P. v. Prescott

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Filed 4/14/15 P. v. Prescott CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
EARNEST LEE PRESCOTT,
Defendant and Appellant.
A135991
(Alameda County
Super. Ct. No. C165685A)
INTRODUCTION
Defendant Earnest Lee Prescott appeals from his conviction of murder. He
maintains the court erred in admitting “gang evidence” and in excluding evidence
attacking the credibility of a witness. He also claims because he was 16 years old at the
time of his crime his sentence of two consecutive 25-years-to-life terms violates the
proscriptions against cruel and unusual punishment in the United States and California
Constitutions. We conclude the court did not err in its evidentiary rulings. We agree,
however, that defendant’s sentence is in effect the functional equivalent of life
imprisonment without possibility of parole, and deprives him of a meaningful opportunity
for parole in violation of the Eighth Amendment. We therefore remand the matter for
resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2010, James Johnson was shot and killed as he walked from his home
to the store. He lived in the Acorn housing complex in west Oakland, an area which was
the territory of the “Acorn” gang.

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On the day of the shooting, defendant, then 16 years old, was in a car heading over
to Sycamore Street in west Oakland, part of the turf of the “Ghost Town” gang. Armond
Turner was driving, and defendant was in the front seat with Laquisha Williams.
Williams was a crack dealer who at one time headed the “Q Team,” which was allied
with the “P Team.” Both “teams” were subsets of the Ghost Town gang. Jason Jones,
known as “2-9” and an individual called “Duder,” both of whom were affiliated with P
Team, as well as “three or four girls” were also in the car, which belonged to Williams’s
sister. Defendant was also affiliated with P Team.
Williams wanted to buy some marijuana, so the group headed toward an Oakland
neighborhood known as “Lower Bottoms,” driving though the territory of the rival Acorn
gang. While in Acorn territory, Jones saw a man he thought was Dionte Houff, or
“Birdman,” an Acorn gang member who had knocked out Jones’s tooth in prison. Jones
and defendant convinced Turner, the driver, to turn the car around anyway.
Turner made a U-turn, drove back and parked in a lot by a housing unit known as
“Mohr 1.” Defendant and Jones got out of the car and entered the housing complex.
They did not see Houff, but saw Johnson, who was walking from his home at the Acorn
housing unit toward Green Valley Foods. Defendant fired multiple shots at Johnson, who
fell to the ground. Johnson died from massive hemorrhaging due to multiple gunshot
wounds.
After defendant and Jones left the car but before the shooting, Williams sent
Duder to find out why the two were taking so much time in rival gang territory. She
testified if an individual is from Ghost Town, it would be dangerous to be in Acorn.
Williams then heard seven or eight shots fired, and defendant, Duder and Jones came
running back to the car. Williams told police that when defendant got in the car, he had a
silver and black gun, but at trial she testified she did not remember seeing a gun.
Williams told police defendant told her Jones “wanted to shoot” but defendant “ran up on
the dude.” At trial, Williams testified what she told police was “[n]ot really” true.
At the time of the shooting, Mignon Perry was at her mother’s home in the Mohr 1
unit, directly across from Johnson’s home. Perry supported “Gas Team,” a subset of the

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Acorn gang. She knew Johnson well, and thought of him as a relative. From her kitchen
window, she saw Johnson headed toward the Green Valley store, which she knew was his
“everyday routine.” She had just opened the front door to ask him to pick something up
for her when she heard multiple gunshots and Johnson shouting he had been shot.
Perry’s mother slammed the front door shut, and through the window, Perry saw
the shooter with a semiautomatic gun in his hand. The shooter pointed his gun at
Johnson, moved closer, and aimed. After the shooting stopped, she opened the door and
stepped outside, where she saw Johnson on the ground and the shooter running away.
The shooter turned around when Perry swore at him, giving her the opportunity to see
“the front of him,” and make eye contact with him. Perry saw no one else around. Perry
stayed with Johnson, who was still alive but could not speak, until police arrived.
Perry described the shooter to police as an African-American male between the
ages of 16 and 18 years old, 6 feet and 1 inch tall, wearing a white T-shirt and blue jeans
and carrying a silver handgun. She would not provide a written statement at the time
because the crowd that had gathered told her not to say anything to police. She later
learned from “[p]eople from the neighborhood” that Williams, Turner and defendant may
have been involved in the shooting. Perry was acquainted with Williams and Turner.
She logged on to Williams’s MySpace page, where she saw a photograph of Williams
with Turner and defendant, and recognized defendant as the shooter.
In an interview with police, Perry identified defendant in the MySpace photo as
the shooter. Police also showed her still photos from surveillance videos taken at Mohr
1, in which she was able to identify defendant, Williams, and Williams’s car. The
surveillance videos show a man identified as defendant leaving Williams’s car first and
heading into the housing complex, followed by a second man. About two minutes later, a
youth got out of Williams’s car and ran in the direction defendant and Jones had gone.
Within 30 seconds, all three of them returned to the car, got in, and drove away.
The day before the shooting, Williams hosted a memorial barbecue for Anthony
Dailey, known as “Active,” a Ghost Town gang member killed in 2007. She had T-shirts
made with Dailey’s picture on them for the event. Defendant, Jones and Dailey were

