Skip to content
Name: In re Kirchner
Case #: D067920
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/23/2016
Subsequent History: Review granted 5/18/2016: S233508

For inmates who have been incarcerated at least 15 years, availability of recall and resentencing pursuant to Penal Code section 1170, subdivision (d)(2) is an adequate remedy for a violation of Miller v. Alabama (2012) 567 U.S. ___. Kirchner was convicted of a first degree special circumstance murder that he committed when he was 16 and was sentenced to LWOP. He filed a writ of habeas corpus contending that under Miller and People v. Gutierrez (2014) 58 Cal.4th 1354, his sentence violated the Eighth Amendment because the court imposed LWOP without taking into consideration the factors set forth in those cases. The trial court agreed and granted relief, rejecting the Attorney General’s argument that Miller and Gutierrez could not be applied retroactively. The People appealed. Held: Reversed with directions. In Montgomery v. Louisiana (2016) 577 U.S. __ , the U.S. Supreme Court recently held that Miller was retroactive and for that reason individuals like Kirchner, whose judgments are final, are still entitled to its benefits. But the Court in Montgomery recognized that states may cure Miller violations by simply permitting defendants like Kirchner “to be considered for parole” rather than resentencing them in compliance with Miller. Section 1170, subdivision (d)(2) is such a cure. It permits an inmate serving an LWOP sentence for a crime committed while he or she was a juvenile to file a petition in the sentencing court for recall and resentencing after serving 15 years of the LWOP sentence. However, at both the trial court’s review of the sufficiency of the section 1170, subdivision (d)(2) petition and at any hearing ordered thereafter, the People bear the burden, as they would at any initial sentencing under Miller and Gutierrez, of showing that the defendant is one of the rare incorrigible criminals for whom no possibility of parole should be provided.

The full opinion is available on the court’s website here: