P. v. Soeur

Filed 10/20/17 P. v. Soeur CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
SAVOEUN SOEUR,
Defendant and Appellant.
B270124
(Los Angeles County
Super. Ct. No. NA073193)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard R. Romero, Judge. Conditionally
vacated and remanded with directions.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn McGahey Webb and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________

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Savoeun Soeur appeals from a judgment entered after a
jury found him guilty of two counts of first degree murder and
one count of premeditated attempted murder, and further found
special circumstance, gang and firearm enhancement allegations
to be true. The trial court sentenced him to life without the
possibility of parole for the murders. We reject Soeur’s
contentions of reversible error affecting the jury’s verdicts. We
conditionally vacate the judgment and remand the matter for
reconsideration because the record does not demonstrate that in
sentencing Soeur, a juvenile offender who was 17 years old at the
time of the crimes, the trial court gave due consideration to
whether his crimes reflected transient immaturity or irreparable
corruption.
BACKGROUND
In 2010, Soeur was tried for these murders and attempted
murder, along with codefendants Ratanak David Kim and
Kenton Oeun (who were 20 and 19 years old, respectively, at the
time of the crimes). The jury rendered guilty verdicts as to Kim,
but was unable to reach verdicts as to Soeur and Oeun. At a
retrial in May-June 2013, the jury reached verdicts as to Soeur
and Oeun. We quote portions of the background facts from our
prior opinion affirming Oeun’s convictions, as the evidence was
presented in the same trial we are reviewing. (People v. Oeun
(Jan. 15, 2015, B250004) [nonpub. opn.].)
“The Party
“On the evening of January 20, 2007, Sowalnut Pov held a
twenty-first birthday party for Mai Tran, his then-girlfriend.
Sowalnut and Tran lived in an apartment over the garage behind

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a front house on Downey Avenue in Long Beach.[1] The party was
marred by two shooting events.
“First Shooting
“Kim was not an invited guest, but he arrived at the
ongoing party with two women, one of whom was a neighbor from
across the street. Kim had prominent tattoos identifying him as
an ‘Asian Boyz’ gang member. He introduced himself to
Sowalnut as ‘Baby C,’ and asked if he could join the party.
Sowalnut said he could stay, obtaining his agreement that he
would not invite others. However, when Kim borrowed
Sowalnut’s phone, he was overheard saying to the person he had
called, ‘There’s bitches over here; come over.’
“Later, a group of [about 10] others arrived at the front
gate, seeking entry. A confrontation ensued, with Kim’s friends
trying to enter, and Sowalnut’s family and friends trying to block
their entry. The newcomers became more aggressive, pushing,
shoving, and shouting the Asian Boyz gang identification. They
then drew back from the confrontation, and began to leave the
area. At that point, Kim retrieved a handgun from his
companion’s purse, pointed it at Sowalnut’s head at close range,
and asked, ‘How come you didn’t just let us in the party?’ After
stepping back and shooting three or four shots into the air, Kim
left with his friends, saying he would return.” (People v. Oeun,
supra, B250004, pp. 2-3.) Witnesses Tuyet Nguyen and Kara
Sem identified Soeur (a.k.a. “Inky”) and Oeun as being among the
group of Kim’s friends trying to gain access to the party.
1 “To avoid confusion we identify the three Pov brothers,
Sovanna, Sowalnut, and Sovannak, by their first names. All
others are identified by their last names.”

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“Someone called the police, who came and told the
partygoers to end the party. Most left, but a few relatives and
friends stayed to help clean up.
“Second Shooting
“About one-half hour to one hour later, Sopheap Tath, a
Pov family friend, saw three people walk toward the gate from
the outside before he heard a few shots being fired from their
direction. Sowalnut was in the driveway arguing with his friend
Satiya Sokun about having let Kim into the party when he saw
flashes of light and heard about three gunshots from outside the
front gate. Sowalnut saw Sokun fall to the ground. He pulled
Tran to the ground, then turned around to see his younger
brother Sovannak rise from where he had been sitting, grab his
shoulder, then fall to the ground while screaming to call an
ambulance. Tath said that Kim and two other men fired at
Sokun, and the three then ran down the street.
“Sokun was hit by 10 shots; Sovannak was shot once in the
neck and chest. Both Sovannak and Sokun died at the hospital
that night.
“Shooters’ Identity
“Sowalnut, Tath, and Tran all testified that because of the
low light and shadows, they could not see the shooters’ faces and
could give only general descriptions of those they did not know.
When Tath was interviewed the next day he identified Kim as
one of the shooters.” (People v. Oeun, supra, B250004, pp. 3-4, fn.
omitted.)2
2 We do not set forth the varying descriptions of the
shooters’ height and hair because the sufficiency of the evidence
supporting Soeur’s identity as a shooter is not at issue on appeal.

