P. v. Smith

Filed 12/7/17 P. v. Smith CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
KYLIN DION SMITH,
Defendant and Appellant.
F072701
(Super. Ct. No. F11906258)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman, Sean M. McCoy, and Kevin L. Quade, Deputy Attorneys General, for Plaintiff
and Respondent.
–ooOoo–

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2.
INTRODUCTION
Defendant Kylin Dion Smith was convicted by jury of the first degree murder of
Felipe Atilano (Pen. Code,1 § 187, subd. (a); count 1), the attempted second degree
robbery of Atilano (§§ 664, 211; count 2), and the attempted second degree robbery of
Isidro Madera (§§ 664, 211; count 4). As to count 1, the jury found true an aggravating
circumstance alleging the murder was committed in the commission of a robbery
(§ 190.2, subd. (a)(17)(A)), and a circumstance alleging defendant was 17 years old at the
time of the murder. As to all counts, the jury found defendant personally discharged a
firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)). In a
bifurcated proceeding, the court found true an allegation that defendant had committed all
counts for the benefit of, at the direction of, or in association with, a criminal street gang
within the meaning of section 186.22, subdivision (b)(1).
Defendant received a sentence of life without the possibility of parole on count 1,
with a term of 25 years to life for the firearm enhancement. On count 4, the court
imposed an upper term of two years six months, with a term of 25 years to life for the
firearm enhancement. The court stayed punishment on count 2 and stayed punishment on
the gang enhancements attached to all counts.
On appeal, defendant claims (1) the trial court erred in failing to consider and
apply all of the mandatory factors under Miller v. Alabama (2012) 567 U.S. 460 (Miller)
in sentencing him to life without the possibility of parole (LWOP), (2) defendant’s
sentence on counts 2 and 4 is unauthorized, and (3) the trial court erred when it imposed a
parole revocation restitution fine. We conclude there is insufficient evidence to show the
court considered all of the Miller factors in sentencing defendant. We further conclude
defendant’s sentence on counts 2 and 4 is unauthorized. In light of our holding, we will
vacate defendant’s sentence and remand the matter to the trial court for resentencing.
1All undefined statutory citations are to the Penal Code unless otherwise indicated.

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3.
Because this matter must be remanded, the issue of whether the parole revocation
restitution fine is unauthorized is moot.
FACTUAL AND PROCEDURAL HISTORY
Prosecution’s Case
The Murder of Felipe Atilano
On October 2, 2011, at around 6:00 a.m., police responded to a single story
apartment complex in southwest Fresno commonly referred to as “the Brownies.” Upon
arrival, police discovered Felipe Atilano lying face down next to a minivan. Atilano had
been shot in the head.
Atilano worked in agriculture outside of Fresno. He had been paid the day before
and had immediately cashed his $400 or $450 check. Police observed Atilano’s pants
pockets had been turned inside out and loose change was scattered around his body.
Atilano was transported to the hospital. He died as a result of his injury. An autopsy
revealed Atilano had been shot at close range behind his left ear.
Law enforcement processed the minivan for evidence. A .380-caliber bullet was
discovered around the passenger’s side of the vehicle. In addition, the van’s glove box
was open and the owner’s manual, vehicle registration, and insurance information were
found on the floorboard of the van.
Detective Andre Benson was assigned to investigate Atilano’s murder. Benson
had received anonymous phone calls identifying the potential suspects as Walter King
and a light-skinned Black male named “Kyle.” The tip indicated Kyle was from Los
Angeles and was involved with a gang called the Hoover Crips. A latent fingerprint
lifted from the owner’s manual found in the minivan was subsequently matched to
defendant.

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4.
The Shooting of Isidro Madera
On the evening of October 14, 2011, 70-year-old Isidro Madera was returning
from the Family Food Market near his home in southwest Fresno when he was
confronted by a young, light-complected, Black male. The male, a teenager, demanded
Madera’s wallet. Madera saw six more Black male youths standing nearby. Madera
responded “[he] didn’t have money,” and stated, “All I have is sodas.” The teen grabbed
the bag and put his foot in front of Madera, attempting to trip him.
Two additional youths approached and one began kicking Madera. The light-
complected male pulled out a handgun and fired nine shots at Madera. Madera was
struck multiple times, sustaining injuries to his wrist, groin, and legs. The group fled.
Madera retreated back to the store to seek help. He was transported to the
hospital. Madera survived his injuries but sustained permanent damage affecting the use
of his hand and his ability to walk.
Detective Conrado Martin was assigned to investigate Madera’s shooting. Based
on reports by responding officers and an anonymous tip, Martin drove to the Summer
Hill apartment complex, located just yards away from the Family Food Market. He
reviewed security camera footage of the complex recorded the day of the shooting. The
footage showed a group of Black teens—defendant, King, Keba Young, Keifer
McKinney, Freddie Wilson, and Donte Erby-Bail—walk through the apartment complex,
jump a back fence, and begin heading in the direction of the Family Food Market shortly
before the shooting.
Martin was aware of Benson’s investigation of Atilano’s murder. During the
course of the investigation, Martin received information indicating the same parties had
been involved in both crimes.
Police Questioning
On October 27, 2011, Detectives Benson and Martin questioned defendant. When
Benson asked about the shooting of Atilano, defendant claimed to have been at his

