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LWOP and sentences amounting to LWOP in juvenile cases: cruel and unusual punishment

Lead cases: Cases from the United States and California Supreme Courts have established new ground rules for heavy punishment of crimes committed by juveniles:

  • In People v. Caballero (2012) 55 Cal.4th 262, the California Supreme Court extended the ban of Graham v. Florida (2010) 560 U.S. 48 on LWOP for non-homicides committed by a juvenile, holding unconstitutional a sentence so long it is the equivalent of LWOP.
  • People v. Gutierrez (2014) 58 Cal.4th 1354 considered the ban on mandatory LWOP for juvenile homicides established in Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] in the context of Penal Code section 190.5, holding that section does not create a presumption of LWOP for juvenile special circumstances murders.
  • People v. Franklin (2016) 63 Cal.4th 261 found the enactment of Penal Code section 3051 satisfied Miller-Caballero by requiring the defendant receive a parole eligibility hearing during the 25th year of incarceration. It also remanded to the trial court to determine whether the defendant had an adequate opportunity to make an evidentiary record of youth-related mitigating factors that would be relevant to the parole release decision.
  • The remand order in In re Reyes (S233936) after a grant of review clarified that the Supreme Court intended the evidentiary findings mandated in Franklin be available via habeas corpus to defendants whose cases are final.

Practice memo: ADI has prepared a practice memo for counsel on the implications and applications of these cases. It considers the availability of resentencing remedies under the cases; their retroactivity; the responsibilities of counsel in pre-remittitur and post-remittitur cases involving these issues; and related potential issues flowing from the decisions.

Materials for pro per inmates: ADI has also prepared links to two sets of materials for unrepresented inmates who may be entitled to relief – one for Caballero situations and one for Gutierrez situations, and one for Franklin relief.

The Caballero set of materials includes:  

1.   Cover letter to inmate introducing the materials and procedures.  
2.   Instructions for preparing the habeas corpus petition.
3.   Answer to Question 6, “Grounds for Relief” (Attachment)
4.   MC-275 (required form for pro per habeas corpus petition)

The Gutierrez set of materials includes:  

1.   Cover letter to inmate introducing the materials and procedures. 
2.   Instructions for preparing the habeas corpus petition.
3.   Answer to Question 6, “Grounds for Relief” (Attachment)
4.   MC-275 (required form for pro per habeas corpus petition)   

The Franklin set of materials includes:  

1.   Cover letter to inmate introducing the materials and procedures. 
2.   Instructions for preparing the habeas corpus petition.
3.   Answer to Question 6, “Grounds for Relief” (Attachment)
4.   MC-275 (required form for pro per habeas corpus petition)   

 

Sixth Amendment confrontation under Crawford and progeny: use of "testimonial" out-of-court statements

UNITED STATES SUPREME COURT DECISIONS

The foundational case for the current debate on confrontation is Crawford v. Washington (2004) 541 U.S. 36, which held the Sixth Amendment forbids "testimonial" out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. "Testimonial" statements are made under circumstances that would lead an objective witness reasonably to believe the statements would be available for use at a later trial.

In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 the court found a violation of the right to confrontation when written certificates, executed under oath, stating a drug test revealed the presence of cocaine, was admitted without the testimony of the scientist who performed the test. Each certificate was a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." (Id. at p. 310, interior quotation marks omitted.)

In Bullcoming v. New Mexico (2011) ___ U.S. ___ [131 S.Ct. 2705, 180 L.Ed.2d 610], the court determined the Confrontation Clause does not permit the prosecution to introduce the blood alcohol findings of a nontestifying forensic analyst, recorded in a written certificate, through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the certificate. The nontestifying analyst's certificate, though not sworn before a notary, was formalized in a signed document and therefore qualified as a "testimonial" statement.

