses. Specifically, it was found he personally used a handgun and fire d more than one time. There were numerous shorts [sic] tow ards the
dire ction of numerous victims. There is nothing that indicated he has any sort of physical, mental or emotional health problems. He is not a small young man. He did complete at least enough schooling to get through 11th grade of high school.” The court noted that McGuire “was not on any type of drugs or medicatio ns” at the time of the
offense. The trial court also consid ered the fact that section 3051 would provide McGuire with an opportunity to seek parole in 25 y ears

. The trial court then s entenced McGuire to an aggregate state pr ison term of 50 years to life: a term of 25 years to life for murder (count 1), plus a term of 25 years to life for the firearm

- use enhancement. With respect to the attempted murders, counts 2 and 3, the court stat ed, “looking over my notes and what happened as the events occurred reflecting these convictions, all of them were committed close in time and place, and I’m finding now that did reflect a single period of abhorrent behavior on the part of Mr. McGuire, I t hink it’s clear his main objective was to facilitate, instigate and continue the gang warfare that was going on at
that time betw een the two gangs involved. And again, making sure that the record indicates that I’m cognizant he was a juvenile and I’m cons idering the factors of his age and level of involvement and whether there was physical and mental development, I’m

4 Both parties urged the court to delay sentencing until the California Supreme Court decided the relevant issues pending before it . ( See infra .) The court declined the proffered stipulation.4

considering that as well in determining that these offenses as to count 2 and 3 should run concurrent. And I think this will provide a meani ngful opportunity for [McGuire] to obtain his release based on any subsequent rehabilitation. Granted
, it will be late in his life, but at least ther e will be some opportunity. And again, the court has considered the social and psychological factors that make juveniles less culpable than adults. That is why I decided to run the time concurrent in counts 2 and 3 with the 50 years in count 1.”
The court then im posed two concurrent terms of 25 years to life on Count 1 plus 25 years
to life for the firearm

- use enhancement with a concurrent sentence of life, with a fifteen year minimum parole eligibility plus 25 years to life for firearm enhancement on each of
Count 2 and Count 3. McGuire timely appealed , again contending his sentence violated the Eighth Ame ndment prohibition on cruel and unusual punishment.

DISCUSSION
1. Relevant Legal Principles

In Miller
, supra , 132 S.Ct. at p. 2460, the United States Supreme Court held the Eighth Amendment prohibits the imposition of a mandatory sentence of life without th e possibility of parole (LWOP) for a juvenile who commits murder. ( Miller
, supra , 132 S.Ct. at p. 2460.) While not imposing a categorical ba n, t he Court explained that “[G]iven all we have said in Roper [ v. Simmons (2005) 543 U.S. 551], Graham [ v. Florid a (2010) 560 U.S. 48], and this decision about children’s diminished culpability and heightened capacity for change, 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.” ( Id. at p. 2469.)5

The Miller Court set forth five categories of factors which the trial court is to

c onsider in determining whether an LWOP sentence is warranted: (1) the juvenile
offender ’ s “chronological age and its hallmark features

— among them, immaturity, impetuosity, and failure to appreciate risks and consequences;” (2) “the family and home environment that surrounds [the juvenile]

— and from which he cannot usually extricate
himself

— no matter how brutal or dysfunctional;” (3) “the circ umstances 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 him,” including whether substance abuse influenced the juvenile’s criminal conduct; (4) wheth er the juvenile “might have been charged and convicted of a lesser offense if not for incompetencies associated with youth

— for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist hi s own attorneys;” and (5) whether there is a possibility of rehabilitation, for which the absence or existence of a criminal history is relevant. ( Id. at pp. 2468

- 2469.)
In Graham v. Florida (2010) 560 U.S. 48, 82 [130 S.Ct. 2011, 176 L.Ed.2d 825] ( Graham ) , the United States Supreme Court held a categorical ban on sentences of life without parole for juvenile offenders applies to all nonhomicide cases including a term of years sentence that is the functional equivalent of an LWOP sentence.
In Caballero
, supra , 55 Cal.4th at p. 268, the California Supreme Court applied the principals of Miller and Graham to hold that an aggregate determinate sentence of 110 years for a 16

- year

- old, who was convicted of three gang

- related attempted murders,
was the functio nal equivalent of an LWOP sentence, and violated Graham’s requirement that “a state must provide a [nonhomicide] juvenile offender ‘with some realistic opportunity to obtain release’ from prison during his or her expected lifetime.” ( Caballero , at p. 268, quoting Graham , 560 U.S. at p. 82.) Finally, in People v. Gutierrez (2014) 58 Cal.4th 1354, the Ca lifornia Supreme
Court revisited the issue, addressing t he question of whether section 190.5 establishes a presumption in favor of life without parole. In holding that it does not, the Court returned

to Miller , finding
, “At the core of Miller’ s rationale is the proposition

- articulated in6

Roper , amplified in Graham , and further elaborated in Miller itself

- that constitutionally significant difference s between children and adults ‘diminish the penological justifications for imposing the harshest sentences on juvenile offenders.’” ( Id

. at
p. 1379.) The Gutierrez court held “that the trial court must consider all relevant evidence bearing on the distinctive att ributes of youth’ discussed in Miller . ( Id . at
p. 1390.)

