Filed 4/16/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re NORMAN WILLOVER,

on Habeas Corpus.

 H040757

 (Monterey County

 Super. Ct. Nos. SM980198B, HC7940)

I. INTRODUCTION

In 1999, petitioner Norman Willover was convicted after jury trial of two counts 

of first degree murder (Pen. Code, § 187, subd. (a)),1attempted premeditated murder 

(§§ 664, 187, subd. (a)), aggravated mayhem (§ 205), and giving false information to a 

peace officer (§ 148.9, subd. (a)). The jury also found true various special circumstances

and firearm enhancements. (§ 190.2, subd. (a)(3), (17) & (21); § 12022.53, subd. (d); 

§ 12022.55.) The trial court sentenced petitioner, who was 17 years old at the time he 

committed the offenses, to two consecutive terms of life without possibility of parole 

(LWOP) for the murders, a consecutive term of 15 years to life for the attempted 

premeditated murder, and two consecutive terms of 25 years to life for the allegations 

that he personally discharged a firearm causing great bodily injury or death. The trial 

court stayed the terms for the remaining counts and enhancements.

Petitioner appealed following his convictions, and this court modified the 

judgment to reflect that petitioner’s sentence for the attempted premeditated murder 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

was life with the possibility of parole instead of 15 years to life. (People v. Willover

(Oct. 19, 2000, H019899) [nonpub. opn.].)

In March of 2014, petitioner filed a petition for writ of habeas corpus in this court, 

arguing that he is entitled to be resentenced. Petitioner contends that at his sentencing 

hearing in 1999, the trial court improperly presumed that LWOP was the appropriate 

sentence for the murders pursuant to section 190.5, subdivision (b), in violation of 

Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), which held that 

“mandatory life without parole for those under the age of 18 at the time of their crimes 

violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” 

(Id. at __ [132 S.Ct. 2455, 2460].) For reasons that we shall explain, we will vacate 

petitioner’s sentence and remand the matter for resentencing.

II. BACKGROUND2

A. The Underlying Offense

In December of 1997, petitioner purchased a .22-caliber pistol in Utah after 

leaving a residential treatment center without authorization. Petitioner stated that he 

intended to use the firearm to rob and kill people and to settle scores with rival gangs. 

Petitioner then traveled to Monterey, where he obtained ammunition, loaded his gun, and 

drove around with three other young people.

After arriving at the Monterey Wharf on January 31, 1998, petitioner fired nine 

shots at Priya Mathews and Jennifer Aninger, who were drinking coffee and talking. 

Four bullets hit Mathews and two bullets hit Aninger. Aninger survived the shooting, but 

Mathews died at the scene. Following that shooting, petitioner and his three companions 

drove to Seaside in another car. Petitioner permitted the driver of the car to use his 

firearm to shoot and kill Frances Olivo, who was walking on the sidewalk.

 

2

The factual and procedural background is taken from People v. Willover, supra, 

H019899.
3

Petitioner was subsequently convicted of two counts of first degree murder (§ 187, 

subd. (a)), attempted premeditated murder (§§ 664, 187, subd. (a)), aggravated mayhem 

(§ 205), and giving false information to a peace officer (§ 148.9, subd. (a)). The jury 

found true special circumstance allegations: multiple murders (§ 190.2, subd. (a)(3));

murder during the commission of attempted robbery (id., subd. (a)(17)); and drive-by 

shooting (id., subd. (a)(21)). The jury also found true allegations that petitioner 

personally discharged a firearm causing great bodily injury or death (§ 12022.53, 

subd. (d)) and intentionally inflicted great bodily injury or death as a result of discharging 

a firearm from a vehicle during the commission of a felony or attempted felony 

(§ 12022.55).

