In re CLYDE JAMES RAINEY, on Habeas Corpus.
A138921 (Contra Costa County Super. Ct. No. 9807082)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 2/28/14
CERTIFIED FOR PUBLICATION
BACKGROUND
In 1999, a jury convicted Rainey of first degree murder, committed during an attempted robbery and with personal use of a firearm. The trial court sentenced him to LWOP under
The facts as stated in our unpublished opinion affirming the judgment of conviction are as follows: “On Halloween night, October 31, 1996, 20-year-old Koupou Saechao was twice shot in the back while in front of his aunt‘s apartment building in North Richmond. The aunt heard two gunshots, and then Saechao came to the door and collapsed in her arms. Saechao said a ‘black guy’ shot him. Saechao died four days later, on November 4. [¶] The police arrested 16-year-old appellant on November 6, 1996. Appellant is African American. Appellant initially denied involvement in the shooting, then said that he and 14-year-old Donald C. tried to rob Saechao and Donald shot the victim when a patdown found nothing to steal. Ultimately, after talking with his mother at the police station, appellant confessed that he was the one who shot Saechao. When speaking to the police, appellant denied being a member of a gang, or participating in the shooting as a gang initiation. [¶] Appellant‘s trial defense was that he was guilty of no more than
At the sentencing hearing, the prosecutor stated the People “would concede . . . that the driving force of this action did appear to be Donald [C.]; however, . . . Mr. Rainey is the man who pulled the trigger. And I think it is extremely significant that he pulled the trigger twice. And it was that act and that act alone that resulted in the death of the victim in this casе.” Defense counsel, on the other hand, argued “the fact that there was somebody else as the driving force behind this crime . . . is significant in that . . . there wasn‘t a crime of tremendous planning, premeditation, not a whole lot of thought on Clyde Rainey‘s part; that he didn‘t walk out onto those streets with the evil intent of killing somebody that night . . . . [¶] And his response is consistent with the problems that he had throughout his life that were almost never addressed, that he had remedial schooling, was placed in remedial schooling in the 2nd grade, . . . that he was failing out of school, that he was developing a drug and alcоhol problem, that he had severe learning disabilities and intellectual impairment, nobody ever addressed those issues. [¶] And it seems . . . justice would be fully done if this young man was able to earn the opportunity to ask the Parole Board [sometime in the future] . . . whether he‘s been rehabilitated or not.”
The trial court observed Rainey had been under the jurisdiction of the juvenile court on “many, many occasions.” And while Rainey may not have intended to “go on a mission of killing” that night, he knew “when he was given a gun” and “knew what he was doing and he knew the danger . . . involved.”
On appeal, Rainey argued: (1) the triаl court erred in failing to order a competency hearing; (2) his waiver of his right to remain silent was unknowing; (3) his confession was coerced; (4) evidence of the surreptitious monitoring of his police station conversation with his mother was wrongly admitted; (5) the court erred in instructing the jury to report juror misconduct; and (6) the court erred in instructing the jury on the principles of felony-murder when the doctrine was not specifically charged. (People v. Rainey, supra, [nonpub. opn.] at p. 6.) We rejected these claims, and affirmed the judgment. (Ibid.) The California Supreme Court denied Rainey‘s petition for review on May 16, 2001.
On June 13, 2013, Rainey filed the instant petition for writ of habeas corpus. We issued an order to show cause and granted his motion for
DISCUSSION
A. Eighth Amendment in Juvenile Context
In Roper v. Simmons (2005) 543 U.S. 551, 574-575 [161 L.Ed.2d 1, 125 S.Ct. 1183] (Roper), the Unites States Supreme Court held imposing the death penalty on juvenile offenders older than 15 years of age but younger than 18 years, is cruel and unusual punishment precluded by the Eighth Amendment. In Graham v. Florida (2010) 560 U.S. 48, ___ [176 L.Ed.2d 825, 845, 130 S.Ct. 2011, 2030] (Graham), the high court extended the constitutional limitations on juvenile punishment, holding the Eighth Amendment “forbids the sentence of life without parole” for a juvenile offender who does not commit homicide.
Most recently, in Miller, the Supreme Court held any sentencing scheme that “mandates life in prison without possibility of parole for juvenile offenders” is also forbidden under the Eighth Amendment. (Miller, supra, 132 S.Ct. at p. 2469.) The court reasoned: ”Graham and Roper and our individualized sentencing cases alike teach that in imposing a State‘s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to apрreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with poliсe officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. [Citations.] And
The court added, “[G]iven all we have said in Roper, Graham, and this decision about children‘s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’ [Citations.] Although we do not foreclose a sentencer‘s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Miller, supra, at p. 2469, italics added.)
