P. v. Padilla

Filed 12/21/17 P. v. Padilla CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO SALVADOR PADILLA,
Defendant and Appellant.
B277715
(Los Angeles County
Super. Ct. No. TA051184)
APPEAL from a judgment of the Superior Court of Los
Angeles County, John J. Cheroske, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Shawn McGahey Webb and
Paul M. Roadarmel, Deputy Attorneys General, for Plaintiff
and Respondent.

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In 1999, appellant Mario Salvador Padilla was
convicted of a murder he committed when sixteen years old,
and was sentenced to a term of life without the possibility of
parole (LWOP). The trial court denied his petition under
Penal Code section 1170, subdivision (d)(2) (section
1170(d)(2)), which permits specified defendants sentenced to
LWOP terms for murders they committed as juveniles to be
resentenced.1 We reject his challenges to that ruling and
affirm.
RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND
This is the third time appellant has appeared before us
in litigating his requests to be resentenced. We begin by
summarizing the relevant facts regarding those proceedings.
In 1999, a jury convicted appellant of the murder of his
mother Gina Castillo (§ 187, subd. (a)) and conspiracy to
murder his stepfather Pedro Castillo (§ 182, subd. (a)(1)).
The jury found true special-circumstance allegations that
the murder was committed in the course of a robbery and
while lying in wait (§ 190.2, subds. (15), (17)(A)). The trial
court imposed an LWOP term on the murder conviction
(§ 190.5, subd. (b)), and imposed and stayed a term of 25
years to life on the conviction for conspiracy to commit
murder (§ 654). In an unpublished opinion (People v. Padilla
(June 1, 2001, B135651)), this court determined there was
1 All further statutory references are to the Penal Code.

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insufficient evidence to support the lying-in-wait special-
circumstance finding, but otherwise affirmed the judgment
of conviction.
In Miller v. Alabama (2012) 567 U.S. 460, 476-480
(Miller), the United States Supreme Court held that the
Eighth Amendment of the United States Constitution
“forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders,” and set
forth factors controlling the determination whether that
penalty may be imposed on such a juvenile. (Miller, supra,
at p. 479.)
In August 2012, the California Legislature amended
section 1170 to add subdivision (d)(2), which creates a
postconviction resentencing proceeding for certain
defendants serving LWOP terms. (Stats. 2012, ch. 828, § 1,
p. 92.) Section 1170(d)(2) states in clause (i) of
subparagraph (A) that defendants serving an LWOP term
for an offense they committed when under 18 years of age
may submit a petition for recall and resentencing after
having served 15 years of their sentence. Clause (ii) of
subparagraph (A) provides that a defendant is ineligible for
recall and resentencing when the offense for which the
LWOP term was imposed involved specified circumstances,
including that the defendant engaged in torture.
Under section 1170(d)(2), the petition must contain
enumerated statements, including a description of the
defendant’s “remorse and work towards rehabilitation.”
(§ 1170, subd. (d)(2)(B).) As operative during the pertinent

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period, section 1170(d)(2) further provided that if the court
found that the statements in the petition were true, the
court was required to hold a hearing “to consider whether to
recall the sentence and commitment previously ordered and
to resentence the defendant . . . .” (Former § 1170, subd.
(d)(2)(E).) Under that version of section 1170(d)(2), at the
hearing, the court was authorized to recall the sentence and
resentence the defendant upon a consideration of factors
relating to the circumstances surrounding the defendant’s
offense, and his or her conduct after it. (Former § 1170,
subd. (d)(2)(F).)2
In August 2013, appellant filed a petition for recall and
resentencing under section 1170(d)(2). When the trial court
determined that he was ineligible for resentencing because
his offense involved torture, appellant noticed an appeal
from the ruling.
In August 2014, while that appeal was pending,
appellant filed a petition for writ of habeas corpus in the
superior court, seeking resentencing under Miller. Later, in
July 2015, the trial court conducted a hearing on the petition
for writ relief and resentenced appellant to an LWOP term.
2 Under section 1170(d)(2), if the court declines to recall
the defendant’s sentence, the defendant may submit a
second petition after having served 20 years of his or her
sentence. (§ 1170, subd. (d)(2)(H).) If that petition is
unsuccessful, the defendant may submit a third and final
petition after having served 24 years of the sentence. (Ibid.)

