Opinion
Nos. C067436 C069886.
06-30-2014
THE PEOPLE, Plaintiff and Respondent, v. VICTOR TYRONE GARRETT, Defendant and Appellant.THE PEOPLE, Plaintiff and Respondent, v. VICTOR TYRONE GARRETT, Defendant and Appellant.THE PEOPLE, Plaintiff and Respondent, v. ERION DEMONTA VARNADO, Defendant and Appellant.
Barbara Michel , under appointment by the Court of Appeal, for Defendant and Appellant Victor Tyrone Garrett.
Victor J. Morse , under appointment by the Court of Appeal, for Defendant and Appellant Erion Demonta Varnado.
Kamala D. Harris , Attorney General, Dane R. Gillette and Michael P. Farrell , Assistant Attorneys General, Charles A. French , Craig S. Meyers and Daniel B. Bernstein , Deputy Attorneys General, for Plaintiff and Respondent.
[CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts I through VII of the Discussion.
OPINION
HOCH, J.
In November 2008, defendants Victor Tyrone Garrett and Erion Demonta Varnado participated in armed robberies and an attempted armed robbery. Both Garrett and Varnado were 17 years old when the offenses were committed, but were tried as adults. (Welf. & Inst. Code, § 707, subds. (b)(3) & (c).)
Garrett and Varnado were charged along with Antwaan Edwardo Anderson and Vance Hicks. Anderson pled guilty before trial, and Hicks admitted his guilt after trial commenced. Neither Anderson nor Hicks is a party in this appeal.
A jury convicted Garrett of six counts of second degree robbery (Pen. Code, § 211), two counts of kidnapping for robbery (§ 209, subd. (b)(1)), one count of attempted robbery (§§ 211, 664), and one count of assault with a firearm (§ 245, subd. (a)(2)). For each of the offenses, the jury found true the allegation Garrett personally used a firearm (§ 12022.53, subd. (b)), and as to the assault with a firearm that Garrett personally discharged a firearm (§ 12022.53, subd. (c)). Garrett was sentenced to serve a total of 74 years four months to life in prison.
Undesignated statutory references are to the Penal Code.
Varnado was also convicted by a jury of two counts of second degree robbery, one count of attempted robbery, and one count of assault with a firearm. The jury also found true the allegation Varnado personally used a firearm during the assault and attempted robbery. However, the jury found Varnado not guilty of four counts of robbery. The jury was unable to reach a verdict as to the two counts of kidnapping to commit robbery, the allegation Varnado personally used a firearm during the second degree robberies, or he discharged a firearm during the attempted robbery. The trial court declared a mistrial as to the counts and enhancements for which the jury could not reach a verdict.
On retrial, Varnado was convicted of the remaining two counts of second degree robbery, and the jury found true the allegation he used a firearm during these robberies. The second jury was not asked to decide whether Varnado discharged a firearm during the attempted robbery. Varnado was sentenced to serve a total of 31 years to life in prison.
On appeal, both defendants contend (1) the evidence of asportation was insufficient to support their convictions of kidnapping for robbery. In a related argument, Varnado contends (2) the trial court erred in refusing defense counsel's proposed instruction informing the jury that "incidental" movement does not amount to kidnapping for robbery.
Varnado further argues (3) evidence regarding the firing of a gun during the attempted robbery was improperly admitted during his retrial to prove he used a gun on a separate occasion, (4) insufficient evidence of intent to commit theft requires reversal of his attempted robbery conviction, and (5) an unduly suggestive identification procedure was used to identify him two days after the robbery.
Garrett separately argues that (6) an in-field showup employed by the police shortly after his arrest was an unduly suggestive identification procedure, (7) his Miranda rights were violated during his interrogation by the police, and (8) his prison sentence of 74 years four months to life constitutes cruel and unusual punishment because he was a minor at the time of the offenses.
See Miranda v. Arizona (1966) [16 L.Ed.2d 694, 86 S.Ct. 1602].
We conclude defendants' act of moving the victims of kidnapping for robbery from where they were standing into the locked trunk of a car sufficed for the asportation requirement of the offense. Contrary to Varnado's contention, the trial court was not required to give defense counsel's proposed pinpoint instruction. We also find no error in the admission of testimony regarding the discharge of a firearm during the attempted robbery. The evidence was sufficient to establish intent to commit robbery during the attempted robbery. And, the police did not use an unduly suggestive identification procedure two days after Varnado's arrest.
