BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

                                                                     9
                                                                      
                                                                      
          SB 9 (Yee)                                                  
          As Introduced December 6, 2010
          Hearing date:  April 5, 2011
          Penal Code
          MK:mc

                                      SENTENCING  

                                       HISTORY

          Source:  Human Rights Watch; National Center for Youth Law

          Prior Legislation: SB 399 (Yee) - failed; Assembly Floor 2010
                       SB 999 (Yee) - 2008; died on the Senate floor
                       SB 1223 (Kuehl) - 2004; died on Assembly Suspense


          Support:  Advancement Project; American Civil Liberties Union; 
                    American Federation of State, County and Municipal 
                    Employees; American Probation and Parole Association; 
                    American Psychiatric Association; Bar Association of 
                    San Francisco; Books Not Bars, Ella Baker Center for 
                    Human Rights; Buddhist Peace Fellowship; California 
                    Attorneys for Criminal Justice; California Catholic 
                    Conference; California Church IMPACT; California 
                    Coalition for Women Prisoners; California Communities 
                    United Institute; California National Organization for 
                    Women; California Public Defenders Association; 
                    California Psychiatric Association; Californians 
                    United for Responsible Budget; Campaign for the Fair 
                    Sentencing of Youth; Center for Juvenile Law and 
                    Policy, Loyola Law School; Center on Juvenile & 
                    Criminal Justice; Christy L. Fraser, A Law Corporation 




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                    - Minor Differences, a film; Child Welfare League of 
                    America; Children's Advocacy Institute; Children's 
                    Defense Fund; Commonweal; Disability Rights Legal 
                    Center; Everychild Foundation (Los Angeles); Equal 
                    Justice Initiative; Feminist Majority and National 
                    Center for Women and Policing; Friends Committee on 
                    Legislation of California; Hayward Burns Institute; 
                    Healing Justice Coalition; Human Rights Advocates; 
                    John Burton Foundation for Children Without Homes; 
                    Just Detention Institute; Justice Now; Justice Policy 
                    Institute; Juvenile Law Center; Law Office of the 
                    Alternate Public Defender for Los Angeles County; 
                    Legal Defense Fund; Legal Services for Children; Legal 
                    Services for Prisoners with Children; Life Support 
                    Alliance, 



                    Rancho Cordova; Lutheran Office of Public Policy - 
                    California; NAACP Legal Defense and Educational Fund; 
                    National African American Drug Policy Coalition; 
                    National Juvenile Justice Network; National Offices of 
                    the United Church of Christ; Office of Restorative 
                    Justice of the Archdiocese of Los Angeles; Pacific 
                    Juvenile Defender Center; Prison Law Office; 
                    Progressive Christians Uniting; Public Counsel Law 
                    Center; Sacred Heart Church, Rancho Cucamonga; 
                    Sentencing Project; Sisters of St. Joseph of Orange; 
                    St. Mark Presbyterian Church, Newport Beach, Peace and 
                    Justice Commission; United Church of Christ National 
                    Justice and Witness Ministries; United Methodist 
                    Church, California-Nevada Conference; University of 
                    San Francisco School of Law, Center for Law and Global 
                    Justice; University of Southern California, Gould 
                    School of Law, The Post-Conviction Justice Project; 
                    Youth Justice Coalition; Youth Law Center; Dolores 
                    Mission Catholic Church, Los Angeles - 7 individuals; 
                    Professors from law schools and universities 
                    throughout California and the United States - 150 
                    individuals; thousands of other individuals 




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          Opposition:Association for Los Angeles Deputy Sheriffs; 
                    California District Attorneys Association; Crime 
                    Victims United of California; Crime Victims Action 
                    Alliance;  Los Angeles Police Protective League; 
                    National Organization of Victims of Juvenile Lifers; 
                    Office of the District Attorney of Sacramento County, 
                    Jan Scully; Peace Officers Research Association of 
                    California  
           



                                         KEY ISSUE
           
          SHOULD A PRISONER WHO WAS UNDER 18 YEARS OF AGE AT THE TIME OF 
          COMMITTING AN OFFENSE FOR WHICH THE PRISONER WAS SENTENCED TO LIFE 
          WITHOUT THE POSSIBILITY OF PAROLE BE PERMITTED TO SUBMIT A PETITION 
          FOR RECALL AND RE-SENTENCING TO THE SENTENCING COURT?  



