BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  SB 9
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          Date of Hearing:  July 5, 2011
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                        SB 9 (Yee) - As Amended:  May 27, 2011
           
           
           SUMMARY  :  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 (LWOP) to 
          submit a petition for recall and resentencing to the sentencing 
          court, as specified.  Specifically,  this bill  :

          1)Provides that when a judgment of imprisonment is to be imposed 
            and the statute specifies three possible terms, the court 
            shall order imposition of the middle term, unless there are 
            circumstances in aggravation or mitigation of the crime.  At 
            least four days prior to the time set for imposition of 
            judgment, either party or the victim, or the family of the 
            victim if the victim is deceased, may submit a statement in 
            aggravation or mitigation to dispute facts in the record or 
            the probation officer's report, or to present additional 
            facts.  The court shall set forth on the record the facts and 
            reasons for imposing the upper or lower term.

          2)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 to LWOP has served at 
            least 15 years of that sentence, the defendant may submit to 
            the sentencing court a petition for recall and re-sentencing, 
            provided that defendants who entered custody on or after 
            January 1, 1992, but prior to July 1, 2002, shall be permitted 
            to submit a petition for recall and resentencing only as 
            follows:

             a)   Those defendants who entered custody prior to January 1, 
               1994 may submit a petition in the 2011-12 fiscal year;

             b)   Those defendants who entered custody on or after January 
               1, 1994, but prior to January 1, 1995, may submit a 
               petition in the 2012-13 fiscal year;









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             c)   Those defendants who entered custody on or after January 
               1, 1995, but prior to January 1, 1996.  And those who 
               entered custody on or after January 1, 2000, but prior to 
               January 1, 2001, may submit a petition in the 2013-14 
               fiscal year;

             d)   Those defendants who entered custody on or after January 
               1, 1996, but prior to July 1, 1996, and those who entered 
               custody on or after January 1, 2001, but prior to May 1, 
               2001, may submit a petition in the 2014-15 fiscal year;

             e)   Those defendants who entered custody on or after July 1, 
               1996, but prior to January 1, 1997, and those who entered 
               custody on or after May 1, 2001, but prior to January 1, 
               2002, may submit a petition in the 2015-16 fiscal year;

             f)   Those defendants who entered custody on or after January 
               1, 1997, but prior to July 1, 1997, and those who entered 
               custody on or after January 1, 2002, but prior to July 1, 
               2002, may submit a petition in the 2016-17 fiscal year; 

             g)   Those defendants who entered custody on or after July 1, 
               1997, but prior to January 1, 1998, may submit a petition 
               in the 2017-18 fiscal year;

             h)   Those defendants who entered custody on or after January 
               1, 1998, but prior to July 1, 1998, may submit a petition 
               in the 2018-19 fiscal year;

             i)   Those defendants who entered custody on or after July 1, 
               1998, but prior to January 1, 1999, may submit a petition 
               in the 2019-20 fiscal year;

             j)   Those defendants who entered custody on or after January 
               1, 1999, but prior to July 1, 1999, may submit a petition 
               in the 2020-21 fiscal year; and,

             aa)Those defendants who entered custody on or after July 1, 
               1999, but prior to January 1, 2000, may submit a petition 
               in the 2021-22 fiscal year. 

          3)Provides that if recall and resentencing is not granted under 
            a petition filed by a defendant who entered custody on or 
            after January 1, 1992, but prior to January 1, 2000, the 
            defendant may submit a second and final petition after having 








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            served 24 years.  The final petition may be submitted, and the 
            response to that petition shall be determined, during the 25th 
            year of the defendant's sentence.

          4)Provides that if recall and resentencing is not granted under 
            a petition filed by a defendant who entered custody on or 
            after January 1, 2000, but prior to July 1, 2002, the 
            defendant may submit another petition to the sentencing court 
            when the defendant has been committed to the custody of the 
            Department of Corrections and Rehabilitation for at least 20 
            years.  If recall and resentencing is not granted under that 
            petition, the defendant may file another petition after having 
            served 24 years.  The final petition may be submitted and the 
            response to that petition shall be determined during the 25th 
            year of the defendant's sentence.

