Juvenile offenders sentenced to de facto life without parole sentences may petition for resentencing
The PEOPLE, Plaintiff and Respondent, v.Frank Eli HEARD, Defendant and Appellant; D079237; Filed September 20, 20222022 WL 4353385 (Cal.App. 4 Dist.)
Summary: Heard was sentenced to a term of 23 years plus 80 years to life for two counts of attempted willful, deliberate and premeditated murder for a drive-by shooting he committed at age 15, and one count of voluntary manslaughter for a homicide he committed just after he turned 16. After 15 years in prison, Heard petitioned the trial court to recall his sentence and resentence him to a lesser sentence under Penal Code section 1170, former subdivision (d)(2) (now subdivision (d)(1)).
Under this provision, a juvenile offender who “was sentenced to imprisonment for life without the possibility of parole” and has been incarcerated for at least 15 years “may submit to the sentencing court a petition for recall and resentencing.” The trial court denied Heard’s petition, finding him ineligible for relief because he was not sentenced to a term of life without the possibility of parole.
Heard appealed, presenting two issues of first impression.
- Heard asserts the resentencing provision should be interpreted to apply not only to juvenile offenders sentenced to explicitly designated terms of life without parole, but also to a juvenile offender, like him, who have been sentenced to terms that are the functional equivalent of life without parole.
- Heard asserts a contrary interpretation of the resentencing provision would violate his constitutional right to equal protection of the laws.
Holding: The Court of Appeal interpreted section 1170, subdivision (d)(1)(A), to limit eligibility to petition for recall and resentencing to juvenile offenders sentenced to explicitly designated life without parole terms. But concluded that denying juvenile offenders, who were sentenced to the functional equivalent of life without parole, the opportunity to petition for resentencing violates the guarantee of equal protection. The Court reversed the trial court’s order and remanded for further proceedings
Changes in Juvenile Sentencing Law
Beginning with Roper v. Simmons (2005) 543 U.S. 551 (Roper) in 2005, the United States Supreme Court held the Eighth Amendment categorically bars imposition of the death penalty on offenders who were under 18 when their crimes were committed.
Five years after Roper, the United States Supreme Court held in Graham v. Florida (2010) 560 U.S. 48 Graham) that the Eighth Amendment categorically bars the imposition of a sentence of life without parole on a juvenile offender who did not commit homicide. The Graham court observed: “As compared to adults, juveniles have a ‘ “lack of maturity and an underdeveloped sense of responsibility” ’; they ‘are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters are ‘not as well formed.’
The Graham court “likened a life without parole sentence for nonhomicide [juvenile] offenders to the death penalty itself, given their youth and the prospect that, as the years progress, juveniles can reform their deficiencies and become contributing members of society.” (People v. Caballero (2012) 55 Cal.4th 262, 266 (Cabellero) citing Graham..To avoid violating the Eighth Amendment, the high court held that states “need not guarantee the [nonhomicide] offender eventual release” but must provide “some realistic opportunity to obtain release.” (Graham, at p. 82, 130 S.Ct. 2011.)
In Miller v. Alabama (2012) 567 U.S. 460, 471 (Miller), the United States Supreme Court extended Graham’sreasoning to homicide cases and held the Eighth Amendment forbids sentencing schemes that make life without parole the mandatory punishment for a juvenile convicted of homicide.
The Miller court did not extend Graham’s categorical ban to homicide cases and foreclose life without parole terms for juvenile homicide offenders, but it held the sentencing court must have discretion to impose a lesser sentence.
In Caballero, the California Supreme Court held that an aggregate 110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses contravenes Graham’s mandate against cruel and unusual punishment under the Eighth Amendment. ThenCourt concluded that under Graham, “sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
- Senate Bill No. 9 (2011–2012 Reg. Sess.) (Senate Bill 9) Adds Former Subdivision (d)(2), Now Subdivision (d)(1), to Section 1170
Effective January 1, 2013, Senate Bill 9 added former subdivision (d)(2) to section 1170. It created “a procedural mechanism for resentencing of defendants who were under the age of 18 at the time of the commission of their offenses and who were given [life without parole] sentences.” When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing. (§ 1170, former subd. (d)(2)(A)(i), now subd. (d)(1)(A).)
