Is Life with No Possibility of Parole (LWOP) OK for Juvenile?

In 2010, citing the Eight Amendment’s bar against cruel and unusual punishment, the United States Supreme Court determined that the immature and potentially malleable nature of juveniles precludes a judgment that a nonhomicide juvenile offender will never to be fit to reenter society (Graham v. Florida (2010) __ U.S. __, 130 S.Ct. 2011).

In the recent California case of Antonio De Jesus Nuñez (People v. Nunez (2011 DJDAR 6678), the Fourth Appellate District concluded that a sentence of five consecutive life terms, plus five consecutive 20 year enhancements for gun use, technically granted the juvenile the possibility of parole in 175 years.

The juvenile, Mr. Nuñez, however, appealed the sentence as violating Graham because his offense was not a homicide and the sentence was so long that it had the practical effect of denying him any possibility of even having a parole hearing.  Consequently, Nuñez argued, his sentence violated the Eighth Amendment of the U.S. Constitution and Article I, section 17, of the California Constitution.

The reader of this article may be curious to know the underlying facts of the Nuñez case and how such a long sentence arose.  In a 36 hour span in April, 2001, Nuñez, then 14, and an adult friend armed themselves with an AK-47 and several other guns.  They then stopped a two vehicle convoy of illegal immigrants, surrounded one of the vehicles and opened fire.  Luckily, no one in the car was killed.

The target sped away, so Nuñez and his friend turned their attention to the other car in the convoy.  They focused on the driver, who they kidnapped.  During the initial kidnapping, Nuñez kept the barrel of a gun to the head of the convoy driver.  His friend then made contact with the driver’s family and demanded a ransom.

The following day, police located Nuñez as he attempted to collect the ransom.  Nuñez and his cohort were then chased by police all over the streets of Long Beach with their hostage handcuffed in the backseat and Nuñez shooting the AK-47 from the front passenger seat out through the blown out rear window at police in several pursuing cars.  Nuñez car then crashed and he tried to escape on foot, only to be caught.

Examination of the police cars revealed bullet holes from Nuñez in the hood of one police car, the door frame, the side-view mirror, the roof and the overhead lights.  One bullet came within a foot of an officer’s head and another within four to six inches of another officer.

The jury convicted Nuñez of kidnapping for ransom, four counts of attempted murder, evading police and street terrorism.  The trial judge imposed a life without probation term.  New counsel for Nuñez then challenged the sentence in a habeas filing.  The California Supreme Court found the sentence improper and sent the case back to the trial court for revised sentencing.  

The trial judge then imposed the 175 year sentence, saying, “Mr. Nuñez is not Mickey Rooney, and I don’t believe in the saying that there is no such things as a bad boy.”  Nuñez challenged the revised sentence a second time.

The California Supreme Court agreed with Nuñez that the sentence of five consecutive life sentences was improper and a violation of the Eighth Amendment.  Citing to Graham, mentioned above, the Supreme Court held that a court may not constitutionally determine that a youth will never reform sufficiently to be considered for release.  Consequently, the case was remanded again to the trial court for a new sentence.  Nuñez, now 24, must have been happy with this ruling.

For more information about juvenile sentencing, click on the following articles:
  1. Sentence for Juvenile of 100 Years Is Cruel And Unusual Punishment For Aiding And Abetting Murder
  2. Seventeen Year Old May Be Charged As an Adult with Federal Second Degree Murder Based on Lay Testimony That He Had Average Intelligence and Maturity
  3. Thirty Years to Life Sentence For Juvenile Sex Crime Defendant Not Cruel and Unusual Punishment
For case summaries of selected juvenile cases our firm has handled, click here.

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