P. v. Hodge

Filed 7/24/17 P. v. Hodge CA2/3
Opinion on remand from the Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD S. HODGE,
Defendant and Appellant.
B264853
Los Angeles County
Super. Ct. No. NA106955-
02
APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard R. Romero, Judge. Reversed and
remanded with directions.
Sean K. Kennedy, Center for Juvenile Law & Policy, Loyola
Law School, Los Angeles, 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 and
Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________________

-- 1 of 27 --

2
INTRODUCTION
In 1996, defendant Richard S. Hodge was convicted of a
murder and a robbery he committed when he was 17 years old.
Hodge was sentenced to life imprisonment without parole
(LWOP), plus 10 years to run consecutively for the robbery
conviction and firearm enhancement. In 2013, Hodge filed a
petition for a writ of habeas corpus in the superior court,
requesting the court resentence him in accordance with Miller v.
Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407
(Miller). In 2015, the court granted Hodge’s petition, vacated
Hodge’s LWOP sentence, and conducted a new sentencing
hearing. After considering the factors discussed in Miller, the
court reimposed Hodge’s LWOP sentence.
On August 11, 2016, we issued our original opinion
affirming the trial court’s reimposition of Hodge’s LWOP
sentence. (People v. Hodge (Aug. 11, 2016, B264853 [nonpub.].)
On November 22, 2016, the California Supreme Court
transferred this matter to this court with “directions to vacate
[the August 11, 2016] decision and reconsider the cause in light of
Montgomery v. Louisiana (2016) 577 U.S. __, 136 S.Ct. 718, 193
L.Ed.2d 599 [(Montgomery)]. (Cal. Rules of Court, rule 8.528(d).)”
(People v. Hodge (Nov. 22, 2016, No. S237337).)1 Having done so,
we conclude the trial court must determine whether Hodge was
the “rarest of juvenile offenders” whose crime reflects “permanent
incorrigibility” before sentencing him to LWOP. (Montgomery,
supra, 136 S.Ct. at p. 734.) Accordingly, we reverse and remand
for a new sentencing hearing.
1 After the parties submitted their supplemental briefs
responding to the Supreme Court’s November 22, 2016 order, the
People filed a motion to strike Hodge’s supplemental brief. The motion
is denied.

-- 2 of 27 --

3
BACKGROUND2
1. The Carjacking and Murder
On August 9, 1993, Hodge and Virgil Clarke decided to
steal a car. Around 7:00 a.m. that morning, Hodge and Clarke
approached a car parked near Long Beach Polytechnic High
School (Poly), where they were students. Catherine Tucker, the
school’s crossing guard, was sitting in the car’s front seat reading
the newspaper. Hodge walked toward the driver’s side of the car
while Clarke approached the passenger’s side. When Tucker
turned to look at Hodge, Hodge shot her in the head, killing her.
Hodge and Clarke then moved Tucker’s body toward the center
console of the car and covered it with Tucker’s newspaper. Hodge
drove the car to an alleyway where they dumped Tucker’s
belongings into the street and moved her body to the trunk.
Hodge then drove to the Los Angeles River, where he and Clarke
tried to dispose of Tucker’s body; however there were too many
people near the river, so they left Tucker’s body in the trunk and
returned to Poly.
During his first-period class, Hodge passed a note to his
friend, Dionisio Kepa, saying that he “killed this bitch.” He asked
Kepa to meet him after class. Later that day, Hodge, Clarke, and
Kepa left campus in Tucker’s car. Shortly after leaving campus,
Hodge crashed the car into a bus. Hodge, Clarke, and Kepa
abandoned the car and fled the scene, but they were arrested
shortly after the accident.
Immediately after he was arrested, Hodge denied shooting
Tucker. He claimed that he and Clarke decided to take Tucker’s
car because they found it with the front window down, the keys
2 The factual and procedural summary that follows is taken from
our original opinion.

-- 3 of 27 --

4
in the ignition, and no one in the front seat. Hodge told the
police the gun was already on the floorboard when he and Clarke
entered the car. However, when Hodge arrived at the police
station, he admitted he had had the gun “for some time” and that
he had used it to shoot Tucker. Hodge told the police he shot
Tucker because he “wanted the car.”
2. The Charges, Trial, and Verdict
Hodge was charged with first-degree murder (Pen. Code,3
§ 187, subd. (a)) and second-degree robbery (§ 211). As to the
murder charge, the People alleged Hodge committed the murder
while engaged in the robbery (§ 190.2, subdivision (a)(17)(A)). As
to the murder and robbery charges, the People alleged a principal
factor was armed with a firearm (§ 12022, subdivision (a)(1)), and
that Hodge personally used a firearm while committing the
crimes (§ 12022.5, subd. (a)).
Hodge testified at trial. He recanted the statements he
made earlier to the police admitting he shot Tucker. He claimed
that on the morning of August 9, 1993, Clarke showed up at his
house around 6:30 a.m. to show him a car that Clarke had stolen
earlier that morning. When Hodge looked inside the car, he saw
Tucker’s body in the passenger seat. Clarke told Hodge he had
accidentally shot Tucker, claiming the gun “went off” as he
approached Tucker’s car. Hodge decided to help Clarke dispose of
Tucker’s body, so he drove Tucker’s car to an alleyway in Long
Beach, where they removed most of Tucker’s possessions from the
car and placed Tucker’s body in the trunk. Hodge then drove
Tucker’s car to school, and he and Clarke went to class. During
his first-period class, Hodge wrote Kepa a note saying that he
had “a problem” and needed to meet after class to talk about it.
3 All undesignated statutory references are to the Penal Code.