In Williams v. Illinois (2012) ___ U.S. ___ [132 S.Ct. 2221, 183 L.Ed.2d 89], a fractured court found that the Confrontation Clause is not violated when an expert witness uses and testifies about the results from tests she did not perform herself as the basis of her opinion. The testimony, by a forensic biologist, was that a DNA profile on swabs from the victim, produced by a Maryland laboratory, matched the defendant's DNA profile from the Illinois state police. Because no single rationale had the assent of five justices, the "holding" of the court may be considered as the narrowest grounds on which the justices concurring in the judgment agreed – in this case, arguably, the precise factual scenario at hand in Williams: a bench trial where DNA evidence developed by a non-testifying expert is admitted to show the basis of the testifying expert's opinion. In a case with a jury trial, a different result might be required. Staff attorney Cindi Mishkin provides an analysis of the decision here (PDF).

CALIFORNIA SUPREME COURT DECISIONS

A pre-Melendez-Diaz case, People v. Geier (2007) 41 Cal.4th 555, found no confrontation clause violation when a laboratory supervisor testified about DNA results from a test performed by another employee. The court's theory was those results were within the business records hearsay exception and were not testimonial.

On October 15, 2012, the Supreme Court issued a trio of cases interpreting Melendez-Diaz: People v. Lopez (2012) 55 Cal.4th 569, People v. Dungo (2012) 55 Cal.4th 608, and People v. Rutterschmidt (2012) 55 Cal.4th 650. In these cases, the court used a two-part test for the "testimonial" character of an out-of-court statement. First, to be "testimonial," the statement must have been made with some degree of formality or solemnity. Second, its primary purpose must have pertained in some fashion to a criminal prosecution.

Lopez found proper the admission of a nontestifying laboratory analyst's report on blood alcohol and a colleague's testimony drawing the same conclusion. The report in question was not "testimonial" as the U.S. Supreme Court has developed that concept, because it was not executed with the requisite formality.

Dungo upheld the admission of a pathologist's testimony about an autopsy performed by another doctor than the witness. The court's analysis rested primarily on the "primary purpose" prong of the test. It concluded that criminal investigation was not the primary purpose for the autopsy report; it was only one of several purposes.

In Rutterschmidt a supervising criminalist testified to the results of drug tests and reports prepared by other analysts. The court decided any error in admitting this testimony was harmless beyond a reasonable doubt and so did not resolve the admissibility question.

ISSUES FOR COUNSEL TO CONSIDER

These cases seem highly fact-specific. It is hard to distill a "holding" from each, other than the resolution in the particular case. Counsel may therefore attempt to distinguish the unfavorable cases and analogize to the favorable ones.

The Court of Appeal will be bound by the California Supreme Court's two-pronged test for "testimonial" statements, but, while acknowledging that fact, counsel may urge the test is not correct and say the issue is being raised to preserve it for review and possible certiorari.

Professor Jeffrey Fisher, who argued Crawford before the Supreme Court, offers an update on that area of the law here. (P. 018 et seq. Posted with author's permission.)

Sex Offender Registration

Blakely-Apprendi Principles Do Not Apply to Imposition of Registration Requirement with Residency Restrictions

People v. Mosley (2015) 60 Cal.4th 1044 rejected the contention that lifetime sex offender registration requirement carrying residency restrictions under Jessica’s Law (Pen. Code, § 3003.5, subd. (b)) can be imposed only if the defendant had an opportunity for a jury trial and findings beyond a reasonable doubt under Blakely-Apprendi. (Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.)

Noting long-standing law that sex registration per se is not “punishment,” the court rejected the further contention that highly burdensome residency restrictions added by Jessica’s Law converted a regulatory measure into a punitive one. First, the jury trial right at the time of the Sixth Amendment’s adoption did not apply to such restrictions, first enacted many years later. Second, historical considerations aside, the restrictions are inherently regulatory in nature. Third, even if the residency restrictions required Blakely-Apprendi procedures, failure to follow such procedures would not invalidate the entire requirement of sex registration, as the Court of Appeal had ordered.

Justice Liu, joined by Justice Werdegar, concurred and dissented. He concluded the residency restriction is a penalty that exceeds what the jury’s verdict permitted and so violates Blakely-Apprendi. Those cases broadly prohibit judicial factfinding that increases maximum criminal penalties and punishments and do not focus on the particular type of penalty or punishment involved. The trial judge’s finding that Mosley had committed the assault with sexual intent subjected him to burdensome restrictions far beyond those prescribed for the simple conviction of assault. Justice Liu found these “punitive” within the tests laid out by the United States Supreme Court. He agreed with the majority that the remedy would not be to invalidate the entire registration requirement.

