Evidence of mitigation for youthful offenders ordered by Court of Appeal

THE PEOPLE, Plaintiff and Respondent, v. KEANDRE DION WINDFIELD et al., Defendants and Appellants. (Cal. Ct. App., Dec. 20, 2019, No. E055062) 2019 WL 6974388

Facts: Defendants Harquan Johnson and KeAndre Windfield were each convicted of one count of murder and one count of attempted murder, and assault with a semi-automatic firearm, along with gun discharge and gang enhancement allegations as to the murder and attempted murder counts. The charges arose from the shooting of two members of their own gang, the Ramona Blocc Hustlas, resulting in the death of one of them. Both were sentenced to prison for 90 years to life. They appealed raising various claims. In the original opinion, filed August 19, 2014, we affirmed the convictions for both defendants, but reversed Johnson’s sentence pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354, because, as a juvenile at the time of the crime, his sentence of 90 years to life was the functional equivalent of a term of life without possibility of parole and we directed other modifications of the sentence and abstracts of judgment.

On May 26, 2016, the Supreme Court issued its decision in People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and retransferred this case to our court with directions to reconsider Johnson’s sentence in light of Franklin. We reconsidered Johnson’s sentencing claim in light of Franklin.

Johnson and Windfield again petitioned for review. The Supreme Court granted review, deferring further action pending consideration and disposition of a related issue in People v. Canizales, which was then pending in that court. Following the issuance of that opinion, the Supreme Court retransferred the cases back to this court with directions to vacate our opinion and to reconsider the cause in light of People v Canizales (2019) 7 Cal.5th 591, and People v. Perez (2016) 3 Cal.App.5th 612, 619. We do so now.

FACTS:
Windfield’s Sentence as Cruel and Unusual

Windfield was 18 years old when he committed the crimes and sentenced to three 25-year-to-life terms, plus a life term with a 15-year minimum which was run concurrently with the time imposed in another case of two 25-year-to-life terms, two 15-year-to-life terms plus 40 years. Windfield contends that this sentence violates Miller v. Alabama (2012) 567 U.S.460 [132 S.Ct. 2455] (Miller).

Windfield points out that his minimum parole eligibility extends beyond any life expectancy he could possibly have. In Miller, the United States Supreme Court held “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S. at p. 465 [132 S.Ct. at p. 2460]; see also Graham v. Florida (2010) 560 U.S. 48, 74 [130 S.Ct. 2011, 2030, 176 L.Ed.2d 825, 845], holding that a sentence of life without parole for a juvenile offender who did not commit homicide violated the Eighth Amendment].)

Windfield argues that scientific literature shows that the features of juveniles discussed in Miller extend to 18 year olds. However, there is no precedent for us to declare that Miller applies to 18 year olds. Our legislature has determined that 18 is the age at which a person is considered an adult. (People v. Gamache (2010) 48 Cal.4th 347, 405.)

In People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 (Argeta), the appellate court rejected an identical argument, holding, “while ‘[d]rawing the line at 18 years of age is subject … to the objections always raised against categorical rules … [, it] is the point where society draws the line for many purposes between childhood and adulthood.’ [Citations.] We respect the line our society has drawn and which the United States Supreme Court has relied on for sentencing purposes, and conclude [that the defendant’s] sentence is not cruel and/or unusual under Graham [v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011]], Miller, supra, 567 U.S. 460 [132 S.Ct. 2455], or [People v.] Caballero [ (2012) 55 Cal.4th 262].”

Notwithstanding the stated judicial policy, section 3051, added in 2013 pursuant to Senate Bill 260, and amended in 2014 (effective in 2015) pursuant to Senate Bill 261, entitles a prisoner serving a term of 25 years to life to a Youth Offender Parole hearing in the 25th year of his incarceration, if the offender was under the age of 23 at the time of his offense. (§ 3051, subd. (b)(3).)

In Perez, supra, the Fourth District, Division Three agreed with the holding of Argeta, supra, and held that the lengthy indeterminate term did not violate the prohibition against cruel and unusual punishment under Miller and Gutierrez because the defendant was not a juvenile. The reviewing court also noted that the recent passage of Senate Bill 260, enacting sections 3051, 3046, subdivision (c), and 4801, subdivision (c), provided for youth offender parole eligibility for persons who were 25 years old or younger at the time of committing the controlling offense.

