THE PEOPLE, Plaintiff and Respondent, v. CLIFTON LEE GIBSON, Defendant and Appellant.
No. E062624
Court of Appeal, Fourth District, Division Two, California
Aug. 10, 2016
2 Cal. App. 5th 315
COUNSEL
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.—In 1996, defendant Clifton Lee Gibson was tried as an adult and convicted of first degree murder with special circumstances (
On appeal, defendant argues the trial court (1) improperly limited applicability of
BACKGROUND
The facts of the crime are taken from our opinion in the original appeal filed by defendant following his conviction (People v. Gibson (Sept. 9, 1998, E019971) [nonpub. opn.]): On June 8, 1994, in Big Bear, California, defendant, his brother Daniel, and a friend Jeffory Paxton approached a station wagon in which four men were sleeping. (Ibid.) The defendant and his companions wanted money for gas. (Ibid.) Paxton banged on the driver‘s side window with a cocked nine-millimeter gun аnd demanded the men‘s wallets. (Ibid.) The men complied with Paxton‘s request, offering no resistance. (Ibid.) Paxton‘s gun discharged, and subsequently defendant fired a shot from his .22 revolver. (Ibid.) The bullet from defendant‘s revolver struck and killed one the men, while the bullet from Paxton‘s gun struck another of the men, who suffered permanent injuries. (Ibid.)
After the shooting, defendant and his companions drove away, crashing their car during their flight. (People v. Gibson, supra, E019971.) At the time of the shooting, defendant was 17 years old, and had no prior criminal record. (Ibid.) Defendant alleged Paxton was the ringleаder and primary participant in the crime. (Ibid.)
Defendant was charged with murder with special circumstances (
In 1998, on direct appeal, the convictions were affirmed, but the matter was remanded for resentencing to correct the improper imposition of multiple
On April 25, 2014, defendant filed a petition for recall of his sentence pursuant to
DISCUSSION
1. Development of Statutory and Decisional Law Affecting Sentences for Juveniles Convicted of Special Circumstances Murder.
In order to provide context for our discussion, we provide a brief review of the statutory enactments and landmark decisions which govern our analysis. We begin with the year of defendant‘s offense, 1994.4 At that time,
In 2010, the United States Supreme Court decided that the Eighth Amendment prohibited the imposition of an LWOP sentence on a juvenile offender who committed a nonhomicide crime and, while the
On June 25, 2012, the United States Supreme Court revisited the issue of LWOP sentences for juveniles in holding that the Eighth Amendment forbade a sentencing scheme that mandated LWOP for juvenile offenders convicted of first degree murder because it precludes consideration of the juvenile‘s chronological age and its hallmark features. (Miller v. Alabama, supra, 567 U.S. at pp. 477–478 [132 S.Ct. at pp. 2468-2469].) In so holding, however, the Supreme Court cautioned that “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 lifеtime in prison.” (Id. at p. 480 [132 S.Ct. at p. 2469].) In other words, the “categorical bar” on LWOP terms for juveniles applied “only to nonhomicide crimes.” (Id. at p. 473 [132 S.Ct. at p. 2465].)
On September 30, 2012, the Legislature enacted Senate Bill 9, which went into effect on January 1, 2013. In its final version, the provision affecting juveniles sentenced to LWOP was renumbered as
On January 25, 2016, the United States Supreme Court held that Miller‘s holding that mandatory LWOP sentences for juvenile homicide
We now examine defendant‘s claims of error pertaining to the denial of his petition to recall his LWOP sentence.
2. The Decision to Recall a Sentence Pursuant to Section 1170, Subdivision (d)(2) Is Discretionary.
Defendant argues that the trial court abused its discretion in denying his recall petition. He also asserts that reversal is required because the trial court incorrectly interpreted the statute as applying only to persons convicted of murder who were not the actual killers, and that in denying the petition, the lower court “flouted Miller and Gutierrez.” While we agree the trial court misconstrued certain language relating to one factor to be considered, any error was harmless.
