MEMORANDUM OF POINTS AND AUTHORITIES
I.
PETITIONER’S CRUEL-AND-UNUSUAL PUNISHMENT CLAIMS
UNDER MILLER v. ALABAMA ARE PROPERLY COGNIZABLE ON
HABEAS CORPUS.
Petitioner was __ at the time of this homicide. Following petitioner’s conviction
of special circumstance murder, the sentencing court imposed the presumptive term of
life without possibility of parole under Penal Code section 190.5(b). For the reasons
detailed in the following sections, petitioner 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 principles of 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. (Appellate
No. ______.) {Include if applicable: In that opinion, this Court rejected a cruel-andunusual punishment claim based on the Court’s understanding of then-extant case law.}
Because Miller and other recent authorities represent a fundamental change in the
standards governing punishment for juveniles, petitioner’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 postaffirmance state habeas petition in the Arkansas courts. The U.S. Supreme Court granted
certiorari to review the Arkansas Supreme Court’s denial of Jackson’s state habeas
petition. (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
-1-
whatever in the Court’s review of the merits and its ultimate dispositions.
Upon
determining that Alabama’s and Arkansas’s mandatory LWOP regimens for juveniles’
murder convictions violated the Eighth Amendment, the Court reversed both judgments
and remanded the cases 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 post-affirmance 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 wellestablished California habeas principles, as well. {Include if applicable: This Court
rejected an Eighth Amendment challenge in its previous opinion affirming petitioner’s
conviction on direct appeal.} Generally, habeas review will not lie to address a claim that
was either raised and rejected on direct appeal (In re Waltreus (1965) 62 Cal.2d 218) or
that could have been raised on appeal (In re Dixon (1953) 41 Cal.2d 756). 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 crueland-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 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.)
-2-
Accordingly, there is no state procedural bar to petitioner’s cruel-and-unusual
punishment claims.
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’ mans 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. {Include rest of this ¶ only if applicable: In its
prior opinion on direct review, this Court rejected a cruel-and-unusual challenge to
petitioner’s LWOP sentence.
A habeas petition which directly implicates a prior
appellate opinion in the petitioner’s case is better addressed to the reviewing court which
issued that decision. (Cf. 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].) In the absence of any appellate ruling explicitly striking
down California’s current regimen for “presumptive” LWOP under section 190.5(b), the
superior court might well consider itself bound, under law of the case, by the prior
opinion’s disposition of the cruel-and-unusual punishment claim. Although presumptive
LWOP certainly offends the principles articulated in Miller v. Alabama, the immediate
disposition in Miller struck down only the “mandatory” LWOP statutes of Alabama and
Arkansas. At the very least, the superior court would likely be uncertain of the extent of
its authority to revisit this Court’s disposition.
{Include this bracketed clause only if cruel-and-unusual claim considered on
prior appeal: Even apart from this Court’s prior consideration of a cruel-and-unusual
punishment claim,} Miller v. Alabama poses issues of the constitutionally of section
-3-
190.5(b) that are better addressed by a reviewing court. As discussed in the following
sections, because Miller holds that LWOP must be the exception, rather than the rule, for
a juvenile convicted of murder, Miller calls into question the constitutionally of section
190.5(b)’s prescription of LWOP as the “presumptive” sentence.
Additionally (as
addressed in Justice Breyer’s concurrence), the Miller opinion tees up, but does not
resolve, whether there should be a categorical prohibition on LWOP for a juvenile
convicted on a felony-murder aiding/abetting theory, who neither kills nor intends to kill.
(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 close consideration of 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. There is not yet any published case law addressing these broad questions.
“[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.)
Finally, the case law also attests to the propriety of exercise of this Court’s
original jurisdiction.
The procedural histories of several cases deciding cruel-and-
unusual claims on habeas review reveal that those proceedings began with reviewing
court, rather than superior court, habeas filings. For example, two recent cases arose
from habeas petitions initially filed in the California Supreme Court; in each instance, the
Court issued an order to show cause returnable in an appellate court. (In re Coley, 55
Cal.4th at 537; In re Nunez, 173 Cal.App.4th at 714-715.)
-4-
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.
The Court’s ultimate opinion resolved the constitutional claims not
requiring further factual development and defined criteria for lower courts to assess
individual as-applied challenges to the restrictions.
