Opinion
B264801
08-22-2017
THE PEOPLE, Plaintiff and Respondent, v. KENYUN ROBINSON, Defendant and Appellant.
Center for Juvenile Law & Policy, Sean Kennedy and Sarah Entezari for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA051400) APPEAL from an order of the Superior Court of Los Angeles County. Laura Laesecke, Judge. Reversed and remanded with directions. Center for Juvenile Law & Policy, Sean Kennedy and Sarah Entezari for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2003, a jury convicted defendant Kenyun Robinson of the 1992 murder of Matilda Martinez (Pen. Code, § 187, subd. (a)) and found true the allegation that the murder was committed while he was engaged in a robbery (§ 190.2, subd. (a)(17)). The jury also found true the allegation that defendant personally used a firearm. (§ 12022.5, subd. (a).) The trial court sentenced defendant to life without the possibility of parole (LWOP) for the murder plus four years for the firearm use. Defendant appealed, arguing error in the admission of his statements to police. We affirmed the judgment of conviction. (B264801.)
Further undesignated statutory references are to the Penal Code.
In 2013, defendant, who was 16 years old at the time of the murder, filed a petition for writ of habeas corpus seeking resentencing under Miller v. Alabama (2012) 567 U.S. 460 (Miller) and People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). In 2015, the trial court held a hearing, considered the sentencing factors outlined in Miller, and determined that LWOP was appropriate. Defendant appealed the trial court's order. We affirmed.
Defendant filed a petition for review with the California Supreme Court. On December 30, 2016, the Court granted the petition for review and transferred the matter back to this court with directions to vacate our decision and "reconsider the cause in light of Montgomery v. Louisiana (2016) 577 U.S. ___, 136 S.Ct. 718, 732-735." We have done so and have determined that this matter must be remanded to the trial court with directions to reconsider defendant's sentence in light of Montgomery.
BACKGROUND
These facts are taken from the opinion in defendant's first appeal (People v. Robinson (Jun. 2, 2004, B166845) [nonpub. opn.]), of which we take judicial notice.
On the afternoon of October 18, 1992, teenaged twin brothers Jason and Robert Kennedy walked to Eddie's Liquor Store in Long Beach. Several men, including defendant, were standing on the corner near the store. Defendant walked up to Jason, put a gun to his back and told Jason to give him all of his money, or he would blow him away. Jason did not believe the gun was real, and he grabbed it and twisted it to point at defendant's face. Jason recognized defendant as someone he had seen around the neighborhood. Jason took the gun away from defendant, but gave it back to him.
Later the same day, Jason was at home when he heard a woman screaming. Jason and Robert both heard a gunshot. Both went to the front of their house and saw defendant and Matilda Martinez struggling over a purse. Martinez was holding her neck. Defendant ran away. Martinez walked around briefly, then fell over. The twins called the police. Martinez died from a gunshot wound to her neck.
Long Beach Police Department Officer Jacinto Ponce arrested defendant later that night. Due to a miscommunication between the Kennedys and Officer Ponce, however, the officer believed that defendant was responsible only for the attempted robbery of Jason. Defendant was committed to the California Youth Authority (CYA) in connection with the attempted robbery of Jason.
In 2000, Long Beach Police Department detectives looked at the unsolved murder of Martinez. Detective Paul Edwards re-interviewed Jason Kennedy, who told the detective that the person who tried to rob him was the same person who shot Martinez. After further investigation, defendant was charged with Martinez's murder. By the time defendant was convicted, he was approximately 26 years old.
DISCUSSION
Defendant's 2015 resentencing memorandum argued he was exceedingly immature at the age of 16, he was a heavy PCP user at the time, he was unable to deal with police or assist his counsel, he suffered physical and sexual abuse at the hands of his family, his family members revered criminal lifestyles, he lacked criminal sophistication, and he had demonstrated he was amenable to rehabilitation. In support of his arguments, defendant attached written statements from family members and friends about defendant's upbringing; a recent neurocognitive evaluation; and documents related to his juvenile criminal history. At the resentencing hearing, defendant offered the testimony of a social worker who specialized in mitigation evidence. The social worker recounted various interviews with defendant's family members and opined that defendant came from an extremely traumatic and dysfunctional family situation.
