BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 1276 (Bloom)                                            6
          As Introduced May 24, 2013 
          Hearing date:  July 2, 2013
          Penal Code
          MK:jr

                                           
                             PAROLE: JUVENILE OFFENDERS  

                                       HISTORY

          Source:  Los Angeles County District Attorney's Office

          Prior Legislation:   SB 9 (Yee) - Chap. 828, Stats. 2012
                             SB 399 (Yee) - 2010, failed on Assembly floor
                             SB 999 (Yee) - 2008, died on Senate floor
                                    SB 1223 (Kuehl) - 2004, died on  
            Assembly Suspense

          Support: California District Attorneys Association; California  
                   Mental Health Directors Association; National  
                   Association of Social Workers California Chapter;  
                   Riverside Sheriffs' Association; Association for Los  
                   Angeles Deputy Sheriffs;  Los Angeles Police Protective  
                   League; Los Angeles Probation Officers Union, AFSCME,  
                   Local 685

          Opposition:Human Rights Watch (unless amended); Youth Law  
                   Center;  Legal Services for Prisoners with Children;  
                   Friends Committee on Legislation of California;  
                   California Attorneys for Criminal Justice

          Assembly Floor Vote:  Ayes 47 - Noes 27




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                                         KEY ISSUE
           
          SHOULD A PERSON WHO WAS SENTENCED AS A JUVENILE BE ELIGIBLE FOR  
          PAROLE AFTER SERVING 20 OR 25 YEARS, DEPENDING ON THE LENGTH OF    
          ORIGINAL SENTENCE?


                                       PURPOSE

          The purpose of this bill is to provide 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, or if  
          the person was sentenced to less than 40 years of imprisonment  
          the person shall be eligible for parole consideration after  
          serving 20 years.
           
          Existing law  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")  602(b); 707.)   

          Existing law  contains three discrete mechanisms for remanding  
          minors to adult criminal court for prosecution:
            Statutory or legislative waiver  requires that minors 14 years  
            of age or older who are alleged to have committed specified  
            murder and sex offenses be prosecuted in adult criminal court  
            (i.e., the juvenile court has no jurisdiction over these  
            cases) (WIC  602 (a));
            Prosecutorial waiver  gives prosecutors the discretion to file  
            cases against minors 14 and older, depending upon their age,  
            alleged offense and offense history, in juvenile or adult  
            criminal court (WIC  707 (d)); and
            Judicial waiver  gives courts the discretion to evaluate  
            whether a minor is unfit for juvenile court based on specified  
            criteria and applicable rebuttable presumptions.  (WIC  707  
            (a), (b) and (c).)




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

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

           Existing law  provides, 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  1170 (d) (2).)

           This bill  provides that a person who was convicted of a  
          nonhomicide 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 or 20 years in prison if  
          the sentence was less than 40 years.

           This bill  contains codified intent language stating that it is  
          the intent of the Legislature to provide a meaningful  
          opportunity to obtain release according to the standards set  




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          forth by the California Supreme Court in People v. Caballero  
          (2012)55 Cal 4th 262.

           This bill  provides that it does not prohibit the imposition of a  
          life sentence for juveniles convicted of homicide and does not  
          prohibit or modify the parole procedures for adult offenders.   
          This section does not limit the access of juvenile offenders to  
          other programs and appeals that they were eligible for prior to  
          the enactment of this section.
          

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  




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          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  




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               reasonable, appropriate remedy.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               In 2010, the United States Supreme Court ruled in  
               Graham v. Florida that the Constitution prohibits  
               giving a life without parole sentence to a juvenile  
               offender who did not commit a homicide, and found that  
               if a State imposes a life sentence, it must provide the  
               defendant with a reasonable opportunity to obtain  
               release before the end of that term.  After hearing  
               People v. Caballero in 2012, the California Supreme  
               Court urged the Legislature "to enact legislation  
               establishing a parole eligibility mechanism that  
               provides a defendant serving a de facto life sentence  
               without the possibility of parole for a non-homicide  
               offense that he or she committed as a juvenile with the  
               opportunity to obtain release on a showing of  
               rehabilitation and maturity."

               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.

          2.   Life or Effectively Life Sentences for Juveniles  

          In Graham v. Florida (2010) 130 S.Ct. 2011, 176 L.Ed.2d 825 the  
          Supreme Court held that it is cruel and unusual punishment to  
          sentence a juvenile to life without the possibility of parole  




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          for a non-homicide case.  The Court found that the rareness of  
          such a sentence showed: 

               A national consensus has developed against a life  
               without parole sentence for one who was a juvenile when  
               the non-homicide crime was committed.  Although the  
               sentence is permitted in many states, it is currently  
               being served by only 123 persons, and the majority of  
               those persons are in Florida.  These numbers  
               demonstrate that the sentence is rare enough to be  
               considered cruel and unusual.  (130 S.Ct. 2026, 176  
               L.Ed.2d 841.)  Although international practice is in no  
               way controlling, it is worth noting that the United  
               States is the only country that imposes life without  
               parole sentences on juvenile non-homicide offenders.   
               (130 S.Ct. 2033, 176 L.Ed.2d 849.)