-- 4 of 27 --

5
Hodge denied writing a note to Kepa admitting he had killed
someone.
When questioned about why he had told the police he killed
Tucker, Hodge claimed he had agreed to take the blame for the
murder and robbery because he was only 17 years old at the time
of the crimes, while Clarke was already 18 years old. Hodge
believed that since he was a minor, he would receive only
“juvenile time” and stay in prison until he was 25 years old, as
opposed to Clarke, who would likely have to spend the rest of his
life in prison if convicted of murder.
The jury convicted Hodge of first-degree murder and
second-degree robbery. It found true the special-circumstance
allegation that Hodge committed the murder while engaged in
the robbery. The jury also found true both firearm allegations.
3. Hodge’s Original Sentence
Before the sentencing hearing, the court referred Hodge to
the California Youth Authority (Youth Authority) to be evaluated
for his amenability to training and treatment offered by the
organization. In April 1996, following a 60-day evaluation, the
Youth Authority produced a report finding Hodge would be
amenable to training and treatment. The Youth Authority
recommended Hodge be placed in an age-appropriate
rehabilitation facility.
On May 2, 1996, the court conducted Hodge’s sentencing
hearing. The court considered the Youth Authority’s amenability
report and heard argument from Hodge’s counsel requesting the
court exercise its discretion under section 190.54 to sentence
4 Section 190.5 provides in relevant part: “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

-- 5 of 27 --

6
Hodge to 25 years to life in prison instead of LWOP. The court
rejected counsel’s request and sentenced Hodge to LWOP on his
first-degree murder conviction. The court explained its decision
as follows. “Under Penal Code section 190.5, I don’t believe it is
appropriate to basically stay the special circumstance finding of
true by the jury. [¶] Based on the circumstances of the offense,
the planning involved, vulnerability of the victim, the execution
style shooting of the victim, I don’t believe it’s appropriate to stay
or strike the special circumstance finding. [¶] So far as
circumstances in aggravation, the victim was particularly
vulnerable in her vehicle at that hour. The defendant’s crime
here, both crimes were planned, not impulsive, involve another as
a lookout. There is added culpability for involving another. [¶]
The defendant at the time and shortly after the offenses showed
no remorse, no emotional effect. [¶] In mitigation, he has no
record of violence and now does show remorse. [¶] The
circumstances in aggravation outweigh those in mitigation.” The
court then imposed a consecutive five-year term for the personal-
use firearm allegation and a consecutive five-year term for the
second-degree robbery conviction, for a total sentence of LWOP
plus 10 years.5
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).)
5 Hodge appealed from the court’s original judgment, arguing that
under section 654, the court should have stayed imposition of the
consecutive five-year term for his robbery conviction. In a
nonpublished opinion (People v. Hodge (April 18, 1997, B103959)), we
modified Hodge’s sentence to stay imposition of the consecutive five-
year term, reducing Hodge’s total sentence to LWOP plus five years.
We otherwise affirmed the judgment.

-- 6 of 27 --

7
4. The Habeas Petition
On July 25, 2013, Hodge filed a petition for a writ of habeas
corpus in the trial court, challenging the constitutionality of his
LWOP sentence in light of Miller. Hodge argued he was entitled
to a new sentencing hearing to allow him to present mitigating
evidence relevant to the factors discussed in Miller. In their
response to Hodge’s petition, the People conceded Hodge was
entitled to a new sentencing hearing. The People also conceded
that section 1170, subdivision (d)(2), which allows a prisoner who
was sentenced to LWOP as a juvenile to petition the trial court
for recall of sentence and resentencing after he or she has served
15 years of that sentence, did not provide an adequate remedy to
challenge the constitutionality of an LWOP sentence imposed on
a juvenile offender before Miller was decided.
5. The New Sentencing Hearing and Hodge’s Mitigating
Evidence
On April 13, 2015, the same judge who presided over
Hodge’s trial and original sentencing hearing vacated Hodge’s
LWOP sentence on the murder conviction6 and granted Hodge a
new sentencing hearing. In support of his request for a non-
LWOP sentence, Hodge filed a sentencing memorandum and
statement in mitigation of punishment, supported by more than
150 pages of exhibits, including Hodge’s original sentencing
memorandum filed in 1996, the Youth Authority’s amenability
report filed in 1996, and statements and reports from three
experts recommending Hodge receive a non-LWOP sentence.
Efty Sharony, a Senior Mitigation Specialist and Social
Worker for Loyola Law School’s Center for Juvenile Law and
6 The court did not vacate Hodge’s five-year term for the firearm
allegation.