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residence not far from the shooting. At about 2:30 a.m., he had left his home to purchase
marijuana. While out, defendant ran into his friend, King, and John Luke, a member of
the local Strother gang. Defendant told Benson that King asked him to act as a lookout
during a “lick,” which defendant understood to mean a robbery. Defendant agreed.
The three entered the Brownies apartment complex and observed a male seated
behind the wheel of a parked minivan. Defendant saw King open the driver’s side door
of the van using his sleeve. John Luke pointed a handgun at the man inside, who
appeared to be drunk or sleeping. Defendant turned away and heard a pop. When he
looked back, he saw John Luke hand the gun to King and then pull the victim onto the
ground.
Defendant approached the victim’s body and began checking the victim’s pockets.
John Luke discovered some money in the victim’s front pocket. The group fled the
scene. Defendant claimed he did not receive any of the money taken from the victim.
With respect to the Madera shooting, defendant told detectives he was at the
Summer Hill apartment complex “hanging out” with a group of people, including
Zombie, Active, Lil Tonio, Lil Walt (King), Freddie Wilson, Paul, and Tae Tae. The
group walked to Anybody’s Market to buy “blunt wraps” and then continued to the
Family Food Market. Lil Tonio stated, “I’m gonna catch a Mexican leaking,” which
meant he was going to rob a Mexican individual. Defendant protested the idea.
When an elderly Mexican man exited the market, Zombie pulled a gun on the man
and demanded he “give it up.” Active tried to hit the man. The victim swung a bag of
bottles to defend himself and hit one of the attackers. According to defendant, Zombie
raised his gun and fired at the victim multiple times.
Detectives asked defendant how many times his group had previously robbed a
Mexican person. Defendant eventually admitted “about two or three times.” When
detectives told defendant they believed he was lying about his version of events, he
agreed. Defendant then claimed Active had approached the victim with a gun.

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Defendant told detectives he watched the incident while Active, Wilson, and Keba Young
participated in the robbery and attack. Defendant remained firm that Active was the
shooter.
Benson and Martin questioned King separately, and then questioned King and
defendant jointly. King confirmed everything he had stated in his individual interview
had been truthful. Defendant, on the other hand, admitted he made up the name “John
Luke” and that only he and King were present during Atilano’s murder. Defendant
continued to deny responsibility for the shooting, asserting, “Point blank … I didn’t shoot
him.” He insisted King had pulled the trigger. King continued to insist defendant “did
it.”
Defendant admitted to searching Atilano’s pockets following the shooting, and he
told detectives he rummaged through the minivan. He maintained he did not take any
money from the victim.
Detective Martin then separately interviewed defendant about the Madera
shooting. Defendant told Martin that King had suggested robbing Madera, and defendant
had only “told [Madera] to give it up.” Defendant’s cousin, Erby-Bail, swung at Madera
and the victim swung back. In response, defendant aimed his handgun at Madera’s legs
and fired. After the shooting, defendant gave the firearm to Young, who disposed of it.
When asked how many other times he and his friends had robbed Mexican
individuals at that location, defendant told detectives, “I did it two times.” Defendant
apologized for having given detectives “bullshit this whole time,” explaining he could
only expect King to “man up” about having shot Atilano if he (defendant) “man[ned] up”
to having shot Madera.
Defense’s Case
Defendant testified in his own defense at trial. He stated he moved from Texas to
Fresno in 2011 to live with his sister. He came to Fresno so he could graduate from high
school. Defendant explained King, McKinney, Erby-Bail, and Young were relatives.

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7.
On October 2, 2011, King called defendant and asked if he wanted to “hit a lick”
at a nearby store. Defendant declined. Later that night, King called defendant and stated
he “found another lick” at the Brownies apartment complex. Defendant met King at the
Brownies. They attempted to enter an open window of one of the units, but left when
they saw someone inside. The two argued about “trying to get a lick,” until they agreed
to find a car to break into.
While in the parking lot, they came upon a van with music playing inside. A man
was sleeping in the driver’s seat. Defendant quietly opened the passenger’s side door of
the vehicle and began rifling through the glove box and shuffling through some papers.
He determined there was nothing in the van to steal.
As defendant was walking around the back of the van, he heard a single gunshot.
He saw King pull Atilano from the van and begin rummaging through Atilano’s pockets.
Defendant asked King what he was doing; King told him to shut up. Defendant took off
running.
On October 14, 2011, just a few weeks later, defendant was hanging out with
King, Erby-Bail, Young, Wilson, and McKinney at the Summer Hill apartments. The
group went to a nearby market to purchase some blunt wraps. Erby-Bail suggested
robbing a Mexican man heading from the store in their direction. As Madera approached,
Erby-Bail walked out in front of him and demanded his money. Defendant and Young
came around the man’s side, and defendant took a swing at him. The man swung his
shopping bag in defense. Defendant heard a gunshot, he stepped back and saw Erby-Bail
fire six or seven shots at Madera. Defendant denied shooting Madera.
With respect to his prior statements to the detectives, defendant claimed he told
the detectives that a man named “John Luke” had killed Atilano because he wanted to
protect King. However, when defendant realized King was trying to blame him for the
murder, he told the detectives the truth.

