People v. Brown CA2/7

Filed 9/16/16 P. v. Brown CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B265329

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. NA020150)

v.

CINDY I. BROWN,

Defendant and Appellant.

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

R. Romero, Judge. Reversed and remanded for resentencing.

Christopher C. Hawthorne, under appointment by the Court of Appeal, for

Defendant and Appellant.

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

General, Lance E. Winters, Senior Assistant Attorney General, Shawn McGahey Webb,

Supervising Deputy Attorney General, Theresa A. Patterson and John Yang, Deputy

Attorneys General, for Plaintiff and Respondent.

__________________________

Appellant Cindy Brown plead no contest in 1996 to first degree murder with a

special circumstance allegation, arising out of a crime she committed as a juvenile. She

was sentenced to life without the possibility of parole. In 2013, following her petition for

habeas corpus, the trial court conducted a new sentencing hearing, imposing the same

sentence at its conclusion. Brown has appealed, arguing that the trial court failed to

consider the factors mandated by the United States and California Supreme Courts.

Respondent has conceded the error. We agree, reverse the judgment, and remand for

resentencing.

PROCEDURAL HISTORY

The circumstances of this tragic crime are not before this Court; the underlying

murder has been adjudicated. The issue before this Court relates solely to the sentence

imposed.

At the time of Brown’s initial plea and sentence in 1996, California courts applied

a presumption in favor of life without parole as the sentence for juveniles convicted of

special circumstance murder. That was the sentence imposed on Brown.

Two years later, in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 2460,

183 L.Ed.2d 407], “the United States Supreme Court ruled that ‘mandatory life without

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

Amendment’s prohibition on “cruel and unusual punishments,”’ relying extensively on

differences between juveniles and adults with regard to their culpability and capacity for

change.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360 [applying Miller and

holding there is no presumption in favor of life without parole (LWOP) under Pen. Code,

§ 190.5].)

Brown filed a petition for habeas corpus seeking resentencing under Miller in

2013; the trial court issued an order to show cause in 2014. Brown filed an extensive

sentencing memorandum and exhibits. The district attorney filed a memorandum seeking

reimposition of the life without parole sentence. The court conducted the resentencing

hearing on May 15, 2015, admitting Brown’s exhibits and hearing testimony from Brown

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and her expert, Dr. Saint Martin. The district attorney cross-examined Brown, but

produced no witnesses or exhibits.

The trial court indicated it was proceeding in accordance with Gutierrez, and also

indicated that, as the district attorney had urged, it would not consider events subsequent

to the initial sentencing in the matter, including Brown’s conduct in state prison. In a

lengthy statement at the end of the hearing, the trial court confirmed that it did not

consider “any conduct after the date of the original sentencing.” The court concluded

that Brown was “the rare juvenile deserving of LWOP,” and resentenced her to life

without the possibility of parole. Brown appeals.

DISCUSSION

A. LWOP for Juveniles Should Be Rare

The last decade has seen a significant change in the law of appropriate sentencing

for juveniles who commit serious crimes. Beginning with Roper v. Simmons (2005) 543

U.S. 551, 578, which held that no person may be executed for a crime committed while a

juvenile, the United States Supreme Court has recognized the science supporting the

conclusion that juveniles are different from adults in their development, ability to control

their actions, and understanding of the consequences of those actions. (See Graham v.

Florida (2010) 560 U.S. 48, 74 [no LWOP for juveniles committing non-homicide

offenses].) In Miller v. Alabama, supra, 132 S.Ct. 2455 the Supreme Court barred

automatic LWOP for homicide offenses as a violation of the Eighth Amendment

prohibition of cruel and unusual punishment; children, it found, are “constitutionally

different from adults for purposes of sentencing” for several reasons based “not only on

common sense--on what ‘any parent knows--but on science and social science as well.”

(Id. at p. 2464.)

“First, children have a “lack of maturity and an underdeveloped sense of

responsibility,” leading to recklessness, impulsivity, and heedless risk-taking.

[Citations.] Second, children ‘are more vulnerable . . . to negative influences and outside

pressures,’ including from their family and peers; they have limited ‘contro[l] over their

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own environment’ and lack the ability to extricate themselves from horrific, crime-

producing settings. (Ibid.) And third, a child’s character is not as ‘well formed’ as an

adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of

irretrievabl[e] deprav[ity].’” (Miller v. Alabama, supra, 132 S.Ct. at p. 2464.)

These “distinctive attributes of youth diminish the penological justifications for

imposing the harshest sentences on juvenile offenders, even when they commit terrible

crimes. Because “‘[t]he heart of the retribution rationale”’ relates to an offender’s

blameworthiness, ‘the case for retribution is not as strong with a minor as with an adult.’

[Citations.] Nor can deterrence do the work in this context, because “‘the same

characteristics that render juveniles less culpable than adults”’--their

immaturity, recklessness, and impetuosity--make them less likely to consider potential

punishment. [Citations.] Similarly, incapacitation could not support the life-without-

parole sentence in Graham: Deciding that a ‘juvenile offender forever will be a danger

to society’ would require ‘mak[ing] a judgment that [he] is incorrigible’--but

“incorrigibility is inconsistent with youth.” [Citations.] And for the same reason,

rehabilitation could not justify that sentence. Life without parole ‘forswears altogether

the rehabilitative ideal.’ [Citation.] It reflects ‘an irrevocable judgment about [an

offender’s] value and place in society,’ at odds with a child’s capacity for change.’”

