Opinion
C076084
02-03-2017
In re CHA PAO HER, on Habeas Corpus.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SC056368B)
Petitioner Cha Pao Her is a 40-year-old man who is currently serving a prison term of life without the possibility of parole (LWOP). In 1993, at the age of 16, he participated in the shootings of six people, two of them fatal. A jury found Her guilty of two counts of first degree murder, with multiple-murder and lying-in-wait special circumstances, as well as other offenses. (Pen. Code, §§ 187, 190.2, subd. (a)(3), (15).) The trial court sentenced Her to two concurrent terms of LWOP. This court affirmed Her's convictions. (People v. Her (Dec. 27, 1995, C019368) [nonpub. opn.].)
Further undesignated statutory references are to the Penal Code.
On our own motion, we take judicial notice of our files in defendant's prior appeal of the underlying conviction. (People v. Her, supra, C019368.) (Evid. Code, § 452, subd. (d).)
On April 8, 2013, Her filed a petition for writ of habeas corpus in the trial court, arguing that he was entitled to be resentenced because the trial court had improperly presumed at his sentencing hearing that LWOP was the appropriate sentence for the murders pursuant to section 190.5, subd. (b), in violation of Miller v. Alabama (2012) 567 U.S. ___ (Miller).
On May 6, 2013, Her filed a petition for recall and resentencing pursuant to section 1170, subdivision (d)(2).
On June 14, 2013, the trial court issued an order directing the People to show cause why the relief requested in the petition for writ of habeas corpus should not be granted.
On July 2, 2013, the People filed an opposition to Her's petition for recall and resentencing, and on August 2, 2013, filed a return to Her's petition for writ of habeas corpus. After a hearing on March 17, 2014, the trial court denied both petitions.
Her appeals, contending the trial court "violated the Eighth Amendment's prohibition of cruel and unusual punishment by failing to adequately consider the particular attributes of juvenile offenders, as required by Miller v. Alabama, in denying [his] motion to recall his LWOP sentence." He did not, however, file a petition for writ of habeas corpus in this court.
As we shall explain, the trial court was not required to consider the particular attributes of Her's youth in accordance with Miller in ruling on Her's petition for recall and resentencing under section 1170, subdivision (d)(2). It was, however, required to consider those factors before sentencing Her to life in prison without the possibility of parole in the first instance. (Miller, supra, 183 L.Ed.2d at pp. 423-424.) Her raised this issue in his petition for writ of habeas corpus filed in the trial court, which was denied. Mindful that the denial of a petition for writ of habeas corpus is not appealable but may be filed anew in a higher court, we elected to treat this matter as a writ of habeas corpus as a matter of judicial economy and efficiency (see People v. Djekich (1991) 229 Cal.App.3d 1213, 1219) and issued an order to show cause why Her should not be resentenced consistent with Miller and its progeny. The People concede Her is entitled to a new sentencing hearing "to determine whether [his] offenses 'reflect the transient immaturity of youth' rather than 'permanent incorrigibility' or 'irreparable corruption' such that his sentence of life in prison without the possibility of parole ('LWOP') would be unconstitutionally cruel and unsual under the Eighth Amendment. (Montgomery v. Louisiana (2016) [577] U.S. ___ .)" We shall accept the People's concession and conclude that Her is entitled to a new sentencing hearing consistent with Miller and its progeny.
DISCUSSION
Her was sentenced to LWOP pursuant to section 190.5, subdivision (b), which states: "The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, 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." "For two decades, since People v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn), section 190.5 [subdivision] (b) [was] construed by our Courts of Appeal and trial courts as creating a presumption in favor of life without parole as the appropriate penalty for juveniles convicted of special circumstance murder." (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360 (Gutierrez).)
In Miller, the United States Supreme Court 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 punishment.'" (183 L.Ed.2d at pp. 414-415.) While the court did not impose a categorical ban on life without parole for juveniles, it observed: "[G]iven all we have said . . . about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. . . . Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at p. 424, fn. omitted.) The court set forth the following factors, the so-called Miller factors, that sentencing courts must consider before sentencing a juvenile homicide offender to LWOP: (1) "his 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 him—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 his participation in the conduct and the way familial and peer pressures may have affected him"; (4) "that he 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." (Id. at p. 423.)