          5)Requires the petition to include a statement from the 
            defendant that he or she was under the age of 18 at the time 
            of the crime and was sentenced to LWOP, describe his or her 
            remorse and work towards rehabilitation, and that one of the 
            following is true:

             a)   The defendant was convicted of felony murder or aiding 
               and abetting murder provisions of law;

             b)   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;

             c)   The defendant committed the offense with at least one 
               adult codefendant; or,

             d)   The defendant has performed acts that tend to indicate 
               rehabilitation or the potential for rehabilitation, 
               including, but not limited to, availing himself or herself 
               or 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 showing evidence of remorse.

          6)Requires the original petition to be filed with the sentencing 
            court and a copy of the petition to be served on the agency 
            that prosecuted the case.








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          7)Provides that if any of the information required to be 
            included in the petition or if proof of service on the 
            prosecuting agency is not provided, the court shall return the 
            petition to the defendant and advise the defendant that the 
            matter cannot be considered without the missing information.

          8)States that a reply to the petition, if any, shall be filed 
            with the court within 60 days of the date on which the 
            prosecuting agency was served with the petition, unless a 
            continuance is granted for good cause.

          9)Provides that if the court finds by a preponderance of the 
            evidence that the statements in the petition are true, the 
            court shall hold a hearing to consider whether to recall the 
            sentence and commitment previously ordered and to resentence 
            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.

          10)Provides factors the court may consider when determining 
            whether to recall and resentence include, but are not limited 
            to, the following:


             a)   The defendant was convicted pursuant to felony murder or 
               aiding and abetting murder provisions of law.


             b)   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.


             c)   The defendant committed the offense with at least one 
               adult codefendant.


             d)   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 








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               or physical trauma, or significant stress.


             e)   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.


             f)   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 showing evidence of remorse.


             g)   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 involved with crime.


             h)   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.

          11)States that the court shall have discretion to recall the 
            sentence and commitment previously ordered and to resentence 
            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.

          12)Mandates the court, in exercising its discretion, must 
            consider the criteria listed above.  Victim, or victim family 
            members if the victim is deceased, shall be notified of the 
            resentencing hearing and shall retain their rights to 
            participate in the hearing.

          13)States that if the sentence is not recalled, the defendant 
            may submit another petition for recall and resentencing to the 
            sentencing court when the defendant has been committed to the 
            custody of the department for at least 20 years; and if not 
            granted after 20 years, the defendant may file another 








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            petition after having served 24 years.  The final petition may 
            be submitted, and the response to that petition shall be 
            determined, during the 25th year of the defendant's sentence.

          14)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.

          15)States that this bill shall have retroactive application.

           EXISTING LAW  :

          1)States the Legislature finds and declares that the purpose of 
            imprisonment for crime is punishment.  This purpose is best 
            served by terms proportionate to the seriousness of the 
            offense with provision for uniformity in the sentences of 
            offenders committing the same offense under similar 
            circumstances.  The Legislature further finds and declares 
            that the elimination of disparity and the provision of 
            uniformity of sentences can best be achieved by determinate 
            sentences fixed by statute in proportion to the seriousness of 
            the offense as determined by the Legislature to be imposed by 
            the court with specified discretion.  ›Penal Code Section 
            1170(a)(1).]

