IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
No.
In re MICHAEL PULIDO,
Petitioner,
On Habeas Corpus.
(Prior Appeal,
No. A065850/S053965)
(San Mateo County
Sup. Ct. No. SC29805)
PETITION FOR WRIT OF HABEAS CORPUS
JONATHAN SOGLIN
Executive Director
J. BRADLEY O’CONNELL
(Bar No. 104755)
Assistant Director
First District Appellate Project
730 Harrison Street, Suite 201
San Francisco, CA 94107
Telephone: (415) 495-3119
E-mail: jboc@fdap.org
Attorneys for Petitioner
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -vPETITION FOR A WRIT OF HABEAS CORPUS. . . . . . . . . . . . . . . . . -1Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2Introduction to Habeas Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . -8Claim I:
Section 190.5(b)’s Unconstitutional Presumption of
LWOP.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
Claim II:
Sentencing Court’s Failure to Consider the “Hallmark
Features” of Youth, As Required by Miller v. Alabama
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
Claim III:
Violation of Ring v. Arizona and Miller v. Alabama –
Sentencing Court’s Reliance on Own Finding, Contrary
to Jury’s Deadlock on Personal Firearm Use
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
Claim IV:
Categorical Bar on LWOP for an Aider/Abettor Who
Did Not Kill or Intend to Kill. . . . . . . . . . . . . . . . . -14-
Claim V:
Cruel or Unusual Punishment Under California
Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
Concluding Habeas Allegations. . . . . . . . . . . . . . . . . . . . . . . . . . -18Appointment of Counsel and Issuance of OSC. . . . . . . . . . . . . . -20Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
-i-
VERIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . -23INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23I.
II.
PETITIONER’S CRUEL-AND-UNUSUAL PUNISHMENT CLAIMS
UNDER MILLER v. ALABAMA ARE PROPERLY COGNIZABLE ON
HABEAS CORPUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26A.
Miller v. Alabama Applies on State Post-Conviction Review
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
B.
Petitioner’s Claims Are Properly Cognizable on State Habeas
Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
C.
This Court Should Exercise Its Original Jurisdiction to Entertain
This Habeas Petition in the First Instance. . . . . . . . . . . . . -28-
CALIFORNIA’S PRESUMPTION OF LWOP FOR ANY SPECIAL
CIRCUMSTANCE MURDER COMMITTED BY A JUVENILE
VIOLATES THE COMMAND OF MILLER v. ALABAMA THAT
SUCH SENTENCES MUST BE THE EXCEPTION RATHER THAN
THE NORM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31A.
Under Miller v. Alabama, the Eighth Amendment Requires
Consideration of the Diminished Culpability of a Juvenile
Offender and Bars Any Statutory Mandate of LWOP.. . . -31-
B.
California’s “Generally Mandatory” Scheme, Designating
LWOP as the “Presumptive Punishment,” Contravenes Miller’s
Rule that LWOP Must Be “Uncommon” and Reserved for the
“Rare Juvenile Offender” Displaying “Irreparable Corruption.”
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
-ii-
C.
Petitioner’s Sentence Cannot Stand Because the Sentencing
Court Operated Under an Unconstitutional Presumption of
LWOP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
III.
PULIDO’S SENTENCE CANNOT STAND BECAUSE THE COURT
DID NOT ADEQUATELY CONSIDER THE DISTINCTIVE
MITIGATING CIRCUMSTANCES OF HIS YOUTH AND
BACKGROUND, AS REQUIRED BY MILLER. . . . . . . . . . . . -40-
IV.
THE SENTENCING COURT VIOLATED THE PRINCIPLES OF
MILLER v. ALABAMA AND RING v. ARIZONA IN ELEVATING THE
PUNISHMENT TO LWOP BASED ON ITS OWN FINDING THAT
PULIDO SHOT THE VICTIM, WHERE THE JURY DEADLOCKED
ON THAT ALLEGATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -48-
V.
THE EIGHTH AMENDMENT CATEGORICALLY BARS LWOP
FOR A JUVENILE CONVICTED AS AN AIDER/ABETTOR TO
FELONY-MURDER, WHO DID NOT PERSONALLY KILL OR
INTEND TO KILL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -55-
VI.
PETITIONER’S SENTENCE IS “CRUEL OR UNUSUAL” UNDER
THE CALIFORNIA CONSTITUTION. . . . . . . . . . . . . . . . . . . . -60-
VII.
THE RECENTLY ENACTED, BUT NOT YET OPERATIVE,
SECTION 1170(d)(2) APPLICATION PROCEDURE DOES NOT
PROVIDE A REMEDY FOR PETITIONER’S CONSTITUTIONAL
CLAIMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -71A.
The Section 1170(d)(2) Procedure.. . . . . . . . . . . . . . . . . . -71-
B.
The Section 1170(d)(2) Procedure Is No Substitute for Habeas
Corpus, Because It Does Not Provide a Vehicle for
Consideration of Petitioner’s Constitutional Claims. . . . . -72-
-iii-
C.
The Recall Procedure Does Not Resolve the Constitutional
Violations, Because Sentencing Remains Subject to the Same
Defective Statutory Procedures, Including Section 190.5(b)’s
Presumption of LWOP and Section 190.2(d)’s Allowance of
LWOP for Felony-Murder Aiders. . . . . . . . . . . . . . . . . . . -73-
D.
Consideration of the Petition Is Essential to Prevent Forfeiture
of Petitioner’s Claims Under Miller v. Alabama. . . . . . . . -74-
VIII. THIS COURT SHOULD APPOINT COUNSEL AND ISSUE AN OSC
TO ENSURE FULL CONSIDERATION OF THE IMPLICATIONS
OF MILLER v. ALABAMA FOR PETITIONER’S LWOP SENTENCE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -76A.
This Petition States a Prima Facie Case Mandating Issuance of
an OSC.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -76-
B.
This Court Should Appoint Counsel at the Earliest Opportunity
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -78-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -80CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . -81-
-iv-
TABLE OF AUTHORITIES
FEDERAL CASES
Apprendi v. New Jersey (2000) 530 U.S. 466. . . . . . . . . . . . . . . . . . . . . . . 52
Ford v. Wainwright (1986) 477 U.S. 399. . . . . . . . . . . . . . . . . . . . . . . . . . 50
Graham v. Florida (2010) 560 U.S. __ [130 S.Ct. 2011]. . . . . . . . . . passim
Gregg v. Georgia (1976) 428 U.S. 153. . . . . . . . . . . . . . . . . . . . . . . . . 50, 51
Guillen v. California (June 29, 2012; 11-8655) __ U.S. __
[2012 WL 369257]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Hedgpeth v. Pulido (2008) 555 U.S. 57.. . . . . . . . . . . . . . . . . . . . . . . 4, 7, 23
Martinez v. Ryan (2012) __ U.S. ___ [132 S.Ct. 1309].. . . . . . . . . . . . . . . 79
Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455].. . . . . . . . . . passim
Pulido v. Chrones (9th Cir. 2007) 487 F.3d 669. . . . . . . . . . . . . . . . . . . . . . 7
Pulido v. Chrones (9th Cir. 2007) 238 Fed.Appx. 200. . . . . . . . . . . . . . . . . 7
Pulido v. Chrones (9th Cir. 2010) 629 F.3d 1007. . . . . . . . . . . . . . . . . . 7, 24
Pulido v. Hedgpeth (2011) __ U.S. __ [132 S.Ct. 338]. . . . . . . . . . . . . . . . . 8
Pulido v. Lamarque (N.D. Cal. 2005) 2005 WL 6142229. . . . . . . . . . . . . . 6
Ring v. Arizona (2002) 536 U.S. 584.. . . . . . . . . . . . . . . . . . . . . . . 13, 25, 51
Roper v. Simmons (2005) 543 U.S. 551.. . . . . . . . . . . . . . . . . . . . . . . . 31, 49
Tison v. Arizona (1987) 481 U.S. 137. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
-v-
Walton v. Arizona (1990) 497 U.S. 639.. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Woodson v. North Carolina (1976) 428 U.S. 280. . . . . . . . . . . . . . . . . . . . 51
STATE CASES
Daugherty v. State (Flor. App. 2012) 96 So.3d 1076. . . . . . . . . . . 12, 43, 47
In re Clark (1993) 5 Cal.4th 750. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 78
In re Coley (2012) 55 Cal.4th 524. . . . . . . . . . . . . . . . . . . . 19, 27, 30, 49, 54
In re E.J. (2010) 47 Cal.4th 1258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
In re Harris (1993) 5 Cal.4th 813. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
In re Hillery (1962) 202 Cal.App.2d 293. . . . . . . . . . . . . . . . . . . . . . . . . . 28
In re Huffman (1986) 42 Cal.3d 552. . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 28
In re Kler (2010) 188 Cal.App.4th 1399. . . . . . . . . . . . . . . . . . . . . . . . 19, 28
In re Large (2007) 41 Cal.4th 538. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
In re Lynch (1972) 8 Cal.3d 410. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 65
In re Marriage Cases (2008) 43 Cal.4th 757.. . . . . . . . . . . . . . . . . . . . 67, 68
In re Moss (1985) 175 Cal.App.3d 913. . . . . . . . . . . . . . . . . . . . . . . . . 19, 29
In re Nunez (2009) 173 Cal.App.4th 709.. . . . . . . . . . . . . . . . . . . . . . passim
In re Sassounian (1995) 9 Cal.4th 535. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
In re Waltreus (1965) 62 Cal.2d 218.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
People v. Aleman et al. (Cal.App. 2011; B220310) 2011 WL 3805955
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
-vi-
People v. Alvarez (2002) 95 Cal.App.4th 403. . . . . . . . . . . . . . . . . . . . . . . 39
People v. Belmontes (1983) 34 Cal.3d 335. . . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Blackwell (2011) 202 Cal.App.4th 144. . . . . . . . . . . . . . . . . 35, 62
People v. Bruce G. (2002) 97 Cal.App.4th 1233. . . . . . . . . . . . . . . . . . . . . 39
People v. Caballero (2012) 55 Cal.4th 262. . . . . . . . . . . . . . . . . . . . . . . . . 59
People v. Dillon (1983) 34 Cal.3d 441. . . . . . . . . . . . . . . . . . . . . . . . passim
People v. Duvall (1995) 9 Cal.4th 464. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
People v. Guinn (1994) 28 Cal.App.4th 1130. . . . . . . . . . . . . . . . . . . passim
People v. Gutierrez (2012) 209 Cal.App.4th 646.. . . . . . . . . . . . . . . . . 38, 55
People v. Hendrix (1997) 16 Cal.4th 508. . . . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Jones (2001) 25 Cal.4th 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Manriquez (1991) 235 Cal.App.3d 1614. . . . . . . . . . . . . . . . . . . 39
People v. Meloney (2003) 30 Cal.4th 1145. . . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Moffett (Oct. 12, 2012; A133032) __ Cal.App.4th __
[2012 WL 4841338]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
People v. Mosley (1997) 53 Cal.App.4th 489. . . . . . . . . . . . . . . . . . . . . . . 38
People v. Murray (2012) 203 Cal.App.4th 277. . . . . . . . . . . . . . . . . . . . . . 35
People v. Pulido (1997) 15 Cal.4th 713.. . . . . . . . . . . . . . . . . . . . . . . 4, 5, 23
People v. Read (1990) 221 Cal.App.3d 685. . . . . . . . . . . . . . . . . . . . . . . . 39
-vii-
People v. Romero (1994) 8 Cal.4th 728.. . . . . . . . . . . . . . . . . . . . . . . . . . . 76
People v. Spears (1983) 33 Cal.3d 279... . . . . . . . . . . . . . . . . . . . . . . . . . . 61
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.. . . . . . 37, 48, 49
People v. Towne (2008) 44 Cal.4th 63.. . . . . . . . . . . . . . . . . . . . . . . . . 49, 54
People v. Williams (1998) 17 Cal.4th 148. . . . . . . . . . . . . . . . . . . . . . . . . . 37
People v. Ybarra (2008) 166 Cal.App.4th 1069. . . . . . . . . . . . . . . . . . . . . 35
Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106. . . . . . . . . . . 38
Strauss v. Horton (2009) 46 Cal.4th 364. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
FEDERAL CONSTITUTIONAL PROVISIONS AND STATUTES
United States Constitution
Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 52-54
Eighth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States Code
28 U.S.C. § 2244.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
28 U.S.C. § 2254.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATE CONSTITUTIONAL PROVISIONS,
RULES AND STATUTES
California Constitution
Article I, § 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Articl VI, § 10.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
California Rules of Court
Rule 4.421.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Rule 4.423.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Rule 8.204.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Rule 8.384.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 81
-viii-
Evidence Code
§ 664. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Penal Code
§ 190.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 190.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
§ 190.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
§ 190.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
§ 263. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
§ 667.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
§ 667.61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
§ 1170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71-74
§ 1203.075. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
§ 2933.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
§ 12022.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13, 14, 53
§ 12022.53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
OTHER AUTHORITIES
California Jury Instructions, Criminal
No. 8.80.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 57
Senate Bill 9, signed Sept. 30, 2012 (Statutes 2012, ch. 828). . . . . . . . . . . 71
Statutes 1990, ch. 41, § 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
-ix-
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
No.
In re MICHAEL PULIDO,
Petitioner,
On Habeas Corpus.
(Prior Appeal,
A065850 & S053965)
(San Mateo County
Sup. Ct. No. SC29805)
PETITION FOR A WRIT OF HABEAS CORPUS
TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE
JUSTICES OF THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION ONE:
Petitioner MICHAEL PULIDO, through his attorney, petitions for a writ of
habeas corpus and by this verified petition states as follows:
1.
Petitioner is unlawfully restrained of his liberty in Salinas Valley State
Prison, by the Warden and by the Secretary of the California
Department of Corrections and Rehabilitation.
2.
As more fully set out in his accompanying Memorandum of Points and
Authorities (Memorandum), petitioner contends that his sentence of life
without possibility of parole (LWOP) for a felony-murder committed
as a juvenile constitutes cruel and unusual punishment under the Eighth
Amendment of the U.S. Constitution, pursuant to Miller v. Alabama
(2012) 567 U.S. __, 132 S.Ct. 2455. (Claims I-IV; Memorandum Parts
II-V.) Petitioner also contends that this punishment represents “cruel
or unusual” punishment under Article I, section 17, of the California
Constitution, pursuant to People v. Dillon (1984) 34 Cal.3d 441. (Claim
V; Memorandum Part VI.)
Procedural History
3.
Trial and sentencing. Petitioner Michael Pulido was tried in San Mateo
County Superior Court No. SCR29805 on charges of first-degree
murder with a robbery felony-murder special circumstance (Pen. Code
§ 190.2(a)(17)(i)).1 The charged homicide occurred on May 24, 1992,
when Michael Pulido was 16 years old. (I Appx. Ex. K, p. 1.)2 On
March 31, 1994, the superior court sentenced petitioner to LWOP,
pursuant to section 190.5(b).
4.
Pulido was charged with the murder of the cashier during an abortive
late-night robbery of a gas station convenience store in San Mateo. As
summarized in the multiple reviewing court opinions (I Appx. Exs. IM), the prosecution tried Pulido on the theory that he alone committed
the robbery and shot and killed the clerk. One of the principal
prosecution witnesses was Pulido’s uncle Michael Aragon, with whom
he had been living the past several weeks. Aragon testified to several
statements in which Pulido allegedly incriminated himself in the
shooting and robbery.
1
Statutory references are to the Penal Code, unless otherwise noted.
Citations to “Rules” are to the California Rules of Court.
2
Exhibit references are to the accompanying two-volume Appendix to
Petition for Writ of Habeas Corpus; references begin with volume number.
-2-
5.
Pulido, however, testified that it was his uncle Michael Aragon who
robbed the gas station and shot the clerk. Pulido testified that he had
been out in the car, unaware of his uncle’s plans, when he heard shots
and ran into the station. However, Pulido admitted subsequently
assisting his uncle during their flight and asportation of the stolen cash
register. At his uncle’s direction, Pulido pried open the register to
extract the cash and then later disposed of the register in a clump of
bushes some distance from the station.
6.
The murder and special circumstance charges went to the jury on both
direct perpetrator and aiding/abetting theories. The aiding-abetting
instructions included a “late joiner” theory of felony-murder liability
under which Pulido could have been found guilty based on aiding and
abetting the robbery after the shooting. (I Appx. Ex. F: CT 460, 470475; see Ex. J, pp. 17-19 (Cal. Supreme Court opn.)) Throughout their
deliberations, the jurors submitted multiple queries to the court
concerning the aiding/abetting felony-murder instructions. (I Appx. Ex.
G: CT 607, 614, 616-618, 622; see Ex. K, pp. 33-37 (district ct.
decision, summarizing juror queries).)
7.
After five days of deliberations, the jurors convicted Pulido of firstdegree murder, robbery, and the robbery felony-murder special
circumstance. However, the jurors deadlocked, either 8-4 or 4-8, on
allegations of personal firearm use (§ 12022.5(a)) and personal
infliction of great bodily injury (§ 1203.075). (I Appx. Ex. H: RT
2007; see Ex. M, p. 20391 fn. 2) That deadlock, in conjunction with
the series of queries on aiding/abetting, indicates that a substantial
portion of the jury rejected the prosecution theory that Pulido was the
-3-
killer and instead found that he aided and abetted his uncle Michael
Aragon in the robbery.
8.