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close, and defendant was wearing one of the memorial T-shirts on the day of the
shooting.
Two days after the shooting, police arrested defendant and Williams for the
murder. Ultimately, defendant and Jones were charged with murder.1 (Pen. Code, § 187,
subd. (a).) The amended information further alleged defendant personally and
intentionally discharged a firearm causing great bodily injury and death. (Pen. Code,
§§ 12022.5, subd. (a), 12022.53, subds. (b) & (d), 12022.7, subd. (a).)
Police found the gun used to kill Johnson a few weeks later, in the course of
investigating another shooting. Police discovered defendant was a contact in the cell
phone of the individual from whom the gun was recovered.
A few months after his arrest, defendant escaped from the juvenile facility where
he was being held for trial. In his cell, law enforcement found two handwritten letters
addressed to “Dear Lord” in which he admitted “taking a human being life,” and asked
for forgiveness and a not guilty verdict.
A jury found defendant guilty of murder and discharging a firearm causing death.
The court sentenced defendant to an aggregate term of 50 years to life, consisting of two
consecutive terms of 25 years to life, one for the murder and one for the firearm
enhancement.
DISCUSSION
Admission of Gang Evidence
Defendant maintains the court erred in admitting the testimony of Oakland Police
Officer Steve Valle as an expert on the structure and activities of West Oakland gangs.
Valle testified regarding West Oakland gangs, the rivalry between Acorn and Ghost
Town gangs, common forms of gang retaliation, and identified the gangs with which
defendant and other involved individuals were affiliated. Defendant claims the evidence
was not relevant because the prosecution “fail[ed] to prove that [defendant] was a
member of the P-Team gang or had committed any past violent criminal acts in affiliation
1 Defendant and Jones were tried together, but Jones was acquitted.

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with or for the benefit of that gang . . . .” He also asserts the court erred in denying his
motion to exclude the evidence under Evidence Code section 352.2 We review the
court’s rulings “regarding relevancy and . . . section 352 . . . under an abuse of discretion
standard.” (People v. Lee (2011) 51 Cal.4th 620, 643 (Lee).)
“Evidence of the defendant’s gang membership, when not directly relevant to
prove an element of the offense or an enhancement . . . is, like evidence of prior crimes,
subject to both Evidence Code section 1101, subdivision (b) and 352.” (Simons, Cal.
Evidence Manual. § 1:31.) Section 1101 prohibits admission of evidence of a “person’s
character . . . whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct . . . when offered to prove his or her conduct on a
specified occasion.” (§ 1101, subd. (a).) “In general, ‘[t]he People are entitled to
“introduce evidence of gang affiliation and activity where such evidence is relevant to an
issue of motive or intent.” [Citation.]’ [Citation.]” (People v. McKinnon (2011)
52 Cal.4th 610, 655.) Thus, gang evidence may be admissible “if relevant to motive or
identity, so long as its probative value is not outweighed by its prejudicial effect.”
(People v. Williams (1997) 16 Cal.4th 153, 193.)
Defendant maintains that in cases such as this, in which there is no substantive
gang charge or street gang enhancement, gang evidence is only admissible when the
defendant has “proven gang ties that made the evidence relevant to a material issue.” He
relies on three cases: Lee, supra, 51 Cal.4th 620 (Lee); People v. Jordan (2003)
108 Cal.App.4th 349 (Jordan); and People v. Ruiz (1998) 62 Cal.App.4th 234 (Ruiz),
none of which support his claims.
In Lee, the defendant was convicted of first degree murder after shooting the
victim “with seven shots to her face at close range,” with the special circumstance of
attempted rape. (Lee, supra, 51 Cal.4th at pp. 623, 643.) The prosecutor conceded there
was no evidence the murder was gang-related, and agreed not to present evidence of the
defendant’s gang membership. (Id. at p. 642.) The prosecutor instead sought to
2 All further statutory references are to the Evidence Code unless otherwise
indicated.

