Gutierrez

Concurring.—I agree with the majority’s conclusion that Penal Code section 190.5, subdivision (b) (section 190.5(b)) imposes no presumption in favor of life without parole. So construed, the statute fully satisfies current federal constitutional concerns. I write separately to stress that California’s individualized, discretionary sentencing scheme is very different from the mandatory life without parole sentence the United States Supreme Court addressed in Miller v. Alabama (2012) 567 U.S. _ [ 183 L.Ed.2d 407 , 132 S.Ct. 2455 ] (Miller).

Discretionary decisions occur at multiple steps in our state’s process. First, the prosecutor exercises discretion in charging a minor as an adult. Next, unless the crime is one for which trial in criminal court is prescribed (see Welf. & Inst. Code, § 602, subd. (b)),* 1 the court determines whether the minor is unfit to be tried in juvenile court. Finally, if a minor is tried and convicted as an adult, the court makes an individualized determination about the appropriate sentence in light of all the evidence presented.

In Miller, the Supreme Court commented that judicial discretion regarding a minor’s transfer to adult court is of “limited…

The two 17-year-old offenders in these cases were convicted of special circumstance murder and sentenced to life imprisonment without the possibility of parole under Penal Code section 190.5, subdivision (b) (hereafter section 190.5(b)). Section 190.5(b) provides that the penalty for 16- or 17-year-old juveniles who commit special circumstance murder “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 [ 33 Cal.Rptr.2d 791 ] (Guinn), section 190.5(b) has been 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.

After defendants were sentenced, the United States Supreme Court ruled 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 punishments,’ ” relying extensively on differences between juveniles and adults with regard to their culpability and capacity for change. (Miller v.…

Concurring.—In light of Miller v. Alabama (2012) 567 U.S._[ 183 L.Ed.2d 407 , 132 S.Ct. 2455 ] (Miller), the court today holds that Penal Code “section 190.5(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.” (Maj. opn., ante, at p. 1387.) We also hold that “[s]ection 190.5(b) authorizes and indeed requires consideration of the Miller factors.” (Ibid.) Justice Corrigan’s concurring opinion does not disagree with either proposition.

Justice Corrigan observes that our trial courts have discretion to decide whether trial as an adult is appropriate in cases where a juvenile is charged with murder but not charged with personally killing the victim. (Conc, opn., ante, at pp. 1392-1393 & fn. 1.) I agree that our trial courts have such discretion, but I would note Miller’s admonition that “transfer-stage discretion . . . has limited utility” because “the judge often does not know then what she will learn, about the offender or the offense, over the course of the proceedings.” (Miller, supra, 567 U.S.…

Filed 5/5/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S206365 v. ) ) Ct.App. 2/6 B227606

LUIS ANGEL GUTIERREZ, )

) Ventura County Defendant and Appellant. ) Super. Ct. No. 05051378-8 ____________________________________)

THE PEOPLE, )

) Plaintiff and Respondent, ) ) S206771 v. ) ) Ct.App. 1/5 A133032

ANDREW LAWRENCE MOFFETT, )

) Contra Costa County Defendant and Appellant. ) Super. Ct. No. 05051378-8 ____________________________________)

The two 17-year-old offenders in these cases were convicted of special circumstance murder and sentenced to life imprisonment without the possibility of parole under Penal Code section 190.5, subdivision (b) (hereafter section 190.5(b)). Section 190.5(b) provides that the penalty for 16- or 17-year-old juveniles who commit special circumstance murder “shall be confinement in the…