Because Pulido had been 16 at the time of homicide, the special
circumstance finding required the court to sentence him to life without
parole (LWOP) unless it chose to exercise “discretion” to impose a
parole-eligible term of 25 years to life. (§ 190.5(b).) On March 31,
1994, the sentencing court imposed LWOP. (Appx. Ex. A: RT 20402041)
9.
Appellate and habeas proceedings. Michael Pulido’s murder conviction
was the subject of protracted appellate and habeas proceedings, in both
the state and federal courts, including decisions by this Court (Appx.
Ex. I), the California Supreme Court (People v. Pulido (1997) 15
Cal.4th 713 (Appx. Ex. J), and the U.S. Supreme Court (Hedgpeth v.
Pulido (2008) 555 U.S. 57 (Appx. Ex. L). As outlined below, the
principal focus of those proceedings was the “late joiner” felonymurder theory, which the California Supreme Court repudiated.
10.
Pulido’s direct appeal, No. A065850, raised multiple issues, including
the propriety of the “late joiner” theory and cruel-and-unusual
punishment. On April 25, 1996, this Court affirmed the first-degree
murder conviction, special circumstance finding, and judgment of
LWOP. (I Appx. Ex. I.) This Court’s opinion found no error in the
“late joiner” felony-murder instructions (id., pp. 3-12). Of greater
relevance to the current petition, the Court also rejected the cruel and
unusual punishment claim (pp. 14-15).
11.
The California Supreme Court granted review (S053965) and ultimately
repudiated the “late joiner” theory as an incorrect statement of
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California felony-murder law. (I Appx. Ex. J: People v. Pulido (1997)
15 Cal.4th 713.) But the Court affirmed the murder conviction based
on its belief that the special circumstance instructions established that
the jury found that “defendant’s involvement in the robbery, whether
as direct perpetrator or as aider and abettor, commenced before or
during the killing of [the clerk].” (Ex. J, p. 16.) The California
Supreme Court’s opinion addressed only the instructional issue and did
not consider or decide any cruel and unusual punishment claim.
12.
Pulido also sought state habeas corpus relief, based on other claims.3
a.
Pulido (through his then-appellate counsel) filed a habeas
petition in this Court on April 10, 1996 (A073865) (II Appx. Ex.
N), which the Court denied on May 28, 1996, without prejudice
to a superior court filing.
b.
Pulido refiled his habeas petition in superior court in June 1996.
(II Appx. Ex. O)4 The superior court denied the petition on
October 16, 1996. (See II Appx. Ex. Q, p. 6)
c.
Pulido filed a pro. per. document in this Court, entitled
“Appellant’s Opening Brief,” on November 23, 1998. (II Appx.
3
The prior state habeas proceedings have little or no relevance to the
current petition, which is based on the U.S. Supreme Court’s 2012 opinion in
Miller. However, Pulido is listing these prior filings, because the rules appear
to require this information. (Rule 8.384(a)(1).)
4
Pulido and his current counsel do not currently have a complete copy
of the superior court habeas petition. The partial copy lodged as Exhibit O
includes only the petition pleading and one exhibit. However, the legal
memorandum and the other exhibits of the superior court petition were the
same as those of the previously-filed appellate habeas petition (Ex. N).
-5-
Ex. P.) This Court deemed the document a habeas corpus
petition and summarily denied it on December 3, 1998
(A084925).
d.
Pulido filed a habeas corpus petition in the California Supreme
Court on April 12, 1999, which that Court summarily denied on
July 28, 1999 (S078082). (II Appx. Ex. Q.)
e.
Pulido’s various state habeas filings raised claims of
prosecutorial presentation of false evidence, based in part on a
declaration in which Michael Aragon’s former girlfriend
recanted her trial testimony, which had falsely given Aragon an
alibi for the time of the shooting. The petitions also raised
additional claims, including prosecutorial vouching for Michael
Aragon and ineffective assistance of trial counsel.
13.
On November 3, 1999, Pulido, again in pro. per., filed a habeas corpus
petition in U.S. District Court (28 U.S.C. § 2254), raising the following
claims: a) misinstruction of the jury on the “late joiner” felony-murder
theory; b) prosecutorial presentation of false evidence; c) prosecutorial
vouching for Michael Aragon; d) several claims of ineffective
assistance of trial counsel; e) erroneous denial of a Marsden motion;
and f) denial of allocution at sentencing. (No. CV-99-04933-CW; II
Appx. Ex. R.)
14.
The district court granted the habeas corpus petition in an extensive
opinion filed March 25, 2005. (Pulido v. Lamarque (N.D. Cal. 2005)
2005 WL 6142229; I Appx. Ex. K.) The district court held that the
concededly-erroneous “late joiner” felony-murder theory represented
prejudicial federal constitutional error, entitling Pulido to habeas relief
-6-
setting aside the murder conviction.
(Ex. K, pp. 7-42.)
In the
remainder of its decision, the district court denied relief as to the
petition’s various other claims.
15.
The state appealed the district court’s grant of relief on the instructional
claim, and Pulido cross-appealed the denial of relief on his other
claims. In its initial opinion, the Ninth Circuit affirmed the grant of
habeas relief on the instructional claim (Pulido v. Chrones (9th Cir.
2007) 487 F.3d 669) and concurrently affirmed the denial of relief on
the other claims in a separate unpublished decision (Pulido v. Chrones
(9th Cir. 2007) 238 Fed.Appx. 200).
16.
The U.S. Supreme Court granted certiorari. In a 6-3 opinion, the Court
ruled that the Ninth Circuit had not applied the correct prejudice
standard to the conceded instructional error. The Court remanded to
the Ninth Circuit for reconsideration. (Hedgpeth v. Pulido (2008) 555
U.S. 57; I Appx. Ex. L.)5
17.
On remand, the Ninth Circuit split 2-1 on the prejudicial effect of the
erroneous “late joiner” aiding/abetting theory. (Pulido v. Chrones (9th
Cir. 2010) 629 F.3d 1007; I Appx. Ex. M.) The majority found the
misinstruction harmless based primarily on its belief that the special
circumstance verdict showed that the jurors convicted Pulido on a valid
5
The three dissenting justices (Justices Stevens, Souter, and Ginsburg)
would have upheld the grant of habeas relief, without the need for a remand.
(Ex. L.) While the dissenters acknowledged the “misnomer” in the Ninth
Circuit’s characterization of the standard, they found that the district court’s
prejudice analysis and the substance of the Ninth Circuit’s decision fully
established prejudice under the correct standard.
-7-
theory of contemporaneous aiding-abetting. (Ex. M, pp. 20395-20402)6
18.
The Supreme Court denied Pulido’s petition for a writ of certiorari,
bringing his bid for federal habeas relief to an end. (Pulido v.
Hedgpeth (2011) __ U.S. __, 132 S.Ct. 338.)
19.
As summarized above, the protracted state and federal post-conviction
proceedings focused primarily on the prejudicial effect of the erroneous
“late joiner” theory, which would have allowed a felony-murder
conviction based on post-shooting assistance in the robbery. The Ninth
Circuit had the final word on that issue, with the panel majority finding
that the jurors relied on a valid aiding-abetting theory.
20.
Pulido’s current state habeas petition does not seek to relitigate the “late
joiner” issue. The multiple prior decisions are relevant to the current
petition in one limited respect: In view of the 8-4 or 4-8 deadlock on
personal firearm use and the jurors’ queries on aiding/abetting, all the
reviewing court judges and justices proceeded from the premise that a
substantial portion of the jury convicted Pulido as an aider-abettor,
based on his assistance to his uncle in the robbery, rather than as the
actual killer.
Introduction to Habeas Claims
21.
Although this Court’s 1996 opinion on Pulido’s direct appeal rejected
a cruel and unusual punishment challenge to the LWOP sentence (I
6
The dissenting judge (like the district court and the three dissenting
Supreme Court justices) found that the erroneous felony-murder theory was
prejudicial in view of the defects and ambiguity in the special circumstance
instructions, the jurors’ multiple queries on the aiding/abetting instructions,
and the conflict in the evidence as to the timing of Pulido’s participation. (Ex.
M, pp. 20408-20415 (Thomas, J., dissenting).)
-8-
Appx. Ex. I, pp. 14-15), the U.S. Supreme Court’s recent opinion in
Miller v. Alabama (2012) 567 U.S. __, 132 S.Ct. 2455, requires reexamination of the constitutionality of that punishment. Pulido’s
sentence offends the principles of Miller in multiple ways, including the
invalidity of California statutory presumption of LWOP (§ 190.5(b)),
the inadequacy of the sentencing court’s consideration of the distinctive
mitigating features of youth, the sentencing judge’s reliance on his own
finding on a crucial issue on which the jury deadlocked, and the
categorical unconstitutionality of LWOP for a juvenile who did not
personally kill or intend to kill. Miller’s analysis of recent scientific
and social science research on developmental characteristics of
juveniles also provides cause for reconsideration of the proportionality
of Pulido’s punishment under the California Constitution (art. I, § 17).
Claim I:
22.
Section 190.5(b)’s Unconstitutional Presumption of LWOP.
Petitioner’s LWOP sentence violates the Eighth Amendment because
the sentencing court selected that punishment, rather than 25 years to
life, under the constraint of section 190.5(b), which makes LWOP the
“generally mandatory” “presumptive punishment” for a special
circumstance murder committed by a 16- or 17-year-old. (People v.
Guinn (1994) 28 Cal.App.4th 1130, 1141-1143.)
23.
Section 190.5(b) allows a sentencing court only limited or
“circumscribed” discretion to depart from that presumption and choose
the parole-eligible option of 25 to life. Section 190.5(b)’s “generally
mandatory” presumption of LWOP for a juvenile homicide violates the
principles of Miller v. Alabama (2012) 132 S.Ct. 2455, 2467, that such
sentences must be “uncommon” and reserved for the “rare juvenile
-9-
offender whose crime reflects irreparable corruption.”
24.
A recent First District opinion has found the section 190.5(b)
presumption of LWOP contrary to the principles of Miller v. Alabama
on exactly this ground: “Treating LWOP as the default sentence takes
the premise in Miller that such sentences should be rarities and turns
that premise on its head, instead placing the burden on a youthful
defendant to affirmatively demonstrate that he or she deserves an
opportunity for parole.” (People v. Moffett (Oct. 12, 2012; A133032)
__ Cal.App.4th __ [2012 WL 4841338].)
25.
The Moffett opinion vacated the LWOP term and remanded for
resentencing. Because the trial court’s choice of LWOP as petitioner’s
punishment was the product of the same unconstitutional presumption,
this Court should adopt the same remedy here. Because Miller requires
that LWOP sentences for juveniles must be “uncommon” and “rare,”
the sentencing court on remand should apply a presumption in favor of
a parole-eligible term of 25 years to life.
26.
Petitioner incorporates by reference Part II of the accompanying
Memorandum for further discussion of this claim.
Claim II:
27.
Sentencing Court’s Failure to Consider the “Hallmark
Features” of Youth, As Required by Miller v. Alabama.
Petitioner is entitled to resentencing on the further ground that the
sentencing court failed to give paramount consideration to the
“hallmark features” of youth, which render a juvenile offender such as
Michael Pulido substantially less culpable than an adult.
28.
Miller v. Alabama “require[s] [a sentencer] to take into account how
children are different, and how those differences counsel against
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irrevocably sentencing them to a lifetime in prison. [Fn.]” (Miller, 132
S.Ct.at 2469.) The decision “mandates only that a sentencer follow a
certain process – considering an offender’s youth and attendant
characteristics – before imposing a certain penalty.” (Id. at 2471.)
29.
Miller requires that a court focus its sentencing inquiry on the
“‘mitigating features of youth’” in determining whether the minor is
that “‘rare juvenile offender whose crime reflects irreparable
corruption.” (Miller, 132 S.Ct. at 2468-2469.) The sentencing court
must give paramount weight to the specific “hallmark features” of
youth, delineated in Miller.
These developmental characteristics
include “immaturity, impetuosity, and failure to appreciate risks and
consequences.”
(Id. at 2468.)
The court must recognize the
“transience” of youthful recklessness and a juvenile offender’s greater
“capacity for change” and prospects for rehabilitation. (Id. at 24672468 & fn. 7.)
30.
Miller also requires that the sentencing court give due weight to the
mitigating effect of background circumstances which may have
contributed to the minor’s offense, including the role of “familial and
peer pressures.” The court must ““tak[e] into account the family and
home environment that surrounds [the minor] – and from which he
usually cannot extricate himself – no matter how brutal or
dysfunctional.” (Miller, 132 S.Ct. at 2468.)
31.
The sentencing court here violated Miller in failing to give adequate
consideration and weight to these “hallmark features” of youth in its
choice of LWOP rather than 25-to-life under section 190.5(b). The
court relied primarily on the perceived aggravating circumstances of the
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current offense in imposing LWOP. In particular, the judge cited the
good character of the victim (the cashier) and relied on his own finding
that Pulido shot the victim (contrary to the jury’s deadlock on that
allegation). (I Appx. Ex. A: RT 2040)
32.
The court did not explicitly and thoroughly consider developmental,
psychological, and family background factors, as required by Miller.
Multiple aspects of Pulido’s family background come squarely within
Miller’s analysis of mitigating circumstances, including abuse by his
stepfather and neglect by his mother. (See Memorandum, Part III)
33.
A Florida appellate court recently remanded for resentencing under
similar circumstances, where the sentencing court had not explicitly
considered those developmental factors in sentencing a juvenile to
LWOP rather than a parole-eligible option. The reviewing court
directed the sentencing court to “expressly consider whether any of the
numerous ‘distinctive attributes of youth’ referenced in Miller apply in
this case so as to diminish the “‘penological justifications’ for imposing
a life-without-parole sentence upon appellant.” (Daugherty v. State
(Flor. App. 2012) 96 So.3d 1076, 1080.)
34.
Because the sentencing court here also failed to explicitly consider the
factors which Miller prescribes must be at the forefront of the
sentencing inquiry, this Court should adopt a similar remand remedy.
35.
Petitioner incorporates by reference Part III of the accompanying
Memorandum for further discussion of this claim.
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Claim III:
36.
Violation of Ring v. Arizona and Miller v. Alabama –
Sentencing Court’s Reliance on Own Finding, Contrary to
Jury’s Deadlock on Personal Firearm Use.
In choosing LWOP, rather than 25-to-life, the sentencing court relied
primaily on its own finding that “this defendant shot ... the victim.” (I
Appx. Ex. A: RT 2040.) However, Pulido’s jurors deadlocked, either
8-4 or 4-8, on that same allegation of personal firearm use (§
12022.5(a)). (I Appx. Ex. H: RT 2007; see also Ex. M, p. 20391 fn. 2.)
Their multiple queries over the course of deliberations further
demonstrate their reliance on aiding/abetting robbery in convicting
Pulido of murder. (I Appx. Ex. G: CT 607, 614, 616-618, 622.)
37.
The sentencing court’s reliance on its own finding on a crucial factual
matter on which the jury deadlocked – whether Pulido was the actual
killer – violates the principles of Miller v. Alabama (2012) 132 S.Ct.
2455, and Ring v. Arizona (2002) 536 U.S. 584.
38.
LWOP is the most extreme punishment permissible for a juvenile
offender, just as the death penalty is for an adult. (Graham v. Florida
(2010) 560 U.S. __, 130 S.Ct. 2011.) Throughout the Graham and
Miller opinions, the Supreme Court “likened life without parole for
juveniles to the death penalty.” (Miller v. Alabama, 132 S.Ct. at 2463.)
In barring mandatory LWOP for juvenile homicide offenses, the Court
drew from its capital precedents “demanding individualized sentencing
when imposing the death penalty.” (Miller at 2467.)
39.
Under the Sixth Amendment, the jury must determine any aggravating
fact which is critical to elevation of punishment to the death penalty.
(Ring v. Arizona (2002) 536 U.S. 584.) In view of Graham’s and
Miller’s treatment of juvenile LWOP as equivalent to the death penalty,
-13-
Ring’s requirement of jury determination of crucial aggravating facts
must also apply to the choice of LWOP for a juvenile homicide offense.
40.
Because whether a juvenile offender personally killed or intended to
kill is crucial to determination of whether his culpability warrants lifewithout-parole, the jury must make that determination.
41.
Because the jury deadlocked 8-4 or 4-8 on the personal firearm use
allegation (§ 12022.5(a)), the jury did not return any finding that Pulido
personally killed the victim.
42.
The sentencing court violated the principles of Miller v. Alabama and
Ring v. Arizona in basing its choice of LWOP on its own finding that
Pulido was the shooter, because that finding was contrary to the jury’s
deadlock on the personal firearm use allegation.
43.
Petitioner incorporates by reference Part IV of the Memorandum for
further discussion of this claim.
Claim IV:
44.
Categorical Bar on LWOP for an Aider/Abettor Who Did
Not Kill or Intend to Kill.
Petitioner is categorically ineligible for LWOP because the jury did not
find that he killed or intended to kill, as required by Graham v. Florida
(2010) 130 S.Ct. 2011. “[W]hen compared to an adult murderer, a
juvenile offender who did not kill or intend to kill has a twice
diminished moral culpability. The age of the offender and the nature of
the crime each bear on the analysis.” (Graham at 2027; accord Miller
v. Alabama, 132 S.Ct. at 2468.)
45.
Graham’s reasoning on the diminished culpability of juvenile offenders
applies in a case such as Pulido’s where “a botched robbery turns into
a killing.” (Miller, 132 S.Ct. at 2465.) Like a juvenile convicted of a
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non-homicide offense, an aider-abettor to felony-murder who does not
personally kill has “twice diminished moral culpability.” (Id. at 2468.)