                                       PURPOSE

          The purpose of this bill is to authorize a prisoner who was 
          under 18 years of age at the time of committing an offense for 
          which the prisoner was sentenced to life without the possibility 
          of parole (LWOP) to submit a petition for recall and 
          re-sentencing to the sentencing court, as specified.  
                                          
          
           Under current law  , minors age 14 and older can be subject to 
          prosecution in adult criminal court depending upon their alleged 
          offense and their criminal offense history.  (Welfare and 
          Institutions Code ("WIC")  602(b); 707).)   Current law  
          contains three discrete mechanisms for remanding minors to adult 
          criminal court for prosecution:

            Statutory or legislative waiver  requires that minors 14 years 
            of age or older who are alleged to have committed specified 




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            murder and sex offenses be prosecuted in adult criminal court 
            (i.e., the juvenile court has no jurisdiction over these 
            cases) (WIC  602 (a));
            Prosecutorial waiver  gives prosecutors the discretion to 
            file cases against minors 14 and older, depending upon 
            their age, alleged offense and offense history, in 
            juvenile or adult criminal court (WIC  707 (d)); and
            Judicial waiver  gives courts the discretion to evaluate 
            whether a minor is unfit for juvenile court based on 
            specified criteria and applicable rebuttable presumptions. 
             (WIC  707 (a), (b) and (c).)

           Under current law  , if a prosecution is commenced against a 
          minor as a criminal case as a "direct file" case - that is, 
          through either statutory waiver or prosecutorial waiver - and 
          the minor is convicted of a "direct file" offense, the minor 
          is required to be sentenced as an adult.  (Penal Code  
          1170.17 (a).)  Minors who have been convicted in criminal 
          court of lesser offenses for which they still would have been 
          eligible for transfer to adult court may be able to seek a 
          juvenile disposition instead of a criminal sentence through a 
          post-conviction fitness proceeding.  (Penal Code  1170.17 (b) 
          and (c).)  Minors who are convicted in adult criminal court of 
          offenses for which they would not have been eligible for adult 
          court prosecution had a petition first been filed in juvenile 
          court are subject to a juvenile disposition.  (Penal Code  
          1170.17 (d); 1170.19.)

           Under current law  , these post-conviction proceedings are not 
          available to minors who are convicted after they have been 
          remanded to criminal court from the juvenile court pursuant to 
          Welfare and Institutions Code Section 707 (a) or (c).

           Existing law  provides that notwithstanding any other law, the 
          death penalty shall not be imposed upon any person who is under 
          the age of 18 at the time of the commission of the crime.  The 
          burden of proof as to the age of such person shall be upon the 
          defendant.  (Penal Code  190.5 (a).)

           Existing law  provides the penalty for a defendant found guilty 




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          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, 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 in confinement in the state prison for life 
          without the possibility of parole (LWOP) or, at the discretion 
          of the court, 25 years to life.  (Penal Code  190.5 (b).)

           Existing law  provides for sentencing which includes a term of 
          imprisonment in the state prison, as specified.  Existing law 
          provides that "(n)othing in this article shall affect any 
          provision of law that imposes the death penalty, that authorizes 
          or restricts the granting of probation or suspending the 
          execution or imposition of sentence, or expressly provides for 
          imprisonment in the state prison for life."  (Penal Code  
          1170.)

           This bill  provides that 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 LWOP has served 
          at least 10 years of that sentence, the defendant may submit to 
          the sentencing court a petition for recall and re-sentencing, 
          provided that defendants who have served 10 or more years as of 
          January 1, 2012, shall not be permitted to submit a petition for 
          recall and re-sentencing pursuant to this subdivision until they 
          have served 15 years. 

           This bill  provides that defendants who have served 15 or more 
          years, but less than 25 years as of January 1, 2010, be 
          permitted to submit a petition for recall and re-sentencing as 
          follows:

           Those defendants who entered custody prior to July 1, 
            1993, may submit a petition in 2012.
           Those defendants who entered custody on or after July 1, 
            1993, but prior to January 1, 1994, may submit a petition 
            in 2013.
           Those defendants who entered custody on or after January 
            1, 1994, but prior to July 1, 1994, may submit a petition 
            in 2014.




