Filed 1/14/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIZABETH LOZANO,

Defendant and Appellant.

 B263640

 (Los Angeles County Super. Ct. 

 No. NA023984)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard 

R. Romero, Judge. Reversed and remanded.

Post-Conviction Justice Project, University of Southern California, Gould School 

of Law, Michael J. Brennan and Heidi L. Rummel, for Defendant and Appellant. 

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Deputy Attorney General and Michael Katz, Deputy Attorney General, for 

Plaintiff and Respondent.

______________________
2

Defendant Elizabeth Lozano, when 16 years old, participated in the murder of 13-

year-old Tayde Vasquez. In 1996, Lozano was sentenced to life in prison without the 

possibility of parole (LWOP) after being convicted by jury of first degree murder with 

the special circumstance of murder during the commission of robbery. Based on the 

intervening decision in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 

L.Ed.2d 407] (Miller), and with the agreement of the prosecution, the trial court vacated 

the LWOP sentence and conducted a new sentencing hearing in 2015. At the new 

sentencing hearing, the court ruled inadmissible Lozano’s proffered evidence of her 

conduct in prison—initially incorrigible but for the most recent decade indicative of 

rehabilitation—and again sentenced Lozano to LWOP. Our Supreme Court in People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1389 (Gutierrez) held that, under Miller, “a sentencing 

court must consider any evidence or other information in the record bearing on ‘the 

possibility of rehabilitation’” before imposing an LWOP sentence on a juvenile who kills. 

We therefore conclude the trial court erred in excluding Lozano’s evidence of 

rehabilitation in prison, and reverse and remand for a new sentencing hearing. 

PROCEDURAL BACKGROUND

Lozano was convicted by jury of first degree murder (Pen. Code, § 187)1 and 

second degree robbery (§ 211). The jury found true a special circumstance allegation that 

the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17))

and that a principle was armed with a firearm (§ 12022, subd. (a)(1)). Lozano was 

sentenced to LWOP plus six years. On appeal, this court modified the judgment to 

require a section 654 stay of the punishment on the robbery conviction, but otherwise 

affirmed. (People v. Lozano (June 12, 1997, B106665 [nonpub. opn.].) A petition for 

review was denied.

 

1 Statutory references are to the Penal Code unless otherwise stated.
3

On May 21, 2013, Lozano filed a petition for writ of habeas corpus, arguing that 

her LWOP sentence violated the Eighth Amendment as interpreted in Miller. The district 

attorney agreed that Lozano was entitled to a new sentencing hearing, without conceding 

that the LWOP sentence was unconstitutional. The trial court vacated the original LWOP 

sentence, conducted a new sentencing hearing, and again sentenced Lozano to LWOP. 

This appeal follows.

STATEMENT OF FACTS FROM LOZANO’S PRIOR APPEAL

On January 26, 1992, defendant was 16 years old. Tayde Vasquez was 13 years 

old. Defendant was a member of the T-Town Flats street gang, which is associated with 

the Barrio Pobre street gang. Vasquez was not a gang member. Defendant came to 

Vasquez’s house and invited her to go out. Vasquez accepted. Vasquez was wearing a 

lot of jewelry. The two girls were met by Steven Green, Frankie Aragon, and Gabriel 

Littlejohn. Green and Aragon were members of the Eastside Longo street gang, a rival of 

Barrio Pobre. Littlejohn was not a gang member. 

The group went to the beach. Littlejohn asked Vasquez why defendant was 

associating with rival gang members. Vasquez replied that defendant was setting Green 

and Aragon up for an ambush. Littlejohn reported this information to Green. Green 

confronted defendant, who denied any such intent. Defendant feared reprisals if Vasquez 

were to inform defendant’s fellow gang members that she had been associating with rival 

gang members. Defendant threatened to take care of Vasquez. Aragon gave defendant a 

gun. Defendant stated she wanted to assault Vasquez and rob her of her jewelry. 

The group dropped Littlejohn off at his home and drove to a park. While Aragon 

waited at the car, Green and defendant walked into the park with Vasquez. Defendant 

told Green she wanted to rob Vasquez. Defendant demanded Vasquez’s jewelry. 

Defendant told Vasquez she was robbing her because she had informed on her. Vasquez 

refused to surrender her jewelry to defendant. Defendant fought with Vasquez and then 

shot her twice in the head at point blank range, killing her. Defendant and Green returned 
4

to the car. Defendant told Aragon that she had fought with Vasquez over the jewelry. 

