Opinion
C065399
2013-03-20
The PEOPLE, Plaintiff and Respondent, v. Jimmy SIACKASORN, Defendant and Appellant.
Cal. Penal Code § 190.5(b). APPEAL from a judgment of the Superior Court of Sacramento County, Cheryl Chun Meegan, Judge. Affirmed in part and reversed in part.
Limited on Constitutional Grounds
Cal. Penal Code § 190.5(b). APPEAL from a judgment of the Superior Court of Sacramento County, Cheryl Chun Meegan, Judge. Affirmed in part and reversed in part. Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
BUTZ, Acting P. J.
A jury convicted defendant Jimmy Siackasorn of first degree special-circumstance murder. Pursuant to Penal Code section 190.5, subdivision (b) (section 190.5(b)),
the trial judge sentenced defendant, who was 16 years old at the time of the offense, to life without the possibility of parole (LWOP). In a previous opinion, we affirmed.
Further undesignated statutory references are to the Penal Code.
People v. Siackasorn (C065399, May 17, 2012) 2012 Cal.App. Lexis 3690 (nonpub.opn.), remanded (S203568, Aug. 29, 2012) in light of Miller v. Alabama (2012) 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ).
After we filed our opinion, the United States Supreme Court decided Miller, supra, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407. Miller held that the federal Constitution's Eighth Amendment ban on “cruel and unusual punishment” prohibits mandatory LWOP sentences for those under the age of 18 at the time of their offenses. (Miller, at pp. –––– – ––––, 132 S.Ct. at p. 2460, 183 L.Ed.2d at pp. 414–415) In light of Miller,our state Supreme Court granted review and transferred this matter to us to reconsider our decision .
We have now reconsidered. We affirm the judgment of conviction, by readopting our prior nonpublished opinion. However, in the new, published part VII. of this opinion, we reverse the judgment of sentence; we remand for the trial court to resentence defendant in light of Miller and, as we shall explain, without considering an LWOP sentence as the presumptive sentencing choice. (See Agricultural Labor Relations Bd. v. Tex–Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12, 238 Cal.Rptr. 780, 739 P.2d 140; Cal. Rules of Court, rule 8.528(c) [if the state Supreme Court grants review on limited issues, the remaining issues will be decided by the original Court of Appeal opinion, or upon subsequent action by the Court of Appeal as directed by the Supreme Court].)
Although section 190.5(b) does not mandate an LWOP sentence, it has been interpreted, in California appellate court decisions issued before Miller, as making LWOP the “generally mandatory,” “presumptive” penalty choice (as opposed to 25 years to life). We do not believe such a presumptive punishment constitutionally squares with Miller. As we see it, in light of Miller, section 190.5(b) provides a sentencing judge with equal discretion to impose a sentence of LWOP or a sentence of 25 years to life; neither sentence being the preferred one.
PROCEDURAL BACKGROUND
A jury convicted defendant, who was tried as an adult, of first degree murder of a police officer. (§ 187, subd. (a).) The jury found true allegations that defendant intentionally and knowingly killed the officer while the officer was performing his duties, and that defendant intentionally and personally discharged a firearm causing the death. (§ 190.2, subd. (a)(7), former § 12022.53, subd. (d).) The jury found not true an allegation that the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
Defendant committed the offense about five weeks shy of his 17th birthday. Sentenced to a prison term of LWOP, plus a consecutive sentence of 25 years to life for the firearm finding, defendant appeals. He raises evidentiary admissibility and sufficiency issues—and an instructional contention— regarding the first degree murder elements of premeditation and deliberation. He also claims his sentence is unconstitutionally cruel and unusual because an LWOP sentence for a juvenile is categorically prohibited under the Eighth Amendment. Finally, he asks that we review the sealed record of his Pitchess
motion concerning any discoverable information in the slain officer's personnel file.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305. We previously reviewed that sealed record and found the trial court did not abuse its discretion in concluding there was nothing discoverable therein. (People v. Cruz (2008) 44 Cal.4th 636, 670, 80 Cal.Rptr.3d 126, 187 P.3d 970.)
In light of the Supreme Court's remand, the parties have filed supplemental letter briefs. As alluded to above, we reject defendant's contentions and shall affirm the judgment of conviction. However, we reverse the judgment of sentence and remand for the trial court to resentence defendant in light of Miller and without considering an LWOP sentence as the presumptive sentencing choice.
FACTUAL BACKGROUND
See footnote *, ante.