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           Those defendants who entered custody on or after July 1, 
            1994, but prior to January 1, 1995, may submit a petition 
            in 2015.

           This bill  provides that the defendant serve the original 
          petition with the sentencing court and a copy of the petition 
          shall be served on the agency that prosecuted the case. 

           This bill  provides that the petition shall include the 
          defendant's statement that he or she was under 18 years of age 
          at the time of the crime, was sentenced to LWOP, and that one of 
          the following was true:

           The defendant was convicted pursuant to felony murder or 
            aiding and abetting murder. 
           The defendant does not have juvenile felony adjudications 
            for assault or other felony crimes with a significant 
            potential for personal harm to victims prior to the 
            offense for which the sentence is being considered for 
            recall.
           The defendant committed the offense with at least one 
            adult codefendant.
           The defendant has performed acts that tend to indicate 
            rehabilitation or the potential for rehabilitation, 
            including, but not limited to, availing himself or herself 
            of rehabilitative, educational, or vocational programs, if 
            those programs have been available at his or her 
            classification level and facility, using self-study for 
            self-improvement, or taking action that demonstrates the 
            presence of remorse.
           
           This bill  provides that if any of the information required to 
          petition the court for a hearing is missing from the petition, 
          or if proof of service on the prosecuting agency is not 
          provided, the court shall return the petition to the person and 
          advise him or her that the matter cannot be considered without 
          the missing information. 

           This bill  states a reply to the petition, if any, shall be filed 
          with the court within 60 days of the date on which the 




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          prosecuting agency is served with the motion, unless a 
          continuance is granted for good cause. 

           This bill  provides that if the court finds by a preponderance of 
          the evidence that the statements in the petition are true, or if 
          no reply to the petition is filed, the court shall hold a 
          hearing to consider whether to recall the sentence and 
          commitment previously ordered and to re-sentence the defendant 
          in the same manner as if the defendant had not been previously 
          sentenced, provided that the new sentence, if any, is not 
          greater than the initial sentence.  Victims, or victim family 
          members if the victim is deceased, shall retain the rights to 
          participate in the hearing.

          This bill  states that the factors that the court may consider 
          when determining whether to recall and resentence include, but 
          are not limited to:

             The defendant was convicted pursuant to felony murder or 
             aiding and abetting murder provisions of law.
             The defendant does not have juvenile felony 
             adjudications for assault or other felony crimes with a 
             significant potential for personal harm to victims prior 
             to the offense for which the sentence is being considered 
             for recall.
             The defendant committed the offense with at least one 
             adult codefendant.
             Prior to the offense for which the sentence is being 
             considered for recall, the defendant had insufficient 
             adult support or supervision and had suffered from 
             psychological or physical trauma, or significant stress.
             The defendant suffers from cognitive limitations due to 
             mental illness, developmental disabilities, or other 
             factors that did not constitute a defense, but influenced 
             the defendant's involvement in the offense.
             The defendant has performed acts that tend to indicate 
             rehabilitation or the potential for rehabilitation, 
             including, but not limited to, availing himself or 
             herself of rehabilitative, educational, or vocational 
             programs, if those programs have been available at his or 




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             her classification level and facility, using self-study 
             for self-improvement, or showing evidence of remorse.
             The defendant has maintained family ties or connections 
             with others through letter writing, calls, or visits, or 
             has eliminated contact with individuals outside of prison 
             who are currently involved with crime.
             The defendant has had no disciplinary actions for 
             violent activities in the last five years in which the 
             defendant was determined to be the aggressor.

           This bill  states the court shall have the discretion to recall 
          the sentence and commitment previously ordered and to 
          re-sentence the defendant in the same manner as if the defendant 
          had not previously been sentenced, provided that the new 
          sentence, if any, is not greater than the initial sentence. 

           This bill  mandates the court, in exercising its discretion, must 
          consider the criteria listed above.  Victims, or victim family 
          members if the victim is deceased, shall be notified of the 
          re-sentencing hearing and shall retain their rights to 
          participate in the hearing.

           This bill  states that if the sentence is not recalled, the 
          defendant may submit another petition for recall and 
          re-sentencing to the sentencing court when the defendant has 
          been committed to the custody of the department for at least 15 
          years, or if not granted, after 20 years, or if not granted, 
          after 24 years, and a final petition may be submitted and the 
          response to that petition shall be determined during the 25th 
          year of the defendant's sentence.

