BILL ANALYSIS �
AB 1276
Page 1
Date of Hearing: April 30, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1276 (Bloom) - As Amended: April 16, 2013
SUMMARY : Provides that a person who was convicted of a
non-homicide offense that was committed before the person had
attained 18 years of age shall be eligible for consideration for
parole after serving 25 years in prison. Specifically, this
bill :
1)States legislative intent to provide a meaningful opportunity
to obtain release according to the standards set forth by the
California Supreme Court in People v. Caballero (2012) 55
Cal.4th 262.
2)Specifies that subsequent parole hearings shall be set
according to 15-, 10-, 7-, 5-, and 3-year denial lengths under
existing law.
EXISTING LAW :
1)Provides that 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) Sections 602(b) and 707(d)(3).]
2)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
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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
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 (30).]
3)Specifies if a prosecution is commenced against a minor as a
criminal case as a "direct file" case, which does not require
a prior fitness hearing in juvenile court, and the minor is
convicted of a "direct file" offense, the minor is required to
be sentenced as an adult. [Penal Code Section 1170.17(a).]
4)Provides, with some exceptions, 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 life without the possibility of parole has served at least
15 years of that sentence, the defendant may submit to the
sentencing court a petition for recall and resentencing and
sets forth the requirements for filing and granting such a
petition. [Penal Code Section 1170(d)(2).]
5)Requires the Board of Parole Hearings (BPH) to consider the
views and interests of the victim when scheduling parole
rehearings, and provides that the denial period between
rehearings shall be 15, 10, 7, 5 or 3 years as specified. An
inmate may request BPH to exercise discretion to advance a set
hearing to an earlier date, by submitting a written request to
BPH which sets forth new information or a change in
circumstances. BPH has the sole discretion to determine
whether to grant or deny a request. An inmate is allowed to
make one written request during each three year period
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following a summary denial or decision of BPH. (Penal Code
Section 3041.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1276 gives
juveniles who were sentenced to life without the possibility
of parole for a crime other than homicide a second chance to
demonstrate that they are capable of rehabilitation. This
bill provides these youth automatic parole consideration after
serving 25 years in prison and aligns California law with a
United States Supreme Court mandate that a juvenile offender
have a meaningful opportunity for release."
2)Background : According to background materials provided by the
author, "Last year, SB 9 (Yee) specified that juveniles with
LWOP sentences may petition the trial court after serving 15
years to have their sentences reduced to 25 years to life.
However, there is no similar procedure for juveniles who have
received de facto life sentence for non-homicide offenses. AB
1276 seeks to give a juvenile who is convicted of a
non-homicide offense the same consideration for parole as a
juvenile sentenced to life without possibility of parole for
murder and granted a new sentence under SB 9."
3)Review of Case Law: Life Sentences for Juveniles : In 2010,
the United States Supreme Court ruled that it is
unconstitutional to sentence a youth who did not commit
homicide to a sentence of life without the possibility of
parole (LWOP). [Graham v. Florida (2010) 130 S.Ct. 2011.]
The Court discussed the fundamental differences between a
juvenile and adult offender and reasserted its earlier
findings from Roper v. Simmons (2005) 543 U.S. 551, 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
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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 2012, the California Supreme Court ruled that sentencing a
juvenile offender for a non-homicide offense to a term of
years with a parole eligibility date that falls outside the
juvenile offender's natural life expectancy constitutes cruel
and unusual punishment in violation of the Eighth Amendment.
[People v. Caballero (2012) 55 Cal. 4th 262, 268.] The Court
stated that "the state may not deprive [juveniles] at
sentencing of a meaningful opportunity to demonstrate their
rehabilitation and fitness to reenter society in the future."
[Ibid.] Citing Graham, supra, the Court stated the sentencing
court must consider all mitigating circumstances attendant in
the juvenile's crime and life, including but not limited to
his or her chronological age at the time of the crime, whether
the juvenile offender was a direct perpetrator or an aider and
abettor, and his or her physical and mental development, so
that it can impose a time when the juvenile offender will be
able to seek parole from the parole board." (Id. at pp.
268-269.) In Caballero, the defendant was convicted of three
counts of attempted murder and received a sentence of
110-years-to-life. Relying on the reasoning in the Graham
case, the Court found that while the juvenile did not receive
a sentence of LWOP, trial court's sentence effectively
deprives the defendant of any
"realistic opportunity to obtain release" from prison during his
or her expected lifetime, thus the sentence is a de facto LWOP
sentence and violates the Eighth Amendment's prohibition
against cruel and unusual punishment. (Id. at pg. 268.)