B. Sentencing Hearing

Prior to petitioner’s sentencing hearing in 1999, the prosecution filed a statement 

in aggravation, in which it cited People v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn) for 

the proposition that, pursuant to section 190.5, subdivision (b),3LWOP was the 

presumptive sentence for a special circumstance murder committed by a 16- or 17-yearold juvenile. The prosecution further argued that there were numerous aggravating 

circumstances, relating to both the offense and the offender, and no circumstances in 

mitigation. (See Cal. Rules of Court, former rules 421 & 423.) The prosecution argued 

that petitioner had been “feign[ing] or exaggerat[ing] purported symptoms of mental 

illness in order to avoid being held accountable for his conduct.” The prosecution 

contended that there was no justification for ever allowing petitioner to be released back 

into society: “If [petitioner] is granted the possibility of parole, he stands a chance of 

 

3

Section 190.5, subdivision (b) 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 without 

the possibility of parole or, at the discretion of the court, 25 years to life.”
4

being released . . . at a relatively young age . . . [where] there will be new generations of 

innocent people who would be exposed to the calculated but random viciousness that 

[petitioner] will bring with him.”

Petitioner filed a sentencing memorandum, in which he argued that Guinn had 

erroneously held that section 190.5, subdivision (b) requires a presumption of LWOP for 

16- and 17-year-old defendants who commit special circumstance murders. Petitioner

called the Guinn opinion “flawed” and argued that its interpretation of section 190.5, 

subdivision (b) was “without logical basis.”

A sentencing hearing took place on April 2, 1999. At the hearing, the prosecutor 

argued that petitioner did not suffer from “any mental illness that impaired his ability to 

make moral choices” and that petitioner had not shown any remorse. The prosecutor 

argued that petitioner should not be given the opportunity for parole, because “based on 

everything we know about him, he will come back again looking for someone to kill.” 

The prosecutor argued that Guinn placed on petitioner the burden of showing that an 

LWOP sentence was inappropriate, and that he had “failed to carry it.” The prosecutor 

argued that even if Guinn was “not correct,” an LWOP sentence was still appropriate.

Petitioner’s trial counsel argued that petitioner did suffer “from a mental condition 

that reduced culpability” and that petitioner was a “grossly immature” young man who 

had “little or no ability to control his own aggression.” Petitioner’s trial counsel argued 

that the trial court should not impose consecutive sentences because the crimes “were 

committed in so close a period of time as to indicate a single period of aberrant behavior” 

and because petitioner “played a minor or passive role” in the second murder. 

Petitioner’s trial counsel argued that petitioner’s antisocial personality disorder was 

commonly seen in young males but that “most people by the time they’re in their forties 

or they’re in their fifties do not generally tend to exhibit these tendencies.” Petitioner’s 

trial counsel requested the trial court impose a sentence that would give petitioner “the 

opportunity to be released from custody at some time during his life if he can 
5

demonstrate to the authorities . . . that he is law abiding, that he is able to control himself, 

and that he does not present a danger to public safety.”

In announcing its sentencing decisions, the trial court first rejected petitioner’s 

claim that he was suffering from a mental illness that significantly reduced his culpability 

for the crimes. The trial court noted it had read the letters submitted in support of 

petitioner, which all suggested “[t]hat it would be a miscarriage of justice somehow” if 

petitioner received an LWOP sentence. The trial court noted that “all of the doctors and 

the counselors involved in this case over the years” had characterized petitioner as 

argumentative, explosive, controlling, defiant, resistant to feedback, and a danger to 

society, with poor impulse control. The court described petitioner as “a textbook 

example and the product of poor, indifferent and inadequate parenting,” noting that 

petitioner’s mother would often “blow up, call him a loser, give him a knife and ask him 

to kill her.” The court believed that “[c]ommon sense dictates that [petitioner] must 

never be allowed the possibility of drawing another breath in freedom.”

The trial court ultimately sentenced petitioner to two consecutive LWOP terms for 

the two first-degree murders, a consecutive term of 15 years to life for the attempted 

premeditated murder, and two consecutive terms of 25 years to life for the allegations 

that he personally discharged a firearm causing great bodily injury or death. The trial 

court stayed the terms for the remaining counts and enhancements.

C. Appeal

Petitioner appealed his convictions to this court. On October 19, 2000, this court 

modified the judgment to reflect that petitioner’s sentence for the attempted premeditated 

murder conviction was life with the possibility of parole instead of 15 years to life. This 

court affirmed the judgment as modified.

D. Habeas Petitions

On February 28, 2013, petitioner filed a petition for writ of habeas corpus in the 

trial court, alleging that his LWOP sentence violated the Eighth Amendment under 
6

Miller, supra, 567 U.S. __ [132 S.Ct. 2455]. On January 13, 2014, the trial court denied 

petitioner’s habeas corpus petition.