          2)States in any case in which the punishment prescribed by 
            statute for a person convicted of a public offense is a term 
            of imprisonment in the state prison of any specification of 
            three time periods, the court shall sentence the defendant to 
            one of the terms of imprisonment specified unless the 
            convicted person is given any other disposition provided by 
            law, including a fine, jail, probation, or the suspension of 
            imposition or execution of sentence or is sentenced pursuant 
            existing law, or because he or she had committed his or her 
            crime prior to July 1, 1977.  In sentencing the convicted 
            person, the court shall apply the sentencing rules of the 
            Judicial Council.  The court, unless it determines that there 
            are circumstances in mitigation of the punishment prescribed, 
            shall also impose any other term that it is required by law to 
            impose as an additional term.  Nothing in this article shall 
            affect any provision of law that imposes the death penalty, 
            that authorizes or restricts the granting of probation or 








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            suspending the execution or imposition of sentence, or 
            expressly provides for imprisonment in the state prison for 
            life.  In any case in which the amount of pre-imprisonment 
            credit under existing provision of law is equal to or exceeds 
            any sentence imposed pursuant to this chapter, the entire 
            sentence shall be deemed to have been served and the defendant 
            shall not be actually delivered to the custody of the 
            secretary.  The court shall advise the defendant that he or 
            she shall serve a period of parole and order the defendant to 
            report to the parole office closest to the defendant's last 
            legal residence, unless the in-custody credits equal the total 
            sentence, including both confinement time and the period of 
            parole.  The sentence shall be deemed a separate prior prison 
            term under laws related to prior prison terms, and a copy of 
            the judgment and other necessary documentation shall be 
            forwarded to the secretary.  ›Penal Code Section 1170(a)(3).]

          3)States that when a judgment of imprisonment is to be imposed 
            and the statute specifies three possible terms, the choice of 
            the appropriate term shall rest within the sound discretion of 
            the court.  At least four days prior to the time set for 
            imposition of judgment, either party or the victim, or the 
            family of the victim if the victim is deceased, may submit a 
            statement in aggravation or mitigation.  In determining the 
            appropriate term, the court may consider the record in the 
            case, the probation officer's report, other reports, including 
            reports received pursuant to Section 1203.03 of the Penal 
            Code, and statements in aggravation or mitigation submitted by 
            the prosecution, the defendant, or the victim, or the family 
            of the victim if the victim is deceased, and any further 
            evidence introduced at the sentencing hearing.  The court 
            shall select the term which, in the court's discretion, best 
            serves the interests of justice.  The court shall set forth on 
            the record the reasons for imposing the term selected and the 
            court may not impose an upper term by using the fact of any 
            enhancement upon which sentence is imposed under any provision 
            of law. A term of imprisonment shall not be specified if 
            imposition of sentence is suspended.  ›Penal Code Section 
            1170(b).]

          4)Requires the court to state the reasons for its sentence 
            choice on the record at the time of sentencing.  The court 
            shall also inform the defendant that as part of the sentence 
            after expiration of the term he or she may be on parole for a 
            period as provided in provisions of law related to parole.  








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            ›Penal Code Section 1170(c).]

          5)States that when a defendant subject to existing law related 
            to sentencing has been sentenced to be imprisoned in the state 
            prison and has been committed to the custody of the secretary, 
            the court may, within 120 days of the date of commitment on 
            its own motion, or at any time upon the recommendation of the 
            secretary or the Board of Parole Hearings, recall the sentence 
            and commitment previously ordered and resentence the defendant 
            in the same manner as if he or she had not previously been 
            sentenced, provided the new sentence, if any, is no greater 
            than the initial sentence.  The resentence under this 
            subdivision shall apply the sentencing rules of the Judicial 
            Council so as to eliminate disparity of sentences and to 
            promote uniformity of sentencing.  Credit shall be given for 
            time served.  ›Penal Code Section 1170(d).]

          6)States that 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 existing law 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 
            confinement in the state prison for life without the 
            possibility of parole or, at the discretion of the court, 25 
            years to life.  ›Penal Code Section 190.5(b).]

          7)States that any person who is alleged, when he or she was 14 
            years of age or older, to have committed murder or one of the 
            specified sex offenses, shall be prosecuted under the general 
            law in a court of criminal jurisdiction.  ›Welfare & 
            Institution Code (WIC) Section 602(b).]