However, in light of the decision in Franklin, supra, 63 Cal.4th at page 284, the court held that the defendant did not have an opportunity “ ‘to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing.’ [Citation.]” (Perez, supra, 3 Cal.App.5th at p. 619.) It concluded he was entitled to a limited remand at which hearing both parties could make an accurate record of the defendant’s characteristics and circumstances at the time of the offense so that the Board of Parole Hearings, years later, could discharge its duties and give proper weight to the youth-related factors.

Windfield and a Youthful Offender Parole Hearing

Windfield was under the age of 23 at the time of his offense and will be eligible for parole in the 25th year of his term pursuant to section 3051. Although he is not entitled to resentencing, he is entitled to a limited remand at which he and the People may make an accurate record of his characteristics and circumstances at the time of the offense for use by the Board of Prison Terms in determining his parole eligibility.

Johnsons’s Sentence as Cruel and Unusual-Reconsideration in light of Franklin 

Johnson was 17 when he committed these crimes and received a sentence of 90 years to life. He points out that the California Supreme Court has held that a sentence of 110 years to life is the functional equivalent of a sentence of life without parole. (People v. Caballero (2012) 55 Cal.4th 262, 295 (Caballero); see also People v. Mendez (2010) 188 Cal.App.4th 47, 63 [a sentence of 84 years to life is the same]; Argeta, supra, 210 Cal.App.4th at p. 1482 [a term of at least 75 years in prison for a defendant who was 15 years old at the time of the crime “likely requires that he be in prison for the rest of his life”].) Johnson argues the sentencing court improperly imposed an indeterminate life sentence without individualized consideration of him as a person. In our original opinion, we agreed, and remand the matter for resentencing to give the trial court the opportunity to consider the Miller factors.

After we filed our original opinion, the Supreme Court granted review on its own motion and held it pending its decision in the then pending case of Franklin. After Franklin was decided, the Supreme Court retransferred the case to us for reconsideration in light of Franklin.

In Miller, supra, the United States Supreme Court held that it is a violation of the Eighth Amendment to impose a mandatory life without parole sentence upon a juvenile in a homicide case because such a penalty “precludes consideration of [the juvenile’s] chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences.” (Miller, supra, 567 U.S. at p. 477.) Subsequently, the United States Supreme Court held in Graham v. Florida, supra, that the Miller prohibition applied to all sentences that were the functional equivalent of life without possibility of parole.

In Franklin, our Supreme Court held that the constitutional claim of cruel and unusual punishment, established by the United States Supreme Court in Miller and Graham had been mooted by the passage of Senate Bill No. 260 (2013–2014 Reg. Sess.) (Senate Bill No. 260), embodied in sections 3051 and 4801. Those sections were enacted to bring juvenile sentencing in conformity with Miller, Graham, and Caballero, supra. (Franklin, supra, 63 Cal.4th at p. 268.) Section 3051 provides for a youth offender parole hearing after a juvenile has served 25 years to life on a first degree murder conviction. Although the constitutional claim was mooted, the Supreme Court concluded Franklin had raised “colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.” (Franklin, supra, 63 Cal.4th at pp. 268-269.)

Having been charged in adult court as a juvenile, Johnson is entitled to an opportunity to make a record of mitigating evidence tied to his youth.

In Franklin, the Supreme Court held that the defendant was not entitled to be resentenced, but, because it was unclear whether the defendant had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing, the Supreme Court remanded the matter to the lower court to make a record of information relevant to his eventual youth offender parole hearing. (Franklin, supra, 63 Cal.4th at p. 284.)

Johnson  is not entitled to be resentenced, he is entitled to an opportunity to make a record of matters that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. (Franklin, supra, 63 Cal. 4th at p. 284.)

We now hold, pursuant to the Supreme Court’s direction, that while Johnson is not entitled to resentencing, he is entitled to an opportunity to make a record of the Miller considerations in the trial court, to be considered at his eventual youth offender parole hearing.

DISPOSITION-remand to provide evidence of mitigation under Franklin

The convictions for both defendants are affirmed.

The Court affirmed the sentence for Windfield but order a limited remand for a hearing in the trial court at which hearing both defendant and the People can make an accurate record of the defendant’s characteristics and circumstances at the time of the offense.

The Court also ordered a limited remand of Johnson’s sentence to provide an opportunity to present evidence of mitigation due to his youth, pursuant to the holding of Franklin.