Filed 9/16/16 P. v. Lucero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063361
v. (Super.Ct.No. RIF123822)
NATHAN LEE LUCERO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge.
Affirmed with directions.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.
McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Following a second resentencing hearing, defendant and appellant Nathan Lee
Lucero is serving a life term without the possibility of parole after being convicted as an
adult for a crime he committed when he was 17 years old – first-degree murder with
special circumstances. In this appeal, defendant argues the trial court committed
reversible error when it sentenced him: (1) in his absence; and (2) without regard to the
standards established by the U.S. Supreme Court in Miller v. Alabama (2012) 567 U.S.
___ [132 S.Ct. 2455, 183 L.Ed.2d 407](Miller). Defendant further argues the
presumption for a life sentence without parole under Penal Code section 190.5,1 which
was reinforced by California case law at the time of sentencing, has since been rejected
by the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354. The
People largely concede each of these points. For the reasons discussed below, the trial
court is directed to hold a third resentencing hearing, at which appellant has the right to
be present and the trial court must consider the factors set forth in Miller, giving no
presumption to the option for a sentence of life without parole.
FACTS2 AND PROCEDURE
In 2003, defendant’s father, who was a gang member, shot the victim during a
drug deal. The victim survived and testified against defendant’s father and two
1 Section references are to the Penal Code except where otherwise indicated.
2 The description of the crime is adapted from the statement of facts in this Court’s opinion in case number E053314 [filed March 13, 2013, nonpub opn.], which is the first appeal by defendant and his codefendant. Further references to this opinion are designated “Opn.” This court takes judicial notice of the records in defendant’s prior cases, E053314, E058986, and E062587 in an order filed January 26, 2016.
2 codefendants. All three were convicted. Defendant’s father was sentenced to 57 years to
life in prison.
On February 17, 2006, the victim and another person went to the trailer home of a
woman who was a friend of theirs and of defendant. Drugs were frequently sold and
used at the home. Although the victim avoided visiting that friend when he knew
defendant would be present, he went that day because he called the residence and was
told it was ok to come over. When they got to the home, the victim saw defendant,
several gang members and a gun. He told his friend that they should leave and both men
ran. Defendant followed, along with his codefendant and another gang member. Shots
were fired, hitting the victim in the back, buttocks and right arm. The victim died from
the gunshot wounds. It was never determined which man fired the shots that killed the
victim.
A jury convicted defendant and his codefendant of active participation in a
criminal street gang (Pen. Code, § 186.22, subd. (a)) and first degree murder (§ 187,
subd. (a)), finding that the latter was committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)), that a principal violated section 186.22, subdivision (b) and a
principal personally discharged a firearm causing death (§ 12022.53, subd. (e)), that the
victim was a witness to a crime and was intentionally killed in retaliation for his
testimony (§ 190.2, subd. (a)(10)), that the victim was killed by means of lying in wait
(§ 190.2, subd. (a)(15)) and that the victim was killed while defendants were active
3 participants in a criminal street gang (§ 190.2, subd. (a)(22)). Both were sentenced to
prison for life without the possibility of parole, plus 25 years to life.
Defendant and his codefendant appealed, and on March 13, 2013, this Court
reversed the conviction for active participation in a street gang and the true findings on
the gang enhancements and special circumstances allegation, and remanded to the trial
court for resentencing.
At defendant’s first resentencing, on July 16, 2013, the trial court again sentenced
defendant to life without the possibility of parole, but without the additional term of 25
years to life.
On August 29, 2013, in case number E058986, this Court granted defendant’s pro
per petition for writ of habeas corpus on the ground that the trial court was unaware that
it had discretion to sentence appellant to either life without the possibility of parole or to
a term of 25 years to life in prison pursuant to section 190.5. The case was remanded to
the trial court for a second resentencing hearing, which is the subject of this appeal.
At the second resentencing hearing on January 31, 2014, defendant was not
present but was represented by counsel. The court again sentenced defendant to life in
prison without the possibility of parole.
This appeal followed.
DISCUSSION
Defendant argues, and the People concede, that this case should be remanded to
the trial court for a new sentencing hearing. At the hearing, the court should consider the
4 factors set forth in Miller in determining the appropriate sentence for defendant. The
court should do so without applying a presumption in favor of life without the possibility
of parole. Finally, defendant has the right to be present at this resentencing hearing.
As discussed above, defendant, who was 17 years old at the time of the murder,
was sentenced to life without the possibility of parole (LWOP). (§ 190.5, subd. (b).)3
Later the same year in which defendant was resentenced for the second time, the
California Supreme Court considered the constitutionality of LWOP sentences imposed
under section 190.5 in light of Miller. (Gutierrez, supra, 58 Cal.4th 1354.) Our high
court disapproved prior case law (People v. Guinn (1994) 28 Cal.App.4th 1130, 1142;
People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Blackwell (2011) 202
Cal.App.4th 144, 159; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089) which
construed the statute as establishing a presumption that LWOP is the appropriate term for
a 16- or 17- year-old defendant. (Gutierrez, supra, at p. 1387.) Instead, it adopted a
construction of section 190.5, subdivision (b), that found the statute to be constitutional.
