Filed 6/21/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

NORMAN WILLOVER,

Defendant and Appellant.

 H042316

 (Monterey County

 Super. Ct. No. SM980198)

I. INTRODUCTION

In 1999, defendant Norman Willover was sentenced to two consecutive terms of 

life without the possibility of parole (LWOP) for crimes he committed as a juvenile. In 

2014, defendant filed a petition for recall and resentencing pursuant to Penal Code 

section 1170, subdivision (d)(2).1 After a hearing, the trial court denied his resentencing 

petition. On appeal, defendant claims the trial court erroneously denied his petition based 

solely on the circumstances of his crimes and that the relevant factors weighed in favor of 

recall and resentencing. For reasons that we will explain, we will affirm the trial court’s 

order.

 

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

II. BACKGROUND

A. The Underlying Offenses

1. Facts

The following summary of defendant’s underlying offenses is taken from this 

court’s nonpublished opinion (People v. Willover (Oct. 19, 2000, H019899)), issued after 

he appealed from his convictions.2

In December of 1997, defendant, age 17, was living in a residential treatment 

center in Provo, Utah. One day, he left the treatment center without authorization. He 

bought a Ruger .22-caliber pistol from a teenager in Pleasant Grove, Utah. He then left 

for the Monterey area, with the gun in his black backpack. He stated that he planned to 

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

When defendant arrived in Monterey on January 31, 1998, he obtained 

ammunition for his gun and loaded it. Later that day, defendant got together with Joseph 

Manibusan, Adam Tegerdal, and Melissa Contreras. The four young people drove 

around the Monterey area in Tegerdal’s Mercury Cougar. Defendant had the gun, bullets, 

and clips in his backpack.

Defendant and Manibusan discussed robbing someone. Manibusan directed 

Contreras, who was driving, where to go. He told her to pull over near the Monterey 

Sports Center. Defendant and Manibusan left the vehicle with the gun, saying they had 

seen someone with a purse. They returned shortly, saying they could not find the person 

they had been looking for.

Manibusan then took over driving. He drove onto the Monterey Wharf, where 

Priya Mathews and Jennifer Aninger were drinking coffee and talking. Defendant and 

Manibusan discussed whether the women had a purse. Defendant yelled out to the

 

2 On our own motion, we take judicial notice of the prior opinion in People v. 

Willover, supra, H019899. (Evid. Code, § 452, subd. (d)(1).)
3

women, “Give me your money.” The women could not hear him, however. Defendant 

said something vulgar and then fired nine shots at the two women. Four bullets hit 

Mathews and two bullets hit Aninger.

Mathews was hit in her upper arm, thigh, and the middle of her back. The bullet 

that entered the middle of her back punctured her lungs, aorta, and heart. She died at the 

scene.

Bullets entered Aninger’s brain and left arm but she survived. She had three 

operations on her brain, and as a result of the shooting she lost her senses of smell and 

taste. She had no use of her left arm until after surgery several months later, which 

enabled her to regain only some use of the arm.

After defendant shot Mathews and Aninger, Manibusan drove the car to 

Tegerdal’s house, where the group got into Tegerdal’s Chevrolet Monte Carlo in order to 

escape police detection. Along the way, Manibusan told defendant that he “wanted his 

turn.”

Manibusan again drove. He handled defendant’s pistol and asserted that he 

wanted to find someone to rob. He drove to Salinas and then to Seaside, where he 

noticed Frances Olivo walking on the sidewalk.

Defendant asked if Manibusan was going to rob Olivo. Manibusan said yes, drove 

the car up to Olivo, and motioned her over. Manibusan shot at Olivo about six times, 

hitting her with three bullets. The bullets entered Olivo’s breast, chest, and shoulder. 

She died at the scene.

On February 4, 1998, a few days after the shootings, defendant gave his backpack 

to a friend. The gun, clips, and bullets were inside the backpack. Defendant told his 

friend that the gun was “heated,” meaning it was stolen or had been used in a crime. 