The qualifying circumstances are (1) the defendant “was convicted pursuant to felony murder or aiding and abetting murder provisions of law”; (2) the defendant does not have juvenile felony adjudications for assault or other violent felonies prior to the offense that resulted in the sentence being considered for recall; (3) the defendant committed the offense with at least one adult codefendant; or (4) the defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation. ( “If the court finds by a preponderance of the evidence that one or more of the qualifying circumstances in the petition are true, the court must recall the defendant’s sentence and hold a hearing to resentence the defendant.”
If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, the defendant may submit another petition for recall and resentencing after 20 and 24 years of incarceration.
In Kirchner, the California Supreme Court held this statutory resentencing procedure is not adequate to cure Miller error. (Kirchner, supra, 2 Cal.5th at pp. 1043, 1052–1056, 216 Cal.Rptr.3d 876, 393 P.3d 364.)
2.Effective January 1, 2014, Senate Bill 260 added sections 3051, 3046, subdivision (c), and 4801, subdivision (c), to the Penal Code. (Stats. 2013, ch. 312, §§ 3, 4 & 5; see People v. Franklin (2016) 63 Cal.4th 261, 276–277(Franklin) [discussing this history].) Senate Bill 260 was passed “explicitly to bring juvenile sentencing into conformity with Graham, Miller, and Caballero.” (Franklin, at p. 277, 202 Cal.Rptr.3d 496, 370 P.3d 1053.)
Senate Bill 260 added of section 3051, which requires the Board of Parole Hearings (Board)] to conduct a ‘youth offender parole hearing’ during the 15th, 20th, or 25th year of a juvenile offender’s incarceration depending on the offender’s ‘ “[c]ontrolling offense,” ’ which is defined as ‘the offense or enhancement for which any sentencing court imposed the longest term of imprisonment.’ ”
Section 1170, Subdivision (d)(1), Limits Eligibility to Petition for Resentencing to Juvenile Offenders Sentenced to Actual Life Without Parole
Second, section 1170, subdivision (d)(1)(A), uses the singular when referring to “the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole.” For a single offense to result in a life without parole sentence, the sentence must be one of an explicitly designated life without parole. The functional equivalent of life without parole results only when a defendant receives multiple sentences for multiple offenses, or an offense plus one or more enhancements, that add up to a lifelong prison commitment with no realistic opportunity for release. The use of the singular when referring to “the offense for which the defendant was sentenced” suggests the Legislature meant an explicitly designated life without parole sentence. (§ 1170, subd. (d)(1)(A).)
Denying Juvenile Offenders Like Heard Who Were Sentenced to the Functional Equivalent of Life Without Parole the Opportunity to Petition for Resentencing Violates the Constitutional Guarantee of Equal Protection
Heard Is Similarly Situated With the Juvenile Offenders Eligible to Seek Resentencing Under Section 1170, Subdivision (d)(1)
“The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a) of the California Constitution both prohibit the denial of equal protection of the laws. ‘The equal protection guarantees of [both Constitutions] are substantially equivalent and analyzed in a similar fashion.’ ” “The concept of equal protection recognizes that persons who are similarly situated with respect to a law’s legitimate purposes must be treated equally.” (People v. Brown(2012) 54 Cal.4th 314, 328.)
At the time Heard was sentenced, section 3051 had not yet been enacted, and he was required to serve his determinate term plus the full minimum period of confinement of each of his life sentences before becoming parole eligible. Heard would have to serve 103 years before becoming parole eligible. Such a sentence constitutes a de facto life without parole sentence.
The Resentencing Provision’s Differential Treatment of Juvenile Offenders Sentenced to Life Without Parole and Juvenile Offenders Sentenced to the Functional Equivalent of Life Without Parole Fails Rational Basis Scrutiny
There is no legitimate reason for making juvenile offenders sentenced to explicit life without parole terms eligible to seek resentencing but not juvenile offenders sentenced to the equivalent of a life without parole sentence. Both groups, subject to limited exceptions, are now eligible for youth offender parole hearings. Heard will receive his youth offender parole hearing after 25 years of incarceration; so will a juvenile offender sentenced to an explicit term of life without parole. (§ 3051, subd. (b)(3), (4).) But only the latter group is permitted to petition for resentencing.
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