P. v. Blackwell
Filed 6/20/13 P. v. Blackwell CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
>
and Respondent, and Appellant. | A128197 ( Super. |
Appellant
Bradley Blackwell was sentenced to prison for a term of life without the
possibility of parole (LWOP) following his conviction by jury trial of first
degree murder with felony-murder special circumstances and other offenses,
which were committed when he was 17 years old.
He appealed, arguing his LWOP sentence should be reversed because (1) it
exceeded the punishment allowable absent a jury determination of his age and
violated his Sixth Amendment rights
under Apprendi v.
(2000) 530 U.S.
466, 490 (Apprendi); (2) it amounted
to cruel and unusual punishment under the Eighth Amendment of the federal
Constitution because he was a juvenile at the time of the offenses; and (3) it
was an abuse of discretion.
In
People v. Blackwell (2011) 202
Cal.App.4th 144 (Blackwell), we
rejected these claims and affirmed the judgment. Appellant’s petition for review was denied by
the California Supreme Court (March 14, 2012, S199767), but the United States
Supreme Court granted his petition for writ of certiorari, vacated the
judgment, and remanded the case to this court for reconsideration in light of
[132 S.Ct. 2455] (Miller), which was
decided after the issuance of our original opinion, and which held that
mandatory LWOP sentences for homicide amount to
Eighth Amendment when they are imposed on a defendant who was a juvenile at the
time of the offense. We asked the
parties to submit supplemental briefing
on the issue.
title="">[1] Having reconsidered the case in light of
court for resentencing.
I. FACTS AND
PROCEDURAL HISTORY
Uriel
Carreno was living in the converted garage of his aunt and uncle’s home on Joan
Drive in Petaluma. On February
7, 2007, he ate lunch with his aunt and then returned to his garage
apartment. A friend of Carreno’s came by
later that afternoon and found him lying on the floor, not moving. Carreno had been shot four times in his side
and once in his back and had died of his wounds. A piece of the wood doorjamb was found across
the room and a muddy shoeprint was on the door adjacent to the doorknob.
The
police found five nine-millimeter shell casings of two different colors within
three to five feet of Carreno’s body.
Forensic testing and the position of the casings revealed they had all
been fired from the same weapon while the shooter was inside the room. The coroner recovered five spent bullets from
Carreno’s body, all of which had been fired from the same weapon. Two of the bullets had silver jackets
(Silvertips) and the other three were of the Black Talon variety. There was no evidence another firearm had
been discharged inside the room during the incident leading to Carreno’s death.
Jeffrey
Gray, a convicted felon, had seen appellant with a nine-millimeter Beretta
during the first part of 2007. Appellant
had loaded it with different colored bullets and had told Gray some of them
were solid points and some were hollow points.
Appellant had referred to the hollow point bullets as Black Talons.
On
the afternoon Carreno was shot, appellant had called Christopher Ortele and
asked for a ride to Petaluma near
the Kmart so he could pay his cell phone bill.
Ortele was in the process of installing a car stereo for his friend
Amber Powell, who agreed to drive.
Powell and Ortele picked up appellant, who was with Keith Kellum, and
they all drove from Rohnert Park to the Petaluma Kmart, but when Powell was
about to turn into the parking lot, either appellant or Kellum told her to go
the other way and directed her to a residential neighborhood near the corner of
Novak and Joan Drive (the street on which Carreno lived).
After
Powell parked the car, appellant and Kellum got out and walked in the direction
of Joan Drive, telling Powell to wait for them.
When they returned five to 15 minutes later, their demeanor had
changed. They got into the car and were
very quiet during the ride back. It
appeared to Powell that appellant was “tearing up†and Kellum was consoling
him.
Jeffrey
Gray received a call from appellant the same afternoon and arranged to meet him
at a trailer park where Gray was visiting a friend. Appellant, Kellum and appellant’s brother
Colby Blackwell arrived at the trailer park in Colby’s truck, and Gray got into
the truck with them. Appellant handed
Gray some solvent and a rag and told him he wanted him to go inside a house or
garage and wipe down any fingerprints that might be on the door. They pulled up to a house on Joan Drive, but
saw fire trucks, police cars, and an ambulance outside. Appellant appeared upset and said he had shot
a guy they were trying to rob.