As to Garrett's separate claims, the in-field showup did not constitute an unduly suggestive identification procedure. And, the police did not violate his Fifth Amendment rights because Garrett knowingly and voluntarily waived his rights after being given a Miranda advisement. However, we conclude Garrett's sentence of 74 years four months to life in state prison requires remand for resentencing under the guidance of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero).
Accordingly, we affirm the judgment as to Varnado. We affirm Garrett's convictions, but reverse and remand for resentencing.
BACKGROUND
Robberies of Kilgore, Cheatham, Douglas, and Cordero (Counts 1-4)
At approximately 9:00 p.m. on November 15, 2008, Jaquan Cheatham and Lonnie Kilgore were walking to a 7-Eleven store. Two males with guns approached Cheatham and instructed him to empty his pockets. Cheatham heard the cocking of a gun and turned over his school identification and telephone. Cheatham gave the robbers his pants so they would know he had turned over everything. Kilgore also took off clothing and handed it to the robbers.
Thomas Douglas and Alexis Cordero were nearby and watched Cheatham and Kilgore get robbed. Cordero explained she initially saw a black car with three male occupants. Cordero then "had a bad feeling" and turned around to see two of the males "attack" a boy behind her. The robbers brandished guns and took everything from the boy — even his clothes.
Fearing the robbers would attack her group too, Cordero told her friends to run away. Cordero and Douglas hid behind a nearby van. When the same black car drove by, Cordero heard someone from the car tell them to come out from behind the van. Cordero and Douglas did so with their hands up. One of the robbers instructed, "Lean up against the garage and give us everything that you have." The same two robbers that had attacked the boy appeared with guns drawn and took Cordero's shoes, jacket, money, cell phone, and chain. Douglas gave the robbers his necklace and wallet.
At approximately 3:00 a.m. on November 28, 2008, Sacramento County Sheriff's Deputy Michael Putnam drove Cheatham, Kilgore, Areél Robinson, and Markeisha DeMyers to view suspects who had been arrested in Elk Grove. Although Detective Mark Bearor at the Elk Grove Police Department planned to line the witnesses up in a hallway face-to-face with the suspects, the witnesses refused the proposed procedure. Instead, the four witnesses observed the suspects from a patio area through a plate glass window at a distance of 15 to 25 feet. Deputy Putnam led the witnesses, one at a time, to the patio area where they viewed the suspects.
As to defendants in this appeal, Cheatham stated with certainty Varnado was one of the males who robbed him. However, Cheatham was not able to identify Garrett. DeMyers identified Varnado but not Garrett. The record does not indicate what identifications, if any, were made by Kilgore or Robinson.
Kidnapping for Robbery of Gutierrez and Gribben (Counts 5-8)
Abel Gutierrez and Sheila Gribben went on their first date together on November 18, 2008. Shortly after midnight on November 19, 2008, they returned from the movies to Gribben's apartment complex in Sacramento. They talked next to Gutierrez's car for approximately 30 minutes when he noticed a champagne-colored car with four males wearing black sweaters. Gutierrez mentioned to Gribben that "something wasn't right." Gutierrez lost sight of the car behind a hill, but soon saw the four occupants walking by him and Gribben. One of the males pointed a long, silver revolver at Gutierrez's head and instructed him to take off his clothes. Gutierrez refused and was then told to empty his pockets. Eventually, Gutierrez took out his cell phone, wallet, and keys, and handed them over. The male with the gun then patted Gutierrez down to see if he had turned over everything. Gutierrez was then told to hand over the pea coat he was wearing.
The robbers then told Gutierrez to sit down on a curb. While Gutierrez watched, the males took some earrings and keys from Gribben. Gutierrez told them to let Gribben go. The male with braids in his hair responded, "She's not going anywhere." Gribben complied with an instruction to sit next to Gutierrez on the curb.
The robbers took Gutierrez's keys and attempted to open the trunk of his car. Unable to do so, they told Gutierrez to unlock his trunk. Gutierrez unlocked the trunk by pushing a button inside the passenger compartment. The robbers told Gutierrez to give them the subwoofer speakers he had in the trunk. But Gutierrez explained they could not easily be removed because they were wired to the car. The male with braids responded, "We'll just take the whole damn car." He then told Gutierrez to get into the trunk.
