Case Information
*1 Filed 2/10/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D069324
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD215231, HC20480) KHARY WATSON,
Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Theodore M. Cropley and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Khary Watson challenges his sentence of life without the possibility of parole (LWOP) for committing felony murder when he was only four months shy of his 18th birthday. Watson's offense occurred after he chased down a woman who tried to run *2 away while Watson was robbing her. Watson shot her in the back. He now contends his sentence violates the Eighth Amendment of the United States Constitution. He also maintains California's sentencing scheme as well as specific Penal Code provisions violate the equal protection and due process clauses of the United States Constitution. We conclude Watson's arguments lack merit; thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
To provide the necessary context for the issues Watson raises here, we repeat the factual background verbatim from Watson's previous appeal of his judgment convicting him of felony murder. (See People v. Watson (July 20, 2011, D056848) [nonpub. opn.], review denied Oct. 26, 2011, S195873.)
"In October 1994, Patricia Lopez was fatally shot during a street robbery. The murder remained unsolved until after 2006, when the police received an anonymous phone call which led them to information concerning the persons involved in the crimes. The authorities identified the suspects as two males (defendant and Tyrone Katrel Lynch) and a female (Komoa Greene). Lynch eventually identified defendant as the shooter, entered into a plea agreement, and agreed to testify.
"In addition to Lynch, several eyewitnesses to the shooting testified at trial, including Lopez's friend (Barbara Nickerson) and Nickerson's son (Paul). Nickerson was with Lopez at the time of the shooting. At about 10:00 p.m. on October 1, 1994, the two women were walking to Lopez's apartment when a man came out of the bushes, pointed a gun at Nickerson, and told Nickerson to remove her fanny pack. Nickerson unbuckled and dropped her fanny pack, and the man picked it up from the ground. Nickerson called *3 out to Paul (who was at Lopez's apartment), and Paul came outside. Meanwhile, Lopez was running towards her apartment. The man ran after Lopez, grabbed her, and shot her. While this was occurring, another man was standing in the street waiting for the man with the gun. After Lopez was shot, the other man said, ' "Come on, man. We have to go." ' The two men ran off together. Lopez died at the scene.
"After receiving the anonymous phone call and commencing their investigation, the authorities made contact with Lynch, who was living in Albuquerque, New Mexico. Beginning in February 2008, the police and Lynch had several phone conversations and in-person interviews to discuss the incident. In August 2008, Lynch was arrested for the murder. On August 7, 2008, Lynch was placed in a holding cell with defendant, and while in the cell for several hours Lynch tried to convince defendant to tell the truth about the shooting. Unbeknownst to Lynch and defendant, the conversations were recorded. At one point during the conversations, Lynch, lamenting that he was being charged with murder, asked defendant, 'Why couldn't you just shoot her in the leg or something man.' Defendant did not respond to this statement.
"In May 2009, Lynch reached a plea agreement with the prosecution, pleading guilty to voluntary manslaughter, robbery, and attempted robbery.
"Testifying on behalf of the prosecution at trial, Lynch stated that on the night of the shooting he and defendant (with Greene acting as the driver) committed two street robberies. They committed the first robbery in an alley. Greene then drove them to another location, where defendant and Lynch got out of the car and approached two women (Nickerson and Lopez). Defendant was carrying a gun owned by Greene. When *4 Lynch saw defendant grab one of the women, he got nervous and started looking around. Lynch saw a woman on a balcony, and he kept his eye on her to make sure she did not run into the house to call the police. Lynch heard someone screaming, ' "Stop. Leave me alone. No," ' and then heard a gunshot. Lynch looked back and saw defendant bent towards the ground. Lynch told defendant to 'come on' and they ran back to the car. When they were back in the car, defendant stated that 'he got the shell casing.' Greene asked defendant, ' "Why did you shoot?," ' and defendant responded, ' "Because the bitch bit me." '
"Dominic Holmes, a friend of defendant and Lynch, testified that defendant talked to him about the shooting. Holmes testified that defendant stated that he, Lynch, and Greene were 'out taking purses' and that he shot '[s]ome bitch.'
