Life Without Parole (LWOP) Sentencing in California

Updated July 29, 2020

Life without parole (“LWOP”) is a prison sentence in a California criminal case in which a defendant is sent to the state prison for the rest of his or her life without the possibility of parole.

LWOP is a different sentence from the death penalty. And, whether or not the sentence is imposed is mainly determined by:

1. the statute for a particular crime, or
2. sentencing enhancement statutes (e.g., California’s “One Strike” law).

Examples of California crimes that can be punished by serving life include:

• first-degree murder, per Penal Code 187,
• felony-murder, per Senate Bill 1437, and
• rape, per Penal Code 261, if the defendant had a prior conviction of rape.

There are three things a prisoner can do to challenge an LWOP sentence after it has been imposed. These are:

1. petition the governor for a commutation,
2. file an appeal,
3. bring a writ of habeas corpus petition.

Our California criminal defense attorneys will explain the following in this article:

• 1.What is the legal definition of life without parole in California?
• 2. When is LWOP imposed?
  • 2.1. Statute
  • 2.2. Sentencing enhancements
• 3. What are some crimes that will get a defendant life without parole?
• 4. Is there an appeal process or way to be released from prison?
  • 4.1. Commutation
  • 4.2. Appeal
  • 4.3. Habeas Corpus Petition

1. What is the legal definition of life without parole in California?

Life without parole is a sentence for a crime that includes a life in prison term without the possibility of a parole hearing.

LWOP sentencing is different from the death penalty. A death sentence means a defendant is sentenced to death by execution. LWOP means that a guilty person will spend the rest of his life in prison and will eventually die in prison. But this death will be by natural causes and not by execution.

Please note that all sentences in the California criminal justice system are subject to clemency, or pardoning, from the governor.

2. When is LWOP imposed?

Whether or not life without parole is imposed is mainly determined by:

1. the statute for a particular crime, and/or
2. sentencing enhancement statutes.

2.1. Statute

Please note that some California statutes set forth the prison sentence that a defendant may receive if he is guilty of a given crime. This sentence could include LWOP.

For example, California Penal Code 190 PC sets forth the possible punishment if a defendant is guilty of first-degree murder. This statute states:

“Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.”¹

Given this language, a judge could sentence a party guilty of murder to LWOP if he/she believes the sentence is justified by the facts of the case.

2.2. Sentencing Enhancements

Some California statutes are known as sentencing enhancement statutes. This means they impose harsher sentences for a crime if certain facts take place in the commission of that offense. And, certain sentencing enhancement statutes impose life without parole if specific circumstances happen when a crime is committed.

For example, Penal Code 667.61 is California’s “One Strike” sentencing enhancement statute. Depending on the facts of a case, PC 667.61 could extend a sentence by:

• 15 years,
• 25 years, or
• by life in prison.²

To see how this works, consider a defendant that is guilty of sexual penetration, per California Penal Code 289. If the defendant also tortured the victim while committing the crime of sexual penetration, PC 667.61 says that the defendant’s ultimate sentence could be extended by 25 years to lwop.³

Some other California sentencing enhancement statutes that can impose life with parole include:

• 10-20-life: use a gun and you’re done law (Penal Code 12022.53), and
• the State’s gang sentencing enhancement law (Penal Code 186.22).

3. What are some crimes that will get a defendant life without parole?

Under California sentencing laws, some crimes that can lead to life without parole sentencing are:

• first-degree murder, per Penal Code 187,
• felony-murder, per Senate Bill 1437,
• rape, per Penal Code 261, if the defendant had a prior conviction of rape,
• sexual penetration, per Penal Code 289, if the defendant tortured the victim while committing the crime,
• lewd or lascivious acts, per Penal Code 288, if the defendant committed the crime during the commission of a burglary, and
• spousal rape, per Penal Code 262, if the defendant inflicted great bodily injury on the victim in the commission of the offense.

Note that there is a growing justice reform and human rights movement to end life without parole. Former Governor Jerry Brown ended LWOP for juveniles. And Drop LWOP is urging Governor Gavin Newsom to end LWOP for good.

4. Is there an appeal process or way to be released from prison?

There are three things a prisoner can do to challenge a sentence of LWOP that a court has already imposed. These are:

1. petition the governor for a commutation,
2. file an appeal,
3. bring a writ of habeas corpus petition.

4.1. Commutation

Inmates currently serving a jail or prison sentence in California can petition to have the governor commute their sentence. A commutation is a type of clemency, or pardon, that does not change or reverse a finding of guilt. But it reduces or eliminates a prisoner’s sentence.

Commutation of a sentence is a rare form of clemency.⁴ It is usually granted only where it is apparent that a sentence was too harsh because of:

• the prisoner’s young age at the time he committed his offense,
• evidence of intimate partner battering or other abuse, and/or
• laws that were too harsh at the time of sentencing.

As noted above, all sentences in California are subject to clemency from the governor. However, no California governor has ever granted clemency to a prisoner serving a life without parole sentence.

4.2. Appeal

An appeal is a request for a higher court (that is, an appellate court) to review a decision of a lower court (that is, the Superior Court, frequently referred to as the trial court). An appeal is not a new trial. The appellate court does not:

• retry a case,
• examine new evidence, or
• accept testimony from witnesses.

The only job of the appellate court is to review the proceedings that took place in the trial court to determine if there were any legal errors that substantially affected the rights of a party.

On appeal, the appellate court can overturn a conviction or sentence if it determines two things. These are:

1. that the trial court committed some type of legal error, and,
2. that the error “prejudiced” a party.

“Prejudice” is shown when there is a reasonable probability that the legal error made a difference in the outcome of the case.

4.3. Habeas Corpus Petition

In California, anyone who is in prison can bring a writ of habeas corpus petition (“HCP”) to challenge their imprisonment or the conditions under which they’re serving their sentence.⁵

A California writ of habeas corpus is supposed to be what the law calls an “extraordinary remedy” – that is, it is supposed to be used only in extreme and unusual circumstances.⁶

As a general rule, a prisoner cannot file a petition for habeas corpus unless he has done something that judges call “exhausting one’s remedies.” This means a party must file all possible appeals of a California criminal petition before bringing an HCP.⁷

There are no strict deadlines for filing a habeas corpus petition…as long as it is filed while a party is in custody. However, a prisoner cannot delay filing a habeas corpus petition for too long. If he does, he will have to justify the delay in his petition.

For additional help…

If you or a loved one has been sentenced to life in prison without the possibility of parole, we invite you to contact us for a free consultation. We can be reached 24/7. We serve clients in Los Angeles and throughout California.

See our related articles on resentencing and Parole Board (lifer) hearings.

Also visit the California Department of Corrections and Rehabilitation (CDCR) official site.

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