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Sentencing: Considering Youth-Related Mitigating Facts

In sentencing a person for a crime committed as a juvenile, especially a horrendous crime, there is often confusion about how and when the judge must consider youth-related mitigating factors in sentencing.

The recent published opinion from the Second Appellate District in People v. Alejandra Guerrero (2022 DJDAR 2590, filed March 14, 2022) provides that guidance that is sorely needed. 
Brief Synopsis: Sentencing a juvenile in a felony murder case, as well as several other violent felonies, to LWOP is not a violation of the Eighth Amendment because the juvenile is eligible for a youth offender parole hearing.  Such a sentence is valid as long as the judge considers and explains his consideration of the Miller v. Alabama factors in sentencing.        
When Guerrero was just sixteen years old, she committed a series of crimes leading to her arrest and prosecution as an adult.  In 2018, in the courtroom of Judge George G. Lomeli in the downtown Los Angeles criminal courts (at the Clara Shortridge Foltz courthouse), a jury found her guilty of first degree felony murder as an aider and abettor of the attempted robbery of the victim, Xinran Ji, and found true the special circumstance allegation that the murder was committed during the attempted robbery.  The jury also found that Guerrero was a major participant in the attempted robbery and while not the actual killer, she acted with reckless indifference to human life.

The jury also found true the special allegation that Guerrero had personally used a deadly or dangerous weapon in connection with the felony murder.

In addition, based on a second incident the same night of Ji’s murder, the jury found Guerrero guilty of the robbery of Claudia Rocha and the attempted robbery and aggravated assault on Jesus Ontiveros and found true the special allegation that Guerrero had personally used a deadly weapon in the robbery of Rocha.

In July 2018, Judge Lomeli sentenced Guerrero to life without parole for the special circumstance murder pursuant to Penal Code § 190.5(b), plus one year for the personal use of a deadly or dangerous weapon.  Penal Code § 190.5(b) states that in the court’s discretion, it may select a sentence of 25 years to life or life without parole for a 16 or 17 year old offender found guilty of special-circumstance murder.

In addition, Judge Lomeli imposed a consecutive determinate sentence of three years for the robbery of Rocha, a consecutive terms of eight months for the attempted robbery of Ontiveros and a consecutive term of one year for the aggravated assault of Ontiveros.  Judge Lomeli explained that he was imposing consecutive sentences under California Rules of Court, Rules 4.421(a)(1) and (3), on the determinate terms because the crime involved great violence, a high degree of cruelty and the victim was particularly vulnerable.

The Second Appellate District then heard arguments from Guerrero that her life without the possibility of parole sentence violated the Eighth Amendment under Miller v. Alabama (2012) 567 U.S. 460.  The appellate court rejected this argument because she was eligible for a Youth Offender Parole Hearing under Penal Code § 3051(b)(4).

However, the appellate court remanded the matter to a judge other than Judge Lomeli under Penal Code § 190.5(b), as interpreted by People v. Gutierrez (2014) 58 Cal. 4th 1354, at 1388 – 1389, for another judge to consider the youth-related mitigating factors as identified in Miller, supra, in conjunction with the with the court’s analysis of the aggravating and mitigating factors under Penal Code § 190.3 before it may impose a life without parole sentence.  People v. Guerrero (Sept. 15, 2020, B292313 [nonpublished opinion], p. 20; see also Gutierrez, supra, at p. 1390 [when sentencing a juvenile homicide offender under section 190.5(b), the trial court “must consider all relevant evidence bearing upon the ‘distinctive attributes of youth’ discussed in Miller and how those attributes ‘diminish the penological justifications for imposing the harshest sentences on juvenile offenders’”].

The Second Appellate District did so because Judge Lomeli had not considered the youth-related mitigating factors in Miller before imposing the life without parole sentence on Guerrero.  It is worth noting that Judge Lomeli did consider the aggravating and mitigating factors and found that the aggravating factors outweighed the mitigating factors.

When doing so, Judge Lomeli also asked defense counsel if there was anything he wished to address “on the issue of Franklin” (People v. Franklin (2016) 63 Cal. 4th 261, 279-280; see also Penal Code § 30151(d); In re Cook (2019) 7 Cal. 5th 439, 459 (adding such youth related mitigation materials to a file even if defendant is ineligible for a Youth Offender Parole Hearing)). 

Defense counsel then explained that Ms. Guerrero, due to her youth, was more susceptible to influence from her older confederates and that her role was as a minor accomplice in the attack that caused the victim’s death.  Judge Lomeli then commented that there was no evidence to suggest Guerrero was pressured by her older confederates to participate in the attack and reminded counsel that she was still a major participant in the crime.

The second issue in the appeal was that Judge Lomeli erred by proceeding with sentencing without Guerrero present in court.  On this issue, the Second Appellate District agreed that this was a mistake and ordered Guerrero to be present at resentencing.

The citation for the Second Appellate District Court ruling discussed above is People v. Alejandra Guerrero (2nd App. Dist., 2022) 76 Cal. App. 5th 329, 291 Cal. Rptr. 3d 386.

For more information about a judge’s duty to consider youth-related mitigating facts in sentencing, please click on the following articles:
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