BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 9|
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THIRD READING
Bill No: SB 9
Author: Yee (D), et al.
Amended: 5/27/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 4/5/11
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson, Harman
SENATE APPROPRIATIONS COMMITTEE : 6-2, 5/26/11
AYES: Kehoe, Alquist, Lieu, Pavley, Price, Steinberg
NOES: Walters, Runner
NO VOTE RECORDED: Emmerson
SUBJECT : Sentencing
SOURCE : Human Rights Watch
National Center for Youth Law
DIGEST : This bill authorizes 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 to submit a petition for recall and re-sentencing
to the sentencing court, as specified.
Senate Floor Amendments of 5/27/11 make changes to the
bill's proposed process and eligibility for resentencing
persons who were sentenced to imprisonment for life without
the possibility of parole when they were under 18 years of
age, as specified.
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ANALYSIS : 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 ÝWIC] Sections
602(b) and 707.) Current law contains three discrete
mechanisms for remanding minors to adult criminal court for
prosecution:
1. Statutory or legislative waiver requires that minors 14
years of age or older who are alleged to have committed
specified murder and sex offenses be prosecuted in adult
criminal court (i.e., the juvenile court has no
jurisdiction over these cases) (WIC Section 602 (a));
2. 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 Section 707 (d));
and
3. 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 Section 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
(PEN) Section 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.
(PEN Section 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. (PEN Sections
1170.17 (d) and 1170.19)
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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 WIC 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. (PEN Section 190.5 (a))
Existing law provides 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 PEN 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. (PEN Section 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." (PEN Section 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 requires the petition to include a
statement from the defendant that includes, among other
things, his/her remorse and work toward rehabilitation.
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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.
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/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,
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including, but not limited to, availing himself/herself
of rehabilitative, educational, or vocational programs,
if those programs have been available at his/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/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 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.
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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/herself
of rehabilitative, educational, or vocational programs,
if those programs have been available at his/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
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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.
This bill incorporates additional changes to Section 1170
of the Penal Code, made by AB 109, which has been chaptered
but is inoperative until the occurrence of events specified
therein.
Prior legislation . SB 399 (Yee), 2009-10 Session, passed
the Senate Floor (23-15) on June 2, 2009, but failed
passage on the Assembly Floor in 2010. SB 999 (Yee),
2007-08 Session, died on the Senate Floor. SB 1223
(Kuehl), 2003-04 Session, died on Assembly Suspense.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2011-12 2012-13 2013-14 Fund
Resentencing hearings up to $52 up to
$64 up to $90 General*
Case-processing/admin unknown, likely minorGeneral*
Petitioner transportation minor, absorbable General
Reduced sentences unknown, potential cost savings of
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upGeneral
to $25 per inmate per year
* Trial Court Trust Fund
SUPPORT : (Verified 5/31/11)
Human Rights Watch (co-source)
National Center for Youth Law (co-source)
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 Church IMPACT
California Coalition for Women Prisoners
California Communities United Institute
California Council of Churches
California Mental Health Directors Association
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 - Minor Differences, a
film
Child Welfare League of America
Children's Advocacy Institute
Children's Defense Fund
Commonweal
Disability Rights Legal Center
Disability Rights California
Everychild Foundation (Los Angeles)
Equal Justice Initiative
Feminist Majority and National Center for Women and
Policing
Friends Committee on Legislation of California (Quakers)
Hayward Burns Institute
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Healing Justice Coalition
Human Rights Advocates
International Community Corrections Association
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 Alliance on Mental Illness - California
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 Fellowship
Prison Law Office
Progressive Christians Uniting
Progressive Jewish Alliance
Public Counsel Law Center
Sacred Heart Church, Rancho Cucamonga
Sentencing Project
Sisters of St. Joseph of Orange
Southern Poverty Law Center, Florida Youth Initiative
St. Mark Presbyterian Church, Newport Beach, Peace and
Justice Commission
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
OPPOSITION : (Verified 5/27/11)
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Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
Crime Victims Action Alliance
Crime Victims United of California
Los Angeles Police Protective League
Office of the District Attorney of Sacramento County, Jan
Scully
Peace Officers Research Association of California
ARGUMENTS IN SUPPORT : According to the author's office,
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.
ARGUMENTS IN 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."
RJG:mw 5/31/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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