Much like the enactment of Jessica’s Law (the impetus for In re E.J.), the
Supreme Court’s decision in Miller v. Alabama raises broad constitutional questions
affecting LWOP sentences throughout the California. There are currently approximately
300 inmates serving LWOP terms 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 of such claims by superior courts in 58
counties. Accordingly, 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
discretion to hear and decide the merits of his cruel-and-unusual punishment claims,
under Miller v. Alabama, rather than to require a superior court filing.
-5-
II.
CALIFORNIA’S CURRENT 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 __ (slip opn., p. 12) [2012
WL 4841338].)
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 crimes committed by
juveniles. In Roper v. Simmons (2005) 543 U.S. 551, the Court declared a “categorical”
bar on imposition of the death penalty for any offense committed before the age of 18. In
Graham v. Florida (2010) 560 U.S. __, 130 S.Ct. 2011, the Court articulated a similar
categorical ban on life-without-parole sentences for non-homicide offenses. As the Court
later summarized in Miller:
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
-6-
example, in “parts of the brain involved in behavior control.” [Citation;
fn.] We reasoned that those 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 LWOP sentences. Each state prescribed LWOP as the mandatory punishment
for juvenile offenders convicted of certain categories of murder. The Supreme Court
found it unnecessary to reach the more sweeping question “whether the Eighth
Amendment requires a categorical bar on life without parole for juveniles.” (Miller, 132
S.Ct. at 2469). Instead, it resolved the cases on the ground that the mandatory character
of the two states’ 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.” (Id. at 2467.)
Miller’s invalidation of mandatory LWOP schemes for juveniles, even those
convicted of murder, represents a “confluence of ... two lines of precedent”: capital cases
“requiring that sentencing authorities consider the characteristics of a defendant and the
details of his offense before sentencing him to death [citations]”; and 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.”
(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 crime-
-7-
specific. 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 life-without-parole sentence
imposed on a juvenile, even as its 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). 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. (Id. at 2466.) “[T]hat stage of life ... is a time of immaturity,
irresponsibility, ‘impetuousness[,] and recklessness.’ [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 of a similar offense (id. at 2465).
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.) As discussed below, 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.) Because California’s
-8-
“presumptive” scheme too “poses too great a risk of disproportionate punishment”
(Miller at 2469), petitioner’s sentence under that flawed mechanism offends the Eighth
Amendment.
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).)
Beginning with People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1143,
California courts have consistently construed section 190.5(b) as establishing a
“presumption” in favor of LWOP and affording the sentencing court only “circumscribed
discretion” to depart from that mandate.
“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).)
Indeed, Guinn went so far as to term LWOP “generally
-9-
mandatory”:
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
17-year-old special-circumstance murderers, and the court's discretion is
concomitantly circumscribed to that extent. (Guinn at 1142 (emphasis
added).)
Subsequent California cases have consistently followed Guinn’s construction of
the statute. 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, 154155 (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. Because
Miller’s holding on the unconstitutionality of mandatory LWOP was “sufficient to decide
these cases,” the majority found it unnecessary to consider the “alternative argument that
the Eighth Amendment requires a categorical bar on life without parole for juveniles,”
comparable to Roper’s categorical bar on the death penalty or Graham’s on LWOP for
non-homicide offenses. (Miller, 132 S.Ct. at 2469.) But the Court left no doubt that,
even if LWOP is permissible for juvenile homicides in some instances, that penalty must
be “rare,” rather than the “presumptive punishment,” as in California (cf. Guinn, 28
Cal.App.4th at 1142):
But given all we have said in Roper, Graham, and this decision 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 we noted in Roper and Graham of distinguishing at this
-10-
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 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 {include this bracketed phrase only if applicable: 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
California case law states in no uncertain terms , section 190.5(b) does not cast 25-to-life
and LWOP “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
-11-
aggravating circumstances to warrant elevating the term to LWOP, section 190.5(b) has
the opposite structure. Under the prevailing statutory construction, 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, 530531; People v. Williams (1998) 17 Cal.4th 148, 158-160.)
A just-issued First District opinion has found this presumption of LWOP contrary
to the teachings of Miller v. Alabama on exactly these grounds:
A presumption in favor of LWOP, such as that applied in this case, 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.’” [Citing Miller, 132 S.Ct. at
2469.]
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.” (Ibid.) 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 __ (slip opn.,
p. 12) [2012 WL 4841338] (emphasis added)).)
In the end, California’s “generally mandatory” prescription of LWOP is no more
constitutionally tolerable than the mandatory LWOP statutes struck down in Miller.