           This bill  provides that in addition to the criteria specified 
          above, the court may consider any other criteria that the court 
          deems relevant to its decision, so long as the court identifies 
          them on the record, provides a statement of reasons for adopting 
          them, and states why the defendant does or does not satisfy the 
          criteria.

           This bill  states that the provisions of this bill shall apply 
          retroactively. 




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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear 
          the state's appeal of this order and, on Tuesday, November 30, 
          2010, the Court heard oral arguments.  A decision is expected as 
          early as this spring.  

          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.

                                      COMMENTS

          1.    Need for This Bill 




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          According to the author:

              Under existing California law, youth under the age of 18 
              years old are sentenced to life in prison without the 
              possibility of parole.  There is no system of review for 
              these cases.  The use of this sentence for juveniles 1) 
              ignores neuroscience and well-accepted understandings of 
              adolescent development; 2) is a practice that is in 
              violation of international law and out of step with 
              international norms; and 3) in California, it is a 
              policy that is applied unjustly.  Youth are different 
              from adults. While they should be held accountable for 
              their actions, even those who commit serious crimes 
              should have the opportunity to prove they have matured 
              and changed.   

          2.  Convicted Juveniles in State Institutions
           
          The number of adult inmates currently in prison who were 
          convicted as minors is not known.  According to data from the 
          Division of Juvenile Justice (DJJ), as of December 31, 2008, 
          there were 152 minors convicted in adult court housed in 
          facilities operated by DJJ.

          According to the federal Office of Juvenile Justice and 
          Delinquency Prevention, nationwide data indicates the number of 
          delinquency cases judicially waived to criminal court grew 70% 
          between 1985 and 1994 and then declined 54% through 2000.  
          Between 2001 and 2005, the number of judicially waived 
          delinquency cases increased 7%.<1>  In 2007, 583 minors were 
          reported to the Department of Justice as having been convicted 
          in adult criminal court; of those, 302 were sentenced to prison 
          or the Division of Juvenile Facilities.<2>

          3.  Trying Juveniles in Adult Court
          ---------------------------
          <1>  See online Statistical Briefing Book, Juveniles in Court 
          (http://ojjdp.ncjrs.org/ojstatbb/njcda/pdf/jcs2005.pdf.)
          <2>  See online Juvenile Justice in California 2007 
          (http://ag.ca.gov/cjsc/publications/misc/jj07/preface.pdf.)



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           Throughout the 1990s, California's juvenile law was altered to 
          expand the scope of juvenile offenders who would be eligible for 
          prosecution in adult criminal court.<3>  These changes 
          culminated with the passage of Proposition 21 on March 7, 2000, 
          which expanded the kinds of juvenile cases outside the scope of 
          the juvenile court (thus requiring prosecution in criminal 
          court), and made it procedurally easier for prosecutors to 
          pursue criminal charges against minors 14 years of age and older 
          in criminal court.<4>

          The movement to prosecute a broader range of juvenile offenses 
          in criminal court has been a national phenomenon.  As explained 
          in one legal commentary:

              For over two decades, legislatures across the nation 
              have enacted a variety of laws and policies to 
              criminalize delinquency by relocating adolescent 
              offenders from the juvenile to the adult court.  More 
              recently, the U.S. Senate passed legislation to "get 
              tough" on juvenile crime by promoting the transfer of 
              adolescents to criminal court, and providing funds to 
              facilitate state efforts to do the same.  This 
                                             legislation threatens to accelerate a trend that began 
              with the passage of New York State's Juvenile Offender 
              Law in 1978 and continues today even as juvenile crime 
              rates have fallen dramatically.  Since 1990, nearly 
              every state and the federal system have expanded the 
              use of adult adjudication and punishment for 
              adolescent offenders.  Some states have expanded the 
              ----------------------
          <3>  See, e.g., AB 560 (Peace) (Ch. 453, Stats. 1994) (lowered 
          the minimum age at which minors would be eligible for 
          prosecution in adult court from age 16 to 14); SB 334 (Alpert) 
          (Ch. 996, Stats. 1999) (removed juvenile court discretion for 
          special circumstance murder or sex crimes alleged to be 
          committed by a minor 16 or older who has felony priors, as 
          specified).
          <4>  These mechanisms are described above, in the Purpose 
          section of this analysis, and are set forth in Welfare and 
          Institutions Code  602 (b) and 707.