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“Tran’s 16-year-old sister Tuyet Nguyen and her friend
Kara Sem were interviewed nearly 10 months after the January
2007 shootings. They both initially denied knowledge of anything
related to the second shooting incident, saying they had left the
party after the first incident. After a few hours of unrecorded
police questioning, however, during which they gave inconsistent
denials and stories, each provided a recorded statement
admitting to having witnessed the shootings, and identifying
Oeun and Soeur (who they knew) as participants in the shooting.
Nguyen and Sem both said they initially had not wanted to
testify out of fear of gang retribution.[3]” (People v. Oeun, supra,
B250004, p. 4.) Nguyen told the police she saw Soeur fire his
weapon. Sem stated she saw him holding a gun, but did not see
him fire.
“Nguyen had testified at the 2008 preliminary hearing and
the 2010 trial, and repeated at the 2013 trial, that her 2007
statement identifying Oeun and Soeur as shooters was
fabricated, resulting from police pressure because she had been
on probation, she had been under-age (and drinking at the party),
and she said what she believed the police wanted to hear so she
could end the questioning. She testified that she and her friends
had left the party after the first shooting, and that they had not
been present when the second shooting took place. Sem
confirmed Nguyen’s explanation that most of what she had told
the police—including her identification of Oeun and Soeur as
[participants in the shooting]—had been false, and that she had
left the party before the second shooting had occurred.
“Tran lived out of state and was unavailable at the time of
the 2013 trial. In her 2010 trial testimony, which was read to the
3 “Nguyen said she feared Kim, but not Oeun or Soeur.”

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jury, Tran confirmed that her sister Nguyen had left, at Tran’s
request, when the party ended after the first shooting incident.
When the second shooting occurred only a small group of family
and friends had remained to clean up. Tran was in the driveway
near the garage in the rear when the shooting occurred. She saw
flashes from the gunshots, but did not see the shooters.
“A witness who had been parked nearby shortly before
midnight had seen a car driving past the Downey Street house a
number of times shortly before he heard shots fired. The car he
had seen might have been that of an associate of the shooters . . .
, and was also similar in color and make to Oeun’s car.
“Searches of Oeun’s and Soeur’s Residences
“On November 15, 2007, after both Oeun and Soeur had
been arrested for murder, the police searched their residences
pursuant to warrants. At Soeur’s residence they found a .45-
semiautomatic handgun, several boxes of ammunition, some loose
live rounds, spent casings, and handgun magazines. The
ammunition was of several calibers, including .45 and nine-
millimeter.” (People v. Oeun, supra, B250004, pp. 4-5.)
From a friend of Oeun’s, police retrieved a VCR which
contained a nine-millimeter Smith & Wesson pistol loaded with a
magazine holding 14 bullets. Oeun’s girlfriend had found the
VCR with the gun inside of it at Oeun’s residence after the search
and had given it to the friend to hide it from police.
“Ballistics Evidence
“A police expert testified that three semiautomatic
weapons—two .45-caliber semiautomatics, and one nine-
millimeter semiautomatic—had been fired at the Downey
residence shooting. Not all the casings found at the site could be
identified; while the expert found no evidence that a revolver had