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As to the shooting of Madera, defendant admitted he had lied about the fact that
men named “Zombie” and “Active” had shot Madera. He claimed he falsely admitted to
the shooting to protect his cousin, Erby-Bail. Defendant felt guilty because he was the
person who had encouraged Erby-Bail to move to Fresno. Defendant denied shooting
Madera.
ANALYSIS
I. The Miller Factors
In his first claim on appeal, defendant contends the trial court failed to apply the
factors set forth under Miller, supra, 567 U.S. 460. We conclude the record is ambiguous
as to whether the court gave due consideration to each of the factors set forth under
Miller. As a result, we will remand this matter back to the court for resentencing.
A. The Probation Officer’s Probation Report
The probation officer’s report noted that prior to defendant’s arrest, defendant
lived with his sister. He was raised by his mother until age eight or nine, and then by his
aunt and his grandmother. Defendant did not know his father. He described his
relationship with this family as “‘[g]ood for the most part.’”
Defendant was unemployed, but he had previously worked for his aunt’s
photography business when he lived in Texas. His highest level of education completed
was the 11th grade. Defendant reported no mental health issues, and he denied using
mental health services or psychotropic medications.
Defendant admitted to being a member of an unspecified criminal street gang, and
he had a history of using alcohol and controlled substances. He admitted to using
marijuana and cocaine the day of his arrest.
With respect to Atilano’s murder, defendant claimed “Luke” perpetrated the
shooting. Although he denied shooting Atilano, he expressed remorse for the crime and
told police “[h]e had been praying and asking for forgiveness every day since the

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shooting.” Defendant initially denied shooting Madera, but during police questioning, he
admitted shooting Madera.
The probation officer noted defendant had several prior juvenile arrests in Texas
for the following misdemeanors: disruptive activities in school, criminal trespass, and
making a terroristic threat against public safety. He was sentenced to six months of
probation for disruptive activities.
The probation officer’s report recommended defendant be sentenced to LWOP on
count 1, with a firearm enhancement; and two years six months on counts 2 and 4, with a
firearm use enhancement. The report further recommended all gang enhancements be
stayed pursuant to section 654.
Under California Rules of Court, rule 4.421, the probation officer identified
several factors in aggravation of defendant’s sentence, including the high degree of
cruelty, viciousness, or callousness of defendant’s crimes; the planning, sophistication, or
professionalism he used to carry out the crimes; his violent conduct; and his prior
sustained juvenile delinquency proceedings, which were “numerous or of increasing
seriousness.” Other than the fact that defendant’s prior performance on probation had
been satisfactory, the probation officer found no circumstances in mitigation of
defendant’s sentence.
B. Sentencing
Prior to sentencing, the prosecutor filed a brief advocating for the court to sentence
defendant to LWOP for the aggravated murder of Atilano. Pursuant to section 190.5,
subdivision (b), the court had discretion to impose LWOP or a term of 25 years to life.
Defendant was 17 years 8 months old at the time of Atilano’s murder. The
prosecutor stated the only mitigating factor was defendant’s juvenile status, noting
however, that “[i]f he had been 4 months older the court would not have any discretion
and a mandatory sentence of LWOP would be imposed.” With respect to the presence of

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aggravating factors, the prosecutor asserted defendant’s crime was “cold and calculated.”
Atilano had been shot in the head as he slept in his van. Although defendant could hear
Atilano gasping for air, defendant searched through Atilano’s pockets for valuables.
Moreover, while defendant claimed King, his accomplice, shot Atilano, he described the
crime as “premediated,” which means, “you sat there and thought about it before you did
it.”
Defense counsel did not submit a sentencing brief, nor did he submit any
mitigating evidence on defendant’s behalf.
At the sentencing hearing, the court indicated it had received and reviewed the
prosecutor’s brief and the probation officer’s report. Defense counsel, addressing the
prosecutor’s discussion of Miller in his sentencing brief, urged the court to “consider
mitigating circumstances before imposing the harshest … penalty possible for juveniles.”
Counsel explained defendant’s age at the time of the offense should be taken into
account, as should his family and home environment, and the circumstances of the
underlying offense. He did not provide any details nor evidence of any potentially
mitigating factors.
Defense counsel further asserted the verdicts supported a finding that defendant
had not shot Atilano. He explained because defendant was convicted of the attempted
robbery of Atilano, rather than the charged offense of robbery, the jury apparently found
Walter King had perpetrated the shooting. As a result, counsel requested the court
exercise its discretion to impose a sentence of 25 years to life rather than LWOP.
The prosecutor emphasized the court needed to consider all factors in deciding
whether to impose a sentence of life without the possibility of parole. According to the
prosecutor, defendant was “a natural leader,” and was “directing the activities” involving
the attempted robbery and shooting of Madera and the murder of Atilano. The prosecutor
noted that while defendant may have had “a minimal criminal history,” his police
interviews demonstrated “sophistication that belies his years.”