-- 7 of 27 --

8
Policy, submitted a written report and provided unsworn
testimony at Hodge’s new sentencing hearing. In preparing her
report and testimony, Sharony interviewed Hodge, Hodge’s
mother and father, Clarke, and Hodge’s high-school girlfriend,
Kim Sutton. Sharony also reviewed the Youth Authority’s
amenability report filed in 1996, Hodge’s records from the
California Department of Corrections and Rehabilitation
(Department of Corrections), Hodge’s mental health records, and
the records from Hodge’s trial. Sharony’s report and testimony
outline Hodge’s youth and family background.
Hodge grew up in Pittsburgh, Pennsylvania, where he lived
with his mother and younger brother. Hodge’s father, who
suffered from Schizophrenia and abused drugs and alcohol,
sometimes lived with the family, but he would disappear for
extended periods of time. He was absent for much of Hodge’s
childhood and did not provide financial support for the children.
Hodge’s father also was abusive toward Hodge’s mother, often
physically and sexually assaulting her in front of the children,
but he never physically or sexually abused Hodge or Hodge’s
brother.
Hodge attended school in Pittsburgh through the seventh
grade. Around the time he entered the eighth grade, Hodge
moved with his mother and brother to Long Beach. While in
Long Beach, Hodge’s family would often rely on government aid
for support, and they frequently lived in government-subsidized
housing. At one point, Hodge’s family lived in an apartment
complex that was controlled by the Rolling 20s Crips. Although
he never joined a gang, Hodge became friends with some gang
members. Hodge’s brother also began associating with gang
members, and he was arrested several times. After arriving in
Long Beach, Hodge’s mother moved the family to at least eight

-- 8 of 27 --

9
different apartments in a six-year period due to the family’s
financial struggles and Hodge’s brother’s behavioral problems.
Before his sophomore year of high school, Hodge
transferred to Poly. Hodge joined the school’s ROTC program,
where he met Clarke, who was a member of the Rolling 20s gang.
Clarke usually carried a gun, and he would often get into fights.
Hodge looked up to Clarke and relied on him for protection.
During his sophomore year of high school, Hodge developed
a serious romantic relationship with Kim Sutton. In April 1993,
Kim cheated on Hodge with one of Hodge’s friends. Kim’s
relationship with Hodge’s friend, which lasted for several
months, was difficult for Hodge to cope with. Nevertheless,
Hodge continued to date Kim. Clarke often ridiculed Hodge for
continuing to see Kim, and he would often encourage Hodge
either to beat up the friend who was seeing Kim or to stop talking
to Kim.
As a teenager, Hodge suffered several concussions, some of
which temporarily changed his demeanor. When Hodge was 15
years old, he suffered a concussion after he was thrown from his
bicycle during a collision with a car. Hodge’s mother recalled
that his behavior changed after the accident. He became
aggressive and short-tempered, which, according to Hodge’s
mother, was out of character compared to his good-natured
demeanor before the accident. Hodge also suffered a concussion
after he was struck in the head with the butt of a rifle during
ROTC practice.
Prior to killing Tucker, Hodge had never been involved in
any reported incidents of violence, and he did not have a criminal
history. According to Hodge’s mother, Hodge generally had a fun-
loving and people-pleasing attitude. Kim described Hodge as
quiet, artsy, and affectionate. Clarke described Hodge as “ ‘not
rough.’ ” Clarke told Sharony that Hodge did not like to fight and

-- 9 of 27 --

10
that it was out of character for Hodge “ ‘to do something like
this,’ ” referring to the murder and carjacking. Sharony opined
that based on Hodge’s lack of a prior history of violent or criminal
misconduct, Hodge was likely motivated by peer pressure to
participate in the carjacking with Clarke. Sharony believed that
Clarke, whom Hodge looked up to, was pressuring Hodge to act
like a man after Kim cheated on him. According to Sharony,
Hodge decided to go along with the carjacking because he
believed he needed to impress Clarke, and he wanted to
compensate for his own feelings of low self-esteem.
Dr. Barry Krisberg, an expert in criminology, submitted a
declaration in support of Hodge’s sentencing memorandum. In
preparing his declaration, Dr. Krisberg reviewed Hodge’s records
from the Department of Corrections, Hodge’s habeas petition, and
the documents supporting the petition.
Hodge’s behavior in prison has been positive. During his
nearly 20 years of incarceration, Hodge has had very few
disciplinary charges, and he has not engaged in any significant
violent conduct. Hodge also has participated in
anger-management and drug-rehabilitation programs, and he
earned his GED while housed with the Youth Authority before
his transfer to the Department of Corrections. Hodge is well-
liked by the Department of Corrections staff, who often describe
him as “polite and respectful.” Dr. Krisberg concluded that, in
light of Hodge’s good behavior in prison, which corroborates the
Youth Authority’s prior determination that Hodge would be
amenable to training and treatment, and the fact that Hodge was
under the age of 18 at the time he committed the homicide,
reimposing an LWOP sentence would be unreasonable.
Dr. Barbara Counter, a clinical and forensic psychologist,
submitted a psychological evaluation report in support of Hodge’s
sentencing memorandum. In preparing her report, Dr. Counter