The California Supreme Court in Caballero, supra, advised
"[d]efendants who were sentenced for crimes they committed as
juveniles who seek to modify life without parole or equivalent
de facto sentences already imposed may file petitions for
writs of habeas corpus in the trial court in order to allow
the court to weigh the mitigating evidence in determining the
extent of incarceration required before parole hearings."
(Id. at p. 269.) While the Court did not provide a precise
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timeframe for setting these future parole hearings, the Court
stressed that "the sentence must not violate the defendant's
Eighth Amendment rights and must provide [the defendant with]
a 'meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation' under Graham's
mandate.' " (Ibid.)
4)Writ of Habeas Corpus Generally : A writ of habeas corpus is
generally used to challenge the lawfulness of imprisonment,
conditions of confinement, or other actual or potential
restraint on personal liberty. (Penal Code Section 1473.)
Habeas corpus is explicitly recognized in the federal
Constitution (U.S. Const. art. I, � 9) and the California
Constitution (Cal. Const art. IV, � 10, art. I, � 11.) A
"prisoner may claim on habeas corpus that he was sentenced to
a term in excess of that permitted by the Constitution, even
if his claim was previously rejected on direct appeal." [In
re Huffman (1986) 42 Cal.3d 552, 555.] In Caballero, the
California Supreme Court explicitly stated that defendants
unconstitutionally sentenced to LWOP or a de facto LWOP
sentence under the Graham, supra, ruling may file a petition
for a writ of habeas corpus in the trial court in order to
allow the court to determine the appropriate length of
imprisonment. (Caballero, supra, 55 Cal.4th at p. 269.)
It is unclear from current case law how long a sentence would
have to be for it to constitute a de facto LWOP sentence. In
Caballero, supra, the defendant was sentenced to
110-years-to-life, which the court found to be an
unconstitutional de facto LWOP sentence. In another case, the
court found that a juvenile's sentence of 84 years to life for
non-homicide offenses was an unconstitutional de facto LWOP
sentence. [People v. Mendez (2010) 188 Cal.App. 4th 47, 50;
Cf. People v. Perez (2013) 214 Cal. App. 4th 49, a juvenile's
sentence of 30 years to life did not constitute de facto LWOP
sentence; People v. Em (2009) 171 Cal. App. 4th 964, a
juvenile's sentence of 50 years to life did not violate the
Eighth Amendment under the traditional disproportionality
test.]
This bill allows an inmate who was under the age of 18 when he
or she committed a non-homicide offense to have a parole
hearing after serving 25 years of his or her sentence without
specifying the length of the underlying sentence. This
approach avoids making the determination of what constitutes a
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de facto LWOP sentence and provides a parole mechanism for all
inmates who were under the age of 18 when they were convicted
of a non-homicide offense.
5)SB 9 (Yee) Chapter 828, Statutes of 2012 : SB 9 allows an
inmate who was under 18 years of age at the time of committing
an offense for which the prisoner was sentenced to LWOP to
submit a petition for recall and resentencing to the
sentencing court after serving 15 years of that sentence. The
new law requires the person to submit a petition to the court
which includes the defendant's statement that he or she was
under 18 years of age at the time of the crime and was
sentenced to LWOP, the defendant's statement describing his or
her remorse and work towards rehabilitation, and other
specified information. If the court finds 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 previously been sentenced,
provided that the new sentence, if any, is not greater than
the initial sentence. [Penal Code Section 1170(d)(2).]
The court has the discretion to recall the sentence and
resentence the defendant. If the petition is denied, the
inmate may petition the court for recall and resentencing
after he or she has served 20 years of the current sentence.
If that petition is denied, the new law allows the inmate to
submit a new petition after serving 24 years, and if that is
denied, then it allows a final petition to be submitted during
the 25th year of his or her petition. [Penal Code Section
1170(d)(2)(H).]
SB 9 applies to defendants sentenced to LWOP for a crime
committed when the defendant was under the age of 18. 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, supra, 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,
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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. [Penal Code Section
190.2(a).]
The offense for which a juvenile can be sentenced to LWOP is
first-degree murder with special circumstances; and under SB
9, this category of inmates can petition the court for recall
and resentencing after serving 15 years of his or her
sentence. The court may, within its discretion, resentence
the defendant to the only statutorily authorized alternative,
which is 25-years-to-life. After the resentenced inmate serves
25 years, he or she will have the opportunity to appear before
BPH to determine parole eligibility. This bill requires an
inmate sentenced to a non-homicide offense to have a BPH
hearing after serving 25 years. Should inmates convicted of
offenses less serious than those covered in SB 9 have to serve
25 years of their sentence prior to having an opportunity for
parole?