Gutierrez feared the males would end up killing them if he and Gribben got into the trunk. Hoping to avoid getting into the trunk, Gutierrez told them "just to take off and leave, that they had taken everything we had and weren't going to do anything; that if we were going to try anything we would have done that before any of that had happened." The male with braids responded, "Are you trying to die tonight?" The males called Gribben over and put her into the trunk with Gutierrez. They slammed the trunk twice on Gutierrez's head when trying to close it and succeeded in closing it on the third try. Gutierrez worried they would not be able to get out.
Gutierrez and Gribben heard the robbers rummaging through the car for a few minutes before they left. Gribben began to panic and Gutierrez tried to calm her down. After hearing the robbers run away, Gutierrez and Gribben waited for a few minutes before Gutierrez began to tear away the lining of the trunk. Gutierrez and Gribben shouted for help. Approximately five to 10 minutes later, Gribben's housemate let them out and called the police. Gutierrez discovered an iPod and headphones had been taken from the interior of the car. Gribben's watch and camera also had been taken.
Several hours later, Sacramento Police Officer Wesley Nezik received word a vehicle matching the descriptions given by Gutierrez and Gribben had been located. Officer Nezik contacted Gutierrez and Gribben and transported them to the Elk Grove area where the vehicle had been found. Gutierrez immediately recognized the car as the one in which he had seen the robbers. Gutierrez and Gribben also recognized items stolen from them.
Officer Nezik then drove Gutierrez and Gribben to an in-field showup at the Elk Grove Police Department. Officer Nezik testified: "[O]n the way to the police department, I explained to them that there were people who were being detained. They may or may not be related to their situation from the previous robbery that happened there. They may or may not be in handcuffs. If they are, it's for our safety and for theirs." At the police station, Gutierrez and Gribben were escorted inside but indicated they were scared about the prospect of meeting the robbers face-to-face. Officer Nezik led them outside and allowed them to sit in the backseat of the patrol vehicle. The officer testified it was not "an ideal way to do it" but he was the only police officer available to do a field showup. The patrol car lights were turned on and the suspects were brought into the light one at a time. Given the unusual nature of the field showup, Officer Nezik instructed Gutierrez and Gribben not to discuss the suspects between themselves. The victims agreed.
As to defendants in this appeal, Gribben stated about Varnado that he had "a similar haircut" to one of the robbers. By contrast, Gutierrez "stated that he did recognize the hair [on Varnado] because it was very distinct because the braids were sticking up in the air." Neither Gutierrez nor Gribben recognized the second suspect, Vance Hicks. When Anderson was brought out, Gribben stated: "That's him. He was the one pointing the gun at me demanding my stuff" and one of the males who told them to get into the trunk. Gutierrez also "seemed very confident" in identifying Anderson. When Garrett was brought out, Gribben was "not sure about him." Gutierrez said Garrett "looked familiar and that someone there on scene was wearing ... similar clothing."
Assault and Attempted Robbery of Mangano (Counts 9-10)
Early in the morning on November 18, 2008, John Mangano delivered newspapers by car in Elk Grove. Mangano had just gotten back into his vehicle when a "silverfish color" car pulled diagonally in front of his car "and blocked [him] off." Mangano noticed three doors opened and three males got out of the car. Mangano asked, "Well, what's going on?" He then observed the male behind the driver holding a black revolver at waist level. Mangano threw his car into reverse, ducked down, and began to drive away. Before he ducked, Mangano caught a glimpse of four males from the car.
Mangano had driven approximately 20 to 25 feet when he heard a gunshot. When Mangano next looked up, he saw two of the males were holding guns "like in the gangster movies" and heard additional shots ring out. Once Mangano had gotten 40 yards away, he looked up again and saw the males get back into their car. As the car drove away on Elk Grove Boulevard, Mangano decided to follow it. While following the car, Mangano called the police with his cell phone. Elk Grove Police Officers Shane Glaser and Robert Barnes responded to the call in their patrol cars. Matching the description of the suspect vehicle and location was a gray, four-door Pontiac Grand Am. The officers pulled the car over and arrested the four occupants: Varnado, Garrett, Hicks, and Anderson.
A search of the suspect vehicle turned up two handguns, four spent casings, an iPod, headphones, four cell phones, keys, and a purple digital camera, several purses, and a black jacket.