-- 10 of 27 --

11
interviewed Hodge in March 2015 and reviewed Hodge’s social
history report, Hodge’s original sentencing memorandum, the
Youth Authority’s amenability report, and Hodge’s records from
the Department of Corrections.
According to Dr. Counter, Hodge was less culpable at the
time of Tucker’s murder due to his age, and he has since
demonstrated a capacity to change based on his good behavior
over the course of nearly twenty years in prison. Dr. Counter
opined that, at the time of Tucker’s murder, Hodge exhibited
signs of “Adolescent Brain Development,” which is associated
with the following behavioral indicators: (1) immaturity; (2) lack
of ability to consider alternative courses of action; (3) criminal
behavior; (4) heightened risk taking; (5) immature decision
making; (6) immaturity of judgment; (7) poor future orientation;
(8) lower likelihood of weighing the consequences of one’s actions;
(9) impulsivity; and (10) difficulty making decisions that are in
one’s best long-term interests. Dr. Counter also believed that the
concussions Hodge suffered prior to Tucker’s murder had stifled
his brain’s development, in turn increasing his desire to engage
in dangerous and risk-taking behavior as a teenager.
Dr. Counter recommended Hodge receive a non-LWOP sentence
based on his “diminished culpability at the time of the crime, as
well as his hardiness, resilience, developing insight and proven
ability to grow, change and learn from life experiences.”
Hodge also addressed the court at the sentencing hearing.
He attributed his participation in the murder and carjacking to
the absence of a father figure during his childhood and
adolescence, as well as his impressionability as a teenager.
According to Hodge, he “let go of [his] moral compass” when he
allowed Clarke to convince him to participate in the carjacking.
Hodge took responsibility for shooting Tucker and expressed
remorse for killing her.

-- 11 of 27 --

12
Defense counsel acknowledged that Hodge was a full
participant in Tucker’s murder and did not try to minimize
Hodge’s responsibility. However, counsel argued that in order for
the court to reimpose LWOP on Hodge, it would have to find he
was incorrigible and irreparably corrupt at the time of the
murder and carjacking, something that counsel claimed the court
could not find based on Hodge’s youth and post-conviction
behavior. Counsel pointed out that, despite growing up in an
unstable household with no father figure, Hodge had no criminal
record or any documented negative interactions with law
enforcement before Tucker’s murder, and he was never a member
of a criminal street gang. Counsel asserted Hodge had shown
signs of rehabilitation by taking responsibility and expressing
remorse for killing Tucker.
The prosecutor argued that Miller did not require the court
to impose a non-LWOP sentence for Hodge’s murder conviction.
The prosecutor asserted Hodge did not act impetuously when he
committed the murder and carjacking. Hodge, not Clarke, had
possession of the gun when Clarke posed the idea of stealing a
car. Hodge acted according to a plan, and he was the one who
used the gun during the crime. The prosecutor focused on how
Hodge killed Tucker in an execution manner and showed no
remorse shortly after killing her, moving her body to the trunk of
her car, driving her car with her body still in it to and from his
high school, and bragging about killing her to another student at
his school. The prosecutor acknowledged Hodge had a difficult
upbringing, but he contended Hodge’s background did not
mitigate against reimposing an LWOP sentence in light of
Hodge’s callous and calculated behavior before, during, and after
the murder of Tucker.
In deciding whether to reimpose an LWOP sentence on
Hodge, the court stated it was aware of, and would weigh, the

-- 12 of 27 --

13
Miller factors relevant to making such a determination. The
court also stated that in making its determination, it would not
take into account the fact that, even if he were resentenced to
LWOP, Hodge could ask the Governor to commute his sentence,
or ask the Parole Board to release him on parole.
The court described its application of the Miller factors to
Hodge’s case as follows:
“Under [People v. Gutierrez (2014) 58 Cal.4th 1354
(Gutierrez)] and, of course, Miller, the court has to look at the
juvenile offender’s chronological age, 11 months shy of 18. Of
course, we all know that a 17-year-old can be extremely
immature and a 14-year-old can be mature on the other side. I do
take into account the age, but it is certainly not determinative.
“I do take into account the evidence presented by the
defense, including the statement and report of specialist Efty
Sharony and the California Youth Authority amenability
determination at the time of sentencing, plus the other
declarations by the defense experts, Barry Krisberg, and so forth,
and their opinion stating that [Hodge] is amenable to change and
acted immaturely and with impetuosity at the time of this
offense. I do acknowledge that.
“It is true that [Hodge] came from a dysfunctional family
without a father figure to raise him, was exposed to violence,
lived in a neighborhood dominated or affected by criminal gang
activity. I note the abuse of alcohol, the tendency to give in to
peer pressure, the issues with the girlfriend at the time.
“Jumping to the fourth factor, we have no evidence about
any plea negotiations that might have occurred had the [prior
defense] sought that . . . , not these counsel here.[7]
7 Although the record from Hodge’s trial reflects the prosecution
offered Hodge 30 years to life in state prison in exchange for pleading