(Gutierrez, supra, at p. 1387.) It held that section 190.5, subdivision (b), properly
construed, “confers discretion on the sentencing court to impose either life without parole
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Filed 9/16/16 P. v. Lucero CA4/2
NOT TO BE PUBLISHED IN 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063361
v. (Super.Ct.No. RIF123822)
NATHAN LEE LUCERO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge.
Affirmed with directions.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.
McGinnis, and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Following a second resentencing hearing, defendant and appellant Nathan Lee
Lucero is serving a life term without the possibility of parole after being convicted as an
adult for a crime he committed when he was 17 years old – first-degree murder with
special circumstances. In this appeal, defendant argues the trial court committed
reversible error when it sentenced him: (1) in his absence; and (2) without regard to the
standards established by the U.S. Supreme Court in Miller v. Alabama (2012) 567 U.S.
___ [132 S.Ct. 2455, 183 L.Ed.2d 407](Miller). Defendant further argues the
presumption for a life sentence without parole under Penal Code section 190.5,1 which
was reinforced by California case law at the time of sentencing, has since been rejected
by the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354. The
People largely concede each of these points. For the reasons discussed below, the trial
court is directed to hold a third resentencing hearing, at which appellant has the right to
be present and the trial court must consider the factors set forth in Miller, giving no
presumption to the option for a sentence of life without parole.
FACTS2 AND PROCEDURE
In 2003, defendant’s father, who was a gang member, shot the victim during a
drug deal. The victim survived and testified against defendant’s father and two
1 Section references are to the Penal Code except where otherwise indicated.
2 The description of the crime is adapted from the statement of facts in this Court’s opinion in case number E053314 [filed March 13, 2013, nonpub opn.], which is the first appeal by defendant and his codefendant. Further references to this opinion are designated “Opn.” This court takes judicial notice of the records in defendant’s prior cases, E053314, E058986, and E062587 in an order filed January 26, 2016.
2 codefendants. All three were convicted. Defendant’s father was sentenced to 57 years to
life in prison.
On February 17, 2006, the victim and another person went to the trailer home of a
woman who was a friend of theirs and of defendant. Drugs were frequently sold and
used at the home. Although the victim avoided visiting that friend when he knew
defendant would be present, he went that day because he called the residence and was
told it was ok to come over. When they got to the home, the victim saw defendant,
several gang members and a gun. He told his friend that they should leave and both men
ran. Defendant followed, along with his codefendant and another gang member. Shots
were fired, hitting the victim in the back, buttocks and right arm. The victim died from
the gunshot wounds. It was never determined which man fired the shots that killed the
victim.
A jury convicted defendant and his codefendant of active participation in a
criminal street gang (Pen. Code, § 186.22, subd. (a)) and first degree murder (§ 187,
subd. (a)), finding that the latter was committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)), that a principal violated section 186.22, subdivision (b) and a
principal personally discharged a firearm causing death (§ 12022.53, subd. (e)), that the
victim was a witness to a crime and was intentionally killed in retaliation for his
testimony (§ 190.2, subd. (a)(10)), that the victim was killed by means of lying in wait
(§ 190.2, subd. (a)(15)) and that the victim was killed while defendants were active
3 participants in a criminal street gang (§ 190.2, subd. (a)(22)). Both were sentenced to
prison for life without the possibility of parole, plus 25 years to life.
Defendant and his codefendant appealed, and on March 13, 2013, this Court
reversed the conviction for active participation in a street gang and the true findings on
the gang enhancements and special circumstances allegation, and remanded to the trial
court for resentencing.
At defendant’s first resentencing, on July 16, 2013, the trial court again sentenced
defendant to life without the possibility of parole, but without the additional term of 25
years to life.
On August 29, 2013, in case number E058986, this Court granted defendant’s pro
per petition for writ of habeas corpus on the ground that the trial court was unaware that
it had discretion to sentence appellant to either life without the possibility of parole or to
a term of 25 years to life in prison pursuant to section 190.5. The case was remanded to
the trial court for a second resentencing hearing, which is the subject of this appeal.
At the second resentencing hearing on January 31, 2014, defendant was not
present but was represented by counsel. The court again sentenced defendant to life in
prison without the possibility of parole.
This appeal followed.
DISCUSSION
Defendant argues, and the People concede, that this case should be remanded to
the trial court for a new sentencing hearing. At the hearing, the court should consider the
4 factors set forth in Miller in determining the appropriate sentence for defendant. The
court should do so without applying a presumption in favor of life without the possibility
of parole. Finally, defendant has the right to be present at this resentencing hearing.