Although Guinn’s view of section 190.5(b) might otherwise have been a tenable
interpretation of the statutory text, that construction must give way in the face of Miller’s
-12-
constitutional command, just as the First District recently recognized in Moffett.1 In
order to preserve the statute’s constitutionality, this Court must construe 25-to-life, rather
than LWOP, as the presumptive choice under section 190.5(b).
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 – although
faithful to extant California case law – selected that term through an unconstitutional
presumption, which did not allow the court to give sufficient weight to his “diminished
culpability and heightened capacity for chance” as a youthful offender. (Miller, 132 S.Ct.
at 2469.)
In the recent Moffett opinion, the First District “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, A133032, slip opn., p. 12
[2012 WL 4841338].) The same remedy is in order here.
At the time of petitioner’s sentencing, Guinn’s construction of section 190.5(b)
was binding on trial courts throughout the state. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) Regardless of whether the judge here explicitly
referred to the standard governing the section 190.5(b) determination, the sentencing
court is presumed to have followed Guinn and to have treated LWOP as the “generally
mandatory” or “presumptive punishment.” (See generally Evid. Code § 664; People v.
1
A recent Second District opinion has upheld LWOP sentence for a juvenile
convicted of the rape and murder of his aunt. (People v. Gutierrez (Sept. 24, 2012;
B227606) __ Cal.App.4th __ [2012 WL 4336239 ].) 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; quotation marks omitted.]” (Silverbrand v. County of Los
Angeles (2009) 46 Cal.4th 106, 127.) Because Guiterrez did not consider any issue
concerning the constitutionality of that presumption, Moffett is the only published opinion
on that issue.
-13-
Mosley (1997) 53 Cal.App.4th 489, 496 [“a trial court is presumed to have been aware of
and followed the applicable law”].)
Hence, the court here 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.) Under that rule, the sentencing court
necessarily viewed its discretion to depart from the “presumptive” term of LWOP as
“circumscribed.” (Id. at 1142, 1143.)
Numerous cases attest that a sentence cannot stand where the court was operating
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.) Indeed, 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, 690-691.)
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 the First District recently ordered in
People v. Moffett (Oct. 12, 2012; A133032) __ Cal.App.4th __ (slip opn., p. 12). On
resentencing, the court should proceed from the premise that petitioner’s youth
significantly diminishes his culpability. It 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.)
-14-
III.
PETITIONER IS ENTITLED TO RESENTENCING, BECAUSE THE
SENTENCING 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,
petitioner’s sentence cannot stand because the sentencing court failed to consider the
distinctive mitigating factors of youth, which the Miller majority prescribed must be the
paramount factors in any such decision.
The trial court imposed LWOP based primarily on the circumstances of the
murder. {If sentencing transcript is available, discuss court’s sentencing reasons,
including whether there was any reference to youth-related mitigating factors.}
In Miller, the Supreme Court has done 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 v. Alabama, 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).)
Current California law allows a court to look to the aggravating and mitigating
factors applicable to adult determinate sentencing (Cal. Rules of Court, rules 4.421,
4.423) in choosing between the “presumptive” or “generally mandatory” 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 youth-related 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
-15-
a mitigating factor (see 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. (Id. 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.)
“[Y]outh is more than a chronological fact.” [Citation.] It is a time of
immaturity,
irresponsibility,
“impetuousness[,]
and
recklessness.
[Citation.] It is a moment and “condition of life when a person may be
most susceptible to influence and to psychological damage.” [Citation.]
And its “signature qualities” are all “transient.” [Citation.] (Miller at
2467.)
California’s “generally mandatory” sentencing scheme – allowing only
“circumscribed discretion” to depart from that “presumptive punishment” of LWOP
(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 dysfunctional.” Nor does section 190.5(b) adequately account for the role of
“familial or peer pressures.” 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.]” (Ibid.) Finally, because the section 190.5(b) determination here was not
anchored in the developmental characteristics delineated in Roper, Graham, and Miller –
-16-
including the “transience” of youthful recklessness and the “capacity for change” (id. 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).
A Florida reviewing court recently remanded a juvenile LWOP for reconsideration
under similar circumstances. (Daugherty v. State (Flor. App. Sept. 5, 2012) __ So.3d __
[2012 WL 3822108].)