On March 10, 2014, petitioner filed the instant petition for writ of habeas corpus in 

this court. On October 23, 2014, this court issued an order to show cause and appointed 

counsel for petitioner. The Attorney General subsequently filed a written return, and 

petitioner thereafter filed a traverse.

On July 17, 2014, petitioner filed another habeas corpus petition in the trial court 

seeking resentencing, relying on People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). 

According to the Attorney General, that petition remains pending.

E. Petition to Recall Sentence

On April 9, 2014, petitioner filed a petition in the trial court seeking resentencing 

pursuant to section 1170, subdivision (d)(2). On April 3, 2015, the trial court denied the 

petition.

III. DISCUSSION

A. Miller and Gutierrez

At the time of petitioner’s 1999 sentencing hearing, section 190.5, subdivision (b) 

had “been construed . . . as creating a presumption in favor of life without parole as the 

appropriate penalty for juveniles convicted of special circumstance murder.” (Gutierrez, 

supra, 58 Cal.4th at p. 1360; see Guinn, supra, 28 Cal.App.4th 1130.)

In 2012, the United States Supreme Court ruled that “mandatory life without 

parole for those under the age of 18 at the time of their crimes violates the Eighth 

Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S. 

at __ [132 S.Ct. 2455, 2460].) In Miller, the issue arose in two companion cases, both 

involving 14-year-old defendants, Jackson and Miller, who were convicted of murder and 

sentenced to LWOP. (Ibid.) Jackson’s case arose on appeal from the dismissal of a 

petition for writ of habeas corpus; Miller’s case arose on direct appeal. (Id. at __ [132 

S.Ct. 2455, 2461-2463].)
7

In Miller, the Court explained that its prior cases had “establish[ed] that children 

are constitutionally different from adults for purposes of sentencing.” (Miller, supra, 567 

U.S. at __ [132 S.Ct. 2455, 2464]; see Roper v. Simmons (2005) 543 U.S. 551 (Roper) 

[invalidating death penalty for juvenile offenders] & Graham v. Florida (2010) 560 U.S. 

48 (Graham) [LWOP sentences for non-homicide juvenile offenders violate the Eighth 

Amendment].) Specifically, “juveniles have diminished culpability and greater prospects 

for reform,” making them “ ‘less deserving of the most severe punishments.’ ” (Miller, 

supra, 567 U.S. at __ [132 S.Ct. 2455, 2464].)

The Miller court summarized its holding as follows: “Mandatory life without 

parole for a juvenile precludes consideration of his [or her] 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 [or her]—and from which he [or she] cannot usually extricate himself [or 

herself]—no matter how brutal or dysfunctional. It neglects the circumstances of the 

homicide offense, including the extent of his [or her] participation in the conduct and the 

way familial and peer pressures may have affected him [or her]. Indeed, it ignores that he 

[or she] might have been charged and convicted of a lesser offense if not for 

incompetencies associated with youth—for example, his [or her] inability to deal with 

police officers or prosecutors (including on a plea agreement) or his [or her] incapacity to 

assist his [or her] own attorneys. [Citations.] And finally, this mandatory punishment 

disregards the possibility of rehabilitation even when the circumstances most suggest it.”

(Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2468].)

While Miller held “that the Eighth Amendment forbids a sentencing scheme that 

mandates life in prison without possibility of parole for juvenile offenders,” the court did 

not decide “that the Eighth Amendment requires a categorical bar on life without parole 

for juveniles . . . .” (Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2469].) However, the 

court specified it believed that LWOP sentences for juveniles would be “uncommon” and 
8

limited to “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’ 

[Citations.]” (Ibid.) The court specified that before such a sentence is imposed on a 

juvenile in a homicide case, the sentencing court must “take into account how children 

are different, and how those differences counsel against irrevocably sentencing them to a 

lifetime in prison.” (Ibid., fn. omitted.)