Defendant was arrested that same day.
4

2. Convictions and Jury Findings

Defendant was convicted of first degree murder of Mathews and first degree 

murder of Olivo (§ 187, subd. (a)), attempted premeditated murder of Aninger (§§ 664, 

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

officer (§ 148.9, subd. (a)). The charges of first degree murder were brought on the 

theory that they were “perpetrated by means of discharging a firearm from a motor 

vehicle, intentionally at another person outside of the vehicle with the intent to inflict 

death.” (§ 189.)

The jury found true three 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 that 

defendant 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).

3. Sentencing

At defendant’s sentencing hearing, held on April 2, 1999, the prosecutor argued 

that LWOP was the presumptive sentence for a special circumstance murder committed 

by a 16- or 17-year-old juvenile, pursuant to section 190.5, subdivision (b). The 

prosecutor advocated for an LWOP sentence, noting that two psychiatric evaluators had 

concluded defendant was faking symptoms of a mental illness and that a third evaluator 

had referred to defendant as “the most cold blooded, callous killer.” The prosecutor 

argued that if defendant was given a sentence other than LWOP, “he will come back 

again looking for someone to kill.”

Defendant’s trial counsel argued that defendant suffered “from a mental condition 

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

had “little or no ability to control his own aggression.” Defendant’s trial counsel argued 
5

that the crimes “were committed in so close a period of time as to indicate a single period 

of aberrant behavior” and that defendant had “played a minor or passive role” in the 

second murder. Defendant’s trial counsel noted that defendant had been diagnosed with

antisocial personality disorder and that antisocial behavior 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.” Defendant’s trial counsel 

requested the trial court impose a sentence that would give defendant “the opportunity 

to be released from custody at some time during his life if he can 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 defendant’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 

defendant, 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 defendant as 

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

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

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

defendant’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 [defendant] must 

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

The trial court ultimately sentenced defendant 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.
6

4. Appeal and Habeas Petitions

Defendant appealed following his convictions, and this court modified the 

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

life with the possibility of parole instead of 15 years to life.

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

trial court, alleging that his LWOP sentence violated the Eighth Amendment. That 

petition was denied on January 13, 2014.

On March 10, 2014, defendant filed a petition for writ of habeas corpus in this 

court, again arguing that his LWOP sentence violated the Eighth Amendment. This court 

issued an order to show cause and an order vacating defendant’s sentence and remanding 

the matter for resentencing, holding that defendant was entitled to a new sentencing 

hearing under Miller v. Alabama (2012) 567 U.S. __ [132 S. Ct. 2455] (Miller). 

However, the California Supreme Court granted review in that case. (In re Willover

(2015) 235 Cal.App.4th 1328, review granted June 24, 2015, S226523 [further action 

“deferred pending consideration and disposition of a related issue in In re Alatriste, 

S214652, and In re Bonilla, S214960 . . . , or pending further order of the court”].)

B. The Resentencing Petition

1. Section 1170, Subdivision (d)(2)

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

provides a procedural mechanism for resentencing of 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 

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)).
7

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 factors that 

the trial court may consider, in the exercise of its discretion, when determining whether to 

grant a petition for recall and resentencing. (Id., subd. (d)(2)(F) & (G).)

The factors that may be considered in determining whether to grant a petition for 

recall and resentencing “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 
8

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).)

If the trial court denies the petition, “the defendant may submit another petition for 

recall and resentencing to the sentencing court when the defendant has been committed to 

the custody of the department for at least 20 years.” (§ 1170, subd. (d)(2)(H).) The 

defendant may also file another petition after having served 24 years. (Ibid.)

2. Defendant’s Petition

On April 9, 2014, defendant filed a petition for recall and resentencing pursuant to 

section 1170, subdivision (d)(2).

Defendant’s petition included a narrative statement of remorse and work towards 

rehabilitation. In the statement, defendant described how he was “very much a child at 

the time of these crimes” and how, while in prison, he had come to realize that he needed 

to “acknowledge and take responsibility for [his] poor choices as a youth and to admit 

[he] had some problems.” He apologized to the victims and their families and to the 

community. Defendant described having gained “a better understanding and insight” into 

how his drug addiction had contributed to his involvement in the crimes. Defendant 

described prison life and the activities he had engaged in while incarcerated, which 

included church services, art and creative writing classes, and various jobs. Defendant 

noted that he had not had any CDCR-115 disciplinary reports for violent activities in 

which he was the aggressor, and that he had maintained family ties.