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been used, he could not completely exclude that possibility. None
of the nine-millimeter cartridge cases found at the site had been
fired from the gun found in Oeun’s VCR. Although none of the
bullet fragments found at the scene could be positively identified
as having been fired from that (or any other) particular gun, they
did share the same class characteristics as the barrel rifling of
the gun found in Oeun’s VCR, and that gun therefore could not be
ruled out as their source.
“Gang Evidence
“Kim was an admitted member of the Asian Boyz gang, and
had one or more gang tattoos. A gang expert testified that Soeur
was an admitted Asian Boyz member. The expert testified, based
on Oeun’s associations with Asian Boyz members, that he, too,
was an Asian Boyz member.” (People v. Oeun, supra, B250004,
pp. 5-6.) Based on a hypothetical predicated on the facts of this
case, the gang expert opined that the hypothetical crimes were
committed at the direction of, in association with, and for the
benefit of the Asian Boyz criminal street gang.
The jury found Soeur guilty of the first degree murders of
Sokun (count 1) and Sovannak (count 2) and found gang and
firearm enhancement allegations to be true as to each count. The
jury also found Soeur guilty of the attempted murder of Tath
(count 4) and found true the gang and firearm enhancement
allegations and the allegation that the offense was committed
willfully, deliberately and with premeditation. Finally, the jury
found true the special circumstance allegation that Soeur was

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convicted of two counts of first degree murder in the same
proceeding.4
For each murder, the trial court sentenced Soeur to life
without the possibility of parole plus 25 years to life for the
firearm enhancement under Penal Code5 section 12022.53,
subdivision (b) (personally discharging a firearm causing great
bodily injury or death). For the premeditated attempted murder,
the court sentenced Soeur to a life term with a 15-year minimum
based on the gang enhancement finding, plus 25 years to life for
the firearm enhancement under section 12022.53, subdivision (b).
Sentences for all offenses and enhancements were run
consecutively.
DISCUSSION
I. The Trial Court Erred in Instructing the Jury It Could
Find Soeur Guilty of First Degree Murder Under the
Natural and Probable Consequences Doctrine, but the
Error Was Harmless Beyond a Reasonable Doubt
The trial court instructed the jury on three theories of
liability for first degree murder: (1) Soeur committed the
murders willfully, deliberately and with premeditation, (2) he
aided and abetted in the willful, deliberate and premeditated
murders, and (3) he committed assaults with a firearm on the
victims and should have known murder was a natural and
probable consequence of the assaults.
4 The jury also found Oeun guilty of the offenses and found
the special allegations to be true.
5 Further statutory references are to the Penal Code.

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After trial and before Soeur filed his appeal in this case, the
California Supreme Court issued its opinion in People v. Chiu
(2014) 59 Cal.4th 155 (Chiu). There, the Court held “an aider
and abettor may not be convicted of first degree premeditated
murder under the natural and probable consequences doctrine.”
(Id. at pp. 158-159.) The Court further held “punishment for
second degree murder is commensurate with a defendant’s
culpability for aiding abetting a target crime that would
naturally, probably, and foreseeably result in a murder under the
natural and probable consequences doctrine.” (Id. at p. 166.) The
Court made clear, “Aiders and abettors may still be convicted of
first degree premeditated murder based on direct aiding and
abetting principles.” (Ibid.)
The Attorney General concedes the trial court erred in
instructing the jury it could find Soeur guilty of first degree
murder under the natural and probable consequences doctrine,
but argues the error was harmless beyond a reasonable doubt.
Soeur argues the error was prejudicial, requiring reversal of the
murder convictions.
“When a trial court instructs a jury on [multiple] theories of
guilt, [at least] one of which was legally correct and one legally
incorrect, reversal is required unless there is a basis in the record
to find that the verdict was based on a valid ground.” (Chiu,
supra, 59 Cal.4th at p. 167.) We must reverse Soeur’s first degree
murder convictions unless we conclude beyond a reasonable
doubt that the jury based its verdict on a legally valid theory—
that he personally committed the murders willfully, deliberately
and with premeditation or he directly aided and abetted in the
willful, deliberate and premeditated murders. Based on this