DISCUSSION
I.–VI.
See footnote *, ante.
VII. There Is No Presumptive Punishment Choice Under Section 190.5(b)
See footnote, ante, page 1.
Section 190.5(b) states with respect to 16 and 17 year olds tried as adults and convicted of first degree special-circumstance murder:
“(b) 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.”
Based on the text, structure and history of this statute, California appellate court decisions have interpreted section 190.5(b) as setting forth LWOP as “the generally mandatory ...[and] presumptive punishment for 16– or 17–year–old special-circumstance murderers, and the [sentencing] court's discretion [as] concomitantly circumscribed to that extent.” (People v. Guinn (1994) 28 Cal.App.4th 1130, 1141–1142, 33 Cal.Rptr.2d 791, italics added ( Guinn ); People v. Ybarra (2008) 166 Cal.App.4th 1069, 1088–1089, 83 Cal.Rptr.3d 340 ( Ybarra ) [accord].)
Subsequent to these California decisions and to our original opinion in this matter, the United States Supreme Court, in late June 2012, decided Miller, supra, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407. Miller held that a mandatory LWOP sentence for any juvenile offender (i.e., under the age of 18 at the time of the offense) violates the federal Constitution's Eighth Amendment ban on “cruel and unusual punishments.” (567 U.S. at pp. –––– – ––––, ––––, 132 S.Ct. at pp. 2460, 2469, 183 L.Ed.2d at pp. 414–415, 424 .)
Miller based its decision on two strands of high court precedent concerned with the concept of proportionate punishment, a concept central to the Eighth Amendment. Such a mandatory LWOP scheme, said Miller,(1) prevents the sentencing authority, be it “judge or jury,” from considering a juvenile's “ ‘lessened culpability’ ” and “greater ‘capacity for change’ ” (relative to adults) (Graham, supra, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825; Roper, supra, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 ), and (2) does not meet the requirement of “individualized sentencing” for defendants facing the most serious penalties (see Woodson v. North Carolina (1976) 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (plur.opn.); Lockett v. Ohio (1978) 438 U.S. 586, 597–609, 98 S.Ct. 2954, 2960–2967, 57 L.Ed.2d 973, 985–992 (plur.opn.); see also Eddings v. Oklahoma (1982) 455 U.S. 104, 110–112, 102 S.Ct. 869, 874–875, 71 L.Ed.2d 1, 8–9 (plur.opn.)). (Miller, supra, 567 U.S. at pp. ––––, ––––, –––– – ––––, –––– – ––––, 132 S.Ct. at pp. 2460, 2461, 2462–2464, 2466–2467, 183 L.Ed.2d at pp. 414, 415, 417–418, 421–422.)
LWOP is the harshest possible penalty constitutionally available for juveniles, in light of Roper's holding that the Eighth Amendment prohibits the death penalty for juvenile offenders, and Graham's holding that the Eighth Amendment prohibits LWOP for a juvenile convicted of a non-homicide offense. (See Miller, supra, 567 U.S. at pp. –––– – ––––, ––––, 132 S.Ct. at pp. 2462–2464, 2474–2475, 183 L.Ed.2d at pp. 417–418, 430.) The Miller court characterized its decision as requiring only that a “sentencer” (“judge or jury”) “follow a certain process” before imposing this harshest possible penalty on a juvenile offender: i.e., consider the offender's youth and the hallmark features of youth (among them, immaturity, impetuosity, and failure to appreciate risks and consequences); and consider, in an individualized way, the nature of the offender and the offense (for example, as relevant, the offender's background and upbringing, mental and emotional development, and possibility of rehabilitation). (Miller, at pp. ––––, –––– – ––––, –––– – ––––, 132 S.Ct. at pp. 2471, 2467–2468, 2466–2467, 183 L.Ed.2d at pp. 426, 422–423, 421–422; see also id. at pp. –––– – ––––, –––– – ––––, ––––, 132 S.Ct. at pp. 2460–2461, 2462–2464, 2474–2475, 183 L.Ed.2d at pp. 414–415, 417–418, 430.)
For five reasons, we think Miller has undercut the Guinn interpretation of section 190.5(b), that LWOP is the “ generally mandatory ... [and] presumptive punishment for 16– or 17–year–old special-circumstance murderers, and the [sentencing] court's discretion is concomitantly circumscribed to that extent.” (Guinn, supra, 28 Cal.App.4th at p. 1142, 33 Cal.Rptr.2d 791, italics added.) We do not think there is a preferred or presumptive punishment under section 190.5(b); the sentencing court has equal discretion to impose either LWOP or the 25–year–to–life penalty after considering which sentence is appropriate in line with Miller 's required process.