46.
Although the Miller majority did not reach the question of a possible
categorical bar, Justices Breyer and Sotomayor concluded: “Given
Graham 's reasoning, the kinds of homicide that can subject a juvenile
offender to life without parole must exclude instances where the
juvenile himself neither kills nor intends to kill the victim.” (Miller,
132 S.Ct. at 2475-2476 (Breyer, J., concur.).)
47.
Michael Pulido is categorically ineligible for LWOP because, due to the
jury’s deadlock on the personal firearm use allegation, he was
convicted as an aider/abettor, rather than as the actual killer.
48.
Nor was there any finding of specific intent to kill. Pursuant to section
190.2(d), the standard jury instructions in petitioner’s trial allowed a
special circumstance finding, so long as he was a “major participant”
in the underlying felony and acted “with reckless indifference to human
life.” (CALJIC 8.80.1; I Appx. Ex. F: CT 461-462)
49.
“[E]ven juveniles who meet the ... standard of ‘reckless disregard’ may
not be eligible for life without parole. Rather, Graham dictates a clear
rule: The only juveniles who may constitutionally be sentenced to life
without parole are those convicted of homicide offenses who ‘kill or
intend to kill.’” (Miller, 132 S.Ct. at 2475-2476 (Breyer, J., concur.).)
50.
Because there was no jury finding either that petitioner personally
killed the victim or that he acted with specific intent to kill, this Court
should find petitioner categorically ineligible for LWOP, pursuant to
Graham v. Florida and Miller v. Alabama. This Court should order
petitioner’s sentence reduced to the parole-eligible alternative of 25-to-15-
life. (§ 190.5(b).)
51.
Petitioner incorporates by reference Part V of the accompanying
Memorandum for further discussion of this claim.
Claim V:
52.
Cruel or Unusual
Constitution.
Punishment
Under California
Petitioner’s LWOP sentence for a homicide committed as a juvenile
constitutes “cruel or unusual punishment” in violation of Article I,
section 17, of the California Constitution.
53.
The California Supreme Court has outlined three inquiries for assessing
the proportionality of a punishment: “(1) the nature of the offense and
defendant's background, (2) the punishment for more serious offenses,
or (3) punishment for similar offenses in other jurisdictions.” (In re
Nunez (2009) 173 Cal.App.4th 709, 725 (summarizing In re Lynch
(1972) 8 Cal.3d 410, 425-427, and People v. Dillon (1983) 34 Cal.3d
441, 477-489).) “The petitioner need not establish all three factors –
one may be sufficient [citation] ....” (Nunez at 725 (emphasis added).)
54.
The state proportionality analysis “focuses on ... the defendant’s
individual culpability as shown by such factors as his age, prior
criminality, personal characteristics, and state of mind.” (Dillon, 34
Cal.3d at 479.) The modern scientific and social science research
discussed in Graham v. Florida and Miller v. Alabama compels a
finding of disproportionality under the California test. Immaturity,
recklessness, and an inability to foresee and evaluate consequences are
inherent in youth. But these are “transient” characteristics, and juvenile
offenders are capable of change and rehabilitation.
55.
LWOP is far more onerous than the 25-to-life term found excessive for
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a 17-year-old defendant in Dillon, 34 Cal.3d at 487. There is still
greater cause than in Dillon for finding LWOP grossly disproportionate
to 16-year-old Michael Pulido’s culpability.
56.
Petitioner’s
LWOP
punishment
for
felony-murder
is
also
disproportionate in comparison with the punishments in California “for
more serious crimes.” (Dillon, 34 Cal.3d at 487 fn. 38.) “[A] carefully
planned murder executed in cold blood after calm and mature
deliberations [fn.]” is “the most aggravated form of homicide known to
our law.” (Id. at 487.) But a “carefully planned murder” such as that
is subject to the considerably lesser punishment of 25-to-life, rather
than LWOP, because premeditation is not a separate special
circumstance. (Cf. § 190.2(a).)
57.
Petitioner’s LWOP sentence is the same as the punishment for much
more aggravated homicides (Dillon, 34 Cal.3d at 487 fn. 38), such as
those involving as torture, use of a destructive device, murder-for-hire,
multiple murders, or killings of judges, prosecutors, witnesses, or police
officers. (Cf. § 190.2(a).)
58.
Robbery also involves far less inherent violence, cruelty, or callousness
than other felony-murder predicates, such as mayhem, rape, child
molestation, kidnapping, arson, or train-wrecking, which receive the
same punishment. (Cf. § 190.2(a)(17).)
59.
Although consideration of other jurisdictions’ laws is not necessary to
a disproportionality finding (Dillon, 34 Cal.3d at 488 fn. 38; Nunez, 173
Cal.App.4th at 731 fn. 7), that factor too demonstrates that petitioner’s
sentence is excessive. LWOP for a juvenile offender is contrary to the
“international consensus,” as reflected in international human rights law
-17-
and the practices of other nations. (See Graham v. Florida, 130 S.Ct.
at 2033-2034.)
60.
In view of the modern scientific and social science research reviewed
in Graham and Miller, the choice of LWOP for petitioner’s crimes
violates Article I, section 17 of the California Constitution.
Specifically, petitioner contends that each of the defects addressed in
his preceding federal constitutional claims also renders his sentence
disproportionate under the state constitution. These include:
a.
section 190.5(b)’s designation of this extreme punishment as the
“generally mandatory,” “presumptive” sentence;
b.
the sentencing court’s failure to give adequate consideration to
the distinctive developmental and psychological characteristics
of petitioner’s youth and the mitigating circumstances of his
family background and environment;
c.
the sentencing court’s substitution of its own finding that Pulido
shot the victim, contrary to the jury’s deadlock on the personal
firearm use allegation; and
d.
the disproportionality of LWOP for any aider-abettor who did
not personally kill or intend to kill.
61.
Petitioner incorporates by reference Part VI of the accompanying
Memorandum for further discussion of this claim.
Concluding Habeas Allegations
62.
Petitioner has no adequate remedy at law for presentation of these cruel
and unusual punishment claims, because his conviction and sentence
were previously affirmed on appeal.
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63.
This Court previously rejected a cruel and unusual punishment claim,
based on then-extant case law, in its opinion on petitioner’s prior direct
appeal, No. A065850.
64.
These cruel and unusual punishment claims are properly cognizable in
this post-affirmance habeas corpus petition, because they are based on
an intervening change in the law – the U.S. Supreme Court’s recent
opinion in Miller v. Alabama (2012) 132 S.Ct. 2455. (In re Coley
(2012) 55 Cal.4th 524, 537.)
65.
Petitioner has filed this habeas corpus petition promptly after learning
of the potential applicability of Miller v. Alabama to his LWOP
sentence. Moreover, habeas procedural limitations generally do not
apply to petitions alleging “excessive punishment” in violation of the
Constitution. (In re Nunez (2009) 173 Cal.App.4th 709, 723-724; In re
Huffman (1986) 42 Cal.3d 552, 555.)
66.
This habeas corpus petition is properly brought in this Court in the first
instance because this Court previously considered challenges to the
LWOP sentence in deciding petitioner’s direct appeal, A065850. (I
Appx. Ex. I, pp. 14-15) Because the petition’s claims implicate this
Court’s prior opinion, the petition is more appropriately addressed to
this Court, rather than the superior court. (In re Kler (2010) 188
Cal.App.4th 1399, 1403-1404 & fn. 3.)
67.
Review in this Court is appropriate because the petition raises issues of
first impression concerning the constitutionality of California’s juvenile
LWOP procedure (§ 190.5(b)), in light of Miller v. Alabama. These
questions are better addressed by a reviewing court in order to give
necessary guidance to lower courts. (In re Moss (1985) 175 Cal.App.3d
-19-
913, 922.)
68.
Petitioner incorporates by reference Parts I and VIII of the
accompanying Memorandum for further discussion of the cognizability
of these claims on habeas corpus and the grounds for this Court’s
exercise of its original jurisdiction in the first instance.
69.
Petitioner incorporates by reference Parts II-V of the accompanying
Memorandum for further discussion of the merits of his constitutional
claims. Petitioner also incorporates by reference the exhibits included
in the accompanying Appendix
70.
Petitioner requests this Court to take judicial notice of the record in his
prior appeal, A065850.
Appointment of Counsel and Issuance of OSC
71.
This habeas corpus petition has been prepared without the benefit of an
order appointing counsel. Pulido’s former federal habeas counsel has
drafted this petition to ensure that Pulido receives his day in court on
the many issues posed by Miller v. Alabama for his sentence. However,
the federal habeas proceedings concluded in 2011, and this petition is
outside the scope of the previous federal appointment.
72.
Concurrently with this petition, petitioner is filing a motion for
appointment of counsel. A reviewing court must appoint counsel on a
habeas petition upon issuance of an order to show cause (OSC). (In re
Clark (1993) 5 Cal.4th 750, 780.) The Court also has discretion to
appoint counsel at an earlier stage in the interest of justice. Petitioner
respectfully ask this Court to appoint counsel at the earliest opportunity
to ensure full legal and factual development of these claims with the
assistance of counsel.
-20-
73.
This petition states a prima facie case for relief as to each of its claims.
Accordingly, petitioner respectfully asks this Court to issue an OSC
returnable before itself.
Prayer for Relief
Petitioner Michael Pulido respectfully asks this Court:
a.
To take judicial notice of the appellate record in his prior appeal,
No. A065850;
b.
To appoint counsel at the earliest opportunity for all further
proceedings in this habeas proceeding
c.
To order the Director of the California Department of
Corrections & Rehabilitation to show cause why petitioner’s
LWOP sentence should not be reversed and remanded for
resentencing;
d.
To order the filing of a Return and a Traverse, and to conduct
any further proceedings the Court considers necessary;
e.
Upon the completion of those proceedings, to grant a writ of
habeas corpus, vacating petitioner’s LWOP sentence;
f.
To order any additional relief appropriate in the interests of
justice.
DATE: October 29, 2012
Respectfully submitted,
JONATHAN SOGLIN
Executive Director
J. BRADLEY O’CONNELL
Assistant Director
Attorney for Petitioner
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VERIFICATION
I, J. Bradley O’Connell declare:
I am a member of the Bar of the State of California. I am the Assistant
Director of the First District Appellate Project. I am the attorney for petitioner
Michael Pulido. I previously represented Mr. Pulido in the U.S. Court of
Appeals for the Ninth Circuit and in the U.S. Supreme Court on federal habeas
corpus proceedings arising out of his California conviction for first-degree
murder with a robbery felony-murder special circumstance. I am filing this
new state habeas corpus petition on his behalf based on the Supreme Court’s
recent decision in Miller v. Alabama (2012) 132 S.Ct. 2455. I am making this
verification on his behalf because petitioner is incarcerated outside of this
county and because the matters alleged here are more within my knowledge
than his. The allegations of this petition are true of my own knowledge or are
based on the exhibits accompanying this petition and/or on the appellate record
in petitioner’s previous direct appeal, No. A065860.
I have read the foregoing petition and hereby verify that the facts
alleged are true of my own personal knowledge or are supported by citations
to the accompanying exhibits or to the appellate record and case file in
A065860.
I certify under penalty of perjury that the foregoing is true and correct.
Executed on Oct. 29, 2012, at San Francisco, California.
___________________________
J. Bradley O’Connell
Attorney for Petitioner
-22-
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Michael Pulido is serving a sentence of life-without-parole (LWOP) for
a special circumstance robbery felony-murder committed in 1992 when he was
16. Pulido testified that his uncle Michael Aragon (with whom he had been
staying for several weeks) shot and killed the attendant in a late night robbery
of a gas station convenience store. But Pulido admitted assisting his uncle in
the robbery. The case went to the jury on both direct-perpetrator and aidingabetting felony-murder theories. After submitting numerous queries on the
nuances of aiding-abetting, the jurors ultimately convicted Pulido of murder
but deadlocked either 8-4 or 4-8 on personal firearm use and personal
infliction of great bodily injury allegations. (I Appx. Ex. H: RT 2007)7
The trial court sentenced Pulido to life without parole under section
190.5(b), which makes LWOP “generally mandatory.” (People v. Guinn
(1994) 28 Cal.App.4th 1130, 1142.)
In imposing that “presumptive
punishment,” rather than the “discretionary” option of 25-to-life, the
sentencing court relied primarily on its own finding that Pulido was the actual
killer (notwithstanding the jurors’ deadlock on that allegation).
Almost two decades of appellate and habeas litigation followed, in both
the state and federal courts, including decisions by this Court (I Appx. Ex. I
(A065850)), the California Supreme Court (Ex. J: People v. Pulido (1997) 15
Cal.4th 714), and the U.S. Supreme Court (Ex. L: Hedgpeth v. Pulido (2008)
555 U.S. 57). The primary focus of the appeal and habeas proceedings was a
7
“The jury deadlocked 8 to 4, but it is unknown whether the jury was
leaning toward or against the allegations.” (I Appx. Ex. M, p. 20391 fn. 2 (9th
Cir. opinion after remand from Supreme Court))
-23-
“late joiner” theory of felony-murder liability, which the California Supreme
Court repudiated (Ex. J). Those instructions would have allowed felonymurder liability even for an aider-abettor who did not join in the robbery until
after the shooting. (See Appx. Ex. J, pp. 17-19 (Cal. Supreme Court opn.).)
On remand from the U.S. Supreme Court, a divided Ninth Circuit panel
ultimately found the conceded instructional error non-prejudicial. The Ninth
Circuit majority concluded that, though several jurors evidently convicted
Pulido on an aiding-abetting theory, those jurors had relied on
contemporaneous assistance in the robbery, rather than the erroneous latejoiner theory. (Appx. Ex. M: Pulido v. Chrones (9th Cir. 2010) 629 F.3d
1007.)
Although the long contest over the effect of the erroneous instructions
has come to an end, the U.S. Supreme Court’s recent landmark opinion in
Miller v. Alabama
(2012) 567 U.S. __, 132 S.Ct. 2455, requires re-
examination of the constitutionality of LWOP for a crime committed when
Pulido was only 16.
In Miller, the Supreme Court struck down laws
mandating LWOP for murders committed by juvenile offenders. Miller
represents a sea change in the constitutional analysis of juvenile LWOP. For
that reason, Pulido’s claims are properly cognizable in this post-affirmance
habeas petition (despite this Court’s rejection of a “cruel and unusual” claim
in its 1996 opinion on Pulido’s direct appeal (I Appx. Ex. I)). Pulido’s lifewithout-parole sentence offends Miller v. Alabama in multiple respects:
•
The sentencing court selected LWOP, rather than 25-to-life, under a
statute (§ 190.5(b)) that makes LWOP the “presumptive punishment,”
contrary to Miller’s instruction that this extreme punishment must be
“uncommon” and “rare.”
-24-
•
The sentencing court failed to consider the “hallmark features of
youth,” which Miller prescribes must be paramount in any such
determination, These include the developmental characteristics that
render juvenile offenders substantially less culpable than adults and the
mitigating circumstances of Pulido’s chaotic and dysfunctional family
background;
•
The sentencing court violated the principles of Miller v. Alabama and
Ring v. Arizona (2002) 536 U.S. 584, by basing its choice of LWOP
primarily on its own belief that Pulido was the actual killer, even
though the jury had deadlocked on that very allegation;
•
Because the jury convicted Pulido on an aiding-abetting theory and did
not find either that he personally killed or that he specifically intended
to kill, this Court should find this juvenile offender categorically
ineligible for LWOP. (Graham v. Florida (2010) 560 U.S. __, 130
S.Ct. 2011, 2027; Miller v. Alabama, 130 S.Ct. at 2475-2476 (Breyer,
J., concur.).)
•
Finally, the contemporary scientific and psychological research on the
characteristics of juveniles, addressed in Miller v. Alabama and
Graham v. Florida, also compels a finding that LWOP is
disproportionate to Pulido’s offense and individual culpability and thus
represents “cruel or unusual punishment” under the California
Constitution (art. I, § 17).
On all these grounds, Michael Pulido is entitled to a writ of habeas
corpus vacating his LWOP sentence and remanding the matter for
resentencing.
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I.
PETITIONER’S CRUEL-AND-UNUSUAL PUNISHMENT
CLAIMS UNDER MILLER v. ALABAMA ARE PROPERLY
COGNIZABLE ON HABEAS CORPUS.
Michael Pulido was 16 at the time of this May 1992 homicide. (I Appx.
Ex. K, p. 1.) Following his conviction of special circumstance murder, the
sentencing court imposed the presumptive term of life without parole under
section 190.5(b). Pulido contends that his LWOP sentence for an offense
committed as a juvenile violates the Eighth Amendment (as well as the parallel
provisions of the California Constitution (art. I, § 17)) under the Supreme
Court’s recent decision in Miller v. Alabama (2012) 567 U.S. __, 132 S.Ct.
2455.
Petitioner’s conviction and sentence were affirmed on direct appeal
(A065850). This Court rejected a cruel-and-unusual punishment claim based
on the Court’s understanding of then-extant case law. (I Appx. Ex. I, pp. 1415) Because Miller and other recent authorities represent a fundamental
change in the standards governing punishment for juveniles, Pulido’s claims
are properly cognizable on this post-affirmance petition for state habeas relief.
A.
Miller v. Alabama Applies on State Post-Conviction Review.
The disposition of Miller’s companion case leaves no doubt that the
substantive Eighth Amendment holding of the Miller opinion applies on state
collateral review. Miller v. Alabama (No. 10-9646) was heard and decided
concurrently with Jackson v. Hobbs (No. 10-9647). While Miller was a direct
appeal, Jackson arose from a post-affirmance state habeas petition in the
Arkansas courts. (Miller, 132 S.Ct. at 2461-2463.)