In Gutierrez, supra, 58 Cal.4th 134, the California Supreme Court considered 

the impact of Miller on section 190.5, subdivision (b). The Gutierrez court noted that 

“[f]or two decades, the Courts of Appeal ha[d] uniformly interpreted section 190.5[, 

subdivision ](b) as establishing a presumption in favor of life without parole for juvenile 

offenders who were 16 years of age or older when they committed special circumstance 

murder.” (Gutierrez, supra, at p. 1369.) The California Supreme Court effectively 

overturned that line of appellate precedent, concluding that “section 190.5[, 

subdivision ](b), properly construed, confers discretion on a trial court to sentence a 16-

or 17-year-old juvenile convicted of special circumstance murder to life without parole or 

to 25 years to life, with no presumption in favor of life without parole.” (Id. at p. 1360, 

italics added.) The Gutierrez court further held that “consideration of the Miller factors” 

is required when a sentencing court is determining whether to impose an LWOP sentence 

pursuant to section 190.5, subdivision (b). (Gutierrez, supra, at p. 1387.)

In Gutierrez, in which the issue arose on direct appeal, “[b]ecause the two 

defendants . . . were sentenced before Miller in accordance with the interpretation of 

section 190.5[, subdivision] (b) prevailing at the time,” the court remanded for 

resentencing. (Gutierrez, supra, 58 Cal.4th at p. 1361.)

B. The Parties’ Contentions

The Attorney General contends that petitioner is not entitled to be resentenced, for 

several reasons. First, the Attorney General argues that Miller is not retroactive, and 

therefore relief is not available on collateral review. The Attorney General also originally 

argued that because petitioner had a pending petition for recall of his sentence pursuant to 
9

section 1170, subdivision (d)(2) at the time he filed the instant habeas petition, his habeas 

petition was premature. Finally, the Attorney General argues that the sentencing hearing 

transcript shows that, in imposing the LWOP sentences, the trial court did exercise its 

discretion and did consider petitioner’s youth and social history as required by Miller.

Petitioner contends that Miller is retroactive. Petitioner further contends that the 

recall petition procedure provided by section 1170, subdivision (d)(2) does not provide a 

substitute for the resentencing process. Third, he contends that the trial court did not 

consider the requisite Miller factors at the original sentencing hearing.

C. Retroactivity of Miller4

We begin by discussing whether Miller is retroactive—that is, whether under 

Miller, habeas relief is available in a case that is no longer pending on direct appeal.

In Teague v. Lane (1989) 489 U.S. 288 (Teague), the United States Supreme Court 

set forth the test for determining when a new rule of constitutional law will be applied to 

cases on collateral review. The Teague court explained that “[r]etroactivity is properly 

treated as a threshold question, for, once a new rule is applied to the defendant in the case 

announcing the rule, evenhanded justice requires that it be applied retroactively to all 

who are similarly situated.” (Id. at p. 300.) According to Teague, “new rules should 

always be applied retroactively to cases on direct review, but . . . generally they should 

 

4

In In re Alatriste (2013) 220 Cal.App.4th 1232, review granted February 19, 

2014, S214652, and In re Bonilla (2013) 220 Cal.App.4th 1232, review granted 

February 19, 2014, S214960, the California Supreme Court may consider whether Miller

applies retroactively on habeas corpus to a prisoner who was a juvenile at the time of the 

commitment offense, depending on its resolution of other issues presented in those cases. 

(See also In re Rainey (2014) 224 Cal.App.4th 280, review granted June 11, 2014, 

S217567, briefing deferred; In re Wilson (2015) 233 Cal.App.4th 544, review granted 

April 15, 2015, S224745, briefing deferred.)

The United States Supreme Court recently granted a petition for writ of certiorari 

in Montgomery v. Louisiana, No. 14-280, which presents the question of whether Miller

should be applied retroactively. (See State v. Montgomery (2014) 141 So.3d 264, cert. 

granted Mar. 30, 2015, sub nom. Monterey v. Louisiana (2015) __ U.S. __.)
10

not be applied retroactively to criminal cases on collateral review.” (Id. at p. 303.) The 

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

that the government has a legitimate interest in having judgments become and remain 

final. (Ibid.)

The Teague court articulated two exceptions to the general rule of nonretroactivity 

for new rules in cases on collateral review. First, a new rule should be applied 

retroactively if it “places ‘certain kinds of primary, private individual conduct beyond the 

power of the criminal law-making authority to proscribe.’ ” (Teague, supra, 489 U.S. at 

p. 307.) Second, a new rule should be applied retroactively if it “requires the observance 

of ‘those procedures that . . . are “implicit in the concept of ordered liberty.” ’ ” (Ibid.)