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introduce evidence of the defendant’s nickname, “Point Blank,” to show identity and
intent. (Ibid.) The evidence showed defendant introduced himself as “Point Blank,” and
after the murder was asked “ ‘[I]s that why they call you Point Blank?’ ” to which he did
not respond. (Ibid.) On appeal, the court held evidence of the nickname was relevant to
identity but cumulative of other evidence, and thus had minimal probative value in that
regard. (Id. at p. 643.) The nickname, however, was relevant and “extremely probative
with regard to the intent,” and thus admissible. (Ibid.)
In Jordan, the defendant was charged with possession for sale of cocaine base,
which was found in a stairwell where he had been sitting. (Jordan, supra,
108 Cal.App.4th at pp. 353–354.) The trial court initially excluded evidence of his gang
membership, but allowed it on rebuttal after the defense presented evidence “indicating
gang members sold drugs in the area of the apartment complex” where the defendant was
apprehended. (Id. at pp. 365–366.) The court held “[t]he prosecutor was entitled to rebut
the inference, created by [the] defense, that the drugs found in the stairwell belonged to
one of the gang members, not [defendant].” (Ibid.)
In Ruiz, the defendant was convicted of the sale of rock cocaine. (Ruiz, supra,
62 Cal.App.4th at p. 236.) His defense was alibi. In addition to several family members
testifying he was at his mother’s house at the time of the drug sale to an undercover
officer, a man who shared a cell with the defendant but claimed not to know him stated
he was the dealer who had sold drugs to the undercover officer. (Id. at p. 237.) In
rebuttal, the prosecutor presented expert gang testimony that the man and defendant were
both members of the same small gang, and thus “it was impossible for [them] not to
know each other.” (Id. at p. 238.)
Contrary to defendant’s claim, the California Supreme Court has explained that
neither a substantive gang charge nor a street gang enhancement is a prerequisite for
admission of gang affiliation to show motive or intent. “In cases not involving the gang
enhancement, we have held that evidence of gang membership is potentially prejudicial
and should not be admitted if its probative value is minimal. [Citation.] But evidence of
gang membership is often relevant to, and admissible regarding, the charged offense.

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Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific intent, means of applying
force or fear, or other issues pertinent to guilt of the charged crime.” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1049, firs italics omitted, second italics added.)
The court admitted the testimony of Officer Valle as an expert on “gangs, their
structure and activities, particularly as related to West Oakland.” Valle identified the
neighborhood where the shooting took place as the turf of the Acorn gang, a rival of the
Ghost Town gang. He explained those two gangs were involved in an “extremely violent
and bloody feud.” Officer Valle testified defendant, Williams and Jones were affiliated
with the P Team subset of the Ghost Town gang, and Duder3 was affiliated with Ghost
Town. He identified Dionte Houff, also known as “Birdman,” as an Acorn gang member.
Officer Valle also testified it was not important to the gangs whether innocent
bystanders were killed during their feud. Shootings of innocent people, in his opinion,
benefited the shooting gang because they create “a violent reputation for the gang,
sending a message to the rivals that they are not to use force, or means of violence to
attack them, and to send a message that . . . they are willing to shoot anybody within their
turf to send a message. And at times, that sends that shock value to the gangs that are
being attacked . . . .”4 Officer Valle testified it was common for gang members or people
living in gang territory to be uncooperative with police, often for fear of retaliation.
Defendant does not specify the precise evidence he claims was irrelevant, but
asserts “[g]ang evidence was irrelevant in light of the prosecution’s failure to prove that
[he] was a member of the P-Team gang or had committed any past violent criminal acts
3 Duder, sometimes spelled “Dooder” in the transcript, was 13 years old at the
time of the shooting.
4 Williams’s assessment of the situation, in her interview with police, was similar:
“When people funk it’s just like they gonna get on whoever they think that that’s gonna
be out there that’s you know with it. Cuz it’s like a lot of people in Ghost Town had died
that didn’t have nothing to do with nothin’ they just standing in a crowd. And like you
know like how you be goin’ to get somebody but then you get the wrong person . . . .”