               The consensus alone is not determinative.  The  
               culpability of the offender is also an important  
               consideration.  As Roper v. Simmons (2005) 543 U.S.  
               551, 125 S.Ct. 1183, 161 L.Ed.2d 1, supra, 500,  
               recognized, juveniles are less deserving of the most  
               severe punishment.  Compared to adults, juveniles have  
               a lack of maturity and an underdeveloped sense of  
               responsibility; they are more vulnerable to negative  
               influences and outside pressures, and their characters  
               are not as well formed.  Yet a juvenile, punished at a  
               young age, will generally serve more years in prison  
               than an adult who receives a life term.  (130 S.Ct.  
               2028, 176 L.Ed.2d 843.)  The goals of retribution,  
               deterrence, and rehabilitation are not advanced or  
               sufficiently justified by so harsh a sentence.  (130  
               S.Ct. 2028, 2029, 176 L.Ed.2d 843, 844.)

               ? Nevertheless, the state is not required to guarantee  
               eventual freedom for a juvenile convicted of a  
               non-homicide crime.  What it must do is give such  
               defendants "some meaningful opportunity to obtain  
               release based on demonstrated maturity and  
               rehabilitation."  (130 S.Ct. 2030, L.Ed.2d 846.)  




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               Defendant's sentence, as it stands, would guarantee  
               that he will die in prison without such an opportunity,  
               no matter what he might do to demonstrate that he is  
               fit to rejoin society.  (130 S.Ct. 2032, 176 L.Ed.2d  
               848.)  (See People v. Mendez (2010) 188 C.A.4th 47, 62,  
               114 C.R.3d 870 [under rationale of Graham, juvenile's  
               sentence in non-homicide case to term of years that,  
               after allowance for conduct reductions, would exceed  
               his life expectancy, is de facto life without parole  
               sentence and unconstitutional]; 124 Harv. L. Rev. 209  
               [Graham].)  (3 Witkin Cal. Crim. Law Punishment  511)

          The Supreme Court again looked at the issue of juveniles  
          sentenced to life without parole in Miller v. Alabama (2012)132  
          S. Ct. 2455 and found that a mandatory life without parole  
          sentence for a juvenile in a homicide was also cruel and unusual  
          punishment. 

               Graham also likened life-without-parole sentences for  
               juveniles to the death penalty. That decision  
               recognized that life-without-parole sentences "share  
               some characteristics with death sentences that are  
               shared by no other sentences." 560 U.S., at ___, 130 S.  
               Ct. 2011, 176 L. Ed. 2d 825.  And it treated life  
               without parole for juveniles like this Court's cases  
               treat the death penalty, imposing a categorical bar on  
               its imposition for non-homicide offenses. By likening  
               life-without-parole sentences for juveniles to the  
               death penalty, Graham makes relevant this Court's cases  
               demanding individualized sentencing in capital cases.   
               In particular, those cases have emphasized that  
               sentencers must be able to consider the mitigating   
               qualities of youth.  In light of Graham's reasoning,  
               these decisions also show the flaws of imposing  
               mandatory life-without-parole sentences on juvenile  
               homicide offenders.  Pp. ___ - ___, 183 L. Ed. 2d, at  
               417-424.  (Miller v. Alabama, 132 S. Ct. 2455, 2459  
               (U.S. 2012).)

          Relying on Miller, the California Supreme Court in People v.  




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          Caballero found that in a non-homicide case a sentence of 110  
          years imposed on a juvenile is the legal equivalent of life  
          without parole.  (People v. Caballero  (2012) 55 Cal 4th 262.)