First, Miller stressed that LWOP is the “harshest possible penalty” constitutionally available for a juvenile offender. (Miller, supra, 567 U.S. at pp. ––––, ––––, ––––, –––– – ––––, 132 S.Ct. at pp. 2474–2475, 2469–2470, 2462–2463, 2466–2468, 183 L.Ed.2d at pp. 430, 424, 417, 421–422].)
Second, Miller remarked that “given 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 to Roper and Graham.] Although we do not foreclose a sentencer's ability to make that judgment [i.e., LWOP] in homicide cases, we require it to take into account how children are different, and how those differencescounsel against irrevocably sentencing them to a lifetime in prison.” (Miller, supra, 567 U.S. at p. ––––, 132 S.Ct. at p. 2469, 183 L.Ed.2d at p. 424.)
Third, Guinn 's interpretation of section 190.5(b) was based on statutory text, structure and history. (Guinn, supra, 28 Cal.App.4th at pp. 1141–1142, 33 Cal.Rptr.2d 791.) This statutory-based interpretation is trumped by Miller 's grounding in the constitutional provision of the Eighth Amendment.
Fourth, Guinn interpreted section 190.5(b) as setting forth a “ generally mandatory imposition of LWOP as the punishment for a youthful special circumstance murderer.” (Guinn, supra, 28 Cal.App.4th at p. 1142, 33 Cal.Rptr.2d 791, italics added.)
Fifth, and finally, there is an adage in the law that statutes should be interpreted whenever possible to preserve their constitutionality. (Dyna–Med., Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)
In their supplemental briefing on this issue, the People assert that “Miller does not require a formulaic recitation of every possible factor related to a defendant's youth that could possibly affect the court's sentencing decision.” We agree. To so require would render the determination of a sentence just that—a formulaic recitation. That is the last thing Miller had in mind. What Miller does require is that the sentencer, in imposing the harshest possible penalty on a juvenile (i.e., LWOP), consider the offender's youth and the hallmark features of youth that are indicative of lesser culpability and greater capacity for change (compared to adults), and individually consider the offender and the offense. This sentencing process is not an unfamiliar one. Courts have been engaging in like processes for as long as they have been imposing sentences.
Furthermore, in considering the sentence to impose, the sentencing court may use the sentencing factors on aggravation and mitigation listed in the California Rules of Court, and the sentencing factors stated in section 190.3, as relevant. (See Guinn, supra, 28 Cal.App.4th at p. 1149, 1142–1143, 33 Cal.Rptr.2d 791; Ybarra, supra, 166 Cal.App.4th at p. 1089, 1092, 83 Cal.Rptr.3d 340.)
Here, the trial court judge did not have the benefit of Miller 's constitutional guidance in sentencing under section 190.5(b). Instead, the judge was obligated to follow the LWOP-presumptive punishment interpretation of that statute from the appellate court decisions in Guinn and Ybarra. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)
The constitutional protections recognized in Miller apply to defendant because his case is not yet final. (Griffith v. Kentucky (1987) 479 U.S. 314, 322, 328, 107 S.Ct. 708, 712–713, 716, 93 L.Ed.2d 649, 658, 661.) A sentencing remand, then, is necessary so the trial court can exercise its discretion to impose a sentence of LWOP or a sentence of 25 years to life, without having to consider LWOP as the “generally mandatory” or “presumptive” choice.
As one would expect from this legal posture of Miller 's unavailability to the sentencing court, the sentencing record demonstrates the necessity of a sentencing remand too. In sentencing defendant to LWOP, the trial court characterized that sentence as “the sentence stated by law.” Defense counsel had expressed a similar sentiment at the sentencing hearing, in noting the circumscribed sentencing discretion available to the trial court. The probation report did not even mention section 190.5(b); instead, the report simply stated that, “[p]ursuant to Section 190.2 [, subdivision] (a)(7) [first degree special-circumstance murder of a peace officer] ..., defendant ... shall be sentenced to state prison for life without the possibility of parole.”
