In re Murray

Filed 12/23/13 In re Murray CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 EIGHT
In re
CHRISTOPHER MURRAY
on Habeas Corpus.
B253237
(Super. Ct. No. KA074614)
ORIGINAL PROCEEDING. Petition for a writ of habeas corpus.
Bruce F. Marrs, Judge. Petition granted. Judgment reversed, in part, and remanded.1
Sharon Fleming, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Larry Daniels and David A.
Voet, Deputy Attorneys General, for Plaintiff and Respondent.
1 As explained below, this proceeding began as an appeal (case No.
B223024). We then treated a motion to recall the remittitur as a habeas petition,
which we now grant under a new case number.

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2
Christopher Murray filed a petition for writ of habeas corpus, challenging as
unconstitutional the life without parole sentence he received after being convicted of
homicide offenses he committed when he was a juvenile. We issued an order to show
cause why that sentence should not be reversed. We grant the petition and reverse the
judgment so the trial court can resentence Murray in accord with the principles
enunciated in Miller v. Alabama (2012) 567 U.S. ___, 132 S.Ct. 2455 (Miller).
FACTS AND PROCEDURAL HISTORY2
On April 3, 2006, Christopher Murray shot and killed Christopher Trevizo and
Demetries Flores, and shot at but missed Flores’s brother Damon. Accompanying
Murray were Angelo Vasquez and Salvador Villanueva, who pointed guns at each of the
Flores brothers, but fired no shots. Murray was angry at Trevizo because Trevizo stole
marijuana from Murray at gunpoint a few months earlier. Murray and his companions
confronted Trevizo and the Flores brothers after following them as they walked along a
secluded wash.
Murray entered an open plea of no contest to the first degree murders of Trevizo
and Demetries Flores, and to the attempted murder of Damon Flores, subject to a trial on
the issue of whether he was insane when the crimes occurred. After the jury found
Murray had been sane, the trial court imposed the following sentence: As to each of the
two murder counts, life without parole (LWOP) (Pen. Code, § 190.5, subd. (b)), plus
another 25 years to life for a firearm use enhancement (Pen. Code, § 12022.53, subd. (d));
as to the attempted murder count, the upper term of nine years (Pen. Code, § 664,
subd. (a)), plus 20 years for another firearm use enhancement (Pen. Code, § 12022.53,
subd. (c)).3 Each term was consecutive to the others.4
2 Our statement of facts is taken in large part from the second of our two previous
decisions in this matter, People v. Murray (Feb. 6, 2012, B223024) [nonpub.opn.]
(Murray II).
3 All further undesignated section references are to the Penal Code.

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Murray appealed. We rejected his claim that the trial court should have excused a
juror for harboring prejudice against the sanity defense, and that his trial lawyer was
ineffective for failing to challenge that juror. We reversed and remanded for re-
sentencing because multiple murder special circumstances (§ 190.2, subd. (a)(3)) had
been improperly imposed for each murder conviction (People v. Danks (2004) 32 Cal.4th
269, 315), and because it was unclear whether the trial court had exercised its discretion
under section 190.5, subdivision (b) in choosing life without parole for the murder counts
instead of sentences of 25 years to life. (People v. Murray (May 11, 2009, B20344)
[nonpub. opn.] (Murray I).)
On remand for re-sentencing, the trial court struck the second special murder
circumstance. It re-sentenced Murray to: life without parole on the first murder count,
with a consecutive 25 years for the gun use enhancement; a consecutive term of 25 years
to life on the second murder count, plus another consecutive 25 years for the gun use
enhancement; and the consecutive high term of 9 years for the attempted murder count,
plus another consecutive 20 years for the other gun use enhancement.
Murray appealed again, contending that because he was a minor when the crimes
occurred, the LWOP sentence for one murder count violated his state and federal
constitutional protections against cruel and unusual punishment. He also contended that
even if the LWOP were reduced to a term of 25 years to life, he would still face a de
facto sentence of life without parole that is constitutionally prohibited.5
We affirmed the judgment, holding that under the then-current state of the law
LWOP sentences were constitutional for minors convicted as adults of murder. (Murray
II, supra.) In June 2012 the United States Supreme Court issued its decision in Miller,
supra, 132 S.Ct. 2455, which held that the Eighth Amendment to the United States
4 Vasquez and Villanueva were convicted as aiders and abettors of the murders of
Trevizo and Demetries Flores, and of the attempted murder of Damon Flores, and we
affirmed those judgments. (People v. Vasquez (May 6, 2010, B205698) [nonpub. opn.].)
5 Murray’s second appeal raised several other grounds, which we rejected and
which are not at issue here.