               Consistent with the high court's holding in Graham,  
               supra, 560 U.S. ___ [130 S. Ct. 2011], we conclude 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.   
               Although proper authorities may later determine that  
               youths should remain incarcerated for their natural  
               lives, the state may not deprive them at sentencing of  
               a meaningful opportunity to demonstrate their  
               rehabilitation and fitness to reenter society in the  
               future.  Under Graham's non-homicide ruling, 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.  The Board of Parole Hearings will then  
               determine whether the juvenile offender must be  
               released from prison "based on demonstrated maturity  
               and rehabilitation."  (560 U.S. at p. ___ [130 S. Ct.  
               at p. 2030].)  Defendants 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.  Because  
               every case will be different, we will not provide trial  
               courts with a precise timeframe for setting these  
               future parole hearings in a non-homicide case.   
               However, the sentence must not violate the defendant's  




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               Eighth Amendment rights and must provide him or her a  
               "meaningful opportunity to obtain release based on  
               demonstrated maturity and rehabilitation" under  
               Graham's mandate.  (People v. Caballero, 55 Cal. 4th  
               262, 268-269 (Cal. 2012).)







































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          The California 4th District Court of Appeal applied the  
          reasoning from Miller and Caballero to a homicide case where the  
          defendant was sentenced to 196 years:

               Satterwhite claims his sentence of 196 years to life  
               should be reversed, and the matter should be remanded  
               for further proceedings, in light  of the United States  
               Supreme Court's recent decision in Miller, supra, 567  
               U.S. ___ [132 S.Ct. 2455], which held that,  in  
               homicide cases, the prohibition of cruel and unusual  
               punishment set forth in the Eighth Amendment to the  
               federal Constitution prohibits the imposition of a  
               mandatory sentence of life without the possibility of  
               parole on a juvenile offender.  (Miller, 567 U.S. at p.  
               ___ [132 S.Ct. at p. 2469]; see People v. Caballero  
               (2012) 55 Cal.4th 262, 268, fn. 4 [145 Cal. Rptr. 3d  
               286, 282 P.3d 291 v. Caballero (2012) 55 Cal.4th 262,  
               268, fn. 4 [145 Cal. Rptr. 3d 286, 282 P.3d 291]  
               (Caballero).)  We agree.  (People v. Thomas, 211 Cal.  
               App. 4th 987, 1013-1014 (Cal. App. 4th Dist. 2012).)

          After Caballero, it is clear that more prisoners with long  
          sentences they received for a crime committed before they were  
          18 will bring writs of habeas corpus on the basis of cruel and  
          unusual punishment.  This will lead courts to look at them on a  
          case by case basis.   

          3.  Parole Process  

          This bill provides that a person who was sentenced when they  
          were under 18 shall be eligible for parole after 20 years if  
          the sentence was less than 40 years and after 25 year if it  
          the sentence was 40 years or more.  The bill codifies that  
          it is the intent of the Legislature to provide a meaningful  
          opportunity to obtain release according to the standards set  
          forth in Caballero.

             a.   Time frame





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            Is parole after 20 or 25 years appropriate?  A person  
            convicted of second degree murder is eligible for parole  
            in 15 years; murder is excluded from this bill, should a  
            person who has committed something less than a 2nd degree  
            murder be eligible for parole at 15 years?  A person who  
            committed 1st degree murder can be eligible at 25 years?   
            Is this length of time appropriate for a person sentenced  
                                        to a non-murder prior to their 18th birthday?  What is the  
            appropriate time for a parole hearing to take place?

             b.    Timing of hearing

            Should the bill clarify that a hearing should take place  
            prior to the eligibility date so that the case can be  
            decided prior to the eligibility date so that the person  
            can actually be released when eligible?

             c.   Standards for parole

            Opponents to this bill express concerns that the existing  
            parole process will not provide meaningful review and the  
            current parole process does not take into the type of  
            considerations outlined in Caballero.  Should this bill  
            specifically list mitigating factors that should be  
            considered by the Board of Prison Terms when considering  
            parole of an individual under this bill?  If specific  
            mitigating factors are listed, should the bill also list  
            aggravating factors so the Board of Prison Terms has  
            parameters in which to consider these cases?

             d.   Actual release

            In order to provide a meaningful review, the Board of  
            Prison Terms will actually have to truly consider whether  
            or not these inmates who were under 18 when they committed  
            their crimes still are a danger to society.  Should the  
            bill specifically state that a person should be released  
            unless the Board finds that the person poses an  
            unreasonable risk of danger to society if released from  
            incarceration?











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          4.   SB 260 (Hancock)  

          SB 260 (Hancock) which passed this Committee on April 9,  
          2013, (4-2), and will be heard in Assembly Public Safety on  
          July 2 also creates a process following the Caballero case.   
          As it left the Senate, the bill created a court process.  As  
          recently amended, it is similar to this bill in that it  
          creates a parole process.  The authors and sponsors of this  
          bill and SB 260, as well as policy and fiscal staff from  
          both houses, have been working on amending both bills to set  
          up the appropriate process in response to the Caballero  
          bill.  The intent is that both bills will be identical as to  
          the non-homicide cases, and SB 260 will also address  
          homicide cases when they leave the Appropriations  
          Committees.
            

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