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The recall provisions of Penal Code section 1170(d)(2) do not satisfy Miller

April 24, 2017 Leave a comment

The recall provisions of Penal Code section 1170(d)(2) do not satisfy Miller

In Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller), the United States Supreme Court ruled that under the Eighth Amendment to the United States Constitution “a state may authorize its courts to impose [a sentence of] life without parole on a juvenile homicide offender [only] when the penalty is discretionary and when the sentencing court’s discretion is properly exercised . . . .”  (People v. Gutierrez (2014) 58 Cal.4th 1354, 1379 (Gutierrez).)  The proper exercise of discretion in this context requires the sentencing court to consider relevant evidence as may exist concerning factors that Miller identified as bearing on the “distinctive attributes of youth” and how these attributes “diminish the penological justifications for imposing the harshest sentences on juvenile offenders.”  (Miller, at p. ___ [132 S.Ct. at p. 2465]; see also Gutierrez, at pp. 1388-1390.)

Petitioner Kristopher Kirchner committed murder as a 16 year old, for which he is serving a sentence of life without the possibility of parole (hereinafter life without parole).  The People have conceded that in imposing this sentence, the sentencing court did not give due consideration to the Miller factors.  The judgment in petitioner’s original criminal proceedings became final more than two decades ago, when petitioner did not pursue his appeal.  Through this proceeding for a writ of habeas corpus, petitioner seeks a resentencing hearing at which the court would properly integrate the Miller factors into its sentencing calculus, potentially leading to a new sentence that would offer the possibility of parole.  After the superior court granted habeas corpus relief, the Court of Appeal reversed.  The Court of Appeal determined that the existence of a statutory mechanism, Penal Code section 1170, subdivision (d)(2) (hereafter section 1170(d)(2)), through which petitioner could seek recall of his sentence and resentencing to a term of life with the opportunity for parole, remedied any constitutional defect in petitioner’s sentence, and therefore precluded habeas corpus relief.

We hold that section 1170(d)(2) does not provide an adequate remedy at law for Miller error, and that petitioner may obtain a Miller resentencing as a form of habeas corpus relief.  Section 1170(d)(2) was not designed to address Miller error, and its recall of sentence and resentencing procedure is not well suited to remedy the constitutional error of which petitioner complains.  Specifically, as a process designed to revisit lawful sentences of life without parole, section 1170(d)(2) limits the availability of resentencing under its terms, and the resentencing inquiry it prescribes does not necessarily account for the full array of Miller factors in the manner that a proper resentencing under Miller would.  Even though petitioner conceivably could avail himself of the section 1170(d)(2) process, we conclude that his claim of constitutional error need not be pursued, either exclusively or in the first instance, through this statutory scheme.  Because petitioner cannot be required to exhaust the section 1170(d)(2) procedure prior to seeking habeas corpus relief from his sentence, let alone accept section 1170(d)(2) as his exclusive remedy, we reverse the judgment of the Court of Appeal.

In re Kirchner


Coming Monday

April 21, 2017 Leave a comment

Coming Monday from the Cal. Supremes:

S233508 (D067920; San Diego County Superior Court – HC21807, CRN26291)
Argued in Sacramento 2-07-17

This case presents the following issue: When a juvenile offender seeks relief from a life-without-parole sentence that has become final, does Penal Code section 1170, subdivision (d)(2), which permits most juvenile offenders to petition for recall of a life-without-parole sentence imposed pursuant to Penal Code section 190.5 after 15 years, provide an adequate remedy under Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455], as recently construed in Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718]?

No new cases tomorrow

April 19, 2017 Leave a comment

The Cal. Supremes will issue no new cases tomorrow.

The Cal. Supremes today affirmed another death penalty case

April 17, 2017 Comments off

The Cal. Supremes today affirmed another death penalty case:

A jury convicted defendant, Ruben Becerrada, of the first degree murder of
Maria Arevalo with the special circumstances of killing a witness, murder in the
commission of kidnapping, and lying in wait. As to the murder, it found true a
weapon enhancement allegation. It also found defendant guilty of rape, forcibly
dissuading a witness, and kidnapping. After a penalty trial, the jury returned a
verdict of death. The court denied the automatic motion to modify the verdict and
imposed a judgment of death. This appeal is automatic. We reverse the lying-inwait
special-circumstance finding for insufficient evidence, but otherwise affirm
the judgment.

People v. Becerrada


Coming Monday

April 14, 2017 Comments off

Coming Monday from the Cal. Supremes:

S170957 (Los Angeles County Superior Court – LA033909)
Argued in Sacramento 2-07-17

This matter is an automatic appeal from a judgment of death.

No new cases tomorrow

April 12, 2017 Comments off

The Cal. Supremes will issue no new cases tomorrow, Thursday.

No new criminal cases Monday

April 7, 2017 Comments off

The Cal. Supremes will issue no new criminal cases Monday.