Under California law, “[t]he penalty for a defendant found guilty of murder in the first degree, in any case with one or more special circumstances . . . found to be true . . . , who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for [LWOP] or, at the discretion of the court, 25 years to life.” (
Recently, California appellate courts have addressed direct appeals by juvenile оffenders contending their LWOP sentences under section 190.5, subdivision (b), are unconstitutional under Miller, and have reached differing dispositions. Some courts have affirmed the LWOP judgment, reasoning the record showed the trial court did not presumptively impose LWOP, but rather exercised informed discretion in imposing that sentence. (See, e.g., People v. Gutierrez (2012) 209 Cal.App.4th 646, 659 [147 Cal.Rptr.3d 249, 260] [noting
B. Miller Applies Retroactively to Cases on Collateral Review
Rainey seeks the benefit of Miller by way of habeas relief. We therefore first address whether Miller applies retroactively to cases on collateral review.
Retroactivity is assessed under the test enunciated in Teague v. Lane (1989) 489 U.S. 288 [103 L.Ed.2d 334, 109 S.Ct. 1060] (Teague). (See In re Gomez (2009) 45 Cal.4th 650, 653 [88 Cal.Rptr.3d 177, 199 P.3d 574] (Gomez) [applying Teague and concluding Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856] applied on collateral review to judgments final before it was decided but after Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] was decided].)4
In Teague, the Supreme Court held that in general ” ‘new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules аre announced.’ [Citation.]” (Lambrix v. Singletary (1997) 520 U.S. 518, 527 [137 L.Ed2d 771, 117 S.Ct. 1517].) “A holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the
defendant‘s conviction became final.’ Teague, supra, [489 U.S.] at 301 (emphasis in original).” (Graham v. Collins (1993) 506 U.S. 461, 467 [122 L.Ed.2d 260, 113 S.Ct. 892].)
Teague recognized two exceptions to the “new rule” principle: ” ‘The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the State to proscribe [citation],
The second exception to Teague‘s bar on retroactivity is for ” ’ “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” ’ [Citations.]” (Beard v. Banks, supra, 542 U.S. at p. 417.) The second Teague exception is limited in scope and applies ” ’ “only to a small core of rules requiring observance of those procedures that . . . are implicit in the concept of ordered liberty.” ’ [Citations.]” (Ibid. [observing “we have yet to find a new rule that falls under the second Teague exception“].)
Teague also made clear that if one petitioner gets the benefit of a new rule, then the rule should apply retroactively “to others similarly situated,” as any other approach would be “inequitable.” (Teague, supra, 489 U.S. at p. 315.) “[T]he harm caused by the failure to treat similarly situated defendants alike cannot be exaggerated: such inequitable treatment ‘hardly comports with the ideal of “administration of justice with an even hand.” ’ [Citations.]” (Ibid.) Thus, the court stated it would “simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated.” (Id. at p. 316 [“implicit in the retroactivity approach we adopt todаy, is the principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated“].)
In view of Teague‘s statement to the effect equal justice requires that when a new substantive rule is applied to a habeas petitioner in a case announcing the new rule, the rule must “be applied retroactively to all who are similarly situated” (Teague, supra, 489 U.S. at p. 300), the procedural posture of Miller, itself, supports its retroactive application. As the Supreme Court of Iowa observed in State v. Ragland (Iowa 2013) 836 N.W.2d 107
We agree with this analysis—that the United States Supreme Court‘s application of the rule announced in Miller to the habeas petitioner in the companion case demonstrates the high court announced a new “substantive” rule of law and intended the rule to apply “retroactively to all who are similarly situated.” (Teague, supra, 489 U.S. at p. 300.)
This conclusion is bolstered by the fact decisions in both lines of cases Miller relied on in announcing the bar on mandatory LWOP sentences for juveniles have been applied with retroactive effect. (See, e.g., In re Sparks (5th Cir. 2011) 657 F.3d 258, 262 [noting “the Supreme Court‘s decision in Atkins v. Virginia (2002) 536 U.S. 304 [153 L.Ed.2d 335, 122 S.Ct. 2242],] barring the execution of the mentally retarded has been given retroactive effect, [citation], as has the Court‘s decision in Roper . . . , barring the execution of juvenile offenders“]; see also Songer v. Wainwright (1985) 769 F.2d 1488, 1489 [noting that Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [57 L.Ed.2d 973, 98 S.Ct. 2954], fn. omitted (“[T]he Eight and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death“) has been given retroactive effect].) The Iowa Supreme Court made the same point in holding Miller applied retroactively, stating the “practical observation of the treatment of the underlying authority of Miller is instructive. If a substantial portion of the authority used in Miller has been applied retroactively, Miller should logically receive the same treatment.” (Ragland, supra, 836 N.W.2d at p. 116.)
Furthermore, Miller held the Eighth Amendment prohibits the imposition of an LWOP sentence upon a juvenile offender unless the sentencing
We therefore conclude Miller announced a new substantive rule that applies retroactively to cases on collateral review.
