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Name: In re Kirchner
Case #: S233508
Court: CA Supreme Court
District CalSup
Opinion Date: 04/24/2017

The availability of recall and resentencing pursuant to Penal Code section 1170, subdivision (d)(2) does not provide an adequate remedy at law for Miller error that would displace habeas corpus proceedings in this context. Kirchner was convicted of a special circumstance murder that he committed when he was 16 years old, and was sentenced to LWOP. He filed a writ petition contending that under Miller v. Alabama (2012) 567 U.S. ___, and People v. Gutierrez (2014) 58 Cal.4th 1354, his sentence violated the Eighth Amendment because the trial court failed to consider the “distinct attributes of youth” factors enunciated in those cases. The trial court granted relief. The People appealed. The Court of Appeal reversed, finding the resentencing provisions of section 1170, subdivision (d)(2), were an adequate remedy at law, thus precluding the availability of writ relief. Review was granted. Held: Reversed. After analyzing recent cases addressing the cruel and unusual punishment of juvenile offenders, and section 1170, subdivision (d)(2), the court here determined that the procedure set forth in section 1170, subdivision (d)(2) is not adequate to remedy Miller error. Section 1170, subdivision (d)(2) permits an inmate serving an LWOP sentence for a crime committed while he was a minor to petition for recall of his sentence and resentencing after serving 15 years of his sentence. This relief is unavailable to a defendant who tortured his victim, or where the victim was a public safety official, law enforcement officer, or firefighter. Further, section 1170 anticipates the lawfulness of an LWOP sentence subject to recall under its terms and does not mandate consideration of all of the Miller factors as part of the resentencing inquiry. It has pleading requirements that could exclude certain juvenile offenders who are serving sentences that contravene Miller. Because section 1170, subdivision (d)(2) does not constitute an adequate remedy for Miller error, habeas corpus relief is therefore available.

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