The
group drove back to appellant’s house, where appellant told Gray what had
happened in greater detail. Appellant
said he and Kellum had gone to Petaluma to rob a guy of some money and dope
(crystal methamphetamine). Kellum had
kicked in the door of the garage.
Appellant claimed that when he went into the garage the guy inside took
a shot at him, so he shot back several times.
Also
on the day of the shooting, appellant called his girlfriend, Jacqueline
Pollard, and asked her to come to his house.
He sounded very anxious on the phone.
When Pollard arrived she found appellant and Kellum stripped to their
boxer shorts. Appellant took her into
the bathroom and told her in a “frantic†manner he had been driven to Petaluma
by some girl he didn’t know and had shot someone dead. Appellant told Pollard he and Kellum had gone
to a house, touched a doorknob, and kicked another door down, and he was afraid
there would be fingerprints and a footprint on two separate doors. He claimed that when they entered the room
the person inside had fired a shot between his head and Kellum’s, so appellant
fired a few shots into the person’s chest.
Appellant admitted he had used his own gun, a semiautomatic that Pollard
had seen before. He said he and Kellum
were going to burn their clothes, and mentioned a pair of shoes and a jacket
that would be placed in a backpack along with the gun and some extra
bullets. Pollard saw a backpack
containing loose bullets and shoes in appellant’s bedroom, and appellant said
he was going to bury it.
Sometime
later, appellant told Pollard he was concerned that too many people knew the
gun was in the bag and where it was buried.
He drove her into the Santa Rosa hills and asked her whether she thought
he should move it. She told him it might
not be a good idea because they had been stopped by the police a number of
times in the car they were driving.
On
a visit to one Bryan Fishtrom’s house in March or April 2007, appellant was
carrying a dirty bandana that contained a semi-automatic handgun, bullets, and
a lot of mud. The bullets were of
different colors and some had hollow tips.
In
March 2007, Jeffrey Gray was picked up on a parole violation and told the
police what he knew about appellant’s involvement in Uriel Carreno’s
murder. In April 2007, after he was
released, Gray saw appellant and his brother Gary Blackwell at Bryan Fishtrom’s
house. Appellant and his brother asked
Gray how he had gotten out of jail, and appellant suggested they go for a ride
together. Gray declined.
In
May 2007, appellant’s brother Colby Blackwell directed police officers to a 50gallon
drum in a rural area. Colby moved the
drum, revealing a hole in the ground that contained wet clothing, shoes, pieces
of a rifle cleaning kit, five rounds of nine-millimeter ammunition, and rifle
grease. A tee shirt bore the imprint of
a gun and had rust stains consistent with a Beretta nine-millimeter handgun.
Appellant
was interviewed by the police and initially denied knowing anything about
Carreno’s murder. Later, he told them he
and Kellum had gone to a house to “burn a guy for drugs,†and Kellum had kicked
open the door and shot the person inside several times. Appellant admitted that he knew before they
went to the house that Kellum had a handgun.
He acknowledged that his brother Colby had buried some of the evidence,
and that he (appellant) had sold the gun that Kellum used in Santa Rosa.
Based
on the foregoing evidence, appellant was charged with first degree murder with
felony-murder special circumstances (murder in the commission of an attempted
robbery and a burglary or attempted burglary), burglary of an inhabited
dwelling house, and attempted robbery in an inhabited dwelling house, along
with allegations of personal firearm use.
(Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (G),
211, 459, 664; 1203.06, subd. (a)(1), 12022.5, subd. (a); 12022.53, subds.
(b)-(d).) Although appellant was 17
years old at the time of the killing, the district attorney elected to directly
file the case in adult court under Welfare and Institutions Code section 707,
subdivision (d).
A
jury convicted appellant of the substantive charges and found the special
circumstance allegations to be true, though it rejected the firearm
allegations.
title="">[2] After the jury returned its verdict,
appellant filed a sentencing memorandum arguing that under Apprendi, supra, 530
U.S. 466, the court could not impose an “adult†sentence without a jury finding
regarding his age at the time of the offenses.
The court rejected this argument and imposed an LWOP term on the murder
count. It acknowledged it had the
discretion to impose a lesser term of 25 years to life because appellant was
under age 18 when he committed the murder (see Pen. Code, § 190.5), but
declined to exercise that discretion in light of appellant’s long juvenile
court history and the “heinous†nature of the current offenses.
