People v. Lozano, B263640

Citation243 Cal.App.4th 1126,197 Cal.Rptr.3d 257
Decision Date14 January 2016
Docket NumberB263640
CourtCalifornia Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Elizabeth LOZANO, Defendant and Appellant.

Post–Conviction Justice Project, University of Southern California, Gould School of Law, Michael J. Brennan and Heidi L. Rummel, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General and Michael Katz, Deputy Attorney General, for Plaintiff and Respondent.

KRIEGLER, J.

Defendant Elizabeth Lozano, when 16 years old, participated in the murder of 13–year–old Tayde Vasquez. In 1996, Lozano was sentenced to life in prison without the possibility of parole (LWOP) after being convicted by jury of first degree murder with the special circumstance of murder during the commission of robbery. Based on the intervening decision in Miller v. Alabama (2012) 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller ), and with the agreement of the prosecution, the trial court vacated the LWOP sentence and conducted a new sentencing hearing in 2015. At the new sentencing hearing, the court ruled inadmissible Lozano's proffered evidence of her conduct in prison—initially incorrigible but for the most recent decade indicative of rehabilitation—and again sentenced Lozano to LWOP. Our Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354, 1389, 171 Cal.Rptr.3d 421, 324 P.3d 245 (Gutierrez ) held that, under Miller, "a sentencing court must consider any evidence or other information in the record bearing on ‘the possibility of rehabilitation’ " before imposing an LWOP sentence on a juvenile who kills. We therefore conclude the trial court erred in excluding Lozano's evidence of rehabilitation in prison, and reverse and remand for a new sentencing hearing.

PROCEDURAL BACKGROUND

Lozano was convicted by jury of first degree murder (Pen.Code, § 187 )1 and second degree robbery (§ 211). The jury found true a special circumstance allegation that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)) and that a principle was armed with a firearm (§ 12022, subd. (a)(1)). Lozano was sentenced to LWOP plus six years. On appeal, this court modified the judgment to require a section 654 stay of the punishment on the robbery conviction, but otherwise affirmed. (People v. Lozano (June 12, 1997, B106665 [nonpub. opn.].)) A petition for review was denied.

On May 21, 2013, Lozano filed a petition for writ of habeas corpus, arguing that her LWOP sentence violated the Eighth Amendment as interpreted in Miller . The district attorney agreed that Lozano was entitled to a new sentencing hearing, without conceding that the LWOP sentence was unconstitutional. The trial court vacated the original LWOP sentence, conducted a new sentencing hearing, and again sentenced Lozano to LWOP. This appeal follows.

STATEMENT OF FACTS FROM LOZANO'S PRIOR APPEAL

On January 26, 1992, defendant was 16 years old. Tayde Vasquez was 13 years old. Defendant was a member of the T–Town Flats street gang, which is associated with the Barrio Pobre street gang. Vasquez was not a gang member. Defendant came to Vasquez's house and invited her to go out. Vasquez accepted. Vasquez was wearing a lot of jewelry. The two girls were met by Steven Green, Frankie Aragon, and Gabriel Littlejohn. Green and Aragon were members of the Eastside Longo street gang, a rival of Barrio Pobre. Littlejohn was not a gang member.

The group went to the beach. Littlejohn asked Vasquez why defendant was associating with rival gang members. Vasquez replied that defendant was setting Green and Aragon up for an ambush. Littlejohn reported this information to Green. Green confronted defendant, who denied any such intent. Defendant feared reprisals if Vasquez were to inform defendant's fellow gang members that she had been associating with rival gang members. Defendant threatened to take care of Vasquez. Aragon gave defendant a gun. Defendant stated she wanted to assault Vasquez and rob her of her jewelry.

The group dropped Littlejohn off at his home and drove to a park. While Aragon waited at the car, Green and defendant walked into the park with Vasquez. Defendant told Green she wanted to rob Vasquez. Defendant demanded Vasquez's jewelry. Defendant told Vasquez she was robbing her because she had informed on her. Vasquez refused to surrender her jewelry to defendant. Defendant fought with Vasquez and then shot her twice in the head at point blank range, killing her. Defendant and Green returned to the car. Defendant told Aragon that she had fought with Vasquez over the jewelry. After the murder, defendant and Green returned to Littlejohn's house. Defendant had Vasquez's jewelry and told Littlejohn that she had killed Vasquez when Vasquez had refused to surrender her jewelry. Aragon had someone dispose of the murder weapon.