Like California, Florida law did not prescribe “a statutorily
mandated sentence” of LWOP for a juvenile convicted of murder, but gave the trial judge
“discretion to impose a different punishment. [Fn.]” (Id., 2012 WL 3822108 at *2.) But
the Florida court recognized that Miller’s holding on the necessity of consideration of the
developmental factors diminishing a juvenile offender’s culpability also required the
sentencer in a discretionary jurisdiction to focus explicitly on those specific
characteristics. Although the sentencing court 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 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
life-without-parole sentence upon appellant.” (Id. at *3 (emphasis added).)
There is still greater cause for a similar remand here, where there is even less
evidence that the sentencing judge explicitly considered the mitigating developmental
factors associated with petitioner’s youth. As in Daughterty, the sentencing record does
not affirmatively demonstrate that the court specifically considered any of the factors
delineated in Miller. “[T]he sentencer needed to examine all these circumstances before
concluding that life without any possibility of parole was the appropriate penalty.”
(Miller, 132 S.Ct. at 2469.) Because the sentencing court, lacking the benefit of Miller,
failed to place those factors at the forefront of its decision, the Constitution demands that
-17-
this Court vacate petitioner’s sentence of LWOP and remand for resentencing in
accordance with Miller.
-18-
{Include this argument only if petitioner was convicted as a felony-murder
aider/abettor. If not, proceed with the state constitutional argument (current Part
V) and renumber accordingly.}
IV.
THE EIGHTH AMENDMENT CATEGORICALLY BARS LWOP FOR A
JUVENILE CONVICTED AS AN AIDER/ABETTOR TO FELONYMURDER, 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. Consequently, at the very least, petitioner is
entitled to a new sentencing hearing. However, petitioner submits his LWOP 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 petitioner,
who neither killed nor specifically intended to kill.2
2
As noted earlier, a recent (and not yet final) Second District opinion affirmed an
LWOP sentence for a juvenile convicted of the murder and rape of his aunt. (People v.
Gutierrez (Sept. 24, 2012; B227606) __ Cal.App.4th __ [2012 WL 4336239 ].) Gutierrez
is irrelevant to petitioner’s categorical challenge {include this bracketed phrase only if
the predicate felony was not a sexual assault: for two reasons}. Because Gutierrez
was the killer and sole participant in the murder/rape, that case does not implicate
Graham’s and Miller’s concerns over LWOP for a felony-murder accomplice who did
not personally kill. {Include rest of this footnote only if the predicate felony was not
a sexual assault: Second, there is a vast difference in the culpability of petitioner’s and
Gutierrez’s felony-murder convictions. While robbery or burglary may entail some threat
or 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 or burglary. (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.” (Cf. Miller, 132 S.Ct. at
2465.)}
-19-
As the prior appellate opinion and the underlying trial record reflect, petitioner
was tried and convicted on a felony-murder aiding/abetting theory. {If tried on both
personal commission and aiding/abetting theories, indicate jurors’ rejection of or
deadlock on any personal weapon use allegation.}
Miller’s companion case, Jackson v. Hobbs, similarly concerned a juvenile
convicted as an accomplice to felony-murder. (Miller, 132 S.Ct. at 2468.) Jackson urged
the Court to declare a categorical prohibition on LWOP for juveniles under these
circumstances (similar to that of Graham v. Florida). However, the Miller majority left
open the question of a possible “categorical” bar, because it resolved the case on the
alternative ground that Arkansas’ regimen of mandatory LWOP offended the Eighth
Amendment. (Miller at 2469.)
In its previous Graham opinion categorically proscribing LWOP for non-homicide
offenses by juveniles, the Court held: “[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, such as Jackson or petitioner, convicted of
murder based only 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.)
-20-
“Jackson’s family background and immersion in violence” further diminished his
culpability and militated against a sentence depriving him “of any prospect of release
from prison.” (Miller at 2468-2469.)
Although the Miller majority left open the question of a possible categorical bar,
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 whether its application is mandatory or
discretionary under state law.” (Miller, 132 S.Ct. 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.).)
As Justices Breyer and Sotomayor recognized, 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 that
relaxation of the mens rea requirement for the most severe available punishment does 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.).)
-21-
Justices Breyer’s and Sotomayor’s observations are directly applicable to
petitioner’s sentence.