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Appellant appealed from that ruling.
In November 2015, we reversed the denial of
appellant’s section 1170(d)(2) petition and remanded for
further proceedings, concluding there was insufficient
evidence to support a finding of torture. (People v. Padilla
(Nov. 20, 2015, B257408) [nonpub. opn.].) In January 2016,
prior to any further action below on appellant’s section
1170(d)(2) petition, the United States Supreme Court issued
its decision in Montgomery v. Louisiana (2016) 577 U.S.
___[136 S.Ct. 718, 727, 729, 736] (Montgomery), which held
that Miller set forth a substantive rule that had retroactive
application in state collateral review proceedings. In
September 2016, following a hearing, the trial court denied
appellant’s section 1170(d)(2) petition. Appellant noticed the
appeal before us from that ruling.
In October 2016, we reversed the denial of appellant’s
petition for writ relief on the ground that the trial court, in
ruling on the petition, exercised its discretion without the
guidance provided by Montgomery. (People v. Padilla (2016)
4 Cal.App.5th 656, 659-660, rev. granted Jan. 25, 2017,
S239454.) We concluded that Montgomery “significantly
recast” Miller, and that “under Montgomery, Miller must be
regarded as announcing a substantive rule barring LWOP
terms for a specific class of juvenile offenders, namely, those
‘“whose crimes reflect the transient immaturity of youth,”’
not irreparable corruption.” (People v. Padilla, supra, at
p. 672, quoting Montgomery, supra, 577 U.S. at p. ___ [136
S.Ct. at p. 743].)

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DISCUSSION
Appellant contends the trial court erred in denying his
petition under section 1170(d)(2). As discussed below, we
disagree.
A. Mootness
At the threshold of our inquiry, we address
respondent’s contention that this appeal is moot. Generally,
“[a] case is considered moot when ‘the question addressed
was at one time a live issue in the case,’ but has been
deprived of life ‘because of events occurring after the judicial
process was initiated.’” (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559, 1574, quoting
Younger v. Superior Court (1978) 21 Cal.3d 102, 120.) Thus,
“[a] case becomes moot when a court ruling can have no
practical impact . . . .” (Simi Corp. v. Garamendi (2003) 109
Cal.App.4th 1496, 1503.) However, “whe[n] a court can
afford the party at least some relief, even if not all the relief
originally requested, the court should not dismiss a case as
moot.” (City of Cerritos v. State of California (2015) 239
Cal.App.4th 1020, 1031.)
Respondent maintains that this appeal was rendered
moot by the recent enactment of Senate Bill No. 394 (2017-
2018 Reg. Sess.). Because appellant was convicted of first-
degree murder, the least severe term for which he is eligible
upon resentencing is 25 years to life. (§ 190.5, subd. (b).)3
3 Under subdivision (b) of section 190.5, the trial court
(Fn. is continued on the next page.)

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Senate Bill No. 394 amends Penal Code sections 3051 and
4801 to designate juvenile homicide offenders sentenced to
LWOP terms eligible for parole during their 25th year of
incarceration.4 Respondent argues that because that
legislation operates retroactively, it encompasses appellant,
and thus effectively provides the relief he sought, namely, to
“reduc[e] his LWOP sentence to 25 years to life in order to be
eligible for parole in his 25th year of incarceration.”
In view of other recent changes of law, we conclude
that this appeal is not moot, as the legislation described
above does not give all the relief potentially available to
appellant if resentenced. In November 2016, the voters
approved Proposition 57, entitled “The Public Safety and
Rehabilitation Act of 2016,” which modified the procedures
for charging juveniles, and amended the California
Constitution by adding section 32 to article 1. (People v.
has the discretion to impose an LWOP term on a defendant
guilty of first degree murder who was 16 years of age or
older at the time of the offense, provided at least one special
circumstance was found to be true.
4 As amended, effective January 1, 2018, subdivision
(b)(4) of Penal Code section 3051 will provide that a juvenile
offender convicted of an offense “for which the sentence is
[LWOP] shall be eligible for release on parole . . . during his
or her 25th year of incarceration at a youth offender parole
hearing, unless . . . entitled to an earlier parole consideration
hearing pursuant to other statutory provisions.”

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Superior Court (Walker) (2017) 12 Cal.App.5th 687, 690, 694,
fn. 8, rev. granted Sept. 13, 2017, S243072.) Among the
stated purposes of Proposition 57 is to “‘[s]top the revolving
door of crime by emphasizing rehabilitation, especially for
juveniles.”’ (People v. Superior Court (Walker), supra, at
p. 696, quoting Prop. 57, § 2.)
Article 1, section 32 of the California Constitution
authorizes the California Department of Corrections and
Rehabilitation (CDCR) to award inmates credits for good
behavior and adopt appropriate regulations.5 Under an
emergency regulation operative September 21, 2017, conduct
credits that “advance” an inmate’s initial parole hearing date
are now afforded to inmates “sentenced to” an indeterminate
term with the possibility of parole -- including those
convicted of murder or other violent felonies (§ 667.5, subd.
(c)) -- but expressly denied to inmates “sentenced to” LWOP
5 Section 32 of article 1 of the California Constitution
provides in pertinent part: “(a) The following provisions are
hereby enacted to enhance public safety, improve
rehabilitation, and avoid the release of prisoners by federal
court order, notwithstanding anything in this article or any
other provision of law: [¶] . . . [¶] (2) Credit Earning: The
[CDCR] shall have authority to award credits earned for
good behavior and approved rehabilitative or educational
achievements. [¶] (b) The [CDCR] shall adopt regulations in
furtherance of these provisions, and the Secretary of the
[CDCR] shall certify that these regulations protect and
enhance public safety.” (Cal. Const., art. 1, §32, subd. (a),
par. (2).)