II. DISCUSSION
A. LWOP
Sentence as Cruel and Unusual Punishment
Appellant
was sentenced to LWOP under Penal Code section 190.5, subdivision (b),
which provides “The penalty for a defendant found guilty of murder in the first
degree, in any case in which one or more special circumstances . . . has been
found to be true . . . who was 16 years of age or older and under the age of 18
years at the time of the commission of the crime, shall be confinement in the
state prison for life without the possibility of parole or, at the discretion of
the court, 25 years to life.†This
provision has been judicially construed to establish a presumption that LWOP is
the appropriate term for a 16- or 17-year-old defendant, and to make an LWOP
sentence “generally mandatory.†(
1130, 1141-1142 (Guinn); see also
277, 282; People v. Ybarra (2008) 166
Cal.App.4th 1069, 1089 (Ybarra).) We noted this presumption in our original
opinion in this matter. (
In
Miller, supra, 567 U.S. ___ [132 S.Ct. 2455], the high court invalidated
mandatory LWOP terms as cruel and unusual punishment under the
Constitution when applied to juvenile offenders convicted of homicide
offenses. Building on precedents that
had categorically barred the death penalty for juveniles convicted of homicide
(Roper v. Simmons (2005) 543 U.S.
551, 560), and LWOP sentences for juveniles convicted of nonhomicide offenses (
[130 S.Ct. 2011, 2030]), the court explained, “The Eighth Amendment forbids a
sentencing scheme that mandates life in prison without the possibility of
parole for juvenile offenders. [Citation.]
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.†(
p. 2469].) The court in
reasons that juveniles are “constitutionally different†than adults for
sentencing purposes, including their lack of maturity and undeveloped sense of
responsibility, their vulnerability to outside pressure and negative influences,
their limited control over their own environment and their inability to
extricate themselves from crime-producing settings, and their greater ability
to change due to their possession of a character that is not as “well formedâ€
as an adult’s. (Id. at p. 2464.)
Penal
Code section 190.5, subdivision (b) differs from the mandatory schemes found
unconstitutional in Miller because it
gives the court the discretion to impose a term that affords the possibility of
parole in lieu of an LWOP sentence. But,
as noted, the statute has been construed to create a presumption in favor of
LWOP. This presumption is contrary to
the spirit, if not the letter, of Miller,
which cautions that LWOP sentences should be “uncommon†given the “great
difficulty . . . of distinguishing at this early age between ‘the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the
rare juvenile offender whose crime reflects irreparable corruption.’ †(Miller,
supra, 567 U.S. at p. –––– [132 S.Ct.
at p. 2469].)
The
Miller decision does not
categorically bar LWOP sentences in juvenile homicide cases, but it recognizes
that juveniles are different from adults in ways that “counsel against
irrevocably sentencing them to a lifetime in prison.†(Miller,
supra, 567 U.S. at p. –––– [132 S.Ct.
at p. 2469].) Treating LWOP as the
default sentence takes the premise in Miller
that such sentences should be rarities and turns that premise on its head,
instead placing the burden on a youthful defendant to affirmatively demonstrate
that he or she deserves an opportunity for parole.
The
trial court in this case did not refer explicitly to the presumption in favor
of LWOP at the sentencing hearing, but it was directed by counsel to two
published appellate cases that recognized the presumption. (See Guinn,
supra, 28 Cal.App.4th at pp.
1141-1142; Ybarra,
applicable law as it existed at the time (People
v. Mosley (1997) 53 Cal.App.4th 489, 496), and conclude remand is necessary
so the court can reconsider the appropriate sentence on the murder count
without reference to a presumption in favor of LWOP and with the benefit of the
Miller opinion.
The
Attorney General argues that Miller
does not apply to appellant’s case because recent amendments to California’s
sentencing law have provided appellant with the opportunity for parole. Subject to exceptions not relevant here,
Penal Code section 1170, subdivision (d)(2) retroactively permits a
defendant who was sentenced to LWOP for a crime committed as a juvenile to
petition the court for recall and resentencing after serving at least 15 years
of that sentence.
title="">[3] This provision offers the possibility of
relief some 15 years in the future, but it does not remediate the problem
here—imposition of sentence under a scheme that, contrary to the precepts of
for a 16- or 17-year-old defendant convicted of special circumstance murder.