Furthermore, the sentencing record shows that the “certain process” mandated in Miller for juvenile LWOP sentencing was not fully applied here. (Miller, supra, 567 U.S. at pp. –––– – ––––, –––– – ––––, 132 S.Ct. at pp. 2458–2460, 2470–2471, 183 L.Ed.2d at pp. 413–414, 425–426.) The trial court articulated its LWOP sentencing considerations in the context of denying defendant's motion that a juvenile LWOP sentence is categorically unconstitutional, rather than in the context of considering section 190.5(b). In the context of denying that motion, the trial court noted defendant's “young age.” The trial court also noted that it was familiar with the factors relating to defendant and to the commission of the present crime; that defendant had threateningly and abusively confronted authority figures repeatedly in the past; that he had embraced the violence and hatred of the gang culture and mindset; that he had shown no remorse, instead bragging and gloating about what he had done; and that this was a cold and vicious killing. However, the trial court did not consider, as Miller requires to the extent relevant, defendant's background and upbringing, and his mental and emotional development, and how these factors also affected the possibility of his rehabilitation; nor was any such information to be found in the probation report.
Finally, we are aware of two recent decisions involving the issue of Miller and section 190.5(b). In the first one, People v. Gutierrez (2012) 209 Cal.App.4th 646, 147 Cal.Rptr.3d 249, the court concluded that, “[u]nlike in Miller, ” a juvenile LWOP sentence under section 190.5(b) is “not mandatory”—the juvenile “ may be sentenced to life without the possibility of parole.” (Gutierrez, at p. 659, 147 Cal.Rptr.3d 249.) Gutierrez reached this conclusion without mentioning that Guinn and Ybarra had interpreted section 190.5(b) as making LWOP the “generally mandatory,” “presumptive” sentence. (Gutierrez, at pp. 659–660, 147 Cal.Rptr.3d 249.) The second decision, People v. Moffett (2012) 209 Cal.App.4th 1465, 148 Cal.Rptr.3d 47, did note this judicial interpretation and concluded that a “presumption in favor of LWOP, ... is contrary to the spirit, if not the letter, of Miller.... ” (Moffett, at p. 1476, 148 Cal.Rptr.3d 47.) In light of what we have said, we agree with Moffett and disagree with Gutierrez on this point .
Consequently, we shall reverse the judgment of sentence and remand to the trial court for resentencing in light of Miller; the trial court is not to consider LWOP as the presumptive sentencing choice.
DISPOSITION
The judgment of conviction is affirmed. The judgment of sentence is reversed and this matter is remanded to the trial court for resentencing consistent with the principles expressed in this opinion. I concur:
HOCH, J.
Dissenting Opinion of Duarte, J.
I concur in the majority opinion except as to Part VII, as to which I respectfully dissent from the conclusion that a remand for resentencing is appropriate in this case.
Assuming the trial court erred under Miller v. Alabama (2012) 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller), by applying a presumption in favor of theLWOP sentence, in my view the error was not structural, but harmless beyond a reasonable doubt based on this record. (See Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman).)
Sentencing errors may be found harmless (People v. Champion (1995) 9 Cal.4th 879, 934, 39 Cal.Rptr.2d 547, 891 P.2d 93), even capital sentencing errors (People v. Holt (1997) 15 Cal.4th 619, 693, 63 Cal.Rptr.2d 782, 937 P.2d 213). Harmless error analysis even applies in capital cases where the sentencer places an improper “thumb” on the sentencing scale. (See, e.g., Sochor v. Florida (1992) 504 U.S. 527, 532, 112 S.Ct. 2114, 2118–2119, 119 L.Ed.2d 326, 336–337; Clemons v. Mississippi (1990) 494 U.S. 738, 752–754, 110 S.Ct. 1441, 1450–1451, 108 L.Ed.2d 725, 740–742.) Application of an invalid sentencing presumption is not a structural error compelling reversal in all cases. (See Washington v. Recuenco (2006) 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466.)
In my view, People v. Gutierrez (2012) 209 Cal.App.4th 646, 147 Cal.Rptr.3d 249 ( Gutierrez ), although admittedly sparse in its analysis of Miller, correctly concluded that a harmless error analysis was appropriate after finding Miller error. (Gutierrez, supra, 209 Cal.App.4th at p. 660, 147 Cal.Rptr.3d 249.)