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standard, we find the instructional error was harmless beyond a
reasonable doubt.
The prosecutor’s theory of the case, as argued to the jury in
his opening argument, was that the evidence clearly established
Soeur personally committed first degree premeditated murders.
The prosecutor focused his argument on the evidence supporting
Soeur’s identity as one of the shooters. He briefly mentioned the
natural and probable consequences doctrine, but told the jury
that theory was not a key component of the case because the
evidence presented about the manner of the shooting
demonstrated Soeur personally committed first degree
premeditated murder. Soeur’s counsel also focused his argument
on identity, highlighting evidence indicating the shooter was
someone else.6 He did not mention the natural and probable
consequences doctrine. Nor did codefendant’s counsel.
In rebuttal argument, the prosecutor stated: “Just to kind
of clear away what the issues are and what the issues aren’t. I
don’t think we heard any argument that this was anything but a
coldblooded pair of murders that are first-degree murders. So I
think it’s clear from listening to the defense arguments, we’re
talking about I.D. That’s the issue here. [¶] So I don’t think
you’ll end up -- even though I spent time in my opening argument
talking about the law of first-degree murder, I don’t think you’re
going to have any doubt that these were first-degree murders.
What the defense is contesting is I.D. There is no dispute we
have two first-degree murders and a premeditated attempted
murder. So that’s all been made clear.”
6 On appeal, Soeur does not challenge the sufficiency of the
evidence establishing his identity as one of the shooters.

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The jury made express findings that Soeur personally
discharged a firearm causing great bodily injury or death to each
of the two deceased victims. Thus, the jury found Soeur was one
of three men who fired upon the victims. As described below, the
circumstances of the shooting provide overwhelming evidence
each shooter acted willfully, deliberately and with premeditation.
“‘“Deliberation” refers to careful weighing of considerations
in forming a course of action; “premeditation” means thought
over in advance. [Citations.] “The process of premeditation and
deliberation does not require any extended period of time. ‘The
true test is not the duration of time as much as it is the extent of
the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at
quickly.’”’” (People v. Young (2005) 34 Cal.4th 1149, 1182.)
In People v. Anderson (1968) 70 Cal.2d 15, “the Supreme
Court described the categories of evidence relevant to
premeditation and deliberation that have been found sufficient to
sustain convictions of first degree murder: ‘(1) facts about how
and what defendant did prior to the actual killing which show
that the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing—what may be
characterized as “planning” activity; (2) facts about the
defendant’s prior relationship and/or conduct with the victim
from which the jury could reasonably infer a “motive” to kill the
victim, which inference of motive, together with facts of type (1)
or (3), would in turn support an inference that the killing was the
result of “a pre-existing reflection” and “careful thought and
weighing of considerations” rather than “mere unconsidered or
rash impulse hastily executed” [citation]; (3) facts about the
nature of the killing from which the jury could infer that the

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manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a
“preconceived design” to take his victim’s life in a particular way
for a “reason” which the jury can reasonably infer from facts of
type (1) or (2).’” (People v. Concha (2010) 182 Cal.App.4th 1072,
1084.)
“This framework does not establish an exhaustive list of
required evidence which excludes all other types and
combinations of evidence that may support a jury’s finding of
[deliberation and] premeditation [citation], nor does it require
that all three elements must be present to affirm a jury’s
conclusion that [a deliberate and] premeditated murder was
intended.” (People v. Felix (2009) 172 Cal.App.4th 1618, 1626;
see People v. Halvorsen (2007) 42 Cal.4th 379, 420 [the guidelines
of People v. Anderson, supra, 70 Cal.2d 15, “are descriptive and
neither normative nor exhaustive, and . . . reviewing courts need
not accord them any particular weight”].)
The jury heard evidence of planning. The shooters left the
party and came back with loaded firearms. The jury also heard
evidence of motive. The shooters were rebuffed at the entrance to
the party and they took it as an affront to themselves and their
gang. Finally, the evidence presented regarding the manner in
which the shooting was carried out demonstrated premeditation
and deliberation—three men in a coordinated effort firing
multiple rounds at victims who were standing outside. Sokun
suffered 10 gunshot wounds.
Given the jury’s express findings that Soeur pulled the
trigger, causing great bodily injury or death to each of the
deceased victims, and the evidence of premeditation and
deliberation arising from the circumstances of the shooting, we