In his previous appeal, defendant argued that the trial court did not consider the extensive evidence he presented to support resentencing. As we explained, "the court engaged in a lengthy discussion with defense counsel regarding the evidence relevant to the Miller factors. In its ruling, the trial court explained, based on its consideration of the evidence and its analysis of the five Miller factors, why it determined LWOP, plus four years, to be the appropriate sentence. It found certain evidence not credible, and gave greater weight to evidence present at the time of the murder, in 1992, than more recently created declarations and statements. These determinations of credibility and weight were properly within the trial court's discretion. ([People v.] Palafox [(2014)] 231 Cal.App.4th 68, 82.)" We affirmed the trial court's decision to resentence defendant to LWOP under Miller.
After reconsidering our previous opinion in light of Montgomery, we conclude that this matter must be remanded to the trial court for a new resentencing hearing.
In Montgomery, the Court pointed out that "Miller took as its starting premise the principle established in Roper [v. Simmons (2005) 543 U.S. 551] and Graham [v. Florida (2010) 560 U.S. 48] that 'children are constitutionally different from adults for purposes of sentencing.' [Citations.] These differences result from children's 'diminished culpability and greater prospects for reform.'" (Montgomery, supra, 136 S.Ct. at p. 733.) Thus, "Miller requires that before sentencing a juvenile to life without parole, the sentencing judge take into account 'how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.' [Citation.] The Court recognized that a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. But in light of 'children's diminished culpability and heightened capacity for change,' Miller made clear that 'appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.' [Citation.]" (Id. at pp. 733-734.)
"Because Miller determined that sentencing a child to life without parole is excessive for all but '"the rare juvenile offender whose crime reflects irreparable corruption,"' [citation], it rendered life without parole an unconstitutional penalty for 'a class of defendants because of their status'—that is, juvenile offenders those whose crimes reflect the transient immaturity of youth. [Citation.]" (Montgomery, supra, 136 S.Ct. at p. 734.) Put differently, Miller barred life without parole "for all but the rarest of juvenile offenders, whose crimes reflect permanent incorrigibility." (Ibid.)
"[W]hen the Constitution prohibits a particular form of punishment for a class of persons, an affected prisoner receives a procedure through which he can show that he belongs to the protected class." (Montgomery, supra, 136 S.Ct. at p. 735.) "The procedure Miller prescribes is no different. A hearing where 'youth and its attendant characteristics' are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not." (Ibid.)
The Court in Montgomery explained that "[w]hen a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States' sovereign administration of their criminal justice systems. See Ford v. Wainwright, 477 U.S. 399, 416-417 (1986) ('[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences') . . . . That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment." (Montgomery, supra, 136 S.Ct. at p. 735.)
Respondent contends remand is not necessary because the trial court sufficiently considered defendant's immaturity at the time of the resentencing hearing and so gave effect to his substantive due process right not to be sentenced to LWOP unless he was irreparably corrupt.
Although the trial court referred several times to the Miller factors, and referred to "chronological age" and "the possibility of rehabilitation," the court did not use the terms "transient immaturity" or "irreparable corruption" in reconsidering Robinson's sentence, suggesting the sentencing process in which it engaged was flawed. Further, the trial court never indicated it understood that LWOP is barred for juveniles whose crimes reflect transient immaturity. Instead, the court indicated it planned to evaluate whether defendant "should be sentenced to something less than life without the possibility of parole." Articulating its inquiry in this way suggests it did not appreciate this limitation on such sentences.
After both sides had argued, the court stated, "this court finds that LWOP is still the appropriate sentence after considering all of the Miller and Gutierrez factors." As Montgomery makes clear, however, the question is not whether LWOP is "appropriate." The question at a resentencing hearing is whether proper consideration of the Montgomery sentencing factors indicates the juvenile defendant belongs to the constitutionally protected class of juvenile offenders whose crimes reflect transient immaturity. If a defendant belongs to this protected class, he may not be sentenced to LWOP. The trial court did not have the guidance of Montgomery and so understandably did not consider defendant's sentence with that guidance.