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              number of cases eligible for judicial waiver, and 
              still others have reassigned the burden of proof for 
              waiver hearings from the prosecutor (seeking to waive 
              a case to criminal court) to the defense counsel 
              (seeking to deny waiver).  Some state legislatures 
              have excluded specific offenses from juvenile court 
              jurisdiction.  Other states permit prosecutorial 
              choice of forum between concurrent jurisdictions.<5>

          4.  Adolescent Development and Legal Culpability
           
          The creation of the modern juvenile court, now over 100 years 
          ago, was rooted in the idea that adolescents, who are not fully 
          developed or mature, are less culpable than adults.<6>  As 
          explained below, this viewpoint is not completely compatible 
          with the "adult crime for adult time" philosophy that emerged in 
          the 1990s:

              The common law assumed that adolescents are less 
              ----------------------
          <5>  Symposium: Children, Crime, and Consequences: Juvenile 
          Justice in America: Punishment, Proportionality, and 
          Jurisdictional Transfer of Adolescent Offenders: A Test of the 
          Leniency Gap Hypothesis (Aaron Kupchik, Jeffrey Fagan, and Akiva 
          Liberman) (14 Stan. L. & Pol'y Rev 57 (2003) (footnotes 
          omitted).)
          <6>  See Jill M. Ward, Deterrence's Difficulty Magnified: The 
          Importance of Adolescent Development in Assessing the Deterrence 
          Value of Transferring Juveniles to Adult Court, 7 UC Davis Juv. 
          L. & Pol'y 253, 257 (Summer 2003) ("Embracing the recognition 
          that children are different from adults, the first separate 
          court for juveniles was established in the United States in 
          1899.  The court's key principles espoused the following four 
          ideas:  (1) children have different needs than adults and need 
          adult protection and guidance; (2) children have constitutional 
          human rights and need adult involvement to ensure those rights; 
          (3) almost all children can be rehabilitated; and (4) children 
          are everyone's responsibility.  This rehabilitative approach to 
          the juvenile court grew rapidly, and by 1925, forty-six states, 
          three territories and the District of Columbia had created 
          separate juvenile courts."  (footnotes omitted))



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              culpable than adults, and the juvenile court 
              institutionalized this notion both jurisprudentially 
              and statutorily.  That is, the juvenile court offered 
              a punishment discount for adolescents punished as 
              juveniles, relative to the punishment given to adults. 
               This discount is rooted in the belief that serious 
              crimes committed by young offenders may reflect 
              developmental deficiencies in autonomy and social 
              judgment, suggesting a reduction in their culpability 
              and, in turn, their punishment liability. . . .

              Recent developments in transfer law often express the 
              preference of penal proportionality over the common 
              law assumptions of reduced culpability of adolescent 
              offenders.  In this view, the traditional 
              preoccupation with rehabilitation in the juvenile 
              court, with its limitations on punishment 
              opportunities, deprecates the moral seriousness of 
              crimes and offers inadequate retribution.  Proponents 
              of harsher punishments for adolescents argue that 
              punishments that are disproportionately lenient 
              compared to the severity of the adjudicated offense 
              also undermine both the specific and general deterrent 
              effects of legal sanctions.

              These developments reflect the presumption in modern 
              juvenile justice law that those who commit crimes and 
              are remanded to the criminal court, or even those who 
              are charged with such crimes, are fully culpable for 
              their acts.  This legal threshold clashes with 
              emerging empirical evidence on the immaturity of 
              adolescents with respect to both their ability to make 
              informed and nuanced judgments about their behavior, 
              as well as their moral development.  By ignoring these 
              indicia of reduced culpability, the new transfer or 
              waiver policies offend the common law doctrine of 
              incapacity.<7>

          Researchers in the science of human development, however, 


          ---------------------------
          <7>  Id.



