BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1276
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          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