Opinion
S284418
06-12-2024
PEOPLE v. POWELL (DIANTAY)
A167066 First Appellate District, Div. 5.
Petition for review denied
Liu and Evans, JJ., are of the opinion the petition should be granted.
(See Dissenting Statement by Evans, J.)
Dissenting Statement
Evans, Justice
This court recently held that Penal Code section 3051, subdivision (h)'s exclusion of youth offenders sentenced to life without the possibility of parole (LWOP) from the youth offender parole eligibility scheme does not - on its face or as applied to individuals serving LWOP for special circumstance murder - violate equal protection under a rational basis standard. (People v. Hardin (2024) 15 Cal.5th 834, 839, 866 (Hardin).) Powell's case presents two important issues the court left unaddressed in Hardin: first, whether excluding youthful offenders from the youth offender parole eligibility scheme constitutes cruel or unusual punishment under the California Constitution, and second, whether the LWOP exclusion constitutes cruel or unusual punishment by disproportionately impacting young African Americans, like Powell, and other young people of color. (See id. at p. 865, fn. 8.) Because Powell has raised serious concerns about the constitutionality of the LWOP exclusion, I would grant review.
When Diantay Powell was 18 years old, he shot and killed 16 year old Bobbie Sartain and 15- year-old Raquel Gerstel. On November 25, 2012, Powell was under the influence of alcohol and drugs. He and the two victims were passengers in a car, driven by Powell's cousin. At one point, Powell wanted the victims to exit his vehicle so he could pick up his girlfriend. The victims objected to getting out of the car. A verbal argument ensued. Powell forced the victims out of the car, and he ultimately shot them. A jury convicted Powell of various crimes including special circumstance murder, which carries a mandatory term of LWOP.
At sentencing, the trial court had no choice but to condemn Powell to life in prison without the possibility of parole. It could not consider whether LWOP was appropriate and just, in light of mitigating evidence such as Powell's youth, his alcohol and drug use, his experience being a victim of gun violence at 13 years old, and his traumatic experiences in the foster care system. Powell - now 30 years old - cannot ever go before the Board of Parole Hearings to demonstrate that he should be granted youth offender parole based on his youthful attributes at the time of the offense, his present day insight, and his rehabilitation.
The California Constitution prohibits cruel or unusual punishment. (Cal. Const., art. I, § 17, italics added.) Our state constitution's prohibition against cruel or unusual punishment is distinct from the federal constitution's prohibition against cruel and unusual. The distinction "is purposeful and substantive." (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085.) We construe our state's constitutional prohibition against cruel or unusual punishment separately from its Eighth Amendment analog. (See also Cal. Const., art. I, § 24 ["Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution"]; People v. Buza(2018) 4 Cal.5th 658, 701-704 (dis. opn. of Liu, J.).)
The state constitutions of Massachusetts, Michigan, and Washington contain a similar prohibition against cruel or unusual punishment. The high courts in each of those states recently held their state constitutions prohibited imposing an LWOP sentence on youthful offenders who were over 17 years old. (Commonwealth v. Mattis (Mass. 2024) 224 N.E.3d 410, 416 (Mattis) [holding LWOP for 18 to 20 year olds violates the Massachusetts Constitution's prohibition against "cruel or unusual punishment"]; People v. Parks(Mich. 2022) 987 N.W.2d 161, 169 (Parks) [holding mandatory LWOP for 18 year olds violates the Michigan Constitution's prohibition against "cruel or unusual punishment"], italics omitted; In re Pers. Restraint of Monschke (Wn. 2021) 482 P.3d 276, 279 (Monschke) [holding mandatory LWOP for 18 to 21 year olds violates the Washington Constitution's prohibition against" 'cruel punishment' "].) The analysis in each of those cases is compelling.
Stated plainly, "youth matters." (Mattis, supra, 224 N.E.3d at p. 415.) As neuroscience shows and "any parent knows," juveniles and younger adults lack maturity and a sense of responsibility, they are vulnerable to negative influences over which they have limited control, and their character is transitory and developing. (Roper v. Simmons(2005) 543 U.S. 551, 569; see id. at pp. 569-570 [discussion of three differences between offenders under 18 and adult offenders].) "Neuroscientists now know that all three of the 'general differences between juveniles under 18 and adults' recognized by Roperare present in people older than 18." (Monschke, supra, 482 P.3d at p. 286; accord, Mattis, supra, at p. 421 ["the scientific record strongly supports the contention that emerging adults have the same core neurological characteristics as juveniles have"].) Legislatures, including ours in California, have "determined that emerging adults require different treatment from older adults, specifically in the penological context." (Mattis, supra, at p. 424; see Welf. & Inst. Code, §607 [juvenile court retains jurisdiction until the person is 21, 23, or 25 years old]; see also Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, pp. 4-5 [Legislature's "rationale [in enacting and twice expanding section 3051] is that research shows that cognitive brain development continues into the early 20s or later"]; Hardin, supra, 15 Cal.5th at pp. 880- 881 (dis. opn. of Liu, J.).) Various states, including California, Illinois, Colorado, and Wyoming, "recogniz[e] that emerging adult offenders require different treatment from older adult offenders." (Mattis, supra, at p. 425 [citing Pen. Code, § 3051].) These laws, including California law, "distinguish[ ] emerging adults from older adults on a range of issues, granting rights and imposing responsibilities in a graduated manner" that "reflect[s] the commonly held view that emerging adults generally are not equipped to assume all the responsibilities of adulthood, especially with respect to high risk activities." (Mattis, supra, at p. 426.)
