We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

Sentence of LWOP for a 16-year old does not violate 8th Amendment

THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN BIRDSALL, Defendant and Appellant. (Cal. Ct. App., Apr. 22, 2022, No. A159555) 2022 WL 1198020

Summary: Birdsall was convicted of first degree murder committed by means of lying in wait and during a robbery and a burglary (§ 190.2, subd. (a)(15), (17)(A), (G)). The trial court sentenced Birdsall, who was 16 years old at the time of the crime, to life imprisonment without the possibility of parole (LWOP) for the murder, plus a consecutive five-year term for arson.Birdsall challenged his sentence on constitutional and other grounds. Because a youth offender parole hearing will be available to Birdsall during his 25th year of incarceration (when he will be 41 years old), the sentence imposed on him, although denominated LWOP, does violate the Eighth Amendment
Eighth Amendment Claims and sentencing under PC 190.5
The court sentenced Birdsall pursuant to section 190.5, subdivision (b), which provides that, for 16- and 17-year-old offenders convicted of special circumstance murder, the court has discretion to impose a sentence of LWOP or 25 years to life.The California Supreme Court held in People v. Gutierrez (2014) 58 Cal.4th 1354, 1387 (Gutierrez) that this statute “confers discretion on the sentencing court” to choose either of these sentences, “with no presumption in favor of life without parole.” Gutierrez held that section 190.5, subdivision (b) requires a sentencing court considering an LWOP sentence for a juvenile offender to consider evidence relevant to the youth-related factors identified in Miller v. Alabama (2012) 567 U.S. 460, where the United States Supreme Court held mandatory LWOP sentences for juvenile offenders violate the Eighth Amendment to the United States Constitution. (Gutierrez, supra, 58 Cal.4th at pp. 1387–1390; Miller, supra, at pp. 465, 477–479.)

Factors to be considered in sentencing juvenile to LWOP
Under Miller and Gutierrez, the trial court “must consider evidence that may exist regarding ‘a juvenile offender’s “chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences” ‘; ‘ “the family and home environment that surrounds [the juvenile]—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional” ‘; ‘ “the circumstances of the homicide offense, including the extent of [the juvenile defendant’s] participation in the conduct and the way familial and peer pressures may have affected him” ‘; ‘whether the offender “might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys” ‘; and ‘ “the possibility of rehabilitation.” ’ ” (In re Kirchner (2017) 2 Cal.5th 1040, 1048.)

At Birdsall’s sentencing hearing in September 2015 (i.e., after the decisions in Miller and Gutierrez), the trial court carefully explained its analysis of each of the Miller factors before sentencing Birdsall to LWOP.Birdsall relies on the United States Supreme Court’s 2016 decision in Montgomery v. Louisiana (2016) 577 U.S. 190, where the court clarified that Miller announced a substantive rather than a procedural rule, and therefore operates retroactively. (Montgomery, supra, 577 U.S. at p. 212; see In re Kirchner, supra, 2 Cal.5th at p. 1048.) “Montgomery explained that ‘Miller … did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of “the distinctive attributes of youth.” Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “ ‘unfortunate yet transient immaturity.’ ” Because Miller determined that sentencing a child to life without parole is excessive for all but “ ‘the rare juvenile offender whose crime reflects irreparable corruption,’ ” it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. Miller announced a substantive rule of constitutional law.’ ” (In re Kirchner, supra, 2 Cal.5th at p. 1048, quoting Montgomery, supra, at p. 208.)

Birdsall argued that section 190.5, subdivision (b) facially violates the Eighth Amendment because it allows imposition of an LWOP sentence on a juvenile defendant based on an exercise of discretion after consideration of only the “ ‘procedural factors’ ” identified in Miller, and without a decision or finding as to whether Montgomery’s substantive requirement has been met, i.e., that the juvenile’s crime reflects irreparable corruption rather than the transient immaturity of youth. Birdsall also contends his LWOP sentence, imposed under section 190.5, subdivision (b), violates the Eighth Amendment as construed in Montgomery because the trial court, although it applied the Miller factors in exercising its discretion under the statute, did not expressly or impliedly find that Birdsall’s crime reflected irreparable corruption.