After his arrest, Garrett was interviewed by the police. Garrett admitted he was riding with Varnado, Hicks, and Anderson. Along with him, Garrett had a gun he had stolen from his grandfather a few weeks earlier. Garrett's hands were tested for gunshot residue. The test indicated Garrett had recently "fired a weapon, was near a weapon when it was fired, or handled a fired weapon or fired ammunition."
Defense Evidence
Garrett introduced evidence he was at his house on the evening of November 15, 2008, when Kilgore, Cheatham, Douglas, and Cordero were robbed. Garrett's sister, Victoria Garrett, testified he had been present the entire time at a family barbecue that lasted until 1:00 or 2:00 in the morning. This testimony was corroborated by a friend of Garrett's and by a neighbor who testified Garrett had been present at the barbecue.
Varnado introduced the testimony of Dr. William Shomer, an expert on witness identification, perception, and memory. Dr. Shomer testified that (1) "people are highly unreliable with respect to cognition of strangers," (2) people overestimate their certainty of identification when suspects have similar appearances, (3) cross-racial identifications tend to be "far less accurate," (4) the stress of being assaulted by a weapon has an adverse effect on the ability to remember accurately, and (5) the identification procedure employed can make a significant difference in outcomes.
Varnado's Retrial
Varnado was retried after the first jury was unable to reach a verdict on the counts of kidnapping for robbery against Gutierrez and Gribben or on the allegations of personal firearm use against Gutierrez and Gribben. As pertinent to the issues raised on appeal by Varnado, the evidence at the second trial showed the robbers made Gribben sit on the curb about 10 feet from Gutierrez's car during the robbery. Gutierrez did not sit, but stood next to Gribben. According to Gribben, the robbers did not move them to the curb. Instead, Gribben and Gutierrez were already standing there when the robbery started.
The robbers told Gutierrez to open his car trunk. When the robbers saw the subwoofer speakers inside they tried to remove them, but were unsuccessful. They debated stealing the car. The robbers then told Gutierrez to get into the trunk. The robbers then instructed Gribben to get up from the curb and climb into the trunk with Gutierrez. The robbers twice slammed the trunk onto Gutierrez's head before they were able to close the trunk. DISCUSSION
I-VII
See footnote, ante, page 675.
VIII
Garrett's Eighth Amendment Challenge to His Sentence
Garrett contends his sentence of 74 years four months to life in prison for nonhomicide crimes committed as a minor constitutes cruel and unusual punishment under the Eighth Amendment. Prior to oral argument, we asked the parties for supplemental briefing to address the impact of the California Supreme Court's decision in Caballero, supra, 55 Cal.4th 262. Garrett reiterated his contention that his sentence is unconstitutional, and the Attorney General conceded the point. At oral argument, the Attorney General withdrew her concession and requested the opportunity to further brief the matter in light of the recent passage of Senate Bill No. 260 (2013-2014 Reg. Sess.) Statutes 2013, chapter 312. (Senate Bill No. 260.) We granted all parties the opportunity to file supplemental letter briefs, which were filed by Garrett and the Attorney General. Having reviewed the supplemental briefs, we conclude Garrett's sentence must be reversed and his matter be remanded for reconsideration in light of our Supreme Court's guidance in Caballero even after the passage of Senate Bill No. 260.
Varnado does not raise an Eighth Amendment challenge to his sentence, presumably because his sentence of 31 years to life in prison allows him the possibility of parole when he will be approximately 48 years old.
A.
Life Sentences for Nonhomicide Crimes Committed by Minors
(1) In Graham v. Florida (2010) 560 U.S. 48, 81 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham), the United States Supreme Court announced that the "... Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." (560 U.S. at p. 82 .) Two years later, in Miller v. Alabama (2012) 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), the Supreme Court declared, "`[j]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered' in assessing his [or her] culpability." (Id. at p. ___ , quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 116, [71 L.Ed.2d 1, 102 S.Ct. 869].) The Miller court recognized it "imposed a categorical ban on the sentence's use, in a way unprecedented for a term of imprisonment. See [Graham, supra, 130 S.Ct., at 2046] (THOMAS, J., dissenting) ... (`For the first time in its history, the Court declares an entire class of offenders immune from a noncapital sentence using the categorical approach it previously reserved for death penalty cases alone')." (Miller, supra, at p. ___ [132 S.Ct. at pp. 2466-2467].)