C. Merits
Turning to the merits of Rainey‘s claim, he contends he is entitled to habeas relief under Miller on two separate grounds. First, he asserts California‘s presumption of LWOP for any special circumstance murder committed by a juvenile violates the command of Miller that such sentences must be the exception rather than the norm. Second, he maintains his sentence must be vacated because the trial court did not adequately consider the distinctive mitigating circumstances of his youth and background, as required by Miller.
As to the first asserted ground for relief, a review of the sentencing documents included in the appendix to the habeas pеtition does not support the conclusion the trial court imposed the LWOP sentence in a presumptive manner.5 Rather, the record indicates the sentencing court understood it could choose to impose the lesser punishment of 25 years to life.
We reject the Attorney General‘s contention that habeas relief should be denied because Rainey “now has the possibility of parole” under section 1170, subdivision (d)(2). This subdivision, enacted in 2012, provides a “recall” procedure for a juvenile LWOP sentence, after a period of 15 years. (
The legislative history reflects section 1170, subdivision (d)(2), was enacted in response to Roper and Graham. (Assem. Comm. on Public Safety, Analysis of Sen. Bill No. 9 (2011–2012 Reg. Sess.) as amended May 27, 2011.) This legislation pre-dated by
three months the Supreme Court‘s decision in Miller, but Roper and Graham, as we have discussed, were the analytical foundation for Miller and established the fundamental principle that the inherent attributes of youth must be considered before a State imposes the harshest of criminal penalties. Accordingly, it appears the Legislature believеd this legislation rectified constitutional shortcomings that might otherwise be attendant to juvenile LWOP sentences under section 190.5, subdivision (b).
We cannot square Section 1170, subdivision (d)(2)‘s petitioning process—at the soonest 15 years after sentencing—with the import of the Supreme Court‘s discussion and analysis in Miller. The statute effectively makes Miller‘s mandate irrelevant to our sentencing courts, under the rubric that constitutionally mandated youth sentencing factors can be deferred at a minimum for a decade and a half. We do not believe the high court had in mind any such deferral of constitutionally required sentencing considerations, particularly since the court envisions that such consideration will result in the harshest of sentences being “uncоmmon.”
Furthermore, there is no guarantee that a petition seeking recall and resentencing under section 1170, subdivision (d)(2), will be heard on the merits. Rather, a hearing is conditioned on the defendant “describing his or her remorse and work towards rehabilitation” and stating that one of the following four circumstances is true: (1) he or she “was convicted pursuant to felony murder or aiding and abetting murder provisions“; (2) he or she does not have other prior juvenile felony adjudications “for assault or other felony crimes with a significant potential for personal harm to victims“; (3) he or she “committed the offense with at least one adult codefendant“; or (4) he or she “has performed acts that tend to indicate rehabilitation or potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.” (
Additionally, even when a section 1170, subdivision (d) petition is heard on the merits, the enumerated factors the court may consider in deciding whether to resentence the defendant do not embrace the totality of the considerations the Supreme Court discussed in Miller, Roper and Graham. In addition to the factors, except rehabilitation efforts, just mentioned (
five years in which the defendant was determined to be the aggressor” (id.,
These factors describe what might be called causative agents of criminal conduct, i.e., lack of parental supervision or positive adult role models, and mental or physical impairment. Missing from this list is the fundamental fact of youth, and its attendant attributes, on which the Supreme Court has focused—”Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing.”7 (Miller, supra, 132 S. Ct. at p. 2464.) Youth, the court has said, ” ‘is more than a chronological fact.’ ” (Id. at p. 2467, quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 115 [71 L.Ed.2d. 1, 102 S. Ct. 869].) “It is a time of immaturity, irresponsibility, ‘impetuousness[,] and recklessness.’ ” (Miller, at p. 2467, quoting Johnson v. Texas (1993) 509 U.S. 350, 368 [125 L.Ed.2d 290, 113 S. Ct. 2658].) Thus, “a sentencer misses too much if he treats every child as an adult.” (Miller, at p. 2468.) While
which the Supreme Court has instructed must be considered before imposing a State‘s harshest penalties. (Miller, at p. 2467.)
Our conclusion that section 1170, subdivision (d)(2), does not foreclose Rainey from obtaining habeas relief is also consistent with the reasoning in In re Heard (2014) 223 Cal.App.4th 115 [166 Cal.Rptr.3d 824] (Heard). In Heard, the Court of Appeal concluded
The petition for habeas corpus is granted. Petitioner‘s LWOP sentence is vacated and the matter is remanded for resentencing.
Banke, J.
We concur:
Margulies, Acting P. J.
Dondero. J,
A138921, In re Rainey
Trial Judge: Honorable Richard E. Arnason
Trial Court: Contra Costa County Superior Court
L. Richard Braucher for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan and René A. Chacón, Supervising Deputy Attorneys General for Respondent.