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in affiliation with or for the benefit of that gang, or any other circumstance to rationally
support the conclusion that [he] explicitly or impliedly knew the conduct was motivated
by a retaliatory purpose on the part of P-Team.” Defendant mistakes the prosecution’s
burden in this regard; because this case involved neither a substantive gang charge nor a
street gang enhancement, the prosecution was not required to prove defendant’s gang
membership beyond a reasonable doubt. Nevertheless, there was sufficient evidence of
defendant’s gang affiliation to render the “gang testimony” relevant. Officer Valle
testified defendant was affiliated with P Team, and Williams told police defendant was
affiliated with P Team. Defendant does not dispute the evidence showed Williams,
Jones, and Duder, who were in the car driven to the shooting, were affiliated with the P-
Team/Ghost Town gang.
At oral argument, defendant’s counsel maintained the gang evidence was not
relevant to motive, relying on People v. Albarran (2007) 149 Cal.App.4th 214
(Albarran). In Albarran, the defendant was convicted of attempted murder, shooting at
an inhabited dwelling, and attempted kidnapping for carjacking, as well as gang
enhancements pursuant to Penal Code section 186.22. (Albarran, at p. 217.) A large
amount of gang evidence, “including [defendant’s] gang affiliation, tattoos, gang
behavior, activities [and] crimes,” was admitted as relevant to motive and intent. (Id. at
pp. 217, 219–220.) A sheriff’s deputy gang expert testified to his “numerous” prior
contacts with the defendant, who was a member of the “13 Kings” gang. (Id. at p. 220.)
He “testified at length about the identities of other 13 Kings members, the wide variety of
crimes they had committed and the numerous contacts between the various gang
members (other than [the defendant]) and the police. He described a specific threat 13
Kings had made in their graffiti to kill police officers. The jury heard references to the
Mexican Mafia both during the prosecutor’s opening argument and in [the expert’s]
testimony.” (Id. at pp. 227–228, fn. omitted.) The expert further testified “how gang
members gain respect by committing crimes and intimidating people.” (Id. at p. 221.)
The shooting occurred at a private birthday party, with “no evidence the shooters
announced their presence or purpose—before, during or after the shooting.” (Albarran,

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supra, 149 Cal.App.4th at pp. 220, 227.) The gang expert testified “he was told there
were members of another gang” at the home where the shooting occurred, and opined the
offenses were gang-related because “there were two shooters involved, and the crime
would intimidate people.” (Id. at pp. 227–228.) The Court of Appeal held the gang
evidence was improperly admitted to show motive, concluding “[t]here is nothing
inherent in the facts of the shooting to suggest any specific gang motive . . . the only
evidence to support . . . motive is the fact of [the defendant’s] gang affiliation.” (Id. at
p. 227, fn. omitted.)
In contrast, the circumstances of the crime in this case did suggest a gang motive.
Defendant, an affiliate of Ghost Town, while wearing a memorial T-shirt
commemorating a slain gang member, was driving through rival gang territory with other
affiliates of the Ghost Town gang. His codefendant Jones saw a man he thought to be a
member of a rival gang, Dionte Houff, with whom he had a previous conflict. That man,
however, turned out to be Johnson.
Officer Valles’s testimony was thus highly relevant because it provided evidence
of motive for the otherwise unexplainable killing. And, his testimony was relevant to
provide background and context, explaining the structure, activities, territories and
rivalries of gangs in Oakland at the time of the killing.
Defendant also maintains the evidence should have been excluded under
section 352, claiming even if the “gang evidence” was relevant, its relevance was
“heavily outweighed by the extreme emotional bias [it] evoked against defendant.”
Section 352 provides: “The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” “ ‘ “Because a motive is ordinarily the
incentive for criminal behavior, its probative value generally exceeds its prejudicial
effect, and wide latitude is permitted in admitting evidence of its existence.” [Citation.]’
[Citation.]” (People v. McKinnon (2011) 52 Cal.4th 610, 655.)

