The Judge Must Consider Youth in an 1172.6 Motion

We hope the reader agrees with us that the following First Appellate District ruling is legally and logically overdue.

For over a decade, starting with U.S. Supreme Court cases like Miller v. Alabama (2010) 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 and Graham v. Florida (2012) 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825, and then later being recognized in California with People v. Franklin (2016) 63 Cal. 4th 261, our law has recognized that younger defendants (defined as being under age 25) do not recognize risk and danger the same way an adult does.

Therefore, applying this to the felony murder context and resentencing under Senate Bill 1437 (later amended by Senate Bill 775) at Penal Code § 1172.6 (formerly § 1170.95), a defendant’s youthfulness must considered if one is to properly evaluate the mental state of “reckless indifference to human life” (as set forth under the criteria discussed in People v. Banks (2015) 61 Cal.4th 788 (major participant) and People v. Clark (2016) 63 Cal.4th 522 (reckless indifference to human life)). 

In other words, can a defendant’s youthfulness prevent one from forming a sufficiently culpable state to be convicted of felony murder?

On July 4, 1993, James Pittman was 21 years old.  He and two co-defendants, ages 16 and 17, murdered Joel Vigil.  The group had been drinking heavily and agreed to rob a nearby store.

As they were walking to the store, they spotted Vigil, who was, one defendant said, “in a truck, shooting up dope with a prostitute.”  Pittman then told the other two, “Let’s go whip his ass.”  The two teenagers agreed. 

At the trial, one of the teenagers testified that he thought they might throw something at the truck or chase the man (Vigil) off.  There was no plan to rob or kill Vigil.  Pittman certainly said nothing suggesting this. 

Pittman then found three chisels on a neighbor’s porch as they were walking toward the truck.  Pitman handed a chisel to each teenager and they approached the truck.  One of the teenagers then started running toward the truck and opened up the door to the truck.  That teenager then started stabbing Vigil in the chest with the chisel.  Pittman threw his chisel at Vigil, but at that moment, Vigil had apparently already died from the stabbing from the first teenager.

Pittman was arrested and convicted of second-degree murder of Vigil.  He was sentenced to 15 years to life. 

In 2019, Pittman filed a petition for resentencing under Penal Code § 1172.6 (then 1170.95).  He argued that he was not the actual killer, did not have the specific intent to kill as an aider and abettor and was not a major participant acting with reckless indifference to human life.  After all, another person killed Vigil and Pittman only suggested that the group “whip his ass,” meaning beat him up or scare him off.  The chisels were not going to be actually used – they were just supposed to be used to scare Vigil.

The trial court denied the petition, finding that he had acted with actual or implied malice and therefore had the specific intent to kill as aider and abettor.  The trial court explained that it based its finding largely on Pittman’s testimony at a parole hearing, wherein he explained his thoughts during the murder.

Pittman then appealed, arguing that the trial court erred in considering his parole hearing testimony and also because two recent published opinions held that a court must consider a person’s youthfulness in evaluating his or her ability to form the required mental state for implied malice murder.  Those two cases were People v. Jones (2022) 86 Cal. App. 5th 1076, 1090–1091, 1093 [while substantial evidence might support the judgment if youth were not a relevant consideration, remand was appropriate where trial court failed to consider it]) and People v. Oliver (2022) 90 Cal. App. 5th 466 at 488.

The appellate court then explained that a youthful offender, being defined as one under age 25, often does not have the full ability to perceive and appreciate risk and consequences, so that person does not have the same level of reckless disregard or indifference required for implied malice.  The youth may also act impulsively and be more vulnerable to peer pressure.

Therefore, since the trial court never considered Pittman’s youthfulness in evaluating if he had the requisite mental state for implied malice, the First Appellate District remanded the case back to the trial court for further evaluation of this issue in the 1172.6 context of resentencing Pittman.