Though
we return the case to the trial court for a new sentencing hearing, we express
no opinion as to the appropriate outcome.
At the original sentencing hearing, the trial court cited appellant’s
lengthy criminal record as a juvenile and the heinous nature of the offense as
circumstances supporting an LWOP term.
The court may and should consider these factors on remand, but however
aggravating the circumstances of this case, the sentencing choice must be
without regard to decisional law making LWOP the presumptive term.
B.
Jury Finding of Appellant’s Age
Under Apprendi
In
his original appeal, appellant challenged his LWOP sentence as unauthorized
absent a jury finding of his age at the time of the offenses, arguing that such
a finding was required by Apprendi,
further review of the sentence imposed on remand) any argument that a jury
finding on appellant’s age was required.
We repeat the analysis in our original opinion.
The
probation report indicates appellant was born on August 9, 1989, making him 17
years old when the offenses were committed in February of 2007. Although minors who commit crimes are
generally subject to the jurisdiction of the juvenile court, the law provides
for a number of exceptions. (See
§§ 602, subd. (b), 707, subds. (a)-(d); People v. Cardona (2009) 177 Cal.App.4th 516, 523-526 (
Under
section 602, subdivision (b), a minor who is 14 years of age or older must be
prosecuted as an adult if he or she is alleged to have personally killed the
victim during a special circumstance murder or to have committed enumerated
forcible sex offenses. Section 707,
subdivision (d) allows the prosecution to directly file specified charges
against certain minors in adult court, without a judicial determination the
minor is unfit for treatment under the juvenile law. Section 707, subdivisions (b) and (c) permits
a minor 14 years of age or older to be prosecuted as an adult for enumerated offenses
if found unfit for treatment under the juvenile law, there being a presumption
of unfitness. And section 707,
subdivision (a)(1) provides that minors accused of other crimes will be treated
as juveniles unless they are 16 years of age or older and are demonstrated to
be unfit for treatment under the juvenile law.
(Manduley v. Superior Court
(2002) 27 Cal.4th 537, 548-551 (Manduley).)
Here,
the prosecution directly filed charges against appellant in adult court. It relied on section 707, subdivision
(d)(2)(A), which provides, “[T]he district attorney or other appropriate
prosecuting officer may file an accusatory pleading against a minor
14 years of age or older in a court of criminal jurisdiction in any case
in which any one or more of the following circumstances apply: [¶] . . .
The minor is alleged to have committed an offense that if committed by an adult
would be punishable by death or imprisonment in the state prison for
life.†The criminal complaint and the
information both alleged appellant “was a minor who was at least 14 years of
age at the time of the commission of the above offenses.â€
Appellant
does not dispute the prosecution’s authority to directly file a murder charge
in adult court when the minor is 14 years of age or older. (See Manduley,
supra, 27 Cal.4th at pp. 562, 567,
573, 581 [rejecting various constitutional challenges to direct-filing
provision of § 707, subd. (d)].)
Nor does he argue his case should have been handled in juvenile court. Rather, he claims the imposition of an “adult
sentence†violated his Sixth Amendment right to a jury trial because the jury
in his case was never asked to determine whether he was “at least 14 years of
age†when he committed the offenses.
Appellant relies on the rule set forth in Apprendi, in which the United States Supreme Court held, “Other
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt.†(
Appellant’s
argument appears to go as follows: Had
he been treated as a juvenile and found to have committed the charged offenses,
he would have been made a ward of the juvenile court and committed to the
Division of Juvenile Facilities for a period lasting up until his 25th
birthday. (See § 607, subd. (b);
was, therefore, the statutory maximum commitment under Apprendi unless the prosecution proved under section 707,
subdivision (d)(2)(A) that (1) he committed an offense which would be
punishable by life imprisonment if committed by an adult, and (2) he was 14
years of age or older—circumstances that would in turn allow the prosecution to
directly file the case in adult court and, consequently, secure adult court
punishment. Appellant argues that
because the jury was never asked to determine his age, it never made a finding
on the second “element†allowing for greater punishment as an adult. We disagree with appellant’s reasoning.
609; Blakely v. Washington (2004) 542
U.S. 296, 303-304; United States v.