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The trial court sentenced defendant to LWOP. In so doing, the court provided the
following explanation:
“… I have gone through the RPO relating to the circumstances in
aggravation, the circumstances in mitigation under Rules of Court 4.421,
4.423 relating to the crime and the defendant. You know, I—I will say that
a review of his history, which is exclusively documented to be out of
Texas, which is as I understood the situation, he’d been in Texas and then
he came back out here to California because things were not going well in
Texas.
“So we show that his last arrest was, without any type of disposition
being noted, was in November of 2009 and less than two years—and that
was for a terroristic threat against public safety. Now, it’s listed as a
misdemeanor here and I’m not sure exactly what that translates to in the
California Penal Code, but it certainly shows a step up in the level of
criminal activity from disruptive activities in school to a criminal trespass,
threats against a public safety officer. Less than two years later this murder
is committed here in California by someone who is four months shy of
being an adult.
“So, quite frankly, the trajectory of [defendant]’s criminal behavior
ramped up exponentially in a matter of a very little period of time. And I
think a point that [the prosecutor] made about looking at the circumstances
that were brought forth before the jury, looking at all of those interviews,
looking at that surveillance videotape of the defendant leading the others
through the courtyard of the apartment complex, I don’t see [defendant] as
being an outsider. I don’t see him as being an insignificant player in any of
these activities. I don’t see him as being a follower.
“Quite frankly, in looking at the circumstances, both from the
standpoint of applying the Rules of Court to find circumstances in
aggravation and mitigation, the circumstances and criteria that would affect
concurrent and consecutive sentences, that’s one thing. And I pretty much
adopt the findings that the Probation Department makes on page 10 and on
11. But looking at it from the standpoint of the most critical determinations
we must make here, and that is whether the court should impose this
penalty of life without the possibility of parole, I think everything that I’ve
just alluded to, mentioned and expressly cited points to the fact that
[defendant] really does deserve that.

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“I think that when you look at the trajectory of his criminal conduct
within a very short period of time it just simply makes that exercise of
discretion more complete and concrete.”
C. Legal Principles
The Eighth Amendment to the United States Constitution, which is applicable to
the states via the due process clause of the Fourteenth Amendment (Robinson v.
California (1962) 370 U.S. 660, 675 (conc. opn. of Douglas, J.); accord, Graham v.
Florida (2010) 560 U.S. 48, 53 (Graham)), outlaws the imposition of “cruel and unusual
punishments.” The Eight Amendment is the bedrock of an emerging jurisprudence
recognizing the distinct characteristics of youth compel treating juveniles differently from
adults for purposes of sentencing.
In Roper v. Simmons (2005) 543 U.S. 551 (Roper), our Supreme Court held the
Eighth Amendment forbids imposition of the death penalty on juvenile offenders under
18 years of age. (Roper, at p. 571.) Because of the “diminished culpability” of juveniles,
the court found the penological justifications for the death penalty, including retribution
and deterrence, apply with less force than to adults. (Ibid.) Recognizing the inherent
danger in permitting consideration of the death penalty on a case-by-case basis, the court
imposed a categorical rule barring imposition of the death penalty upon minors. (People
v. Palafox (2014) 231 Cal.App.4th 68, 84.) The court explained: “An unacceptable
likelihood … that the brutality or cold-blooded nature of any particular crime would
overpower mitigating arguments based on youth as a matter of course, even where the
juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should
require a sentence less severe than death.” (Roper, at p. 573.)
Five years after Roper, the court limited the scope of punishment applicable to
juvenile offenders convicted of nonhomicide offenses in Graham, supra, 560 U.S. 48.
There, the court held that the Eighth Amendment prohibits sentencing a juvenile
convicted of a nonhomicide offense to LWOP. (Graham, at p. 75.) The court reasoned
no legitimate penological interest justifies an LWOP sentence for juvenile nonhomicide