-- 13 of 27 --

14
“So I do take into account under what might be called the
fifth factor all the information regarding the possibility of
rehabilitation.
“What I need to do in this instance is determine
Mr. Hodge’s character at the time of the offense. So that is the
determinative matter for me to decide, and I do agree with the
District Attorney, although I don’t adopt the term ‘heinous,’
because this offense at the time of its commission was such that
it did demonstrate a callousness on the part of Mr. Hodge. He
did act in cold blood. He was repentant at the time of the original
sentencing and now certainly is, but until then he was not. He
was the actual shooter. There are no impetuosities as shown by
the facts because this was a desire to have a car available for
private use. It was not sophisticated, plainly. Taking the body to
school, showing it to others was clearly an invitation to be
discovered by the police. So I agree with the D.A. that the
conduct post the commission demonstrates that he was concerned
about the effects of the offense, he knew what he had done at the
time, and although 17, was acting in a mature fashion.”
The court concluded: “All these facts, under all the
considerations of Gutierrez and Miller, require me to consider,
I do find that at the time of the commission of that offense, the
time of the original sentencing, Mr. Richard Hodge unfortunately
is, was incorrigible, irreparably, and is not amenable to change.”
The court then reimposed Hodge’s LWOP sentence for his murder
conviction.
guilty to first-degree murder and the firearm allegation, Hodge’s
counsel did not mention the offer in Hodge’s new sentencing
memorandum or bring it to the court’s attention at the hearing.

-- 14 of 27 --

15
DISCUSSION
In our original opinion, we addressed the following issues:
(1) whether it was reversible error for the same judge who
presided over Hodge’s trial and original sentencing hearing to
rule on Hodge’s habeas petition and conduct the April 2015
sentencing hearing; and (2) whether the court misapplied Miller
and violated the Eighth Amendment when it resentenced Hodge
to an LWOP term. In its transfer order, the California Supreme
Court directed us to reconsider the cause in light of Montgomery,
a United States Supreme Court case interpreting Miller that was
decided after Hodge’s April 2015 sentencing hearing. The
transfer order makes no reference to the first issue addressed in
our original opinion. Our discussion below therefore focuses on
whether the trial court properly reimposed Hodge’s LWOP
sentence in light of the principles established in Montgomery.8
1. The Eighth Amendment and Juvenile LWOP
Sentences
The Eighth Amendment guarantees “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” (U.S. Const., 8th Amend.) This
means that punishment for crime “ ‘should be graduated and
proportioned to [the] offense.’ [Citation.]” (Roper v. Simmons
(2005) 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (Roper).)
What constitutes “cruel and unusual” punishment under the
8 In our earlier decision, we affirmed the trial court’s procedure
for ruling on Hodge’s habeas petition, concluding section 859c does not
apply to post-conviction habeas petitions and that the trial judge who
conducted Hodge’s original sentencing hearing in 1996 was the
appropriate judge to conduct his resentencing hearing in 2015. We
would reach the same conclusion if that issue were before us under the
Supreme Court’s November 22, 2016 order.

-- 15 of 27 --

16
Eighth Amendment is a fluid concept that is determined by
looking not only to historical conceptions, but also to “ ‘ “the
evolving standards of decency that mark the progress of a
maturing society.” ’ [Citations.]” (Graham v. Florida (2010)
560 U.S. 48, 58, 130 S.Ct. 2011, 176 L.Ed.2d 825 (Graham).)
1.1. Miller and its predecessors
After Hodge was sentenced to LWOP in 1996, the United
States Supreme Court issued three decisions expanding on the
Eighth Amendment’s application to juvenile offenders.
Beginning with Roper, the Court held death sentences for
juvenile offenders violate the Eighth Amendment. (Roper, supra,
543 U.S. at p. 578.) Five years later, the Court decided Graham,
holding the Eighth Amendment bars the imposition of LWOP on
juvenile offenders convicted of nonhomicide offenses. (Graham,
supra, 560 U.S. at p. 82.) Most recently, in Miller, the Court
further limited the application of LWOP to juvenile offenders,
holding the Eighth Amendment prohibits sentencing schemes
that mandate LWOP for a juvenile convicted of a homicide
offense. (Miller, supra, 567 U.S. at pp. 470, 479.)
Underlying all three of these decisions is the Court’s
recognition that significant differences exist between adult and
juvenile offenders for purposes of sentencing. (Miller, supra, 567
U.S. at p. 471 [recognizing that “children are constitutionally
different from adults for purposes of sentencing”], citing Roper,
supra, 543 U.S. at p. 569 and Graham, supra, 560 U.S. at p. 68.)
“First, children have a ‘ “lack of maturity and an underdeveloped
sense of responsibility,” ’ leading to recklessness, impulsivity, and
heedless risk-taking. [Citation.] Second, children ‘are more
vulnerable . . . to negative influences and outside pressures,’
including from their family and peers; they have limited ‘contro[l]
over their own environment’ and lack the ability to extricate
themselves from horrific, crime-producing settings. [Citation.]