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terms. (Cal. Code Regs., tit. 15, § 3043.2, subd. (b)(1),
(b)(2).)6
Because appellant was sentenced to an LWOP term,
the emergency regulation, by its plain language, denies him
conduct credits potentially advancing the date of the parole
hearing to which he is entitled under the recent amendment
to Penal Code section 3051. Accordingly, although it is
possible that the CDCR may adopt a regulation in the future
6 California Code of Regulations, title 15, section 3043.2
provides in pertinent part: “(b) Notwithstanding any other
authority to award or limit credit, effective May 1, 2017, the
award of Good Conduct Credit shall . . . advance an inmate’s
initial parole hearing date . . . if sentenced to an indetermi-
nate term with the possibility of parole pursuant to the
following schedule: [¶] (1) No credit shall be awarded to an
inmate sentenced to death or a term of life without the
possibility of parole; [¶] (2) One day of credit for every four
days of incarceration (20%) shall be awarded to an inmate
serving a determinate or indeterminate term for a violent
felony as defined in Penal Code section 667.5, subdivision (c),
unless the inmate qualifies . . . or is statutorily eligible for
greater credit . . . .” (Cal. Code Regs., tit. 15, § 3043.2, subd.
(b)(1), (b)(2).)
We note that because the regulation was adopted as an
emergency measure, it will be repealed by operation of law if
the Secretary of the CDCR fails to submit a certificate of
compliance by December 20, 2017. (§5058.3; History foll.
Cal. Code Regs., tit.15, § 3043.2; see Off. of Admin. Law,
Notice of Approval of Emergency Regulatory Action (Dec. 18,
2017), pp. 1-2.)

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granting appellant such credits, they are not currently
available to him unless he is resentenced to a term of 25
years to life. The appeal before us is therefore not moot.
(Saraswati v. County of San Diego (2011) 202 Cal.App.4th
917, 925 [statutory amendment did not moot appeal because
it did not ensure full and timely relief to appellant].)7
B. Denial of Section 1170(d)(2) Petition
We turn to the trial court’s denial of appellant’s section
1170(d)(2) petition.
1. Governing Principles
As operative at the time of the challenged ruling,
section 1170(d)(2) provided that the trial court, upon finding
7 Respondent has directed our attention to a recent decision,
namely, People v. Lozano (2017) 16 Cal.App.5th 1286.
There, the defendant sought relief from his LWOP sentence
solely under the Eighth Amendment, on the basis of the
grounds set forth in Miller and Montgomery. (Lozana,
supra, at pp. 1288-1290.) The appellate court concluded that
Senate Bill No. 394 mooted that claim for relief. (Id. at
p. 1290.) In contrast, appellant requests that he be
resentenced to a 25-year-to-life sentence under section 1170,
subdivision (d)(2). As explained, such a sentence would
entitle him to custody credits under the new regulations
established by the CDCR. For that reason, Senate Bill No.
394 does not moot his claim for relief.

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certain facts (that the defendant was eligible for relief and
that the petition contained specified true statements), was
required “to hold a hearing to consider whether to recall the
sentence . . . and to resentence the defendant in the same
manner as if the defendant had not previously been
sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.” (Former § 1170, subd.
(d)(2)(E).) The statute enumerated factors the court was
permitted to consider in determining whether to recall the
sentence, without restricting the court’s consideration to the
enumerated factors. (Id. at subd. (d)(2)(F).)
Under the applicable version of section 1170(d)(2), the
trial court potentially confronted two decisions at the
hearing on the petition. Generally, in the context of section
1170, the term “recall” refers to the threshold decision to set
aside or abrogate an existing sentence for a sentencing
purpose. (Dix v. Superior Court (1991) 53 Cal.3d 442, 455,
456-465.) The applicable version of section 1170(d)(2) thus
required the trial court first to determine whether recalling
the existing sentence was appropriate; if it decided to do so,
the statute obliged the court “to resentence the defendant in
the same manner as if the defendant had not previously
been sentenced,” that is, to determine the appropriate
sentence for the defendant as a juvenile homicide offender
(§ 190.5, subd. (b)). (§ 1170, subd. (d)(2)(E).)
In view of the structure of the applicable version of
section 1170(d)(2), courts have held that it neither remedied
potential constitutional defects in existing LWOP sentences