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          generally agree that from a developmental standpoint, an 
          adolescent is not an adult:

              The evidence now is strong that the brain does not 
              cease to mature until the early 20s in those relevant 
              parts that govern impulsivity, judgment, planning for 
              the future, foresight of consequences, and other 
              characteristics that make people morally culpable . . 
              .  Indeed, age 21 or 22 would be closer to the 
              "biological" age of maturity.<8>

          Some scholars argue that the unique nature of adolescent 
          development affect considerations of both culpability and 
          deterrence when measuring the value and suitability of imposing 
          adult criminal sanctions on juveniles:

              The culpability analysis of juvenile impulsiveness 
              and risk-taking implicitly embraces the developmental 
              notion that some forms of adolescent behavior are the 
              result of a not yet fully formed ability to control 
              impulses.  In effect, young people do not have the 
              same capacity for self-control as adults and this 
              should be considered a mitigating factor when 
              assessing culpability.  Similarly, the proclivity of 
              adolescents to take risks and act on a whim skews the 
              traditional deterrence calculus for the adolescent 
              actor.  Adolescents are not likely to recognize all 
              possible options and therefore, their preference 
              prioritization may be completely tilted toward 
              outcomes that they expect will provide immediate 
              gratification but that do not actually maximize their 
              utility.<9>

          5.     Murder with Special Circumstances  
          ---------------------------
          <8>  Adolescent Brain Development and Legal Culpability, 
          American Bar Assn. Criminal Justice Section, Juvenile Justice 
          Center (Winter 2003), quoting Dr. Ruben C. Gur, 
          neuropsychologist and Professor at the University of 
          Pennsylvania.
          <9>  Ward, supra, note 6, at 267 (footnotes omitted).



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          Only a juvenile convicted of first-degree murder with special 
          circumstances, as specified, may be sentenced to a term of LWOP. 
           First-degree murder is defined as all murder perpetrated by 
          means of a destructive device or explosive; a weapon of mass 
          destruction; knowing use of ammunition designed primarily to 
          penetrate metal or armor; poison; lying in wait; torture; or by 
          any other kind of willful, deliberate, and premeditated killing; 
          or which is committed in the perpetration of, or attempt to 
          perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, 
          kidnapping, train  wrecking; or any act punishable as a violent 
          sex offense, as specified; or any murder which is perpetrated by 
          means of discharging a firearm from a motor vehicle, 
          intentionally at another person outside of the vehicle with the 
          intent to inflict death.  (Penal Code  189.)  

          One of the enumerated special circumstances must be shown in 
          addition to the elements of first-degree murder in order to 
          sentence a defendant to a term of LWOP.  Special circumstances 
          include intentional murder carried out for financial gain; the 
          defendant has a previous conviction for murder; multiple charges 
          of murder in the same case; murder committed by means of a 
          destructive device; murder committed for the purpose of avoiding 
          arrest or to perpetrate an escape from custody; murder of a 
          peace officer, firefighter or federal law enforcement officer, 
          as specified; murder for the purposes of silencing or 
          retaliating against a witness; murder of a prosecutor, judge or 
          juror in an attempt to prevent the performance of official 
          duties; the murder is especially heinous, as specified; the 
          defendant committed the murder while lying in wait; the victim 
          was killed because of his or her race, color, religion, 
          nationality, or country of origin; the murder was committed 
          while the defendant was engaged in a felony, as specified; the 
          murder involved torture; the victim was murdered by poison; the 
          defendant committed the murder by discharging a firearm from 
          vehicle, and; the defendant committed murder as an active 
          participant in a criminal street gang and the murder was carried 
          out for the benefit of the gang.  (Penal Code  190.2(a)(1) to 
          (22).)





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          In 2005, the United States Supreme Court ruled persons who were 
          under the age of 18 at the time of the offense are ineligible 
          for the death penalty.  (Roper vs. Simmons (2005) 543 U.S. 551.) 
           Penal Code Section 190.5 codified the holding of Roper and 
          stated the penalty for a person 16 to 18 years of age convicted 
          of first-degree murder with special circumstances is either LWOP 
          or 25-years-to-life.  (Penal Code 190.5(b).)

          6.   Process to Recall Sentence  

          This bill sets up a process for a person who was sentenced as a 
          juvenile to LWOP to petition the sentencing court to recall the 
          sentence.  The person must allege specified facts in the 
          petition and serve the petition on the agency that prosecuted 
          the case.  If the court finds the facts to be true by 
          preponderance, the court shall order a hearing to consider the 
          recall of the sentence.  Victim's family members retain the 
          right to be heard in the hearing.  The bill specifies what the 
          court shall consider when determining whether to recall the 
          sentence.  The court has the discretion to recall and 
          re-sentence the defendant in the same manner as the original 
          sentencing court.  If the petition is denied, the person can 
          re-petition once every five years until their 25th year of 
          custody.