"The jury found defendant guilty of first degree murder with personal use of a firearm and with the special circumstance of murder during the commission or attempted commission of robbery. He was sentenced to life without the possibility of parole."
Watson appealed the judgment following the jury's guilty verdict, and this court affirmed the judgment in an unpublished decision.
In his third petition for a writ of habeas corpus, Watson claimed his LWOP
sentence violated the Eighth Amendment as well as
Miller v. Alabama
(2012) 567 U.S.
____, [
The People conceded that Watson was entitled to a new sentencing hearing.
*5
The superior court subsequently granted the requested relief in part and ordered a
new sentencing hearing under Penal Code section 190.5, subdivision (b)1 as well as
Miller, supra,
The same superior court judge who presided over Watson's trial and sentencing
after that trial handled Watson's resentencing hearing. As an initial matter, the judge
informed the parties that she had erred in sentencing Watson under section 190.2,
subdivision (a)(17) instead of section 190.5, subdivision (b) because he was 17 years old
at the time he committed the subject crime. In addition, the judge indicated, to prepare
for the hearing, she read the People's sentencing memorandum, Watson's statement in
mitigation, Watson's motion to apply
Miller, supra,
The judge then proceeded to conduct an extremely thorough resentencing hearing. First, two witnesses, Rosemary Ruybal and Paul Nickerson, addressed the court. Ruybal, the victim's daughter, spoke of how painful the ordeal of her mother's murder had been for her family. She explained that she did not know why her mother was killed until she learned that Watson decided to kill Lopez "because, quote, 'the bitch bit me.' " Ruybal was particularly troubled by Watson's lack of remorse: "That is what bangs around in my 1 Statutory references are to the Penal Code unless otherwise specified.
2 Watson was sentenced before the United States Supreme Court issued its opinion
in
Miller
,
supra
,
brain on a regular basis. Fifteen years after he gunned her down, that's his explanation. No remorse, no compassion. Just like that."
Nickerson, who observed Watson chasing and killing Lopez, expressed his sadness and anger that Watson killed the victim "over a petty crime of theft" and stated that Watson had destroyed Nickerson's family's life and the victim's family's life.
Next, the People offered argument regarding various factors under
Miller
,
supra
,
Finally, Watson addressed the court, stating he was "deeply remorseful" for his action and for the victim's family's losses. He asked the court for the opportunity to redeem himself and receive a lesser sentence.
The court then considered the relevant factors and rendered its opinion. Because the court so thoroughly discussed the matter, we take the unusual step of including in this opinion much of the court's discussion at the resentencing hearing:
"In looking at the factors that the courts -- Miller and Gutierrez has advised the trial courts to consider, I want to go through each of these. The first one is chronological age and hallmark features of youth.
"As noted, the defendant in this case at the time of the murder was 17 years and eight months. He was four months shy of 18, of full adulthood, and it does sometimes strike me as not appropriate to have that line that somebody becomes an adult and fully culpable at age 18 but not at 17 years and 11 months, because I happen to know some eighteen-year-olds that are pretty immature and some sixteen- year-olds that I think are pretty mature.
"But be that as it may, it is clear that Mr. Watson was very close to full adulthood chronologically.
"There's an argument that's been made that he, Mr. Watson, was subject to the pressures of his cohorts that night, and, quite frankly, I don't think the evidence supports that. Mr. Katrel Lynch was 18 years old, the defendant was 17 years old, Ms. Greene was 22 years old. And the evidence is that they had all been friends for a long time, particularly Katrel and the defendant. They grew up together; they had been friends for a long time.
"There was no suggestion that any of them were particularly exerting power or pressure over any of the others. In fact, it seems that all three of them were simply equal partners that night in initially discussing the robbery.