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“It is important to keep in mind what the concept of ‘undue prejudice’ means in
the context of section 352. ‘ “Prejudice” as contemplated by section 352 is not so
sweeping as to include any evidence the opponent finds inconvenient. Evidence is not
prejudicial, as that term is used in a section 352 context, merely because it undermines
the opponent’s position or shores up that of the proponent. The ability to do so is what
makes evidence relevant. The code speaks in terms of undue prejudice. . . . “ ‘The
“prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues. In applying section 352, “prejudicial” is not synonymous
with “damaging.” ’ [Citation.]” [Citation.] [¶] ‘The prejudice that section 352 “ ‘is
designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence.’ [Citations]. ‘Rather, the statute uses the word in its
etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.
[Citation.]’ [Citation.]” . . . In other words, evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury, motivating
them to use the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors’ emotional reaction. In such a
circumstance, the evidence is unduly prejudicial because of the substantial likelihood the
jury will use it for an illegitimate purpose.’ ” (People v. Branch (2001) 91 Cal.App.4th
274, 286.)
The court undertook a careful weighing before admitting the gang testimony.
After conducting a section 402 hearing at which Officer Valle testified, the court stated:
“I do find that there is some prejudice as to admission of the gang evidence, in that, . . .
the jury could take from that gang membership, such that the membership in a violent
street gang might, to a jury, show that the defendants are bad guys, and by that reason
alone, are more likely to have committed the crime. [¶] So those are factors weighing
towards prejudice and confusion, pursuant to 352. [¶] However, I feel that the evidence
is highly relevant to show motive, to provide the ‘why’ the killing of James Johnson
occurred; that is, that it was a retaliation type of killing, shown by the fact that the group

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would not have been in the Acorn area at [personal] peril unless to conduct a violent act.
[¶] Also, the evidence is highly relevant, in and of itself, to corroborate the expected
testimony of Laquisha Williams. [¶] So I’m balancing all of the evidence, taking into
consideration the written authorities and the testimony of Officer Valle that I heard today.
[¶] I feel that the relevance of the evidence substantially outweighs prejudice. [¶] I do
believe a curative instruction, if desired by the defense, can be fashioned, to the effect
that membership in a gang, in and of itself, does not prove the crime charged.” We
cannot say this ruling was an abuse of discretion.
Even assuming it was error to admit the gang evidence, it was harmless.5
Defendant acknowledged “taking a human life” in his “Dear Lord” letters, and prayed for
acquittal. Perry witnessed the shooting and identified defendant as the shooter. Williams
told police defendant got out of her car at Mohr 1 on the day of the shooting, and returned
carrying a gun after she heard shots. Williams also identified defendant in still photos
from the surveillance video. Moreover, the gang evidence was also used to attack the
credibility of the prosecution witnesses Perry and Williams, who were affiliated with
rival gangs. In sum, there was no reasonable probability that there would have been a
result more favorable to defendant in the absence of Officer Valle’s testimony.
Exclusion of Evidence Regarding Williams’s Credibility
Defendant maintains the court erred in excluding evidence Williams “fabricated
evidence to incriminate her husband” in statements to police about an unrelated murder
with which her husband was charged. The court excluded the evidence under
section 352.
Counsel for codefendant Jones filed a motion seeking to question Williams about
her testimony in the trial of her husband for the murder of her brother, which was
5 Defendant claims admission of this evidence denied him his due process rights,
necessitating review under the Chapman standard. (Chapman v. California (1967)
386 U.S. 18.) “[T]he admission of evidence results in a due process violation only if it
renders the trial fundamentally unfair,” a claim defendant has not made. (People v.
Cowan (2010) 50 Cal.4th 401, 463–464.) The Attorney General asserts there was no
prejudice under either the Chapman or People v. Watson (1956) 46 Cal.2d 818 standards.

