In re Willover

• Decision Date: 16 April 2015
• Docket Number: H040757
• Citation: 235 Cal.App.4th 1328,186 Cal.Rptr.3d 146
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Norman WILLOVER, on Habeas Corpus.

235 Cal.App.4th 1328

186 Cal.Rptr.3d 146

IN RE Norman WILLOVER, on Habeas Corpus.

H040757

Court of Appeal, Sixth District, California.

Filed April 16, 2015

As Modified on Denial of Rehearing April 24, 2015

Attorneys for Petitioner, Norman Willover: Lawrence Gibbs, Sixth District Appellate Program

Attorney for Respondent, The People: Rene A. Chacon Office of the Attorney General

BAMATTRE–MANOUKIAN, ACTING P.J.

I. INTRODUCTION

In 1999, petitioner Norman Willover was convicted after jury trial of two counts of first degree murder ( Pen.Code, § 187, subd. (a) ),¹ attempted premeditated murder (§§ 664, 187, subd. (a) ), aggravated mayhem (§ 205), and giving false information to a peace officer (§ 148.9, subd. (a)). The jury also found true various special circumstances and firearm enhancements. (§ 190.2, subd. (a)(3), (17) & (21); § 12022.53, subd. (d); § 12022.55.) the trial court sentenced Petitioner, who was 17 years old at the time he committed the offenses, to two consecutive terms of life without possibility of parole (LWOP) for the murders, a consecutive term of 15 years to life for the attempted premeditated murder, and two consecutive terms of 25 years to life for the allegations that he personally discharged a firearm causing great bodily injury or death. The trial court stayed the terms for the remaining counts and enhancements.

Petitioner appealed following his convictions, and this court modified the judgment to reflect that petitioner's sentence for the attempted premeditated murder was life with the possibility of parole instead of 15 years to life. (People v. Willover (Oct. 19, 2000, H019899) [nonpub. opn.].)

In March of 2014, petitioner filed a petition for writ of habeas corpus in this court, arguing that he is entitled to be resentenced. Petitioner contends that at his sentencing hearing in 1999, the trial court improperly presumed that LWOP was the appropriate sentence for the murders pursuant to section 190.5, subdivision (b), in violation of Miller v. Alabama (2012) 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller ), which held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ ” (Id. at ––––, 132 S.Ct. 2455, 2460.) For reasons that we shall explain, we will vacate petitioner's sentence and remand the matter for resentencing.

II. BACKGROUND²

A. The Underlying Offense

In December of 1997, petitioner purchased a .22–caliber pistol in Utah after leaving a residential treatment center without authorization. Petitioner stated that he intended to use the firearm to rob and kill people and to settle scores with rival gangs. Petitioner then traveled to Monterey, where he obtained ammunition, loaded his gun, and drove around with three other young people.

After arriving at the Monterey Wharf on January 31, 1998, petitioner fired nine shots at Priya Mathews and Jennifer Aninger, who were drinking coffee and talking. Four bullets hit Mathews and two bullets hit Aninger. Aninger survived the shooting, but Mathews died at the scene. Following that shooting, petitioner and his three companions drove to Seaside in another car. Petitioner permitted the driver of the car to use his firearm to shoot and kill Frances Olivo, who was walking on the sidewalk.

Petitioner was subsequently convicted of two counts of first degree murder (§ 187, subd. (a) ), attempted premeditated murder (§§ 664, 187, subd. (a) ), aggravated mayhem (§ 205), and giving false information to a peace officer (§ 148.9, subd. (a)). The jury found true special circumstance allegations: multiple murders (§ 190.2, subd. (a)(3)); murder during the commission of attempted robbery (id . subd. (a)(17)); and drive-by shooting (id . subd. (a)(21)). The jury also found true allegations that petitioner personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and intentionally inflicted great bodily injury or death as a result of discharging a firearm from a vehicle during the commission of a felony or attempted felony (§ 12022.55).