Defendant included the following documents with his petition: a “chrono” 

indicating he had been attending bi-weekly Alcoholics Anonymous and Narcotics 

Anonymous meetings for the past six months; a certificate from a prison ministry 

indicating his completion of a correspondence course; letters of recommendation from 

his supervisors at the prison law library; certificates of achievement showing his 

completion of vocational machine shop classes; a copy of the associates degree in Bible 

Studies he had earned and a copy of his certificate of Bible Missions; documents showing 
9

he was a member of the Man’s Advisory Council; a memorandum about the Enhanced 

Program Facility program; and “laudatory chronos” from 13 correctional officers, two 

correctional sergeants, two correctional lieutenants, a captain’s secretary, and a chaplain.

3. The People’s Initial Reply

The People’s initial reply to the petition was filed on August 22, 2014. The 

People acknowledged that defendant was eligible for a hearing and entitled to the 

appointment of counsel.

4. Defendant’s Brief

Through counsel, defendant filed a “Resentencing Brief” on January 2, 2015. 

Defendant noted that there was not yet any case law concerning the application of the 

section 1170, subdivision (d)(2)(F) factors. Defendant argued that under Miller, supra, 

567 U.S. __ [132 S. Ct. 2455] and People v. Gutierrez (2014) 58 Cal.4th 1354

(Gutierrez), “LWOP sentences for juvenile offenders should be meted out only in the 

rarest of circumstances” and that the prosecution should have the burden to show that 

defendant was “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’ ”

Defendant argued that seven of the eight factors specified in section 1170, 

subdivision (d)(2)(F) applied to him.3 First, defendant’s convictions were “pursuant to 

felony murder or aiding and abetting murder provisions of law.” Second, defendant did

not have prior juvenile felony adjudications for assault or other felony crimes with a 

significant potential for personal harm to victims. Third, defendant committed the 

offense with at least one adult codefendant. Fourth, there was evidence that as a child, 

defendant had been “shuttled from home to home, placement to placement, and was 

suffering from psychological trauma and significant stress.” Fifth, defendant’s 

 

3 Defendant did not argue that there was evidence of the eighth factor: that he 

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.” (See § 1170, subd. (d)(2)(F)(v).)
10

rehabilitative efforts in prison and Statement of Remorse showed that he was remorseful. 

Sixth, defendant had maintained family ties or connections with others through letter 

writing, calls, or visits, or had eliminated contact with individuals outside of prison who 

are currently involved with crime; evidence of this would be presented at the hearing.

Seventh, defendant had no disciplinary actions for violence in the last five years; his last 

one had been in 2007, and he had not been deemed to be the aggressor.

A psychiatric discharge summary from the Heritage Center in Utah was attached 

to defendant’s brief. Defendant had entered the facility on November 16, 1997 and had 

absconded on December 15, 1997. His diagnoses included schizoaffective disorder, 

conduct disorder, and polysubstance dependence.

A report written by correctional consultant Daniel J. Fulks was also attached to 

defendant’s brief. Fulks had reviewed defendant’s prison files and found no evidence of 

criminal or gang activity, which is rare for those serving LWOP sentences. Defendant 

had only nine disciplinary reports, again “far better” than most inmates serving LWOP 

sentences. LWOP inmates also rarely participate in higher education courses or self-help 

groups. Defendant was deemed to be a “Low Risk” to the public pursuant to a risk 

assessment conducted by the Department of Corrections and Rehabilitation.

5. The People’s Opposition

On January 2, 2015, the People filed opposition to defendant’s petition. The 

People reviewed the factors listed in section 1170, subdivision (d)(2)(F). The People 

emphasized that defendant was “the actual shooter” in the Mathews murder and that 

defendant intended to kill her. The People asserted defendant was not convicted of that 

murder based on a felony-murder theory even though a felony murder special 

circumstance allegation was found true. Although he was not the actual shooter in the 

Olivos murder, he was “the leader of th[e] joint expedition” to commit robberies and 

shoot victims who did not comply and he had supplied the gun and bullets used to kill 

Olivos. The People acknowledged that defendant had not suffered any felony juvenile 
11

adjudications before the murders and that defendant had committed the murders with an 

adult codefendant, Manibusan, who had been sentenced to death. (See People v. 