After the murder, defendant and Green returned to Littlejohn’s house. Defendant had 

Vasquez’s jewelry and told Littlejohn that she had killed Vasquez when Vasquez had 

refused to surrender her jewelry. Aragon had someone dispose of the murder weapon. 

In separate proceedings, Green was convicted of the murder and robbery of 

Vasquez, and Aragon was convicted of being an accessory. Green testified that he alone 

had been responsible for the killing of Vasquez and he had taken her jewelry merely as an 

afterthought.

THE 2015 SENTENCING HEARING

Lozano filed a statement in mitigation of punishment prior to the 2015 sentencing 

hearing, supported by in excess of 300 pages of exhibits. The exhibits demonstrated that 

Lozano engaged in serious misconduct during her first four years in prison, including a 

conviction for conspiracy to transport a controlled substance resulting in a six-year prison 

sentence. Lozano did not receive any disciplinary violations in the following 15 years in 

prison. Among the exhibits Lozano proffered to show her amenability to rehabilitation 

were the following: Lozano earned her GED and an AA college degree; a laudatory 

declaration from a former warden of the California Institution for Women; various 

certificates of completion of vocational courses; participation in numerous self-help 

programs related to alcohol and substance abuse and coping skills; participation in 

programs involving the consequences of criminality on victims, participation and 

leadership in programs relating to juvenile offenders; election to the inmate council that 

works in conjunction with prison administration; participation in an outreach program to 

prevent juveniles from participating in crime, including personal communication with 

some participants; and over 30 laudatory comments from prison staff including 

descriptions of her transformation from an immature inmate to a person dedicated to 

helping others avoid the mistakes that lead to her incarceration. 
5

The prosecution filed a resentencing memorandum in support of an LWOP 

sentence, arguing in part that consideration of Lozano’s postconviction conduct was 

inappropriate at the new sentencing hearing. The prosecution also argued that Lozano 

had an alternative remedy of presenting the evidence in a petition for resentencing under 

section 1170, subdivision (d)(2),

2 which permits a juvenile sentenced to LWOP (with 

exceptions not relevant here) to petition the sentencing court for “recall and resentencing” 

after serving at least 15 years in prison where the defendant “has performed acts that tend 

to indicate rehabilitation or the potential for rehabilitation . . . .”

In oral argument before the trial court, the prosecution took the position that Miller

and Gutierrez preclude consideration of postconviction conduct on the issue of a juvenile 

killer’s amenability to rehabilitation. The prosecutor argued sentence should be imposed 

based on the circumstances present at the time of the initial sentencing hearing in 1996. 

Lozano’s counsel replied that Lozano was not opposed to the court looking at her poor 

behavior in prison, along with her later conduct demonstrating the potential for 

rehabilitation. The prosecutor expressed the view that the required resentencing 

“basically turns back the clock to the initial day of sentencing” and “post-sentence 

conduct by the defendant doesn’t come into play . . . .” The prosecutor continued,

“there’s another mechanism entirely where you can start looking at the inmate’s conduct, 

and that would be under [section] 1170 [subdivision] (d)(2).” 

Counsel for Lozano responded that the prosecutor’s approach “sort of undermines 

all the purposes of the rationale of Miller and Gutierrez.” The rationale for exclusion of 

evidence of bad conduct is not a matter of relevance, it is a recognition that a juvenile put 

 

2 Subject to circumstances not present in this case, a defendant who was under the 

age of 18 at the time of an offense resulting in a sentence of LWOP may petition the 

sentencing court for recall and resentencing with a statement that 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.” (§ 1170, subd. (d)(2)(B)(iv).)
6

in a position of hopelessness by an LWOP sentence is unlikely to rehabilitate, but that 

does not answer the question of whether there is a potential for rehabilitation. Counsel 

argued most cases involve little or no postconviction information, but Lozano has been in 

prison for nearly 20 years, and “the actual evidence of the rehabilitation has to be the 

most relevant and probative evidence available.” 

The trial court ruled that it was required “to go back in time” and sentence Lozano 

as the facts existed at the time of the original sentencing hearing in 1996. As a result, the 

court ruled all evidence of Lozano’s postconviction conduct in prison was inadmissible.

The trial court proceeded to the issue of what sentence should be imposed, first 

considering victim impact statements from members of Vasquez’s family on the issue of 

sentencing. Vasquez’s brother, Jose, spoke of how the pain of his sister’s murder did not 

go away and his belief that the original LWOP sentence was proper. Jose told the court 

that no one can understand the impact of a murder until it happens to a family member. 