In separate proceedings, Green was convicted of the murder and robbery of Vasquez, and Aragon was convicted of being an accessory. Green testified that he alone had been responsible for the killing of Vasquez and he had taken her jewelry merely as an afterthought.

THE 2015 SENTENCING HEARING

Lozano filed a statement in mitigation of punishment prior to the 2015 sentencing hearing, supported by in excess of 300 pages of exhibits. The exhibits demonstrated that Lozano engaged in serious misconduct during her first four years in prison, including a conviction for conspiracy to transport a controlled substance resulting in a six-year prison sentence. Lozano did not receive any disciplinary violations in the following 15 years in prison. Among the exhibits Lozano proffered to show her amenability to rehabilitation were the following: Lozano earned her GED and an AA college degree; a laudatory declaration from a former warden of the California Institution for Women; various certificates of completion of vocational courses; participation in numerous self-help programs related to alcohol and substance abuse and coping skills; participation in programs involving the consequences of criminality on victims, participation and leadership in programs relating to juvenile offenders; election to the inmate council that works in conjunction with prison administration; participation in an outreach program to prevent juveniles from participating in crime, including personal communication with some participants; and over 30 laudatory comments from prison staff including descriptions of her transformation from an immature inmate to a person dedicated to helping others avoid the mistakes that lead to her incarceration.

The prosecution filed a resentencing memorandum in support of an LWOP sentence, arguing in part that consideration of Lozano's postconviction conduct was inappropriate at the new sentencing hearing. The prosecution also argued that Lozano had an alternative remedy of presenting the evidence in a petition for resentencing under section 1170, subdivision (d)(2),2 which permits a juvenile sentenced to LWOP (with exceptions not relevant here) to petition the sentencing court for "recall and resentencing" after serving at least 15 years in prison where the defendant "has performed acts that tend to indicate rehabilitation or the potential for rehabilitation...."

In oral argument before the trial court, the prosecution took the position that Miller and Gutierrez preclude consideration of postconviction conduct on the issue of a juvenile killer's amenability to rehabilitation. The prosecutor argued sentence should be imposed based on the circumstances present at the time of the initial sentencing hearing in 1996. Lozano's counsel replied that Lozano was not opposed to the court looking at her poor behavior in prison, along with her later conduct demonstrating the potential for rehabilitation. The prosecutor expressed the view that the required resentencing "basically turns back the clock to the initial day of sentencing" and "post-sentence conduct by the defendant doesn't come into play...." The prosecutor continued, "there's another mechanism entirely where you can start looking at the inmate's conduct, and that would be under [section] 1170 [subdivision] (d)(2)."

Counsel for Lozano responded that the prosecutor's approach "sort of undermines all the purposes of the rationale of Miller and Gutierrez ." The rationale for exclusion of evidence of bad conduct is not a matter of relevance, it is a recognition that a juvenile put in a position of hopelessness by an LWOP sentence is unlikely to rehabilitate, but that does not answer the question of whether there is a potential for rehabilitation. Counsel argued most cases involve little or no postconviction information, but Lozano has been in prison for nearly 20 years, and "the actual evidence of the rehabilitation has to be the most relevant and probative evidence available."

The trial court ruled that it was required "to go back in time" and sentence Lozano as the facts existed at the time of the original sentencing hearing in 1996. As a result, the court ruled all evidence of Lozano's postconviction conduct in prison was inadmissible.

The trial court proceeded to the issue of what sentence should be imposed, first considering victim impact statements from members of Vasquez's family on the issue of sentencing. Vasquez's brother, Jose, spoke of how the pain of his sister's murder did not go away and his belief that the original LWOP sentence was proper. Jose told the court that no one can understand the impact of a murder until it happens to a family member. Vasquez's niece, Leanae, was just 18 months younger than Vasquez. There is no closure for her. She misses Vasquez, whom she described as a good person. Raymond, Vasquez's brother, asked the court for justice for his sister. Vasquez's sister, Sarah, spoke on her own behalf and for other family members. Sarah was...

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