Manibusan (2013) 58 Cal.4th 40.)

The People were “unaware” of evidence showing that defendant suffered from 

any psychological or physical trauma or significant stress at the time of the murders. 

Defendant had been found competent to stand trial, and psychiatric evaluators had 

concluded he was sane at the time of the murders. One examiner thought it was likely 

that defendant was fabricating symptoms of a severe psychiatric disorder in an effort to 

avoid a long prison term.

The People acknowledged that defendant had taken advantage of programs while 

incarcerated in prison and that defendant had no disciplinary history in the past five years 

for violent actions. The People did not know whether defendant had maintained family 

ties or eliminated contact with criminals outside of prison.

The People asserted that the trial court should consider that defendant had been 

“convicted of multiple murders and one count of attempted murder,” that the two murders 

had involved “great violence” and had been “particularly viscous [sic] and callous,” and 

that defendant had induced others to participate in the crimes and taken a position of 

leadership or dominance. The People also asserted that the trial court should consider the 

feelings of the surviving victim and the victims’ families.

The People’s opposition included the following attachments: the information 

showing all of the charges against defendant and Manibusan; this court’s opinion 

affirming defendant’s convictions and modifying the judgment; the transcript from 

defendant’s sentencing hearing; bill analyses of Senate Bill 9, which enacted 

section 1170, subdivision (d)(2); the probation report prepared in defendant’s case; a 

copy of the California Supreme Court’s opinion affirming the judgment in Manibusan’s 

case; two 1998 psychiatric evaluations of defendant; and letters from Aninger and 

relatives of Aninger and Mathews.
12

6. The Hearing

On January 9, 2015, the trial court held a hearing on defendant’s petition for 

recall and resentencing. Defendant’s counsel indicated he was prepared to submit on 

the briefing. The trial court asked if there was evidence that defendant had maintained 

family ties. Defendant’s counsel noted that several members of defendant’s family were 

in court. Defendant’s stepfather and mother introduced themselves, and defendant’s 

stepfather indicated that “church members and family friends” were also present.

The trial court noted it had reviewed the parties’ papers, including the attachments. 

The court referenced defendant’s “rehabilitative efforts” including the various groups 

and programs he had participated in. The court also referenced the lack of “violent 

disciplinary actions” taken against defendant and discussed the correctional consultant’s 

report. The trial court offered defendant the opportunity to submit any other argument or 

evidence relating to the statutory factors or the “catch-all factor.”

Defendant’s counsel argued that the People’s opposition focused “entirely upon 

the circumstances of the crime,” but claimed, “this factor is of minimal importance in 

weighing whether or not [defendant] should be resentenced.” Defendant’s counsel 

argued that the issue was not whether defendant’s crimes were heinous but whether or not 

defendant was “irretrievably corrupt or depraved so that there is no possibility that he 

could be rehabilitated.”

The prosecutor responded by arguing that the nature of defendant’s crimes “has to 

be a factor,” that the trial court had “discretion to decide how much of a factor it is,” and 

that the facts of the crimes should be “a significant factor” in this case.

The trial court noted that it had read some of the pertinent case law and discussed 

Miller, supra, 567 U.S.__ [132 S. Ct. 2455], in which the defendant had been “a true 

aider and abettor” and had been under the influence at the time of the crimes. The trial 

court indicated it did not believe the circumstances of defendant’s crimes were similar to 

those of the Miller defendant. The trial court discussed the evidence defendant knew that 
13

Manibusan was going to shoot Olivo, and the evidence that defendant intended to kill 

Mathews and Aninger. The trial court acknowledged defendant’s “efforts at 

rehabilitation” and “good conduct while in custody.” The trial court again distinguished 

defendant’s case from the Miller case, however, with respect to the evidence of childhood 

difficulties, noting that there was no evidence defendant’s parents had abused him or used 

drugs. The trial court agreed with the prosecutor that although an adult codefendant was 

involved, defendant was “really the leader of this crime spree,” a fact that distinguished 

the instant case from a case involving an “impressionable” juvenile who was following 

an adult’s lead. The trial court also noted that at the time of the crimes, defendant was 

“only four months away from turning 18.”