As the People acknowledge, Miller applies retroactively to juvenile offenders, like defendant, whose convictions and sentences were final when Miller was decided. (Montgomery v. Louisiana (2016) 577 U.S. ___ .) --------
In Gutierrez, our Supreme Court held that "reading section 190.5 [subdivision] (b) to establish a presumption in favor of life without parole—i.e., a rule that '16- or 17-year-olds who commit special circumstance murder must be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the less severe sentence of 25 years to life' [citation]—is in serious tension with . . . Miller." (Gutierrez, supra, 58 Cal.4th at p. 1379.) Thus, while the court found that "section 190.5 [subdivision] (b) is reasonably susceptible to two interpretations," it adopted "the construction that renders it ' "free from doubt as to its constitutionality."' [Citation.]" (Id. at 1387.) The court held that "section 190.5 [subdivision] (b) confers discretion on the sentencing court to impose either life without parole or a term of 25 years to life on a 16- or 17-year-old juvenile convicted of special circumstance murder, with no presumption in favor of life without parole." (Ibid.) The court further found that before imposing life without parole on a juvenile homicide offender, "the trial court must consider all relevant evidence bearing on the 'distinctive attributes of youth' discussed in Miller and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders.' [Citation.]" (Id. at p. 1390.) Where a trial court makes its sentencing decision without awareness of the full scope of discretion conferred under section 190.5, subdivision (b) or without the guidance set forth in Miller and Gutierrez for the proper exercise of that discretion, remand for resentencing is the proper remedy, "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (Gutierrez, at p. 1391.)
As a preliminary matter, section 1170, subdivision (d)(2), is a discretionary application addressed to the court's consideration of circumstances showing the defendant has rehabilitated himself or demonstrated remorse. It is not a vehicle for reconsidering the constitutionality of a sentence in light of the "distinctive attributes of youth," as required by Miller and its progeny. Accordingly, Her's claim that the trial court erred in failing to consider the Miller factors in denying his petition for recall and resentencing under section 1170, subdivision (d)(2) fails.
The court was, however, required to consider those factors before sentencing Her to life in prison without the possibility of parole in the first instance. (Miller, supra, 183 L.Ed.2d at pp. 423-424.) As demonstrated below, it is clear from the record of the original sentencing proceeding, that the trial court imposed an LWOP sentence without considering youth-based mitigating factors in the manner required by Miller, entitling Her to a new sentencing hearing.
At Her's sentencing hearing, the trial court stated:
"All right. I indicated what my feelings were and what makes it different from [co-defendant's] case where [co-defendant] had knowledge, culpability and entered a plea.
"Mr. Cha Pao Her had more culpability for the reasons I already said. I'm not going to repeat what I said of what [the prosecutor] said. But there was something that goes to culpability and acknowledging it and realizing I have done something terrible and I am willing to admit it and I'm facing what the punishment the Court has to offer. Cha Pao Her never did that. He came here, testified that he only did this because . . . he was afraid they were going to kill him. He's the one that got the weapons. Nothing in the facts of this case that gave any credence whatsoever to his statement that he went out for the shooting of the four kids, went out and shot this young couple because they had [put him in] fear of his life. It came out frankly from the facts that he was as much or more of a willing instigator of this than anybody. As I say, he drove the car in a way that permitted the killing to be done.
"I am not going to exercise my discretion to change from the jury's verdict. We have two young people, they'll never spend any more of their lives anywhere. One was 14 and the other boy -- they boy was 16, their lives are forever gone in a violent way that had no culpability connected with them. It's a tragedy.
"I don't think anybody looks at Cha Pao Her or any young man that participates in this kind of violence and says now you're going to spend the rest of your life in prison, and you can't say that is not a tragedy, terrible waste. But there is accountability. Society says do it, your age or older, and do this kind of violence, do that kind of terrible act toward a person or persons, there is going to be what the law says accountability. And the accountability in this case is life without possibility of parole."
Immediately prior to pronouncing sentence, the trial court stated, "[P]ursuant to law and the penalty that is -- that's required under that section and those special circumstances and the Court not exercising any discretion to change it, I am going to sentence you to state prison for life without the possibility of parole."
The trial court's comments demonstrate that the court interpreted life without parole to be the presumptive sentence under section 190.5, subdivision (b). In pronouncing Her's sentence, the trial court stated, "[P]ursuant to law and the penalty . . . that's required under that section and those special circumstances and the Court not exercising any discretion to change it, I am going to sentence you to state prison for life without the possibility of parole." (Italics added.)
In addition, there is no indication in the court's statement of reasons for imposing the LWOP sentence that it took into account the attributes of Her's youth, much less determined whether Her is someone " 'whose crime reflects unfortunate yet transient immaturity,' " as opposed to " 'the rare juvenile offender whose crime reflects irreparable corruption.' [Citations.]" (Miller, supra, 183 L.Ed.2d at p. 424; Gutierrez, supra, 58 Cal.4th at p. 1379.) To the contrary, the court appeared to dismiss Her's youth as a relevant factor, stating: "There is a lot of callous young men out there and [we] need to deal with their attitude rather than their age."
DISPOSITION
Petitioner's LWOP sentence is vacated, and the matter is remanded for resentencing consistent with Miller and its progeny.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Hull, J. /s/_________
Butz, J.