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offenders. (Id. at pp. 74–75.) As in Roper, the Graham court created a categorical ban
on the imposition of LWOP sentences to juveniles convicted of nonhomicide offenses.
The court explained: “This clear line is necessary to prevent the possibility that [LWOP]
sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently
culpable to merit that punishment.” (Graham, supra, at p. 74.)
Two years later, in Miller, supra, 567 U.S. 460, the court held that the Eighth
Amendment “forbids a sentencing scheme that mandates life in prison without possibility
of parole for juvenile offenders,” even for those convicted of homicide. (Id. at p. 479.)
The court explained, “By making youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence, such a scheme poses too great a risk of
disproportionate punishment.” (Ibid.) However, the court emphasized it was not
imposing a categorical ban on LWOP sentences imposed on juvenile offenders: “Our
decision does not categorically bar a penalty for a class of offenders or type of crime ….
Instead, it mandates only that a sentence follow a certain process—considering an
offender’s youth and attendant characteristics—before imposing a particular penalty.”
(Miller, at p. 483.)
In People v. Gutierrez (2014) 58 Cal.4th 1354, 1387, the California Supreme
Court held that sentences for 16- or 17-year-old juveniles who commit special
circumstance murder must be selected without a presumption in favor of LWOP. Section
190.5, subdivision (b) confers discretion on sentencing courts to impose either an LWOP
term or a term of 25 years to life on 16- and 17-year-old offenders convicted of special
circumstance murder. (Gutierrez, supra, at p. 1387.) The court held “construing section
190.5(b) to establish a presumption in favor of life without parole raises serious
constitutional concerns under the reasoning of Miller and the body of precedent on which
Miller relied.” (Id. at p. 1387.)
The Gutierrez court further explained Miller requires a determination of “whether
a particular defendant is a ‘“rare juvenile offender whose crime reflects irreparable

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corruption.”’” (People v. Gutierrez, supra, 58 Cal.4th at p. 1388; see Miller, supra, 567
U.S. at pp. 479–480; Roper, supra, 543 U.S. at p. 573; Graham, supra, 560 U.S. at p. 68.)
Thus, in considering whether to impose a sentence of LWOP on a juvenile offender under
section 190.5, subdivision (b), a sentencing court must admit and consider relevant
evidence of the following factors set forth in Miller: (1) the juvenile’s age and its impact
on his or her culpability; (2) the juvenile’s family and social circumstances; (3) the
circumstances of the homicide, including the juvenile’s role in the offense; (4) the impact
of the juvenile’s youth on his or her ability to deal with law enforcement and assist in a
defense; and (5) the possibility of rehabilitation. (People v. Gutierrez, supra, at pp.
1388–1389; Miller, supra, at p. 478.)
A. Legal Analysis
Defendant contends the trial court sentenced him to LWOP without sufficient
consideration of the Miller factors. From the record, we are unable to determine whether
the trial court gave due consideration to each of the Miller factors. The law imposes no
requirement for the superior court to state the Miller factors and to discuss evidence
applicable to each factor on the record. However, we believe the severity of an LWOP
sentence compels the need for a clear record. The failure to develop an adequate record
deprives this court of meaningful appellate review of defendant’s claim. Although it
appears the court here complied with Miller, we cannot be certain based on the record
before us. Accordingly, the matter must be remanded to the superior court for
resentencing.
The Attorney General contends we may infer the trial court gave due consideration
to each of the Miller factors for two reasons. First, at sentencing, the parties agreed the
court was required to “‘consider all the factors,’ including any evidence of ‘the
defendant’s history.’” According to the Attorney General, although the court did not
explicitly cite Miller or state its reasoning under the Miller factors, “[t]he record leaves
no doubt that the court was aware of each of Miller’s factors, its obligation to consider

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them before imposing sentence, and its discretion to impose a lesser sentence if those
factors weighed in that direction.” Second, the Attorney General argues, even if the
court’s awareness of its obligation is unclear from the record, because Gutierrez was
published before defendant was sentenced, we may presume the court was aware of its
obligation to consider the Miller factors.
While the issue is close, on this record, we cannot be confident the Miller factors
were fully explored or considered—a requirement before imposition of an LWOP
sentence on a juvenile can be valid under the federal Constitution. As we explain below,
we find unpersuasive the Attorney General’s assertion such an inference may reasonably
be drawn from the record.
First, the fact the parties agreed the court was required to consider the Miller
factors does not permit us to infer the court gave due consideration to each factor. The
prosecutor referenced Miller, supra, 567 U.S. 460 in his sentencing brief, and he
explained the court was required to consider the Miller factors “‘before imposing the
harshest penalty possible for juveniles.’” At the sentencing hearing, defense counsel
noted “[the prosecutor] cited the Miller case that stated … the sentence of life without
parole is the most Draconian sentence possible for somebody who was in [defendant]’s
position at the time of this offense ….” Defense counsel further explained, “[T]he court
should consider mitigating circumstances before imposing the harshest … penalty
possible for juveniles.” He argued defendant’s age at the time of the offense dictates he
“should not be treated the same way as an adult,” and that “his family and home
environment should be taken into account.” Finally, defense counsel argued because the
jury found defendant guilty of attempted robbery on count 2, the jury impliedly found
Walter King had shot Atilano.
While the parties mentioned Miller and discussed some of the Miller factors at
defendant’s sentencing hearing, this does not show the court fully considered each factor.
Further, although the probation officer’s report contains some facts pertinent to Miller,