Booker (2005) 543 U.S. 220, 233, 243; Cunningham
v. California (2007) 549 U.S. 270, 274-275) “are rooted in the historic
jury function—determining whether the prosecution has proved each element of an
offense beyond a reasonable doubt.†(
[decision to impose consecutive sentences not subject to Apprendi].) The Supreme
Court “has not extended the [Apprendi]
. . . line of decisions beyond the offense-specific context that supplied the
historic grounding for the decisions.â€
(555 U.S. at p. 163.) It is
“important to recognize that, under the [Apprendi]
line of high court decisions . . . ., the constitutional requirement of a jury
trial and proof beyond a reasonable doubt applies only to a fact that is
‘legally essential to the punishment’ [citation], that is, to ‘any fact that
exposes a defendant to a greater potential sentence than is authorized by the
jury’s verdict alone [citation].†(
812.)
Appellant
was charged with and convicted of special circumstance murder, residential
burglary, and attempted residential robbery.
Age was not an element of any of these offenses, rather, “the resolution
of appellant’s age merely determine[d] which branch of the superior court
[would] decide his guilt or innocence.â€
(People v. Nguyen (1990) 222
Cal.App.3d 1612, 1621 (Nguyen); see
also People v. Marquez (1992) 1
Cal.4th 553, 580 [age is not an element of murder under Pen. Code, § 190.5
and is not material to guilt].) In light
of the murder charge, the district attorney was authorized to directly file this
case in adult court without a finding that appellant was unfit to be treated as
a juvenile, so long as appellant was 14 years of age or older at the time of
the offenses. (§ 707, subd. (d).) If appellant had believed the case was not
properly before the adult court due to his actual age, it was his duty to
object to that forum and to prove by a preponderance of the evidence that he
did not meet the age criterion for direct filing. (See In
re Harris (1993) 5 Cal.4th 813, 837-838 (Harris); People v. Level
(2002) 97 Cal.App.4th 1208, 1211-1213; Nguyen,
at p. 1619.)
title="">[5]
Appellant
did not object to being prosecuted in adult court and is now precluded from
arguing the case should have been handled by the juvenile court. (Harris,
supra, 5 Cal.4th at pp. 837-838.) Because his case was heard in adult court,
the “maximum penalty†for Apprendi
purposes was determined when the jury returned its guilty verdict on the charge
of first degree murder with special circumstances. No additional fact finding by the judge was
required to impose an “adult†sentence.
Our
conclusion that Apprendi did not
require a jury finding on appellant’s age is consistent with the holding in
issue regarding the right to a jury determination of the facts rendering a
juvenile eligible for prosecution as an adult.
In Cardona, the defendant was
charged with committing a number of felony sexual offenses while he was between
the ages of 16 and 18 that rendered him at least presumptively unfit to be
dealt with under juvenile court law. (
unfit for treatment as a juvenile after considering the statutory criteria for
fitness under section 707, subdivision (c), which include: “(1) The degree of
criminal sophistication exhibited by the minor.
[¶] (2) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction. [¶] (3) The minor’s
previous delinquent history.
[¶] (4) Success of previous attempts by the juvenile court to
rehabilitate the minor. [¶] (5) The
circumstances and gravity of the offenses alleged in the petition to have been
committed by the minor.†Relying on
prison sentence of 30 years to life was unauthorized because the jury, rather
than the trial court, should have determined the issue of fitness. (Cardona,
at pp. 521, 528.)
The
appellate court in Cardona rejected
the claim. It explained: “The factual findings involved in a fitness
determination are not the functional equivalent of an element of a crime. ‘The sole purpose of the fitness hearing is
to determine whether the best interest of the minor and of society will be
served by retention in the juvenile court or whether the minor should be tried
as an adult. [Citation]’ [Citation.]
A transfer hearing ‘does not directly result in an adjudication of guilt
or delinquency’ [citation], and the question of the minor’s amenability to
treatment within the juvenile court system is concerned with the child’s
prospects for rehabilitation, not the degree of his or her criminal culpability
[citation]. A finding that a minor is
not amenable to treatment in the juvenile system ‘does not increase the maximum
penalty one can receive if punished according to the facts as reflected in the
jury verdict alone.’ [Citation.]
Moreover, even assuming juveniles have indeed historically been afforded
the right to trial by jury on allegations they committed a crime [citation], we
are aware of no historical practice extending that right to a fitness
determination. [¶] The constitutional
concerns expressed in Apprendi and
its progeny were satisfied in the present case by the jury’s finding, beyond a
reasonable doubt, of those facts legally essential to the punishment imposed,
viz., that appellant committed the offenses.