Defendant’s counsel conceded “the heinous nature of the crimes” and, “for 

purposes of argument,” that defendant had been the ringleader. Defendant’s counsel 

argued that the relevant question was whether defendant was “redeemable,” and he 

argued that defendant had indeed shown “that he is capable of rehabilitation.”

The trial court asked defendant’s counsel to address the evaluations of defendant 

introduced during his original trial proceedings, one of which described defendant as 

having a remarkably high degree of sociopathy. The trial court asked defendant’s

counsel how that description reflected on defendant’s ability to rehabilitate. Defendant’s 

trial counsel asserted that “[m]any people age out” of antisocial personality disorder, and 

noted that the evaluator had not said that defendant had no chance of rehabilitation. 

Defendant’s trial counsel pointed to defendant’s good conduct in prison as evidence that 

defendant was not a sociopath.

The trial court noted that even if it denied defendant’s petition, defendant could 

bring another petition and show further rehabilitation. The court took the matter under 

submission.
14

7. The Trial Court’s Ruling

On April 3, 2015, the trial court issued a written ruling denying defendant’s 

petition for recall and resentencing. The trial court noted that it had “considered each of 

the factors listed in section 1170, subdivision (d)(2)(F).” The court specified its findings 

as to each factor.

First, “the felony murder and aiding and abetting circumstances do not compel 

mitigation of [defendant’s] sentence.” The record indicated that defendant had intended 

to kill Mathews, and although the jury found true a felony murder special circumstance, 

the case did not involve an inadvertent killing during a felony. Defendant was also “a 

fully informed aider and abettor” in the killing of Olivo, since defendant had given 

Manibusan the gun when Manibusan asked for “his turn” after the shootings defendant 

had personally committed.

Second, although defendant was on juvenile probation at the time of his crimes, 

he had no prior “juvenile felony adjudications for assault or other felony crimes with a 

significant potential for personal harm to victims.”

Third, although Manibusan was an adult, he “did not appear to influence” 

defendant, and defendant was “not simply a ‘follower.’ ” Rather, defendant had provided 

the gun and ammunition to Manibusan, and defendant had committed the initial 

shootings.

Fourth, “[u]nlike many youthful offenders,” defendant had the support of his 

family prior to and at the time of the crimes, and he had not been abused.

Fifth, the shootings were not attributable to “cognitive limitations due to mental 

illness or developmental disabilities,” although there was evidence that defendant had 

used methamphetamine and suffered from personality disorders. In the psychiatric 

evaluations, defendant had been described as a dangerous sociopath, and there was 

insufficient evidence to indicate that defendant had “overcome these dangerous 

tendencies.”
15

Sixth, defendant had “performed several acts that tend to indicate rehabilitation, or 

the potential for rehabilitation.” He had participated in self-help groups, taken on roles of 

responsibility in prison, and demonstrated “positive behavior,” resulting in a lowered 

classification level.

Seventh, defendant had maintained a connection with his family, and family 

friends had been present at the hearing. There was no evidence defendant had contact 

with anyone involved in crime outside of prison.

Eighth, defendant had no disciplinary history for “violent actions” within the past 

five years.

The trial court then addressed defendant’s argument that cases with LWOP 

sentences will almost always involve “heinous, atrocious and cruel” crimes. The trial 

court found that defendant’s crimes were “particularly viscous [sic], cruel and callous,” 

since Mathews and Aninger were not given a chance to respond to the robbery, there 

was no attempt to rob Olivo, all three victims were strangers who did nothing to provoke 

defendant, and all three victims were “caught completely unaware.” In addition, 

defendant was “not a minor or a passive participant” but rather “the leader of the criminal 

enterprise that day.”

III. DISCUSSION

Defendant contends the trial court erred in denying his petition for recall and 

resentencing. He claims the trial court erroneously denied the petition based solely on 

the circumstances of his crimes and that the relevant factors weighed in favor of recall 

and resentencing.

A. Case Law

1. Miller v. Alabama

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 
16

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

at p. __ [132 S.Ct. 2455, 2460].)

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

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

48 [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, at p. __ [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 p. __ [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 
17

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

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

and 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.)

