THE PEOPLE, Plаintiff and Respondent, v. JAVANTE MARQUIS SCOTT, Defendant and Appellant.
No. E060028
Court of Appeal, Fourth District, Division Two, California
Oct. 12, 2016
3 Cal. App. 5th 1265
Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ, P. J.—Defendant and appellant Javante Marquis Scott appeals after the trial court, at a resentencing hearing, imposed the same 120-year-to-life term as at his original sentencing. Defendant was a minor at the time he committed his crimes, but was tried as an adult and convicted of three counts of attempted murder with firearm enhancements. Defendant contends the sentence is сruel and unusual because it imposes a de facto life sentence on him as a juvenile offender. The People argue that a new statute,
Facts and Procedural History
On February 13, 2009, defendant was 16 years old. Around 10:00 p.m. that night, defendant was riding in a car driven by an adult friend. He told the friend that he wanted to “dump” some Mexicans, meaning he wanted to shoot or kill someone. Defendant told the friend where to drive, pulled a gun from his pocket, and said, “Watch this, watch these dicks [sic] run.”3 At this time, three Hispanic youths were walking on University Avenue in Riverside on their way to a fast-food restaurant. None of the youths were gang members. Defendant fired four shots at the youths, hitting one in the lower back and seriously injuring him.
At trial, defendant admitted firing the shots, but testified that he did so only because the driver of the car told him to and that he “didn‘t intend to hit nobody.”
Evidence at trial showed that defendant‘s father and older brother were or had been members of a local Crips gang. Defendant‘s father was known by the moniker “Tiptoe.” Defendant‘s brother was known by the moniker “Lil’ Tiptoe.” Although defendant himself did not have any gang tattoos, and he denied gang membership, he had come to be known as “Baby Tiptoe.” A gang expert testified at trial that defendant committed the shootings for gang purposes. Defendant wrote rap lyrics about cruising around in a car and shooting rival gang members. His cell phone identified him as “Baby Duke Killa.”
On September 15, 2010, the jury convicted defendant of a number of charges and found true a number of enhancement allegations, as follows.
On November 5, 2010, the trial court sentence defendant to 120 years to life in prison, as follows: 15 years to life for each of the three attempted murders, plus 25 years to life for each of the three firearm enhancements, all to run consecutively. The court imposed a concurrent sentence of three years for the gang participation and imposed but stayed the sentences for the assault counts pursuant to
Defendant appealed, and in People v. Scott (E052276) (nonpub. opn.), dated May 17, 2012, this court modified the sentence to stay the term for gang participation pursuant to
On April 22, 2013, defendant filed a petition for writ of habeas corpus. Defendant sought resentencing, arguing that the imposition of an indeterminate sentence of 120 years tо life is a de facto life sentence, which recent case law from the California Supreme Court held violated the Eighth Amendment prohibition against cruel and unusual punishment when imposed on a juvenile for a nonhomicide crime. On June 28, 2013, the Riverside Superior Court granted the petition, vacated defendant‘s sentence and ordered the trial court to hold a resentencing hearing.
While the hearing was pending, the Legislature passed, and the Governor signed, legislation enacting
At the resentencing hearing held on September 20, 2013, the prosecutor took the position that the enactment of
Defendant now appeals.
I. Standard of Review
The issue presented is whether defendant‘s sentence violates the constitutional prohibitions against cruel and unusual punishment, as explained in Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham), Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407, 132 S.Ct. 2455] (Miller), and People v. Caballero (2012) 55 Cal.4th 262 [145 Cal.Rptr.3d 286, 282 P.3d 291] (Caballero), or whether the constitutional concerns have been addressed by
II. Background: Graham, Miller, and Caballero
We first examine the salient United States and California Supreme Court precedents on the issue of life sentences without parole, both for juveniles convicted of nonhomicide offenses and those convicted of homicide offenses.
In Graham, the defendant was convicted of armed burglary with assault or battery, and attempted armed robbery, both committed when he was 16 years old. Although the trial court initially sentenced the defendant to probation, the court later revoked his probation after he violated its terms by committing other crimes. The trial court then imposed the maximum sentence on each count: life imprisonment for the armed burglary, and 15 years for the attempted armed robbery. (Graham, supra, 560 U.S. at p. 57.) “Because Florida has abolished its parole system, [citation] a life sentence gives a defendant no possibility of release unless he is granted executive clemency.” (Ibid.)
The United States Supreme Court held that ” ‘the task of interpreting the Eighth Amendment remains [the court‘s] responsibility.’ ” (Graham, supra, 560 U.S. at p. 67.) “The judicial exercise of independent judgment requires consideration of the culpability of the offenders . . . in light of their crimes
As to the culpability of the offenders in terms of the crimes and characteristics under review, nonhomicide crimes that do not involve killing, intent to kill, or foreseeing that death could occur “are categorically less deserving of the most serious forms of punishment than are murderers.” (Graham, supra, 560 U.S. at p. 69.) Some nonhomicide crimes do involve very serious harm, but such crimes are not as morally depraved as murder, because of a murder‘s “severity and irrevocability.” (Ibid.) “This is because ‘[l]ife is over for the victim of the murderer,’ but for the victim of even a very serious nonhomicide crime, ‘life . . . is not over and normally is not beyond repair.’ ” (Ibid.) A juvenile offender “who did not kill or intend to kill has a twice diminished moral culpability,” because of both the age of the offender and the nature of the crime. (Ibid.)