[Citation.] (Miller v. Alabama, supra, 132 S.Ct. at p. 2465.)

The California Supreme Court has, in accordance with this authority, delineated

the factors a sentencing court must consider in sentencing under Penal Code section

190.3 for homicide offenses committed by a juvenile: the offender’s “chronological age

and its hallmark features-among them, immaturity, impetuosity, and failure to appreciate

risks and consequences” (quoting Miller v. Alabama, supra, at p. 2468);1 evidence

concerning the family and home, including childhood abuse or neglect, substance abuse

in the family, lapses in adequate parenting, exposure to violence and susceptibility to

1 These criteria relate to the fact of being a juvenile, and are unrelated to the facts of

the crime. The trial court below appeared to analyze this factor as being related to the

crime itself.

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psychological or emotional disturbance; evidence concerning the offense, including the

defendant’s participation and any pressure, whether from family members or peers, that

could have affected defendant; evidence of any affect of the inability of the defendant,

because of youth, to deal with police, prosecutors, or to assist his or her counsel; and any

evidence related to rehabilitation, noting that because a juvenile does not have the fully

formed character of an adult, ‘“his actions[are]less likely to be “evidence of irretrivabl[e]

deprav[ity].””’ (Gutierrez, supra 58 Cal.4th at pp. 1388-1389.)

After Gutierrez was decided, our Supreme Court again addressed the special

considerations in sentencing juvenile offenders, and reiterated the conclusion that life

sentences for such offenders should be rare and exceptional, quoting Miller:

“[G]iven all we have said in Roper, Graham, and this decision about children’s

diminished culpability and heightened capacity for change, we think appropriate

occasions for sentencing juveniles to this harshest possible penalty will be uncommon.

That is especially so because of the great difficulty we noted in Roper and Graham of

distinguishing at this early age between ‘the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects

irreparable corruption.’ [Citations.] Although we do not foreclose a sentencer’s ability

to make that judgment in homicide cases, we require it to take into account how children

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

lifetime in prison.” (People v. Franklin (2016) 63 Cal.4th 261, 275, Miller v. Alabama,

supra, 132 S.Ct. at p. 2469.)

B. The Trial Court Failed To Consider All Individual Characteristics of This

Defendant

The record produced for the resentencing hearing in this case was extensive,

narrating a story that included childhood sexual abuse by extended family members,

diagnosed learning disabilities and mental illness, and statements by Brown’s parents that

they were unwilling or unable to keep her in their home. The testifying expert performed

a record review, and interviewed and tested Brown; he identified a number of

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psychological issues, including her susceptibility to having decisions made for her by

others, and identified her mental age as 7.8 years. He concluded that, with treatment

which had not been provided to this point, her prognosis for improvement was fair,

although her intellectual disability was fixed.

Brown’s prison record was also presented to the court in detail. That record

demonstrated 10 disciplinary actions over the term of her incarceration, but also

contained laudatory statements and records of participation in self-help programming. As

noted above, the trial court, at the urging of the district attorney, declined to consider the

record of her behavior and attempts at rehabilitation while in prison for this offense. This

record, however, is directly relevant to the last Gutierrez factor.

This same issue was considered by this District earlier this year in People v.

Lozano (2016) 243 Cal.App.4th 1126. There, in a post-Miller resentencing, the trial court

declined to consider the defendant’s record during 15 years of her incarceration. The

Court of Appeal, in reversing, explained: “In light of Miller and Gutierrez, we conclude

the trial court could not categorically exclude Lozano’s proffered evidence of

postconviction rehabilitation. As Gutierrez, supra, 58 Cal.4th at p. 1390, interpreted

Miller, ‘the trial court must consider all relevant evidence bearing on the “distinctive

attributes of youth” discussed in Miller and how those attributes “diminish the

penological justifications for imposing the harshest sentences on juvenile offenders.”

(Miller, supra, 567 U.S. at p.___ [132 S.Ct. at p. 2465].)’ All relevant evidence, in our

view, includes what Lozano asserts is 15 years of rehabilitation in prison. Disregard of

evidence of rehabilitation, under the circumstances presented here, is inconsistent with

the focus required by Miller and Gutierrez.”’ (Id. at pp. 1137-1138.)

We agree with the reasoning in Lozano, and reach the same result here. To fail to

consider all of the factors discussed by our Supreme Court is to fail to heed its conclusion

that only the rare juvenile offender should be subject to a LWOP sentence. The trial

court’s failure to consider the evidence relevant to the Gutierrez determination is error

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that mandates reversal and remand for resentencing.2 On remand, the trial court shall

consider all evidence presented by the parties relevant to the factors set out in Gutierrez,

including evidence concerning Brown’s record during her incarceration.

DISPOSITION

The judgment is reversed and the matter remanded for resentencing.

ZELON, Acting P. J.

We concur:

SEGAL, J.

GARNETT, J.

2 Brown raises a number of other issues related to the determinations of the

Gutierrez factors by the trial court. Because we remand for a new hearing, those

arguments can be presented on a rehearing of this matter, we do not reach them here.



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

article VI, section 6 of the California Constitution.

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