B. Sentencing Hearing

Prior to petitioner's sentencing hearing in 1999, the prosecution filed a statement in aggravation, in which it cited People v. Guinn (1994) 28 Cal.App.4th 1130, 33 Cal.Rptr.2d 791 (Guinn ) for the proposition that, pursuant to section 190.5, subdivision (b),³ LWOP was the presumptive sentence for a special circumstance murder committed by a 16– or 17–year–old juvenile. The prosecution further argued that there were numerous aggravating circumstances, relating to both the offense and the offender, and no circumstances in mitigation. (See Cal. Rules of Court, former rules 421 & 423.) The prosecution argued that petitioner had been “feign[ing] or exaggerat [ing] purported symptoms of mental illness in order to avoid being held accountable for his conduct.” The prosecution contended that there was no justification for ever allowing petitioner to be released back into society: “If [petitioner] is granted the possibility of parole, he stands a chance of being released ... at a relatively young age ... [where] there will be new generations of innocent people who would be exposed to the calculated but random viciousness that [petitioner] will bring with him.”

Petitioner filed a sentencing memorandum, in which he argued that Guinn had erroneously held that section 190.5, subdivision (b) requires a presumption of LWOP for 16– and 17–year–old defendants who commit special circumstance murders. Petitioner called the Guinn opinion “flawed” and argued that its interpretation of section 190.5, subdivision (b) was “without logical basis.”

A sentencing hearing took place on April 2, 1999. At the hearing, the prosecutor argued that petitioner did not suffer from “any mental illness that impaired his ability to make moral choices” and that petitioner had not shown any remorse. The prosecutor argued that petitioner should not be given the opportunity for parole, because “based on everything we know about him, he will come back again looking for someone to kill.” The prosecutor argued that Guinn placed on petitioner the burden of showing that an LWOP sentence was inappropriate, and that he had “failed to carry it.” The prosecutor argued that even if Guinn was “not correct,” an LWOP sentence was still appropriate.

Petitioner's trial counsel argued that petitioner did suffer “from a mental condition that reduced culpability” and that petitioner was a “grossly immature” young man who had “little or no ability to control his own aggression.” Petitioner's trial counsel argued that the trial court should not impose consecutive sentences because the crimes “were committed in so close a period of time as to indicate a single period of aberrant behavior” and because petitioner “played a minor or passive role” in the second murder. Petitioner's trial counsel argued that petitioner's antisocial personality disorder was commonly seen in young males but that “most people by the time they're in their forties or they're in their fifties do not generally tend to exhibit these tendencies.” Petitioner's trial counsel requested the trial court impose a sentence that would give petitioner “the opportunity to be released from custody at some time during his life if he can demonstrate to the authorities ... that he is law abiding, that he is able to control himself, and that he does not present a danger to public safety.”

In announcing its sentencing decisions, the trial court first rejected petitioner's claim that he was suffering from a mental illness that significantly reduced his culpability for the crimes. The trial court noted it had read the letters submitted in support of petitioner, which all suggested “[t]hat it would be a miscarriage of justice somehow” if petitioner received an LWOP sentence. The trial court noted that “all of the doctors and the counselors involved in this case over the years” had characterized petitioner as argumentative, explosive, controlling, defiant, resistant to feedback, and a danger to society, with poor impulse control. The court described petitioner as “a textbook example and the product of poor, indifferent and inadequate parenting,” noting that petitioner's mother would often “blow up, call him a loser, give him a knife and ask him to kill her.” The court believed that “[c]ommon sense dictates that [petitioner] must never be allowed the possibility of drawing another breath in freedom.”

The trial court ultimately sentenced petitioner to two consecutive LWOP terms for the two first-degree murders, a consecutive term of 15 years to life for the attempted premeditated murder, and two consecutive terms of 25 years to life for the allegations that he personally discharged a firearm causing great bodily injury or death. The trial court stayed the terms for the remaining counts and enhancements.

C. Appeal

Petitioner appealed his convictions to this court. On October 19, 2000, this court modified the judgment to reflect that petitioner's sentence for the attempted premeditated murder conviction was life with the possibility of parole instead of 15 years to life. This court affirmed the judgment as modified.

D. Habeas Petitions

On February 28, 2013, petitioner filed a petition for writ of habeas corpus in the trial court, alleging that his LWOP sentence violated the Eighth Amendment under Miller, supra, 567 U.S. ––––, 132 S.Ct. 2455. On January 13, 2014, the trial court denied petitioner's habeas corpus petition.

On March 10, 2014, petitioner filed the instant petition for writ of habeas corpus in this court. On October 23, 2014, this court issued an order to show cause and appointed counsel for petitioner. The Attorney General subsequently filed a written return, and petitioner thereafter filed a traverse.

On July 17, 2014, petitioner filed another habeas corpus petition in the trial court seeking resentencing, relying on People v. Gutierrez (2014) 58 Cal.4th 1354, 171...