Metropolitan News-Enterprise


Friday, July 7, 2017


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Resentencing of Youth Requires Notice, Hearing, Court of Appeal Rules

Panel Says U.S. Supreme Court Opinion Barring Life-Without-Possibility-of-Parole Sentences On Youths Absent Specified Findings Is Not Satisfied by an In-Chambers Review of Facts


By a MetNews Staff Writer


The Court of Appeal for this district has held that where a resentencing is ordered based on the 2012 U.S. Supreme Court decision that bars imposing on minors sentences amounting to life imprisonment without possibility of parole absent a consideration of certain enumerated factors, a judge may not redetermine the sentence on remand based solely on the record, eliminating notice to the defendant and the right of a hearing.

Div. Four, in an unpublished opinion on Wednesday by Justice Thomas Wilhite, vacated the decision of Los Angeles Superior Court Judge Tomson T. Ong in re-imposing a 75-year sentence on Tyrell Ainsworth, who was 17 when convicted in 2012 of first degree murder, with the special allegation that he personally shot the victim.

Wilhite avoided any criticism of Ong. He said at the outset of the opinion that his division, in ordering a resentencing in 2013—in an opinion by then-Justice Steven C. Suzukawa, now retired—gave directions that were “perhaps, not as specific as they should have been.”

Suzukawa said in that unpublished opinion, which upheld the conviction but sent the case back for resentencing:

“On remand, the trial court is not foreclosed from imposing the current sentence, but it is required to consider defendant’s individual circumstances.”

Quoting from the U.S. high court’s decision in Miller v. Alabama, he instructed that Ong “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

In Wednesday’s opinion, Wilhite rejected the defendant’s contention of bias against him having been manifested by Ong declaring:

“The judge simply erred in conducting the resentencing hearing as he did. In light of our more specific direction, we have no reason to doubt that the judge will properly conduct a new resentencing hearing.”

Ong, after the case was remanded to him and he considered, in chambers, the factors set forth in Miller, said in a Dec. 2, 2013 minute order:

“The trial court has considered the defendant’s sentence in light of [Miller]. The defendant’s conduct in this case represents that rare juvenile offender whose crime reflects irreparable corruptions. He orchestrated the slaying by bringing the victim to the outside of the vehicle for the slaying, and then proudly declared to the others in the vehicle that he ‘noodled that n****r,’ thereafter he immediately threatened the 2 eyewitnesses. No mitigating factors exist, nor were they presented, to overcome this irreparable corruption. This juvenile is indeed different; he had little mitigation and no remorse. His background and character fail to overcome this irreparable corruption.”

Finding the in camera review inadequate, Wilhite wrote:

“[D]efendant contends, and the Attorney General concedes, that the trial court erred by holding the re-sentencing hearing without providing defendant notice and an opportunity to be heard. We agree.

“Under both the United States Constitution and the California Constitution, a criminal defendant has a fundamental right to notice of, and an opportunity to be heard at, a hearing that affects his or her rights….A defendant also has a fundamental right to counsel and to be present at critical stages of a criminal proceeding, such as sentencing….

“In this case, there is no question that the trial court’s failure to give notice of the resentencing hearing, and the absence of defendant and counsel from that hearing violated defendant’s constitutional rights. Therefore, the sentence must be vacated and the matter remanded for a noticed resentencing hearing, at which defendant, represented by counsel, must be given an opportunity to be heard.”

Wilhite noted that under the U.S. Supreme Court’s 2016 decision in Montgomery v. Louisiana, there is now a test beyond whether the youth has evinced “irreparable corruption” and “permanent incorrigibility”; it must be determined whether the criminal acts were the product of “the transient immaturity of youth.”

Ainsworth, a gang member, was 17 at the time he committed the slaying of James Withers, whom he shot in the face based on annoyance over being beeseached repeatedly to join in a robbery.

The case is People v. Ainsworth, B269870.

Deborah L. Hawkins represented Ainsworth, under appointment by the Court of Appeal.  for Defendant and Appellant. Deputy Attorneys General Steven D. Matthews and Ryan M. Smith acted for the People.


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