Filed 12/15/14 P. v. Spivey CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID WAYNE SPIVEY,

Defendant and Appellant.

 B252500

 (Los Angeles County

 Super. Ct. No. YA064306)

APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T. 

Millington, Judge. Remanded for resentencing. 

Edward H. Schulman, under appointment for the Court of Appeal, for Defendant 

and Appellant. 

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney 

General, Steven D. Matthews and Taylor Nguyen, Deputy Attorneys General, for 

Plaintiff and Respondent.

_______________________
2

David Wayne Spivey was convicted following a jury trial of first degree murder, 

shooting at an inhabited dwelling and conspiracy to commit murder with true findings on 

related firearm-use and criminal-street-gang enhancement allegations. The trial court 

sentenced Spivey, who was 17 years old at the time of the crimes and 22 years old when 

originally sentenced in November 2010, to an aggregate state prison term of 58 years to 

life: 25 years to life for first degree murder, plus 25 years to life for the firearm-use 

enhancement under section Penal Code 12022.53, subdivisions (d) and (e)(1),1plus the 

lower term of three years for shooting at an inhabited dwelling and an additional five 

years for the gang enhancement on that offense.2 

In Spivey’s prior appeal, People v. Spivey (May 22, 2012, modified June 18, 2012, 

B229312) (nonpub. opn.), we rejected several challenges to his sentence but remanded 

for resentencing in light of the trial court’s failure to impose a proper sentence on the 

count for shooting at an inhabited dwelling, explaining, “[W]e cannot tell from this 

record whether the court would have imposed the sentence on count three to run 

consecutively or concurrently had it realized the proper sentence was an indeterminate 

term of life in prison with a minimum parole eligibility of 15 years” rather than a 

determinate term of eight years.

On remand the trial court sentenced Spivey to an aggregate state prison term of 

65 years to life, electing to impose the sentence for shooting at an inhabited dwelling to 

run consecutively to the sentence for first degree murder. Spivey again appeals, arguing 

the new sentence is the functional equivalent of life without the possibility of parole and 

violates the Eight Amendment’s prohibition against cruel and unusual punishment

because it was imposed without considering the mitigating factors relating to the 

distinctive attributes of a juvenile offender identified in Miller v. Alabama (2012)

567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller), People v. Gutierrez (2014)

 

1

Statutory references are to the Penal Code.

2 The court stayed the sentence for conspiracy to commit murder pursuant to 

section 654. 
3

58 Cal.4th 1354 (Gutierrez) and People v. Caballero (2012) 55 Cal.4th 262 (Caballero). 

We remand once again for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to Spivey’s initial sentencing on November 1, 2010, the trial court heard 

argument from counsel and a statement from Spivey’s mother. The court advised the 

parties it had read and considered the probation report, the parties’ sentencing 

memoranda and 10 letters submitted on Spivey’s behalf. The parties stipulated no 

supplemental probation report was necessary. As discussed, the court sentenced Spivey 

to an aggregate state prison term of 58 years to life. 

In our original opinion in Spivey’s first appeal we determined the court had 

improperly imposed a consecutive eight-year sentence for shooting at an inhabited 

dwelling with a criminal street gang enhancement. The court had selected the lower term 

of three years and added the five-year enhancement pursuant to section 186.22, 

subdivision (b)(1)(B), for a serious felony. However, section 186.22, 

subdivision (b)(4)(B), specifies an alternate punishment of 15 years to life for certain 

crimes, including a violation of section 246 (discharging a firearm at an inhabited 

dwelling). Accordingly, we modified the judgment by replacing the eight-year 

consecutive term imposed by the trial court on that count with the proper indeterminate 

life term (that is, 15 years to life), and affirmed the judgment as modified. 

Spivey petitioned for rehearing, arguing in light of his youth and the trial court’s 

decision to impose the lower term of three years for shooting at an inhabited dwelling, the 

record was not clear whether the trial court would have imposed the sentence on that 

count to run consecutively or concurrently had it realized the proper sentence was an 

indeterminate term of 15 years to life. We agreed, modified our opinion and remanded 

the matter to the trial court with directions to exercise its discretion to impose the term for 

that count to run either concurrently or consecutively to the 50-year-to-life sentence 

previously imposed for first degree murder with the firearm-use enhancement.

On remand Spivey filed a new sentencing memorandum in which he urged the 

trial court to impose the term concurrently. Spivey argued imposition of the additional 
4

indeterminate life term to run consecutively would be excessive in light of his age and the 

resulting aggregate state prison sentence of 65 years to life would violate the Eighth 

Amendment’s prohibition on cruel and unusual punishment within the meaning of Miller, 

supra, 567 U.S. __ [132 S.Ct. 2455], Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 

2011, 176 L.Ed.2d 825] (Graham), and Caballero, supra, 55 Cal.4th 262. 