          8)States that with regard to a minor alleged to be a person 
            described provisions of law related to juvenile delinquency by 
            reason of the violation, when he or she was 14 years of age or 
            older, of any of the offenses listed existing law, upon motion 
            of the petitioner made prior to the attachment of jeopardy the 
            court shall cause the probation officer to investigate and 
            submit a report on the behavioral patterns and social history 
            of the minor being considered for a determination of 
            unfitness.  Following submission and consideration of the 
            report, and of any other relevant evidence that the petitioner 
            or the minor may wish to submit, the minor shall be presumed 
            to be not a fit and proper subject to be dealt with under the 
            juvenile court law unless the juvenile court concludes, based 








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            upon evidence, which evidence may be of extenuating or 
            mitigating circumstances, that the minor would be amenable to 
            the care, treatment, and training program available through 
            the facilities of the juvenile court based upon an evaluation 
            of each of the following criteria:

             a)   The degree of criminal sophistication exhibited by the 
               minor.

             b)   Whether the minor can be rehabilitated prior to the 
               expiration of the juvenile court's jurisdiction.

             c)   The minor's previous delinquent history.

             d)   Success of previous attempts by the juvenile court to 
               rehabilitate the minor.

             e)   The circumstances and gravity of the offenses alleged in 
               the petition to have been committed by the minor.  ›WIC 
               Section 707(c).]

          9)Provides that a minor within the jurisdiction of the juvenile 
            delinquency court may be sentenced to the Department of 
            Juvenile Facilities or tried as an adult, as specified, if he 
            or she has been charged with one of the following:  murder; 
            arson, as specified; robbery; rape with force, violence, or 
            threat of great bodily harm; sodomy by force, violence, 
            duress, menace, or threat of great bodily harm; a lewd or 
            lascivious act on a person under the age of 14; oral 
            copulation by force, violence, duress, menace, or threat of 
            great bodily harm; forcible sexual penetration, as specified; 
            kidnapping for ransom; kidnapping for purposes of robbery; 
            kidnapping with bodily harm; attempted murder; assault with a 
            firearm or destructive device;  assault by any means of force 
            likely to produce great bodily injury; discharge of a firearm 
            into an inhabited or occupied building; a specified violent 
            crime against a person over the age of 60; use of a firearm in 
            a crime, as specified; a felony offense in which the minor 
            personally used a weapon specified in existing law; a felony 
            offense of intimidating or dissuading a witness; 
            manufacturing, compounding, or selling one-half ounce or more 
            of a salt or solution of a depressant listed as a controlled 
            substance; a violent felony or gang crime, as specified; 
            escape, by the use of force or violence, from a county 
            juvenile hall, home, ranch, camp, or forestry camp, as 








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            specified, if great bodily injury is intentionally inflicted 
            upon an employee of the juvenile facility during the 
            commission of the escape; torture;  aggravated mayhem; 
            carjacking, while armed with a dangerous or deadly weapon; 
            kidnapping for purposes of sexual assault; kidnapping during 
            the commission of a carjacking; discharging a firearm into a 
            vehicle, as specified, or; voluntary manslaughter.  ›WIC 
            Section 707(b)(1) to (28).]

          10)Allows a prosecuting agency to file an accusatory pleading in 
            a court of criminal jurisdiction, without a motion or hearing, 
            against a minor, who was 16 years of age or older at the time 
            of committing one of the enumerated offenses listed above, if 
            the minor has previously been found to be a ward of juvenile 
            court for a violation of a felony offense when he or she was 
            14 years of age or older.  ›WIC Section 707(d)(3).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :

           1)Author's Statement  :  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)Background  :  According to the background provided by the 
            author, "Sentencing juveniles to life in prison without parole 
            ignores the fact that young people's brains and identities are 
            still developing.  The sentence of life without parole is a 
            sentence intended for the worst of the worst criminals and 
            crimes.  As such, it is inappropriate for juveniles.  People 
            under the age of 18 have a unique capacity to change and 
            rehabilitate.  The United States Supreme Court recognized that 
            youth are different from adults when it noted that three 
            general differences between juveniles under 18 and adults 
            demonstrate that juvenile offenders cannot be reliably 