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imposed on juvenile homicide offenders, nor required a
determination whether those sentences were unconsti-
tutional. In People v. Gutierrez (2014) 58 Cal.4th 1354, 1386,
our Supreme Court concluded that the statute did not
eliminate the constitutional concerns regarding the initial
imposition of LWOP sentences identified in Miller, stating:
“A sentence of life without parole . . . remains fully effective
after the enactment of section 1170(d)(2).” In People v.
Gibson (2016) 2 Cal.App.5th 315, 329-330, 331 (Gibson), the
appellate court concluded that the statute, in authorizing the
trial court to recall an LWOP sentence, did not “compel a
review of the constitutionality of” that sentence under
Miller.
Here, our inquiry into the trial court’s denial of
appellant’s section 1170(d)(2) petition has a narrow focus.
The court’s ruling necessarily reflected a decision not to
recall appellant’s sentence, as the court denied the petition
without reaching the question of the appropriate “new
sentence” (former § 1170, subd. (d)(2)(E)); furthermore,
appellant asserts no challenge to the ruling on the basis of
the constitutional grounds identified in Miller and
Montgomery.8 We therefore examine the relevant principles
8 The principal issues relating to the constitutionality of
appellant’s existing sentence under Miller and Montgomery
are currently before our Supreme Court, which granted
review in our decision regarding appellant’s petition for writ
relief (People v. Padilla, supra, 4 Cal.App.5th 656, rev.
(Fn. is continued on the next page.)

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regulating the trial court’s statutory authority to decline to
recall the sentence.
Because the provision authorizing a recall of the
sentence used permissive rather that mandatory terms, the
statute “confer[red] broad discretion on the trial court in
considering relevant factors and determining whether to
recall the sentence.”9 (Gibson, supra, 2 Cal.App.5th at
p. 324.) Generally, the factors specified in a governing
statute are relevant to a sentencing decision, as are other
factors applicable to similar sentencing decisions, if
permitted by that statute. (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-979 (Alvarez).) Thus, in
suitable circumstances, the court may consider “‘the nature
and circumstances of the offense, the defendant’s
appreciation of and attitude toward the offense, or his traits
of character as evidenced by his behavior and demeanor at
the trial.’” (Id. at p. 978, quoting People v. Morales (1967)
granted Jan. 25, 2017, S239454).
9 The current version of section 1170(d)(2) significantly
circumscribes the trial court’s discretion to decline to recall a
sentence, as it provides that upon finding that the defendant
is eligible for relief and that the petition contains specified
true statements, “the court shall recall the sentence . . . and
hold a hearing to resentence the defendant in the same
manner as if the defendant had not previously been
sentenced, provided that the new sentence, if any, is not
greater than the initial sentence.” (§ 1170, subd. (d)(2)(E),
(d)(2)(B)), italics added.)

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252 Cal.App.2d 537, 547.)
Here, the applicable version of section 1170(d)(2)
authorized the trial court to consider whether appellant was
convicted of felony murder or as an aider-and-abettor;
whether appellant had a prior history of violent crime;
whether appellant has an adult accomplice; whether
appellant lacked adult supervision at the time of the crime;
whether appellant suffered from trauma, mental illness, or
cognitive limitations; whether appellant had performed
“rehabilitative” acts or had shown remorse while
incarcerated; whether appellant maintained contact with his
or her family; and whether appellant had been disciplined
for violent conduct during the previous five years.10 Because
10 Former subdivision (d)(2)(F) of section 1170 provides:
“The factors that the court may consider when determining
whether to recall and resentence include, but are not limited
to, the following: [¶] (i) The defendant was convicted
pursuant to felony murder or aiding and abetting murder
provisions of law. [¶] (ii) The defendant does not have
juvenile felony adjudications for assault or other felony
crimes with a significant potential for personal harm to
victims prior to the offense for which the sentence is being
considered for recall. [¶] (iii) The defendant committed the
offense with at least one adult codefendant. [¶] (iv) Prior to
the offense for which the sentence is being considered for
recall, the defendant had insufficient adult support or
supervision and had suffered from psychological or physical
trauma, or significant stress. [¶] (v) The defendant suffers
from cognitive limitations due to mental illness,
(Fn. is continued on the next page.)

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the statute did not confine the trial court to those factors,
the court was permitted to consider others, including factors
identified in Miller, such as “‘the circumstances of the
homicide offense, including the extent of [the appellant’s]
participation in the conduct . . . .’” (People v. Willover (2016)
248 Cal.App.4th 302, 323 (Willover), quoting Miller, supra,
567 U.S. at p. 477.) In evaluating the factors, the court
“ha[d] discretion to accord different weight to each factor,
and its decision [was not] determined by the sheer number of
factors on one side or the other.” (Willover, supra, at p. 323.)
The trial court’s decision not to recall the sentence is
thus reviewed for an abuse of discretion. (Gibson, supra, 2
Cal.App.5th at p. 325.) Under this standard, a trial court’s
developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant’s
involvement in the offense. [¶] (vi) The defendant has
performed acts that tend to indicate rehabilitation or the
potential for rehabilitation, including, but not limited to,
availing himself or herself of rehabilitative, educational, or
vocational programs, if those programs have been available
at his or her classification level and facility, using self-study
for self-improvement, or showing evidence of remorse. [¶]
(vii) The defendant has maintained family ties or
connections with others through letter writing, calls, or
visits, or has eliminated contact with individuals outside of
prison who are currently involved with crime. [¶] (viii) The
defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.”

