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Name: In re Willover
Case #: H040757
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/16/2015

Juvenile sentencing ruling in Miller v. Alabama applies retroactively to cases on collateral review. Willover was 17 years old when he committed two first degree murders with special circumstances and other offenses. He was sentenced to LWOP in 1999. In 2014, Willover filed a petition for writ of habeas corpus, arguing that he was entitled to resentencing because the trial court improperly presumed that LWOP was the appropriate sentence for the murders, in violation of Miller v. Alabama (2012) 132 S.Ct. 2455, which held that mandatory LWOP for those under the age of 18 at the time of their crimes was cruel and unusual punishment. Held: Sentence vacated and case remanded. Because Willover was sentenced at a time when the prevailing case law held that Penal Code section 190.5, subdivision (b) established a presumption in favor of LWOP for juvenile offenders who were 16 years or older when they committed special circumstance murder, there was a significant risk that he faced a punishment which the law cannot impose on him. Under Miller, before a sentencing court can impose LWOP on a juvenile offender, it must consider the offender’s youth and its attendant characteristics. Here, no such consideration was made by the sentencing court. Miller’s new rule is substantive, and therefore retroactive on collateral review, because it effectively altered the range of conduct or class of persons punished by barring LWOP sentences without a case-specific consideration of the offender’s situation or youth. The Court of Appeal also concluded that the recall procedure provided by Penal Code section 1170, subdivision (d)(2) does not provide a substitute for the resentencing procedures mandated by Miller.