These provisions authorize a court to recall the sentence and to resentence defendant under certain conditions, but the language is permissive, not mandatory. The court has the discretion to recall the sentence previously ordered and to resentence the defendant in the same manner as if the defendant had not previously been sentenced, providing that any new sentence is no greаter than the original sentence. (
The statute thus confers broad discretion on the trial court in considering relevant factors and determining whether to recall the sentence. This is the same discretion that is exercised pursuant to
a. Section 1170, Subdivision (d)(2) Is Not Limited to Aiders/Abettors or Nonkillers.
Defendant argues the trial court incorrectly held that
In interpreting this statutory provision, we follow well-settled principles: Our fundamental task is to asсertain the intent of the lawmakers so as to effectuate the purpose of the statute. (Gutierrez, supra, 58 Cal.4th at p. 1369.) We first look to the statutory language, the words themselves, as the most reliable indicator of legislative intent. (Ibid.; see also People v. Woodhead (1987) 43 Cal.3d 1002, 1007 [239 Cal.Rptr. 656, 741 P.2d 154].) ” ‘When the language is clear and unambiguous, there is no need for construction.’ ” (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1002 [279 Cal.Rptr. 236] (Nathaniel C.).) We give the language its usual and ordinary meaning. (Gutierrez, supra, 58 Cal.4th at p. 1369.) Courts should “strive to give meaning to every word of the statute and to avoid constructions that render words, phrases, or clauses superfluous.” (Klein v. United States of America (2010) 50 Cal.4th 68, 80 [112 Cal.Rptr.3d 722, 235 P.3d 42].) We will “decline to follow the plain meaning of a statute only when to do so would inevitably frustrate the manifest purpose of the legislation as a whole or lead to absurd results.” (Nathaniel C., supra, 228 Cal.App.3d at p. 1002, citing People v. Belleci (1979) 24 Cal.3d 879, 884 [157 Cal.Rptr. 503, 598 P.2d 473].)
A petition pursuant to
The court must hold a hearing to consider whether to recall the sentence if it finds by a preponderance of the evidence that the statements in the petition are true. (
In construing statutes, we must rely on the usual, ordinary import of the language used. (In re Jesusa V. (2004) 32 Cal.4th 588, 622 [10 Cal.Rptr.3d 205, 85 P.3d 2].) The ” ’ “ordinary and popular” ’ ” meaning of the word “or” is well settled as having a disjunctive meaning. (Ibid.) The plain and ordinary meaning of the word “or” is well established: it indicates an intention to
By referring to felony murder as a theory disjoined from aider and abettor liability, it appears more likely the Legislature intended to include persons who would have been convicted of a lesser degree of homicide but for the fact it occurred during the commission of a dangerous felony. Any other interpretation renders the inclusion of the reference to “felony murder” as surplusage. The fact that the legislation does not extend to persons convicted of premeditated or deliberate murder bolsters our interpretation.
At the hearing, the People argued that “[Senate Bill] 9 was not meant for him. When you look through the legislative history, it was meant for accomplices, felony murders, it wasn‘t meant for the executioner.” We reviewed the legislative history and found no evidence of such an intention. Had the Legislature intended to limit relief to persons convicted under a theory of vicarious liability but who were not the actual killers, it could have said that relief was limited to juveniles convicted under a theory of vicarious liability.
In none of the legislative materials is there a reference to a requirement that relief be limited to persons who did not actually commit the homicide. (Sen. Bill 9) Instead,
There is nothing in the legislative history of
b. The Trial Court Did Not Abuse Its Discretion
Defendant presented numerous certificates and documents in support of his petition. Other than the certificates and the “chronos,”5 the information provided to the court in support of the petition consisted of documents prepared by defendant himself. Of these documents, the great majority of them wеre created after the enactment of Senate Bill 9. There is thus a self-serving quality to much of the information submitted in support of the petition.