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            classified among the worst offenders: 1) juveniles' 
            susceptibility to immature and irresponsible behavior means 
            their irresponsible conduct is not as morally reprehensible as 
            that of an adult; 2) juvenile's own vulnerability and 
            comparative lack of control over their immediate surroundings 
            mean juveniles have a greater claim than adults to be forgiven 
            for failing to escape negative influences in their whole 
            environment; and 3) the reality that juveniles still struggle 
            to define their identity means it is less supportable to 
            conclude that even a heinous crime committed by a juvenile is 
            evidence of irretrievably depraved character. 

          "The sentence of life without parole is imposed in an unjust 
            manner in California.  California has one of the worst records 
            in the nation for racial disparity in the imposition of life 
            without parole for juveniles.  African American youth are 
            sentenced to life without parole at over 18 times the rate of 
            white youth.  Hispanic youth are sentenced to life without 
            parole five times more often than white youth. 

          "In a research relying on multiple sources, Human Rights Watch 
            examined California juvenile life without parole cases.  It 
            estimates that 45 percent of youth offenders serving life 
            without parole were convicted of murder but were not the ones 
            to actually commit the murder.  This is possible under 
            California's "felony murder" statute, a law which holds 
            participants in a felony responsible for a murder that 
            happens, even if they did not plan or expect a murder to 
            occur.

          "Youth are different from adults and should be evaluated 
            differently than adults, but the legal process often does not 
            take this into account.  Recent developments in brain science 
            have proven that youth are far more influenced by group 
            behavior than the same individuals will be as adults.  Teens 
            tend to act in concert with and be influenced by others, and 
            do things in the presence of peers they would never do alone.  
            The power of peer influence decreases with age, and what a 
            youth does in a group is often quite different than the 
            choices he or she will make when older.  Unsurprisingly, over 
            75% of the youth sentenced to life without parole acted within 
            a group at the time of their crime.

          "In addition, many California youth sentenced to life without 
            parole were acting under the influence of an adult.  In nearly 








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            70 percent of cases reported to Human Rights Watch in which 
            the youth was not acting alone, at least one codefendant was 
            an adult.  Survey responses reveal that in 56 percent of those 
            cases the adult received a lower sentence than the juvenile. 

          "In addition, in a national study an estimated 59% of youth 
            sentenced to life without parole are first-time offenders with 
            no criminal history. 

          "There is no evidence that the use of life without parole 
            sentences deter crime.  The US Supreme Court Supreme Court 
            stated, 'As for deterrence, it is unclear whether the death 
            penalty has a significant or even measurable deterrent effect 
            on juveniles?'   If the death penalty has no deterrent value, 
            it is difficult to imagine that a lesser penalty of life 
            without parole would have more of a deterrent value.  With 
            regard to juvenile life without parole, the evidence indicates 
            that life without parole sentences provide no deterrent 
            effect.  Additionally, it is now recognized that the 
            adolescent brain is still developing an ability to comprehend 
            consequences and control impulses.  This makes it all the less 
            likely that the specter of a harsh sentence will affect 
            juvenile's behavior.

          "SB 9 will add guidelines to the existing Penal Code that 
            currently permits resentencing.  Senate Bill 9 would allow a 
            person who was under 18 years of age at the time of committing 
            an offense for which the person was sentenced to life without 
            the possibility of parole to, after serving between 15 and 25 
            years in prison, petition the court for re-sentencing.  If a 
            re-sentencing hearing is granted, the court would have the 
            discretion whether to re-sentence the petitioner to a lower 
            sentence or let the juvenile life without parole sentence 
            remain.  If granted a lower sentence, the petitioner must 
            still serve the minimum sentence and obtain approval of the 
            parole board and the Governor prior to parole.  Even if the 
            youth receives a resentencing hearing, there is no guarantee 
            he or she would receive a new sentence, or achieve parole if 
            resentenced.