"It was the defendant who recommended that they go out and rob Mexicans because they keep their money on them, and apparently, it was maybe payday. There is no question that it was the defendant who took the gun into his possession and used the gun. First, in the separate robbery, he had the gun and committed robbery against that victim, and you have to think that he had to have seen the fear that that victim went through when she had a gun pointed at her and was being armed -- robbed, and that, of course, didn't deter the defendant at all.
"The circumstances of shooting Ms. Lopez are just really quite horrifying that this 50-some-odd-year woman was attempting to run away and that the defendant chased her down -- rather than just letting her go, chased her down and put the gun in her back and just blew her away while other people are standing around. It's pretty amazing that one human being can do that to another.
"And with respect to whether there's evidence of this being a youthful crime or an adult crime, there was actually a fair degree of sophistication shown by Mr. Watson when he took the time, had the presence of mind to stop -- rather than just fleeing in horror at what he had done, he took the time to stop and collect the shell casing off the ground, knowing that it could be used as evidence against him. That simply does not show youthful impetuousness. It shows sophisticated criminal activity.
"With respect to the second factor, his family and home environment, I really have little to go on regarding that. There are statements regarding having some disability and mental illness, but nothing to really substantiate that by way of an evaluation or report in the past, nothing to substantiate or -- I just have really very little information regarding the defendant's background and upbringing. "I don't doubt that he may be illiterate, that he apparently dropped out of school at the 10th grade, but, unfortunately, I don't have much more to go on to help explain why the defendant would have been in the position he was in when he was 17 years old and out committing indiscriminate robberies, just looking for victims on the street. "The third factor, the defendant's participation in the crime, I think I've already kind of talked about that. I note that one of the quotes in Miller when they're talking about the extent of the juvenile's participation, they say 'a juvenile offender who did not kill or intend to kill has certainly a diminished moral culpability.' "Of course, in this case, the defendant did kill and he did clearly intend to kill, suggesting the opposite: a real moral culpability for what occurred here. He wasn't just an accomplice or an aider and abetter but got caught up in a group of young men out causing havoc.
"The other factor in this one is whether or not substance abuse played a role in the commission of the crime, and there's no evidence that it did or that he had a history of substance abuse problems although there may have been some substance use.
"The fourth factor, whether the defendant might have been charged or convicted of a lesser offense if not for the incompetencies associated with youth, and what the court is talking about there is they state, 'For example, his inability to deal with police officers or prosecutors, including on a plea agreement or his incapacity to assist his own attorneys.'
"So they're talking about a circumstance where he's 17 and having to deal with law enforcement on his own or having to deal with the criminal justice system at 17, certainly not having the sophistication of an adult to know how to protect his rights.
"And, of course, and I think [the People] made this point: this is really not relevant in this case because the defendant wasn't arrested or contacted by law enforcement until he was 32 years old, and he certainly at that time had a significant degree of sophistication with the criminal justice system having been convicted on numerous times and having been to prison on numerous times, so I don't think that factor applies.
"The fifth factor in the evidence bearing on the possibility of rehabilitation, and this -- I think there are two factors that come into play here: the defendant's criminal record is certainly very relevant. And the specifics of his criminal convictions are listed on the People's sentencing memorandum at page 10, and I won't repeat each one of those. I incorporate those convictions by reference. "But I do note, as [the People] noted, that just within months, within the next year after committing this murder, the defendant was convicted of a robbery; the next year convicted of a battery; the next year convicted of theft and sent to 16 months in state prison; the next year convicted of arson and sentenced to 32 months in prison; "The same year convicted of driving under the influence and possession of a controlled substance; the next -- two years later convicted of another theft and sentenced to 32 months in state prison;
"Three years later, convicted of corporal injury on a spouse, sentenced to four years in prison. He was also charged in that case with assault with a deadly weapon, criminal threats, and willful cruelty to a child; and then, finally, shortly before his arrest in this case, possession of a switchblade.
"That's an incredible record, it's a record that just went unabated after having committed this murder and probably feeling like he'd gotten away with it.