The People drew attention to the fact that nearly one-half of the exhibits point to rehabilitative efforts made just in the two years prior to the hearing. The trial court agreed with the points raised by the People in their opposition to the petition, in which the People asserted defendant‘s statements of remorse and work towards rehabilitation were neither credible nor adequate given the length of time defendant had to work on those issues. The People also noted that defendant‘s statements of remorse were not believable and that he made excuses for his behavior on the night of the crime. The trial court agreed.
Defendant argues in his reply brief that there is insufficient evidence to support the trial court‘s findings that he did not demonstrate remorse or rehabilitation, citing the testimony of the defense expert that he believed defendant was sincerely remorseful. The record supports the court‘s conclusion: the majority of defendant‘s efforts at rehabilitation, as evidenced by the
The court‘s misunderstanding that
3. The Trial Court Did Not “Flout Miller and Gutierrez.”
Defendant argues that the trial court‘s ruling “flout[ed] Miller and Gutierrez.” Specifically, he asserts that the recent decisions barring mandatory LWOP terms for juveniles require that the defendant be permitted “to present all types of mitigation and that the sentencing authority is required to meaningfully consider” it. Moreover, he argues that the trial court refused to weigh all of the applicable factors, and that such refusal “transcends a statutory violation and has the potential to violate the ‘evolving standards of decency’ and the requirement of ‘individualized sentencing’ required by the Eighth Amendment.” Because of the limited focus of
The recent holding of Miller v. Alabama, supra, 567 U.S. at pages 472-473 [132 S.Ct. at page 2465] does not hold that an LWOP sentence may never be imposed upon a person who was under the age of 18 at the time of the offense. It merely requires a trial court, in exercising its discretion, to consider the “distinctive attributes of youth” and how those attributes “diminish the penological justifications for imposing the harshest sentences on juvenile offenders” before imposing LWOP on a juvеnile. (Ibid.)
In Gutierrez, supra, 58 Cal.4th at page 1379, the California Supreme Court considered the constitutionality of
Neither Miller nor Graham held that LWOP sentences could never be lawfully imposed on a person who was under the age of 18 at the time of the offense. Those cases only held that mandatory life without possibility of parole for a juvenile was improper and that imposition of the harshest punishment on a juvenile requires individualized sentencing that takes into account an offender‘s ” ‘youth [and all that accompanies it].’ ” (Gutierrez, supra, 58 Cal.4th at p. 1377, quoting Miller v. Alabama, supra, 567 U.S. at p. 477 [132 S.Ct. at p. 2468].)
Nor does
Finally, as Gutierrez makes clear,
The trial court did not “flout Miller and Gutierrez” because the vehicle defendant chose to implement does not compel a review of the constitutionality of an LWOP sentence imposed upon a defendant who was under the age of 18 at the time of his crime. Defendant chose to file a petition to recall and resentence him pursuant to
Defendant could have filed a petition for writ of habeas corpus, seeking retroactive application of Miller on collateral review. (See Montgomery v. Louisiana, supra, 577 U.S. ___ [193 L.Ed.2d 599, 136 S.Ct. 718, 734]; see also In re Rainey (2014) 224 Cal.App.4th 280, 287–290 [168 Cal.Rptr.3d 719], review granted June 11, 2014, S217567 [decided before Montgomery, but reaching the same conclusion].) We do not foreсlose that option here if defendant has not already availed himself of that remedy, notwithstanding our conclusion that the trial court did not abuse its discretion: defendant‘s sentence was imposed at a time when Guinn was the prevailing authority and he would be entitled to a new sentencing hearing at which the Miller criteria were properly considered, if that was not done.7 We simply hold that based on the material presented to the trial court in support of a recall petition filed pursuant to
The judgment is affirmed.
Hollenhorst, J., and Slough, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied November 16, 2016, S237364.