People v. Guerrero

76 Cal.App.5th 329

291 Cal.Rptr.3d 386

The PEOPLE, Plaintiff and Respondent,

v.Alejandra GUERRERO, Defendant and Appellant.

B311548

Court of Appeal, Second District, Division 7, California.

Filed March 14, 2022

Jonathan E. Demson, New York, NY, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Viet H. Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

PERLUSS, P. J.

Alejandra Guerrero was convicted of special-circumstance murder and sentenced to life without parole for crimes committed when she was 16 years old. On appeal we affirmed Guerrero's convictions and remanded "for a new sentencing hearing so the court may satisfy its statutory obligation to consider youth-related mitigating factors before exercising its sentencing discretion under Penal Code section 190.5, subdivision (b)."¹ ( People v. Guerrero, 2020 WL 5524855 (Sept. 15, 2020, B292313) [nonpub. opn.] at pp. 1-2 ( Guerrero I ).)

On remand the trial court mischaracterized our mandate as simply directing a "clarification" of its prior sentencing decision. The court overruled the objection of Guerrero's counsel that Guerrero had a right to be present at the hearing and, again, did not consider youth-related factors before imposing a sentence of life without parole.

The Attorney General agrees with Guerrero that the trial court erred by proceeding in her absence and failing to consider youth-related factors before imposing sentence. However, because it is clear from the record the trial judge has no intention of imposing any sentence other than life without parole, whatever information might be presented at a new sentencing hearing, the Attorney General contends those errors were harmless.

We disagree with the Attorney General's response to the problem presented. Guerrero is entitled to a sentencing decision made in the exercise of informed discretion by the sentencing court, and we cannot conclude beyond a reasonable doubt that the outcome would not be different if she were present at the hearing and she and her counsel had a fair opportunity to provide information concerning the youth-related mitigating factors identified in Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) and People v. Gutierrez (2014) 58 Cal.4th 1354, 1388-1389, 171 Cal.Rptr.3d 421, 324 P.3d 245 ( Gutierrez ).

We do agree, however, that a different result is not possible before the judge who has previously heard the matter. Accordingly, we reverse the judgment and again remand for resentencing with all further proceedings to be heard before a different trial judge. ( Code Civ. Proc., § 170.1, subd. (c) ; see Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1262, 135 Cal.Rptr.2d 639, 70 P.3d 1054 [reviewing court has authority to order that sentencing take place before another judge].)

FACTUAL AND PROCEDURAL BACKGROUND

1. Guerrero's Conviction and First Appeal

Guerrero's jury found her guilty of first degree felony murder as an aider and abettor of the attempted robbery of the victim, Xinran Ji, and found true the special-circumstance allegation the murder was committed during an attempted robbery; Guerrero was a major participant in the attempted robbery; and, while not the actual killer, Guerrero had acted with reckless indifference to human life. The jury also found true the special allegation Guerrero had personally used a deadly or dangerous weapon in connection with the felony murder. In addition, based on a second incident the night of Ji's murder, the jury found Guerrero guilty of the robbery of Claudia Rocha and the attempted robbery and aggravated assault on Jesus Ontiveros and found true the special allegation that Guerrero had personally used a deadly or dangerous weapon in the robbery of Rocha.

Guerrero was sentenced in July 2018 to life without parole for special-circumstance murder pursuant to section 190.5, subdivision (b),² plus one year for the personal use of a deadly or dangerous weapon. In addition, the court imposed a consecutive determinate term of three years for the robbery of Rocha, a consecutive term of eight months for the attempted robbery of Ontiveros and a consecutive term of one year for the aggravated assault of Ontiveros. The court explained it was imposing consecutive sentences on the determinate terms because the crime involved great violence, a high degree of cruelty and the victim was particularly vulnerable. ( Cal. Rules of Court, rule 4.421(a)(1), (3).)