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the report does not mention or discuss the Miller factors. While the prosecutor’s brief
does list these factors, the brief emphasizes the callous nature of defendant’s crimes,
omitting discussion of the other Miller factors. Meanwhile, defense counsel, who was
tasked with addressing all potentially applicable factors, made virtually no effort to
submit mitigating evidence on defendant’s behalf.
We are troubled by defense counsel’s failure to submit so much as a sentencing
brief when he indicated there were potentially mitigating factors at defendant’s
sentencing hearing. To the extent counsel did mention there were mitigating factors
present, such as defendant’s family and home environment, he never offered any details
explaining why this or any other factor was mitigating. The probation officer’s report
indicates defendant’s father was never part of his life, he had been raised by his mother
until age eight or nine, and he was raised by his aunt and grandmother thereafter until he
went to live with his sister in Fresno. Defendant had family members and associates in
Fresno who were active gang members, including Erby-Bail and Walter King, and
defendant lived in gang territory. While the court may have considered this evidence and
found it was only nominally mitigating, we decline to infer as much in the absence of a
clearer record.
We further note that although defense counsel advised the court defendant’s age at
the time of the offenses must be taken into account, he never offered evidence or
argument as to defendant’s “immaturity, impetuosity, and failure to appreciate risks and
consequences.” (Miller, supra, 567 U.S. at p. 477.) Instead, the balance of defense
counsel’s argument focused on the jury’s findings. Defense counsel argued because the
jury convicted defendant of attempted robbery rather than the robbery on count 2, the
jury must have believed Walter King perpetrated the shooting of Atilano. The sentencing
court expressed its view that the jury’s verdict reflected a finding “about what, if
anything, was taken [from Atilano],” rather than who shot him.

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Contrary to defense counsel’s assertions, the jury made no express or implied
finding about whether defendant was a direct perpetrator or an aider and abettor in
Atilano’s murder. Indeed, the jury was instructed defendant could be found guilty based
on either theory. At trial, the prosecutor adduced evidence showing that based on
defendant’s position and the trajectory of the bullet, defendant was the direct perpetrator
of the shooting of Atilano. While the prosecutor in closing argument emphasized
defendant had shot Atilano, he explained defendant could also be found guilty as an aider
and abettor. The jury’s verdict does not indicate under which theory defendant was
found guilty on, and defense counsel’s assertions to the contrary are unpersuasive.
While Atilano’s murder was undoubtedly cold and calculated, the reprehensible
nature of defendant’s crime is not the sole consideration under Miller. However, when a
trial court is forced to make a sentencing decision based on the nature of the defendant’s
crimes, in addition to whatever paltry facts may be gleaned from a probation report, an
unacceptable likelihood exists that the brutality of a defendant’s crime will compel the
harshest sentence possible. For these reasons, and under the unique circumstances of this
case, we decline to infer the court gave due consideration to each of the Miller factors
based on the parties’ vague references to and discussion of some of the factors.
We note our Supreme Court has held “[s]ection 190.5(b) authorizes and indeed
requires consideration of the Miller factors.” (People v. Gutierrez, supra, 58 Cal.4th at p.
1387.) The Gutierrez court’s conclusion relied on the premise that the aggravating and
mitigating factors in section 190.3 and under the California Rules of Court may be used
as guidelines by the court in deciding how a juvenile offender should be sentenced under
section 190.5. The court stated “[u]nder section 190.5(b), a sentencing court must
consider the aggravating and mitigating factors enumerated in … section 190.3 and the
California Rules of Court.” (People v. Gutierrez, supra, at p. 1387.)
Here, from the trial court’s comments, it appears the court considered some of the
aggravating factors set forth under California Rules of Court, rules 4.421 and 4.423.