A certiorari petition remains a possibility. Until that decision is made and any petition is ruled on, ADI recommends attorneys raise the issue briefly on behalf of their clients to preserve it. Elaborate briefing would be inappropriate, and of course the argument must acknowledge the California Supreme Court’s decision and the fact it is binding on the Courts of Appeal.

Residency Requirements for Sex Offender Parolees in San Diego County May Not Be Applied Across-the-Board

In re Taylor (2015) 60 Cal.4th 1019 held, as had the Court of Appeal, that sex offender parolees in San Diego County cannot be subjected to across-the-board residency restrictions required by Jessica’s Law. A unanimous Supreme Court held the effects of those restrictions are so extensive and unreasonable as to constitute an infringement on constitutional rights, because there are so few available residences in the county meeting the requirements of the statute.

These harsh restrictions on the affected parolees’ liberty and privacy rights produce conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. For example, they have led to greatly increased homelessness among registered sex offenders on parole in the county. Accordingly, they bear no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators and infringe the affected parolees’ basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive. The court stressed that some parolees may be validly restricted in choice of residence, but that decision must be individualized, not mandated by a blanket policy.

 

Two prior convictions arising out of a single criminal act cannot constitute two strikes under the Three Strikes law.

Vargas

People v. Vargas (2014) 59 Cal.4th 635 held that when the defendant has two prior strike convictions based on the same criminal act, the trial court is required to dismiss one of them. In Vargas, the two prior strikes were robbery and carjacking, committed by the single act of forcibly taking the victim’s car. The defendant received a three-strike term of 25 years to life. On review the California Supreme Court concluded “this is one of the extraordinary cases (People v. Carmony [(2004) 33 Cal.4th 367, 378]) in which the nature and circumstances of defendant’s prior strike convictions demonstrate the trial court was required to dismiss one of them because failure to do so would be inconsistent with the spirit of the Three Strikes law.” (Vargas, at p. 649.)

Retroactivity

Vargas does not create new law but rather clarifies the original electoral/legislative intent of the Three Strikes law. It is a substantive rule of law that defines the reach of that law and so should be fully retroactive. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; Bousley v. United States (1998) 523 U.S. 614, 619-621 [decision that a substantive criminal statute does not reach certain conduct is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 394-396 [People v. Daniels (1969) 71 Cal.2d 1119, reinterpreting substantive definition of kidnapping, applies to defendant whose conviction became final before Daniels]; In re Hansen (2014) 227 Cal.App.4th 906, 916-917 [retroactively applying People v. Sara Chun (2009) 45 Cal.4th 1172, on merger of shooting at inhabited dwelling with resulting homicide, to conviction final on appeal].)

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Vargas when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law (PDF), which discusses procedures at each stage of an appeal and basic principles of retroactivity.)

In post-remittitur cases, a petition for writ of habeas corpus in the trial court to seek resentencing pursuant to Vargas may be filed. Normally, trial counsel would be responsible for it. ADI cannot offer any realistic expectation that appellate counsel would receive compensation from the Court of Appeal for efforts on post-remittitur cases. Counsel may wish to seek a superior court appointment, however – or at least voluntarily help affected former clients by alerting them or their trial counsel to Vargas and ADI’s materials for unrepresented inmates (next topic).

Materials for unrepresented inmates

ADI has prepared materials for unrepresented inmates, which counsel may send to former clients or trial counsel:

  1. Cover letter to inmate introducing the materials and procedures.
  2. Instructions for preparing the habeas corpus petition.
  3. Answer to Question 6, "Grounds for Relief" (Attachment)
  4. MC-275 (required form for pro per habeas corpus petition) (external link)


An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.

Chiu

People v. Chiu (2014) 59 Cal.4th 155 held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. The defendant was charged with murder under two theories: (1) he directly aided and abetted the murder, and (2) he aided and abetted the perpetrator of the target offense, disturbing the peace or assault, the natural and probable consequence of which was the victim’s murder. A jury found him guilty of first degree murder. Interpreting the legal principles establishing aider and abettor culpability (e.g., Pen. Code, § 31), Chiu concluded the second theory is legally incorrect. Aider and abettor culpability in the natural and probable consequences context is not sufficient to support liability for first degree murder. (Chiu, at pp. 164-166.) “[T]he connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated.” (Id. at p. 166.) The instructional error was prejudicial under Chapman v. California (1967) 386 U.S. 18. (Chiu, at p. 168.)