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find it inconceivable the jury found Soeur guilty of first degree
murder under the natural and probable consequences doctrine
based on his commission of an assault with a firearm. The
instructional error was harmless beyond a reasonable doubt.
II. Under Current Law, the Trial Did Not Err in
Instructing the Jury It Could Find Soeur Guilty of
Premeditated Attempted Murder Under the Natural and
Probable Consequences Doctrine
In challenging his conviction for premeditated attempted
murder, Soeur applies the same argument he raised against his
first degree murder convictions—that the trial court erred in
instructing the jury it could find him guilty of premeditated
attempted murder if it found he committed assaults with a
firearm on the victims and should have known attempted murder
was a natural and probable consequence of the assaults. On this
issue, however, California Supreme Court precedent is squarely
against his position.7
In People v. Lee (2003) 31 Cal.4th 613 (Lee), our Supreme
Court concluded the crime of attempted murder requires “only
that the murder attempted was willful, deliberate, and
premeditated, but not . . . that an attempted murderer personally
acted willfully and with deliberation and premeditation, even if
he or she is guilty as an aider and abettor.” (Id. at p. 616.)
Later, in People v. Favor (2012) 54 Cal.4th 868 (Favor), our
Supreme Court held, “Under the natural and probable
7 The Attorney General argues Soeur forfeited the issue
because he did not object to the jury instructions below. As Soeur
points out, it would have been futile for his counsel to object
because our Supreme Court already has decided this issue
against the position he takes on appeal.

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consequences doctrine, there is no requirement that an aider and
abettor reasonably foresee an attempted premeditated murder as
the natural and probable consequence of the target offense. It is
sufficient that attempted murder is a reasonably foreseeable
consequence of the [target offense], and the attempted murder
itself was committed willfully, deliberately and with
premeditation.” (Id. at p. 880.) In Chiu, supra, 59 Cal.4th 155,
discussed above, the Supreme Court distinguished Favor in
reaching its conclusion that “an aider and abettor may not be
convicted of first degree premeditated murder under the natural
and probable consequences doctrine,” but did not question the
continued viability of Favor. (Chiu, supra, 59 Cal.4th at pp. 158-
159.)
We are bound to follow these California Supreme Court
precedents. (People v. Johnson (2012) 53 Cal.4th 519, 528.)
Under Lee and Favor, the trial court did not err in instructing the
jury on the natural and probable consequences doctrine as
applied to the attempted murder count (CALCRIM No. 403). Nor
did the court err in instructing the jury, “The attempted murder
was done willfully and with deliberation and premeditation if
either the defendant or another principal or both of them acted
with that state of mind,” as Soeur argues. (CALCRIM No. 601.)
Soeur also contends Lee and Favor violate the rule
established in Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi), as extended in Alleyne v. United States (2013) 570
U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314, that a jury must
determine beyond a reasonable doubt every fact that increases a
defendant’s punishment. Under the trial court’s instructions on
the natural and probable consequences doctrine, the jury decides
if the nontarget offense of attempted murder was a reasonably

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foreseeable consequence of the target offense (assault with a
firearm), and also decides if the direct perpetrator of the
attempted murder acted willfully, deliberately and with
premeditation. We decline Soeur’s request that we reject our
Supreme Court’s holdings in Lee and Favor under Apprendi and
its progeny.8
In any event, any error would not be reversible under our
harmless error analysis set forth above. The evidence already
discussed demonstrates Soeur personally committed a
premeditated attempted murder when he fired upon Tath.
III. Because the Record Does Not Demonstrate the Trial
Court Gave Due Consideration to Whether Soeur’s Crimes
Reflected Transient Immaturity or Irreparable
Corruption, We Remand for Reconsideration
In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the
United States Supreme Court held “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.’” (Id. at p. 465.) The Court went on to
8 The viability of Favor is currently before the California
Supreme Court. (People v. Mateo (Feb. 10, 2016, B258333, review
granted May 11, 2016, S232674.) The question to be decided in
People v. Mateo, as listed on the Appellate Courts Case
Information site, is: “In order to convict an aider and abettor of
attempted willful, deliberate and premeditated murder under the
natural and probable consequences doctrine, must a
premeditated attempt to murder have been a natural and
probable consequence of the target offense? In other words,
should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in
light of Alleyne v. United States (2013) ___ U.S. ___ [133 S.Ct.
2151] and People v. Chiu (2014) 59 Cal.4th 155?”