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proceeding at the same time. She allegedly “testified as to hiding a murder weapon [and]
suggesting that [her husband,] the defendant take a photo of himself in Reno, and change
the date, manufacturing evidence.” Williams also told police her husband was not the
shooter. Defense counsel asserted “she’s now saying that she told the police that story,
because she was upset with her husband for having another woman, and for shooting her
brother, so she was trying to fabricate evidence to incriminate him. [¶] At the trial she
says: But I just made that up. Now I’m telling the truth: I did not suggest he fabricate
it.”
The court acknowledged the evidence was relevant to her credibility, but held “in
order for the jury to make any sense whatsoever of that evidence, in the face of her denial
that she lied during her testimony at those trials, [it] certainly will involve undue time and
confusion, which I think does substantially outweigh its probative value.”
The probative value of her inconsistent testimony in connection with a different
trial was limited because Williams’s credibility was already severely undermined in a
variety of ways. Her testimony at this trial contradicted important aspects of the
statement she made to police after the incident. At trial, she claimed to have “fabricated a
little bit” in her statement to police. She was also impeached with three felony
convictions. Additionally, she testified she used drugs and alcohol, and when she was
under the influence had a difficult time remembering because she also had “other
personal issues, on top of the drugs.” She also readily acknowledged her lack of
truthfulness. At trial, she was asked “[D]o you think it’s fair to say that this statement is
true: That you are willing to lie often to get what you want.” Williams responded “Yes.”
Given the cumulative evidence Williams was untruthful and willing to lie to get
what she wanted, the confusion likely to result from the proffered evidence of her further
untruthfulness in an unrelated proceeding, and the undue time presenting this evidence
would take, the trial court did not abuse its discretion in excluding the evidence.6
6 Defendant asserts exclusion of the evidence to impeach Williams’s credibility
violated his constitutional rights to due process and to present a defense. “ ‘ “As a
general matter, the ordinary rules of evidence do not impermissibly infringe on the

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Constitutionality of Defendant’s Sentence
Defendant claims his total sentence of 50 years to life was a de facto life sentence
without possibility of parole (LWOP) which violated his Eighth Amendment rights
because “it was imposed with no consideration of [his] youth and attendant factors” set
forth in Miller v. Alabama (2012) ___U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407]
(Miller).7 The Attorney General asserts the 50-year-to-life sentence is not a de facto
LWOP because defendant’s life expectancy is greater than 66 years, the age at which he
would be eligible for parole. Even if the sentence is considered a de facto LWOP, the
Attorney General maintains any need for resentencing has been eliminated by the recent
enactment of Penal Code section 3051, which assertedly cured any constitutional
infirmity.
In Graham v. Florida (2010) 560 U.S. 48, 74–75 (Graham), the court held that the
Eighth Amendment prohibits states from sentencing a juvenile convicted of a
nonhomicide offense to life imprisonment without the possibility of parole. In Miller,
supra, __ U.S. ___ at p. __ [132 S.Ct. at p. 2464], the court further expanded the scope of
the protection afforded juveniles, holding that even in homicide cases a mandatory
sentence of life in prison without the possibility of parole imposed on a defendant who
was under the age of 18 at the time of his or her crime violates the Eighth Amendment.
The court explained that the Eighth Amendment does not necessarily foreclose a sentence
of life without the possibility of parole on “ ‘the rare juvenile offender whose crime
reflects irreparable corruption’ ” (Miller, at p. 2469), but does require that prior to
accused’s right to present a defense.” ’ [Citation.]” (People v. Lucas (2014) 60 Cal.4th
153, 270–271.) He also maintains the cumulative effect of the claimed evidentiary errors
resulted in reversible error. Because we find no error in the evidentiary rulings, these
claims fail.
7 The Miller opinion sets forth a list of factors related to the age of a juvenile
offender that the trial court must consider before imposing an LWOP sentence, including
“immaturity, impetuosity, and failure to appreciate risks and consequences”; whether “the
family and home environment that surrounds” the juvenile is “brutal and dysfunctional”;
“the way familial and peer pressures may have affected” the juvenile; and “the possibility
of rehabilitation.” (Miller, supra, __U.S. __ at p. __ [132 S.Ct. at p. 2468].)

