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In re Kirchner

Supreme Court of California

April 24, 2017

In re KRISTOPHER KIRCHNER on Habeas Corpus..

         San Diego County Super. Ct. Nos. HC21804, CRN26291 Ct.App. 4/1 D067920 Louis R. Hanoian Judge

          Randy Mize, Chief Deputy Public Defender, Abbey J. Noel and Troy Anthony Britt, Deputy Public Defenders, for Petitioner Kristopher Kirchner.

          Elizabeth M. Calvin; DLA Piper and Steven S. Kimball for Human Rights Watch as Amicus Curiae on behalf of Petitioner Kristopher Kirchner.

          Michael T. Risher and L. Richard Braucher for American Civil Liberties Union of Northern California and Pacific Juvenile Defender Center as Amici Curiae on behalf of Petitioner Kristopher Kirchner.

          Bonnie M. Dumanis, District Attorney, James E. Atkins, Jennifer Kaplan and Craig E. Fisher, Deputy District Attorneys, for Respondent the People.

          Mark Zahner and Kelli Catlett for California District Attorneys Association as Amicus Curiae on behalf of Respondent the People.

          CANTIL-SAKAUYE, C. J.

         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)), [1] 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 April 1993, petitioner and another juvenile robbed and murdered the owner of a gun store. Petitioner beat the victim to death with a metal pipe. After being found unfit for juvenile court proceedings (see Welf. & Inst. Code, § 707) petitioner was charged and tried as an adult. Following a bench trial, petitioner was convicted of first degree murder (§ 187, subd. (a)), robbery (§ 211), and burglary (§ 459). The court also found true enhancement allegations that petitioner personally used a deadly weapon (former § 12022, subd. (b)) and personally inflicted great bodily injury (former § 12022.7), and the special circumstances that petitioner committed the murder while engaged in a burglary and a robbery (§ 190.2, subd. (a)(17)).

         Prior to sentencing, petitioner was found amenable to the treatment and training services offered by the California Youth Authority (now the Div. of Juvenile Justice). The referral report advised that petitioner “has the physical and mental capacity to change” and “there is a reasonable possibility that [petitioner's] likelihood to commit criminal behavior can be significantly reduced or eliminated within the confinement time or jurisdiction time available.” The court declined to follow this recommendation in pronouncing sentence and described petitioner as a “clear demonstration of a person whose life has turned to complete and ultimate violence.” For the murder with its attendant allegations, the court sentenced petitioner to life without parole, plus one year for the weapon enhancement. The sentences for the robbery and burglary counts, with their associated enhancements, were stayed.

         Petitioner filed a notice of appeal, but he did not file an opening brief in the Court of Appeal. His appeal was therefore dismissed.

         The present petition for writ of habeas corpus was filed in October 2014. Through this collateral proceeding, petitioner attacks his sentence of life without parole on the ground that it was imposed without appropriate consideration of the array of factors specified in Miller, supra, 567 U.S.___ [132 S.Ct. 2455]. Petitioner seeks a resentencing hearing in which these factors will be properly taken into account, potentially leading to a new sentence that will incorporate an opportunity for parole.

         Following a review of the petition, the superior court issued an order to show cause. In a return to the order to show cause, the People acknowledged that “the record does not show that the judge considered all the factors relating to petitioner's youth as now required by Miller and Gutierrez.” The People also conceded, at first, that petitioner was entitled to resentencing, but reserved the right to argue for reimposition of a sentence of life without parole at a new sentencing hearing. In a supplemental filing, however, the People objected that Miller did not apply retroactively. The superior court rejected the People's retroactivity argument, granted the petition for writ of habeas corpus, and remanded the matter to the trial court for resentencing.

         The People appealed. After oral argument, the Court of Appeal requested and received supplemental briefing on the relationship between the section 1170(d)(2) recall of sentence and resentencing procedure and language in Montgomery v. Louisiana (2016) 577 U.S. __[136 S.Ct. 718] (Montgomery) providing that “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. [Citation.] Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity - and who have since matured - will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.”[2] (Montgomery, at p. ___ [136 S.Ct. at p. 736].)

         The Court of Appeal's ensuing decision held that habeas corpus relief was unavailable to petitioner because section 1170(d)(2) provided an adequate remedy at law. It determined that “where, as is the case in California, a legislature has provided inmates serving life sentences for crimes committed while they were juveniles with an opportunity to obtain a parole hearing, the state has remedied any constitutional defect in the inmate's sentence.” The Court of Appeal acknowledged that “section 1170, subdivision (d)(2) does not provide an inmate with a parole hearing” as a certain matter; rather, the inmate must petition for recall of sentence and resentencing to engage a process that then might lead to a sentence that incorporates an opportunity for parole. Nevertheless, the Court of Appeal determined that section 1170(d)(2) “provides [the inmate] with all the rights set forth in Miller and Montgomery.”

         The Court of Appeal conceded that “where a prisoner is serving [a]... sentence [of life without parole] for a crime committed while he or she was a juvenile, and at the time of his or her sentence the trial judge failed to employ the procedures required by Miller, his or her sentence is presumptively unlawful and he or she is entitled to relief from it.” For this reason, it determined that “a petition under section 1170, subdivision (d)(2) will meet the requirements of Miller and Montgomery, only if, at both the trial court's review of the sufficiency of the petition [citation] and at any hearing ordered thereafter, the People bear the burden, as ...

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