"There were two choices that he had obviously after committing this murder: one was to realize, 'My goodness. Look what I did. This is horrible. I can't even believe that I had done that' and realize that it was time to make a change and seek help and do something about his life. That was one choice. He obviously took the other choice. *10 "The defendant's record -- juvenile record is also relevant. It's interesting. When you look at his juvenile record, he actually starts out in 1988 committing what I would consider a juvenile crime, and that's what we're looking at here. Is this a juvenile crime or an adult crime? He started off by shoplifting watches from Nordstrom. That's a juvenile crime, in my opinion. The next crime was he stole a bicycle from a backyard. That's a juvenile crime.
"But then he very quickly started escalating and he robbed another minor of a bicycle by punching him in the face; then he started committing residential burglaries, then he stole a moped; and when he was placed in the San Diego House of Hope, he went AWOL. He was placed in another residential group home and he went AWOL. He then stole a car, placed in a residential treatment facility and he went AWOL.
"There were -- as a juvenile, appears to have been numerous attempts to get him help, to get him on the straight and narrow, and for whatever reason, he did not avail himself of that.
"So in summary, how I see this, I don't think, first of all, that anyone would disagree that this was a vicious, cold-blooded, senseless murder of a mother and grandmother -- vulnerable, mother and grandmother that netted -- in my notes it was only 15 cents. I may have gotten that wrong, but certainly netted only cents.
"The evidence does not support in any way that this was impetuous. The very nature of the planned and premeditated armed robberies of innocent women on the street hardly suggests that the crimes were youthful in nature. They were very adult crimes; they were committed in a very adult way.
"The lack of remorse and taking responsibility for the crime, I have in my notes that that's very disturbing to me. It appears that Mr. Watson has expressed some remorse today, but this is the first time. He has never expressed that before.
"In fact, he clearly -- the evidence was that he bragged about this killing, even perhaps joked about it, immediately after, and as well later when he had matured after, you know, the 12 years of being out there committing crimes and ultimately being prosecuted for this case, there was not a word through probation, through counsel, *11 through himself, through anyone of remorse or having realized the gravity of what he had done.
"When you look at the record, I think it's very sad, but the juvenile record itself suggests that by the time he committed this murder, he had already become a hardened criminal and was showing absolutely no regard for the rest of society. And certainly the 12 years following this murder, which showed serious felony crimes just about every year thereafter, only confirms that one, he is a danger to society, and the pattern of criminality that began as a juvenile was well ingrained by the time he was sentenced on this case. "There may be some mitigation regarding his background. I suspect that even without a whole lot of information that he had a tough childhood, and who knows what would have happened if he'd been raised by a loving and concerned family, but those factors, somewhat vague as they are, simply don't outweigh the rest of the circumstances of this crime.
"And the quote I think that you both have cited from Miller is, 'This court is to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare juvenile offender whose crime reflects irreparable corruption,' and I just find that this is that rare case. I sentence the defendant to life in prison without the possibility of parole."
Watson timely appealed.
DISCUSSION I
WATSON'S EIGHTH AMENDMENT CHALLENGE
Watson argues his sentence of LWOP violates the Eighth Amendment because it amounts to cruel and unusual punishment. We disagree.
A. The Law
The Eighth Amendment provides: "Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted." This
*12
constitutional provision "guarantees individuals the right not to be subjected to excessive
sanctions." (
Roper v. Simmons
(2005)
Over the past several years, the United States Supreme Court has addressed the
constitutional limits of punishment for a juvenile's criminal offenses. In
Roper, supra,
In
Graham
,
supra
,
The Supreme Court stated that nonhomicide crimes differ from homicide crimes in
a "moral sense" and that a juvenile nonhomicide offender has a "twice diminished moral
culpability" as opposed to an adult convicted of murder--both because of his crime and
because of his undeveloped moral sense. (
Graham
,
supra
,
The Supreme Court applied the holding of
Graham
,
supra
,
"Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features-- among them, immaturity, impetuosity, and failure to appreciate 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 police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys." ( Id . at p. 2468.)
