Moffett-Gutierrez a Victory for Juvenile Advocates

By Clinical Professor Christopher Hawthorne

Attorneys will quibble about its nuances, and the work of implementing the decision will go on for years to come, but People v. Moffett/People v. Gutierrez is the California Supreme Court opinion juvenile advocates were hoping for.  First, the Court firmly declares that section 190.5 California Penal Code is covered by the 2012 U.S. Supreme Court case Miller v. Alabama, which banned mandatory life without the possibility for parole (LWOP) for juveniles.  This is a significant legal step, because section 190.5 is not strictly mandatory.  Instead, the statute declares that LWOP is the presumptive sentence for 16- and 17-year-olds who fall under the special circumstance murder laws.  The judge, at his or her discretion, may choose a sentence of 25 to life.  For years, courts have debated whether 190.5 offered the judge complete sentencing discretion, or only the discretion to occasionally override the presumption.  The latter view, embodied in People v. Guinn, was the more popular, and for good reason.  Not only did Guinn absolve trial court judges of the charge of arbitrariness; it also absolved the court of the necessity to actually consider mitigating evidence related to the defendant’s youth.

Moffett-Gutierrez changes all that.  After the Supreme Court’s ruling, trial court judges must think hard, and think on the record, about whether to sentence a teenager to LWOP.  And, just as important, the Court gives a roadmap to judges who are thinking about imposing these harsh sentences.  When choosing a sentence for a youthful offender, judges must now take into account the "distinctive attributes of youth," which is another way of saying that judges must consider whether the child they are sentencing is the “rare juvenile offender whose crime reflects irreparable corruption.”  The Court directs judges to consider “how children are different and how those differences counsel against a sentence of life without parole ―before imposing a particular penalty.”

One thing Moffett does not decide is whether Miller is retroactive:  in other words, whether it applies to juveniles who have already been convicted and are serving LWOP.  Juvenile advocates in California have been filing Miller petitions as if they assume retroactivity is a done deal, but other states are split on the issue.  Illinois and Texas say Miller is retroactive.  Pennsylvania says it's not.  Expect the California Supreme Court to enter that debate soon.