Although Miller v. Alabama and Jackson v. Hobbs came before the
Supreme Court via different routes, that distinction in their procedural postures
played no role in the Court’s review of the merits and its ultimate dispositions.
-26-
Upon determining that Alabama’s and Arkansas’s mandatory juvenile LWOP
regimens violated the Eighth Amendment, the Court reversed both judgments
and remanded to the respective state courts. (Miller, 132 S.Ct. at 2475.)
The import of the Supreme Court’s disposition of Jackson’s case could
not be more clear. The substantive rules articulated in the Miller opinion apply
equally to anyone serving an LWOP sentence for a homicide committed as a
juvenile, regardless of whether his case is still on direct review of the original
sentencing judgment (like Miller) or is being challenged through a postaffirmance state habeas proceeding (like Jackson and this case).
B.
Petitioner’s Claims Are Properly Cognizable on State
Habeas Review.
Petitioner’s cruel-and-unusual punishment claims are cognizable under
well-established California habeas principles, as well. This Court rejected an
Eighth Amendment challenge in its 1996 opinion affirming petitioner’s
conviction on direct appeal. (Appx. Ex. I, pp. 14-15) Generally, habeas
review will not lie to address a claim that was raised and rejected on direct
appeal. (In re Waltreus (1965) 62 Cal.2d 218.) But California has long
recognized a crucial exception to that general bar, where the habeas claim
relies on an intervening “change in the law.” (In re Harris (1993) 5 Cal.4th
813, 841.)
Very recently, the California Supreme Court reiterated that principle
and specifically confirmed the applicability of the “change in the law”
exception to a cruel-and-unusual punishment claim based on new case law.
(In re Coley (2012) 55 Cal.4th 524, 537.) More generally, the California
courts will not apply procedural bars to preclude habeas review of a claim that
a petitioner’s sentence represents “excessive punishment” in violation of the
-27-
Constitution. (In re Nunez (2009) 173 Cal.App.4th 709, 723-724.) “[A]
prisoner may claim on habeas corpus that he was sentenced to a term in excess
of that permitted by the Constitution, even if his claim was previously rejected
on direct appeal.” (In re Huffman (1986) 42 Cal.3d 552, 555.)
C.
This Court Should Exercise Its Original Jurisdiction to
Entertain This Habeas Petition in the First Instance.
“[T]his Court – like all courts in California – has original jurisdiction
in writ proceedings.”
(In re Kler (2010) 188 Cal.App.4th 1399, 1403
(emphasis in original), citing Cal. Const., art. VI, § 10.) “This ‘original
jurisdiction’ means that a petition for writ of habeas corpus may be filed in the
first instant in the superior court, Court of Appeal, or the California Supreme
Court. [Citation.]” (Kler at 1403.)
Although habeas proceedings ordinarily commence in superior court (In
re Hillery (1962) 202 Cal.App.2d 293), there are compelling reasons for this
Court to exercise its original jurisdiction over this petition. In its 1996 opinion
on direct review, this Court rejected a cruel-and-unusual challenge to
petitioner’s LWOP sentence. (I Appx. Ex. I, pp. 14-15) A habeas petition
which directly implicates a prior opinion in the petitioner’s case is better
addressed to the reviewing court which issued that decision. (In re Kler, 188
Cal.App.4th at 1404 & fn. 3 [exercising original jurisdiction over habeas
challenge to parole denial where “issues presented flow directly” from those
of prior opinion].) Because the immediate disposition in Miller v. Alabama
struck down only the “mandatory” LWOP statutes of Alabama and Arkansas,
the superior court might consider itself bound, under law of the case, by the
prior opinion’s disposition of the cruel-and-unusual punishment claim. At the
very least, the superior court would likely be uncertain of the extent of its
authority to revisit this Court’s disposition.
-28-
Review in this Court is appropriate on the further ground that Miller v.
Alabama poses broadly-applicable issues for California’s current juvenile
LWOP regimen that are better addressed by a reviewing court. These include
the constitutionality of section 190.5(b)’s presumption of LWOP and the
consequences of a sentencing court’s failure to consider the specific
developmental characteristics of youth highlighted in the Miller opinion.
Additionally, the Miller opinion tees up, but does not resolve, whether there
should be a categorical prohibition on LWOP for a juvenile felony-murder
accomplice, who neither kills nor intends to kill. (See Miller, 132 S.Ct. at
2475-2477 (Breyer, J., concur.).)
These broad questions on the
constitutionality of section 190.5(b) call out for resolution by a reviewing
court.
While any future resentencing proceeding will require a hearing
addressing the particular circumstances of petitioner’s family background and
his cognitive and behavioral maturity at the time of the offense, the immediate
habeas petition does not pose any such factual questions. Instead, this petition
raises purely legal questions, including the validity of section 190.5(b)’s
treatment of LWOP as the “generally mandatory” “presumptive” penalty and
of its application to juvenile aider-abettors to felony-murder. “[I]ntervention
is proper by this court in the first instance,” because the petition raises
fundamental constitutional issues, potentially applicable to juvenile LWOP
sentences throughout the state. Exercise of this Court’s original jurisdiction
“affords us the opportunity to provide guidance to the trial court.” (In re Moss
(1985) 175 Cal.App.3d 913, 922.)
Case law also attests to the propriety of exercise of this Court’s original
jurisdiction. Several recent cases deciding cruel-and-unusual claims arose
-29-
from habeas petitions initially filed in reviewing courts. For example, the
petitions in both Coley and Nunez were initially filed in the California
Supreme Court, which issued OSC’s returnable in appellate courts. (In re
Coley, 55 Cal.4th at 537; In re Nunez, 173 Cal.App.4th at 714-715.)
In re E.J. (2010) 47 Cal.4th 1258, 1264-1265 is also instructive.
Recognizing the necessity of resolution of broad constitutional challenges to
newly-enacted residency restrictions on sex offenders (“Jessica’s Law”), the
California Supreme Court exercised its original jurisdiction over a
consolidated habeas petition and issued OSC’s returnable before itself. Its
later opinion resolved the constitutional claims not requiring further factual
development and defined criteria for lower courts to assess individual asapplied challenges to the restrictions.
Much like the enactment of Jessica’s Law (the impetus for In re E.J.),
Miller v. Alabama raises broad constitutional questions affecting LWOP
sentences throughout the California. There are approximately 300 currently
inmates serving LWOP for offenses committed as juveniles. It is essential that
a reviewing court address these broadly-applicable questions at the earliest
opportunity, rather than await piecemeal consideration by superior courts in 58
counties. The exercise of this Court’s original jurisdiction will serve the
interests of judicial economy.
On all these grounds, petitioner respectfully urges this Court to exercise
its original jurisdiction to his cruel-and-unusual punishment claims, under
Miller v. Alabama, rather than to require a superior court filing.
-30-
II.
CALIFORNIA’S PRESUMPTION OF LWOP FOR ANY
SPECIAL CIRCUMSTANCE MURDER COMMITTED BY A
JUVENILE VIOLATES THE COMMAND OF MILLER v.
ALABAMA THAT SUCH SENTENCES MUST BE THE
EXCEPTION RATHER THAN THE NORM.
Petitioner’s sentence violates the Eighth Amendment because, in
choosing LWOP, in lieu of the “discretionary” alternative of 25-to-life, the
sentencing court operated under a “presumption” of LWOP. That is the
opposite of the standard required by Miller v. Alabama, which instructs that
LWOP must be the “rare” exception rather than the default choice. Indeed, as
discussed below, one published California case has already found California’s
presumption of LWOP “contrary to the spirit, if not the letter of Miller.”
(People v. Moffett (Oct. 12, 2012; A133032) __ Cal.App.4th __ [2012 WL
4841338 at *8].)
A.
Under Miller v. Alabama, the Eighth Amendment Requires
Consideration of the Diminished Culpability of a Juvenile
Offender and Bars Any Statutory Mandate of LWOP.
Miller v. Alabama (2012) 567 U.S. __, 132 S.Ct. 2455, represents the
latest entry in a line of recent Supreme Court opinions applying the lessons of
modern medical and psychological research to the constitutionality of
sentences for juvenile offenders. Roper v. Simmons (2005) 543 U.S. 551,
established a categorical bar on capital punishment for juveniles. Graham v.
Florida (2010) 560 U.S. __, 130 S.Ct. 2011, recognized a similar categorical
ban on life-without-parole for non-homicide offenses.
In Roper, we cited studies showing that “‘[o]nly a relatively
small proportion of adolescents'” who engage in illegal activity
“‘develop entrenched patterns of problem behavior.’”
[Citations.] And in Graham, we noted that “developments in
psychology and brain science continue to show fundamental
differences between juvenile and adult minds” – for example, in
-31-
“parts of the brain involved in behavior control.” [Citation; fn.]
.... [T]hose findings – of transient rashness, proclivity for risk,
and inability to assess consequences – both lessened a child's
“moral culpability” and enhanced the prospect that, as the years
go by and neurological development occurs, his “‘deficiencies
will be reformed.’” [Citations.] (Miller v. Alabama, 132 S.Ct.
at 2464-2465.)
In Miller, juvenile defendants in separate cases from Alabama and
Arkansas challenged sentences under statutes that prescribed LWOP as the
mandatory punishment for certain categories of murder. The Supreme Court
held that the mandatory character of those sentencing schemes violated the
Constitution by “preclud[ing] a sentencer from taking account of an offender’s
age and the wealth of characteristics and circumstances attendant to it.”
(Miller, 132 S.Ct. at 2467.)
Miller’s invalidation of mandatory juvenile LWOP regimens represents
a “confluence of ... two lines of precedent”: opinions, such as Graham and
Roper, imposing “categorical bans on sentencing practices based on
mismatches between the culpability of a class of offenders and the severity of
a penalty”; and capital cases “requiring that sentencing authorities consider
the characteristics of a defendant and the details of his offense before
sentencing him to death [citations].” (Miller at 2463-2464.)
To be sure, Graham's flat ban on life without parole applied
only to nonhomicide crimes, and the Court took care to
distinguish those offenses from murder, based on both moral
culpability and consequential harm. [Citation.] But none of what
it said about children – about their distinctive (and transitory)
mental traits and environmental vulnerabilities – is crimespecific. Those features are evident in the same way, and to the
same degree, when (as in both cases here) a botched robbery
turns into a killing. So Graham's reasoning implicates any lifewithout-parole sentence imposed on a juvenile, even as its
-32-
categorical bar relates only to nonhomicide offenses. (Miller,
132 S.Ct. at 2465-2466 (emphasis added).)
Just as Graham had “viewed this ultimate penalty for juveniles as akin
to the death penalty” in barring LWOP for non-homicide juvenile offenses,
Miller looked to the longstanding rule “demanding individualized sentencing
when imposing the death penalty.” (Miller at 2466-2467.) Just as capital
punishment must be “reserved only for the most culpable defendants
committing the most serious offenses [citations]” (id. at 2467), “appropriate
occasions for sentencing juveniles to this harshest possible penalty [LWOP]
will be uncommon” and should be reserved for “‘the rare juvenile offender
whose crime reflects irreparable corruption’ [citing Graham]” (id. at 2469).
Mandatory LWOP schemes “prevent those meting out punishment from
considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for
change’ [citation] and run[] afoul of our cases’ requirement of individualized
sentencing for defendants facing the most serious penalties.” (Miller, 132
S.Ct. at 2460.) The same is true of California’s “generally mandatory”
statutory scheme, which makes LWOP the “presumptive punishment” and
affords the sentencing court only “circumscribed discretion” to depart from
that presumption and impose a life term with parole eligibility. (People v.
Guinn (1994) 28 Cal.App.4th 1130, 1141-1143.)
Because California’s
“presumptive” scheme “poses too great a risk of disproportionate punishment”
(Miller at 2469), petitioner’s sentence determined under that flawed
mechanism offends the Eighth Amendment.
-33-
B.
California’s “Generally Mandatory” Scheme, Designating
LWOP as the “Presumptive Punishment,” Contravenes
Miller’s Rule that LWOP Must Be “Uncommon” and
Reserved for the “Rare Juvenile Offender” Displaying
“Irreparable Corruption.”
California allows a life-without-parole sentence for juveniles convicted
of murder with special circumstances, where the defendant was 16 or 17 years
old at the time of the offense. (§ 190.5(b).) At first glance, California’s statute
appears to differ from the mandatory laws of Alabama and Arkansas. Section
190.5(b) seemingly affords “discretion” for a sentencing court to exercise
leniency and sentence a juvenile to 25 years to life, in lieu of LWOP.
However, the statute does not put the two options on an equal footing, but
firmly designates LWOP as the default choice:
The penalty for a defendant found guilty of murder in the first
degree, in any case in which one or more special circumstances
enumerated in Section 190.2 or 190.25 has been found to be true
under Section 190.4, 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(b) (emphasis added).)
The court “shall” impose LWOP, unless it affirmatively exercises
discretion to reduce that punishment to 25-to-life. Through that structure,
section 190.5(b) establishes a “presumption” in favor of LWOP and leaves the
sentencing court with only “circumscribed discretion” to depart from that
mandate. (People v. Guinn, 28 Cal.App.4th at 1141-1143.) “16 or 17 year-olds
who commit special circumstance murder must be sentenced to LWOP, unless
the court, in its discretion, finds good reason to choose the less severe sentence
of 25 years to life.” (Guinn at 1141 (emphasis in original).) LWOP remains
the “generally mandatory” punishment:
-34-
The fact that a court might grant leniency in some cases, in
recognition that some youthful special-circumstance murderers
might warrant more lenient treatment, does not detract from the
generally mandatory imposition of LWOP as the punishment for
a youthful special-circumstance murderer. In the first instance,
therefore, LWOP is the presumptive punishment for 16- or 17year-old special-circumstance murderers, and the court's
discretion is concomitantly circumscribed to that extent. (Guinn
at 1142 (emphasis added).)
As one recent (but pre-Miller) opinion puts it: “[S]ection 190.5,
subdivision (b), provides for a presumptive term of LWOP when the defendant
was 16 or 17 years old at the time of the offense but allows the court to impose
a lesser sentence of 25 years to life in its discretion. [Citation.]” (People v.
Blackwell (2011) 202 Cal.App.4th 144, 154-155 (emphasis added); accord,
e.g., People v. Murray (2012) 203 Cal.App.4th 277, 281; People v. Ybarra
(2008) 166 Cal.App.4th 1069, 1089.)
That is the opposite of the calculus demanded by Miller v. Alabama.
Although the Supreme Court did not reach the petitioners’ “alternative
argument that the Eighth Amendment requires a categorical bar on life without
parole for juveniles,” it left no doubt that this “harshest possible penalty” must
be “rare” (Miller, 132 S.Ct. at 2469), rather than the “presumptive
punishment,” as in California:
[G]iven all we have said ... about children's diminished
culpability and heightened capacity for change, we think
appropriate occasions for sentencing juveniles to this harshest
possible penalty will be uncommon. That is especially so
because of the great difficulty ... of distinguishing at this early
age between “the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption.”
[Citations.] Although we do not foreclose a sentencer's ability
to make that judgment in homicide cases, we require it to take
-35-
into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison. [Fn.] (Miller, 132 S.Ct. at 2469 (emphasis
added).)
It is impossible to reconcile section 190.5(b)’s presumption of LWOP
with the directions of Miller v. Alabama that “this harshest possible penalty”
must be “rare” and “uncommon,” even for juveniles convicted of murder.
Even assuming that LWOP is ever permissible for a juvenile convicted
as a felony-murder aider/abettor, Miller’s constitutional analysis demands that
the presumptive sentence must be one that affords parole consideration within
the juvenile offender’s lifetime. In light of those admonitions, it is doubtful
that even a regimen that put the LWOP and life-with-parole options on an even
footing with one another would pass muster under the Eighth Amendment.
But California’s regimen is far worse. As the case law bluntly acknowledges,
section 190.5(b) does not cast 25-to-life and LWOP as “two equal penalty
choices,” but “evidences a preference for the LWOP penalty.” (Guinn, 28
Cal.App.4th at 1145.) The statute places a thumb on the scales, weighting the
choice in favor of the “generally mandatory” punishment of LWOP and
affording the sentencer only narrowly “circumscribed” discretion to depart
from that presumption. (Id. at 1142.)
Miller’s analysis limiting this extreme and “uncommon” option to “‘the
rare juvenile offender whose crime reflects irreparable corruption’” (Miller,
132 S.Ct. at 2469) demands a parole-eligible sentence as the norm. But
California inverts that constitutionally-required presumption by instead making
LWOP the “presumptive punishment” and rendering the choice of 25-to-life
the rare or uncommon choice. (Guinn, 28 Cal.App.4th at 1142.) Rather than
require an individualized showing of aggravating circumstances to warrant
-36-
elevating the term to LWOP, section 190.5(b) has the opposite structure. It is
the mitigated option that requires some showing of extraordinary
circumstances – much as a sentencing court has only “limited” discretion to
exercise leniency and spare a defendant from a “third strike” sentence. (Cf.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; People
v. Williams (1998) 17 Cal.4th 148, 158-160.)