The need for resentencing is also demonstrated by respondent's argument that this is an "atypical case in which the trial court could actually assess the possibility of [defendant's] rehabilitation" because nine years passed between the murder and defendant's prosecution for it and defendant had spent all but one of those years in the CYA.
Defendant clearly had difficulty conforming to the rules of the CYA and did not perform successfully on parole from the CYA. There is no question that the trial court gave considerable weight to defendant's CYA behavior in assessing the "possibility of rehabilitation." While Miller and Gutierrez mention the "possibility of rehabilitation" for a juvenile offender (Miller, supra, 132 S.Ct. at p. 2468; Gutierrez, supra, 58 Cal.4th at p. 1389), Montgomery clarifies that the appropriate question is whether a juvenile offender "exhibits such irretrievable depravity that rehabilitation is impossible." (Montgomery, supra, 136 S.Ct. at p. 733.) The court here (without the guidance from Montgomery) did not explain how this defendant's behavior while in CYA and on parole showed "such irretrievable depravity that rehabilitation is impossible."
The trial court must now be given the opportunity to consider whether defendant's behavior while in the CYA and on parole actually meets Montgomery's standard. This may require further development of the details of that behavior, a task which is appropriate for the trial court, not this court.
Respondent also points to defendant's rules violations while in prison after the murder conviction to negate the "possibility of rehabilitation." Respondent argues that "the trial court expressly stated it had considered the prosecutor's sentencing memorandum which revealed that, while in state prison serving his sentence for Martinez's murder, [defendant] had committed and been guilty of six rules violations: possessing a weapon, battering another inmate, fighting, rioting, and possessing contraband."
Respondent's argument on the court's consideration of defendant's post-conviction prison behavior is not borne out by the record. The trial court simply stated, without elaboration, that it had read respondent's sentencing memorandum. The court never referred to or discussed defendant's post-conviction behavior in prison. The most likely reason for this omission is the prosecution's argument in its resentencing memorandum that the trial court should not consider such evidence. Under the heading "Post-Conviction Conduct Is Not Properly Considered at This Hearing," the prosecutor wrote, "The defense may seek to have the Court consider the defendant's recent conduct while incarcerated as evidence of rehabilitation to permit a lesser sentence of 25 years to life. The defense can cite no case supporting the proposition that the defendant's recent conduct can be considered at the instant hearing."
The prosecutor did include a brief listing of defendant's rules violations in prison in the resentencing memorandum, in the event the trial court decided to consider defendant's post-conviction behavior, but provided no details about the violations. There is nothing in the record before us to indicate the trial court did consider those violations. Further, while respondent's listing of defendant's rules violations in prison sounds daunting, the prosecutor's sentencing memorandum suggests the prosecutor believed there was in fact positive evidence of rehabilitation to be found in defendant's post-conviction conduct. There is nothing in the record to show the trial court considered any such positive evidence.
Montgomery has clarified that post-conviction behavior is relevant to a Miller analysis, at least to the extent that it demonstrates rehabilitation. (Montgomery, supra, 136 S.Ct. at p. 736.) Thus, the trial court must consider such evidence, if it exists, to properly assess whether defendant has exhibited "such irretrievable depravity that rehabilitation is impossible." Again, developing facts related to defendant's post-conviction behavior is a task for the trial court, not this court.
Because we remand this matter for resentencing, we need not and do not consider defendant's contentions that the resentencing court applied Miller unreasonably. Our directions on remand were to reconsider our previous opinion in light of Montgomery and so we decline to address defendant's contention that commission of a felony murder can never reflect the irreparable corruption required for juvenile LWOP. That was not an issue before the Court in Montgomery. We also decline defendant's invitation to consider statistics concerning the allegedly common imposition of LWOP in juvenile cases in Long Beach as showing indifference to Miller's rarity requirement. This is outside the scope of our directions from the California Supreme Court, and there is nothing to indicate that sentencing outcomes will be the same after Montgomery.
DISPOSITION
We reverse the trial court's order and remand this matter for a new sentencing hearing consistent with Montgomery v. Louisiana, supra, 136 S.Ct. at pp. 732-735.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
Retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
ASHMANN-GERST, Acting P.J.
HOFFSTADT, J.