-- 16 of 27 --

17
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].’ [Citation.]” (Miller, supra, 567
U.S. at p. 471.) These “distinctive attributes of youth diminish
the penological justifications for imposing the harshest sentences
on juvenile offenders, even when they commit terrible crimes.”
(Id. at p. 472.)
In concluding a mandatory LWOP sentence for a juvenile
offender violates the Eighth Amendment, the Court in Miller also
looked to the application of the death penalty to adult offenders––
specifically, the requirement that a sentencer make an
individualized determination that the death penalty is an
appropriate sentence for each defendant in a capital case before
he or she may be sentenced to death. (Miller, supra, 567 U.S. at
pp. 474–479.) The Court reasoned that because LWOP is
tantamount to a death sentence for a juvenile offender, the
Eighth Amendment requires the sentencing court to make an
individualized determination that LWOP is a suitable sentence
for the juvenile offender before such sentence may be imposed.
(Ibid.)
The Court in Miller outlined five factors that generally will
be relevant to the individualized determination that must be
performed before a juvenile offender may be sentenced to LWOP.
(Miller, supra, 567 U.S. at pp. 477–478.) Those factors are:
(1) the juvenile’s “chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate
risks and consequences”; (2) “the family and home environment
that surrounds [the juvenile]—and from which [the juvenile]
cannot usually extricate himself—no matter how brutal or
dysfunctional”; (3) “the circumstances of the homicide offense,
including the extent of [the juvenile’s] participation in the
conduct and the way familial and peer pressures may have

-- 17 of 27 --

18
affected him”; (4) whether the juvenile “might have been charged
and convicted of a lesser offense if not for incompetencies
associated with youth—for example, [the juvenile’s] inability to
deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys”; and
(5) “the possibility of rehabilitation[,]” including the extent or
absence of the juvenile’s criminal history. (Ibid.; see also
Gutierrez, supra, 58 Cal.4th at pp. 1388–1389.)
Although the Court in Miller declined to declare all LWOP
sentences for juveniles unconstitutional, it cautioned that such
sentences should be appropriate only in rare circumstances. The
Court stated: “[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.” (Miller,
supra, 567 U.S. at pp. 479–480, fn. omitted.)
1.2. Montgomery
In 2016, the United States Supreme Court decided
Montgomery. In Montgomery, the Court held that Miller
announced a new substantive rule of constitutional law that must
be given retroactive application in state court collateral review
proceedings. (Montgomery, supra, 136 S.Ct. at pp. 725, 732–737.)
The Court explained that Miller established a substantive rule

-- 18 of 27 --

19
that identifies a class of defendants for whom an LWOP sentence
is unconstitutional: juvenile offenders convicted of homicide
offenses whose crimes reflect “ ‘ “unfortunate yet transient
immaturity.” ’ [Citations.]” (Id. at p. 734.) Thus, the Court
cautioned that an LWOP sentence can be imposed only on “the
rarest of juvenile offenders,” those whose homicide offenses
reflect “permanent incorrigibility” or “such irretrievable
depravity that rehabilitation is impossible.” (Id. at pp. 733, 734.)
While acknowledging that principles of federalism
prevented the Court in Miller from requiring state courts to make
explicit findings that a juvenile offender is irreparably corrupt
before imposing an LWOP term, the Court recognized that
“ ‘appropriate occasions for sentencing juveniles to this harshest
possible penalty will be uncommon.’ ” (Montgomery, supra, 136
S.Ct. at pp. 733–735, quoting Miller, supra, 567 U.S. at p. 479.)
Specifically, the Court concluded the fact “[t]hat 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. To the contrary, Miller established that
this punishment is disproportionate under the Eighth
Amendment.” (Montgomery, supra, 136 S.Ct. at p. 735.)
1.3. California cases addressing Miller and
Montgomery
In California, section 190.5 provides the sentencing
framework for juveniles convicted of crimes normally eligible for
sentences of death and LWOP. Subdivision (a) prohibits the
imposition of the death penalty on any offender who was under
the age of 18 at the time the crime was committed. (§ 190.5,
subd. (a).) Subdivision (b) gives the court discretion to sentence a
juvenile who was over the age of 16 at the time he or she
committed a special-circumstance murder to LWOP or 25 years to
life in prison. (§ 190.5, subd. (b).)

-- 19 of 27 --

20
Prior to Miller, California courts interpreted section 190.5,
subdivision (b), to create a presumption in favor of imposing
LWOP on qualifying juvenile offenders. (See Gutierrez, supra,
58 Cal.4th at pp. 1360, 1369–1370.) In Gutierrez, the California
Supreme Court reexamined section 190.5 and held that when
properly construed, the statute does not create a presumption in
favor of imposing LWOP on qualifying juvenile offenders. (Id. at
pp. 1371, 1387.) Rather, the statute requires a sentencing court
to consider the Miller factors before imposing such a sentence on
a juvenile. (Id. at p. 1387.)
The court in Gutierrez explained the sentencing court’s role
under section 190.5, subdivision (b). “[T]he 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.’ [Citation.] To be sure, not every
factor will necessarily be relevant in every case. For example, if
there is no indication in the presentence report, in the parties’
submissions, or in other court filings that a juvenile offender has
had a troubled childhood, then that factor cannot have mitigating
relevance. But Miller ‘require[s] [the sentencer] to take into
account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in
prison.’ [Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1390,
second alteration in original.) Relevant evidence of the
“distinctive attributes of youth” includes evidence of
postconviction rehabilitation, such as a defendant’s good behavior
in prison since he or she was sentenced to LWOP as a juvenile.
(People v. Lozano (2016) 243 Cal.App.4th 1126, 1137–1138
(Lozano).)
After Gutierrez was decided, the appellate court in People v.
Palafox (2014) 231 Cal.App.4th 68 (Palafox) addressed how