After considering Spivey’s memorandum, the trial court stated it believed a 

consecutive sentence was warranted for the reasons it had articulated at the original 

sentencing hearing in 2010. Without commenting on his Eighth Amendment argument, 

the court sentenced Spivey to an aggregate state prison term of 65 years to life.

DISCUSSION

1. Governing Legal Principles

a. The United States Supreme Court cases: Graham and Miller

The Eighth Amendment’s ban on cruel and unusual punishment prohibits 

imposition of a sentence that is grossly disproportionate to the severity of the crime. 

(Ewing v. California (2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2sd 108].)3 In 

Graham, supra, 560 U.S. 48, the United States Supreme Court held sentencing a juvenile 

to life without parole for a nonhomicide offense violates the Eighth Amendment’s 

prohibition of cruel and unusual punishment. (Id. at p. 82.) Central to this result was the 

Court’s appreciation for the “fundamental differences between juvenile and adult minds” 

and its recognition that juveniles are “more capable of change than are adults . . . .” (Id.

at p. 68.) 

The Supreme Court subsequently extended the reasoning of Graham to hold a 

mandatory sentence of life imprisonment without the possibility of parole for a juvenile 

convicted of murder also violates the Eighth Amendment. (Miller, supra, 567 U.S. at

p. __ [132 S.Ct. at pp. 2467-2468].) As the Court explained, such mandatory penalties 

“preclude[] consideration of [a juvenile’s] chronological age and its hallmark features—

 

3 The Eighth Amendment applies to the states. (Robinson v. California (1962) 

370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758]; Caballero, supra, 55 Cal.4th at p. 265, 

fn. 1.)
5

among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” 

(Id. at p. 2468.) The Court concluded Graham’s directive to consider the unique 

characteristics and vulnerabilities of juveniles is not “crime-specific” and its “reasoning 

implicates any life-without-parole sentence for a juvenile . . . .” (Id. at p. 2458.) Thus, 

although the Court did not categorically prohibit the punishment of life imprisonment 

without the possibility of parole for juvenile offenders convicted of murder, it held the

sentencing court in those cases must consider the juvenile’s age and youthful 

characteristics before imposing such a sentence. (Id. at pp. 2467, 2471.)4

b. The California Supreme Court’s decision in Caballeros

In Caballero, supra, 55 Cal.4th 262, 268-269, the California Supreme Court held a 

110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses (three 

gang-related attempted murders) was the functional equivalent of a life without parole 

sentence and, therefore, was subject to the constitutional constraints articulated in 

Graham and Miller. (Caballero, at pp. 268-269.) The Court rejected the argument a 

cumulative sentence for distinct crimes does not present an Eighth Amendment issue and 

held, when a juvenile is sentenced to minimum terms that exceed his or her life 

 

4 The Miller Court summarized the individual sentencing factors (the Miller factors) 

that should be considered by courts in sentencing juveniles: (1) the actual age of the 

offender and the “hallmark features” of youth, including “immaturity, impetuosity, and 

failure to appreciate risks and consequences”; (2) the “family and home environment” 

that surround the offender; (3) “the circumstances of the homicide offense, including the 

extent of [the juvenile offender’s] participation in the conduct and the way familial and 

peer pressures may have affected [the offender]”; (4) information that suggests whether 

the offender may have been charged with or convicted of a lesser offense but for the 

“incompetencies associated with youth—for example, [the offender’s] inability to deal 

with police officers or prosecutors (including a plea agreement) or [the offender’s] 

incapacity to assist [his or her] own attorneys”; and (5) “the possibility of rehabilitation.” 

(Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].) 

In Gutierrez, supra, 58 Cal.4th 1354, the California Supreme Court held 

section 190.5, subdivision (b), which authorizes the trial court, in its discretion, to impose 

a sentence of either life without possibility of parole or 25 years to life on a defendant 

who was 16- or 17-years old at the time he or she committed first degree murder with one 

or more special circumstances, “authorizes and indeed requires consideration of the 

Miller factors.” (Gutierrez, at p. 1387.) 
6

expectancy for nonhomicide offenses, the punishment is unconstitutional under Graham 

and Miller. (Caballero, at pp. 268-269.) As the Court explained, “[T]he state may not 

deprive [juveniles] at sentencing of a meaningful opportunity to demonstrate their 

rehabilitation and fitness to reenter society in the future.” (Id. at p. 268.) A sentencing 

court must consider mitigating circumstances before determining at which point juveniles 

can seek parole, including their age, whether they were a direct perpetrator or an aider 

and abettor, and their physical and mental development. (Ibid.) The Caballero Court 

also noted the United States Supreme Court in Miller “requires sentencers in homicide 

cases ‘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. 268, fn. 4.)