In Schriro v. Summerlin (2004) 542 U.S. 348 (Schriro), the United States Supreme 

Court revisited Teague’s retroactivity analysis. The Schriro court defined the key 

distinction in the retroactivity analysis as whether the new rule is substantive or 

procedural.

Schriro held that substantive rules apply retroactively, and include those rules that 

(1) narrow the scope of a criminal statute by interpreting its terms or (2) alter the range of 

conduct or the class of persons covered by the statute and place them “beyond the State’s 

power to punish.” (Schriro, supra, 542 U.S. at p. 352.) Included within the second 

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

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

“ ‘significant risk’ ” that a defendant stands convicted of “ ‘ “an act that the law does not 

make criminal” ’ ” or “faces a punishment that the law cannot impose upon him [or her].”

(Ibid.) The Court explained that although it had sometimes referred to rules of this type 

as “falling under an exception to Teague’s bar on retroactive application of procedural 

rules, . . . they are more accurately characterized as substantive rules not subject to the 

bar.” (Ibid., fn. 4.)
11

The Schriro court further explained that new “rules of procedure” generally do not 

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

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

convicted with use of the invalidated procedure might have been acquitted otherwise. 

(Schriro, supra, 542 U.S. at p. 352.) The Court found that because of the speculative 

connection to innocence, retroactive effect is only given to a small set of “ ‘ “watershed 

rules of criminal procedure” ’ ” implicating the fundamental fairness and accuracy of the 

criminal proceeding. (Ibid.) This class of rules is extremely narrow; a watershed rule is 

one “ ‘without which the likelihood of an accurate conviction is seriously diminished.’ ”

(Ibid.)

5

The Attorney General contends that Miller announced a new procedural rule, not a 

new substantive rule, pointing out that the Miller court stated, “Our decision does not 

categorically bar a penalty for a class of offenders or type of crime—as, for example, we 

did in Roper[, supra, 543 U.S. 551] [barring death penalty for defendants who were under 

18 years of age at time of the offense] or Graham[, supra, 560 U.S. 48] [barring death 

penalty for juvenile offenders who did not commit homicide offenses]. Instead, it 

mandates only that a sentencer follow a certain process—considering an offender’s youth 

and attendant characteristics—before imposing a particular penalty.” (Miller, supra, 567 

U.S. at __ [132 S.Ct. 2455, 2471].) Some courts in other jurisdictions have agreed with 

 

5

Subsequent to Schriro, the United States Supreme Court further clarified the 

application of the Teague retroactivity test, holding that “the Teague decision limits the 

kinds of constitutional violations that will entitle an individual to relief on federal habeas, 

but does not in any way limit the authority of a state court, when reviewing its own state 

criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ 

under Teague.” (Danforth v. Minnesota (2008) 552 U.S. 264, 282.) Thus, state courts 

are “ ‘free to give greater retroactive impact to a decision than the federal courts choose 

to give.’ [Citations.]” (In re Gomez (2009) 45 Cal.4th 650, 655, fn. 3.) In this case, the 

parties have not discussed whether Miller should be given retroactive application under 

California law.
12

this reasoning and held that Miller is not retroactive to cases on collateral review. (See, 

e.g., People v. Carp (Mich. 2014) 852 N.W.2d 801, 825 (Carp); Chambers v. State

(Minn. 2013) 831 N.W.2d 311, 328; State v. Tate (La. 2013) 130 So.3d 829, 836-837 

(Tate); In re Morgan (11th Cir. 2013) 713 F.3d 1365, 1367-1368.)

Defendant points out that other courts have found Miller to be retroactive. (See 

In re Williams (D.C. Cir. 2014) 759 F.3d 66, 71-72; Evans-García v. United States

(1st Cir. 2014) 744 F.3d 235, 238-240; Johnson v. United States (8th Cir. 2013) 720 F.3d 

720, 720-721; In re Pendleton (3d Cir. 2013) 732 F.3d 280, 282-283 [prima facie 

showing]; People v. Davis (Ill. 2014) 6 N.E.3d 709, 722 (Davis); Diatchenko v. District 

Attorney for Suffolk Dist. (Mass. 2013) 1 N.E.3d 270, 281; State v. Mantich (Neb. 2014) 

842 N.W.2d 716, 731 (Mantich).) Those cases have generally observed that “ ‘[f]rom a 

broad perspective, Miller does mandate a new procedure,’ ” i.e., the determination of 

certain factors before a juvenile can be subjected to an LWOP sentence, but that for all 

practical purposes, “Miller places a particular class of persons covered by the statute—

juveniles—constitutionally beyond the State’s power to punish with a particular category 

of punishment—mandatory sentences of natural life without parole. [Citations.]” 

