Trial court improperly limited the availability of Penal Code section 1170, subdivision (d)(2) resentencing to juvenile murder defendants who were not the actual killer, but the error was harmless. In 1996 Gibson, who was 17 years old at the time of the offense, was tried as an adult and convicted of first degree murder with a felony murder special circumstance. He was sentenced to LWOP. In 2014, he filed a petition for resentencing (Pen. Code, § 1170, subd. (d)(2)). The court denied the petition, concluding that section 1170, subdivision (d)(2) applied only to a defendant who was not the actual killer and that Gibson had failed to establish rehabilitation or remorse. Gibson appealed. Held: Affirmed. Section 1170, subdivision (d)(2) permits a defendant serving an LWOP sentence for murder committed when he was under the age of 18 to file a petition seeking recall and resentencing, provided the offense did not involve torture or a victim who was a public safety official. The petition must include one of four enumerated statements. (Pen. Code, § 1170, subd. (d)(2)(B).) One of the statements is that “[t]he defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of the law.” Here, the court concluded that this section is not limited to those convicted of first degree murder under a felony murder or aider/abettor theories who were not the actual killers. The Legislature used the word “or” between “felony murder” and “aiding and abetting” (Pen. Code, § 1170, subd. (d)(2)(B)(i)). This describes two categories of defendants serving LWOP sentences who would be eligible to petition for resentencing: those whose culpability was established under the felony murder doctrine and those who were convicted based on principles of aiding and abetting. None of the legislative materials for this section reflect it was intended to be limited to nonkillers. However, because the trial court also based its denial on two appropriate factors (Gibson did not demonstrate remorse or rehabilitation) that are supported by the record, the error was harmless.

A petition for resentencing under Penal Code section 1170, subdivision (d)(2) is a discretionary application addressed to the court’s consideration of defendant’s rehabilitation and remorse, not a vehicle to consider the constitutionality of a sentence. Gibson claimed the trial court’s denial of his resentencing petition disregarded the mandates of Miller v. Alabama (2012) 132 S.Ct. 2455 (Eighth Amendment forbids mandatory LWOP for juvenile convicted of murder) and People v. Gutierrez (2014) 58 Cal.4th 1354 (trial court must consider distinctive attributes of youth in deciding whether to impose LWOP or a term of 25 years to life on minor), because the trial court did not meaningfully consider his mitigating evidence to assure his sentence was constitutional. However, Gibson chose to file a section 1170, subdivision (d)(2) petition, which is not a vehicle for reconsidering the constitutionality of a sentence in light of the “distinctive attributes of youth,” as required by Miller and its progeny. He could have filed a petition for writ of habeas corpus seeking retroactive application of Miller on collateral review, to obtain such an evaluation; that option is not foreclosed to him to the extent he has not already done so.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E062624.PDF