Division Five of this Court has found section 190.5(b)’s presumption
of LWOP contrary to the teachings of Miller v. Alabama on exactly these
grounds:
A presumption in favor of LWOP ... is contrary to the spirit, if
not the letter, of Miller, which cautions that LWOP sentences
should be “uncommon” given the “great difficulty ... of
distinguishing at this early age between ‘the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable
corruption.’” [Citation.] Though Miller did not categorically bar
LWOP sentences in juvenile homicide cases, it recognizes that
juveniles are different from adults in ways that “counsel against
irrevocably sentencing them to a lifetime in prison.” [Citation.]
Treating LWOP as the default sentence takes the premise in
Miller that such sentences should be rarities and turns that
premise on its head, instead placing the burden on a youthful
defendant to affirmatively demonstrate that he or she deserves
an opportunity for parole. (People v. Moffett (Oct. 12, 2012;
A133032) __ Cal.App.4th __ [2012 WL 4841338 at *8]
(emphasis added)).)
California’s “generally mandatory” prescription of LWOP is no more
constitutionally tolerable than the mandatory LWOP statutes struck down in
Miller. In order to preserve the statute’s constitutionality, this Court must
-37-
construe 25-to-life, rather than LWOP, as the presumptive choice under
section 190.5(b).8
C.
Petitioner’s Sentence Cannot Stand Because the Sentencing
Court Operated Under an Unconstitutional Presumption of
LWOP.
Petitioner’s LWOP sentence cannot stand because the trial court
operated under an unconstitutional statutory presumption, which did not allow
the court to give sufficient weight to his “diminished culpability and
heightened capacity for change” as a youthful offender. (Miller, 132 S.Ct. at
2469.) In its recent Moffett opinion, Division Five “conclude[d] remand is
necessary so the court can consider the appropriate sentence on the murder
count without reference to a presumption in favor of LWOP.” (Moffett , supra,
2012 WL 4841338 at *8.) The same remedy is in order here.
The sentencing court is presumed to have followed the statutory
standard, rendering LWOP the “generally mandatory” or “presumptive
punishment.” (See Evid. Code § 664; People v. Mosley (1997) 53 Cal.App.4th
489, 496 [“a trial court is presumed to have been aware of and followed the
applicable law”].) The court presumably conducted sentencing with the
understanding that “section 190.5 does not involve two equal penalty choices,
neither of which is preferred.” (Guinn, 28 Cal.App.4th at 1145.) The
8
A Second District panel recently upheld an LWOP sentence for a
juvenile convicted of the rape and murder of his aunt. (People v. Gutierrez
(2012) 209 Cal.App.4th 646.) However, the Gutierrez opinion did not
consider or decide any issue concerning the validity of section 190.5(b)’s
presumption of LWOP. “‘“It is axiomatic that cases are not authority for
propositions not considered.”’ [Citations.]” (Silverbrand v. County of Los
Angeles (2009) 46 Cal.4th 106, 127.) Moffett is the only published opinion on
the constitutionality of that presumption.
-38-
sentencing court
necessarily viewed its discretion to depart from the
“presumptive” term of LWOP as “circumscribed.” (Id. at 1142, 1143.)
A sentence cannot stand where the court operated under a
fundamentally flawed understanding of the scope of its discretion to select a
less onerous disposition. (E.g., People v. Belmontes (1983) 34 Cal.3d 335, 348
fn. 8; People v. Hendrix (1997) 16 Cal.4th 508, 515; People v. Jones (2001)
25 Cal.4th 98, 111; People v. Meloney (2003) 30 Cal.4th 1145, 1165.) Though
the stakes here are much higher, the situation is similar to the many cases
which have remanded where “the court sentenced ... under the mistaken
impression [the defendant] was presumptively ineligible for probation.”
(People v. Alvarez (2002) 95 Cal.App.4th 403, 409 -410; accord, e.g., People
v. Bruce G. (2002) 97 Cal.App.4th 1233, 1248; People v. Manriquez (1991)
235 Cal.App.3d 1614, 1620; People v. Read (1990) 221 Cal.App.3d 685, 690691.)
Because “[a] court cannot exercise ... ‘informed discretion’ where it is
unaware of the scope of its discretionary powers [citation]” (Bruce G., 97
Cal.App.4th at 1247-1248), this Court should remand for resentencing. On
remand, the court should conduct a new sentencing hearing, in accordance
with Miller v. Alabama, without reference to the unconstitutional presumption
of LWOP, just as Division Five recently ordered in People v. Moffett, 2012
WL 4841338 at *8-*10. On remand, the sentencing court may re-impose
LWOP only if it finds this to be an extraordinary case involving the “rare
juvenile offender” who is irredeemably corrupt. (Miller, 132 S.Ct. at 2469.)
-39-
III.
PULIDO’S SENTENCE CANNOT STAND BECAUSE THE
COURT DID NOT ADEQUATELY CONSIDER THE
DISTINCTIVE MITIGATING CIRCUMSTANCES OF HIS
YOUTH AND BACKGROUND, AS REQUIRED BY MILLER.
Even apart from section 190.5(b)’s unconstitutional presumption of
LWOP, Pulido’s sentence cannot stand because the sentencing court failed to
consider the distinctive mitigating factors of youth, which the Supreme Court
has prescribed must be the paramount factors in any such decision.
The court imposed LWOP, rather than the discretionary option of 25-tolife, based primarily on the circumstances of the murder – specifically, the
good character of the victim and the judge’s own belief (contrary to that of the
deadlocked jury) that Pulido personally shot the attendant:
Number one, the victim ... was ... a hardworking young man
from Mexico, who was holding down several jobs, going to
school. ...[H]is life was ended by a shot from a gun fired by the
defendant in the middle of the shift at this gas station where he
worked one of his several jobs.
He obviously hoped for more than life gave him but that’s the
first thing that impresses me about this case from the evidence.
Second thing that impresses me about it from the evidence is,
there is no question in my mind, whatsoever, that this defendant
shot – shot the victim. He had the gun before. He had the gun
afterwards. And since then he has distinguished himself in
custody by formulating plans for an escape, apparently and
evidencing no remorse whatsoever.
I can see no reason to, in effect, do anything to thrust this man
back into society. (I Appx. Ex. A: RT 2040-2041.)
-40-
There is no denying the tragedy of Ramon Flores’ death during this gas
station robbery.9 However, conspicuously absent from the trial court’s reasons
was any consideration of the distinctive developmental characteristics and
other mitigating features of youth, which the Supreme Court has instructed
must be paramount in the momentous decision to condemn a juvenile offender
to a lifetime in prison, with no possibility of parole consideration down the
line.
Miller v. Alabama did more than strike down “mandatory” LWOP
regimens. “[W]e require [a sentencer] to take into account how children are
different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison. [Fn.]” (Miller, 132 S.Ct.at 2469 (emphasis
added).) The decision “mandates only that a sentencer follow a certain process
– considering an offender’s youth and attendant characteristics – before
imposing a certain penalty.” (Id. at 2471 (emphasis added).)
Before forever foreclosing a juvenile offender’s ability to seek future
parole, a sentencing court must take account of the “central considerations”
that dramatically reduce a youthful offender’s culpability. (Miller at 2466.)
“[T]hat stage of life ... is a time of immaturity, irresponsibility,
‘impetuousness[,] and recklessness.’ [Citation.]” It is a “‘condition of life
when a person may be most suspectible to influence and to psychological
damage.’ [Citation.]
But these “‘signature qualities’ are all ‘transient’
[citation]” (id. at 2467), such that a juvenile offender has much greater
“capacity for change” and prospects for rehabilitation than an adult convicted
9
The sentencing court’s substitution of its own finding that Pulido was
the killer for the jury’s deadlock on the personal firearm use allegation is
another matter, which we will address separately in Part IV, below.
-41-
of a similar offense (id. at 2465).
California law allows a court to look to the
aggravating and mitigating factors applicable to adult determinate sentencing
(Rules 4.421, 4.423) in choosing between the “presumptive” punishment of
LWOP and the exercise of its “circumscribed discretion” to impose 25-to-life.
(People v. Guinn, 28 Cal.App.4th at 1149.) While the traditional adult
sentencing criteria are still relevant, those cannot supplant the specific youthrelated developmental and environmental factors deemed paramount in Miller.
“Graham and Roper and our individualized sentencing cases alike teach that
imposing the State’s harshest penalties, a sentencer misses too much if he
treats every adult as a child.” (Miller, 132 S.Ct. at 2468 (emphasis added).)
As it is, the adult sentencing rules do not even explicitly list youth as a
mitigating factor (Rule 4.423(b)), much less focus the sentencing inquiry on
the “‘mitigating features of youth’” in determining whether the minor is that
“‘rare juvenile offender whose crime reflects irreparable corruption,’” as
required by Miller. (Miller at 2468, 2469). “[I]mposition of a State’s most
severe penalties on juvenile offenders cannot proceed as though they were not
children.” (Id. at 2466.)
California’s “generally mandatory” sentencing scheme (Guinn, 28
Cal.App.4th at 1142) suffers from the same vices the Supreme Court
condemned in the mandatory statutes of Alabama and Arkansas. It does not
require the sentencer to give paramount weight to the specific “hallmark
features” of youth, delineated in Miller, “among them, immaturity,
impetuosity, and failure to appreciate risks and consequences.” (Miller, 132
S.Ct. at 2468.) No California rule requires the sentencing court to “tak[e] into
account the family and home environment that surrounds [the juvenile] – and
from which he usually cannot extricate himself – no matter how brutal or
-42-
dysfunctional.” (Ibid.) Nor does section 190.5(b) adequately account for the
role of “familial or peer pressures.” (Ibid.)
Because the section 190.5(b) determination is not anchored in the
developmental characteristics delineated in Roper, Graham, and Miller –
including the “transience” of youthful recklessness and the “capacity for
change” (Miller, 132 S.Ct.at 2467, 2468 & fn. 7) – the imposition of this
generally mandatory punishment did not entail adequate consideration of “the
possibility of rehabilitation” (id. at 2468).
Finally, the very limited discretion to exercise leniency under the statute
similarly ignores
potential
systemic injustices flowing from the
“incompetencies associated with youth,” which place a juvenile “‘at a
significant disadvantage in the criminal proceedings’” – “for example, his
inability to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys. [Citation.]” (Miller,
at 2468.)
A Florida reviewing court recently remanded a juvenile LWOP for
reconsideration under similar circumstances. (Daugherty v. State (Flor. App.
2012) 96 So.3d 1076.) Like California, Florida law did not prescribe “a
statutorily mandated sentence” of LWOP, but gave the trial judge “discretion
to impose a different punishment. [Fn.]” (Id. at 1079.) But the Florida court
recognized that Miller requires the sentencer in a discretionary jurisdiction to
focus explicitly on the developmental factors diminishing a juvenile offender’s
culpability. Although the sentencing court there had taken note of “appellant's
remorse and his ‘horrible and unfortunate upbringing,’” the judge’s comments
had focused principally on the “horrific” character of his offenses. The
reviewing court found the consideration of the defendant’s youth insufficient
-43-
to satisfy Miller: “[B]ased on Miller, we remand this case to the trial court to
conduct further sentencing proceedings and expressly consider whether any of
the numerous ‘distinctive attributes of youth’ referenced in Miller apply in this
case so as to diminish the ‘penological justifications’ for imposing a lifewithout-parole sentence upon appellant.” (Id. at 1080 (emphasis added).)
There is still greater cause for a similar remand here, because the court
appears to have given no consideration to the factors required by Miller.
Pulido’s 1994 sentencing hearing predated much of the intervening scientific
and psychological literature discussed in Graham and Miller. It comes as no
surprise that the sentencing documents here were not prepared with the benefit
of that research. Even on the present record, it is evident that several aspects
of Pulido’s “family and home environment“ (Miller, 132 S.Ct. at 2468) should
inform any meaningful assessment of whether he is truly that “‘rare juvenile
offender whose crime reflects irreparable corruption’” (id. at 2469):
•
“Michael’s natural parents divorced when he was approximately six
years old; at which time, he and his siblings lived with their maternal
grandparents who later adopted them. [¶] Reportedly, Michael’s mother
has used drugs in the past and it was suspected that Michael was
physically abused by his mother and stepfather. Both parents have had
very little contact with Michael.” (I Appx. Ex. B: CYA Amenability
Study, CT 677 (emphasis added))
•
“Michael has expressed regret that his father was not available to him
while he was growing up, and he idolizes his mother (which is often the
case in these situations). Unfortunately, neither of his parents have
reciprocated, and it is clear that they have not met Michael’s physical
and emotional needs.” (Ex. B, CT 680 (emphasis added); see also Ex.
E: Prob. Rept., p. 4 (“he did not see his father for some eight years
following the divorce”).)
•
“It is quite unfortunate that Michael Pulido’s family has been so
chaotic and dysfunctional. Although Michael’s grandparents have
-44-
attempted to offer a stabilizing influence, it would appear as though
Michael has simply been too damaged in younger life for his
[grand]parents[’] good efforts to have much effect.” (Ex. B: CT 680
(emphasis added).)
•
“Having a ‘special ed’ background since elementary and middle school
years, Michael has had little success in classroom settings.” (Ex. B, CT
678.) “He claims to have been on medication for hyperactivity around
age 12, and that he has been in therapy for undisclosed reasons.” (Id.,
CT 682; see also Ex. E, p. 5.)
•
Like Michael, his older brother Salvador “had serious contact with law
enforcement. Salvador is presently [at the time of sentencing] serving
time in state prison at Pelican Bay.” (Ex. B: CT 677.)
Michael Pulido’s “chaotic and dysfunctional” family background
(Appx. Ex. B: CT 680) is highly material to whether he should receive “this
harshest possible penalty.” (Miller, 132 S.Ct. at 2469.) These are exactly the
kinds of circumstances the Supreme Court cited as mitigating in Miller: Much
like Pulido, “Miller’s stepfather physically abused him; his alcoholic and drugaddicted mother neglected him .....”
Similarly, in the companion case,
“Jackson’s family background and immersion in violence” mitigated his
culpability. “Both his mother and his grandmother had previously shot other
individuals.” (Ibid.)
Pulido too suffered from a history of abuse and neglect, and other
family members had been involved in crime – including his uncle Michael
Aragon, with whom he had been staying for the several weeks preceding the
homicide. “At the time of the shooting, Aragon was on probation for 1989
convictions for burglary, possession of cocaine, and contributing to the
delinquency of a minor.” (I Appx. Ex. M, p. 20390.)
-45-
Indeed, Aragon had previously been implicated in a crime similar to this
one. There was evidence that two years earlier, “Aragon robbed a convenience
store in Logan, New Mexico and took a cash register by tearing the wires out
of the wall, the same modus operandi used at the convenience store in 1992.”
(I Appx. Ex. K, p.53 (dist. court decision (citing RT 72).) Aragon’s own sister
described him as “‘a liar, ... a thief, ... a manipulator, and ... a user.” (Id. p. 53
(quoting RT 881).)
In the view of a substantial portion of the jurors (either 4 or 8), Pulido’s
uncle Michael Aragon was not just a bad influence but the principal actor in
the current robbery/murder, as reflected in their deadlock on personal firearm
use. Miller requires consideration of “the way familial and peer pressures may
have affected” the minor’s participation in the crime. (Miller, 132 S.Ct. at
2468.) It is hard to imagine any more pernicious “familial pressure” than the
involvement of the same adult relative who had recently been acting as the
minor’s de facto guardian.
There is no question that Michael Pulido’s early years were spent in a
“brutal and dysfunctional” “family and home environment,” marked by
physical abuse and drug use. (Miller, 132 S.Ct. at 2468; see I Appx. Ex. B: CT
677.) Those circumstances left Pulido “damaged” and longing for a more
close and meaningful connection to his parents. (Id., CT 680.) Moreover, in
the view of a substantial portion of the jury, another adult relative, Pulido’s
uncle, was the principal perpetrator in the current crime.
None of this excuses Pulido’s participation in the crime (whether as
direct perpetrator or aider/abettor), nor does it change the fact that the “hard
working young man” at the gas station convenience store is dead. (I Appx. Ex.
A: RT 2040.) “But once again, a sentencer needed to examine all these
-46-
circumstances before concluding that life without possibility of parole was the
appropriate penalty.” (Miller, 132 S.Ct. at 2469.)
The sentencing judge did not do that. He did not touch upon any of
developmental characteristics highlighted in the Miller opinion – which were
not widely understood at the time of this 1994 sentencing. He appears to have
given even less consideration to Pulido’s abusive and dysfunctional childhood
than his Florida counterpart in Daugherty v. State, 96 So.3d at 1079-1080.
Instead, the court emphasized the good character of the victim – “a
hardworking young man from Mexico, who was holding down several jobs,
going to school.” (I Appx. Ex. A: RT 2040.) However, as Division Five
observed of the sentencing court’s “great reliance on the trauma caused to the
robbery victims” in Moffett, “the psychological reactions of the robbery
victims do not say much about appellant's maturity, prospects for reform, or
mental state with respect to the homicide itself – the factors paramount under
Miller.” (People v. Moffett, 2012 WL 4841338 at *9.)
Because the sentencing court, lacking the benefit of Miller v. Alabama,
failed to place these developmental and family background factors at the
forefront of its decision, the Constitution demands that this Court vacate
petitioner’s sentence of LWOP and remand for resentencing.
-47-
IV.
THE SENTENCING COURT VIOLATED THE PRINCIPLES OF
MILLER v. ALABAMA AND RING v. ARIZONA IN ELEVATING
THE PUNISHMENT TO LWOP BASED ON ITS OWN FINDING
THAT PULIDO SHOT THE VICTIM, WHERE THE JURY
DEADLOCKED ON THAT ALLEGATION.