(Davis, supra, at p. 722, quoting State v. Ragland (Iowa 2013) 836 N.W.2d 107, 115

(Ragland); see also Mantich, supra, at p. 730, fn. omitted [“Miller ‘amounts to something 

close to a de facto substantive holding’ ”].) Such cases have also noted that “the cases 

used by the Court in Miller to support its holding have been applied retroactively on both 

direct and collateral review” and reasoned, “If a substantial portion of the authority used 

in Miller has been applied retroactively, Miller should logically receive the same 

treatment.” (Ragland, supra, at p. 116.)

Other courts considering Miller’s retroactivity have also divided on the 

significance of the fact that in the Miller companion case, Jackson v. Hobbs, which arose 

on state collateral review (see Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2465]), the 

Supreme Court did not distinguish the case from Miller itself, and vacated Jackson’s
13

sentence along with Miller’s sentence (id. at __ [132 S.Ct. 2455, 2475]). Some courts 

have declined to hold that the Supreme Court’s disposition of the Jackson case indicates 

that Miller is retroactive to all cases on collateral review on the basis that “the question 

whether Miller should be applied retroactively was never presented to the United States 

Supreme Court.” (Carp, supra, 852 N.W.2d at p. 830, fn. omitted; see also Tate, supra,

130 So.3d at p. 833, fn. 1.) Other courts have held that by granting relief to Jackson 

rather than distinguishing his case from Miller’s on the basis that it arose on collateral 

review, the Supreme Court signaled that Miller should be retroactively applied. (See 

Mantich, supra, 842 N.W.2d at p. 731, fn. omitted [noting that Miller “specifically 

adopted this policy in order to ensure that justice is administered evenhandedly” and that 

it would be incongruous “to refuse to apply the rule announced in Miller to a defendant 

before us on collateral review when the Court has already applied the rule to a defendant

before it on collateral review”]; Davis, supra, 6 N.E.3d at p. 722.)

We agree with the courts that have found Miller to be a new substantive rule rather 

than a new procedural rule, and we therefore conclude that Miller may retroactively be 

applied to cases on collateral review, such as petitioner’s case. The Miller case 

effectively “alter[ed] the range of conduct or the class of persons that the law punishes”

(Schriro, supra, 542 U.S. at p. 353), in that it barred LWOP sentences for juvenile 

homicide offenders unless the sentencing court determines, after a consideration of a 

number of case-specific substantive factors, that the defendant is “ ‘the rare juvenile

offender whose crime reflects irreparable corruption.’ [Citations.]” (Miller, supra, 567 

U.S. at __ [132 S.Ct. 2455, 2469].) Miller did not simply set forth a new rule regulating 

“the manner of determining the defendant’s culpability,” but a rule that sets forth the 

specific considerations to be made during a sentencing decision. (Schriro, supra, 542 

U.S. at p. 353.) Because petitioner was sentenced at a time when the prevailing case law 

required a presumption of LWOP, there is a “ ‘significant risk’ ” that petitioner “faces a 

punishment that the law cannot impose upon him.” (Id. at p. 352.)
14

We also agree with the courts finding it significant that Miller granted relief in 

the companion case, Jackson v. Hobbs, which arose on collateral review. While the 

Supreme Court did not analyze the issue, it did direct that the defendant in Jackson be 

given a new sentencing hearing. (See Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 

2475].) “There would have been no reason for the Court to direct such an outcome if it 

did not view the Miller rule as applying retroactively to cases on collateral review.” 

(Ragland, supra, 836 N.W.2d at p. 116.) And, as another out-of-state court noted, it 

would be incongruous “to refuse to apply the rule announced in Miller to a defendant 

before us on collateral review when the Court has already applied the rule to a defendant

before it on collateral review.” (Mantich, supra, 842 N.W.2d at p. 731; see also 

Falcon v. State (Fla. 2015) __ So.3d __, __ [2015 Lexis 534, *19-20] [“The patent 

unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest 

of their lives, based solely on when their cases were decided, weighs heavily in favor of 

applying the Supreme Court’s decision in Miller retroactively.”].)