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4
Constitution prohibits a sentencing scheme that mandates imposition of an LWOP
sentence on a juvenile convicted of murder. (Id. at p. 2649.)
In response to the Miller decision, Murray filed a document styled as a
“REQUEST TO RECALL THE REMITTITUR OR FOR WRIT OF HABEAS
CORPUS,” asking that we now declare the LWOP sentence unconstitutional because he
was sentenced under a statute that did not comply with Miller, and remand for a new
sentencing hearing. Respondent contended that we could not recall the remittitur, but
agreed we had discretion to treat Murray’s brief as a petition for a writ of habeas corpus.
We issued an Order to Show Cause why such a writ should not be granted.
DISCUSSION
1. The Evolving Case Law Regarding Punishment of Juvenile Offenders
In Graham v. Florida (2010) 560 U.S. 48, 63-64, 81-82 (Graham), the United
States Supreme Court announced a categorical rule prohibiting no-parole life sentences
for minors who were convicted of non-homicide offenses. Graham’s holding was based
on the following: (1) scientific studies showing fundamental differences between the
brains of juveniles and adults; (2) a juvenile’s capacity for change as he matures, which
shows that his crimes are less likely the result of an inalterably depraved character;
(3) the notion that it is morally misguided to equate a minor’s failings with those of an
adult; and (4) the fact that even though non-homicide crimes may have devastating
effects, they are cannot be compared to murder in terms of severity and irrevocability.
(Id. at pp. 67-70.)
In Miller, supra, 132 S.Ct. 2455, the Supreme Court held that sentencing schemes
that made LWOP sentences mandatory for juveniles who commit homicide offenses
violated the Eighth Amendment’s ban on cruel and unusual punishment. Under Miller,
LWOP sentences are still permissible, but may be imposed on only the “rare juvenile
offender whose crime reflects irreparable corruption.” (Id. at p. 2469, citations omitted.)
This determination must be made as part of a sentencing scheme that requires trial courts

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to take into account the “distinctive (and transitory) mental traits and environmental
vulnerabilities” of children. (Id. at p. 2465.)
Mandatory LWOP sentences for juveniles “preclude[] consideration of [their]
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 [them] – and from which [they] cannot usually
extricate [themselves] – no matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent of [their] participation in the
conduct and the way familial and peer pressures may have affected [them]. Indeed, it
ignores that [they] might have been charged and convicted of a lesser offense if not for
incompetencies associated with youth – for example, [their] inability to deal with police
officers or prosecutors (including on a plea agreement) or [their] incapacity to assist
[their] own attorneys.” (Miller, supra, 132 S.Ct. at p. 2468.) Accordingly, trial court
sentencing of juvenile homicide offenders must “take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” (Id. at p. 2469.)
In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme
Court applied Graham to non-homicide juvenile offenders who receive a sentence which,
although subject to the possibility of parole, is so long that it amounts to a de facto
LWOP sentence.
2. Remand Is Appropriate For Resentencing
Murray’s LWOP sentence was authorized by section 190.5, subdivision (b).
Under that statute, juveniles between the ages of 16 and 17 who are convicted of first
degree murder and as to whom certain special circumstances are found to exist “shall be
confine[d] in the state prison for [LWOP] or, at the discretion of the court, 25 years to
life.” (Italics added.) LWOP is considered the presumptive punishment in such cases,
with the trial court having discretion to impose the lesser penalty along with the

