People v. Gines

• Decision Date: 16 January 2020
• Docket Number: F075948
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN GINES, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN GINES, Defendant and Appellant.

F075948

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

January 16, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SC052244A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge.

Michael Satris, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Galen Farris, Lewis A. Martinez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In October 1992, defendant Michael Allen Gines, then 16 years old, broke into a mobile home with two other juveniles and one adult. The 62-year-old homeowner was away at the time and the group remained inside for hours, during which time they ransacked the home, ate, drank, smoked and slept. When the victim returned home from a trip, the group fled to the backyard but then decided to reenter the home and confront the victim at gunpoint. After the victim was taken to his bedroom, gagged and hogtied, he was hit with an axe and defendant shot him in the head, killing him. The group then stole the victim's recreational vehicle and Chevrolet Blazer. They were apprehended in New Mexico the day after the murder in the stolen Blazer.

In December 1992, defendant was charged with one count of willful, deliberate and premeditated murder with an attached burglary-special circumstance allegation and sentence enhancement allegation for personal use of a firearm. (Pen. Code, §§ 187, subd. (a), 189, subd. (a), 190.2, former subd. (a)(17)(vii), 12022.5, subd. (a).)¹ Defendant was also charged with two counts of burglary (former § 460.1), and two counts of taking or driving a vehicle (Veh. Code, § 10851, subd. (a)).² In January 1993, defendant pleaded no contest to all charges and, pursuant to the terms of the parties' plea bargain, was sent to the California Youth Authority (CYA) for a 90-day diagnostic study.³

The diagnostic study concluded that defendant was not amenable to the treatment and training offered by the CYA and, in accordance with the terms of the plea bargain, the trial court sentenced defendant on the murder count to a term of life without thepossibility of parole (LWOP) plus an additional five years for the firearm enhancement. On the burglary counts, the court imposed two middle terms of four years and on the driving or taking counts, the court imposed two middle terms of two years, with the sentences on all four counts to run concurrently with the term on the murder count.

In December 2016, defendant filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(2). The trial court granted the petition and, after holding an evidentiary hearing, resentenced defendant to the same terms as previously imposed in 1993.

Defendant filed a timely notice of appeal. (§ 1237, subd. (a).) He claims that although the trial court addressed the youth-related factors identified in Miller v. Alabama (2012) 567 U.S. 460 (Miller) and Montgomery v. Louisiana (2016) 577 U.S. ___ (Montgomery), its decision to resentence him to LWOP for a crime committed when he was only 16 years old was an abuse of discretion. Defendant also seeks remand for resentencing under Senate Bill No. 620, which amended section 12022.5 effective January 1, 2018, to permit a trial court, in furtherance of justice, to strike or dismiss a firearm enhancement otherwise required to be imposed under the statute. (Stats. 2018, ch. 682, § 1 (Senate Bill No. 620 or Sen. Bill No. 620).)

The People concede that under Senate Bill No. 620, the matter should be remanded for the trial court to consider whether to exercise its discretion regarding the firearm enhancement, but they dispute defendant's claim of sentencing error.

The record demonstrates that evidence relating to the Miller factors was presented during the resentencing hearing and that the trial court considered the Miller factors before resentencing defendant to LWOP.⁴ Therefore, although another court could have reasonably reached a contrary conclusion, we find that defendant did not meet his burdenof demonstrating the trial court abused its discretion and we reject his claim of error. We accept the People's concession regarding remand for resentencing under Senate Bill No. 620 but otherwise affirm the judgment.

DISCUSSION

I. Claim of Sentencing Error

A. Background

1. Consideration of Miller Factors Required

As stated, defendant was 16 years old when he committed first degree murder with special circumstances and received a term of LWOP. Commencing with the United States Supreme Court's decision in Roper, the law as it relates to juvenile offenders has been dramatically transformed through decisional law, legislation and voter initiative. (E.g., Roper v. Simmons (2005) 543 U.S. 551, 578 (Roper) [death penalty may not be imposed against juvenile offenders]; Graham v. Florida (2010) 560 U.S. 48, 82 (Graham) [in non-homicide cases, LWOP sentences may not be imposed against juvenile offenders]; Miller, supra, 567 U.S. at p. 479 [unconstitutional to mandate a term of LWOP for juvenile offenders]; Sen. Bill. No. 260 (Stats. 2013, ch. 312, § 4) [providing for youth offender parole hearings to ensure those who were under 18 years of age when they committed their controlling offenses have meaningful opportunity to obtain release]; Prop. 57, the "Public Safety and Rehabilitation Act of 2016," § 4.2 [amending Welf. & Inst. Code, § 707, subd. (a), to prohibit prosecutors from directly filing charges against juvenile offenders in criminal court]; Sen. Bill No. 394 (Stats. 2017, ch. 684, §§ 1, 1.5) [amending § 3051 to provide for youth offender parole hearings for juvenile offenders sentenced to LWOP, subject to certain exceptions]; Assem. Bill No. 1308 (Stats. 2017, ch. 675, § 1) [subject to certain exceptions, including juveniles with LWOP sentences, extending youth offender parole hearings to offenders who were 25 years old or younger when they committed their controlling offenses]; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 [holding Prop. 57 applies retroactively]; Sen. Bill No. 1391(Stats. 2018, ch. 1012, § 1) [limiting transfer motions by prosecutors under Welf. & Inst. Code, § 707, subd. (a), to juveniles who were 16 years or older when they committed controlling offense].)

Relevant here, the United States Supreme Court held in Miller that "under the Eighth Amendment to the United States Constitution 'a state may authorize its courts to impose [a sentence of LWOP] on a juvenile homicide offender [only] when the penalty is discretionary and when the sentencing court's discretion is properly exercised ....'" (In re Kirchner (2017) 2 Cal.5th 1040, 1042 (Kirchner), quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1379 (Gutierrez).) "The proper exercise of discretion in this context requires the sentencing court to consider relevant evidence as may exist concerning factors that Miller identified as bearing on the 'distinctive attributes of youth' and how these attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.'" (Kirchner, supra, at p. 1042, quoting Miller, supra, 567 U.S. at p. 472.)

"[U]nder Miller a sentencing court considering a sentence of [LWOP] for a juvenile offender must consider evidence that may exist regarding (1) 'a juvenile offender's "chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences"'; (2) '"the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional"'; (3) '"the circumstances of the homicide offense, including the extent of [the juvenile defendant's] participation in the conduct and the way familial and peer pressures may have affected him"'; (4) 'whether the offender "might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys"'; and (5) 'the possibility of rehabilitation."'" (Kirchner, supra, 2 Cal.5th at p. 1048, quoting Gutierrez, supra, 58 Cal.4th at pp. 1388-1389.)

Subsequently, in Montgomery, the United States Supreme Court "clarified that Miller announced a substantive rather than a procedural rule, and therefore operates retroactively. (Montgomery, supra, 577 U.S. at p. ___ .) Montgomery explained that 'Miller ... did more than require a sentencer to consider a juvenile offender's youth before imposing [LWOP]; it established that the penological justifications for [LWOP] collapse in light of "the distinctive attributes of youth." [Citation.] Even if a court considers a child's age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects "'unfortunate yet transient immaturity.'" [Citation.] Because Miller determined that sentencing a child to [LWOP] is excessive for all but "'the rare juvenile offender whose crime reflects irreparable corruption,'" [citation], it rendered [LWOP] an unconstitutional penalty for "a class of defendants because of their status"—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. [Citation.] As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is...