Retroactivity

Chiu’s holding is a substantive rule of law that defines the reach of aider and abettor liability, and so it should be fully retroactive. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; Bousley v. United States (1998) 523 U.S. 614, 619-621 [decision that a substantive criminal statute does not encompass certain conduct is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 394-396 [reinterpretation of substantive definition of kidnapping applies to defendant whose conviction became final before People v. Daniels (1969) 71 Cal.2d 1119]; In re Hansen (2014) 227 Cal.App.4th 906, 916-917 [retroactively applying People v. Sara Chun (2009) 45 Cal.4th 1172, on merger of shooting at inhabited dwelling with resulting homicide, to conviction final on appeal].)

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Chiu when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law, which discusses procedures at various post-conviction stages and explains the basic principles of retroactivity.)

In post-remittitur cases, a petition for writ of habeas corpus in the trial court to seek reversal pursuant to Chiu may be filed. Normally, trial counsel would be responsible for it. ADI cannot offer any realistic expectation that appellate counsel would receive compensation from the Court of Appeal for efforts on post-remittitur cases. Counsel may wish to seek a superior court appointment, however – or at least voluntarily help affected former clients by alerting them or their trial counsel to Chiu and ADI’s materials for unrepresented inmates (next topic).

Materials for unrepresented inmates

ADI has prepared materials for unrepresented inmates, which counsel may send to former clients or trial counsel:

1. Cover letter to inmate introducing the materials and procedures.
2. Instructions for preparing the habeas corpus petition.
3. Answer to Question 6, “Grounds for Relief” (Attachment to Petition)
4. MC-275 (required form for pro per habeas corpus petition)


No great bodily injury enhancements under Penal Code section 12022.7, subdivision (a), can attach to a conviction for murder or manslaughter

Cook

People v. Cook (2015) 60 Cal.4th 922 held a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a) cannot attach to a conviction of murder or manslaughter. The defendant was convicted of three counts of gross vehicular manslaughter (Pen. Code § 192, subd. (c)(1)). Three GBI enhancements were applied to the first count of gross vehicular manslaughter. Two were based on the other victims involved in the manslaughter counts, and one related to an injured victim who survived. The Supreme Court concluded that a manslaughter conviction cannot be enhanced under section 12022.7(a) for the infliction of great bodily injury on any victims. The language of section 12022.7, subdivision (g), specifically provides the enhancement “shall not apply to murder or manslaughter” and shall not apply “if infliction of great bodily injury is an element of the offense.” It disapproved three Court of Appeal decisions at least partially inconsistent with that conclusion.

Retroactivity

Cook’s holding is a substantive rule of law that defines the reach of a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). It therefore should be fully retroactive, even as to final cases. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; Bousley v. United States (1998) 523 U.S. 614, 619-621 [decision that a substantive criminal statute does not reach certain conduct is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 394-396 [reinterpretation of substantive definition of kidnapping applies to defendant whose conviction became final before People v. Daniels (1969) 71 Cal.2d 1119]; In re Hansen (2014) 227 Cal.App.4th 906, 916-917 [retroactively applying People v. Sara Chun (2009) 45 Cal.4th 1172, on merger of shooting at inhabited dwelling with resulting homicide, to conviction final on appeal].)

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Cook when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law, which discusses procedures at each stage of an appeal and basic principles of retroactivity.)

In post-remittitur cases, a petition for writ of habeas corpus in the trial court seeking relief under Cook may be filed. Normally, trial counsel would be responsible for it. ADI cannot offer any realistic expectation that appellate counsel would receive compensation from the Court of Appeal for efforts on post-remittitur cases. Counsel may wish to seek a superior court appointment, however – or at least voluntarily help affected former clients by alerting them or their trial counsel to Cook and ADI’s materials for unrepresented inmates (next topic).