Vasquez’s niece, Leanae, was just 18 months younger than Vasquez. There is no closure 

for her. She misses Vasquez, whom she described as a good person. Raymond, 

Vasquez’s brother, asked the court for justice for his sister. Vasquez’s sister, Sarah, 

spoke on her own behalf and for other family members. Sarah was incarcerated when 

Vasquez was killed and feels responsibility for not being there for her. She has gone to 

the park where the murder took place and has read the trial transcripts, trying to imagine 

what occurred. Sarah described the parts of her life, and her family’s life, that Vasquez 

would not share. She requested the original sentence be imposed again. 

Defendant presented three witnesses. Her cousin, Celia, explained that she had 

spent a great deal of time with Lozano before the murder. Lozano was the oldest sibling 

and she took care of her five younger brothers. Celia, like Lozano, was sexually 

molested by their uncle Alejandro. Lozano addressed the court, detailing her life history 

leading up to the murder of Vasquez, including physical abuse by her mother and sexual 

abuse by her uncle, having the responsibility from an early age to provide care for her 

five younger brothers, the separation of her parents, her poor adjustment to school, and 

turning to alcohol and a gang to cope with the issues she faced. Lozano explained how 
7

Vasquez was killed. Lozano said she fled to Mexico for several years after the murder 

before returning to the United States while pregnant. Lozano told the court she accepted 

responsibility for Vasquez’s murder. Richard Lozano, one of Lozano’s brothers, 

described the violent neighborhood in which the family lived. He corroborated Lozano’s 

statement regarding consistent physical abuse and her responsibility for raising her 

younger brothers. The family moved to Mexico to escape the dangers in the 

neighborhood.

After considering the arguments of counsel, the trial court stated that it understood 

its discretion and that there was no presumption in favor of an LWOP sentence. The 

court analyzed the case under the factors set forth in Miller. The court acknowledged 

Lozano’s age, her dysfunctional family, the neglect she suffered, her alcohol abuse, how 

she turned to a gang for support, and her flight to Mexico to avoid the gang and its 

dangers. The court noted Lozano’s lack of gang activity upon return to the United States. 

However, the court viewed Lozano as “the driving force here in the death of a very young

child; that the child in a way looked up to her and no doubt trusted her.” The court 

believed Lozano lured Vazquez to a place of ambush where the victim had no possibility 

of assistance. The court stated, “I do not see a possibility of rehabilitation,” and again 

sentenced Lozano to LWOP. 

DISCUSSION

Lozano makes two arguments on appeal. She first contends the LWOP sentence 

in this case violates the Eighth Amendment’s prohibition against cruel or unusual 

punishment. Second, Lozano argues the trial court’s categorical exclusion of evidence of 

postconviction behavior, including that demonstrating amenability to rehabilitation,

violates the Eighth Amendment. We conclude the second contention has merit, and 

therefore do not consider the first. The cause must be remanded for a new sentencing 

hearing in which the court considers Lozano’s evidence, as well as clarifying or rebuttal 

evidence offered by the prosecution. 
8

United States Supreme Court Authority Decided After Lozano’s Original Sentence

Lozano was sentenced to LWOP in 1996. The United States Supreme Court

subsequently issued a trio of decisions concerning the application of the Eight 

Amendment3to juvenile offenders.

Roper v. Simmons (2005) 543 U.S. 551, 578 (Roper) held that “[t]he Eighth and 

Fourteenth Amendments forbid imposition of the death penalty on offenders who were 

under the age of 18 when their crimes were committed.” Graham v. Florida (2010) 560 

U.S. 48, 82 (Graham) held that “[t]he Constitution prohibits the imposition of a life 

without parole sentence on a juvenile offender who did not commit homicide.” Graham

noted that “Roper established that because juveniles have lessened culpability they are 

less deserving of the most severe punishments.” (Id. at p. 68.) “[W]hen compared to an 

adult murderer, a juvenile offender who did not kill or intend to kill has a twice 

diminished moral culpability. The age of the offender and the nature of the crime each 

bear on the analysis.” (Id. at p. 69.)