c. Section 3051

Responding to Graham, Miller and Caballero the California Legislature enacted 

Senate Bill No. 260 (2013-2014 Reg. Sess), adding section 3051 to the Penal Code

effective January 1, 2014 and creating a “parole eligibility mechanism” that allows 

minors sentenced to a lengthy determinate term or an indeterminate life term to secure 

their release on parole after serving a prescribed term of confinement if they can 

demonstrate they have “rehabilitated and gained maturity.” (See Stats. 2013, ch. 312, § 1 

[“[i]t is the intent of the Legislature to create a process by which growth and maturity of 

youthful offenders can be assessed and a meaningful opportunity for release 

established”].) Section 3051 specifically provides “any prisoner who was under 18 years 

of age at the time of his or her controlling offense” shall be provided a “[a] youth 

offender parole hearing . . . for the purpose of reviewing the [prisoner’s] parole 

suitability . . . .” (§ 3051, subd. (a)(1).) “A person who was convicted of a controlling 

offense that was committed before the person had 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 
7

board during his or her 25th year of incarceration at a youth offender parole hearing . . . .” 

(§ 3051, subd. (b)(3).)5

The Attorney General argues the enactment of section 3051 and Spivey’s 

eligibility for a parole hearing when he is in his early 40’s effectively cures any possible 

constitutional violation based on Spivey’s claim he is serving the functional equivalent of 

a sentence of life without parole without the sentencing court having analyzed his relative 

culpability using the Miller factors. Although this issue is currently before the California 

Supreme Court,

6

in Gutierrez, supra, 58 Cal.4th 1354, the Court recently rejected the 

assertion that section 1170, subdivision (d)(2)—providing a juvenile offender sentenced 

to life without the possibility of parole for murder may seek recall of his or her sentence 

after 15 to 24 years —“removes life without parole sentences for juvenile offenders from 

the ambit of Miller’s concerns because the statute provides a meaningful opportunity for 

 

5

Juvenile offenders with determinate sentences of any length are entitled to a youth 

offender parole hearing during their 15th year of incarceration. (§ 3051, subd. (b)(1).) 

Juvenile offenders sentenced to life terms of less than 25 years to life will participate in a 

youth offender parole hearing during their 20th year of incarceration. (§ 3051, 

subd. (b)(2).)

6

The California Supreme Court has granted review in a number of cases involving 

the effect, if any, of the enactment of section 3051 on the claim a de facto sentence of life 

without the possibility of parole violates the Eighth Amendment: In re Alatriste and 

Bonilla (2013) 220 Cal.App.4th 1232, review granted Feb. 19, 2014, S214652 (Alatriste), 

S214960 (Bonilla) (upholding 77-year-to-life and 50-year-to-life sentences in light of 

section 3051’s provision for parole hearings); People v. Martin (2013) 222 Cal.App.4th 

98, review granted Mar. 26, 2014, S216139 (sentence of two consecutive life terms 

constitutional given section 3051’s provision for a youth offender parole hearing); 

In re Heard (2014) 223 Cal.App.4th 115, review granted Apr. 30, 2014, S216772 (term 

of 80 years to life plus 23 years unconstitutional; matter remanded for resentencing); 

People v. Solis (2014) 224 Cal.App.4th 727, review granted June 11, 2014, S218757 

(court modified sentence to reflect defendant’s entitlement to a parole hearing after 

serving 25 years in prison); People v. Franklin (2014) 224 Cal.App.4th 296, review 

granted June 11, 2014, S217699 (section 3051 moots challenge to de facto life term of 50

years to life) and People v. Gonzalez (2014) 225 Cal.App.4th 1296, review granted 

July 23, 2014, S219167 (50 years to life term not unconstitutional because section 3051 

effectively modified the sentence to afford the defendant a parole date well within his life 

expectancy).
8

such offenders to obtain release.” (Gutierrez, at p. 1386.)7 Rather, the Court observed, 

“Miller repeatedly made clear that the sentencing authority must . . . consider[] how 

children are different and how those differences counsel against a sentence of life without 

parole ‘before imposing a particular penalty.’” (Id. at p. 1387.) Accordingly, the Court 

directed sentencing courts, in exercising their discretion, to consider at the outset of the 

hearing, “all relevant evidence bearing on the ‘distinctive attributes of youth’ discussed in 

Miller and how those attributes ‘diminish the penological justifications for imposing the 

harshest sentences on juvenile offenders’” before imposing a life without parole sentence. 

(Id. at pp. 1389-1390.) 