With respect to punishment, life without the possibility of parole (LWOP) is the second most severe penalty allowed under the law. “Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years . . . of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” (Graham, supra, 560 U.S. at p. 70.) The Supreme Court found the penological justifications for such a sentence somewhat laсking with respect to juvenile offenders. The objective of retribution should be directly related to personal culpability. The case for retribution is weaker with a minor as compared to an adult; it is weaker still if the minor did not commit a homicide. (Id. at pp. 71-72.) Deterrence also does not justify such a severe sentence. Juveniles are less likely to understand or to be able to take account of deterrence, because of their lack of maturity, underdeveloped sense of responsibility, and lesser ability to consider consequences. “This is particularly so when [the most severe] punishment is rarely imposed.” (Id. at p. 72.) Incapacitation, a third
The United States Supreme Court ruled that, although a state is not required to guarantee eventual release to a juvenile nonhomicide offender, “What the State must do, however, is give [juvenile] defendants . . . some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.” (Graham, supra, 560 U.S. at p. 75.) The court observed that some juvenile nonhomicide defendants might actually turn out to be incarcerated for life. “Those who 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.” (Ibid.) The court fashioned a categorical rule that “gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. . . . Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life‘s end has little incentive to become a responsible individual. In some prisons, moreover, the system itself becomes complicit in the lack of development. As noted above, . . . it is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. A categorical rule against life without parole for juvenile nonhomicide offenders avoids the
In Miller, the United States Supreme Court addressed the imposition of LWOP terms for juveniles who were convicted of homicide offenses. The court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment‘s prohibition on ‘cruel and unusual punishments.’ ” (Miller, supra, 567 U.S. at p. 465.)
The court began with the principle that “children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, ‘they аre less deserving of the most severe punishments.’ ” (Miller, supra, 567 U.S. at p. 471.) The United States Supreme Court line of precedents on that issue set out “three significant gaps between juveniles and adults. First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children ‘are more vulnerable . . . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And third, a child‘s character is not as ‘well formed’ as an adult‘s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ [Citаtion.]” (Ibid.) The Miller court stated, “To be sure, [the] flat ban on life without parole applied [in Graham, supra, 560 U.S. 48] only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm. [Citation.] But none of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific. Those features are evident in the same way, and to the same degree, when[, e.g.,] a botched robbery turns into a killing. So Graham‘s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” (Miller, supra, 567 U.S. at p. 473.)
Sentencing schemes that mandate LWOP for juveniles tried as adults “prеvent the sentencer from taking account of these central considerations.
In making its categorical rule, that LWOP sentences cannot be imposed upon juveniles, Graham analogized the effect of the LWOP sentence on juveniles to thе death penalty. That analogous correspondence made relevant “a second line of our precedents, demanding individualized sentencing when imposing the death penalty.” (Miller, supra, 567 U.S. at p. 475.) The United States Supreme Court found of special significance “that a sentencer have the ability to consider the ‘mitigating qualities of youth.’ [Citation.]” (Ibid.) Mandatory LWOP sentencing was flawed because it, “by [its] nature, preclude[d] a sentencer from taking account of an offender‘s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile . . . will receive the same sentence as the vast majority of adults committing similar homicide offenses—but really, as Graham noted, a greater sentence than those adults will serve.” (Id. at pp. 476-477.) The court declined to make a categorical bar on LWOP sentences for juveniles who commit homicide crimes, but, given its relevant decisions in other cases, the court opined that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon. That is especially so because of the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvеnile 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.” (Id. at pp. 479-480.) Individualized sentencing is required when imposing the harshest penalties. The court stated, in its conclusion, that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” (Id. at p. 489.)
In Caballero, supra, 55 Cal.4th 262, the California Supreme Court considered the sentence for a 16-year-old juvenile who had fired a gun at three
The California Supreme Court determined that the sentence of 110 years to life was the functional equivalent of an LWOP sentence, and was governed by Graham‘s ban on LWOP sentences for juveniles in nonhomicide cases. (Caballero, supra, 55 Cal.4th at pp. 267, fn. 3, 268.) The defendant would become parole-eligible only after serving 110 years according to
III. Legislative Response: Senate Bill No. 260 (2013-2014 Reg. Sess.)
The Legislature, in response, enacted Senate Bill No. 260 (2013-2014 Reg. Sess.). The bill, which became effective January 1, 2014, added
As a result of this new provision, most youth offenders would be eligible for a parole hearing after a maximum of 25 years of incarceration, within the normal life expectancy of a juvenile. It does not apply, however, to three strikes sentences, one strike sentences, or LWOP sentences, or to those who commit certain additional offenses after reaching the age of 18. (
In enacting
The People urge that the enactment of
IV. Sentencing for Juvenile Offenders Must Satisfy the Central Constitutional Requirement Set Forth in the United States Supreme Court and California Supreme Court Precedents—A Meaningful Opportunity to Obtain Release Within the Expected Lifetime Based on Demonstrated Maturity and Rehabilitation.