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explain “appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.” (Id. at p. 479.) A
sentencing court is “require[d] . . . to take into account how
children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison.” (Id. at p.
480.) The Court noted “the great difficulty . . . 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.’”
(Id. at pp. 479-480.)
Subsequently, in People v. Gutierrez (2014) 58 Cal.4th
1354, 1360 (Gutierrez), the California Supreme Court evaluated
the constitutionality of section 190.5, subdivision (b), in light of
the principles announced in Miller. This statutory provision
states: “The penalty for a defendant found guilty of murder in
the first degree, in any case in which one or more special
circumstances enumerated in Section 190.2 or 190.25 has been
found to be true under Section 190.4, who was 16 years of age or
older and under the age of 18 years at the time of the commission
of the crime, shall be confinement in the state prison for life
without the possibility of parole or, at the discretion of the court,
25 years to life.” (§ 190.5, subd. (b).)9 Prior to Miller, some
Courts of Appeal and trial courts had construed this statutory
provision “as creating a presumption in favor of life without
parole as the appropriate penalty for juveniles convicted of
9 As set forth above, the special circumstance the jury found
true in this case is that Soeur was convicted of more than one
offense of murder in the first or second degree in this proceeding.
(§ 190.2, subd. (a)(3).)

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special circumstance murder.” (Gutierrez, supra, 58 Cal.4th at p.
1360.) The Court found “no constitutional infirmity” because
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.” (Gutierrez, supra, 58 Cal.4th at pp. 160-161.)
The Gutierrez Court concluded Miller “require[d] a
sentencing court to admit and consider relevant evidence of the
following” factors pertinent “to a sentencer’s determination of
whether a particular defendant is a ‘“rare juvenile offender whose
crime reflects irreparable corruption.”’” (Gutierrez, supra, 58
Cal.4th at p. 1388.) “First, a court must consider a juvenile
offender’s ‘chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to appreciate risks
and consequences.’” (Ibid.) “Second a sentencing court must
consider any evidence or other information in the record
regarding ‘the family and home environment that surrounds [the
juvenile]—and from which he cannot usually extricate himself—
no matter how brutal or dysfunctional.’” (Id. at pp. 1388-1389.)
“Third, a court must consider any evidence or other information
in the record regarding ‘the circumstances of the homicide
offense, including the extent of [the juvenile defendant’s]
participation in the conduct and the way familial and peer
pressures may have affected him.’” (Id. at p. 1389.) “Fourth, a
court must consider any evidence or other information in the
record as to whether the offender ‘might have been charged and
convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity

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to assist his own attorneys.” (Ibid.) “Finally a sentencing court
must consider any evidence or other information in the record
bearing on ‘the possibility of rehabilitation.’” (Ibid.)
In sentencing Soeur, the trial court stated:
“So I am aware that I have discretion whether to impose a
life without the possibility of parole sentence on counts 1 and 2,
and I have discretion to run the sentences as to 1, 2, and 4
concurrently or consecutively.
“Regarding the Miller factors, as specified in the California
Supreme Court case of Gutierrez, I do understand that I am and
will and am taking into account Mr. Soeur’s age of 17 when the
offense was committed and the features of being 17, immaturity,
impetuosity, failure to appreciate risks and consequences. So I
am taking that into account.
“I am taking into account, also, the family and home
environment that Mr. Soeur grew up in, and when it’s negative,
it’s often described as a negative environment that you cannot
extricate yourself from. However, Mr. Soeur did not find himself
in a negative home environment, [it] was not crude or
dysfunctional. It was a caring family, from all appearances,
parents doing their best to raise their children to be law-abiding,
two siblings not involved in gangs, one did and extricated himself
from that. So the argument there is that Mr. Soeur, in a like
circumstance, chose that life that other juveniles in his home did
not.
“The circumstances of the homicide offense, including Mr.
Soeur’s participation, he was a killer, as found by the jury. There
were no familial pressures on him to engage in that conduct.
Being a member of a gang, there obviously was gang pressure to
back up other gang members, and he probably was not the