California has explicitly modeled its felony-murder special
circumstance on Tison v. Arizona’s criteria for death-eligibility of an adult felony-murder
confederate. (§ 190.2(d).) The standard special circumstance instructions delivered at
petitioner’s trial required the jurors to find that petitioner acted either with an intent to
kill or “with reckless indifference to human life” and as “a major participant” in the
predicate felony. {Indicate which instruction given (CALJIC or CALCRIM), if
known.} (CALJIC 8.80.1; CALCRIM 703.)
Thus, petitioner’s jury was not required to make any finding of intent to kill, but
only that he displayed “reckless indifference.” However, as the Court emphasized again
and again throughout the Graham and Miller opinions, a greater proclivity toward
recklessness is a biological and developmental hallmark of youth and renders juvenile
offenders substantially less culpable and less deserving of a sentence precluding any
possibility of release than adults who commit otherwise similar crimes. “[J]uveniles’
‘lack of maturity and underdeveloped sense of responsibility ... often result in impetuous
and ill-considered 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.’” (Miller,
132 S.Ct. at 2465 (maj. opn.) (emphasis added).), Indeed, “immaturity, recklessness, and
impetuosity” are ‘“the same characteristics that render juveniles less culpable than
adults.” (Miller at 2465 (emphasis added).) “Those features are evident” in a felonymurder scenario such as petitioner’s, where “a botched robbery turns into a killing.”
(Ibid.) As in Miller’s companion case, Jackson v. Hobbs, petitioner’s “age could well
have affected his calculation of the risk” posed by his participation in the felony. (Id. at
2468.)
-22-
As Justice Breyer detailed, 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.” Felony-murder 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.).)
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” terms for nonhomicide juvenile offenses demonstrates the Court’s determination to adhere strictly to
Graham’s and Miller’s limitations on application of that most severe penalty. The Court
found Graham barred such a term, even though Cabellero had been convicted of three
counts of attempted murder with gun use. Thus, the California Supreme Court strictly
enforced Graham’s limitation of LWOP to actual homicides, even though the attempted
murder convictions necessarily reflected findings of specific intent to kill and Caballero
had been convicted on three such counts. “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.))
Consistent with Graham, Miller, and Caballero, this Court should find petitioner
categorically ineligible for LWOP, because he did not personally kill or intend to kill.
Petitioner’s “twice diminished moral culpability” renders the preclusion of any possibility
-23-
of parole cruel and unusual.
Accordingly, this Court should reduce petitioner’s
punishment for murder from LWOP to the statutory option of 25-years-to-life (§
190.5(b)).
-24-
V.
PETITIONER’S SENTENCE IS “CRUEL OR UNUSUAL” UNDER THE
CALIFORNIA CONSTITUTION.
Petitioner’s LWOP sentence and the procedure by which the sentencing court
chose that disposition offend Article I, section 17, of the California Constitution, as well
as the Eighth Amendment.
Article I, section 17, proscribes “cruel or unusual” punishment (emphasis added).
Like other state constitutional provisions, it has independent force. In applying that
provision, state courts are informed by, but not limited to, extant 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) 560 U.S. __, 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.)3
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. As succinctly summarized in the recent
Nunez opinion:
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
3
Nunez also found an Eighth Amendment violation, anticipating the later holding
in Graham. (Nunez at 733-738)
-25-
burden” to show the sentence is disproportionate to his level of culpability
[citation]. (In re Nunez, 173 Cal.App.4th at 725 (emphasis added).)
In its landmark Dillon decision, the California Supreme Court struck down a firstdegree 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 477-489.) The Court found the 25to-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. The shooting in this case was a response to
a suddenly developing situation that defendant perceived as putting his life in immediate
danger. ” 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.) Consequently, “[b]ecause 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
offenders 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
-26-
Supreme Court has never had occasion to decide a state “cruel or unusual punishment”
challenge to an LWOP term for a juvenile homicide. 4
Miller’s discussion of the developmental and psychological factors diminished the
culpability of
juvenile offenders provides cause for re-examination of
the
constitutionality of juvenile LWOP under state, as well as federal law. Application of the
three Lynch factors to petitioner’s LWOP sentence provides an even more compelling
case for a finding of disproportionality than the lesser 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’s 1984
opinion in Dillon 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, “science and social science” research over the intervening decades have
provided 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.)
4
However, a number of pre-Miller appellate opinions have rejected Dillon
challenges to LWOP terms under the facts of those cases. (E.g., People v. Guinn (1994)
28 Cal.App.4th 1130, 1145-1147; People v. Blackwell (2011) 202 Cal.App.4th 144, 158159.)
-27-
{Include this ¶ and the following block quote only if felony-murder
conviction: Dillon’s discussion of the nature of the homicide is equally relevant here.