2. People v. Gutierrez

In Gutierrez, supra, 58 Cal.4th 1354, 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, the issue arose on direct appeal, and “[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.)

The Gutierrez court rejected the Attorney General’s argument that a remand 

was unnecessary because the “potential mechanism for resentencing” provided by 
18

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, 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.’ ” (Gutierrez, supra, at p. 1386.)

3. Montgomery v. Louisiana

In Montgomery v. Louisiana (2016) __ U.S. __ [136 S.Ct. 718] (Montgomery), the 

United States Supreme Court held that Miller must be given retroactive application. The 

petitioner in that case had murdered a deputy sheriff when he was 17 years old. 

(Montgomery, supra, at p. __ [136 S.Ct. 718, 725].) He was convicted of murder and 

ultimately given an automatic LWOP sentence. (Id. at p. __ [136 S.Ct. 718, 725-726].)

After the Miller decision, the Montgomery petitioner sought collateral review of 

his mandatory LWOP sentence. (Montgomery, supra, __ U.S. at p. __ [136 S.Ct. 718, 

726.) The trial court refused to grant relief on the ground that Miller was not retroactive 

on collateral review. (Montgomery, supra, at p. __ [136 S.Ct. 718, 727].) The United 

States Supreme Court reversed, holding that Miller had announced “a new substantive 

rule that, under the Constitution, must be retroactive.” (Montgomery, supra, at p. __ 

[136 S.Ct. 718, 732].)
19

The Montgomery court addressed the concern that giving Miller retroactive 

effect would “require States to relitigate sentences . . . in every case where a juvenile 

offender received mandatory life without parole.” (Montgomery, supra, __ U.S. at p. __ 

[136 S.Ct. 718, 736].) The court explained: “A State may remedy a Miller violation by 

permitting juvenile homicide offenders to be considered for parole, rather than by 

resentencing them. [Citation.] Allowing those offenders to be considered for parole 

ensures that juveniles whose crimes reflected only transient immaturity—and who have 

since matured—will not be forced to serve a disproportionate sentence in violation of the 

Eighth Amendment.” (Id. at p. __ [136 S.Ct. 718, 736].)

B. Analysis of the Trial Court’s Ruling

Defendant contends the trial court erroneously denied his petition for recall and 

resentencing “based solely on the facts of the life crimes.” The record does not support 

this claim. The transcript of the hearing on defendant’s petition for recall and 

resentencing shows that the trial court considered defendant’s “rehabilitative efforts” 

and favorable prison record. The trial court also indicated it had considered whether 

defendant had childhood difficulties and whether defendant had been influenced by an 

adult. Additionally, the trial court referenced the fact that defendant had been very close 

to 18 years old at the time of the offenses. The trial court’s written order also reflects 

that the trial court considered all eight of the factors set forth in section 1170, 

subdivision (d)(2)(F), and that the trial court found four of the factors applied to 

defendant.

Defendant also argues that a majority of the factors listed in section 1170, 

subdivision (d)(2)(F) favored recall and resentencing. In essence, defendant is arguing 

that the trial court abused its discretion by finding certain factors were not applicable to 

defendant and in failing to accord appropriate weight to the applicable factors. (See 

§ 1170, subd. (d)(2)(G) [in considering a petition for recall and resentencing, the trial 

court exercises discretion “in consideration of” the enumerated criteria].) We proceed to 
20

review the trial court’s findings for abuse of discretion, beginning with the eight factors 

listed in section 1170, subdivision (d)(2)(F).

The first factor is “[t]he defendant was convicted pursuant to felony murder or 

aiding and abetting murder provisions of law.” (§ 1170, subd. (d)(2)(F)(i).) The trial 

court correctly found that defendant had not been convicted of the Mathews murder 

based on a felony murder theory. Although a felony-murder special circumstance was 

found true (see § 190.2, subd. (a)(17)), the underlying murder itself was not prosecuted 

on a felony-murder theory. (See People v. Kainzrants (1996) 45 Cal.App.4th 1068, 

1080 [felony-murder special circumstance is not coextensive with felony-murder theory

of first degree murder].) The trial court also found that even though defendant had been 

convicted of the Olivo murder based on an aiding and abetting theory, defendant was 