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exercise of discretion will not be disturbed unless the court
exercised it in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.
(Ibid.)
An instructive application of the principles discussed
above is found in Willover, supra, 248 Cal.App.4th 302.
There, the defendant, at age 17, bought a gun with the
announced plan of using it “to rob and kill people and to
settle scores with rival gangs.” (Id. at pp. 306-307.) The
defendant and an adult accomplice then drove through an
area, discussing committing a robbery. (Id. at pp. 307, 316.)
The defendant demanded money from two victims and fired
nine shots at them, killing one and seriously wounding the
other. (Id. at p. 307.) Later, when the accomplice said he
“‘wanted his turn,’” the defendant handed the gun to the
accomplice, who fatally shot a pedestrian. (Id. at pp. 307-
308.) In 1999, after being convicted on two counts of first
degree murder and one count of attempted murder, the
defendant received an LWOP term. (Id. at p. 308.)
Later, the trial court declined to recall and resentence
the defendant under the applicable version of section
1170(d)(2), even though it found the existence of several
statutory factors favorable to the defendant. (Willover,
supra, 248 Cal.App.4th at p. 306.) Specifically, the court
determined that the defendant had no record of violent
crimes prior to his offenses; that he had engaged in
rehabilitative acts and “‘positive behavior’” while
incarcerated, resulting in “a lowered classification level”;

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that he had maintained connections with his family and
friends; and that he had not been disciplined for violent
conduct during the prior five years. (Id. at pp. 316-317, 320-
322.) The court further determined that other statutory
factors did not support relief, concluding that the defendant
had been convicted of one murder as the direct perpetrator;
that the adult accomplice had not significantly influenced
the defendant to commit the crimes; that the defendant had
not lacked adult supervision; and that the defendant did not
suffer from any trauma, mental illness, or cognitive
limitations, notwithstanding the existence of some evidence
that he had used methamphetamines and had a personality
disorder. (Ibid.) In denying the petition, the trial court
placed special emphasis on the circumstances of the offenses,
noting that they were “‘particularly vi[]c[i]ous . . . , cruel and
callous,’” and that the defendant “was ‘not a minor or a
passive participant’ but rather ‘the leader of the criminal
enterprise that day.’” (Id. at p. 317.) Affirming, the
appellate court found no abuse of discretion. (Id. at p. 324.)
2. Underlying Proceedings
Following our prior decision relating to appellant’s
section 1170(d)(2) petition, he submitted a sentencing
memorandum to the trial court, requesting that he be
resentenced to a term of 25 years to life.11 In ruling on
11 The memorandum relied on the then-operative version
of section 1170(d)(2), as well as Miller and Montgomery.

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appellant’s request for resentencing, the trial court had
before it the facts established at his trial, as well as evidence
regarding his post-conviction conduct and potential for
rehabilitation.
a. Trial Evidence
In January 1998, appellant was 16 years old and lived
with his mother, Gina Castillo, and his stepfather, Pedro
Castillo.12 He shared a bedroom with his baby sister. In
that room, Gina and Pedro placed a piggy bank for the baby
containing more than $100.
Gina and Pedro forbade appellant to visit his 14-year-
old cousin, Samuel Ramirez, who lived with appellant’s
grandmother. On several occasions, appellant told a
schoolmate that he intended to kill his parents because they
were strict with him, made him do chores, and would not let
him “go out.” The schoolmate also heard Ramirez say that
“it would be ‘cool’ to kill” appellant’s parents.
During the morning of January 13, 1998, appellant and
Ramirez were in an arcade with a friend. Appellant told the
friend that he and Ramirez were going to kill Gina because
“it was a perfect day to do it.” After showing the friend a
knife, appellant said that after killing his mother, he
intended to take some money.
On the same day, at approximately 2:30 p.m., Los
12 As appellant’s victims share a surname, we refer to
them by their first names.