          7.   Support  


















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          Human Rights Watch supports this "modest and narrowly focused 
          piece of legislation" stating:

              First, the sentence of life without parole was created 
              for the worst criminal offenders, who are deemed to have 
              no possibility of rehabilitation.  In Roper v. Simmons, 
              543 U.S. 551, 561 (2005), the US Supreme Court found 
              that the differences between youth and adults render 
              suspect any conclusion that a youth falls among the 
              worst offenders.  Neuroscience reveals that the process 
              of cognitive brain development, including the formation 
              of impulse control and decision-making skills, continues 
              into early adulthood-well beyond age 18.  The fact that 
              juveniles are still developing their identities and 
              abilities to think and plan ahead, the Court found, 
              means that even a heinous crime committed by a juvenile 
              is not "evidence of an irretrievably depraved 
              character."

              Moreover in California, life without parole is not 
              reserved for youth who commit the worst crimes or who 
              show signs of being irredeemable criminals.  An 
              estimated 45 percent of California youth sentenced to 
              life without parole for involvement in murder did not 
              actually kill the victim.  Many were convicted of felony 
              murder or for aiding and abetting because they acted as 
              lookouts or participated in another felony during which 
              the murder unexpected occurred.  In addition, in many 
              cases California has treated the youth worse than 
              similarly-situated adult offenders.

                                        ****

              Second, we are deeply concerned that racial 
              discrimination enters into the determination of which 
              youth serve life without parole sentences, and which 
              youth enjoy the possibility of release.  California's 
              sentencing of black youth to life without parole reveals 
              the worst racial disparities of any state in the nation.




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              Third, international law requires youth under age 18 to 
              be treated differently than adults when accused of a 
              crime.  Criminal systems must take into account a child 
              or youth's age, and promote the child's reintegration 
              and constructive role in society. Life sentences are the 
              antithesis of this mandate.

                                        ****

              Passage of this bill would help bring California into 
              compliance with international law and standards of 
              justice.  The bill recognizes that youth are different 
              from adults and requires opportunities for 
              rehabilitation that reflect their unique ability to 
              change.

          8.     Opposition  

          The California District Attorneys Association opposes this bill 
          stating:

              To be clear, the universe of inmates to which this bill 
              would apply is comprised almost exclusively of persons 
              who were convicted of first degree murder with one or 
              more special circumstances and who were 16 or 17 years 
              old at the time of the offense.  Existing law properly 
              recognizes the fact that there are juveniles who commit 
              special circumstances murder and that LWOP is an 
              appropriate sentence in many, if not most, of those 
              cases.  At the same time, the statute acknowledges the 
              possibility of a rare exception and grants judicial 
              discretion to impose a lesser sentence of 25 years to 
              life.  We agree with the propriety of existing law in 
              this regard and therefore oppose any effort, whether 
              overt or veiled, to substantially weaken the statutory 
              response to special circumstances murder committed by 
              specified juveniles.












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              In addition to our general concern with the intent of 
              this bill, we take issue with the specific sentence 
              recall process contained therein.  Under one scenario 
              contemplated by the measure, a petitioner found by the 
              court to have been under the age of 18 at the time of 
              the offense that resulted in his or her LWOP sentence 
              could qualify for a resentencing hearing solely on the 
              basis that the petitioner has performed acts that tend 
              to indicate rehabilitation, or the potential for 
              rehabilitation, or has shown evidence of remorse.  
              Creating the potential for an LWOP sentence to be 
              reduced by setting such a low standard for eligibility 
              is an affront to justice and disrespectful of the 
              victims of these crimes.  

              Proponents are already pointing to Governor 
              Schwarzenegger's recent commutation of Sara Kruzan's 
              LWOP sentence for first degree murder during a robbery 
              to 25 years to life as evidence that SB 9 should be 
              enacted.  We would argue however, that this grant of 
              clemency only hurts the supporters' case.  The current 
              process, which generally affords criminal defendants the 
              right to appeal, file a writ of habeas corpus, and 
              ultimately seek executive clemency, and the Governor's 
              action relative to the latter rebut the proponents' 
              assertion that the system requires alteration.
           

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