Following Graham and Miller, the California Supreme Court held a 110-year-to-life sentence imposed for three counts of attempted murder committed as a minor constituted cruel and unusual punishment. (Caballero, supra, 55 Cal.4th at p. 265.) As the Caballero court explained, "the Eighth Amendment requires the state to afford the juvenile offender a `meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,' and that `[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.' (Graham, supra, 560 U.S. at [pp. 75, 73] [130 S.Ct. at pp. 2030, 2029].) The court observed that a life without parole sentence is particularly harsh for a juvenile offender who `will on average serve more years and a greater percentage of his [or her] life in prison than an adult offender.' (Id. at p. [70] .) Graham likened a life without parole sentence for nonhomicide offenders to the death penalty itself, given their youth and the prospect that, as the years progress, juveniles can reform their deficiencies and become contributing members of society. (Ibid.)" (Caballero, supra, 55 Cal.4th at p. 266.)
In Caballero, the Attorney General argued the 110-year-to-life prison sentence for a minor did not violate the Eighth Amendment even though it was the "functional equivalent to a life without parole term" on grounds no individual component of the defendant's sentence by itself amounted to a life sentence. (Caballero, supra, 55 Cal.4th at p. 271 (conc. opn. of Werdegar, J.).) Our Supreme Court rejected the contention because "the purported distinction between a single sentence of life without parole and one of component parts adding up to 110 years to life is unpersuasive." (Id. at pp. 271-272 (conc. opn. of Werdegar, J.).) Thus, the Caballero court reversed the sentence and instructed that "the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison `based on demonstrated maturity and rehabilitation.'" (Caballero, supra, 55 Cal.4th at pp. 268-269, quoting Graham, supra, 560 U.S. at p. 75.)
B.
Garrett's Sentence Is the Functional Equivalent of a Life Sentence Without Parole
In sentencing Garrett, the trial court relied on the probation officer's report. Although the probation officer's report states Garrett was 17 at the time of the offenses, it does not consider his mental or emotional development either as it related to his culpability or the appropriate sentence for his crimes. The trial court stated that "it is, I think, a tragedy that someone as young as yourself ... is involved in this situation." However, the trial court did not take into account the factors of mental and emotional maturity articulated by the Graham and Miller courts in imposing its sentence on Garrett.
At the time of his sentencing, Garrett was 19 years old. With approximately two and a half years of presentence custody credits, Garrett's sentence would have made him eligible for parole at about 90 years of age. At the age of 90, Garrett will have little opportunity to become a contributing member of society. (Caballero, supra, 55 Cal.4th at p. 266.) This sentence constitutes the functional equivalent of a life-without-parole term.
Even with the 15 percent "good time" credits provided by section 2933.1, Garrett will not become eligible for parole until after he turns 82 years of age. (See § 667.5, subd. (c)(9) [including robbery among violent felonies for which custody credits are limited under section 2933.1, subdivision (a)].)
C.
Senate Bill No. 260 Does Not Cure the Constitutional Error in Sentencing
The Legislature responded to Miller, supra, 567 U.S. ___ and Caballero, supra, 55 Cal.4th 262 by passing Senate Bill No. 260, which became effective on January 1, 2014. The Legislature noted the bill "recognizes that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society." (Sen. Bill No. 260, § 1 (2013-2014 Reg. Sess.).) The Legislature declared, "[t]he purpose of this act is to establish a parole eligibility mechanism that provides a person serving a sentence for crimes that he or she committed as a juvenile the opportunity to obtain release when he or she has shown that he or she has been rehabilitated and gained maturity, in accordance with the decision of the California Supreme Court in [Caballero] and the decisions of the United States Supreme Court in [Graham], and [Miller].... It is the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established." (Sen. Bill No. 260, § 1.)
To effectuate the Legislature's intent, Senate Bill No. 260 added section 3051 to the Penal Code, which requires the Board of Parole Hearings to conduct youth offender parole hearings during the 15th, 20th, or 25th year of incarceration. (§ 3051, subd. (b).) A youthful offender whose sentence is a term of 25 years to life or greater is "eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (§ 3051, subd. (b)(3); Sen. Bill No. 260, § 4 (2013-2014 Reg. Sess.).) In conducting youth offender parole hearings under section 3051, the Board of Parole Hearings is required to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).) If the youthful offender is found suitable for parole by the Board of Parole Hearings, he or she must be released even if the full determinate term originally imposed has not yet been completed. (§ 3046, subd. (c).)