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Angeles County Sheriff’s Department deputy sheriffs
responded to a 911 call regarding appellant’s residence.
Inside, they found Gina lying on the floor, suffering from
multiple wounds and covered with blood. She told the
deputy sheriffs that appellant had inflicted her injuries.
Nearby, they found some knives. Later, Pedro discovered
that the piggy bank in appellant’s bedroom was missing.
Investigating officers interviewed appellant twice
shortly after Gina’s death. After initially denying
involvement in his mother’s murder, he provided an account
of the crime. Appellant stated that he and Ramirez
discussed killing Gina and Pedro for more than a month
prior to January 13, 1998. According to appellant, killing his
parents was his idea. The idea arose from “frustration”
regarding his lack of freedom, as his parents did not “let
[him] go out anywhere.”
Appellant further stated that on the day of the murder
he arose and gave the appearance of leaving for school, but
went to an arcade, where he met Ramirez. At approximately
2:25 p.m, they entered appellant’s residence, where his
mother was seated at a computer table. Although their faces
were covered, Gina recognized appellant. When appellant
stabbed her with a knife, she struggled and took away the
knife. Ramirez secured a second knife and held Gina down,
but she broke the second knife. At some point, appellant
obtained a third knife from Ramirez and stabbed Gina in the
neck and chest. As she struggled with them, she recognized
Ramirez and said, “Help me.” She also said, “I’m dying.”

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Because his mother was screaming appellant’s name, he put
a rag in her mouth. After attacking her, appellant washed
his hands and fled with Ramirez.
During the second interview, appellant stated that for
three or four weeks, he had planned with Ramirez to kill his
mother and stepfather. As part of the plan, they intended to
take some money appellant’s parents had set aside for his
baby sister. He also acknowledged that he and Ramirez
contemplated killing three other people in a manner derived
from a movie called “Scream,” namely, a female schoolmate
to whom appellant had sent death threats, as well as
another female schoolmate and her boyfriend. Prior to
killing his mother, appellant smoked some marijuana.
When asked how he felt after the killing, appellant replied,
“Terrible, I felt like just killing myself too.”
b. Evaluations of Potential for Rehabilitation and
Reports Regarding Post-Conviction Conduct
Appellant submitted several reports and declarations
regarding his family life, personality, and conduct while in
prison. According to a social history and assessment
prepared with the assistance of Licensed Clinical Social
Worker Miya Sumii, prior to the offenses, Gina was “the
‘disciplinarian of the household,’” although Pedro sometimes
showed his authority over the family. The assessment
further stated that appellant was immature at the time of
his offenses, as he then “had limited life experiences and
limited ability to weigh the risk and consequences of his

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actions”; that appellant was subject to fantasies derived from
horror movies; and that he killed his mother while under the
influence of marijuana. The assessment opined that
appellant had “great potential” for rehabilitation, in view of
the steps he had taken toward rehabilitation while serving
his sentence.
After reviewing records for appellant held by the
CDCR, retired associate warden Daniel J. Fulks stated that
appellant’s disciplinary history was “extremely
commendable.” Appellant had been discipline-free for all but
one of his years of incarceration, and there was no
documented criminal or gang activity. According to Fulks,
appellant’s sole disciplinary violation, which occurred in
2000, was for possession of inmate-manufactured alcohol.
Fulks further stated that while incarcerated, appellant had
earned his GED and participated in several vocational
training programs.
Barry A. Krisberg, a Ph.D. in sociology, opined that
appellant exhibited “an excellent capacity to rehabilitate and
reintegrate into society.” According to Krisberg, appellant
had a “remarkable record of good behavior” while
imprisoned, was respectful to staff and peers, and “took
advantage of every program and self-help opportunity
available to him . . . .” Although initially placed in a high-
security facility, he had been moved to less restrictive
housing “as soon as that was allowable.” There was no
evidence that appellant displayed significant mental health
or substance abuse issues while incarcerated.

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In addition to this evidence, appellant submitted
declarations from several persons familiar with his religious
beliefs. John Pape stated he was a religious volunteer at
Central Juvenile Hall, where appellant was once placed.
When appellant was moved to prison, Pape maintained
contact with him through visits, phone calls, and letters.
According to Pape, appellant was an immature 16-year-old
when they first met. Since that time, appellant had matured
and acquired religious beliefs. Pape opined that appellant’s
ongoing participation in religious programs reflected “a
genuine desire and capacity for rehabilitation . . . .”
David Waagan, a member of the Jehovah’s Witnesses,
stated that in 2005, he conducted appellant’s baptism while
appellant was incarcerated at Pelican Bay State Prison.
According to Waagan, “[n]ot anyone can be baptized,” as an
individual must undergo lengthy preparation and
demonstrate “progressive changes.”
Gerald Gormly and David Griffin, who had contact
with appellant at Pelican Bay State Prison as religious
volunteers, stated that he demonstrated maturity and
sincere religious convictions. Griffin also noted that while in
prison, appellant had progressed from “being a non-writer to
an excellent writer” and “a great story teller.”
c. Testimony at Hearing on Petition for Writ
Relief
Appellant also provided transcripts of Griffin’s and
Pape’s testimony at the hearing on appellant’s petition for