          "Recognizing that teenagers are still maturing at the time of 
            their original sentencing, and recognizing that our legal 
            process sometimes results in unfair sentences, this Act 
            creates specific criteria and an intense, three-part review 
            process that would result in the possibility of a lesser 








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            sentence for those offenders whose crimes were less than their 
            sentence might have warranted and who have proven themselves 
            to have changed as adults."

           3)Existing Law Related to Sentencing Juvenile Offenders  :  The 
            passage of Proposition 21 on March 7, 2000 expanded the types 
            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.  
            The movement to prosecute a broader range of juvenile offenses 
            in criminal court has been a national trend.  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 United States 
            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 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."  ›Symposium:  Children, Crime, and 
            Consequences:  Juvenile Justice In America:  Punishment, 
            Proportionality, and Jurisdictional Transfer of Adolescent 
            Offenders:  A Test of the Leniency Gap Hypothesis, (2003) 14 
            Stan. L. & Policy Rev 57.]  

           Courts have interpreted statute to conclude when sentencing a 
            juvenile defendant 14 or 15 years of age tried as an adult for 
            murder, the maximum penalty is 25-years-to-life.  Only where 
            the juvenile defendant is 16 or 17 years of age and convicted 
            of first-degree murder where one of the enumerated special 








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            circumstances are found to be true, may the court choose 
            between 25-years-to-life or LWOP.  ›See Penal Code Section 
            190.2(a); Penal Code Section 190.5(a-b); WIC Section 602(a), 
            and; People vs. Demirdjian (2006) 144 Cal.App.4th 10, 17]

           4)Murder with Special Circumstances  :  Only a juvenile convicted 
            of first-degree murder with special circumstances, as 
            specified, may be sentenced to a term of LWOP or, in the 
            alternative, a term of years sentence of 25-years-to-life.  
            ›See Penal Code Section 190.5(b), Graham v. Florida (2010) 130 
            S.Ct. 2011.]  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 Section 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 county 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 








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            gang and the murder was carried out for the benefit of the 
            gang.  ›Penal Code Section 190.2(a)(1) to (22).]

           5)LWOP:  Review of Existing Case Law  :  In 2005, the United 
            States Supreme Court ruled that 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 Section 190.5(b).]

          In 2010, the United States Supreme Court ruled that it is 
            unconstitutional to sentence a youth who did not commit 
            homicide to LWOP.  ›See Graham, supra, 130 S.Ct. 2011.]  The 
            Court discussed the fundamental differences between a juvenile 
            and adult offender and reasserted its findings from the Roper 
            case, supra, that juveniles have lessened culpability than 
            adults due to those differences.  The Court stated that "life 
            without parole is an especially harsh punishment for a 
            juvenile," noting that a juvenile offender "will on average 
            serve more years and a greater percentage of his life in 
            prison than an adult offender."  ›Graham, supra, 130 S.Ct. at 
            2016.]  However, the Court stressed that "while the Eighth 
            Amendment forbids a State from imposing a life without parole 
            sentence on a juvenile nonhomicide offender, it does not 
            require the State to release that offender during his natural 
            life.  Those who commit truly horrifying crimes as juveniles 
            may turn out to be irredeemable, and thus deserving of 
            incarceration for the duration of their lives.  The Eighth 
            Amendment does not foreclose the possibility that persons 
            convicted of nonhomicide crimes committed before adulthood 
            will remain behind bars for life.  It does forbid States from 
            making the judgment at the outset that those offenders never 
            will be fit to reenter society."  (Id. at pg. 2031.)

