Rejects Defendant’s Contention That Permanent Incarceration Is Unauthorized Sentence but Says Judge Lomeli Erred in Relying on Probation Report From 36 Years Back
By a MetNews Staff Writer
The Court of Appeal for this district yesterday reversed an order by the Los Angeles Superior Court resentencing a man convicted in 1984 of a grisly triple murder as well as rape and other crimes, with special circumstances, to life imprisonment without possibility of parole.
Div. One rejected his contention that the sentence is unauthorized because the Ninth U.S. Circuit Court of Appeals affirmed the granting of his petition for a writ of habeas corpus which gave the prosecution the option of seeking the death penalty anew; it chose not to do so, meaning that the defendant is no longer eligible for the death penalty, which rules out a sentence of life without possibility of parole (“LWOP”). However, the appeals court found that a new resentencing hearing is required so that the judge can order and consider a fresh probation report.
Justice Helen I. Bendix wrote the opinion, which was not certified for publication.
The conviction of Jesse James Andrews and his sentence of death were affirmed by the California Supreme Court on Aug. 3, 1989, in an opinion by then-Justice Joyce Kennard (now retired). His petition for a writ of habeas corpus, on the ground of ineffective assistance of counsel during the penalty phrase, was rejected by the state high court on Aug. 26, 2002 in an opinion by then-Justice Janice Brown Rogers, later a judge of the U.S. Court of Appeals for the D.C. Circuit, now retired.
District Court Judge Manuel Real of the Central District of California (since deceased) on July 27, 2009, granted habeas corpus relief and decreed “that the State of California shall, within 120 days from the entry of this Judgment, either grant Petitioner a new penalty phase trial, or vacate the death sentence and resentence the Petitioner in accordance with California law and the United States Constitution.”
Ninth Circuit Opinion
A three-judge Ninth U.S. Circuit Court of Appeals panel reversed, but the court, sitting en banc in 2019, reheard the matter and, on Dec. 16, in a split opinion, affirmed. Writing for the majority, Judge Mary H. Murguia said:
“…Andrews’s counsel did nothing to counterbalance the prosecutor’s view of their client or to portray Andrews as a human being, albeit one who had committed violent crimes. In fact, Andrews’s counsel introduced almost no evidence in mitigation at the penalty phase. Despite this record of deficient representation, the California Supreme Court concluded that…Andrews received constitutionally adequate representation at the penalty phase. That decision is fundamentally and objectively unreasonable.”
The Office of Los Angeles County District Attorney opted not to seek the death penalty before a new jury, and on July 22, 2020, a resentencing hearing was held before Superior Court Judge George Gonzalez Lomeli, who commented:
“…I read some of the facts. Horrendous. Absolutely horrendous murders. Probably the worst I’ve seen in my 21 years on the bench. And I’ve done death penalty cases and other murder cases. I haven’t seen anything as horrendous as the description of these murders....”
Andrews’s lawyer argued that “the sentence of life imprisonment without possibility of parole is no longer an authorized sentence,” reasoning:
“Mr. Andrews cannot statutorily be sentenced to life imprisonment without the possibility of parole because the death sentence is not a legally authorized option in this case.”
Lomeli rejected that view, sentencing Andrews to LWOP. In her opinion affirming the order, Bendix said:
“[D]efendant miscomprehends the meaning of an authorized sentence and the precedents on which he relies. Under the then applicable murder sentencing statutes, where a defendant is convicted of special circumstances murder, the trial court had to impose death or life without the possibility of parole unless it exercised its discretion to strike the special circumstances finding. Nothing in the federal proceedings altered defendant’s convictions for special circumstance murders. Accordingly, life without the possibility of parole was, and still is, an authorized sentence for defendant’s special circumstance murders.”
Probation Report Necessary
Bendix did agree with Andrews on one point, saying:
“Even though defendant was ineligible for probation, the trial court failed to give reasons why a supplemental report would not be necessary to exercise an informed discretion whether to strike the special circumstance findings and consider mitigating evidence not before the original sentencing court 36 years ago.”
She said that “a probation report may have assisted the trial court in determining whether to exercise its discretion to strike the special circumstance findings.”
The opinion declares:
“The case is remanded for resentencing at which the trial court shall order and consider a current probation report.”
The case is People v. Andrews, B307542.
On March 12, Div. One, in an opinion by Bendix, affirmed an order by Los Angeles Superior Court Judge David V. Herriford denying a motion by Andrews’s confederate in the killings, Charles Sanders, agreeing with Herriford that Sanders was ineligible for the relief he sought having been major participant in the crimes who acted with reckless indifference to human life.
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