In light of Garrett's newly enacted entitlement to a youth offender parole hearing during his 25th year of incarceration, the Attorney General argues Garrett's sentence "is constitutional because he now has a realistic opportunity to obtain release from prison during his lifetime." We conclude remand for resentencing is compelled by the Eighth Amendment.
(2) In Caballero, the California Supreme Court concluded: "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. Under Graham's nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board." (Caballero, supra, 55 Cal.4th at pp. 268-269, italics added.)
Even though Senate Bill No. 260 provides what may be considered a "safety net" providing a juvenile offender the opportunity for a parole hearing during his or her lifetime, the new legislation does not substitute for the sentencing court's consideration of all individual characteristics of the offender. In Miller, the United States Supreme Court held imposition of punishment for crimes committed as a juvenile constitutes a task "demanding individualized sentencing ...." (Miller, supra, 567 U.S. at p. ___ .) After noting its earlier decisions requiring consideration of the mitigating and aggravating factors unique to each case of sentencing for crimes committed as a minor, the Miller court emphasized that, "[o]f special pertinence here, we insisted in these rulings that a sentencer have the ability to consider the `mitigating qualities of youth.'" (Id. at p. ___ , italics added, quoting Johnson v. Texas (1993) 509 U.S. 350, 367 [125 L.Ed.2d 290, 113 S.Ct. 2658].) Consequently, Senate Bill No. 260 does not render Garrett's claim moot.
We are aware of a contrary conclusion reached in People v. Gonzalez (2014) 225 Cal.App.4th 1296, 1311 (Gonzalez). Gonzalez involved a youthful offender who was sentenced to serve 50 years to life in prison. (Id. at p. 1302.) The Gonzalez court relied on Senate Bill No. 260 in rejecting the defendant's argument his sentence constituted cruel and unusual punishment. (225 Cal.App.4th at pp. 1300-1301.) The Gonzalez court concluded that "[Senate Bill No.] 260 ... cured or rendered moot any error under Miller in the sentencing hearing Gonzalez received." (Id. at p. 1312.) Gonzalez further concluded the "incarceration, although lengthy and under a mandatory sentence, does not implicate Miller's per se ban on mandatory [life imprisonment without possibility of parole (LWOP)] terms for juveniles. He similarly falls outside Caballero's holding that de facto LWOP terms may be tantamount to an LWOP for constitutional purposes. Simply put, under the new legislation, Gonzalez does not face the prospect of [serving life in prison without the possibility of parole]. Therefore, Miller does not apply, and neither does Caballero's recognition that a lengthy term of years may amount to an LWOP sentence." (Gonzalez, at p. 1309.)
We disagree with Gonzalez because the penalty selection that comports with Miller and Caballero must be undertaken in the first instance by the sentencing court. (Miller, supra, 567 U.S. at p. ___ ; Caballero, supra, 55 Cal.4th at pp. 268-269.) Regardless of whether the new statutory scheme enacted by Senate Bill No. 260 may eventually convert a mandatory life sentence to one with possibility of parole, the United States and California Supreme Courts have clearly required the sentencing court to consider the factors of youth and maturity when selecting the initial punishment. The statutory promise to have a future parole board review an improperly considered sentence does not cure the constitutional error.
The possibility that Garrett will have a board of parole undertake an evaluation 25 years after his sentencing is not a substitute for the trial court's evaluation at sentencing. Although the trial court is not required to articulate the analysis of Miller, supra, 567 U.S. ___ [183 L.Ed.2d 407, 132 S.Ct. 2455], Graham, supra, 560 U.S. 48, and Caballero, supra, 55 Cal.4th 262 as it relates to every youthful offender, each youthful offender is entitled to a sentence that passes muster under the Eighth Amendment. Moreover, a properly imposed sentence by itself can prove instructive in indicating the trial court's conclusions about the youthful offender's level of development, culpability, and other relevant factors. When youthful offenders must ultimately show achievement of sufficient growth and maturity to secure release on parole, they will need to refer back to the circumstances that existed at the commission of the crimes and were apparent to the trial court at sentencing. (Caballero, supra, 55 Cal.4th at pp. 268-269.) Without a proper evaluation by the trial court, youthful offenders will be deprived of their constitutionally guaranteed evaluation at the time of their sentencing and again when attempting to meet their burden during the much later youth parole hearings. (Ibid.) Consequently, we adhere to the guidance of the United States and California Supreme Courts that the sentencing court must engage in the proper evaluation of the appropriate punishment for a youthful offender. (Miller, supra, 567 U.S. at p. ___ ; Caballero, supra, 55 Cal.4th at pp. 268-269.)