-- 20 of 27 --

21
sentencing courts should apply the Miller factors when
determining whether to impose an LWOP term on a juvenile
offender under section 190.5. In Palafox, the defendant, who was
sixteen years old at the time of his offenses, was convicted of two
counts of first-degree murder and sentenced to two consecutive
LWOP terms. (Id. at pp. 73, 81.) Because the defendant was
sentenced before Miller was decided, the reviewing court
remanded the case for resentencing. (Id. at pp. 74–75.) On
remand, the trial court reimposed the defendant’s consecutive
LWOP terms. (Id. at pp. 74–81.) In discussing its application of
Miller, the trial court acknowledged that it could not exclude the
“significant possibility of [the defendant] rehabilitating.” (Id. at
p. 80.) Nevertheless, the court found the weight of the Miller
factors supported reimposing the defendant’s LWOP sentences.
(Id. at pp. 80–81.)
On appeal, the defendant argued his sentence was
unconstitutional because the trial court had not ruled out the
possibility that he could be rehabilitated in the future. (Palafox,
supra, 231 Cal.App.4th at p. 90.) In affirming the defendant’s
sentence, the reviewing court recognized that although Miller
cautions that LWOP will be an appropriate sentence only in the
rare circumstance where a juvenile offender is irreparably
corrupt, the Supreme Court did not hold that any one of the
factors outlined in Miller must take precedence over any of the
other factors. Rather Miller requires only “ ‘that a sentencer
follow a certain process—considering an offender’s youth and
attendant characteristics—before imposing a particular penalty.’
[Citation.]” (Id. at p. 91, quoting Miller, supra, 567 U.S. at p.
483.) Thus, according to Palafox, a sentencing court exercising
its discretion under section 190.5 may afford whatever weight it
reasonably determines appropriate to each of the Miller factors in
light of the circumstances of the case. (Palafox, supra,

-- 21 of 27 --

22
231 Cal.App.4th at pp. 73, 91.) Because the trial court considered
all of the relevant evidence and weighed the applicable Miller
factors, it did not abuse its discretion in imposing LWOP on the
juvenile defendant. (Id. at p. 91.)
In People v. Blackwell (2016) 3 Cal.App.5th 166 (Blackwell),
the defendant, who had an extensive criminal history as a
juvenile, challenged his LWOP sentence imposed for a homicide
offense he committed while he was a juvenile. (Id. at pp. 182–
203.) The defendant argued his sentence violated Apprendi v.
New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d
435 (Apprendi), because a jury did not make factual findings
regarding the Miller factors before the court imposed his LWOP
sentence. (Blackwell, supra, 3 Cal.App.5th at pp. 182–195.)
After rejecting the defendant’s Apprendi argument, the reviewing
court concluded the trial court did not abuse its discretion by
affording more weight to the circumstances of the defendant’s
crime than the defendant’s immaturity before imposing an
LWOP term. (Id. at pp. 199–203.) The court followed the
approach adopted in Palafox that a sentencer may give whatever
weight it reasonably deems appropriate to the Miller factors, so
long as it gives due consideration to all of the relevant factors.
(Id. at pp. 200–201.) Because the trial court explicitly considered
all of the Miller factors, it did not err when it selected an LWOP
term based “primarily on [the defendant’s] circumstances and the
heinous nature of the offense.” (Id. at p. 201.)
In People v. Padilla (2016) 4 Cal.App.5th 656 (Padilla),
which was decided after we issued our original opinion in this
case, our colleagues in Division Four examined how Montgomery
affects Miller’s holding.9 The court interpreted Montgomery as
9 On January 25, 2017, the California Supreme Court granted
review in Padilla, requesting the parties to brief the following issue:

-- 22 of 27 --

23
“significantly recast[ing] Miller” such that Miller “must be
regarded as announcing a substantive rule barring LWOP terms
for a specific class of juvenile offenders, namely those ‘ “whose
crimes reflect the transient immaturity of youth,” ’ not
irreparable corruption.” (Id. at p. 672, quoting Montgomery,
supra, 136 S.Ct. at p. 743.) While recognizing that neither Miller
nor Montgomery requires state courts to make explicit findings of
irreparable corruption, the court in Padilla observed that the
“stringent standard set forth in Montgomery cannot be satisfied
unless the trial court, in imposing an LWOP term, determines
that in light of all the Miller factors, the juvenile offender’s crime
reflects irreparable corruption resulting in permanent
incorrigibility, rather than transient immaturity.” (Padilla,
supra, 4 Cal.App.5th at p. 673.) In the Padilla court’s view,
Montgomery vitiates the holdings in Palafox and Blackwell that
“a trial court complies with Miller ‘as long as [it] gives due
consideration to an offender’s youth and attendant
circumstances,’ without ruling out the possibility that the
offender was subject to rehabilitation.” (Id. at p. 673; see also id.
at p. 673, fn. 7.) Instead, Montgomery requires the trial court to
“assess the Miller factors with an eye to making an express
determination whether the juvenile offender’s crime reflects
“Did [Montgomery] clarify that [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 discretion under Penal
Code section 190.5, subdivision (b)?” (People v. Padilla (2017) 387 P.3d
741.)