In sum, based on our careful review of Miller, Gutierrez, and cases from other 

jurisdictions, and after consideration of the principles set forth in those cases with respect 

to LWOP sentencing for juvenile offenders, we conclude that Miller’s new rules 

concerning the imposition of LWOP sentences on juvenile homicide offenders are 

retroactive. We thus conclude that the Miller sentencing rules should apply to petitioner.

D. Effect of Petition for Recall of Sentence

We next turn to the question of whether the recall petition procedure provided by 

section 1170, subdivision (d)(2) provides a substitute for the resentencing process 

mandated by Miller.

Section 1170, subdivision (d)(2), enacted in 2012 (Stats. 2012, ch. 828, § 1) 

provides a procedural mechanism for resentencing to defendants who were under the age 

of 18 at the time of the commission of their offenses and who were given LWOP 

sentences. If the defendant has served at least 15 years of the LWOP sentence, he or she 
15

may “submit to the sentencing court a petition for recall and resentencing” (§ 1170, 

subd. (d)(2)(A)(i)), so long as the LWOP sentence was not imposed for an offense in 

which the defendant tortured the victim or an offense in which the victim was a public 

safety official (id., subd. (d)(2)(A)(ii)).

In the petition, the defendant must describe “his or her remorse and work towards 

rehabilitation.” (§ 1170, subd. (d)(2)(B).) The trial court “shall hold a hearing to 

consider whether to recall the sentence and commitment previously ordered and to 

resentence the defendant in the same manner as if the defendant had not previously been 

sentenced” if it “finds by a preponderance of the evidence that the statements in the 

petition are true.” (Id., subd. (d)(2)(E).) The statute enumerates a number of relevant 

factors that the trial court may consider in determining whether to grant a petition for 

resentencing. (Id., subd. (d)(2)(F).)6

 

6

The factors “include, but are not limited to, the following: [¶] (i) The defendant 

was convicted pursuant to felony murder or aiding and abetting murder provisions of law. 

[¶] (ii) The defendant does not have juvenile felony adjudications for assault or other 

felony crimes with a significant potential for personal harm to victims prior to the offense 

for which the sentence is being considered for recall. [¶] (iii) The defendant committed 

the offense with at least one adult codefendant. [¶] (iv) Prior to the offense for which the 

sentence is being considered for recall, the defendant had insufficient adult support or 

supervision and had suffered from psychological or physical trauma, or significant stress. 

[¶] (v) The defendant suffers from cognitive limitations due to mental illness, 

developmental disabilities, or other factors that did not constitute a defense, but 

influenced the defendant’s involvement in the offense. [¶] (vi) The defendant has 

performed acts that tend to indicate rehabilitation or the potential for rehabilitation, 

including, but not limited to, availing himself or herself of rehabilitative, educational, or 

vocational programs, if those programs have been available at his or her classification 

level and facility, using self-study for self-improvement, or showing evidence of remorse. 

[¶] (vii) The defendant has maintained family ties or connections with others through 

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

who are currently involved with crime. [¶] (viii) The defendant has had no disciplinary 

actions for violent activities in the last five years in which the defendant was determined 

to be the aggressor.” (§ 1170, subd. (d)(2)(F).)
16

If, after a hearing, the trial court decides to resentence the defendant, the court 

may consider the same enumerated criteria as well as “any other criteria that the court 

deems relevant to its decision, so long as the court identifies them on the record, provides 

a statement of reasons for adopting them, and states why the defendant does or does not 

satisfy the criteria.” (§ 1170, subd. (d)(2)(I).)

In Gutierrez, the court rejected the Attorney General’s argument that the 

“potential mechanism for resentencing” provided by section 1170, subdivision (d)(2) 

“mean[s] that the initial sentence ‘is thus no longer effectively a sentence of life without 

the possibility of parole.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1386.) The Gutierrez

court reasoned: “A sentence of life without parole under section 190.5[, subdivision ](b) 

remains fully effective after the enactment of section 1170[, subdivision ](d)(2). That is 

why section 1170[, subdivision ](d)(2) sets forth a scheme for recalling the sentence and 

resentencing the defendant.” (Ibid.)