The question of whether remand for resentencing must be ordered in this case is additionally informed by the California Supreme Court's recent examination of constitutionally deficient sentencing for youthful offenders in People v. Gutierrez (2014) 58 Cal.4th 1354 [171 Cal.Rptr.3d 421, 324 P.3d 245] (Gutierrez). Gutierrez involved consolidated cases in which two defendants, Gutierrez and Moffett, each separately committed special circumstance murder while 17 years old. (Id. at p. 1360.) The trial courts imposed life imprisonment without possibility of parole (LWOP) sentences on each defendant under section 190.5, subdivision (b), which had been construed to create a presumption in favor of LWOP sentences for special circumstance murders committed by 16- and 17-year-old offenders. (58 Cal.4th at p. 1360.) In Gutierrez, the California Supreme Court harmonized section 190.5, subdivision (b), with Eighth Amendment protections by holding trial courts have discretion to sentence a youthful offender to serve 25 years to life or LWOP with no presumption in favor of the LWOP option. (58 Cal.4th at pp. 1371-1379.) Because the defendants in Gutierrez had been sentenced under the prior, prevailing presumption in favor of LWOP, the Supreme Court held that resentencing was required. (Gutierrez, supra, 58 Cal.4th at pp. 1361, 1379.) In so holding, the Gutierrez court rejected the Attorney General's argument that the recent enactment of section 1170, subdivision (d)(2), "removes life without parole sentences for juvenile offenders from the ambit of Miller's concerns because the statute provides a meaningful opportunity for such offenders to obtain release." (Gutierrez, supra, 58 Cal.4th at p. 1386.) Section 1170 allows a youthful offender to petition the court to recall the sentence after serving 15 years. (Gutierrez, at p. 1384 [noting also that the youthful offender, if not initially successful, may petition again after 20 and 24 years have been served].) The Gutierrez court explained that the United States Supreme Court in "Graham spoke of providing juvenile offenders with a `meaningful opportunity to obtain release' as a constitutionally required alternative to — not as an after-the-fact corrective for — `making the judgment at the outset that those offenders never will be fit to reenter society.' (Graham, at p. 75 , italics added.) Likewise, Miller's `cf.' citation to the `meaningful opportunity' language in Graham occurred in the context of prohibiting `imposition of that harshest prison sentence' on juveniles under a mandatory scheme. (Miller, at p. ___ .) Neither Miller nor Graham indicated that an opportunity to recall a sentence of life without parole 15 to 24 years into the future would somehow make more reliable or justifiable the imposition of that sentence and its underlying judgment of the offender's incorrigibility `at the outset.' (Graham, at p. 75 .) [¶] Indeed, the high court in Graham explained that a juvenile offender's subsequent failure to rehabilitate while serving a sentence of life without parole cannot retroactively justify imposition of the sentence in the first instance: `Even if the State's judgment that Graham was incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate because that judgment was made at the outset.' (Graham, supra, 560 U.S. at p. 73 , italics added.) By the same logic, it is doubtful that the potential to recall a life without parole sentence based on a future demonstration of rehabilitation can make such a sentence any more valid 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. Consistent with Graham, Miller repeatedly made clear 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.' (Miller, supra, 567 U.S. at p. ___ , italics added; see id. at pp. ___, ___ [132 S.Ct. at pp. 2469, 2475].)" (Gutierrez, supra, at pp. 1386-1387.) In short, the California Supreme Court recognized a statutory promise of future correction of a presently unconstitutional sentence does not alleviate the need to remand for resentencing that comports with the Eighth Amendment.
(3) Consequently, we reverse and remand "the case to the trial court with directions to resentence defendant to a term that does not violate his constitutional rights, that is, a sentence that, although undoubtedly lengthy, provides him with a `meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' (Graham, 560 U.S. at p. [75] .)" (Caballero, supra, 55 Cal.4th at p. 273 (conc. opn. of Werdegar, J.).)
DISPOSITION
The judgment is affirmed as to Erion Demonta Varnado. We also affirm the convictions as to Victor Tyrone Garrett. However, we reverse the judgment as to Garrett and remand for resentencing consistent with People v. Caballero, supra, 55 Cal.4th 262.
Hull, Acting P. J., and Robie, J., concurred.