We believe the same rationale applies to cases that fall within the ambit of 

section 3051: Under Miller and Caballero it is the responsibility of the sentencing court 

to consider the differences between juveniles and adults at the time of imposing an actual 

life without parole sentence or its functional/practical equivalent. The opportunity for a 

parole hearing 25 years later based on the inmate’s conduct during an extended period of 

incarceration should not relieve the trial court of its constitutional obligation to consider 

the factors of youth and maturity when pronouncing judgment. (Cf. Gutierrez, supra, 

58 Cal.4th at pp. 1386-1387 [“it is doubtful that the potential to recall a life without 

parole sentence based on a future demonstration of rehabilitation can make such a 

sentence any more valid when it was imposed. If anything, a decision to recall the 

sentence pursuant to section 1170(d)(2) is a recognition that the initial judgment of

incorrigibility underlying the imposition of life without parole turned out to be 

erroneous”].) Indeed, as several of our colleagues have previously observed, because the 

Legislature is free to repeal section 3051, there is no guarantee the promise of a youth 

 

7

Section 1170, subdivision (d)(2), provides: “When a defendant who was under 

18 years of age at the time of the commission of the offense 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 for 

recall and resentencing.” 
9

offender parole hearing will be fulfilled when Spivey will be eligible to try to benefit 

from it. 

2. Remand for Resentencing Is Necessary

Spivey’s aggregate indeterminate sentence of 65 years to life is the functional 

equivalent of a sentence of life without parole within the meaning of Caballero, supra,

55 Cal.4th 262: He will be almost 83 years old at the time of his minimum parole 

eligibility date. (See People v. Mendez (2010) 188 Cal.App.4th 47, 63 [life expectancy of 

18-year-old American male is 76 years]; see also Note, How Long Is Too Long?: 

Conflicting State Responses to De Facto Life Without Parole Sentences After Graham v. 

Florida and Miller v. Alabama (2014) 82 Fordham L.Rev. 3439, 3460 [discussing Iowa 

Supreme Court decision ruling “under standard mortality tables, [juvenile offender’s] life 

expectancy [was] 78.6 years”].) Although Spivey’s natural life expectancy—based on 

various demographic factors—may exceed 83 years by a short period, Miller and

Caballero require a sentencing court to consider the mitigating factors relating to the 

distinctive attributes of a juvenile offender when imposing an aggregate sentence that, as 

here, may require him or her to spend all, or nearly all, of the rest of his or her life in 

prison. (See People v. Perez (2013) 214 Cal.App.4th 49, 57 [“[t]here is a bright line 

between LWOP’s and long sentences with eligibility for parole if there is some 

meaningful life expectancy left when the offender becomes eligible for parole”].) 

To be sure, as the Attorney General argues, when it originally sentenced Spivey in 

2010, the trial court considered Spivey’s age and criminal history, as reflected in the 

probation report, as well as the remarks of Spivey’s mother. Yet it did so without the 

benefit of the analysis in Miller, supra, 567 U.S. __ and Gutierrez, supra, 58 Cal.4th 

1354; and the probation report, which we have reviewed, did not include a discussion of 

all the pertinent Miller factors. When it resentenced Spivey in September 2013 following 

our remand, the court simply stated it was adopting its prior reasoning for imposing a 

consecutive sentence on count 3. Under these circumstances the proper course is to 

reverse the judgment with respect to the sentence imposed on Spivey for shooting at an 

inhabited dwelling for the benefit of a criminal street gang and to remand for sentencing 
10

on that count in accordance with Miller and Gutierrez. (See People v. Argeta (2012) 

210 Cal.App.4th 1478, 1482.)8

We express no opinion on how the trial court should weigh the factors discussed in

Miller and Gutierrez on remand or whether the term of 15 years for shooting at an 

inhabited dwelling for the benefit of a criminal street gang should be imposed to run 

consecutively or concurrently. 

DISPOSITION

The judgment is reversed with respect to the consecutive sentence imposed for 

shooting at an inhabited dwelling pursuant to section 186.22, subdivision (b)(4)(B) 

(count 3), and the matter remanded for resentencing as to that count in accordance with 

the views expressed in this opinion.

PERLUSS, P. J. 

We concur: 

ZELON, J. 

SEGAL, J.*

 

8 Miller, supra, 567 U.S. ___ was decided by the United States Supreme Court on 

June 25, 2012, shortly after we filed our modified opinion in Spivey’s initial appeal 

directing the trial court on remand to impose either a consecutive or concurrent 

indeterminate term of 15 years to life for shooting at an inhabited dwelling with a true 

finding the offense had been committed for the benefit of a criminal street gang. 

Caballero, supra, 55 Cal.4th 262 was decided by the California Supreme Court 

two months later. Although Spivey raised no Eighth Amendment claim at the time of his 

original sentencing or in his initial appeal to this court, he presented that issue to the trial 

court in his sentencing memorandum on remand, citing both Miller and Caballero. The 

Attorney General does not argue the issue has been forfeited. We agree.

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.