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writ of habeas corpus. Griffin stated that in 2006, he had
contact with appellant over a period of approximately six
months. Appellant had then been baptized as a Jehovah’s
Witness. Few inmates had done so, as baptism as a
Jehovah’s Witness required comprehensive knowledge of the
Bible. Griffin regarded appellant as a “very sincere” and
“very serious” person. Griffin also noted that appellant’s
grammar, spelling, and writing ability had greatly improved
while he was incarcerated. When cross-examined, Griffin
acknowledged that he was not a trained psychologist, and
that he was unaware of some aspects of appellant’s crime,
including that appellant had contemplated killing other
people in addition to his mother.
Pape testified that he believed appellant’s mature
conduct to be sincere. During cross-examination, in addition
to acknowledging that he had no background in psychology,
he stated that he knew only some details of the murder, and
was unaware that after the murder, appellant displayed an
interest in the movie “Scream,” and asked his counselors to
secure a copy of its sequel.
d. Hearing and Ruling
At the beginning of the hearing on the section
1170(d)(2) petition, the trial court stated that it had
reviewed all the submitted evidence, and announced its
intention to consider “all the factors,” including “[appellant’s]
home environment, the circumstances of the offense, [and]
his actions subsequent to the conviction as it relates to

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rehabilitation, remorse, [and] maturity . . . .” Appellant’s
counsel argued that each statutory factor favored appellant,
and that Gina’s murder reflected only appellant’s
immaturity. Respondent maintained that appellant had
loving parents, and that his good behavior in prison mirrored
the good behavior he displayed before the murder, during
which he planned a string of murders.
In denying the petition, the trial court explained that it
had relied primarily on the circumstances of Gina’s murder,
but remarked, “I don’t take that to be the case as a whole.”
After observing that appellant had parental support, that his
home life reflected no substance abuse, and that he had no
prior history of violence, the court set forth in detail the
circumstances of Gina’s murder, as well as appellant’s plan
to kill Pedro and several other people.
Turning to whether appellant had matured and
accepted responsibility, the court -- which had presided at
appellant’s criminal trial -- described appellant’s conduct
during the hearing as identical to the “bored” conduct he
displayed at trial when pictures were shown of his mother’s
body. The court further explained why it had rejected the
testimony from Griffin and Pape, as well as the declaration
from Fulks, to the extent they were offered to show that
appellant had “changed.” The court stated that Griffin’s
discussions of “spiritual issues” with appellant had rendered
Griffin knowledgeable of appellant’s improved spelling and
syntax, but unaware of the key details of appellant’s
offenses; that Pape had little to say, other than that

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appellant had matured; and that Fulks had never met
appellant.
The court concluded: “I don’t think [appellant] has
done anything to make himself a better person. I think what
he has done is just as he did before the murders. He is
planning and has planned for some time to try to mold
himself into an image that would fool the people that are
looking at him. . . . [¶] He hasn’t done anything to
rehabilitate himself except what he has thought in my
opinion would benefit him by getting a better sentence for
himself.”
3. Analysis
We conclude that the trial court did not abuse its
discretion in denying the petition. Because the applicable
version of section 1170(d)(2) did not require the court to set
forth its assessment of each statutory factor, the court was
not obliged to state what weight it gave, if any, to certain
factors potentially favorable to appellant.13 (See People v.
13 We note that the statute mandated only that the court
exercise its discretion “in consideration of” four specified
factors, namely, whether appellant was convicted of felony
murder or as an aider-and-abettor, whether appellant had a
prior history of violent crime, whether appellant had an
adult accomplice, and whether appellant performed
“rehabilitative” acts or showed remorse while incarcerated.
(Former § 1170, subd. (d)(2)(G).) Here, the court referred to
all four factors.

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Lamb (1988) 206 Cal.App.3d 397, 402.) Although the court
placed special emphasis on the egregious circumstances of
Gina’s murder and its finding that appellant had not
“changed,”’ the court’s remarks establish that it necessarily
found the existence of other factors unfavorable to appellant,
namely, that the defendant had not lacked adult supervision;
that he suffered from no material trauma, mental illness, or
cognitive limitations; that he was the direct perpetrator of
his mother’s murder; and that no adult accomplice was
involved. In view of Willover, the court’s determination that
Gina’s murder was calculated and callous, coupled with the
other factors, constituted a sufficient basis for the court’s
ruling. (Willover, supra, 248 Cal.App.4th at p. 323.)
Appellant’s challenge to the ruling focuses on the trial
court’s finding that appellant had not “changed.” He argues
that the court’s conclusion that appellant’s good conduct
while incarcerated was “a calculated and disingenuous
campaign” to secure a better sentence was unreasonable, as
that conduct began long before Miller and section 1170(d)(2)
offered the prospect of eventual release. He also contends
the ruling denied his due process rights. As explained below,
we reject those contentions.
At the outset, we observe that the applicable version of
section 1170(d)(2) did not require the court to make any
specific finding in determining whether to recall or decline to
recall appellant’s sentence. Moreover, while authorizing the
court to consider various factors, including whether
appellant “ha[d] performed acts that tend[ed] to indicate