The Gutierrez court further rejected the Attorney General’s claim that 

section 1170, subdivision (d)(2) “removes life without parole sentences for juvenile 

offenders from the ambit of Miller’s concerns because the statute provides a meaningful 

opportunity for such offenders to obtain release.” (Gutierrez, supra, 58 Cal.4th at 

p. 1386.) The court held that what Miller required for juvenile offenders sentenced to 

LWOP was not a “ ‘meaningful opportunity to obtain release’ ” but a sentencing court’s 

exercise of discretion “ ‘at the outset.’ ” (Ibid.)

In this case, the Attorney General originally argued that petitioner’s habeas 

petition was premature because the trial court could still have granted his section 1170, 

subdivision (d)(2) petition. The Attorney General now informs us that the trial court 

denied petitioner’s recall petition on April 3, 2015. As Gutierrez held, the recall petition 

procedure provided by section 1170, subdivision (d)(2) does not provides a substitute for 

the resentencing process mandated by Miller.
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E. Sentencing Record

Finally, we consider whether in imposing the LWOP sentences, the trial court in 

this case exercised its discretion and considered petitioner’s youth and social history, 

such that petitioner’s sentence should not be deemed cruel and unusual under Miller.

The Gutierrez court noted that remand for resentencing is required when a trial 

court is unaware of the scope of its discretionary powers “unless the record ‘clearly 

indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had 

been aware that it had such discretion.’ ” (Gutierrez, supra, 58 Cal.4th at p. 1391, 

quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) The Gutierrez court 

ordered resentencing in the two cases before it because in one case the trial court had 

expressly referred to the Guinn presumption in favor of LWOP while in the other case, 

although the trial court did not explicitly refer to that presumption, the prosecution’s 

sentencing memorandum did. “Absent evidence to the contrary, we presume that the trial 

court knew and applied the governing law,” which at the time included Guinn’s LWOP 

presumption. (Gutierrez, supra, at p. 1390.)

The trial court in this case sentenced petitioner in 1999, long before Miller was 

decided in 2012. The prosecution’s sentencing memorandum cited to the Guinn case. 

Petitioner argued that Guinn was wrongly decided, and he supported his request for a 

non-LWOP sentence with letters and evidence that he suffered from a mental illness. At 

the sentencing hearing the trial court did not mention Guinn or its presumption, but did 

set forth the factors it considered when imposing the LWOP sentences. These included, 

primarily, features of petitioner’s personality and behavior, including his explosiveness, 

defiance, defensiveness, and poor impulse control. The trial court found that petitioner 

had learned such behaviors from his mother and that petitioner’s personality problems 

were “the product of poor, indifferent and inadequate parenting.” Miller indicates that 

factors such as impetuosity are often attributable to youth, and that a dysfunctional home 

environment can mitigate a juvenile’s culpability, weighing against punishing a juvenile 
18

offender with LWOP. (Miller, supra, 567 U.S. at __ [132 S.Ct. 2455, 2468.) However, 

the trial court in this case appears to have considered these factors as weighing in favor of 

imposing an LWOP sentence. As such, the sentencing transcript does not clearly reflect 

that, as required by Miller, the trial court took “into account how children are different” 

from adults, and how juveniles have “greater prospects for reform.” (Id. at __ [132 S.Ct. 

2455, 2469 & 2464.)

We have carefully reviewed the record. The transcript of the sentencing hearing 

does not “clearly indicate” that the trial court would have reached the same result if it had 

applied the Miller factors. (Gutierrez, supra, 58 Cal.4th at p. 1391.) As in Gutierrez, the 

prosecutor cited Guinn as controlling authority for the proposition that an LWOP 

sentence was the presumptive sentence. In accord with Gutierrez, we presume the trial 

court followed and applied the law that governed at the time, and therefore we “cannot 

say with confidence what sentence [it] would have imposed absent the presumption.” 

(Ibid.) We will therefore remand this case for resentencing in accordance with the 

principles set forth in both Miller and Gutierrez.

IV. DISPOSITION

Petitioner’s sentence is vacated and the matter is remanded for resentencing.

___________________________________________

BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

__________________________

MÁRQUEZ, J.