2. The T

rial Court’s Imposition of a 50 Years to Life Sentence McGuire contends, in selecting a term of 50 years to life, the trial court (1) failed
to consider the relevant Miller factors in sent encing McGuire as a juvenile, and (2) imposed a sentence which, at the time of sentencing, was the functional equivalent of LWOP in violation of the Eighth Amendment. The People argue (1) the trial court considered and properly applied the Miller factors in making its sentencing decision, (2) the sentence did not amount to LWOP, and (3) McGuire’s challenge to the sentence is
moot under section 3051. 5

a. The Court Failed to Consider All of the Miller Factor s We agree with McGuire’s first contention that the t rial court did not follow our mandate to reconsider its sentence in light of Miller and Caballero . The court’s comments showed it imposed an aggregate term of 50 years to life after consid ering only

5 The Caballero Court encouraged the Legislature “to enact legislation establishing a parole eligibility mechanism that provides a defendant serving a de facto life sentence without possibility of parole for nonhomicide crimes that he or she committed as a juvenile with the opportunity to obtain release on a showing of rehabilitation and maturity.” ( Caballero
, supra, 55 Cal.4th at p. 269, fn. 5.)
In response, the Legislature enacted section 3051, which states, “[a] person who was convicted of a controlling offense that was committed before the person ha d attained 18 years of age and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or ent itled to an earlier parole consideration hearing pursuant to other statutory provisions.” (§ 3051, subd. (b)(3).) That hearing must provide a “meaningful opportunity for release.” (§ 3051, subd. (e).)7

McGuire’s chronological age, role in the offenses, size, lack of health issues, educational status, and lack of substance abuse. While t he court considered the unrelated factors of health and physical size, the court did not appear to consider the “ha llmark features” of
McGuire ’ s age , his competency t o deal wi th police, his home env iron m ent, and whether his history demon strated a possibility of rehabilitation
, all as required by Miller. 6

b. We N eed Not Determine if the Sentence was LWOP
With respect to McGuire’s second contention, the California Supreme Court has granted review to determine whether a sentence of 50 years to life for a defendant convicted of a murder committed as a juvenile is the functional equivalent of an LWOP sentence. ( In re Alatriste , review granted Feb. 19, 2014, S214652, and In re Bonilla
, review granted Feb. 19, 2014, S214960.) We need not decide this issue in this case, as th e sentence imposed by the
trial court, as set forth above, did not comply with the order on remand. We
note, however, that t he record shows McGuire was 19 y ears o ld when he was originally sentenced in 2011. We take judicial notice that the life e xpectancy for

a Black male age 19 is approximately 54 years. (National Vital Statistics Repo rts, United States Life Tables, 2010 (Nov. 6, 2014) at p. 29, available at
htt p://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_07.pdf [as of September 8, 2015].) Thus, McGuire’s expected year of death is approximately 2065 while his earliest parole eligibil ity date is 2060. Pending decision of the Supreme Court, we do not believe that
this minimal 5 year potential difference removes the necessity of con sidering the Miller factors, as th e functional equivalent of LWOP.

6 The court did indicate, without any elaboration, that it considered the “factors that make juve niles less culpable than adults
, ” but only in relation to its decision to make the sentences on Count 2 and 3 concurrent

.8

3

. Section 3051 Does Not Moot This Case Finally, the People argue, as they did at the trial court, that section 3051 provides the meaningful opportunity for release required in juvenile sentencing. 7 The trial court relied on this provision in its sentencing decision, as set forth above. We conclude this

was error. First, section 3051, by its terms, excludes individual s who are serving LWOP

sentences

. (3051, subd. (h).) Thus, if the sentence, as imposed by the trial court, remains the functional equivalent of LWOP, no relief would be available to appellant.
Moreover , while the LWOP issue remains pending, we believe t he Supreme Court’s decision on a closely r elated provision provides critical guidance on this issue. Based on that authority, we conclude that section 3051 does not remove the mandate to consider the hallmark features of youth a t the time of sentencing. 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
of fense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition f or recall and resentencing.”].)
I n Gutier rez 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: “t he potential for relief under section 1170(d)(2) does not eliminate the serious constitutional doubts arising from a presumption in favor of life without paro le under section 190.5(b)

. . . .” ( People v. Gutierrez , supra, 58 Cal.4th at

p. 1385.)

7 The Court will also decide in Alatriste, supra , S214652, and Bonilla, supra, S214960 w hether, as the People argue, section 3051 effectively moots any claim that such a sentence amounts to cruel and unusual punishment.9

In our view, both s ection 3051 and section 1170, subdivis ion (d)(2), fall short of
what Miller requires. 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 differ ences 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.) In addition, both provisions ’ petitioning process es

— 15 years after sentencing in the case of section 1170, subdivision (d)(2) and 25 years in section 3051

— are 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 th ose facts before incarceration effectively makes Miller ’s mandate irrelevant to our sent enc ing courts

. Nothing in Miller indicates that the Supreme Court envisioned any such deferral of constitutionally required sentencing co nsiderations; that deferral stands in opposition to the Court’s observation
that such consideration will result in the ha rshest of sentences being “uncommon.”

4. Joint and Several Liability for Victim Restitution In our earlier opinion, we noted the record showed the trial court intended to make the liability for victim restitution to be joint and several between McGuire an d codefendant Taylor and directed the trial court to modify the judgment accordingly. ( People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534

- 1535.) On remand, we again
direct the trial court to do so.

5. Modification of Criminal Conviction Assessment

Sim ilarly, the trial court did not correct the amount that McGuire owes under Government Code, section 70373 as we previously ordered. Therefore on remand the10

court must impose a $30 criminal conviction assessment for each count, for a total of $90, rather t han the $40 for each count, for a total of $120, that the trial court erroneously imposed on McGuire when he was originally sentenced.

DISPOSITION The judgment is reversed and the matter remanded for resentencing consistent with this opinion.

ZELON , Acting P. J.

We concur:

SEGAL, J.

BECKLOFF, J. *

* J udge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the Californi a Constitution.