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leading actor in that, one of the adults more likely was. But he
was a willing and effective participant in the killings of innocent
individuals who were there for a party and were killed because of
gang members not allowed to enter, showing Mr. Soeur’s conduct
to be extremely callous.
“One factor that doesn’t apply here is whether he could
have been given a lesser offense but for incompetency associated
with youth where a youth would not accept a lesser charge or
plea bargain[; that] is not here.
“Possibilities of rehabilitation. He has the same
possibilities of rehabilitation that every juvenile would have. So I
do take that into account. It is probably a well known proposition
that individuals in their 40’s that are -- have violent background
are inclined to be less violent in general.
“So I am taking all that into account. Here it’s my
assessment that exercising my discretion with Mr. Soeur,
although a juvenile at the time of the commission of the offense,
was choosing that lifestyle for its glamour and for the material
benefits that that would have, and I do find that -- exercising my
discretion, that life without possibility of parole is the
appropriate sentence, in dealing with the horrific killing of the
two individuals at the party and almost killing a third, that
consecutive sentences are appropriate.”
Two and a half years after the trial court sentenced Soeur,
the United States Supreme Court issued its opinion in
Montgomery v. Louisiana (2016) 577 U.S. ____, 136 S.Ct. 718, 193
L.Ed.2d 599 (Montgomery) and explained, after Miller, “Even if a
court considers a child’s age before sentencing him or her to a
lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘“unfortunate yet

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transient immaturity.”’ [Citations.] Because Miller determined
that sentencing a child to life without parole is excessive for all
but ‘“the rare juvenile offender whose crime reflects irreparable
corruption,”’ [citations], it rendered life without parole an
unconstitutional penalty for ‘a class of defendants because of
their status’—that is, juvenile offenders whose crimes reflect the
transient immaturity of youth. [Citation.] As a result, Miller
announced a substantive rule of constitutional law.” (136 S.Ct. at
p. 734.) As the Court summarized, “Miller drew a line between
children whose crimes reflect transient immaturity and those
rare children whose crimes reflect irreparable corruption.” (Ibid.)
“That Miller did not impose a formal factfinding requirement
does not leave States free to sentence a child whose crime reflects
transient immaturity to life without parole.” (Id. at p. 735.) As a
result, “After Miller, it will be the rare juvenile offender who can
receive that same sentence” of life without parole. (Id. at p. 734.)
Soeur, who was 17 years old at the time of the shooting,
contends the trial court abused its discretion in sentencing him to
life without the possibility of parole for the murders. He
maintains the record of the sentencing hearing failed to establish
his irreparable corruption. Based on our review of the record, we
agree with the Attorney General’s assessment that the trial
court—which did not have the benefit of the Montgomery opinion
at the time it sentenced Soeur—did not appear to give due
consideration to whether his crimes reflected transient
immaturity or irreparable corruption.10
10 The issue of whether this is a required determination for
a sentencing court imposing life without the possibility of parole
is currently before the California Supreme Court. (People v.
Padilla (Oct. 25, 2016, B265614, review granted Jan. 25, 2017,

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The trial court went through the Gutierrez factors, but did
not appear to consider whether Soeur’s crimes reflected transient
immaturity or irreparable corruption. The court could only
sentence Soeur to life without the possibility of parole if this was
one of the rare cases in which the crimes reflected irreparable
corruption. The record does not show the court was cognizant of
the standard for the sentence it was imposing. Accordingly, we
conditionally vacate the judgment and remand the matter for
reconsideration to allow the court to exercise its discretion in
light of the Miller standard as restated in Montgomery.11 If, upon
reconsideration, the court determines life without the possibility
of parole is the appropriate sentence for the murders, it should
reinstate the original judgment.
S239454.) The question to be decided in People v. Padilla is:
“Did Montgomery v. Louisiana (2016) 577 U.S. ––––, 136 S.Ct.
718, 193 L.Ed.2d 599, clarify that Miller v. Alabama (2012) 567
U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller) bans a
sentence of life without the possibility of parole on a specific class
of juvenile offenders whose crimes reflect the transient
immaturity of youth, thereby requiring that trial courts
determine that the crime reflects ‘irreparable corruption
resulting in permanent incorrigibility’ before imposing life
without parole, or does a trial court comply with the
constitutional mandates of Miller by giving due consideration to
the offender’s youth and attendant circumstances in exercising
its sentencing discretion under Penal Code section 190.5,
subdivision (b)?” (387 P.3d 741.)
11 Soeur contends the trial court’s imposition of a parole
revocation fine was unauthorized given the sentence of life
without the possibility of parole. It was. The resentencing
hearing will determine whether a parole revocation fine is
appropriate.