The felony-murder special circumstance, like the underlying felony-murder rule, sweeps
in numerous offenders whose actual conduct and mental state would not otherwise
support first-degree murder liability (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.)
Dillon found the 25-to-life punishment there excessive, even though the 17-yearold offender was the actual killer (firing 9 times) and acted with specific intent to kill.
(Id. at 452, 489.) Under that sentence, Dillon would still have come up for parole
consideration sometime in his 40's or probably earlier.5 Plainly, 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 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
Under then-applicable regulations, “defendant 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).)
5
-28-
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.) {Include
this sentence only if applicable: Indeed, this petitioner, who began his LWOP sentence
in _____ has already served more than half of his life in prison.}
Petitioner recognizes that a full examination of his individuality 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 –
petitioner submits that 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 cold-blooded premeditation does
not subject a killer to LWOP, but only to the base first-degree murder punishment of 25to-life. Premeditation is not a special circumstance in its own right, nor is use of a
firearm or other weapon.6 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
6
Even if the premeditated murderer personally shoots and kill the victim (§
12022.53(d)), the aggregate punishment (50 years to life) would still be less than LWOP.
Unlike petitioner’s punishment, 50-to-life would still hold out the possibility of parole
within a juvenile offender’s life expectancy.
-29-
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. Petitioner’s punishment is equal
to that for all other forms of special circumstance murder. Yet most of those categories
involve dramatically greater culpability than petitioner’s offense -- such as torture, use of
a destructive device, murder-for-hire, multiple murders, or murder to obstruct law
enforcement or the judicial process, such as killings of judges, prosecutors, witnesses, or
police officers. (Cf. § 190.2(a).) {Include this sentence only if applicable: Even among
felony-murders, petitioner’s theft-related predicate felony involves far less inherent
violence, cruelty, or callousness than many of the 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 the challenged
penalty with those prescribed for the same offense in other jurisdictions.” (Dillon, 34
Cal.3d at 487 fn. 38.)
As the California Supreme Court has recently demonstrated, 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.)7 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.)
-30-
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],” and “[a]n 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 v. Florida, 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 decency” (ibid.) in
giving effect to our state constitutional prohibition on “cruel or unusual punishment”
(Cal. Const., art. I, § 17).8
7
Superseded by subsequent initiative amendment (Prop. 8), Strauss v. Horton
(2009) 46 Cal.4th 364.
8
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 v. Alabama, 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 (cf. Guinn, 28 Cal.App.4th at 1142).
-31-
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) (although several others later joined
that group).
As reflected in such cases as 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 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.) However, as discussed above, 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.
***
For the reasons discussed here, the same developmental and psychological
characteristics of youthful offenders on which the U.S. Supreme Court relied in its 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. Accordingly, petitioner submits that his LWOP
sentence and the process under which the trial court selected that punishment also violate
-32-
Article I, section 17, on each of the grounds addressed in his preceding federal
arguments. Specifically, petitioner contends:
$
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.
$
{Include only if applicable: An LWOP sentence 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 aiderabettor 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.
-33-
V.
THE RECENTLY ENACTED, BUT NOT YET OPERATIVE, SECTION
1170(d)(2) APPLICATION PROCEDURE DOES NOT PROVIDE A
REMEDY FOR PETITIONER’S CONSTITUTIONAL CLAIMS.
As this Court is aware, the Governor has recently signed legislation establishing a
new discretionary statutory procedure for inmates serving LWOP for juvenile offenses to
petition sentencing courts to “recall” and reconsider such 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-yetoperative 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).)9 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 such a hearing is granted, the sentencing court “shall have
the discretion to recall the sentence and commitment previously ordered.”
(Subd.
(d)(2)(G).) The statute includes a non-exclusive list of “factors that the court may
consider in determining whether to recall and resentence,” including offense-related
factors such as the presence of an adult co-defendant and inmate-related factors such as
9
Subdivision references are to Penal Code section 1170 (as amended by S.B. 9,
eff. Jan. 1, 2013), unless otherwise noted.