Birdsall acknowledged that the recent United States Supreme Court decision in Jones v. Mississippi (2021) ___ U.S. ___ [141 S.Ct. 1307], “impacts” his Eighth Amendment arguments. In Jones, the high court held that, under Miller and Montgomery, the Eighth Amendment, although it prohibits mandatory LWOP sentences for juveniles, does not require a sentencer imposing an LWOP sentence on a juvenile offender to make a separate factual finding that the defendant is permanently incorrigible, or to provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible. (Jones, supra, 141 S.Ct. at pp. 1311, 1313, 1318–1319, 1321.) Instead, “[i]n a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.” (Id. at p. 1313.)
Jones resolves Birdsall’s Eighth Amendment challenges to section 190.5, subdivision (b) (which makes LWOP sentences discretionary for juveniles) and to his sentence (which was imposed after an exercise of discretion under the statute).
Under California Law Juveniles with LWOP a may be considered for parole
Under California statutory law, Birdsall, despite his LWOP sentence, will have an opportunity to be considered for parole. Section 3051, subdivision (b)(4) (a provision that took effect January 1, 2018) currently provides: “A person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole at a youth offender parole hearing during the person’s 25th year of incarceration.” At the youth offender parole hearing, the Board of Parole Hearings must “give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c); see § 3046, subd. (c).)

In People v. Franklin (2016) 63 Cal.4th 261, 268, 278–280 (Franklin), the California Supreme Court held the availability of a youth offender parole hearing under section 3051 mooted the defendant’s claim that his mandatory prison sentence of 50 years to life for a murder he committed at age 16 was unconstitutional under Miller. The Franklin court explained: “Sections 3051 and 3046 have thus superseded the statutorily mandated sentences of inmates who, like Franklin, committed their controlling offense before the age of 18. The statutory text makes clear that the Legislature intended youth offender parole hearings to apply retrospectively, that is, to all eligible youth offenders regardless of the date of conviction.” (Franklin, supra, at p. 278.) The court continued: “In sum, the combined operation of section 3051, section 3046, subdivision (c), and section 4801 means that Franklin is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither LWOP nor its functional equivalent. Because Franklin is not serving an LWOP sentence or its functional equivalent, no Miller claim arises here. The Legislature’s enactment of Senate Bill No. 260 [which took effect January 1, 2014, and added §§ 3051, 3046, subd. (c), and 4801, subd. (c) to the Penal Code] has rendered moot Franklin’s challenge to his original sentence under Miller.” (Id. at pp. 279–280, 276.)

When Franklin was decided in 2016, section 3051 excluded persons sentenced to LWOP from eligibility for a youth offender parole hearing. (Franklin, supra, 63 Cal.4th at pp. 277–278, citing § 3051, former subd. (h); id. at p. 268.) The Franklin court noted the context in which it was ruling, stating: “Our mootness holding is limited to circumstances where, as here, section 3051 entitles an inmate to a youth offender parole hearing against the backdrop of an otherwise lengthy mandatory sentence.

The Legislature subsequently (in Senate Bill No. 394 (2017–2018 Reg. Sess.), which took effect January 1, 2018) “extend[ed] the availability of a mandatory parole hearing to juveniles sentenced to life without parole.” (People v. Ochoa (2020) 53 Cal.App.5th 841, 850.) In light of this amendment, which added subdivision (b)(4) to section 3051, the Court of Appeal held in Ochoa that the mootness principle announced in Franklin applies to juveniles sentenced to LWOP under section 190.5, subdivision (b). The Ochoa court explained: “By affording those individuals a meaningful opportunity for release, the Legislature has effectively mooted any claim that imposition of life without parole on a juvenile offender violates the Eighth Amendment. (See Franklin, supra, 63 Cal.4th at pp. 279–280 [finding Miller issues moot with regard to defendants subject to § 3051, subd. (b)]; In re Kirchner (2017) 2 Cal.5th 1040, 1054 [statute that provides juvenile offenders sentenced to life terms with parole hearings no later than their 25th year of incarceration is an example of adequate response to Miller]; [citation].)” (Ochoa, supra, at p. 850.)

The Franklin mootness principle applies here. Birdsall’s challenges on Eighth Amendment grounds to section 190.5, subdivision (b) and to the LWOP sentence imposed on him under that statute (and the analogous challenges he seeks to assert on reply under the California Constitution) are moot. By enacting section 3051, subdivision (b)(4), the Legislature has afforded to Birdsall and other juveniles sentenced to LWOP a meaningful opportunity for release. (People v. Ochoa, supra, 53 Cal.App.5th at p. 850; see Montgomery v. Louisiana, supra, 577 U.S. at p. 212 [“A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”].)

 

Contact Information