Miller v. Alabama (2012) 567 U.S. ___ is fully retroactive and Penal Code section 1170, subdivision (d)(2) does not provide an adequate statutory remedy for Miller error. In 1997, Berg was sentenced to LWOP for a special circumstance murder he committed when he was 17. In 2014, he filed a habeas petition arguing that his LWOP sentence was unconstitutional under Miller v. Alabama (2012) 567 U.S. ___, which held that mandatory LWOP sentences for minors violate the Eighth Amendment and that, to impose an LWOP term, a court must take into account the offender’s youth. The trial court granted Berg’s habeas petition, vacated the LWOP sentence, and ordered resentencing. The People appealed, arguing, inter alia, that Miller was not retroactive, that Berg’s LWOP sentence complied with Miller, and that section 1170, subdivision (d)(2) cured any Miller error. Held: Affirmed. In Montgomery v. Louisiana (2016) 577 U.S. ___, the court held that Miller was fully retroactive (resolving the People’s first contention) but it also held that a “State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than resentencing them” (providing authority for the People’s other contention). As an example of such a remedy, the court discussed a Wyoming statute that provides parole eligibility for juvenile homicide offenders after 25 years. But contrary to the People’s contention, section 1170, subdivision (d)(2) does not cure a Miller violation. It is dissimilar from the Wyoming statute in that it does not guarantee every juvenile homicide offender an opportunity for parole; it excludes offenders who committed certain types of murder and allows exclusion of others based on factors that do not mirror those set forth in Miller. [Editor’s Note: The court disagreed with In re Kirchner (2016) 244 Cal.App.4th 1398, review granted 5/18/2016 (S233508/D067920).]

Trial court did not exercise its sentencing discretion in conformity with Miller. The People also argued that before sentencing Berg to LWOP, the trial court took into account his youth and attendant characteristics, complying with Miller. The Court of Appeal disagreed. While the trial court did consider Berg’s youth in weighing factors in aggravation and mitigation, it did not consider the ultimate question required by Miller: whether the crime reflects transient immaturity or irreparable corruption.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068557.PDF