The majority does not undertake an explicit harmless error analysis, or overtly classify the error as structural, but does rely in part on People v. Moffett (2012) 209 Cal.App.4th 1465, 148 Cal.Rptr.3d 47 ( Moffett ). I have no quarrel with the decision to remand in Moffett. Moffett was not the shooter, and his conviction was for felony murder. Those facts (unlike defendant's facts) signaled Moffett's “ ‘ “twice diminished moral culpability.” ’ ” (Moffett, supra, 209 Cal.App.4th at p. 1477, 148 Cal.Rptr.3d 47 [quoting Miller ].) And, importantly, in Moffett the crime itself did not speak to Moffett's “maturity, prospects for reform, or mental state with respect to the homicide itself—the factors paramount underMiller.” ( Ibid. ) Finally, the trial court misunderstood one part of Moffett's juvenile record—a record far milder than defendant's. ( Ibid. )
Here, the trial court essentially made the determinations required by Miller.It considered defense counsel's “lengthy written argument” against an LWOP sentence, based on the Eighth Amendment, and considered the then-recent opinion in Graham v. Florida (2010) 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (Graham). Further, the trial court presumptively considered the earlier decision in Roper v. Simmons (2005) 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1, which, together with Graham,articulated the mitigating factors restated in Miller.
I do not read Miller to require the parties to litigate, and the trial court to resolve, each subcategory of factors referenced in Miller that might shed light on a minor's culpability or prospects for reform. Miller requires the sentencer to “have the ability to consider the ‘mitigating qualities of youth[,]’ ” that is, “to ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ ” (Miller, supra, 567 U.S. at pp. –––– – ––––, 132 S.Ct. at pp. 2467–2470, 183 L.Ed.2d at pp. 422–424.) Defense counsel raised those issues, with knowledge of the possible factors outlined in Miller, and borrowed from Roperand Graham.Because defense counsel had every “incentive and opportunity” to marshal evidence and argument pertaining to those factors, we can “be confident that the factual record would have been the same” (People v. Sandoval (2007) 41 Cal.4th 825, 839–840, 62 Cal.Rptr.3d 588, 161 P.3d 1146) had Miller been decided before sentencing.
In deciding defendant's Eighth Amendment motion, the trial court considered the evidence in the record relating to defendant'spast, which, with his actions and utterances regarding his premeditated murder of a peace officer, spoke to his maturity and prospects for reform. The trial court considered defendant's age, delinquency history (which including repeated threats to shoot or harm juvenile correctional or probation staff) and removal from the family home, where he was the victim of substantial physical and psychological abuse, witnessed sexual abuse of his sister, and witnessed arrests of family members, all no doubt contributing to his resulting behavioral issues and depression.
The trial court acknowledged defendant's “very young age” but found he “had rejected essentially all the intervention of the juvenile justice system. He demonstrated in his numerous encounters with law enforcement, with probation, with group homes, his utter distain [ sic ], animosity, hatred towards any authority figure. He had embraced the gang lifestyle, he had embraced that culture and that mindset, which exalts violence and hatred.... He had made repeated death threats and challenged authority figures in the past, and exhibited numerous outbursts in defiance and acts of defiance and misbehavior in his interactions with different custodial settings.” Defendant “executed” and “ambushed” the victim and “fled from law enforcement as he had done repeatedly in the past. And rather than being taking into custody, he gunned down Deputy Vu Nguyen at close range and left him to die.” Defendant was “proud of what he's done. He's bragged and he's gloated.” The trial court considered the argument for a lighter sentence, “[b]ut as I've stated and for those reasons that I have stated, I reject that argument and I reject it based on my review of the case law as well as a careful consideration of the facts relating to this defendant and this crime.”
We have described the Chapmantest as follows: “To find the error harmless we must find beyond a reasonable doubt that it did not contribute to the verdict, that it was unimportant in relation to everything else the jury considered on the issue in question.” (People v. Song (2004) 124 Cal.App.4th 973, 984, 22 Cal.Rptr.3d 118; see Yates v. Evatt (1991) 500 U.S. 391, 403–404, 111 S.Ct. 1884, 1892–1893, 114 L.Ed.2d 432, 448–449.) From my review of the record, it shows beyond a reasonable doubt that any presumption of LWOP as the appropriate sentence was “unimportant” in this case.
The trial court heard and rejected the argument that defendant's youth and unfortunate childhood merited a sentence other than LWOP, given his extensive juvenile record, premeditated murder of a peace officer, and utter lack of remorse. It sentenced him to LWOP because it determined that his crimes and individual circumstances merited an LWOP sentence. Accordingly, on this record “[r]emanding for resentencing in light of Miller would be a futile exercise.” (Gutierrez, supra, 209 Cal.App.4th at p. 660, 147 Cal.Rptr.3d 249.)
Therefore, I respectfully dissent.