“a fully informed aider and abettor” who had supplied the gun to Manibusan after 

shooting Mathews and Aninger. The trial court’s determination—that this factor did 

not weigh in favor of recall and resentencing—is consistent with the legislative intent 

concerning this factor. An analysis of Senate Bill 9, which enacted section 1170, 

subdivision (d), referenced the fact that many juveniles “were convicted of felony murder 

or for aiding and abetting because they acted as lookouts or participated in another felony 

during which the murder unexpected[ly] occurred.” (Sen. Com. on Public Safety, 

Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.) as introduced Dec. 6, 2010 for 

hearing on Apr. 5, 2011.) As defendant did not act as a lookout or have a similarly 

minor role in the Olivo murder, but provided the gun and ammunition to the shooter, the 

trial court’s finding was not an abuse of discretion.

The second factor is “[t]he 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.” (§ 1170, 

subd. (d)(2)(F)(ii).) The trial court essentially found that this factor applied to defendant: 
21

the trial court noted that defendant had been on juvenile probation at the time of the 

offenses but that he had no juvenile felony adjudications for assault or similar crimes.

The third factor is “[t]he defendant committed the offense with at least one adult 

codefendant.” (§ 1170, subd. (d)(2)(F)(iii).) The trial court found that this fact was 

technically true, but that it did not weigh in favor of recall and resentencing because the 

adult (Manibusan) “did not appear to influence” defendant. The trial court noted that 

defendant was “not simply a ‘follower’ ” but rather the person who provided the gun and 

ammunition and the person who had committed the initial shootings. The trial court’s 

finding is consistent with the legislative intent behind this factor. The legislative history 

of Senate Bill 9 shows that the Legislature was concerned about juveniles who were 

sentenced to LWOP for crimes they committed while “ ‘acting under the influence of an 

adult.’ ” (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 9 (2011-2012 Reg. 

Sess.) as amended May 27, 2011 for hearing on July 5, 2011, p. 11.) As the record 

supports the trial court’s finding that defendant was not acting under the influence of an 

adult, the trial court did not abuse its discretion by determining that this factor did not 

weigh in favor of recall and resentencing.

The fourth factor is “[p]rior 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.” (§ 1170, 

subd. (d)(2)(F)(iv).) Defendant contends that the record is “replete with evidence that 

from age 11 until he committed the life crimes, [he] was shuttled from home to home, 

placement to placement, and was suffering from psychological trauma and significant 

stress.” He cites to the 1997 discharge summary from the Heritage Center in Utah as 

support for his claim. That document reflects that defendant was terminated from two 

group homes and transferred to the Heritage Center from juvenile hall. The discharge 

summary also reflects that defendant “described his difficulties as family problems”

and described having a “strained relationship” with his mother and her boyfriend. The 
22

discharge summary indicates that defendant “had a lengthy history of drug and alcohol

use” and that he had been diagnosed with schizoaffective disorder, conduct disorder, and 

polysubstance dependence. The discharge summary does not, however, show that 

defendant had “insufficient adult support or supervision” or contain any evidence that 

defendant “had suffered from psychological or physical trauma, or significant stress.” 

(§ 1170, subd. (d)(2)(F)(iv).) Thus, the trial court did not abuse its discretion by finding 

that this factor did not apply to defendant.

The fifth factor is “[t]he 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.” (§ 1170, subd. (d)(2)(F)(v).) 

Defendant concedes that this factor “does not apply.”

The sixth factor is “[t]he 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 selfstudy for self-improvement, or showing evidence of remorse.” (§ 1170, 

subd. (d)(2)(F)(vi).) Defendant references the evidence submitted as to this factor, and 

the trial court found that this factor applied to defendant.

The seventh factor is “[t]he 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.” (§ 1170, 

subd. (d)(2)(F)(vii).) The trial court found that this factor applied to defendant.

The eighth factor is “[t]he 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)(viii).) The trial court found that this factor applied 

to defendant.
23

We have concluded that the trial court did not abuse its discretion by finding that 

only four of the eight factors listed in section 1170, subdivision (d)(2)(F) applied 

favorably to defendant. We next proceed to consider whether the trial court abused its 

discretion by determining that, although four of the enumerated factors applied, those 

factors did not warrant recall and resentencing when considered in light of other relevant 

circumstances concerning defendant and his offenses. (See § 1170, subd. (d)(2)(F) [trial 

court is not limited to consideration of enumerated factors].)