However, the Supreme Court in
Miller
,
supra
,
With the guidance of
Roper, supra,
In reaching these conclusions, our high court noted
Miller, supra,
These cases provide clear rules for the sentencing of juveniles. A juvenile cannot
be sentenced to capital punishment for any crime. (
Roper
,
supra
, 543 U.S. at pp. 578-
579.) A sentencing court may not sentence a juvenile to prison for life without the
possibility of parole for nonhomicide offenses. (
Graham
,
supra
, 560 U.S. at pp. 74-75.)
A sentence for a juvenile who committed a nonhomicide offense that consists of a term of
years with a parole eligibility date that falls outside the juvenile offender's natural life
expectancy is prohibited. (
Caballero
,
supra
,
Here, the superior court sentenced Watson under section 190.5, subdivision (b). That subdivision provides: "The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, 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 life without the possibility of parole or, at the discretion of the court, 25 years to life." Our high court interpreted section 190.5, *17 subdivision (b), and in doing so, concluded that section 190.5, subdivision (b) is constitutional. Specifically, the court stated:
"[W]e hold that section 190.5[, subdivision] (b), properly construed, confers discretion on a trial court to sentence a 16– or 17–year–old juvenile convicted of special circumstance murder to life without parole or to 25 years to life, with no presumption in favor of life without parole. We further hold that Miller [, supra ,132 S.Ct. 2455 ] requires a trial court, in exercising its sentencing discretion, to consider the 'distinctive attributes of youth' and how those attributes 'diminish the penological justifications for imposing the harshest sentences on juvenile offenders' before imposing life without parole on a juvenile offender. [Citation.] Because the sentencing regime created by section 190.5[, subdivision] (b) authorizes and indeed requires consideration of the distinctive attributes of youth highlighted in Miller , we find no constitutional infirmity with section 190.5[, subdivision] (b) once it is understood not to impose a presumption in favor of life without parole." ( Gutierrez, supra, 58 Cal.4th at pp. 1360-1361.)
The court also explained the factors, under
Miller
,
supra
,
C. Analysis
As a threshold matter, we observe that Watson asks this court to declare "that the
Eighth Amendment creates a categorical ban on life-without-parole sentences for
juveniles who commit homicide." However, Watson does not offer any authority to
support his urged categorical ban. Indeed, existing precedent undermines Watson's
position. The United States Supreme Court explicitly stated that it was "not
foreclos[ing]" the ability of a sentencing court to impose "this harshest possible penalty"
of LWOP on " 'the rare juvenile offender whose crime reflects irreparable corruption.' "
(
Miller
, supra,
Relying on
Miller
,
supra
,
In short, Watson provides no authority that supports his position that a non-
mandatory LWOP sentence for a juvenile offender who commits a homicide violates the
Eighth Amendment regardless of the factors set forth in
Miller
,
supra
,
A court's exercise of discretion will not be disturbed on appeal absent a showing
that the court acted in an arbitrary, capricious, or patently absurd way, resulting in a
manifest miscarriage of justice. (
People v. Jordan
(1986)
In arguing the court abused its discretion in sentencing him to LWOP, Watson
insists that the superior court did not sufficiently consider the requisite factors under
Miller, supra,
"The trial court here thoughtfully weighed the applicable factors, particularly [Watson's] youth and its attendant circumstances, and implicitly concluded that [Watson] 3 In 1995, Watson was convicted of committing a robbery in Indiana. On November 8, 1995, Watson pled guilty to committing a battery on another person and misdemeanor burglary. On October 23, 1996, Watson pled guilty to entering a store and attempting to steal a bottle of beer. He was sentenced to prison for 16 months. On November 5, 1997, Watson was convicted of committing arson, false identification to a peace officer, and resisting a peace officer. He was sentenced to prison for 32 months. On December 17, 1997, Watson was convicted of driving under the influence and being in possession of a controlled substance. On January 22, 2001, Watson pled guilty to taking personal property and intending to steal it with a prior conviction for theft. He was sentenced to prison for 32 months. On July 20, 2004, Watson pled guilty to inflicting corporal injury on a spouse and sentenced to prison for four years. On January 24, 2008, Watson pled guilty to possessing a switchblade knife, a misdemeanor. On January 20, 2009, while in custody for the homicide offense, Watson assaulted another inmate.
was unfit ever to reenter society. We cannot say it exceeded the bounds of reason, all of
the circumstances being considered, under section 190.5, subdivision (b)." (
People v.