As discussed in Part III, the sentencing court’s failure to consider the
“hallmark features of youth” violated Miller v. Alabama. On that ground alone,
Pulido’s punishment cannot stand and the matter must be remanded for
resentencing.
But the court violated the principles of Miller in the findings it did
make, as well as those it neglected, for it based its choice of LWOP primarily
on its own finding that Pulido was the gunman – contrary to the jury’s
deadlock on that very allegation.
As defense counsel argued to the sentencing court, “the jurors were
hung eight/four on the issues of personal use of a weapon and personal
infliction of great bodily injury.” “So Michael Pulido has been convicted as
an aider and abettor. .... [I]f all twelve believed he’s the shooter beyond a
reasonable doubt, they would have found him guilty of personal use of a
weapon and personal infliction of great bodily injury.” (I Appx. Ex. A: RT
2037-2038; see also Ex. C: CT 725-726 (Defense Sentencing Memorandum).)
But the sentencing court brushed aside the jurors’ doubts on Pulido’s
identity as the shooter. The judge relied primarily on his own belief that the
victim’s “life was ended by a shot from a gun fired by the defendant.” “There
is no question in my mind, whatsoever, that this defendant ... shot the victim.”
(Ex. A: RT 2040.)
If this had been an ordinary sentencing decision, such as the choice of
an aggravated determinate sentence term or the denial of a Romero motion to
-48-
dismiss a “strike,”10 the sentencing court’s reliance on a factual finding
inconsistent with the jury’s verdicts would not pose a constitutional problem.
(See People v. Towne (2008) 44 Cal.4th 63, 83-88; In re Coley (2012) 55
Cal.4th 524, 557-559.) But the central teaching of Graham v. Florida and
Miller v. Alabama is that imposition of life-without-parole on a juvenile
offender is not like other sentence choices. Instead, it is analogous to capital
punishment for an adult and is subject to similar limitations. Just as the
Constitution does not permit a judge to sentence an adult defendant to death
penalty based on a factual finding inconsistent with the jury’s verdict, neither
may a sentencing court substitute his own view of the facts for the jury’s in
imposing LWOP on a juvenile offender.
Because juveniles are categorically ineligible for the death penalty
under any circumstances (Roper v. Simmons (2005) 543 U.S. 551), a life term
without possibility of parole is “the ultimate penalty for juveniles” (Miller, 132
S.Ct. at 2466). In Graham and again in Miller, the Supreme Court “likened
life without parole for juveniles to the death penalty itself,” recognizing it as
an “irrevocable” punishment unlike any other. (Miller at 2463.)
Life-without-parole terms ... “share some characteristics with
death sentences that are shared by no other sentences.”
Imprisoning an offender until he dies alters the remainder of his
life “by a forfeiture that is irrevocable.” And this lengthiest
possible incarceration is an “especially harsh punishment for a
juvenile,” because he will almost inevitably serve “more years
and a greater percentage of his life in prison than an adult
offender.” The penalty when imposed on a teenager, as
compared with an older person, is therefore “the same ... in
name only. (Miller, 132 S.Ct. at 2466 [citing Graham
throughout].)
10
Cf. People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
-49-
Because the Supreme Court “ viewed this ultimate penalty for juveniles
as akin to the death penalty, we treated it similarly to that most severe
punishment,” in articulating both substantive and procedural limitations on its
imposition. (Miller, 132 S.Ct. at 2466.) In Graham, the Court categorically
barred LWOP for non-homicide offenses by a juvenile. (Graham, 130 S.Ct.
at 2022) “[T]he bar we adopted mirrored a proscription first established in the
death penalty context – that the punishment cannot be imposed for any
nonhomicide crimes against individuals. [Citations.]” (Miller at 2467.)
In Miller, the Court drew upon another rule initially developed in the
capital context in barring mandatory LWOP for juvenile homicide offenses.
“That correspondence – Graham's ‘[t]reat[ment] [of] juvenile life sentences
as analogous to capital punishment,’ [citation]—makes relevant here a second
line of our precedents, demanding individualized sentencing when imposing
the death penalty.” (Miller at 2467.)
Miller found that mandatory juvenile LWOP regimens suffered from
the same defects as the mandatory capital punishment statutes struck down in
prior opinions. “Under these schemes, every juvenile will receive the same
sentence as every other – the 17-year-old and the 14-year-old, the shooter and
the accomplice, the child from a stable household and the child from a chaotic
and abusive one.” (Miller, 132 S.Ct. at 2467-2468 (emphasis added).) Just as
the Constitution does not permit the most extreme adult punishment, death,
without case-by-case consideration of such aggravating and mitigating facts,
“Graham indicates that a similar rule should apply when a juvenile confronts
a sentence of life (and death) in prison.” (Miller at 2468.)
For decades, the Supreme Court has admonished that “death is
different.” (E.g., Ford v. Wainwright (1986) 477 U.S. 399, 411-412; Gregg
-50-
v. Georgia (1976) 428 U.S. 153, 188; Woodson v. North Carolina (1976) 428
U.S. 280, 303-304.) The unambiguous message of Miller and Graham is: So
is juvenile LWOP. “So if ..., ‘death is different,’ children are different too.”
(Miller, 132 S.Ct. at 2470.)
The sentencing court’s reasons for condemning Michael Pulido to
LWOP, rather than 25-to-life, implicate another aspect of Graham’s and
Miller’s equivalence between juvenile LWOP and adult capital punishment.
The court based that punishment on its own finding on the most crucial
culpability question of all – whether Pulido was “the shooter” or “the
accomplice” (Miller, 132 S.Ct. at 2467) – even though the jurors had
deadlocked on that very question. Just as a sentencing judge in a capital case
could not substitute his own finding of an aggravating fact for the jurors’
rejection of that allegation, neither may he do so on the equivalent choice of
life-without-parole for a juvenile offender.
To comply with the constitutional mandate of “individualized
sentencing,” states have adopted rigorous mechanisms for findings of
aggravating and mitigating facts in capital cases. (E.g., §§ 190.3, 190.4.)
“States have constructed elaborate sentencing procedures in death cases ...
because of constraints we have said the Eighth Amendment places on capital
sentencing. [Citations.]” (Ring v. Arizona (2002) 536 U.S. 584, 606.) In
Ring, the Court added an important corollary to its capital jurisprudence: The
jury must determine any aggravating fact which is critical to elevation of
the punishment from life imprisonment to the death penalty. (Ring at
609.)
Although it had previously allowed judicial factfinding on such deathqualifying questions as whether the defendant personally killed or intended to
-51-
kill and had upheld Arizona’s system of judicial determination of aggravating
facts (Walton v. Arizona (1990) 497 U.S. 639), the Ring Court found it
impossible to reconcile that earlier view with the dictates of Apprendi v. New
Jersey (2000) 530 U.S. 466. That landmark opinion recognized that the Sixth
Amendment required “jury determination ... beyond a reasonable doubt” of the
factual basis for a hate-crime enhancement used to add two years to the
otherwise-available maximum term. (Apprendi at 477.)
In Ring (much as in this case), the sentencing judge had found the
crucial fact that Ring was the actual killer, though there was no jury verdict on
that question, as well as two aggravating facts – commission of the crime for
“pecuniary” gain and in “an especially heinous, cruel or depraved manner.”
(Ring, 536 U.S. at 594-595.) In extending Apprendi to the aggravating
findings used to impose the death penalty, the Supreme Court admonished:
“The right to trial by jury guaranteed by the Sixth Amendment would be
senselessly diminished if it encompassed the factfinding necessary to increase
a defendant’s sentence by two years, but not the factfinding necessary to put
him to death.” (Ring at 609.)
In view of Graham’s and Miller’s equivalence of adult capital
punishment and juvenile LWOP, the same is necessarily true of an offenserelated aggravating fact used to elevate a minor’s offense from a paroleeligible term to a lifetime in prison. Indeed, the incongruity here is even more
stark. In Ring, the jury was evidently never asked to determine whether Ring
was the actual shooter. (Ring, 536 U.S. at 591, 594.) Here the jurors did
specifically consider that same crucial question, but deadlocked on it. (I Appx.
Ex. H: RT 2007.) At the time of this homicide (1992), the failed firearm use
allegation could have added up to 5 additional years to Pulido’s murder
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sentence. (Former § 12022.5(a) (Stats. 1990, c. 41, § 3).) Yet, despite the
jury’s failure to return such an enhancement finding, the sentencing judge
relied on that same allegation for the much more consequential function of
“irrevocably sentencing [him] to a lifetime in prison,” without any “prospect
of release” – “the harshest possible penalty for juveniles.” (Miller, 132 S.Ct.
at 2469, 2475.)
Pulido does not suggest that Miller and Ring require wholesale
importation of capital “penalty phase” trial procedures into the punishment
determination for a juvenile convicted of special circumstance murder. Even
in the capital context, Ring does not require that the jurors determine
mitigating facts or that they make they the ultimate normative judgment
between life and death. “Ring’s claim” – and thus the Court’s holding – “is
tightly delineated. .... [T]he Sixth Amendment requires jury findings on the
aggravating circumstances” used to elevate the punishment to the death
penalty. (Ring, 536 U.S. at 597 fn. 4.)
Pulido’s claim is even more “tightly delineated,” in two respects. First,
it concerns the specific aggravating circumstance which Graham and Miller
treat as most crucial to determination of the culpability level of a juvenile
offender. “[A] juvenile offender who did not kill or intend to kill has a twice
diminished moral culpability.” (Graham, 130 S.Ct. at 2027; Miller, 132 S.Ct.
at 2468.)
Second, the sentencing court’s arrogation of this uniquely essential
factual finding to itself is all the more offensive to the principles of Apprendi,
Ring, and Miller, because the prosecution tried and failed to obtain a jury
verdict on this very allegation.
Regardless of the scope of a judge’s
factfinding authority as to other possible aggravating circumstances, respect
-53-
for the jury right plainly should bar a sentencing court from imposing this most
severe punishment based on a finding inconsistent with the jury’s verdicts –
such as on an allegation on which the jurors either acquitted or deadlocked.
Pulido does not question the authority of a judge to rely on findings
inconsistent with the jury verdicts in ordinary discretionary sentencing
decisions, such as choice of a determinate term or striking an enhancement.
(Cf. People v. Towne, 44 Cal.4th at 83-88; In re Coley, 55 Cal.4th at 557-559.)
But, as Graham and Miller make abundantly clear, life-without-parole for a
juvenile offender is unlike any of those ordinary sentencing judgments. Like
death for adult defendant, it is an “irrevocable” punishment foreclosing any
hope of release and requires commensurate substantive limitations and
procedural protections.
Because at least 4 and possibly 8 jurors found Pulido was not the actual
killer, the sentencing judge’s reliance on his own finding on that crucial
question offended both the Sixth and Eighth Amendments. This Court should
vacate the judgment of LWOP and direct the trial court to resentence Pulido,
giving due respect to the jurors’ verdict.
-54-
V.
THE EIGHTH AMENDMENT CATEGORICALLY BARS LWOP
FOR A JUVENILE CONVICTED AS AN AIDER/ABETTOR TO
FELONY-MURDER, WHO DID NOT PERSONALLY KILL OR
INTEND TO KILL.
For the reasons addressed in Part II, California’s presumption of LWOP
for a juvenile convicted of special circumstance murder turns the Eighth
Amendment on its head by making that extreme punishment “generally
mandatory,” rather than “rare” and “uncommon,” as prescribed in Miller. At
the very least, Pulido is entitled to a new sentencing hearing. However, this
sentence cannot stand for a more fundamental reason. The principles of
Graham v. Florida and Miller v. Alabama categorically bar LWOP for a
juvenile offender such as Michael Pulido, who neither killed nor
specifically intended to kill.11
Pulido’s felony-murder conviction ultimately rests on aiding-abetting,
because the jury did not return a finding that he personally shot the attendant.
11
As noted earlier, the Second District recently affirmed LWOP for a
juvenile convicted of the murder and rape of his aunt. (People v. Gutierrez
(2012) 209 Cal.App.4th 646.) Gutierrez is irrelevant to petitioner’s categorical
challenge for two reasons. Because Gutierrez was the killer, that case does not
implicate Graham’s and Miller’s concerns over LWOP for a felony-murder
accomplice who did not personally kill. Second, there is a vast difference in
the culpability of petitioner’s and Gutierrez’s felony-murder convictions.
While robbery entails some potential of violence, “the essential guilt of rape
consists in the outrage to the person,” far beyond any ordinary assault. (§ 263.)
The Legislature has repeatedly recognized the extraordinary culpability of rape
by prescribing aggravated punishments, including life terms, far greater than
those for robbery. (E.g.,§ 667.61 (“one strike” terms of 15-to-life or 25-to-life
for certain sexual assaults), § 667.6 (full consecutive terms).) Regardless of
whether the Supreme Court would categorically bar LWOP for a juvenile
rapist/murderer such as Gutierrez, there are strong indications that it would do
so for an aider-abettor in a “botched robbery [that] turns into a killing.”
(Miller, 132 S.Ct. at 2465.)
-55-
After tendering question after question on the nuances of aiding-abetting and
felony-murder, the jurors deadlocked on the personal firearm use allegation.
While the various reviewing court judges and justices disagreed on whether the
erroneous “late joiner” felony-murder theory was prejudicial, they proceeded
from the common premise that a substantial portion of the jury convicted
Pulido as an aider-abettor in the robbery. (See I Appx. Exs. J, K, L, M.)
“[W]hen compared to an adult murderer, a juvenile offender who did
not kill or intend to kill has a twice diminished moral culpability. The age of
the offender and the nature of the crime each bear on the analysis.” (Graham
v. Florida, 130 S.Ct. at 2027 (emphasis added).) The Miller majority found
that observation equally applicable to a juvenile convicted of murder based on
his role in abetting a predicate felony such as robbery:
Jackson did not fire the bullet that killed [the robbery victim];
nor did the State argue that he intended her death. Jackson's
conviction was instead based on an aiding-and-abetting theory....
[Citation.] To be sure, Jackson learned on the way to the video
store that his friend ... was carrying a gun, but his age could well
have affected his calculation of the risk that posed, as well as his
willingness to walk away at that point. All these circumstances
go to Jackson's culpability for the offense. [Citing Graham.]
(Miller, 132 S.Ct. at 2468.)
Because the Supreme Court reversed both Miller’s and Jackson’s
sentences based on the mandatory character of the respective statutes, the
Miller majority left open the question of a possible categorical bar for an
accomplice such as Jackson (or Pulido).
(Miller, 132 S.Ct. at 2469.)
However, Justice Breyer (joined by Justice Sotomayor) addressed that question
in a separate concurring opinion. Those justices concluded that the “twice
diminished moral culpability” of a juvenile accomplice to felony-murder, such
as Jackson or petitioner, categorically precludes LWOP, “regardless of
-56-
whether its application is mandatory or discretionary under state law.” (Miller,
at 2475 (Breyer, J., concur.).)
Given Graham 's reasoning, the kinds of homicide that can
subject a juvenile offender to life without parole must exclude
instances where the juvenile himself neither kills nor intends to
kill the victim. Quite simply, if the juvenile either kills or
intends to kill the victim, he lacks “twice diminished”
responsibility. But where the juvenile neither kills nor intends to
kill, both features emphasized in Graham as extenuating apply.
(Miller at 2475-2476 (Breyer, J., concur.).)
In the adult sentencing context, the Constitution permits the death
penalty for a non-killer accomplice to felony-murder where he served as a
“major participant” in the predicate felony and showed a “reckless disregard
for human life.” (Tison v. Arizona (1987) 481 U.S. 137, 157-158.) But, as
Justices Breyer and Sotomayor recognized, that relaxed mens rea standard
should not carry over to a juvenile’s culpability: “[E]ven juveniles who meet
the Tison standard of ‘reckless disregard’ may not be eligible for life without
parole. Rather, Graham dictates a clear rule: The only juveniles who may
constitutionally be sentenced to life without parole are those convicted of
homicide offenses who ‘kill or intend to kill.’” (Miller, 132 S.Ct. at 2475-2476
(Breyer, J., concur.).)
Those observations are directly applicable to Michael Pulido’s sentence.
California has explicitly modeled its felony-murder special circumstance on
Tison’s criteria for death-eligibility of an adult felony-murder confederate. (§
190.2(d).) The standard special circumstance instructions delivered at Pulido’s
trial required the jurors to find that he acted either with an intent to kill or
“with reckless indifference to human life” and as “a major participant” in the
predicate felony. (CALJIC 8.80.1; I Appx. Ex. F: CT 461-462)
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Pulido’s jury was not required to make any finding of intent to kill, but
only that he displayed “reckless indifference.” Yet, as the Court emphasized
again and again throughout Graham and Miller, recklessness is a biological
and developmental hallmark of youth. “[J]uveniles’ ‘lack of maturity and
underdeveloped sense of responsibility ... often result in impetuous and illconsidered actions and decisions’ [citation]...” (Graham v. Florida, 130 S.Ct.
at 2028. ) “[T]ransient rashness, proclivity for risk, and inability to assess
consequences [] both lessen[] a child’s ‘moral culpability’ and enhance[] the
prospect that, as the years go by and neurological development occurs, his
‘“deficiencies will be reformed.”’ [Citing Graham.]” (Miller, 132 S.Ct. at
2465 (maj. opn.) (emphasis added).) “[I]mmaturity, recklessness, and
impetuosity” are ‘“the same characteristics that render juveniles less culpable
than adults.” (Ibid. (emphasis added).) “Those features are evident” in a
felony-murder scenario such as this, where “a botched robbery turns into a
killing.” (Ibid.) Pulido’s “age could well have affected his calculation of the
risk” posed by his participation in the felony. (Id. at 2468.)