“What the State must do, however, is give defendants like Graham some 

meaningful opportunity to obtain release based on demonstrated maturity and 

rehabilitation. It is for the State, in the first instance, to explore the means and 

mechanisms for compliance. It bears emphasis, however, that while the Eighth 

Amendment prohibits a State from imposing a life without parole sentence on a juvenile 

nonhomicide offender, it does not require the State to release that offender during his 

natural life. Those who commit truly horrifying crimes as juveniles may turn out to be 

irredeemable, and thus deserving of incarceration for the duration of their lives. The 

Eighth Amendment does not foreclose the possibility that persons convicted of 

nonhomicide crimes committed before adulthood will remain behind bars for life. It does 

 

3 The Eighth Amendment provides: “Excessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.”
9

prohibit States from making the judgment at the outset that those offenders never will be 

fit to reenter society.” (Graham, supra, 560 U.S. at p. 75.) 

“Graham deserved to be separated from society for some time in order to prevent 

what the trial court described as an ‘escalating pattern of criminal conduct,’ . . . but it 

does not follow that he would be a risk to society for the rest of his life. Even if the 

State’s judgment that Graham was incorrigible were later corroborated by prison 

misbehavior or failure to mature, the sentence was still disproportionate because that 

judgment was made at the outset. A life without parole sentence improperly denies the 

juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot 

override all other considerations, lest the Eighth Amendment’s rule against 

disproportionate sentences be a nullity.” (Graham, supra, 560 U.S. at p. 73.) 

Miller, supra, 132 S.Ct. at page 2460, 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.’” The Miller holding impacts persons 

such as Lozano, because “since People v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn), 

section 190.5(b)[4]has been construed by our Courts of Appeal and trial courts 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.) 

Gutierrez held, in part, that section 190.5, subdivision (b), properly construed, does not 

create a presumption in favor of LWOP. (Id. at pp. 1371-1372.)

The Miller court declined to declare all LWOP sentences unconstitutional for 

juveniles convicted of murder. “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 

 

4 Section 190.5, subdivision (b), provides as follows: “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.”
10

offender’s youth and attendant characteristics—before imposing a particular penalty.” 

(Miller, supra, 132 S.Ct. at p. 2471.) While not banning LWOP sentences for juveniles 

who kill, the court observed, “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.’ (Roper, [supra,] 543 

U.S. at [p.] 573; Graham, [supra,] 560 U.S. at [pp. 68-69].) 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, at p. 2469, fn. 

omitted.)

Miller identified the factors the sentencing court must take into account in 

determining whether a juvenile who killed falls within the “uncommon” case warranting 

LWOP as an initial sentence. (See Gutierrez, supra, 58 Cal.4th at pp. 1388-1389.) 

“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 inability to deal with police officers or prosecutors (including on 

a plea agreement) or his incapacity to assist his own attorneys. (See, e.g., Graham,

[supra,] 560 U.S. at [p. 78] (“[T]he features that distinguish juveniles from adults also put 

them at a significant disadvantage in criminal proceedings”); J.D.B. v. North Carolina

[(2011)] 564 U.S. ___, ___, 131 S.Ct. 2394, 2400-2401, 180 L.Ed.2d 310 (discussing 

children’s responses to interrogation). And finally, this mandatory punishment disregards 
11

the possibility of rehabilitation even when the circumstances most suggest it.” (Miller, 

supra, 132 S.Ct. at p. 2468.) 

California Supreme Court Application of Miller and Penal Code Section 1170, 

Subdivision (d)(2)

As noted above, Gutierrez held that section 190.5, subdivision (b), does not create 

a presumption in favor of LWOP for a juvenile defendant convicted of murder with 

special circumstances. (Gutierrez, supra, 58 Cal.4th at pp. 1371-1372.) This holding 

compelled a new sentencing hearing for Lozano, a point never contested by the 

prosecution.

The Attorney General argued in Gutierrez “that section 1170(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

. . . However, Graham spoke of providing juvenile offenders with a ‘meaningful 

opportunity to obtain release’ as a constitutionally required alternative to—not as an 

after-the-fact corrective for—‘making the judgment at the outset that those offenders 

never will be fit to reenter society.’ (Graham, [supra, 560 U.S.] at p. 75, 130 S.Ct. 2011, 

italics added.) . . . . Neither Miller nor Graham indicated that an opportunity to recall a 

sentence of life without parole 15 to 24 years into the future would somehow make more 

reliable or justifiable the imposition of that sentence and its underlying judgment of the 

offender’s incorrigibility ‘at the outset.’ (Graham, [supra,] at p. 75.) [¶] Indeed, the 

high court in Graham explained that a juvenile offender’s subsequent failure to 

rehabilitate while serving a sentence of life without parole cannot retroactively justify 

imposition of the sentence in the first instance: ‘Even if the State’s judgment that 