Materials for unrepresented inmates

ADI has prepared materials for unrepresented inmates, which counsel may send to former clients or trial counsel:

1. Cover letter to inmate introducing the materials and procedures.
2. Instructions for preparing the habeas corpus petition.
3. Answer to Question 6, “Grounds for Relief” (attachment to petition)
4. MC-275 (required form for pro per habeas corpus petition)

 

Denial of motion to recall a sentence is broadly appealable as order after judgment affecting the substantial rights of the party


Two California Supreme Court decisions have taken an expansive position on the appealability of refusal to recall a sentence under one of various statutory provisions permitting recalls, finding these to be orders after judgment affecting the substantial rights of the defendant. (Pen. Code, § 1237, subd. (b).) In so doing the court has cast serious doubt on the more restrictive position various Courts of Appeal have taken.

People v. Loper (2015) 60 Cal.4th 1155 found denial of compassionate release under Penal Code section 1170, subdivision (e) to be appealable. It rejected the position that, because the defendant has no right to make a recall motion under that provision, denial of recall is not appealable. The right to appeal is not confined to the moving party. (E.g., People v. Herrera (1982) 127 Cal.App.3d 590 [recall to correct disparate sentence under Pen. Code, § 1170, subd. (f)], overruled on other grounds but approved on appealability holding in People v. Martin (1986) 42 Cal.3d 437, 446, 450]; see ADI Appellate Practice Manual, §§ 2.69-2.69A, 2.72.)

Teal v. Superior Court (2014) 60 Cal.4th 595 found denial of resentencing under Penal Code section 1170.126 on eligibility grounds to be appealable. It rejected the argument that a defendant who is ineligible for section 1170.126 relief has no standing to make the motion and thus to appeal it. Standing requires an actual justiciable controversy in which the party has a beneficial interest; it does not require the defendant actually be eligible for relief on the merits. (Id. at p. 601, citing People v. Totari (2002) 28 Cal.4th 876, 884.)

These two Supreme Court decisions undermine a long line of cases on refusal to recall the sentence under Penal Code section 1170, subdivision (d)(1). That section permits the trial court to resentence the defendant within 120 days of judgment on its own motion, but does not confer standing on a defendant to initiate a motion to recall a sentence. (Thomas v. Superior Court (1970) 1 Cal.3d 788, 790.) Formerly, case law had concluded from this fact that the defendant cannot appeal the refusal to recall the sentence and therefore could not appeal from its denial. (People v. Pritchett (1993) 20 Cal.App.4th 190, 194; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.) With the disapproval of that rationale, the conclusion that refusal to recall a sentence under section 1170(d)(1) is not appealable is open to challenge.

First District Appellate Project attorney Jeremy Price has prepared a practice article on Loper and Teal.

 

Search and seizure: digital privacy in the post-Riley world

Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 189 L.Ed.2d 430] held that the search-incident-to-arrest doctrine does not allow warrantless searches of the digital contents of cell phones as incident to arrest, apart from “case-specific exceptions [that] may still justify a warrantless search of a particular phone.” The Supreme Court reasoned, “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.” (Id. at 2489.) It suggested that electronic devices therefore need to be treated differently in the Fourth Amendment context.

The issues are complex, in light of the immense capabilities and varieties of electronic devices. The number of electronic devices that could require a warrant are rapidly growing; defendants have argued that computers, cameras, GPS devices, and key fobs are all electronic devices that fall within the scope of Riley and therefore require a warrant to search. Courts have had to determine what exigent circumstances, such as the destruction of evidence on a cell phone from a third party, exist as an exception to the warrant requirement. Post-Riley courts have also grappled with applying the Fourth Amendment’s particularity requirement to cell phone warrants to avoid overseizure of data.

Professor Jeffrey Fisher, who argued Riley before the Supreme Court, offers an update on that area of the law here. (P. 005 et seq. Posted with author’s permission.)

 

Supreme Court update on criminal procedure

Stanford Law School Professor Jeffrey Fisher has written a comprehensive article addressing two topics: Digital Privacy in a Post-Riley World and Crawford v. Washington -- the Sixth Amendment Right to Confrontation. His article, updated through November 2015 is here. (Posted with author's permission.) 

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