The logic of the Graham and Miller opinions inexorably supports a
categorical ban on LWOP in these circumstances. “[R]egardless of our law
with respect to adults, there is no basis for imposing a sentence of life without
parole upon a juvenile who did not himself kill or intend to kill.” Felonymurder liability “is premised on the idea that one engaged in a dangerous
felony should understand the risk that the victim of the felony could be killed,
even by a confederate. [Citation.] Yet the ability to consider the full
consequences of a course of action and to adjust one's conduct accordingly is
precisely what we know juveniles lack capacity to do effectively. [Citation.]”
(Miller, 132 S.Ct. at 2476 (Breyer, J., concur.).)
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The California Supreme Court has not yet addressed Miller’s impact on
juvenile sentences for special circumstance murder – “We leave Miller’s
application in the homicide context to a case that poses the issue.” (People v.
Caballero (2012) 55 Cal.4th 262, 268.) But the recent Caballero opinion
barring “de facto LWOP” for non-homicide juvenile offenses demonstrates the
that Court’s determination to adhere strictly to Graham’s and Miller’s
limitations on that most severe penalty. Caballero’s 110-to-life sentence
violated Graham, even though he had been convicted of three attempted
murderswith gun use. “Miller ... made it clear that Graham's ‘flat ban’ on life
without parole sentences for juvenile offenders in nonhomicide cases applies
to their sentencing equation regardless of intent in the crime's commission, or
how a sentencing court structures the life without parole sentence.”
(Caballero at 267; see also id. at 270 & fn. 1 (Werdegar, J., concur.))
By the same token, this Court should strictly enforce Graham’s
prohibition on LWOP for a juvenile who did not kill or intend to kill. The
principal focus of the deliberations was aiding-abetting, and the jury did not
return a finding of personal firearm use. In the absence of any jury finding that
Pulido was the actual killer, the foreclosure of any possibility of release is
cruel and unusual in view of this juvenile offender’s “twice diminished moral
culpability.” This Court should reduce petitioner’s punishment to the statutory
alternative of 25-to-life (§ 190.5(b)).
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VI.
PETITIONER’S SENTENCE IS “CRUEL OR UNUSUAL”
UNDER THE CALIFORNIA CONSTITUTION.
Michael Pulido’s LWOP sentence offends Article I, section 17, of the
California Constitution, as well as the Eighth Amendment.
That provision proscribes “cruel or unusual” punishment. Like other
state constitutional provisions, it has independent force. State courts are
informed by, but not limited to, federal constructions of the Eighth
Amendment. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 481-482.) For
example, even before the U.S. Supreme Court barred LWOP for non-homicide
offenses by juveniles (Graham v. Florida (2010) 130 S.Ct. 2011), a California
habeas court found that LWOP for a juvenile’s offense of kidnapping for
ransom represented grossly disproportionate punishment under the state
constitution. (In re Nunez (2009) 173 Cal.App.4th 709, 724-733.)
In In re Lynch (1972) 8 Cal.3d 410, 425-427, and subsequent cases, the
California Supreme Court has defined three inquiries, any one of which may
render a punishment “cruel or unusual” under the state constitution.
A petitioner attacking his sentence as cruel or unusual must
demonstrate his punishment is disproportionate in light of (1)
the nature of the offense and defendant's background, (2) the
punishment for more serious offenses, or (3) punishment for
similar offenses in other jurisdictions. [Citation.] The petitioner
need not establish all three factors—one may be sufficient
[citation], but the petitioner nevertheless must overcome a
“considerable burden” to show the sentence is disproportionate
to his level of culpability [citation]. (In re Nunez, 173
Cal.App.4th at 725.)
In its landmark Dillon decision, the California Supreme Court struck
down a first-degree murder sentence of 25 years to life for a 17-year-old who
shot a grower 9 times in an abortive theft of marijuana. (Dillon, 34 Cal.3d at
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477-489.) The Court found the 25-to-life punishment disproportionate, based
almost entirely on the first Lynch factor – the nature of the offense and the
offender’s background:
Dillon was “an unusually immature youth” and “not the prototype of a
hardened criminal who poses a grave threat to society.” Although Dillon
“largely brought the situation on himself,” “there is ample evidence that
because of his immaturity he neither foresaw the risk he was creating nor was
able to extricate himself without panicking when that risk seemed to
eventuate.” (Dillon, 34 Cal.3d at 487 (emphasis added).) Although the
juvenile offender had “intentionally killed the victim without legally adequate
provocation” and was liable for first-degree murder under the felony-murder
rule, the Supreme Court reduced his term to 15 to life (the punishment for
second-degree murder). (Id. at 489.)
At the time of Dillon, the special circumstance statutes applied only to
adult defendants. (People v. Spears (1983) 33 Cal.3d 279.) “Because of his
minority no greater punishment [than 25-to-life] could have been inflicted on
defendant if he had committed the most aggravated form of homicide known
to our law – a carefully planned murder executed in cold blood after calm and
mature deliberations. [Fn.]” (Dillon, 34 Cal.3d at 487.) Only in 1990 did
California expose 16- and 17-year-olds to the far greater punishment of life
imprisonment without possibility of parole. (§ 190.5(b), as amended by Prop.
115, eff. June 6, 1990.) Since that time, the California Supreme Court has
never had occasion to decide a state “cruel or unusual” challenge to a juvenile
LWOP term. 12
12
However, several pre-Miller appellate opinions have rejected Dillon
challenges to LWOP terms. (E.g., People v. Guinn (1994) 28 Cal.App.4th
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Miller’s discussion of the developmental and psychological factors
which diminish the culpability of juvenile offenders provides ample cause for
re-examination of the constitutionality of juvenile LWOP under state, as well
as federal law. Application of the three Lynch factors to Pulido’s LWOP
sentence provides an even more compelling case for a finding of
disproportionality than the 25-to-life term found excessive in Dillon.
The nature of the offense and the offender’s characteristics. The state
proportionality inquiry “focuses on the particular person before the court, and
asks whether the punishment is grossly disproportionate to the defendant’s
individual culpability as shown by such factors as his age, prior criminality,
personal characteristics, and state of mind.” (Dillon, 34 Cal.3d at 479.) The
California Supreme Court was prescient in its recognition that the immaturity
and recklessness of a youthful offender significantly reduces his culpability
and renders a life sentence constitutionally suspect (even a parole-eligible term
like the one there). (Id. at 487-488, 482-483.) As reflected in the U.S.
Supreme Court’s recent Roper, Graham, and Miller opinions, medical,
developmental and psychological research over the intervening decades
provides abundant empirical support for the premises of Dillon. (Miller, 132
S.Ct. at 2464.) “[D]evelopments in psychology and brain science continue to
show fundamental differences between juvenile and adult minds.
For
example, parts of the brain involved in behavior control continue to mature
through late adolescence. [Citations.]” (Graham, 130 S.Ct. at 2026; Miller at
2465.)
Dillon’s discussion of the nature of the homicide is equally relevant
here. The felony-murder special circumstance, like the underlying felony1130, 1145-1147; People v. Blackwell (2011) 202 Cal.App.4th 144, 158-159.)
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murder rule, sweeps in numerous offenders whose actual conduct and mental
state would not otherwise support first-degree murder (or, in some cases,
would not support murder liability in any degree):
First degree felony murder encompasses a far wider range of
individual culpability than deliberate and premeditated murder.
It includes not only the latter, but also a variety of unintended
homicides resulting from reckless behavior, or ordinary
negligence, or pure accident; it embraces both calculated
conduct and acts committed in panic or rage, or under the
dominion of mental illness, drugs, or alcohol; and it condemns
alike consequences that are highly probable, conceivably
possible, or wholly unforeseeable. (Dillon, 34 Cal.3d at 477
(emphasis added).)
The Supreme Court emphasized that the jurors in Dillon struggled with
the harshness of the felony-murder rule. “Despite the plain language of” the
felony-murder instructions there, the jury submitted a mid-deliberations note
“asking whether it could bring in a verdict of second-degree murder or
manslaughter even if it found that the killing occurred during an attempted
robbery.” (Dillon, 34 Cal.3d at 484.)
As recounted in the prior federal
opinions (I Appx. Ex. K, pp. 33-36; Ex. M, pp. 20402-20406), Pulido’s jurors
too tendered multiple queries on aiding-abetting and felony-murder, such as
whether “‘aid its commission’ ... refer[s] to the robbery or the murder?” (I
Appx. Ex. G: CT 607)13
13
The jurors also submitted an elaborate 2-page diagram, listing
various permutations of aiding-abetting robbery, with and without intent,
including “facilitate by aiding,” and asking whether “any” of these would
result in felony-murder liability. (Ex. G: CT 616-618)
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Pulido will not attempt to relitigate here the question of what precise
aiding scenario the jurors adopted.14 For present purposes, it is enough that,
like their counteparts in Dillon, Pulido’s jurors too plainly struggled with the
felony-murder instructions’ inflexible command that participation in the
robbery would render this young offender guilty of first-degree murder.
(Dillon, 34 Cal.3d at 484-485.)15
Dillon found the 25-to-life punishment there excessive, even though the
17-year-old offender was the actual killer (firing 9 times) and acted with
specific intent to kill. (Dillon at 452, 489.) Under that sentence, Dillon would
still have come up for parole consideration sometime in his 40's or probably
earlier.16 There is a far more grievous mismatch between individual culpability
and the punishment, where a teenager is faced with serving the rest of his life
in prison, with no opportunity for parole consideration in light of his
maturation and rehabilitation. Indeed, as the U.S. Supreme Court observed in
14
The federal courts divided on whether some jurors relied on aidingabetting the robbery after the shooting or on contemporaneous aiding, as the
Ninth Circuit majority ultimately found. (I Appx. Ex. M, pp. 20403-20405;
compare id., pp. 20411-20413 (9th Cir. dissent); Ex. L (Supreme Court
dissent); Ex. K, pp. 21-42 (district court).)
15
Indeed, even as it found the erroneous “late joiner” instructions nonprejudicial, the Ninth Circuit panel majority observed, “These questions
suggest that the jury was uncertain about the application of the felony-murder
instruction in the context of aiding and abetting.” (I Appx. Ex. M, p. 20406
(emphasis in original))
16
Under then-applicable regulations, Dillon “face[d] a base term of 14,
16, or 18 years [citations], plus 2 additional years for use of a firearm
[citation].” (Dillon at 487 fn. 37.) Moreover, at that time, inmates serving
murder terms were still able to earn conduct or worktime credits. (Cf. §
2933.2 (enacted in 1996; barring worktime or conduct credits against murder
sentences).)
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Graham and Miller, LWOP for a youthful offender is actually a more onerous
punishment than for an adult defendant because, by virtue of entering prison
at a younger age, the minor will serve a greater number of years and a greater
proportion of his life behind bars. (Graham, 130 S.Ct. at 2028; Miller, 132
S.Ct. at 2468.) Indeed, Michael Pulido, who was 16 at the time of this 1992
crime, has already served more than half of his life in prison.
Pulido recognizes that a full examination of his individual culpability
under the Lynch-Dillon proportionality analysis may require a more detailed
factual discussion of the specific circumstances of his offense and background.
It is impossible to provide that fully-developed examination at this preliminary
stage, because petitioner is proceeding without the benefit of appointed
counsel. However, in view of the mitigating qualities inherent in his youth –
as canvassed in Miller and other recent opinions – the basic circumstances here
are more than sufficient to state a prima facie case of violation of Article I,
section 17.
Punishment for more serious offenses. The second Lynch-Dillon
inquiry entails “a comparison of the charged penalty with those in the same
jurisdiction for more serious crimes.” (Dillon, 34 Cal.3d at 487 fn. 38; Lynch,
8 Cal.3d at 426-427.) “[S]uch a comparison is particularly striking when a
more serious crime is punished less severely than the offense in question.”
(Dillon at 487 fn. 38 (emphasis in original).) That is the case here. “[A]
carefully planned murder executed in cold blood after calm and mature
deliberations [fn.]” is “the most aggravated form of homicide known to our
law.” (Id. at 487; accord In re Nunez, 173 Cal.App.4th at 727.) Yet coldblooded premeditation does not subject a killer to LWOP, but only to the base
first-degree murder punishment of 25-to-life. Premeditation is not a special
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circumstance in its own right, nor is use of a firearm or other weapon.17 A
premeditated murder is subject to LWOP only if some other aspect of the
killing brings it within one of the special circumstance categories, such as use
of poison or an explosive or killing of a law enforcement officer. (Cf. §
190.2(a).) As this Court is aware from the homicides on its docket over the
years, most premeditated killings are not charged and punished as special
circumstance murder.
In applying the second Lynch-Dillon factor, “it is also instructive when
[the current offense] is punished as severely as a more serious crime.” (Dillon,
34 Cal.3d at 487 fn. 38 (emphasis in original).) That too is true here. Pulido’s
punishment is equal to that for all other forms of special circumstance murder.
Yet many of those categories involve dramatically greater culpability than
petitioner’s offense -- such as torture, use of a destructive device, murder-forhire, multiple murders, or murder to obstruct law enforcement or the judicial
process (killings of judges, prosecutors, witnesses, or police officers). (Cf. §
190.2(a).) Even among felony-murders, petitioner’s theft-related predicate
felony involves far less inherent violence, cruelty, or callousness than other
qualifying offenses, such as mayhem, rape, child molestation, kidnapping,
arson, or train-wrecking. (Cf. § 190.2(a)(17).)
Comparison with other jurisdictions. The “third Lynch technique”
(which the Court found unnecessary to consider in Dillon) is “a comparison of
17
Even if a premeditated murderer personally shoots the victim (§
12022.53(d)), the aggregate punishment under current law (50 years to life)
would still be less than LWOP. Unlike Pulido’s punishment, 50-to-life would
still hold out the possibility of parole within a juvenile offender’s life
expectancy.
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the challenged penalty with those prescribed for the same offense in other
jurisdictions.” (Dillon, 34 Cal.3d at 487 fn. 38.)
International law may help inform this Court’s assessment of the human
rights standards that guide its construction and application of the protections
of the California Constitution. (See In re Marriage Cases (2008) 43 Cal.4th
757, 818 fn. 41.)18 For example, in Marriage Cases, our Supreme Court
looked to “international human rights treaties ... recogniz[ing] the right ‘to
marry and to found a family’ as a basic human right.” (Ibid.)
Juvenile LWOP is virtually unknown outside this country. As discussed
in Graham, a recent study concluded that “only 2" nations in the world, “the
United States and Israel, ever impose the punishment in practice [citation].”
“An updated version of that study” indicated that the latter country’s sentences
were not true LWOP’s, because “Israel’s ‘laws allow for parole review....’”
(Graham, 110 S.Ct. at 2033.)
Juvenile LWOP is repugnant to international human rights covenants.
“Article 37 of the United Nations Convention on the Rights of the Child
[citation], ratified by every nation except the United States and Somalia,
prohibits the imposition of ‘life imprisonment without possibility of release ...
for offenses committed by persons below eighteen years of age.’ [Citation.]”
(Id. at 2034.)
While that covenant is not “binding or controlling” on
California, this Court should consider “the judgment of the world’s nations
that a particular sentencing practice is inconsistent with basic principles of
18
Superseded by subsequent initiative amendment (Prop. 8), Strauss
v. Horton (2009) 46 Cal.4th 364.
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decency” (ibid.) in giving effect to our state constitutional prohibition on
“cruel or unusual punishment” (Cal. Const., art. I, § 17).19
Indeed, international human rights law provides much stronger and
more explicit guidance on the “cruel or unusual” character of juvenile LWOP
than it did on the specific equal protection issue in Marriage Cases. There is
a firm and explicit “international consensus” against juvenile LWOP.
(Graham, 130 S.Ct. at 2034.) By comparison, at the time of Marriage Cases,
“only six jurisdictions (Massachusetts and five foreign nations – Canada,
South Africa, the Netherlands, and Spain) authorize[d] same-sex couples to
marry” (Marriage Cases, 43 Cal.4th at 853 fn. 70) (though several others later
joined that group).
As reflected in Dillon and Nunez, it is frequently unnecessary even to
apply “the third prong Lynch technique” (comparison with other jurisdictions).
(Dillon, 34 Cal.3d at 488 fn. 38; Nunez, 173 Cal.App.4th at 731 fn. 7.) “It is
19
As discussed in Miller, juvenile LWOP terms in other states are
“unilluminating” for several reasons. “[M]ore than half” of the states that
appear to permit such sentences “do so by virtue of generally applicable
penalty provisions, imposing the sentence without regard to age. [Fn.]” Those
“inadvertent legislative outcomes” do “‘not indicate that the penalty has been
endorsed through deliberate, express, and full legislative consideration.’
[Citation.]” (Miller, 132 S.Ct. at 2473.) Moreover, the states with mandatory
LWOP regimens account for the great majority of those dispositions and thus
distort the overall statistics. (Id. at 2472 fn. 11.) “According to available data,
only about 15% of all juvenile life-without-parole sentences [in the United
States] come from” discretionary jurisdictions, “while 85% come from the 29
mandatory ones. [Citations.] That figure indicates that when given the choice,
sentencers impose life without parole on children relatively rarely. ....[W]hen
judges and juries do not often choose to impose a sentence, it at least should
not be mandatory.” ( Id. at 2472 fn. 10.) By the same token, neither should it
be “presumptive” or “generally mandatory,” as it currently is in California
(Guinn, 28 Cal.App.4th at 1142).