Palafox
,
supra
,
D. Watson's Additional Eighth Amendment Contentions In supplemental briefing, Watson raises additional Eighth Amendment challenges with scant authority for support. He insists an LWOP sentence under section 190.5, subdivision (b) is actually a "determinate term of imprisonment of 25 years or less, because during that time period the minor may receive a new sentence of 25 years to life, and if a 25 years to life sentence is not imposed within the 25-year time period the life without parole sentence becomes final." Watson reasons that this "25-year cut off point for minors" sentenced to an LWOP is both "unusual and irrational" because minors who commit identical crimes of special circumstance murder have additional time "to show they have been rehabilitated and should be released." Watson also claims the "limbo" of a minor sentenced to LWOP waiting up to 25 years before he or she knows whether his or her actual sentence will be for LWOP or 25 years to life is "inherently cruel."
The People maintain Watson forfeited these arguments by failing to raise them with the superior court below. However, we exercise our discretion to address these pure questions of law.
As a threshold matter, we observe that, within these Eighth Amendment challenges, Watson does not address the fact that the only juvenile offender who could be sentenced to LWOP under section 190.5, subdivision (b) is one whose crime the court determined reflects "irreparable corruption." The court can only make such a *23 determination after considering the factors set forth in Miller , supra , 132 S.Ct. at page 2469 as discussed in Gutierrez, supra , 58 Cal.4th at pages 1388 through 1389. Further, the instances under which a court will sentence a juvenile to LWOP will be rare. (See Miller , supra , at p. 2469; Montgomery , supra , 136 S.Ct. at pp. 733-734.)
Acknowledging that a court may only sentence a juvenile to an LWOP in very
uncommon circumstances, we struggle to see how Watson's Eighth Amendment
challenges in his supplemental brief have merit. A sentence violates the Eighth
Amendment proscription against cruel and unusual punishment only if it is grossly
disproportionate to the crime. (
Graham
,
supra
,
II
WATSON'S EQUAL PROTECTION AND DUE PROCESS CLAIMS
A. Watson's Contentions
In a supplemental opening brief, Watson alleges additional constitutional challenges under the equal protection and due process clauses of the United States Constitution. He contends: (1) California's scheme for charging and trying minors as *24 adults and punishing them with LWOP's violates the equal protection clause; (2) section 190.5, subdivision (b) violates the equal protection clause; and (3) section 190.5, subdivision (b) violates due process under the United States and California constitutions.
As an initial matter, the People argue that Watson forfeited these arguments by failing to raise an equal protection or due process argument below. We do not address the forfeiture issue, but instead, we exercise our discretion to consider these challenges on the merits.
B. Equal Protection
The Fourteenth Amendment to the United States Constitution prohibits the denial
of equal protection of the laws.4 "The constitutional guaranty of equal protection of the
laws has been judicially defined to mean that no person or class of persons shall be
denied the same protection of the laws which is enjoyed by other persons or other classes
in like circumstances in their lives, liberty and property and in their pursuit of happiness."