Additionally, a significant number of states (22) and the District of Columbia "do not mandate [LWOP] in any circumstance." (Id. at p. 426; see id. at pp. 426-427.) Some other countries have similar laws. The United Kingdom prohibits LWOP for any person who was under 22 years of age at the time they committed the offense, and the Supreme Court of Canada has held that LWOP is unconstitutional for all convicted persons. (Id. at p. 428.) Lastly, the fate of being imprisoned without hope of release is "particularly acute for young persons . . ., because they will inevitably serve more time and spend a greater percentage of their lives behind prison walls." (Parks, supra, 987 N.W.2d at p. 178.) In addition to more time spent behind bars, the conditions of confinement for youth can be particularly brutal and inhumane. (See Human Rights Watch, When I Die, They'll Send Me Home: Youth Sentenced to Life Without Parole in California (Jan. 2008) Vol. 20, No. 1 (G) pp. 54-55<http://www.hrw.org/reports/2008/us0108/us0108web.pdf> [as of June 12, 2024].) Largely due to these considerations, other high courts have held sentencing emerging adults to LWOP is unconstitutional.
Powell also asserts that the LWOP exclusion is cruel or unusual by disproportionately impacting young African Americans and other young people of color. Indeed, "[t]he LWOP exclusion perpetuates extreme racial disparities in our criminal and juvenile justice systems." (Hardin, supra, 15 Cal.5th at p. 907 (dis. opn. of Evans, J.); see also id. at p. 887 (dis. opn. of Liu, J.).) Below, the Court of Appeal declined to consider Powell's claim that his mandatory LWOP sentence violates our state constitution's prohibition against cruel or unusual punishment under the California Racial Justice Act of 2020 (RJA) (Stats. 2020, ch. 317), on the grounds Powell was appealing the denial of his Franklin motion (People v. Franklin (2016) 63 Cal.4th 261) rather than his conviction or sentence. It noted, "Powell is not, however, precluded from raising his RJA claim through any other procedural mechanism allowed under section 745, subdivision (b)." (People v. Powell (Feb. 23, 2024, A167066) [nonpub. opn.].)
I agree that Powell may file a petition for writ of habeas corpus asserting any RJA claims. However, I would consider Powell's argument that the disproportionate application of the LWOP exclusion on youth of color violates our state constitution's prohibition against cruel or unusual punishment. In enacting the RJA, our Legislature made clear that statistical evidence demonstrating disparate racial impact informs whether depriving Powell of a meaningful opportunity of release constitutes cruel or unusual punishment under the California Constitution. (Mosby v. Superior Court (2024) 99 Cal.App.5th 106, 123 [the RJA "was enacted, in part, to address McCleskey v. Kemp(1987) 481 U.S. 279, 295-299, 312, which found that there was 'a discrepancy that appears to correlate with race' in death penalty cases in Georgia, but the court would not intervene without proof of a discriminatory purpose" when considering an Eighth Amendment challenge]; see Stats. 2020, ch. 317, § 2, subd. (f).) In other words, statistical evidence showing the imposition of mandatory LWOP sentences on emerging adults disparately impacts youth of color may demonstrate the sentence is arbitrary and capricious and thus "cruel or unusual," in violation of our state constitution.
Now is the time for our court to grapple with these important considerations and determine whether our constitution, too, prohibits condemning an 18-year-old to die in prison without any individualized consideration. With today's denial of review, this court's promise in Hardin of due consideration another day remains unfulfilled. (See Hardin, supra, 15 Cal.5th at p. 907 (dis. opn. of Evans, J.).) To the extent further development of the record would assist us, a remand for factual development in the trial court would be the prudent course. (See id. at pp. 892-893 (dis. opn. of Liu, J.); see also Mattis, supra, 224 N.E.3d at p. 416.) Since this court has deferred consideration of these issues, I continue to "urge the Legislature to correct itself by ridding [Penal Code] section 3051 of the LWOP exclusion and extending youth offender parole eligibility to all individuals who were convicted in their youth." (Hardin, at p. 907 (dis. opn. of Evans, J.).)
I Concur: LIU, J.