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However, we decline to infer the court’s consideration of some of the California Rules of
Court is sufficient to conclude the court gave due consideration to each of the Miller
factors. Under section 190.3, factor (i), the court is required to consider “[t]he age of the
defendant at the time of the crime.” (§ 190.3, factor (i).) Case authority interpreting
factor (i) of section 190.3 has held it “provides a basis for the court to consider that
‘“youth is more than a chronological fact”’ and to take into account any mitigating
relevance of ‘age and the wealth of characteristics and circumstances attendant to it,’ as
Miller requires.” (People v. Gutierrez, supra, 58 Cal.4th at p. 1388, relying on People v.
Lucky (1988) 45 Cal.3d 259, 302.) Here, the sentencing court placed substantial weight
on the circumstances of the offense, as well as the increasingly serious nature of
defendant’s crimes, but it did not discuss defendant’s maturity or his prospects for
rehabilitation. Nor did the court mention or discuss any aggravating or mitigating factors
under section 190.3, which might permit us to infer it had considered whether there was
“any mitigating relevance of ‘age and the wealth of characteristics and circumstances
attendant to it.’” (Gutierrez, at p. 1388.)
We recognize the trial court has discretion under section 190.5, subdivision (b) to
give such weight to the relevant factors as it reasonably determines is appropriate under
all the circumstances. (People v. Palafox, supra, 231 Cal.App.4th at p. 73.) As such, the
court’s failure to discuss certain factors under Miller could be explained by a lack of
evidence implicating a particular factor. As our Supreme Court has explained, “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.” (People v. Gutierrez, supra, 58 Cal.4th at p. 1390.)
We hesitate to conclude that certain factors were not mentioned by the sentencing
court here because of a lack of relevant evidence. As we have explained, defense counsel
submitted virtually no mitigating evidence on defendant’s behalf, even though the record
bears out some evidence of a lack of maturity. Specifically, defendant had not completed

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high school, he had been unemployed since 2011, and he had a prior juvenile petition
sustained for disruptive activities in school. On balance, the record and the court’s
comments during sentencing fail to persuade us that due consideration was given to each
factor.
Second, although Gutierrez made clear that consideration of the Miller factors is
mandatory, and defendant was sentenced after Gutierrez was published, we decline to
presume the trial court necessarily followed Gutierrez. “‘It is generally presumed that a
trial court has followed established law ….’” (People v. DeGuzman (1996) 49
Cal.App.4th 1049, 1053.) However, even if we presume the sentencing court followed
Miller and Gutierrez, the state of the record precludes us from determining whether the
court abused its discretion in so doing. Even “discretionary decisionmaking” is subject to
“some level of review, however deferential.” (People v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 977.)
From the record before us, it is unclear whether the court gave due consideration
to each of the Miller factors. Accordingly, the matter must be remanded to the trial court
for resentencing. At resentencing, the trial court is ordered to consider the effect of
Senate Bill No. 394, signed by Governor Brown on October 11, 2017, on defendant’s
sentence. In addition, the court should consider what effect, if any, People v. Lozano
(2017) 16 Cal.App.4th 1286 and People v. Franklin (2016) 63 Cal.4th 261, 289 have on
defendant’s sentence.2
2On October 11, 2017, Governor Brown signed Senate Bill No. 620 into law, which
allows courts “in the interest of justice and at the time of sentencing or resentencing, to strike or
dismiss [a gun use] enhancement otherwise required to be imposed by [sections 12022.5 and
12022.53].” Senate Bill No. 620 becomes effective January 1, 2018.
Here, the jury found true a gun use enhancement alleging defendant personally
discharged a firearm causing death or great bodily injury (§ 12022.53, subds. (d), (e)(1)) in the
commission of counts 1, 2, and 4. Because defendant’s case must be remanded for resentencing,
and resentencing will occur after Senate Bill No. 620 becomes effective, nothing shall preclude
him from arguing the gun use enhancements imposed should be stricken or dismissed.

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II. Counts 2 and 4
Next, defendant contends his sentence for attempted second degree robbery in
counts 2 and 4 is unauthorized. He contends the trial court erred in imposing terms of
two years six months because the punishment for attempted second degree robbery is a
triad of 16 months, two years, or three years. According to defendant, he is entitled to
one-third of the aggravated term on both counts 2 and 4, which is one year.
The Attorney General contends defendant is mistaken. He agrees the matter must
be remanded for resentencing, but he asserts defendant is not entitled to one-third of the
aggravated term. According to the Attorney General, the court must select 16 months,
two years, or three years on count 4, and then impose a full consecutive term on count 2.
We agree with the Attorney General.
Here, the prosecutor alleged the applicable triad was one-half of the triad for
second degree robbery. That is, one year, one year six months, and two years six months.
As a result, the trial court sentenced defendant to two years six months on count 2 and on
count 4. The court stayed count 2 under section 654.
While section 664 generally requires that punishment for an attempted crime be
one-half of the term of imprisonment prescribed for the offense, “[s]ection 664 is
inapplicable to convictions for attempted second degree robbery.” (People v. Moody
(2002) 96 Cal.App.4th 987, 990.) “[T]he appropriate triad for … attempted second
degree robbery offense is … 16 months, two years, or three years.” (Id. at p. 990; see
People v. Neely (2009) 176 Cal.App.4th 787, 797.) Accordingly, the court’s imposition
of two years six months on counts 2 and 4 was improper.
The Attorney General asserts that on remand, the court must select a term of 16
months, two years, or three years, and “then impose a full consecutive term.” His
contention is correct, but it is not technically precise: “[A sentence] cannot be both
consecutive and stayed simultaneously because the two are mutually exclusive.” (People
v. Cantrell (2009) 175 Cal.App.4th 1161, 1164.)