          In a recent case, the California Fourth District Court of Appeal 
            ruled that a juvenile's term of years sentence for a 
            nonhomicide offense is cruel and unusual punishment where the 
            sentence amounts to life in prison without parole.  (People v. 
            J.I.A. (June 8, 2011) __ Cal.App.4th __ ›11 D.A.R. 8327].)  
            Citing the Graham case, supra, the Court stated that in 
            sentencing a juvenile under the age of 16 for a nonhomicide 
            offense, the State must give the juvenile "some meaningful 
            opportunity to obtain release based on demonstrated maturity 








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            and rehabilitation."  (Id. at pg. 12.)  The Court found that 
            while the juvenile did not receive a sentence of LWOP, "it is 
            a de facto LWOP sentence because he is not eligible for parole 
            until about the time he is expected to die.  The trial court's 
            sentence effectively deprives J.A. of any meaningful 
            opportunity to obtain release regardless of his rehabilitative 
            efforts while incarcerated."  (Id. at pg. 17.)

           6)Arguments in Support  :

             a)   According to the  University of San Francisco School of 
               Law's Center for Global Law & Justice  , "Youth who commit 
               crimes should be held accountable.  However, when 
               California condemns a young person to a life behind bars, 
               it utterly disregards the human capacity for rehabilitation 
               and ignores the very real physical and psychological 
               differences between children and adults recognized by the 
               world over.  Punishment should reflect the capacity of 
               young people to change and mature.  SB 9 would ensure that 
               youth offenders would face severe punishment for their 
               crimes, but they would have the chance to work toward 
               parole if they can show they have rehabilitated."

             b)   According to the  Pacific Juvenile Defender Center  , "By 
               creating a court review process to review life without 
               parole for crimes committed by minor children, SB 9 
               represents a more humane, sensible, and proportionate 
               sentencing approach.  Child offenders would still face 
               severe punishment and lengthy prison terms for committing 
               horrible crimes.  However, SB 9 would offer an opportunity 
               for redemption.  The bill will motivate child offenders to 
               seek rehabilitation since they would be given an 
               opportunity to ask for 25 years to life after serving at 
               least 10 years of their commitment."

             c)   According to  Books Not Bars  , "The United States is the 
               only country in the world that imposes life without parole 
               on youth under the age of 18 years old.  This extreme 
               punishment is a violation of international law and 
               fundamental human rights.  In California, racial 
               disparities in the use of this sentence are among the worst 
               in the county: black youth are sentenced to life without 
               parole at a per capita rate that is 18 times that for white 
               youth.  Finally, adult codefendants charged in the same 
               cases are getting lower sentences, and the opportunity for 








                                                                  SB 9
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               parole.  In 56% of the cases in which a youth sentenced to 
               life without parole had an adult codefendant, the adult 
               received a lesser sentence than the youth.  Sentencing 
               adolescents to life without parole is outdated, out of step 
               with the rest of the world, and unfair in its application.  
               California should lead the nation in addressing these 
               inequities.  We therefore urge your support for this 
               important legislation."

           7)Arguments in Opposition  :

             a)   According to the  California Narcotics Officers' 
               Association  and the  California Police Chiefs Association  , 
               "Under current law, both the prosecutor and the court have 
               the ability to make an independent determination as to 
               whether to try the defendant as an adult in the first place 
               and whether to seek special circumstance finding, at all.  
               The seeking of a special circumstance finding must be 
               proven in an adversarial process with the ultimate decision 
               being made by a jury.  Even after that determination is 
               made, the court has ultimate authority to impose a sentence 
               of life with the possibility of parole if the court 
               believes that to be the appropriate sentence.  And finally, 
               the Governor retains his/her power of commutation.  In 
               other words, those who are sentenced to life without the 
               possibility of parole are those who have committed the most 
               heinous crimes with a spirit of total remorselessness.  To 
               add yet another cycle of procedures where families of crime 
               victims must continuously revisit the murders of their lost 
               ones is to pile cruelty on top of anguish."

             b)   According to the  California District Attorneys 
               Association  , "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."