As discussed above, defendant, who was 17 years old at the time of the murder,
was sentenced to life without the possibility of parole (LWOP). (§ 190.5, subd. (b).)3
Later the same year in which defendant was resentenced for the second time, the
California Supreme Court considered the constitutionality of LWOP sentences imposed
under section 190.5 in light of Miller. (Gutierrez, supra, 58 Cal.4th 1354.) Our high
court disapproved prior case law (People v. Guinn (1994) 28 Cal.App.4th 1130, 1142;
People v. Murray (2012) 203 Cal.App.4th 277, 282; People v. Blackwell (2011) 202
Cal.App.4th 144, 159; People v. Ybarra (2008) 166 Cal.App.4th 1069, 1089) which
construed the statute as establishing a presumption that LWOP is the appropriate term for
a 16- or 17- year-old defendant. (Gutierrez, supra, at p. 1387.) Instead, it adopted a
construction of section 190.5, subdivision (b), that found the statute to be constitutional.
(Gutierrez, supra, at p. 1387.) It held that section 190.5, subdivision (b), properly
construed, “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
3 “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.” (§ 190.5, subd. (b).)
5 circumstance murder, with no presumption in favor of life without parole.” (Gutierrez,
supra, at p. 1387.)
The California Supreme Court further held that Miller requires a trial court, in
exercising its sentencing discretion, to consider 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.]” (Gutierrez, supra,
58 Cal.4th at p. 1390.) The court outlined certain factors, including the juvenile
offender’s age, family and home environment, the circumstances of the homicide offense,
incompetencies associated with youth, and the possibility of rehabilitation, which the
sentencing court must consider. (Id. at pp. 1387-1390.)
Because section 190.5, subdivision (b), authorizes and requires consideration of
the distinctive attributes of youth identified in Miller, the California Supreme Court
concluded that section 190.5, subdivision (b), is not unconstitutional. (Gutierrez, supra,
58 Cal.4th at p. 1387.)
Here, the People concede that “it is unclear whether [the trial court] considered the
Miller factors in addition to the sentencing factors set forth in the California Rules of
Court in imposing sentence . . . .” We agree with defendant that the trial court read
section 190.5 as directing it to effectively disregard the Miller factors relating to
defendant’s youth, in favor of the sentencing factors applicable to adults set forth in
California Rules of Court, rules 4.421 (circumstances in aggravation ) and 4.423
(circumstances in mitigation), and in Penal Code section 190.3. The trial court stated:
6 “But age alone isn’t really the relevant factor here because what the law says is that this
choice that I have really only applies to defendants who are either 16 or 17 at the time
that the murder is committed. So for the entire universe of people for whom this decision
has to be made, they’re all young. So age doesn’t get me very far in the analysis. I have
to determine from looking at the criteria described in Rule of Court 4.421 and 4.423 and
in Penal Code section 190.3 whether that second chance should be given to Mr. Lucero.”
The court then went on to specify and consider the criteria in the above Rules of
Court and Penal Code section 190.3, before reiterating: “[A]s I indicated, this – the
choice that I have applies only to 16- and 17-year-olds so his age is really not a
significant factor. As the parties agree, this interpretation of section 190.5 is directly at
odds with Miller’s mandate to consider defendant’s youth and its attributes when
imposing the sentence. For this reason, remand for a third resentencing hearing is
required.4
Remand is required also because the trial court followed case law existing at that
time, since disapproved of by the California Supreme Court in Gutierrez. That case law
interpreted section 190.5 as establishing that the presumptive sentence is life without the
4 After briefing was completed in this case, the California Supreme Court issued its opinion in People v. Franklin (2016) 63 Cal.4th 261. The Court concluded that the availability of a youth offender parole hearing after no more than 25 years of confinement, as provided by section 3051, fulfills the requirements of Miller. However, section 3051 specifies in subdivision (h) that it does not apply to youths sentenced to life without the possibility of parole, and so the ruling in Franklin does not change the outcome of this appeal.
7 possibility of parole for a special circumstances murder committed by a 16- or 17-year-
old. The trial court stated: “California case law provides or – the choice, that sentencing
choice is provided by Penal Code Section 190.5 subdivision (b) which says that a . . .
defendant who was 16 or 17 years old at the time that the offense was committed shall be
sentenced to state prison . . . without the possibility of parole or, in the Court’s discretion,
state prison for 25 years to life. California case law indicates that the presumptively
appropriate term is life without the possibility of parole and that the Court must have
good cause in order to sentence a defendant who is convicted of first-degree murder with
special circumstances to 25 years to life instead.
Finally, the parties agree that defendant has the right to be present at his
resentencing, and this court agrees. (People v. Hines (1997) 15 Cal.4th 997, 1038-1039;
§977, subd. (b)(1).) We are not aware that defendant executed a valid waiver form, and
so the trial court’s decision not to transport him for his resentencing – “[I]n view of the
fact that the resentencing today could only benefit him, the court did not deem it
necessary to have him transported here today from the other end of the state” – must be
rectified at his third resentencing.
DISPOSITION
Affirmed with directions to the trial court to hold a third resentencing hearing. At
the hearing, the trial court must fully consider the factors set forth in Miller to choose a
sentence under section 190.5, without a presumption for life without the possibility of
parole. The court must also allow defendant to be present.
8 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
HOLLENHORST J.
SLOUGH J.