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Section 1170.1, subdivision (a) applies to the sentencing of offenders convicted of
multiple felonies. This statute requires the court to impose a principal term, based on the
offense with the longest term, and then impose subordinate terms for each consecutive
offense “consist[ing] of one-third of the middle term.” However, “[t]he one-third-the-
midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence,
not a sentence stayed under section 654.” (People v. Cantrell, supra, 175 Cal.App.4th at
p. 1164, italics added.) When a sentence is required to be stayed under section 654, the
court should impose a full-term sentence to ensure the “defendant’s punishment is
commensurate with his criminal liability” in the event the stay is lifted. (Cantrell, at p.
1164.)
We have inherent authority to correct an unauthorized sentence by modifying the
judgment. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197–1198 [correcting a
judgment on appellate court’s own initiative to impose full midterm sentence, rather than
one-third of midterm sentence, on a count stayed under § 654].) However, because this
matter must be remanded for resentencing in light of our conclusion in part I, ante, we
will order the trial court to resentence defendant on counts 2 and 4.
III. The Parole Revocation Restitution Fine
In his final claim on appeal, defendant contends a parole revocation restitution fine
was improperly imposed because he was sentenced to a term of LWOP on count 1. The
Attorney General agrees the fine is unauthorized.
“A parole revocation fine may not be imposed for a term of life in prison without
possibility of parole, as the statute is expressly inapplicable where there is no period of
parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)” (People v. Jenkins
(2006) 140 Cal.App.4th 805, 819.) In addition, the fine may not be appended to a
determinate term stayed under section 654. (People v. McWhorter (2009) 47 Cal.4th 318,
380 [imposition of parole revocation restitution fine improper where defendant sentenced

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to death and a determinate sentence on another count stayed under § 654].) However, our
Supreme Court has held the fine may be appended to an unstayed determinate term.
(People v. Brasure (2008) 42 Cal.4th 1037.) This is so even where the defendant is
sentenced to LWOP on one count, but he or she is sentenced to a determinate term on
another. (Id. at p. 1075.)
Here, defendant was sentenced on count 1 to LWOP, but he was sentenced to an
unstayed determinate term on count 4. The Supreme Court’s decision in People v.
Brasure suggests the fine was properly imposed. Nonetheless, in light of our conclusion
that defendant’s sentence must be vacated and the matter remanded for resentencing, we
need not resolve this issue.
IV. Proposition 57
On November 8, 2016, following the submission of the parties’ appellate briefs,
California voters passed Proposition 57, the Public Safety and Rehabilitation Act of 2016.
Proposition 57 eliminated a prosecutor’s authority to direct file serious felony cases
involving juveniles in adult court. (People v. Marquez (2017) 11 Cal.App.5th 816, 820,
review granted July 26, 2017, S242660 (Marquez).)
There is a split of authority among California appellate courts as to whether
Proposition 57 applies retroactively. “The weight of published authority concludes
Section 4’s elimination of direct filing authority does not require reversal for a juvenile
convicted before Section 4 took effect—regardless of whether the conviction in question
is final.” (People v. Pineda (2017) 14 Cal.App.5th 469, 479, citing Marquez, supra, 11
Cal.App.5th at pp. 820–821, review granted July 26, 2017, S242660; People v. Mendoza
(2017) 10 Cal.App.5th 327, 345, 348, review granted July 12, 2017, S241647; People v.
Cervantes (2017) 9 Cal.App.5th 569, 580, 601–602, review granted May 17, 2017,
S241323; see People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687, 697–699,
review granted Sept. 13, 2017, S243072; but see People v. Pineda, supra, at p. 81 [maj.

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opn. finding Prop. 57 retroactive]; People v. Vela (2017) 11 Cal.App.5th 68, review
granted July 12, 2017, S242298 [same].)
Defendant, who was 17 years old at the time of the crimes, was charged in
criminal court pursuant to Welfare and Institutions Code former section 707, subdivisions
(b) and (d)(1)). Our Supreme Court is presently considering whether juvenile offenders
convicted in adult court before the effective date of Proposition 57 are entitled to a fitness
hearing in juvenile court. As such, we invited the parties to submit supplemental letter
briefs on the issue of whether Proposition 57 retroactively applies and, if so, what remedy
defendant would be entitled to.
After considering the parties’ supplemental briefs and the arguments therein, we
conclude, consistent with our holding in Marquez, supra, 11 Cal.App.5th 816, review
granted July 26, 2017, S242660, Proposition 57 does not retroactively apply.
DISPOSITION
Defendant’s sentence is vacated. The matter is remanded to the superior court for
resentencing not inconsistent with this opinion.
___________________________
PEÑA, J.
WE CONCUR:
__________________________
LEVY, Acting P.J.
__________________________
DETJEN, J.

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