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 circumsta nces 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 Pr ovo, Utah. One day, he left the treatment center without author ization. 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

u se 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 b een 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 midd le 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 sh ooting 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 s hot 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 in formation 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 wi th the intent to inflict death.” (§ 189.) The jury found true three special circumstance a llegations: 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 fir earm causing great bodily injury or death (§ 12022.53, subd. (d)) and intentionally inflicted great bod ily 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 prosecut or 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

argue d 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 suffer ed “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 argued5

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 “pl ayed a minor or passive role” in the
second murder. Defendant’ s trial counsel not ed 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 defe ndant’ 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 f eedback, 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 h im 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 ter ms 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 deat h. 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 premed itated 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 o n 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 def endant’s sentence and remanding the matter for resentencing, holding that defendant was entitled to a new sentencing hearing under Miller v. A l abama (2012) 567 U.S.

__ [132 S. Ct. 2455 ] ( Miller ). However, the California Supreme Court granted review in tha t 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 pend ing furthe r 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 m echanism 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” (§ 1 170,
sub d. (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 describ e “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 a nd 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 fe lony 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 th e 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 supp ort 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
defen s e, 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 rehabilitativ e, 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 co nnections with others through letter writing, calls, or visits, or has eliminated contact with individuals outside of prison who are currently involved with crime. [¶] (viii) The8

defendant has had no disciplinary actions for violent activities in the las t 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 petiti on 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 o f 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

comm unity. 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
inc luded 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 inclu ded 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 corresp ondence 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 hi s certificate of Bible Missions; documents showing9

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 o f 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 pro secution should have the burden to show that defendant was “ ‘ the rare juvenile offender whose crime r eflects irreparable corruption.’ ” Defendant argued that seven of the eight factors specified in section 1170, subdivision (d)(2)(F) applied to him. 3 Fi rst, defendant’s convictions were “ pursuant to felony murder or aiding and abetting murder provisions of law. ” Second, defendant d id
not have prior juvenile felony adjudications for assault or other felony crimes with a significant potenti al 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 a nd significant stress.” Fifth, defendant’s

3 Defendant did not argue that there was evidence of the eighth factor: that he suffers from “ cognitive limitation s 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 el iminated contact with individuals outside of prison who are currently involved with crime ; evidence of this would be presented at the hearing

. Seventh, defendant ha d no disciplinary actions for violence in the last five years ; his last
one had been in 200 7, 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 di agnoses 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 eviden ce 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 o r 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 juvenile11

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 f rom
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 lik ely that defendant was fabricating symptoms of a severe psychiatric disorder in an effort to avoid a long prison term. The People acknowledged that defendant ha d taken advantage of programs while incarcerated in prison and that defendant had no disciplina ry history in the p ast 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 ha d 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 Mat hews.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 defend ant 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” wer e 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 t he 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 “catc h

- 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 c ounsel 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 t he 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 circum stances of defendant’s crimes were similar to
those of the Miller defendant. The trial court discussed the evidence defendant knew that13

Manibusan was going to shoot Olivo, and the evidence that defendant intended to kill Mathews and Aninger. The trial co urt 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 fr om 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 rehabilitat ion.” 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 r ehabilitation. 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 furt her 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 indi cated 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 killi ng 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 psychia tric 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 rehabilit ation, 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 conne ction 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
fi ve 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 callo us,” 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 er roneously 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, t he United States Supreme Court ruled that “mandatory life without parole for those under the age of 18 at the time of their crime s violates the Eighth16

Amendment’ s prohibition on ‘cruel and unusual punishments.’ ” ( Miller , supra, 567 U.S. at p. __ [ 132 S.Ct. 2455, 2460 ].)
In Miller, t he C ourt explained that its p rior 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 fa mily 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 he r] 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 examp le, 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 reha bilitation even when the circumstances most suggest it.” ( Miller, supra, 567 U.S. at p. __ [132 S.Ct. 2455, 246 8] .)
While Miller held “ that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juv enile offenders ,” the court did
not decide “that the Eighth Amendment requires a categorical bar on life without parole17

for juveniles

. . . .” ( Miller, supra, 567 U.S. at p. __ [132 S.Ct. 2455, 24 69 ] .) However, the court specified it believed that LWOP s entences for juveniles would be “uncommon” and limited to “ ‘the rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.]” ( I

bid .) 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.” ( I

bi d

. , fn. omitted .)
2. People v. Gutierrez
In Gutierrez , supra, 58 Cal.4th 1354, the Cal ifornia 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 a t the time,” the court remanded for resentencing. ( Gutierrez , supra, 58 Cal.4th at p. 1361.)
The Gutierrez court rejected th e Attorney General ’s argument that a remand

was unnecessary because the “potential mechanism for resentencing” provided by18

section 1170, subdivision (d)(2) “mean[s] that the initial sentence ‘ is thus no longer effectively a sentence of life wit hout the possibility of parole.’ ” ( Gutierrez , supra, 58 Cal.4th at p. 138 6.) 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 o pportunity for su ch offenders to obtain release.” ( Gutierrez , supra, at p. 138 6.) 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. 138 6 .)

3. Montgomery v. Louisiana
In Montgomery v. Louisiana (2016 )

__ U.S.

__ [13 6 S.Ct. 718 ] ( Montgomery ) , the United States Supreme Court held that Miller must be given retroactive application. The
p etitioner 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 th e 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 t he ground that Miller wa s 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 g iving 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, 7 3 6 ].) The court explained: “ A State may remedy a Miller violation by permitting juvenile homicide offenders to be con sidered 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 dispro portionate 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 fa cts 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. Th e 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 w ritten 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.
Defend ant 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
def endant 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, t he trial

cour t exercises discretion “ in consideration of ” the enumerated cr iteria]

. ) We pr oceed to20

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 ab etting 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, sub d. (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 Anin ger. 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), reference d the fact that many juveniles “we re convicted of felony murder or for aiding and abetting because they acted as lookouts or participated in another felony during which t he murder unexpected[ly] occurred.” (Sen. Com. on Public Safety, Analysis of Sen. Bil l No. 9 (2011

- 2012 Reg. Sess.) as introduced Dec. 6, 2010 for hearing on Apr

. 5, 2011 .) As defendant did not act as a lo okout 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 juve nile 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

sentenc ed to LWOP for crimes they committed while “ ‘ acting under the influence o f 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 resente ncing. 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 t hat 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 “ de scribed his difficulties as family problems ”
and described having a “ strain ed relationship” with his mother and her boyfriend. The22

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

use ” and that he had been diagnosed wi th schizoaffective disorder, conduct disorder, and polysubstance dependence. The discharge summary does not, however, show that defendant had “ insufficie nt adult support or supervision” or contain any evidence that defendant “ had suffered from psychologic al 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 defens e, but influenced the defendant’ s involvement in the offense. ” ( § 1170 , subd. (d)(2)(F)(v).)
Defendant concedes that this factor “does not app ly.” 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 th ose 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)(F)(vi).) Defendant references the evidence submitted as to this factor, and
th e 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 w hich 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 ei ght 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 s entencing discretion when its decision is arbitrary or capricious, in consistent 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 factor s 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 als o on its finding that defendant’s crimes were “particularly [vicious], cruel and callous,” and
that defendant w as “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 off

ense, 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 discretio n 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 recal l 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 demonstrate d 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 offense s, 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 doe s 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].) H aving 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 petit ion for recall and resentencing is affirmed.___________________________________________ B AMATTRE

- MANOUKIAN, J.

WE CONCUR:

__________________________ ELIA, ACTING P.J.

__________________________ MIHARA , J.

People v. Willover H0 42316Trial 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