(
People v. Romo
(1975)
some showing that the two groups are sufficiently similar with respect to the purpose of
the law in question that some level of scrutiny is required in order to determine whether
the distinction is justified." (
People v. Nguyen
(1997)
Here, Watson first argues his sentence violates the equal protection clause because Welfare and Institutions Code sections 602 and 707 treat similarly situated minors, who are charged with special circumstances murder (§ 190.2, subds. (b), (c), (d)), differently. Specifically, Watson contends that minors who are alleged to have personally killed in the commission of a special circumstances murder (§ 190.2, subd. (b)) must be charged and tried as an adult (Welf. & Inst. Code, § 602, subd. (b)(1)).5 Minors who do not personally kill in the commission of a special circumstances murder (§ 190.2, subds. (c) and (d)) may be charged and tried as an adult (Welf. & Inst. Code, § 707, subd. (d)(1) and (2)).6 This argument, however, does not raise an equal protection issue because the 5 Watson relies on the former Welfare and Institutions Code section 602 that was effective January 1, 2015 when he was resentenced. Subdivision (b)(1) of that former statute provided: "(b) Any person who is alleged, when he or she was 14 years of age or older, to have committed one of the following offenses shall be prosecuted under the general law in a court of criminal jurisdiction: [¶] (1) Murder, as described in Section 187 of the Penal Code, if one of the circumstances enumerated in subdivision (a) of Section 190.2 of the Penal Code is alleged by the prosecutor, and the prosecutor alleges that the minor personally killed the victim." The former Welfare and Institutions Code section 602 was amended by initiative measure by way of the November 8, 2016 election and became effective the next day.
6 Watson cites to the former Welfare and Institutions Code section 707 that was
effective January 1, 2015 when he was resentenced. Subdivisions (d)(1) and (d)(2)
provided in pertinent part: "(d)(1) Except as provided in subdivision (b) of Section 602,
the district attorney or other appropriate prosecuting officer may file an accusatory
pleading in a court of criminal jurisdiction against any minor 16 years of age or older
who is accused of committing an offense enumerated in subdivision (b). [¶] (2) Except
*26
minors are not similarly situated under the law. One category of minors personally killed
the victim in the commission of the felony murder while the other category of minors did
not. Indeed, the Legislature observed there is a difference between one who actually kills
the victim and one who is not the actual killer in the commission of a felony murder by
requiring the prosecution to prove any defendant, who was not the actual killer, acted
with "reckless indifference to human life[.]" (See § 190.2, subd. (d);
People v. Estrada
(1995)
Watson next argues that the equal protection clause has been violated because there is a disparity of treatment in the punishment of minors who are 14 or 15 years old as opposed to those minors who are 16 or 17 years old. He points out that minors between 14 and 16 years old, may be punished for a special circumstances murder with a prison sentence of 25 years to life, the same punishment for adults who commit only first degree murder. (§ 190.) However, Watson emphasizes that minors who are between the ages of as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading against a minor 14 years of age or older in a court of criminal jurisdiction in any case in which any one or more of the following circumstances apply: [¶] (A) The minor is alleged to have committed an offense that if committed by an adult would be punishable by death or imprisonment in the state prison for life." Welfare and Institutions Code section 707 was amended by initiative measure by way of the November 8, 2016 election and became effective the next day.
16 and 18 may be punished with a sentence of 25 years to life or LWOP. (§ 190.5, subd. (b).)
Much like Watson's first equal protection argument, we find this contention
wanting. Again, Watson has not presented us with two similarly situated groups who are
treated differently. In fact, juveniles under 16 years of age are not treated the same as
juveniles who are over 16 years old in several respects. (See
Thompson v. Oklahoma
(1988)
C. Due Process
Watson's due process argument simply is a variation of his equal protection arguments: "There is no due process compelling state interest or rational basis for minors between the ages of 16 and 18 to be punished by life imprisonment without parole while minors between the ages of 14 and 16 are punished by 25 years to life." We conclude this contention is without merit.
"The touchstone of due process is fundamental fairness." (
Salas v. Cortez
(1979)
Again, Watson emphasizes the possibility that a juvenile between the ages of 16
and 18 may be sentenced to LWOP, but other 16 and 17 years olds as well as 14 and 15
years olds may not. However, he glosses over the fact that before any court may sentence
a 16- or 17-year-old juvenile to LWOP, the court must consider the factors outlined in
Miller
,
supra
,
Watson additionally suggests that his sentence and the California sentencing scheme violate some substantive due process right. Nevertheless, he has not identified the source of this right, and it is not our role to read some new right into either the United States or California constitutions. As such, Watson's due process claim fails.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.