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rehabilitation or the potential for rehabilitation, . . . or [had
shown] evidence of remorse” (former § 1170, subd.
(d)(2)(F)(vi)), the statute did not mandate recall where
evidence of such factors was present. The statute thus
permitted the court to deny relief even though it found that
the defendant showed rehabilitative acts or remorse.
(Willover, supra, 248 Cal.App.4th at pp. 322-324.)
Furthermore, in suitable circumstances, the court was
permitted to reject undisputed evidence of good conduct as
insufficient to show “genuine remorse or rehabilitation.”
(Gibson, supra, 2 Cal.App.5th at pp. 328-329 [affirming trial
court’s finding of lack of genuine remorse and rehabilitation
based on the brevity of the period of good conduct].)
Here, pointing to the submitted evidence and
appellant’s demeanor during his trial and at the hearing, the
trial court concluded that appellant had not “done anything
to rehabilitate himself except what he has thought . . . would
benefit him by getting a better sentence on the case.”
Viewed in context, the phrase “a better sentence” cannot
reasonably be understood to refer solely to a 25-year-to-life
term, as the court was fully apprised that appellant’s good
conduct predated Miller and the enactment of section
1170(d)(2). Rather, the court’s comment suggests it believed
that appellant sought to achieve better conditions of
incarceration, to the extent available. That interpretation is
supported by the evidence, as Krisberg’s declaration stated
that due to appellant’s good conduct, he had been moved to
less restrictive housing “as soon as that was allowable.”

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In our view, the trial court reasonably found that
appellant had failed to demonstrate a genuine change of
attitude, notwithstanding the uncontroverted evidence of his
good conduct in prison. As the court noted, appellant
planned a series of murders while manifesting an
appearance of good conduct; furthermore, the testimony from
the two witnesses appellant offered to establish the sincerity
of his religious beliefs -- namely, Griffin and Pape --
disclosed that appellant apparently had never reflected on
the egregious details of his crimes while talking to them, as
they were unaware of those details. Additionally, because
the statute did not circumscribe the pertinent factors, the
court was permitted to consider appellant’s demeanor and
conduct at the trial and during the hearing on the section
1170(d)(2) petition.14 (See Alvarez, supra, 14 Cal.4th at
pp. 977-979.)
In a related contention, appellant maintains that the
14 Even had the trial court improperly assessed
appellant’s acts of rehabilitation and remorse, we would find
no reversible error. As explained in Gibson, under the
applicable version of section 1170(d)(2), an incorrect
assessment of a single factor was harmless when the trial
court also based its ruling on other factors properly
supported in the record. (Gibson, supra, 2 Cal.App.5th at
pp. 328-329.) Here, the court identified the circumstances of
Gina’s murder as the principal basis for its ruling, and also
necessarily found the existence of other factors unfavorable
to appellant.

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trial court’s ruling denied his federal and state rights to due
process because it arbitrarily denied him a liberty interest
provided by state law (Hicks v. Oklahoma (1980) 447 U.S.
343, 346; Hewitt v. Helms (1983) 459 U.S. 460, 466,
overruled on another point in Sandin v. Conner (1995) 515
U.S. 472, 483-484; In re Head (1983) 147 Cal.App.3d 1125,
1132). That contention fails, as appellant has not shown the
trial court contravened state law in ruling on his petition.
(See People v. Prince (2007) 40 Cal.4th 1179, 1272-1273 &
fns. 20, 21.) In sum, the trial court did not err in declining to
recall appellant’s sentence and resentence him.15
15 Appellant has requested that upon ordering remand,
we direct that further proceedings be heard before a
different judge (Code Civ. Proc., § 170.1, subd. (c)). The
contention underlying the request is that the trial court, in
evaluating whether appellant had “changed,” displayed an
appearance of bias. In view of our conclusion, it is
unnecessary to address the request, as no remand is
required. To the extent appellant may seek a reversal of the
ruling on the basis of judicial bias, we conclude that the trial
court’s remarks reflect only its considered assessment of the
evidence, and do not demonstrate bias. (Kreling v. Superior
Court (1944) 25 Cal.2d 305, 310-311 [“It is well settled in
this state that the expressions of opinion uttered by a judge,
in what he conceives to be a discharge of his official duties,
are not evidence of bias or prejudice”]; accord, People v.
Lucas (2014) 60 Cal.4th 153, 304, disapproved on another
ground in People v. Romero (2015) 62 Cal.4th 1, 53, fn. 19.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
COLLINS, J.

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