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Souer argues that upon remand, a jury, not the trial court,
must determine whether he should be sentenced to life without
the possibility of parole. In his opening appellate brief, he asserts
“the Miller decision effectively determined that [a] parole eligible
life sentence for juvenile offenders convicted of murder should be
the presumptive maximum term of confinement absent
extraordinary (‘uncommon’) circumstances which establish the
offender to be ‘irreparably corrupt[].’” He maintains
Cunningham v. California (2007) 549 U.S. 270 (Cunningham)
mandates his position. We disagree. In Cunningham, the United
States Supreme Court held California’s Determinate Sentencing
Law violated the Sixth Amendment because it “authorize[d] the
judge, not the jury, to find the facts permitting an upper term
sentence,” where the middle term was “the relevant statutory
maximum.” (Id. at p. 293.) Here, life without the possibility of
parole is the maximum sentence for first degree murder with
special circumstances. Soeur cites no authority holding a jury
must determine whether a juvenile should be sentenced to life
without the possibility of parole. In People v. Blackwell (2016) 3
Cal.App.5th 166 (Blackwell), the Court of Appeal concluded the
trial court may impose a sentence of life without the possibility of
parole, after excising its discretion in considering whether the
crimes reflect transient immaturity or irreparable corruption,
without running afoul of the constitutional principles addressed
in Apprendi and Cunningham. (Blackwell, supra, 3 Cal.App.5th
at pp. 182-195.) We agree with the court in Blackwell.
IV. Imposition of the Firearm Enhancement Under
Section 12022.53, Subdivision (d) Was Proper
Soeur contends the trial court’s imposition of the firearm
enhancement under section 12022.53, subdivision (d) violated the

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multiple conviction rule and the Double Jeopardy Clause because
“the factual element essential to establishing that particular
enhancement in order to increase the maximum punishment on
the underlying murder by an additional 25 years-to-life is
necessarily subsumed within the elemental components of the
murder – the proximately caused death of the victim.”
Again, Soeur asks us to ignore California Supreme Court
precedent, which we may not do. In People v. Sloan (2007) 42
Cal.4th 110, our Supreme Court held enhancement allegations
may not “be considered for purposes of the rule prohibiting
multiple convictions based on necessarily included offenses.” (Id.
at p. 113.) In People v. Izaguirre (2007) 42 Cal.4th 126
(Izaguirre), the Court rejected the defendant’s argument that
under Apprendi, “as interpreted by [the California Supreme
Court] in People v. Seel (2004) 34 Cal.4th 535 . . . in the context of
federal double jeopardy jurisprudence, enhancements must be
treated as legal elements under the multiple conviction rule.”
(Izaguirre, supra, 42 Cal.4th at p. 128.) Apprendi requirements
are met where firearm enhancements are submitted to the jury
and found true beyond a reasonable doubt, as occurred in Soeur’s
case. (Izaguirre, supra, 42 Cal.4th at p. 131.) The Apprendi “rule
is compelled by the federal Constitution’s Fifth Amendment right
to due process and Sixth Amendment right to jury trial, made
applicable to the states through the Fourteenth Amendment.
[Citation.] It is not grounded on principles of federal double
jeopardy protection.” (Izaguirre, supra, 42 Cal.4th at p. 131.)
Double jeopardy is not implicated here because the murder
convictions and true findings on the firearm enhancement
allegations occurred in a unitary trial and not a second
prosecution. (Id. at pp. 133-134.) We have no cause to disagree

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with these California Supreme Court decisions, as Soeur requests
we do.
The trial court’s imposition of the firearm enhancements
under section 12022.53, subdivision (d) was proper under
prevailing law.
DISPOSITION
The judgment is conditionally vacated and the matter
remanded for reconsideration consistent with this opinion. If,
upon reconsideration, the court determines life without the
possibility of parole is the appropriate sentence for the murders,
it should reinstate the original judgment.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.

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