Resentencing Juveniles Sentenced to LWOP Equivalent.

Frank Eli Heard is serving a sentence of 23 years plus 80 years to life for two counts of attempted, willful, deliberate and premeditated murder (Penal Code §§ 664, 187(a)) for a drive-by shooting he committed at age 15 in 2005 and one count of voluntary manslaughter for a homicide he committed just after he turned 16. 

The 80 years to life portion of the sentence was composed of two sentences of 15 years to life for each attempted murder plus 25 years to life for each personal discharge of a firearm count (Penal Code § 12022.53(c), (d), and (e)(1)).  Both crimes were for the benefit of a criminal street gang (Penal Code § 186.22(b)(1)).

The attempted murder drive-by shooting in 2005 involved Heard and three fellow members of the West Coast Crips shooting at a group of rival Blood gang members on the street.  In the volley of bullets, two persons were injured, but not killed.  The evening of the shooting, Heard bragged to a friend that he “got a slob,” which is a derogatory term for the Blood.

Six months later, less than two weeks after Heard turned 16, witnesses saw him and others walk up to a young man standing on a street corner.  After exchanging words with the man, Heard pulled out a handgun and shot him in the head, killing him.  It was later determined that Heard believed the victim was selling drugs in Heard’s gang territory.  In this second case, Heard agreed to a plea bargain to manslaughter in lieu of murder.

After 15 years of being in prison, he petitioned the trial court to recall his sentence and resentence him to a lesser sentence under Penal Code § 1170(d)(2) (now (d)(1)).  Under this provision, a juvenile who “was sentenced to imprisonment for life without the possibility of parole” and has been incarcerated for at least 15 years “may submit to the sentencing court a petition for recall and resentencing.”  Penal Code § 1170(d)(2)(A)(i) (now ((d)(1)(A)).

The trial court denied Heard’s petition, finding him ineligible for relief because he was not sentenced to an explicitly designated term of life without the possibility of parole.

Mr. Heard then appealed to the Fourth Appellate District Court of Appeal, arguing the resentencing provision should be applied to not only juvenile offenders sentenced to explicitly designated life without parole, but also to a juvenile offenders, like him, who has been sentenced to multiple terms that are the functional equivalent of life without parole because in his case, he would not be eligible for parole during his lifetime.

It merits mention that in 2008, when Heard was sentenced, he argued imposition of a life sentence would be cruel and unusual punishment in violation of the Eighth Amendment and urged the court to consider his youth and capacity to mature and change, limited intelligence and that he was introduced to a criminal street gang as a toddler. 

Since Heard was sentenced, the Fourth Appellate District explained, “a sea change in juvenile sentencing has occurred, beginning with the United States Supreme Court decision in Roper v. Simmons (2005) 543 U.S. 551 (the Eighth Amendment categorically bars imposition of the death penalty on offenders who were under 18 when their crimes were committed). 

A series of decisions followed, both at the United States Supreme Court and in California that placed further limits on punishment that could be imposed on juvenile offenders.  These decision arose in large part from advances in research on adolescent brain development and the related, growing recognition that juveniles “have diminished culpability and greater prospects for reform” and are therefore “constitutionally different from adults for purposes of sentencing.”  Miller v. Alabama (2012) 567 U.S. 400, 471, discussing Roper, supra, and Graham v. Florida (2010) 560 U.S. 48 (the Eighth Amendment bars the imposition of a sentence of life without the possibility of parole on a juvenile offender who did not commit homicide).

The California Supreme Court then ruled in People v. Caballero (2012) 55 Cal. 4th 265, 268-269, that the Eighth Amendment was violated for a 110-years to life sentence imposed on a juvenile offender for a non-homicide offense because his parole eligibility date falls outside the juvenile offender’s natural life expectancy.  Therefore, it was the functional equivalent of a sentence of life without the possibility of parole and a constitutional violation.

Applying Caballero to the sentence of Heard at issue, the Fourth Appellate District agreed with Heard that his sentence constituted cruel and unusual punishment because he, like Caballero, would not be eligible for parole until a date outside his natural life expectancy.

The citation for the Fourth Appellate District Court ruling discussed above is In re Frank Eli Heard (4th App. Dist., 2022) 83 Cal. App. 5th 608, 299 Cal. Rptr. 3d 634.

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