We have examined the relevant foundational precedents (e.g., Graham, Miller & Caballero), and we discern the following rules or standards with respect to imposing LWOP sentences on offenders whose commitment offense occurred when they were a juvenile.
First, Graham imposed a categorical ban on LWOP sentences for nonhomicide offenses committed by juvenilеs. The state must provide such juvenile defendants “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.” (Graham, supra, 560 U.S. at p. 75.) Graham mandates the chance to obtain release based on demonstrated maturity and rehabilitation. This crucial determination cannot in most cases be achieved at sentencing because the juvenile offender will not yet have had an opportunity to exhibit these traits. Rehabilitation and maturity await the passage of time before they can reliably reveal themselves, and this is precisely what Graham directs. Further, as it considers whether LWOP sentences can constitutionally be imposed on juveniles for nonhomicide offenses, the Graham court actually discounted the general reliability of an individualized sentencing determination at trial as opposed to a guaranteed parole hearing for a juvenile defender in the future. The court pointed to the following deficiencies risked by case-by-case consideration at sentencing: (1) the accuracy and reliability of a sentencing choice are compromised when the brutality of a particular crime overpowers the considerations of youth, immaturity and vulnerability; (2) the immaturity of the juvenile, described in detail in Graham is “likely to impair the quality of a juvenile defendant‘s representation“; and (3) the juvenile nonhomicide offender must be given “a chance to demonstrate maturity and reform.” (Id. at pp. 77-79) Graham simply does not mandate an individual sentencing determination at trial. Rather, Graham stresses the central importance of allowing a juvenile
Second, Caballero extended the Graham ban to include not only explicit LWOP sentences but also de facto LWOP sentences. A de facto LWOP sentence is one that is not explicitly designated a life sentence, but in which a juvenile offender‘s “parole eligibility date . . . falls outside [his or her] natural life expectancy.” (Caballero, supra, 55 Cal.4th at pp. 262, 268.) Defendant‘s sentence in this case, 120 years to life, is a de facto LWOP sentence.
Third, Miller imposed a ban on mandatory LWOP for homicide crimes committed by juveniles. To implement this ban, Miller required the sentencing court to provide an individualized sentencing determination, “considering an offender‘s youth and attendant characteristics” before imposing LWOP in homicide cases. (Miller, supra, 567 U.S. at p. 483.) The Miller court declined to extend Graham‘s categorical ban on LWOP sentences to juvenile homicide offenders, choosing instead to mandate the individualized sentencing to safeguard a juvenile offender‘s Eighth Amendment Rights. (Id. at p. 472.) We note that Miller does not state that its holding applies to nonhomicide cases. This is not surprising because, as Miller acknowledges, Graham bans LWOP in nonhomicide cases. Miller requires the trial court to make an individualized sentencing decision as to juvenile offenders before imposing a de facto LWOP sentence in a nonhomicide case. Miller devised its individualized sentencing scheme to safeguаrd juvenile defendants convicted of homicide offenses from receiving a mandatory LWOP sentence. Miller does not impose such a scheme as a constitutional requirement where, after Caballero, a juvenile nonhomicide offender can no longer receive an LWOP sentence.
To reiterate, after Graham and Caballero, both LWOP and de facto LWOP have been eliminated as possible sentencing choices for juveniles who commit nonhomicide crimes. The possibility that a juvenile can receive the “State‘s harshest penalties” is the Miller court‘s clearly stated rationale for the individualized sentencing mandate. (Miller, supra, 567 U.S. at p. 477.) This possibility no longer exists in California for a juvenile convicted of a nonhomicide crime. For this reason,
Fourth, while Caballero does envision an individualized determination at sentencing like the one set forth for homicide cases in Miller, the focal point of Caballero is the end result required by Graham and by the Eighth
V. Section 3051 is a Valid and Efficient Mechanism for Providing a Juvenile Nonhomicide Offender with a Meaningful Opportunity for Release
For the following reasons, and based on the case law set forth above, we conclude that the definite parole eligibility schedule, devised by the Legislature, as requested by the Caballero court, and described in
First,
Third,
This analysis is consistent with the recent California Supreme Court decision in People v. Franklin, supra, 63 Cal.4th 261. In addition, the Franklin court recognized that, in order to fulfill the requirements of
Disposition
The judgment is affirmed. We remand to the trial court for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board of
Hollenhorst, J., and McKinster, J., concurred.
On November 1, 2016, the opinion was modified to read as printed above. Appellant‘s petition for review by the Supreme Court was denied January 18, 2017, S238615.