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           8)Prior Legislation  :  

             a)   SB 399 (Yee), of the 2009-10 Legislative Session, was 
               substantially similar to this bill.  SB 399 failed passage 
               on Assembly Floor.  

             b)   SB 999 (Yee), of the 2007-08 Legislative Session, 
               eliminates the LWOP sentence thus making the sentence for 
               first-degree murder with special circumstances by a 
               defendant under 18 years of age 25-years-to-life.  SB 999 
               failed passage on Senate Floor.

             c)   SB 1223 (Kuehl), of the 2003-04 Legislative Session, 
               authorizes a court to review the sentence of a person 
               convicted as a minor in adult criminal court and sentenced 
               to state prison after the person has either served 10 years 
               or attained the age of 25.  SB 1223 failed passage in 
               Assembly Appropriations Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Human Rights Watch, Children's Rights Division (Sponsor)
          Advancement Project
          Alliance for a Better District 6
          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 (An Ella Baker Center for Human Rights Campaign)
          Buddhist Peace Fellowship
          California Attorneys for Criminal Justice
          California Catholic Conference, Inc.
          California Church Impact
          California Coalition for Women Prisoners
          California Committees United Institute
          California Mental Health Directors Association
          California National Organization for Women
          California Psychiatric Association
          California Public Defenders Association
          California-Nevada Annual Conference of the United Methodist 
          Church








                                                                  SB 9
                                                                  Page  19

          Californians United for a Responsible Budget
          Campaign for the Fair Sentencing of Youth
          Center for Global Law & Justice at University of San Francisco 
          School of Law
          Center for Juvenile Law and Policy at Loyola Law School
          Child Welfare League of America
          Children's Advocacy Institute 
          Children's Defense Fund
          City and County of San Francisco, Office of the District 
          Attorney
          Commonweal
          Disability Rights California
          Disability Rights Legal Center
          District Attorney, City and County of San Francisco
          Equal Justice Initiative
          Everychild Foundation
          Feminist Majority & National Center for Women and Policing
          Friends Committee on Legislation of California
          Healing Justice Coalition
          Human Rights Advocates
          International Community Corrections Association
          John Burton Foundation for Children Without Homes
          Just Detention International
          Justice Now
          Justice Policy Institute
          Juvenile Law Center
          Law Offices of the Los Angeles County Alternate Public Defender
          Legal Services for Children
                   Legal Services for Prisoners with Children
          Life Support Alliance
          Los Angeles County Democratic Party
          Los Angeles County District Attorney's Office
          Lutheran Office of Public Policy - California
          NAACP Legal Defense and Education Fund, Inc.
          National African American Drug Policy Coalition, Inc.
          National Alliance on Mental Illness California
          National Center for Lesbian Rights
          National Center for Youth Law
          Office of Restorative Justice of the Archdiocese of Los Angeles
          Pacific Juvenile Defender Center
          Post-Conviction Law Justice Project at University of Southern 
          California Gould School of Law
          Prison Fellowship
          Prison Law Office
          Progressive Christians Uniting








                                                                  SB 9
                                                                  Page  20

          Public Counsel Law Center
          Sacramento Lorenzo Patiflo League of United Latin American 
          Citizens Council
          Sisters of St. Joseph of Orange
          Southern Poverty Law Center
          St. Mark Presbyterian Church, Peace and Justice Commission
          The Sentencing Project
          United Church of Christ 
          W. Haywood Burns Institute
          Youth Justice Coalition
          Youth Law Center
          1,879 private individuals

           Opposition 
           
          California Association of Highway Patrolmen
          California District Attorneys Association
          California Narcotic Officers' Association
          California Police Chiefs Association
          California State Sheriffs Association
          Crime Victims Action Alliance
          Crime Victims United of California
          Los Angeles County District Attorney's Office
          Los Angeles Police Protective League
          Peace Officers Research Association of California
          Sacramento County District Attorney's Office
          One private individual
           

          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744