Penal Code section 190.5, subdivision (b) does not create a presumption in favor of an LWOP sentence for 16- or 17-year-old offenders who are convicted of special circumstance murder. Two 17-year-old offenders were sentenced to LWOP under section 190.5, subdivision (b). In two separate cases under review, each defendant claimed that the statute creates an unconstitutional presumption in favor of an LWOP sentence for a 16- or 17-year-old offender convicted of special circumstance murder. Held: Remanded to allow the trial courts to exercise the full scope of their sentencing authority. Section 190.5, subdivision (b) provides that the penalty for 16- or 17-year-old juveniles who commit special circumstance murder shall be LWOP or, at the discretion of the court, 25 years to life. Since People v. Guinn (1994) 28 Cal.App.4th 1130, trial and appellate courts have interpreted the statute as creating a presumption in favor of LWOP for such defendants. The court here concluded that the text and history of section 190.5, subdivision (b) is ambiguous as to whether it establishes a presumption in favor of LWOP. However, construing section 190.5, subdivision (b) to create a statutory presumption in favor of LWOP would raise serious constitutional concerns in light of the reasoning in Miller v. Alabama (2012) __ U.S. __, which held that mandatory LWOP for defendants under the age of 18 years at the time of the offense violates the Eighth Amendment. The court instead adopted a construction of section 190.5, subdivision (b) which renders it free from constitutional infirmity, disapproving Guinn. Section 190.5, subdivision (b) grants the trial court discretion to sentence a 16- or 17-year-old defendant either to LWOP or 25 years to life, with no presumption in favor of LWOP. Further, it requires a trial court to consider the distinctive attributes of youth and mitigating factors discussed in Miller.

The recent enactment of Penal Code section 1170, subdivision (d)(2), allowing an LWOP defendant who was under 18 years old at the time of the offense to petition for resentencing, does not eliminate the constitutional problems arising from the Guinn presumption. Initially, the court noted that section 1170, subdivision (d)(2) does not apply to defendant Moffett’s offense because the victim was a public safety officer, rendering Moffett ineligible for resentencing (§ 1170, subd. (d)(2)(A)(ii)). As for defendants such as Gutierrez, the potential for section 1170, subdivision (d)(2) relief does not ameliorate the constitutional problems arising from a presumption in favor of an LWOP sentence because the same presumption would apply at resentencing. Further, the “meaningful opportunity to obtain release” mentioned in Graham v. Florida (2010) 560 U.S. 48, means a constitutionally required alternative to an LWOP sentence at the outset, not as an after-the-fact corrective procedure.