A trial court abuses its sentencing discretion when its decision is arbitrary or

capricious, inconsistent with the letter and spirit of the law, or based on “circumstances 

that are not relevant to the decision or that otherwise constitute an improper basis for 

decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) When the sentencing 

decision involves an assessment of various factors, the trial court has discretion to accord 

different weight to each factor, and its decision need not be determined by the sheer 

number of factors on one side or the other. Rather, the trial court’s exercise of its 

sentencing discretion “requires ‘[a] quantative and qualitative analysis’ of multiple 

factors. [Citation.]” (People v. Wright (1982) 30 Cal.3d 705, 719.)

Here, the trial court’s decision to deny defendant’s petition was not based solely 

on its evaluation of the factors listed in section 1170, subdivision (d)(2)(F) but also on 

its finding that defendant’s crimes were “particularly [vicious], cruel and callous,” and 

that defendant was “the leader of the criminal enterprise that day.” Section 1170, 

subdivision (d)(2)(F) specifies that the trial court is not restricted to a consideration of 

the enumerated factors, and Miller expressly states that “the circumstances of the 

homicide offense, including the extent of [the defendant’s] participation in the conduct” 

is relevant to the determination of whether to impose an LWOP sentence. (Miller, supra,

567 U.S. at p. __ [132 S.Ct. 2455, 2468].)

On this record, we find no abuse of discretion in the trial court’s determination 

that the four favorable statutory factors did not outweigh the other relevant factors, 
24

including the circumstances of the offense. It was not unreasonable or arbitrary for the 

trial court to deny the petition for recall and resentencing, despite finding that defendant 

lacked a violent juvenile record, had made efforts at rehabilitation, maintained family 

ties, and performed positively while in prison, in light of the other circumstances: 

defendant’s significant role in the crimes and the vicious, cruel, and callous nature of the 

shootings of three unsuspecting, unarmed women. (See Miller, supra, 567 U.S. at p. __ 

[132 S.Ct. 2455, 2468] [extent of defendant’s participation in the criminal conduct should 

be considered].)

Last, we consider defendant’s argument that, despite the “atrocious nature of his 

life crimes,” three other factors identified in Miller—the inherent impact of his age on his 

culpability, the effect of his family and home environment, and his demonstrated capacity 

for rehabilitation—weighed in favor of resentencing. While Miller did recognize that 

juveniles are generally immature, impetuous, and unable to appreciate risks and 

consequences, here defendant was nearly 18 years old at the time of his offenses, so the 

trial court could reasonably determine that defendant’s age did not weigh strongly in 

favor of resentencing. As to defendant’s claim that his family and home environment 

weighed in favor of resentencing, we have already noted that the record does not show 

that defendant was physically or emotionally abused or exposed to trauma; there is no 

evidence that defendant was unable to “extricate himself” from a “brutal or 

dysfunctional” home. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. 2455, 2468].) Having 

carefully reviewed the record, we conclude the trial court did not abuse its discretion by 

determining that defendant’s age, participation in rehabilitative programs, and 

demonstrated responsibility in prison did not warrant granting his petition for recall and 

resentencing.

IV. DISPOSITION

The order denying the petition for recall and resentencing is affirmed.
___________________________________________

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________

ELIA, ACTING P.J.

__________________________

MIHARA, J.

People v. Willover

H042316
Trial Court: Monterey County Superior Court

Superior Court No.: SM980198

Trial Judge: Hon. Carrie M. Panetta

Attorney for Defendant and Appellant:

Norman Willover

Michael Evan Beckman

Attorneys for Plaintiff and Respondent:

The People

Kamala D. Harris, Attorney General

Gerald A. Engler, Chief Assistant Attorney 

General

Jeffrey M. Laurence, Senior Assistant 

Attorney General

Laurence K. Sullivan, Supervising Deputy 

Attorney General

Rene A. Chacon, Supervising Deputy 

Attorney General

People v. Willover

H042316