6)Argument in Support : According to the Los Angeles County
District Attorney's Office , the sponsor of this bill, "AB 1276
is in response to the request by the California Supreme Court
in People v. Caballero 55 Cal 4th 262 (2012) that the
Legislature establish a parole eligibility mechanism for an
individual sentenced to a de facto life term for crimes
committed as a juvenile.
"AB 1276 requires that 25 years be served before consideration
of parole because offenders given de facto LWOP sentences have
committed very serious and dangerous offenses. Typical cases
involve persons who have committed multiple crimes involving
forcible rape or other sex crimes, multiple attempted murders
involving the use of a firearm or multiple acts of violent
crime on behalf of a criminal street gang. We do not agree
with opponents of SB 1276 that these individuals should be
released after serving only 10 years in prison.
"Opponents have argued that Senate Bill 260 (Hancock) is a
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better approach. We respectfully disagree. SB 260 would permit
any person who has served 10 years in prison for a crime
committed as a juvenile to request resentencing by the court.
However, there is no guarantee of parole consideration. This
approach is likely to lead to inconsistent and unfair results.
Under SB 260, a person sentenced to 105 years in prison (a de
facto LWOP sentence) could be resentenced to 50 years (not a
de facto LWOP sentence as the parole date is not 'outside the
offender's natural life expectancy'). We can then expect
years of additional litigation as the courts ponder whether or
not 50 year sentences are also unconstitutional. On the other
hand, other courts may release dangerous offenders after
serving only 10 years, a clear threat to public safety. AB
1276 avoids these issues by treating all offenders equally and
guaranteeing parole consideration after the defendant has
served 25 years in prison."
7)Argument in Opposition : The Friends Committee on Legislation
of California (FCLCA) argues, "Last year, Governor Brown
signed SB 9 into law. Under SB 9, a bill supported by FCLCA,
juveniles convicted of first degree murder with a finding of a
special circumstance(s) and sentenced to life without the
possibility of parole, have the opportunity for review after
serving 15 years along with the possibility of being paroled
after serving 25 years. Under AB 1276, persons convicted of
non-homicide offenses would have to serve 10 years longer
before they would be eligible for a review. This is
inconsistent with California law and fails to take into
account the diminished culpability of youth as a result of the
neurological, physical and psychological differences between
adults and youth, as well as young people's capacity for
rehabilitation. These factors are based on the
characteristics of the defendants as opposed to the underlying
conviction.
"We also have misgivings about referring these cases to the
Board of Parole Hearings (BPH), which has a dismal record for
granting parole. In our estimation, petitioners are more
likely to receive fair reviews in sentencing courts, which are
further removed from the political process and are better able
to gauge the growth and maturity of petitioners whom the court
presided over at trial. Moreover, AB 1276 provides no
meaningful guidelines for BPH to consider upon granting
reviews."
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8)Related Legislation : SB 260 (Hancock) authorizes the
sentencing court, upon motion and 60-days' notice to the
prosecution, to hold a hearing to review the sentence of a
person who was under 18 years of age at the time of the
offense and was prosecuted as an adult, after the person has
served 10 years in prison. SB 260 is pending hearing by the
Senate Committee on Appropriations.
9)Prior Legislation :
a) SB 9 (Yee), Chapter 828, Statutes of 2012, authorizes a
prisoner who was under 18 years of age at the time of
committing an offense for which the prisoner was sentenced
to LWOP to submit a petition for recall and resentencing to
the sentencing court, and to the prosecuting agency, as
specified.
b) SB 399 (Yee), of the 2009-10 Legislative Session, was
substantially similar to SB 9. SB 399 failed passage on
Assembly Floor.
c) SB 999 (Yee), of the 2007-08 Legislative Session, would
have eliminated 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.
d) SB 1223 (Kuehl), of the 2003-04 Legislative Session,
would have authorized 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
Los Angeles County District Attorney's Office (Sponsor)
California District Attorneys Association
California Mental Health Directors Association
National Association of Social Workers - California Chapter
Opposition
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Advancement Project
California Attorneys for Criminal Justice
Californians United for a Responsible Budget
Children's Advocacy Institute
Dolores Mission Church
Everychild Foundation
Friends Committee on Legislation in California
Legal Services for Prisoners with Children
National Center for Lesbian Rights
Office of Restorative Justice of the Archdiocese of Los Angeles
Post-Conviction Justice Project, University of Southern
California, Gould School of Law
W. Hayward Burns Institute
Youth Law Center
One private individual
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744