Graham was incorrigible were later corroborated by prison misbehavior or failure to 

mature, the sentence was still disproportionate because that judgment was made at the 

outset.’ (Graham, supra, 560 U.S. at p. 73, italics added.) By the same logic, it is 

doubtful that the potential to recall a life without parole sentence based on a future 
12

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. Consistent with Graham, Miller repeatedly 

made clear that the sentencing authority must address this risk of error by considering 

how children are different and how those differences counsel against a sentence of life 

without parole ‘before imposing a particular penalty.’ (Miller, 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.)” 

(Gutierrez, supra, 58 Cal.4th at pp. 1386-1387.)

The Gutierrez court rejected the argument that section 190.5, subdivision (b), 

violates the Eighth Amendment by allowing LWOP sentences without consideration of 

the sentencing factors in Miller. “Section 190.5(b) authorizes and indeed requires 

consideration of the Miller factors.” (Gutierrez, supra, 58 Cal.4th at p. 1387.) “In sum, 

we hold that the trial court must consider 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.’ (Miller, supra,

567 U.S. at p. ___, 132 S.Ct. at p. 2465.) To be sure, not every factor will necessarily be 

relevant in every case. For example, if there is no indication in the presentence report, in 

the parties’ submissions, or in other court filings that a juvenile offender has had a 

troubled childhood, then that factor cannot have mitigating relevance. But Miller

‘require[s] [the sentencer] 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.

___, 132 S.Ct. at p. 2469.)” (Gutierrez, supra, at p. 1390.)

Analysis

In light of Miller and Gutierrez, we conclude the trial court could not categorically 

exclude Lozano’s proffered evidence of postconviction rehabilitation. As Gutierrez,

supra, 58 Cal.4th at page 1390, interpreted Miller, “the trial court must consider all 
13

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’ (Miller, supra, 567 U.S. at p. ___, 132 S.Ct. at p. 

2465.)” All relevant evidence, in our view, includes what Lozano asserts is 15 years of 

rehabilitation in prison. Disregard of evidence of rehabilitation, under the circumstances 

presented here, is inconsistent with the focus required by Miller and Gutierrez.

The prosecution argued in the trial court that the following portion of Graham

supports the exclusion of all evidence of postconviction behavior in determining if a

juvenile should be sentenced to LWOP: “Even if the State’s judgment that Graham was 

incorrigible were later corroborated by prison misbehavior or failure to mature, the 

sentence was still disproportionate because that judgment was made at the outset.” 

(Graham, supra, 560 U.S. at p. 73.) The prosecutor reasoned that it would be inequitable 

to preclude evidence of incorrigible conduct, but permit introduction of evidence 

indicative of rehabilitation. The Graham court did not address whether positive 

postconviction behavior was admissible. We are skeptical that the court in Graham and 

Miller, which went to great lengths to emphasize the importance of considering 

amenability to rehabilitation before imposition of an LWOP sentence on a juvenile, 

would permit exclusion of evidence at a resentencing hearing mandated by Miller and 

conducted after nearly two decades of incarceration. In any event, the argument is 

inconsistent with the broad statement in Gutierrez, supra, 58 Cal.4th at page 1390, that 

all relevant evidence of amenability to rehabilitation must be considered at a sentencing 

hearing.

We reject the Attorney General’s argument that Lozano’s proper forum for 

introduction of evidence of postconviction rehabilitation is via a petition for resentencing 

under section 1170, subdivision (d)(2). Gutierrez effectively disposes of this contention 

in its recognition that amenability to rehabilitation must be considered at sentencing 

before imposition of an LWOP sentence. (Gutierrez, supra, 58 Cal.4th at pp. 1386-

1387.) Lozano does have a remedy under section 1170, subdivision (d)(2), but that 
14

remedy is not exclusive, nor is it a substitute for her Eighth Amendment right to a 

sentencing hearing considering amenability to rehabilitation in the first instance.

DISPOSITION

The sentence of life without the possibility of parole is reversed. The cause is 

remanded to the trial court with directions to hold a new sentencing hearing which 

includes consideration of Lozano’s postconviction efforts at rehabilitation, as well as 

admissible rebuttal evidence offered by the prosecution.

KRIEGLER, J. 

We concur: 

TURNER, P. J.

MOSK, J.