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imposing such a sentence, the court “take into account how children are different, and
how those differences counsel against irrevocably sentencing them to a lifetime in
prison” (Ibid.) The court explained, “Mandatory life without parole for a juvenile
precludes consideration of his 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 him—and from
which he cannot usually extricate himself—no matter how brutal or dysfunctional. It
neglects the circumstances of the homicide offense, including the extent of his
participation in the conduct and the way familial and peer pressures may have affected
him. Indeed, it ignores that he 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 to assist
his own attorneys.” (Id. at p. 2468.)
Following Miller, the California Supreme Court held in People v. Caballero
(2012) 55 Cal.4th 262, that Miller also applied when a juvenile was sentenced to a term
that was the functional equivalent of an LWOP. The court held “sentencing a juvenile
offender for a nonhomicide offense to a term of years with a parole eligibility date that
falls outside the juvenile offender’s natural life expectancy constitutes cruel and unusual
punishment in violation of the Eighth Amendment. Although proper authorities may
later determine that youths should remain incarcerated for their natural lives, the state
may not deprive them at sentencing of a meaningful opportunity to demonstrate their
rehabilitation and fitness to reenter society in the future.” (People v. Caballero, supra,
55 Cal.4th at p. 268.)
California appellate courts have relied on Miller on a number of occasions in
reversing de facto LWOP sentences imposed on juvenile offenders. For example, in
People v. Argeta (2012) 210 Cal.App.4th 1478, the court held that the Eighth
Amendment precluded sentencing a defendant convicted on an aiding and abetting theory
of committing murder at the age of 15 to an aggregate minimum sentence of 100 years,
which was concededly a de facto LWOP. In People v. Lewis (2013) 222 Cal.App.4th

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108, Division Five of this court held that a prison sentence totaling 115 years to life for
three sexual assaults and a murder was a de facto LWOP, and the juvenile defendant
therefore had to be resentenced in light of Miller. The court directed the trial court to
impose a sentence that would result in a parole eligibility date within the defendant’s
expected lifetime, unless the trial court found that the defendant’s “offenses reflect[ed]
his irreparable corruption within the meaning of Miller.” (People v. Lewis, at pp. 117–
123.) The issue of whether both a 77-years-to-life sentence and a 50-years-to-life
sentence for a juvenile are the functional equivalent of LWOP sentences is currently
before the California Supreme Court. (In re Alatriste, review granted Feb. 19, 2014,
S214652 [77 years to life]; In re Bonilla, review granted Feb. 19, 2014, S214960 [50
years to life].)
Respondent claims the sentence imposed was not a de facto LWOP because “the
trial court found as a factual matter that ‘under present mortality rates,’ [defendant] could
be ‘expected to live substantially beyond that minimum parole time” of age 66. At
sentencing in July 2012, defense counsel raised the Eighth Amendment issue, referencing
Miller which had been decided about two weeks prior to the hearing.8 The court rejected
that claim, stating “defendant in this case will be eligible for parole after a minimum of
50 years. And under present mortality rates, he can be expected to live substantially
beyond that minimum parole time, and consequently, I would find it not to be cruel or
unusual punishment.”
The record, however, contains no evidence of “present mortality rates.” As one
commentator has noted, mortality rates may differ based on gender, race, socioeconomic
factors and incarceration. (Cummings, Adele, et al., There is no Meaningful Opportunity
in Meaningless Data: Why It is Unconstitutional to Use Life Expectancy Tables in Post-
Graham Sentences (2014) 18 U.C. Davis J. Juv. L. & Policy 267, 279–285.) Without any
8 Miller was issued on June 25, 2012. (Miller, supra, __U.S.__ at p. __ [132 S.Ct.
2455].) Caballero, which held sentencing a juvenile offender to a de facto LWOP
sentence violated the Eighth Amendment, was decided about two weeks after the hearing,
on August 16, 2012. (Caballero, supra, 55 Cal.4th 262.)

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evidence in the record, we cannot conclude a sentence which provides for a minimum age
for chance of parole at 66 years is not a de facto LWOP.
The Attorney General next maintains that even if the sentence is considered a de
facto LWOP, any need for resentencing has been eliminated by the recent enactment of
Penal Code section 3051.9 The Legislature responded to our Supreme Court’s suggestion
in Caballero to enact legislation establishing a parole eligibility mechanism providing
juvenile offenders who are committed to state prison with an opportunity for release.
(See Pen. Code, § 3051, Stats. 2013, ch. 312, § 4 (Sen. Bill No. 260 (2013–2014 Reg.
Sess.).) Section 3051 provides for a youth offender parole hearing in certain
circumstances: “A person who was convicted of a controlling offense that was
committed before the person had attained 18 years of age and for which the sentence is a
life term of 25 years to life shall be eligible for release on parole by the board during his
or her 25th year of incarceration at a youth offender parole hearing . . . .” (Pen. Code,
§ 3051, subd. (b)(3).)
In People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), decided after the
opening and respondent’s briefs were filed in this case, our Supreme Court considered an
analogous statute; Penal Code section 1170, subdivision (d)(2). That section provides for
the possibility of a resentencing hearing for juvenile offenders convicted of homicide and
committed to an LWOP term pursuant to Penal Code section 190.5, subdivision (b).10
“When a defendant who was under 18 years of age at the time of the commission of the
offense for which the defendant was sentenced to imprisonment for life without the
possibility of parole has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and resentencing.” (Pen. Code,
§ 1170, subd. (d)(2)(A)(i).)
9 The issue is currently before the California Supreme Court in In re Alatriste
(S214652) and In re Bonilla (S214960), review granted February 19, 2014.
10 Penal Code section 190.5 provides the penalty for 16-year-old or 17-year-old
juveniles who commit special circumstance murder “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.”