Appellant’s sentence was fully authorized by the jury’s verdict; the
statutory provision for judicial factfinding with respect to amenability to
treatment in the juvenile court system is not ‘a legislative attempt to “remove
from the [province of the] jury†the determination of facts that warrant
punishment for a specific statutory offense . . . . [A]s Apprendi’s core concern is inapplicable to the issue at hand, so
too is the Sixth Amendment’s restriction on judge-found facts.’ †(Cardona,
supra, 177 Cal.App.4th at p. 532.)
Similarly,
the facts subjecting appellant to a direct filing in criminal court under
section 707, subdivision (d)(1)—his age and the nature of the charges against
him—do not implicate Apprendi’s core
concern, namely “the historic right to a trial by jury on all elements of an
offense, which would be jeopardized if a legislature could label facts
affecting the length of the authorized sentence for an offense as something
other than elements, thereby eliminating the right to a jury trial
thereon.†(Cardona, supra, 177
Cal.App.4th at p. 530.) The Sixth
Amendment was not violated by the direct filing of criminal charges in adult
court, or by the imposition of an “adult†sentence without a jury determination
of appellant’s age.
What,
then, was the maximum sentence authorized by the verdict? The mandatory
sentence for an adult defendant convicted of first degree special circumstance
murder is LWOP when the death penalty has not been sought. (Pen. Code, §§ 190, subd. (a), 190.2,
subd. (a).) Penal Code section 190.5,
subdivision (b), provides for a term of LWOP when the defendant was 16 or 17
years old at the time of the offense, but allows the court to impose a lesser
sentence of 25 years to life in its discretion.
(People v. Demirdjian (2006)
144 Cal.App.4th 10, 17.) And a defendant
who was age 14 or 15 at the time he or she committed a special circumstance
murder would face a maximum sentence of 25 years to life if prosecuted as
an adult. (Ibid.) Thus, LWOP is the
statutory maximum sentence for a defendant tried in adult court who was 16
years of age or older and 25 years to life is the maximum sentence for a
juvenile defendant who was 14 or 15 years of age. (Ibid.)
We
do not understand appellant to be arguing that the maximum sentence in his case
was limited to 25 years to life absent a finding he was at least 16 years old
at the time he committed the offenses.
In any event, we view the fact of a defendant’s age in this three-tiered
structure for special circumstance murder in a noncapital case (LWOP for
defendants who were age 18 or over, LWOP or 25 years to life for defendants who
were ages 16 or 17, and 25 years to life for defendants who were ages 14 or 15)
as a circumstance that mitigates punishment, to which the right to a jury trial
under Apprendi does not apply. (See People
v. Retanan (2007) 154 Cal.App.4th 1219, 1229-1230; People v. Cleveland (2001) 87 Cal.App.4th 263, 267.) Because the trial court determined appellant
was 17 years old at the time of his offense, the maximum sentence for
Even
if we assume the jury should have determined whether appellant was
14 years of age or older, the failure to obtain such a finding was
harmless beyond a reasonable doubt. (
212, 221; People v. Sandoval (2007)
41 Cal.4th 825, 838.) The charging
documents alleged appellant was over 14, and his age was uncontested at
trial. The probation report indicated
appellant was 17 years old when he committed the charged offenses, and revealed
that his active history with the juvenile justice system began in 2002, making
it highly unlikely he was still under the age of 14 when he committed the
current offenses in 2007. In a pretrial
motion to set aside the information under Penal Code section 995, the defense
asserted appellant “was 17 years old at the time of the alleged offense.†During his police interview, appellant
essentially admitted he was 17. Had the
issue been submitted to the jury, the verdict would have surely authorized the
sentence imposed. (Sandoval, at p. 838.)
>
III. DISPOSITION
Appellant’s
LWOP sentence is vacated and the matter is remanded to the superior court for
resentencing consistent with the views expressed in Miller and in this opinion.
The judgment is otherwise affirmed.
NEEDHAM,
J.
We concur.
JONES, P. J.
SIMONS, J.
brief in response to our request.
Kellum was charged as a codefendant, but he pled guilty to second degree murder
before the jury was sworn.
