the good news and the bad news

29 Feb

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Great opinion last week.  Terrible opinion last week.

Good news first:

Reversible error to admit coppy “use of force” expert in PC 69 case because it was not the proper subject of expert testimony, cop misstated the law when leaving out certain factors from the Supreme Court case on use of force, and the testimony was only “marginally relevant.”

Bad news:

The Fourth District COA held last week–get this–that Miller does not require a remand to the trial court for consideration of the mitigating factors to decide if an LWOP juvenile sentence is appropriate because 1170(d)(2)(A)(i) allows a juvenile to PETITION for a parole hearing where those factors will be considered.

The Court relied on the 2016 Supreme Court Case Montgomery v. Louisiana which stated: “The procedure Miller prescribes is no different. A hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. [Citation.] The hearing does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” (136 S.Ct. 718).  

Here are my problems with this case which I have not thoroughly researched:

(1) is the standard at a parole hearing (assuming the minor gets past the petition for a hearing stage) the same standard that would at a sentencing hearing on juvenile LWOP reconsideration? The Court did not mention this point.

(2) 1170 DOES NOT provide that a juvenile is entitled to a hearing on whether LWOP is appropriate under its enumerated factors; he is entitled only to have his petition for a hearing considered.  Therefore the petition could be denied without any Due Process attendant to a sentencing hearing.  This is an inadequate remedy considering Montgomery explicitly contemplated a hearing, not a chance for a hearing (see quote above).    The COA recognized this point but essentially said a petition for a hearing and a hearing are the same thing because the factors in Graham are considered in the petition.

(3)  1170 puts the burden of persuasion for a hearing on the minor in that the court must find that the assertions in his petition for eligibility are true by a preponderance of the evidence. But, Miller held that a juvenile LWOP sentence is presumptively invalid–putting the burden on the prosecution to prove it is justified. The COA said as long as the burden is on the prosecution the procedure in 1170 is fine, without explaining how 1170 places the burden on the prosecution or stating that the court was effectively amending the statute.  Maybe I’m misinterpreting the statute or holding?

(4) a juvenile is eligible for parole only after 15 years in custody and if denied a new hearing must way 5 more years for another hearing.  If denied again he has to wait 4 more years.  This may or may not be a problem because Miller/Graham does not say when a juvenile is entitled to a hearing and there is not a problem with a juvenile spending 15 years in prison, only with spending life in prison (and even then there is no problem so long as he is found to be incorrigible).  I am somewhat unclear but I think if the is denied after his third petition he cannot apply again:  “… If recall and resentencing is not granted under [the 3rd] petition, the defendant may file another petition after having served 24 years. The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendant’s sentence.”  Is the denial of the first petition all that is required because Miller/Graham only require one consideration of resentencing?  Probably.

In short this is a terrible, ridiculous case.  There are probably many other problems with it that I do not understand.

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