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sufficient, under the first and second prongs, that the ‘punishment “shocks the
conscience and offends fundamental notions of human dignity.””’ (Nunez at
731 fn. 7, citing Dillon at 488 fn. 38.) Nonetheless, consideration of the “basic
principles of decency” reflected in international law (Graham, 130 S.Ct. at
2034) also supports a finding that California’s juvenile LWOP procedures
offend “fundamental notions of human dignity.” Regardless of whether this
Court believes that the sentencing practices in other jurisdictions compel a
categorical ban on juvenile LWOP in all circumstances, at the very least that
comparison should preclude continuation of California’s treatment of this
exceptional punishment as the presumptive penalty.
***
The same developmental and psychological characteristics of youthful
offenders which comprise the fundation for the U.S. Supreme Court’s recent
Eighth Amendment opinions provide even stronger grounds for relief under
the state constitutional analysis of Lynch and Dillon. Where possible, a state
court should attempt to resolve a matter on state law grounds. Pulido submits
that his sentence also violates Article I, section 17, on each of the grounds
addressed in his preceding federal arguments:
•
Section 190.5(b)’s presumption of LWOP offends the state
constitutional proscription on “cruel or unusual” punishment by
enforcing a “generally mandatory” requirement for a sentence
disproportionate to the culpability of juvenile offenders.
•
In exercising its “circumscribed” discretion under section 190.5(b), the
sentencing court failed to give sufficient consideration to the mitigating
qualities of youth and to petitioner’s individual background, as required
by the proportionality analysis of Dillon.
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•
The sentencing court further infringed Pulido’s state constitutional
rights by substituting its own finding for that of the deadlocked jury on
the crucial factual question whether Pulido was the actual killer.
•
LWOP for a juvenile who did not personally kill represents the same
overbroad application of felony-murder liability condemned in Dillon.
This Court should find a felony-murder aider-abettor such as petitioner
categorically ineligible for this most extreme punishment.
On all these grounds, petitioner urges this Court to issue a writ of
habeas corpus setting aside his LWOP sentence under Article I, section 17.
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VII.
THE RECENTLY ENACTED, BUT NOT YET OPERATIVE,
SECTION 1170(d)(2) APPLICATION PROCEDURE DOES NOT
PROVIDE A REMEDY FOR PETITIONER’S
CONSTITUTIONAL CLAIMS.
The Governor has recently signed legislation establishing a new
discretionary statutory procedure for inmates to petition sentencing courts to
“recall” and reconsider juvenile LWOP sentences. (S.B. 9, signed Sept. 30,
2012; Stats. 2012, ch. 828).) The legislation was not enacted on an “urgency”
basis; hence, it will become effective January 1, 2013. For multiple reasons,
the not-yet-operative statutory procedure does not resolve petitioner’s
constitutional challenges to his LWOP sentence, nor does it even provide an
alternative forum for consideration of those claims.
A.
The Section 1170(d)(2) Procedure.
S.B. 9 enacts a new, rather elaborate, procedure, codified in Penal Code
section 1170(d)(2), for a juvenile offender to petition a sentencing court to
“recall” an LWOP sentence after he has served at least 15 years in custody. A
petition to recall must demonstrate that the defendant falls into one of four
categories – including that his conviction was based on “felony murder or
aiding and abetting murder” – and must include a description of the
defendant’s “remorse and work toward rehabilitation.” (Subd. (d)(2)(B).)20
The superior court will conduct a “hearing” on the recall petition only if it
“finds by a preponderance of the evidence that the statements in the petition
are true.” (Subd. (d)(2)(E).) If it grants a recall hearing, the sentencing court
“shall have the discretion to recall the sentence and commitment previously
ordered.” (Subd. (d)(2)(G).)
20
Subdivision references are to Penal Code section 1170 (as amended
by S.B. 9, eff. Jan. 1, 2013), unless otherwise noted.
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The statute includes a non-exclusive list of “factors that the court may
consider in determining whether to recall and resentence,” including offenserelated factors such as the presence of an adult co-defendant and inmaterelated factors such as prior violent juvenile adjudications, “developmental
disabilities,” and evidence of rehabilitation. (Subd. (d)(2)(F).) If the court
does ultimately exercise its discretion to recall the sentence, it will order a
further hearing “to resentence the defendant in the same manner as if the
defendant had not previously been sentenced.” (Subd. (d)(2)(G).)
B.
The Section 1170(d)(2) Procedure Is No Substitute for
Habeas Corpus, Because It Does Not Provide a Vehicle for
Consideration of Petitioner’s Constitutional Claims.
There is much to commend the Legislature’s intent in enacting S.B. 9.
It fills a void by allowing a juvenile offender, who has served 15 years or more
under an LWOP sentence, to appeal to a sentencing court to exercise discretion
to recall that commitment and to sentence anew. But it is important to
recognize S.B. 9 both for what it is and for what it is not. It does afford a
second opportunity for discretionary consideration of various enumerated
factors in deciding whether to grant a new sentencing hearing. It does not
provide a forum for determination of constitutional challenges to an inmate’s
sentence or to the overall validity of California’s current juvenile LWOP
regimen. Nothing in the legislation suggests that an inmate could utilize the
new section 1170(d)(2) recall procedure to overturn his LWOP sentence based
on the constitutional defects raised in this petition. Hence, valuable though
section 1170(d)(2) may be in allowing discretion to recall a sentence, it is not
designed as a procedure for a court to hear constitutional challenges. The
California post-conviction procedure for an inmate to raise Eighth Amendment
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challenges to a sentence, based on a change in the governing standards,
remains what it always has been: a petition for a writ of habeas corpus.
C.
The Recall Procedure Does Not Resolve the Constitutional
Violations, Because Sentencing Remains Subject to the Same
Defective Statutory Procedures, Including Section 190.5(b)’s
Presumption of LWOP and Section 190.2(d)’s Allowance of
LWOP for Felony-Murder Aiders.
Nor does the passage of S.B. 9 affect the merits of petitioner’s
constitutional challenges. On the contrary, the new statutory procedure feeds
even a successful applicant back into the same constitutionally-flawed
sentencing regimen challenged in this petition. Section 1170(d)(2) establishes
an elaborate procedure for a juvenile offender to seek discretionary
reconsideration of an LWOP sentence. But, if he does persuade the court to
exercise its discretion to recall the sentence, the court will then “resentence the
defendant in the same manner as if the defendant had not previously been
sentenced.” (Subds. (d)(2)(E) & (d)(2)(G).) Thus, the resentencing will occur
under the identical unconstitutional provisions challenged in this petition. A
defendant convicted of felony-murder based on aiding-abetting will remain
subject to LWOP so long as he acted with “reckless disregard” (§ 190.2(d)) –
contrary to the constitutional limitation of that punishment to juvenile
offenders who either killed or intended to kill. (Part V, ante.)
Most importantly, like the original sentencing, the resentencing will
occur under section 190.5(b). The court will be statutorily required to treat
LWOP as the “presumptive” and “generally mandatory” punishment. It will
still have only “circumscribed” discretion to depart downward from that
presumption and elect the 25-to-life alternative (People v. Guinn, 20
Cal.App.4th at 1142) – all contrary to Miller’s admonitions that juvenile
LWOP’s must be “uncommon” and “rare.” (Part II, ante.)
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The section 1170(d)(2) procedure is a loop – albeit a circuitous one.
Even if an inmate successfully navigates that procedure, the “recall” deposits
him back where he started – facing sentencing under the same constitutionallyflawed procedure which loads the dice against him by designating LWOP as
the “presumptive punishment.”
D.
Consideration of the Petition Is Essential to Prevent
Forfeiture of Petitioner’s Claims Under Miller v. Alabama.
Not only may Pulido seek habeas review of these constitutional claims
now. As a practical matter, he must do so.
Approximately four months have elapsed since the Supreme Court’s
opinion in Miller v. Alabama. If petitioner were to defer bringing these claims
until after filing and final disposition of a section 1170(d)(2) petition, he would
run the risk of procedurally defaulting them and forfeiting consideration of the
merits. Section 1170(d)(2) does not even go into effect until January 2013,
and it would take several months for the application, review, and hearing
process outlined there to run its course. If petitioner waited to file a habeas
petition until after submission and disposition of a “recall petition” for
“discretionary” relief, there is a very real danger that the Attorney General
would contest the habeas petition as untimely under state law.
The prospects for later federal review after such a delay in seeking state
habeas relief would be even more treacherous. The statute of limitations for
a federal habeas petition raising Miller-based claims likely began to run on the
date of the Miller opinion (June 25, 2012) and will continue to run as long as
no state post-conviction petition has been filed.
2244(d)(1)(C).)
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(Cf. 28 U.S.C. §
There is not yet any case law, state or federal, defining the time limits
for Miller-based habeas claims. Pulido does not wish to join the ranks of the
many inmates who have inadvertently forfeited consideration of various
constitutional claims through overly optimistic assumptions about how state
and federal courts will apply those jurisdictions’ respective timeliness rules.
In sum, the new S.B. 9 procedure neither cures the underlying defects
in California’s LWOP statutes, nor provides a forum for consideration of those
constitutional challenges. Habeas is the appropriate remedy, and Michael
Pulido’s constitutional challenges to his LWOP sentence are ripe for review.
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VIII. THIS COURT SHOULD APPOINT COUNSEL AND ISSUE AN
OSC TO ENSURE FULL CONSIDERATION OF THE
IMPLICATIONS OF MILLER v. ALABAMA FOR
PETITIONER’S LWOP SENTENCE.
A.
This Petition States a Prima Facie Case Mandating Issuance
of an OSC.
For the reasons addressed in the preceding sections, the ultimate
disposition of this habeas proceeding must be an order vacating petitioner’s
sentence of LWOP and remanding the case for resentencing. However, at this
very preliminary stage of the proceeding, the immediate question for this Court
is far more simple: This Court’s only task is determine whether the petition
states a prima facie case for relief. In determining that threshold question, this
Court should take the petition’s factual allegations as true and consider
whether those facts, if proven, would entitle petitioner to relief. (People v.
Romero (1994) 8 Cal.4th 728, 737; People v. Duvall (1995) 9 Cal.4th 464,
474-475.) If so, issuance of an order to show cause (OSC) is “mandatory,” to
ensure final disposition of the proceeding on a fully-developed factual record.
(Romero at 740.)
Issuance of an OSC represents “an implicit preliminary determination”
that the petition’s claims are sufficiently colorable to warrant full development
and briefing. (In re Hochberg (1970) 2 Cal3d 870, 875 fn. 4 (emphasis
added).) That prima facie “determination ... is truly ‘preliminary’: it is only
initial and tentative, and not final and binding.” (In re Sassounian (1995) 9
Cal.4th 535, 547; In re Large (2007) 41 Cal.4th 538, 549.)
Pulido’s claims under Miller v. Alabama (and his parallel state
constitutional claim under People v. Dillon) readily satisfy that threshold.
Miller prescribes that, even assuming that LWOP is sometimes permissible for
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a juvenile homicide, that “harshest possible penalty” must be “rare” and
“uncommon.” (Miller, 132 S.Ct. at 2469.) Yet California’s regimen proceeds
from the opposite premise that LWOP is the “presumptive punishment” and
accords the sentencing court only “circumscribed” discretion to impose a
parole-eligibile term of 25-to-life. (Guinn, 28 Cal.App.4th at 1142.) One
opinion has already found that presumption contrary to the reasoning of Miller.
(People v. Moffett (Oct. 12, 2012; A133032) __ Cal.App.4th __ [2012 WL
4841338].) The Moffett opinion’s recognition of the tension between the
section 190.5(b) presumption and Miller is more than sufficient to demonstrate
that this petition raises sufficiently weighty questions to support issuance of an
OSC.
The U.S. Supreme Court has already signaled that the nominally
“discretionary” character of section 190.5(b) does not insulate California
LWOP’s under from reconsideration under Miller v. Alabama. Just days after
its issuance of the Miller opinion, the Supreme Court remanded a juvenile
LWOP case to California’s Second District “for further consideration in light
of Miller v. Alabama.” (Guillen v. California (June 29, 2012; 11-8655) __
U.S. __ [2012 WL 369257].) The Court took that action, despite the state’s
claims that the disposition of Miller would not affect Guillen’s California
sentence “because he was not sentenced under a ‘mandatory’ sentencing
scheme.”21 The Supreme Court’s order for reconsideration is all the more
noteworthy because Guillen’s appears to have been a relatively aggravated
case in which he personally shot “the incapacitated [robbery victim] in the
21
Brief in Opposition to Petition for Writ of Certiorari, Guillen v.
California, No. 11-8655, pp. 6-7 (filed May 15, 2012).
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head, execution style.”22 If Guillen’s LWOP sentence requires plenary
reconsideration by a state appellate court in light of Miller – as the Supreme
Court has directed – then surely Pulido’s does as well.
Accordingly, petitioner respectfully asks this Court to issue an order to
show cause.
B.
This Court Should Appoint Counsel at the Earliest
Opportunity.
Petitioner has concurrently filed a motion for appointment of counsel.
Such an appointment is mandatory upon issuance of an OSC. (In re Clark
(1993) 5 Cal.4th 750, 780.) This Court also possesses discretion to appoint
counsel at an earlier stage, prior to an OSC, in the interests of justice.
Appointment of counsel is especially urgent here.
There are compelling grounds to order appointment of counsel at the
earliest possible opportunity. As discussed in the accompanying motion, this
petition has been prepared by Pulido’s former federal habeas counsel in order
to ensure that he receives his day in court on the profound issues posed by
Miller v. Alabama. However, further work will be necessary to tailor these
claims to the specific circumstances of Pulido’s case.
There are also powerful systemic reasons for this Court to appoint
counsel to ensure full development of the issues surrounding application of
Miller in this state. Approximately 300 California inmates are currently
serving LWOP terms for homicides committed as juveniles. Most of those
cases, like Pulido’s, have already become final on direct appeal, leaving
habeas corpus as the avenue for review of claims arising under Miller. These
22
See People v. Aleman et al. (Cal.App. 2011; B220310) 2011 WL
3805955.
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cases will pose many common issues, such as the validity and effect of section
190.5(b)’s presumption of LWOP.
As far as we are aware, this habeas petition, prepared by the First
District Appellate Project, is the first to be filed in a California appellate court.
There is an urgent need for a published opinion to provide guidance, to courts
and petitioners alike, on review of habeas claims arising under Miller. Full
development of the issues of this petition, with the assistance of counsel, will
both serve the interests of justice in Pulido’s own case and contribute to the
resolution and disposition of similar claims throughout the state.
Earlier this year, the U.S. Supreme Court specifically recognized the
value of appointment of counsel during state post-conviction proceedings.
(Martinez v. Ryan (2012) __ U.S. ___, 132 S.Ct. 1309, 1319.) Regardless of
whether there is any constitutional right to habeas counsel, “equitable”
considerations favor appointment of counsel when a petitioner appears to have
“substantial” claims or the habeas court “deems the record worthy of further
development.” As with ineffective assistance claims, “without the help of an
adequate attorney, a prisoner will have ... difficulties vindicating a substantial”
cruel and unusual punishment claim. (Id. at 1317.)
As stated in the accompanying motion, Michael Pulido respectfully
prays this Court to exercise its discretion to appoint counsel at this juncture,
rather than to require further “informal briefing” without the benefit of
counsel.
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CONCLUSION
For the foregoing reasons, Michael Pulido respectfully asks this Court:
1) to appoint counsel for all further proceedings on this petition; 2) to issue an
Order to Show Cause returnable in this Court; and 3) upon full review, to
vacate his current sentence of LWOP and to remand for resentencing, in
accordance with Miller v. Alabama.
DATE: October 29, 2012
Respectfully submitted,
JONATHAN SOGLIN
Executive Director
J. BRADLEY O’CONNELL
Assistant Director
Attorney for Petitioner
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CERTIFICATE OF WORD COUNT
Counsel for MICHAEL PULIDO hereby certifies that the preceding
Memorandum of Points & Authorities consists of 15,470 words, according to
the word count of the computer word-processing program. (Rules 8.384(a)(2),
8.204(c).) Pursuant to the terms of Rule 8.384(a)(2), this Word Count includes
only the “memorandum” (pp. 23-80) and does not include the habeas corpus
pleading and verification; nor does it include tables, proof of service, and this
certificate.
Dated: Oct. 29, 2012
______________________
J. BRADLEY O'CONNELL
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DECLARATION OF SERVICE BY MAIL
Re: In re Michael Pulido
Case No. : __________
I, the undersigned, declare that I am over 18 years of age and not a party to the
within cause. I am employed in the County of San Francisco, State of California. My
business address is 730 Harrison Street, Suite 201, San Francisco, CA 94107. On Oct.
30, 2012, I have caused to be served a true copy of the attached PETITION FOR WRIT
OF HABEAS CORPUS on each of the following, by placing same in an envelope(s)
addressed as follows:
Jeremy Friedlander
Deputy Attorney General
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-3664
Michael Pulido
(Appellant)
Clerk’s Office
San Mateo County Superior Court
401 Marshall St.
400 County Center
Redwood City, CA 94063
District Attorney
San Mateo County
400 County Center, 3rd Floor
Redwood City, CA 94063
Each said envelope was sealed and the postage thereon fully prepaid. I am
familiar with this office’s practice of collection and processing correspondence for
mailing with the United States Postal Service. Under that practice each envelope would
be deposited with the United States Postal Service in San Francisco, California, on that
same day in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on Oct. 30, 2012, at San Francisco, California.
____________________________
Declarant