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availability of parole if later found appropriate. (People v. Ybarra (2008)
166 Cal.App.4th 1069, 1089.)
Murray contends that section 190.5 does not satisfy Miller because it does not
require the trial court to take into account the several youth-related factors deemed
important by the Miller court and because section 190.5 elevates LWOP to the
presumptive sentencing choice, placing the trial court’s discretion to impose a lesser,
parole-eligible sentence on an unequal footing. He also contends that Caballero’s ban on
de facto LWOP sentences for juveniles convicted of nonhomicide offenses applies here,
calling Miller into play in regard to his non-LWOP sentence on the attempted murder
count as well as the total length of any new sentence imposed in light of Miller.
Respondent contends that section 190.5 satisfies Miller because it does not make
LWOP mandatory but instead gives the trial court discretion to impose the lesser, parole-
eligible sentence. Respondent also contends that any flaws in section 190.5 were
eliminated by a new law with retroactive effect that will allow juvenile homicide
offenders like Murray to seek parole after serving 15 years of their sentence. (§ 1170,
subd. (d)(2).)6 According to respondent, Caballero’s ban on de facto LWOP sentences
does not apply because the only issue in Caballero was the length of sentences for
juveniles convicted of nonhomicide offenses.
6 Murray contends that the post-conviction parole procedure established by section
1170, subdivision (d)(2) is inadequate for several reasons. First, it predates Miller and
was not designed to fill the gaps that the Miller decision exposed. Second, such
legislation is always subject to amendment or repeal. We agree.
We recognize that the new law does allow for consideration of some factors that
sound like those endorsed in Miller: the defendant had insufficient adult support or
supervision or suffered from physical or psychological trauma (§ 1170,
subd. (d)(2)(F)(iv)); or the defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that do not constitute a defense but did
play a part in the crime (§ 1170, subd. (d)(2)(F)(v)).
However, the law says nothing about the factors particular to juveniles that
animated Miller. Moreover, there are limitations to availability of relief under the statute
(§ 1170, subd. (d)(2)(F)(i)-(iii)) which effectively would preclude application of the
Miller factors in certain juvenile cases.

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Our Courts of Appeal have split on the viability of section 190.5 in light of Miller,
with three such cases currently before the California Supreme Court.7 Because this issue
remains unsettled we decline to resolve the issue here. Instead, we deem it appropriate to
remand the matter to the trial court once more to resentence Murray in the first instance
in light of Miller. As we held in Murray II, supra, the trial court here was aware of its
discretion under section 190.5, but that hearing took place before Miller and through the
presumptive choice lens of People v. Ybarra, supra, 166 Cal.App.4th at page 1089. We
cannot say how the Miller factors might have affected the trial court’s sentencing
analysis, and express no opinion as to whether Miller compels a particular sentence in
this case.8
DISPOSITION
The petition is granted. The judgment is reversed as to sentencing only and the
matter is remanded for a new sentencing hearing that considers the factors set forth in
Miller, supra, 132 S.Ct. 2455.
RUBIN, ACTING P. J.
WE CONCUR:
FLIER, J. GRIMES, J.
7 These are: People v. Siackasorn, review granted Mar. 20, 2013, S207973; People
v. Moffett, review granted Jan. 3, 2013, S206771; and People v. Gutierrez, review granted
Jan. 3, 2013, S206365.
8 Because we remand for resentencing, we do not address Murray’s argument that
the total length of his sentence might violate Miller if it is so long that it amounts to a de
facto LWOP sentence. We note that the court in People v. Ramirez (2013)
219 Cal.App.4th 655, held that Miller’s reasoning applied to de facto LWOP sentences,
but a petition for review in that case is still pending.

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