This court affirmed Guerrero's convictions, rejecting her arguments her rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 had been violated during custodial questioning and substantial evidence did not support the jury's felony-murder special-circumstance finding. ( Guerrero I , supra , B292313.) However, we remanded the matter for resentencing, explaining that, while the availability of a youth offender parole hearing pursuant to section 3051, subdivision (b)(4), mooted any Eighth Amendment challenge to Guerrero's life without parole sentence under Miller , supra , 567 U.S. 460, 132 S.Ct. 2455,³ section 190.5, subdivision (b), as interpreted in Gutierrez , supra , 58 Cal.4th at pages 1388 to 1389, 171 Cal.Rptr.3d 421, 324 P.3d 245, requires a sentencing court to consider the youth-related mitigating factors identified in Miller in conjunction with the court's analysis of aggravating and mitigating factors under section 190.3 before it may impose a life without parole sentence. (See Guerrero I, at p. 20 ; see also Gutierrez, at p. 1390, 171 Cal.Rptr.3d 421, 324 P.3d 245 [when sentencing a juvenile homicide offender under section 190.5, subdivision (b), 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’ "].)⁴ We reached the same conclusion in People v. Ochoa (2020) 53 Cal.App.5th 841, 849-850, 267 Cal.Rptr.3d 824, decided one month earlier, and addressed at length in Guerrero I .⁵ Because the trial court had not considered the youth-related mitigating factors identified in Miller before imposing the life without parole sentence on Guerrero, we remanded for resentencing.⁶ Our disposition reads, "The matter is remanded for resentencing. At resentencing the court must consider youth-related mitigating factors in deciding whether to impose life without parole" under section 190.5, subdivision (b). ( Guerrero I, at p. 28.)⁷

2. The Resentencing Hearing

At the resentencing hearing Guerrero's counsel objected to imposition of sentence in his client's absence. The court overruled the objection, stating, "This case has been sent, remanded, back to this court for clarification of the factors under section 190.3. This court, in its initial sentencing, did consider it, but the court of appeal stated it was unclear and/or ambiguous from the overall court record. So, my intention this morning was just to clarify that. I'm not changing the sentence nor am I considering 25-to-life versus what I gave her. I understand that you would like the defendant present, just out of courtesy, in that she wanted to be present, but I don't think that the court has an obligation to have her present for this. It would be different if the court were really inclined to consider giving her 25 years to life as opposed to what it gave her initially. All I'm doing this morning is clarifying the factors under section 190.3." Defense counsel restated his objection to going forward with the resentencing hearing in his client's absence; the court again overruled it.

The court proceeded to discuss the aggravating and mitigating factors identified in section 190.3, subdivisions (a) through (k), and apply them to Guerrero. When it finished, the court stated, "This court finds that the aggravating circumstances outweigh that of the mitigating circumstances, and thus the court shall impose its original sentence of confinement in the state prison for the term of life without the possibility of parole."⁸ The court did not consider the youth-related mitigating factors identified in Miller and Gutierrez before imposing Guerrero's life without parole sentence under section 190.5, subdivision (b).

After imposing sentence, the court asked if there was anything Guerrero's counsel wished to address "on the issue of Franklin ."⁹ Defense counsel reminded the court he had submitted a few months after the original sentencing hearing a packet of evidence relevant to the Franklin hearing. Defense counsel stated he would "rest on that, except I would like to add a couple of things." Guerrero's counsel emphasized some of the youth-related mitigating factors he believed weighed in Guerrero's favor, including her youth and susceptibility to influence from her older confederates. He also argued she was a minor accomplice in the attack that caused the victim's death. The court responded that, while Guerrero may have been less culpable than her confederate who delivered the fatal blow, she was still a major participant in the murder. Moreover, the court observed, there was "no evidence" to suggest she was pressured by her older confederates to participate in the attack. Finally, apart from general studies as to juvenile brain development, the court observed there was no evidence Guerrero subjectively failed to appreciate the consequences of her actions.

DISCUSSION

Guerrero argues, the People concede, and we agree, the trial court erred in proceeding with the resentencing hearing in Guerrero's absence and without her consent. (See People v. Nieves (2021) 11 Cal.5th 404, 508, 278 Cal.Rptr.3d 40, 485 P.3d 457 [recognizing a criminal defendant's " ‘constitutional and statutory right to be...