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Prior to Gutierrez, section 190.5 had been construed as “creating a presumption in
favor of life without parole as the appropriate penalty for juveniles convicted of special
circumstances murder.” (Gutierrez, supra, 58 Cal.4th at p. 1360.) The Gutierrez court
held that in order to pass constitutional muster, section 190.5, subdivision (b) must be
read to permit the sentencing judge to impose either LWOP or 25 years to life, in the
court’s discretion, with no presumption in favor of an LWOP sentence. (Gutierrez, at
pp. 1360, 1386–1387.) Gutierrez further held “Miller[, supra, __U.S. __ at p. __
[132 S.Ct. 2455]] requires a trial court, in exercising its sentencing discretion, to consider
the ‘distinctive attributes of youth’ and how those attributes ‘diminish the penological
justifications for imposing the harshest sentences on juvenile offenders’ before imposing
life without parole on a juvenile offender.” (Id. at p. 1361)
The Attorney General in Gutierrez maintained the recent enactment of Penal Code
section 1170, subdivision (d)(2), a statute analogous to section 3051, eliminated any
constitutional problems arising from construction of section 190.5, subdivision (b) to
include a presumption in favor of an LWOP sentence. (Gutierrez, supra, 58 Cal.4th at
p. 1384.) Gutierrez rejected that claim, holding “Miller requires sentencing courts to
undertake a careful individualized inquiry before imposing life without parole on juvenile
homicide offenders. [Citation.]” (Id. at p. 1382, italics added, citing Miller, supra,
__ U.S. __ at p. __ [132 S.Ct. at pp. 2468–2469].) As the Gutierrez court reasoned, “it is
doubtful that the potential to recall a[n] [LWOP] sentence based on a future
demonstration of rehabilitation can make such a sentence any more valid than when it
was imposed. If anything, a decision to recall the sentence pursuant to section 1170(d)(2)
is a recognition that the initial judgment of incorrigibility underlying the imposition of
life without parole turned out to be erroneous.” (Gutierrez, at pp. 1386–1387.) Rather,
the court interpreted Miller as requiring that “the sentencing authority must address this
risk of error by considering how children are different and how those differences counsel
against a sentence of life without parole ‘before imposing a particular penalty.’
[Citation.]” (Gutierrez, at p. 1387.) Thus, the court held the requirement that trial courts
conduct an individualized inquiry into the Miller factors before imposing an LWOP

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sentence on a juvenile offender is not obviated by section 1170, subdivision (d)(2).
(Gutierrez, at p. 1387.)
Section 3051, which similarly provides for a parole hearing in the future, likewise
does not assure that the trial court will address the Miller factors at the outset of a
juvenile offender’s sentencing. (See Gutierrez, supra, 58 Cal.4th at p. 1386; Graham,
supra, 560 U.S. at p. 75.) As Gutierrez makes clear, that analysis must occur at the time
of sentencing; the possibility that the defendant may be able to obtain an earlier parole
hearing date in the future is not an adequate substitute. (Gutierrez, at pp. 1384–1387.)
Accordingly, we conclude that defendant must be resentenced.
DISPOSITION
Defendant’s conviction is affirmed. With respect to defendant’s sentence only, the
judgment is vacated, and the case is remanded for resentencing in accordance with the
views expressed in this opinion, as they may be clarified or limited by future opinions of
the California Supreme Court in the relevant cases now pending before it.11
11 Defendant has also filed a petition for writ of habeas corpus in case
No. A141777 which we have denied by separate order filed this date. The deferred
request for judicial notice filed in case No. A141777 is hereby granted.

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_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Dondero, J.

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