-- 23 of 27 --

24
permanent incorrigibility arising from irreparable corruption.”
(Id. at p. 673.) Because the trial court had sentenced the juvenile
defendant to LWOP before Montgomery was decided, Division
Four remanded the case for the court to conduct a new sentencing
hearing applying the Miller factors in light of the principles
discussed in Montgomery. (Id. at pp. 674–675.)
2. The trial court must conduct a new sentencing
hearing in light of Montgomery.
In our original opinion, we affirmed the trial court’s
decision to resentence Hodge to LWOP under Miller. In doing so,
we relied on the approach adopted in Palafox that a sentencing
court may give whatever weight it deems appropriate to the
Miller factors, so long as the court gives due consideration to all
of the relevant factors that are supported by the record. (See
Palafox, supra, 231 Cal.App.4th at pp. 73, 91.) Because the trial
court weighed the evidence and arguments addressing those
factors, we concluded the court did not abuse its discretion in
finding the circumstances of Hodge’s crime outweighed the
mitigating evidence.
After reconsidering Hodge’s appeal, we conclude the
approach adopted in our original opinion is no longer tenable
under principles set forth in Montgomery. As our discussion of
Montgomery makes clear, Miller prohibits states from sentencing
the vast majority of juvenile offenders convicted of homicide
offenses to LWOP. (See Montgomery, supra, 136 S.Ct. at pp. 734,
735 [“After Miller, it will be the rare juvenile offender who can
receive [an LWOP] sentence.”].) In our view, a sentencing court
cannot ensure that only the rarest of juvenile offenders will be
sentenced to LWOP by simply considering all of the relevant
Miller factors, while being free to afford whatever weight the
court deems appropriate to each of those factors. Instead,
Miller’s proscription against imposing LWOP sentences on such a

-- 24 of 27 --

25
large class of juvenile offenders—namely, those whose crimes
reflect “transient immaturity”—necessarily requires sentencing
courts to make a determination that is focused on the
circumstances of the offender’s youth. (See id. at p. 735 [Miller’s
requirement that sentencing court’s consider “ ‘youth and its
attendant circumstances’ ” is designed to ensure that juveniles
whose crimes reflect “transient immaturity” are not sentenced to
LWOP terms].) Thus, before imposing an LWOP sentence on a
juvenile offender, the sentencing court must determine that the
offender is among the “rarest of juvenile[s]” whose crime reflects
“permanent incorrigibility,” and not “transient immaturity.” (See
id. at pp. 734, 735.)
Because the trial court reimposed Hodge’s LWOP sentence
before Montgomery was decided, we must remand for a new
sentencing hearing. In doing so, we acknowledge that the court
found at the April 2015 sentencing hearing that Hodge was
“incorrigible, irreparably, and is not amenable to change.” For
the reasons discussed below, however, we cannot conclude
whether the court would have made the same determination had
its analysis been informed by Montgomery.
At the prior sentencing hearing, the trial court considered
mitigating evidence presented by Hodge. For example, the
defense presented evidence that Hodge grew up in an unstable
home environment, with a father who struggled with substance
abuse and was largely absent for much of Hodge’s childhood.
When he was present, the father often physically and sexually
abused Hodge’s mother in front of Hodge and his brother.
Despite his troubled upbringing, Hodge was described by his
family and friends as a fun-loving, quiet, and affectionate
teenager. In addition, Hodge had never been involved in any
violent or criminal act before he killed Tucker. The underlying
crime, as heinous as it was, was Hodge’s first run in with the law.

-- 25 of 27 --

26
The court also acknowledged evidence of Hodge’s post-
conviction behavior. (See Lozano, supra, 243 Cal.App.4th at
pp. 1137–1138 [at a Miller resentencing hearing, the court must
consider all relevant evidence of a defendant’s amenability to
rehabilitation, including a defendant’s good behavior in prison
after he was sentenced to LWOP].) Like his pre-offense behavior,
Hodge’s post-conviction behavior is largely positive. As of April
2015, after 20 years of incarceration, Hodge had not engaged in
any significant incident of violence, had a reputation among the
Department of Correction’s staff as being “polite and respectful,”
and had participated in anger-management and drug-
rehabilitation programs.
The court did not, however, consider Hodge’s mitigating
evidence through Montgomery’s lens. That is, the court did not
determine whether, in light of Hodge’s family history,
background, and pre- and post-conviction behavior, he is “ ‘ “the
rare juvenile offender whose crime reflects irreparable
corruption.” ’ ” (Montgomery, supra, 136 S.Ct. at p. 734.) In sum,
we cannot conclude on this record that the trial court would have
resentenced Hodge to an LWOP term if it had the benefit of
Montgomery’s guidance. As a result, we reverse and remand the
matter for a new sentencing hearing. On remand, the court shall
consider all evidence that is relevant to determining whether
Hodge is the rare juvenile offender whose crime reflects
permanent incorrigibility, including evidence of Hodge’s post-
conviction rehabilitation and pre-conviction plea negotiations in
which Hodge may have participated. (See Gutierrez, supra, 58
Cal.4th at pp. 1388–1389; Lozano, supra, 243 Cal.App.4th at pp.
1137–1138.)

-- 26 of 27 --

27
DISPOSITION
The April 13, 2015 judgment imposing Hodge’s LWOP
sentence is reversed and the matter is remanded for a new
sentencing hearing in accordance with the views expressed in
this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
BACHNER, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

-- 27 of 27 --