-34-
prior violent juvenile adjudications, “developmental disabilities,” and evidence of
rehabilitation. (Subd. (d)(2)(F).) If, at the end of that hearing process, the court does
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. 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. Instead, the California post-conviction procedure for an inmate to raise
Eighth Amendment 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 or Cure the Constitutional
Violations Because Sentencing Remains Subject to the Same Defective
Statutory Procedures, Including Section 190.5(b)’s Presumption of
-35-
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. As outlined above, 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. {Include this
bracketed sentence only if applicable: A defendant convicted of felony-murder based
on aiding-abetting will remain subject to a potential LWOP disposition so long as he
acted with “reckless disregard” (§ 190.2(d)) – contrary to the constitutional limitation of
LWOP to juvenile offenders who either killed or intended to kill. (Part IV, 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.)
In essence, the section 1170(d)(2) procedure is a loop – albeit a circuitous one.
Even if an inmate successfully navigates that procedure, the “recall” ultimately deposits
him back where he started – facing sentencing under the same constitutionally-flawed
procedure which loads the dice against him by designating LWOP, rather than a paroleeligible sentence, as the “presumptive punishment.”
-36-
D.
Consideration of the Petition Is Essential to Prevent Forfeiture of
Petitioner’s Claims Under Miller v. Alabama.
Not only may petitioner seek habeas review of these constitutional claims now.
As a practical matter, he must do so.
Approximately ____ 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, under either state or federal law, and thus forfeiting consideration of the
merits.
{Include if applicable: Petitioner has not served 15 years of his sentence and will
not even be eligible to file a section 1170(d)(2) petition for __ years.} {Include if
petitioner has served 15 years: Section 1170(d)(2) does not even go into effect until
January 2013, and it would almost certainly take several months for the application,
review, and hearing process outlined there to run its course.} If petitioner waited until
after submission and disposition of a “recall petition” for “discretionary” relief to file a
habeas petition raising these constitutional challenges, 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 relief 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 and will
continue to run as long as no state post-conviction petition has been filed. (Cf. 28 U.S.C.
§ 2244(d)(1)(C).)
There is not yet any case law, state or federal, defining the time limits for Millerbased habeas claims. But petitioner does not wish to join the ranks of the many inmates
who have inadvertently forfeited consideration of the merits of various constitutional
claims through overly optimistic assumptions about how state and federal courts will
apply those jurisdictions’ respective timeliness rules.
-37-
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 petitioner’s
constitutional challenges to his LWOP sentence are ripe for review.
-38-
VI.
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, petitioner submits that the
ultimate disposition of this habeas proceeding must be an order vacating petitioner’s
LWOP
sentence 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 petition has stated a prima facie case
for relief. In determining that threshold question, this Court should take the petition’s
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 habeas proceeding on a fully-developed factual record. (Romero
at 740.)
Issuance of an OSC simply 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.)
Petitioner submits that his 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 a juvenile
homicide, this “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
-39-
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.) As discussed above, in Part II, one published 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].) Petitioner submits that 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 difficult questions requiring
issuance of an OSC.
The Supreme Court itself has signaled that the nominally “discretionary” character
of California’s statute does not insulate juvenile LWOP’s under section 190.5(b) from
reconsideration under Miller v. Alabama. Just days after its issuance of the Miller
opinion, the Supreme Court remanded an 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.” 10 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 head, execution style” (as recounted in the state appellate
opinion).11 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
petitioner’s case does as well.
Accordingly, petitioner respectfully asks this Court to issue an order to show
cause.
10
Brief in Opposition to Petition for Writ of Certiorari, Guillen v. California, No.
11-8655, pp. 6-7 (filed May 15, 2012).
11
See People v. Aleman et al. (Cal.App. 2011; B220310) 2011 WL 3805955.
-40-
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.
This petition has been prepared using generic “form” arguments concerning Miller v.
Alabama’s application to California LWOP sentences. The assistance of counsel is
necessary to tailor these arguments to petitioner’s individual case.
Earlier this year, the U.S. Supreme Court specifically recognized the value of
appointment of counsel during state post-conviction proceedings. Regardless of whether
there is any state or federal 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.” (Martinez v. Ryan (2012) __ U.S. ___, 132 S.Ct. 1309, 1319.) As with
the ineffective assistance claim in Martinez, “without the help of an adequate attorney, a
prisoner will have ... difficulties vindicating a substantial” cruel and unusual punishment
claim, such as those posed by Miller v. Alabama. (Martinez at 1317.)
Accordingly, as stated in the accompanying motion, petitioner 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.
CONCLUSION
For the foregoing reasons, petitioner 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.
-41-
Date: ____________
___________________________
Attorney for Petitioner
-42-