Juvenile nonhomicide offenders who were originally sentenced to LWOP can petition for recall of their sentences under Penal Code section 1170, subdivision (d)(2) even if their LWOP sentences were reduced pursuant to Graham v. Florida (2010) 560 U.S. 48. In 1993, Lopez and Chacon were sentenced to LWOP for an aggravated kidnapping they committed when they were 16 years old. They filed habeas petitions after the U.S. Supreme Court decided Graham, which held that the Eighth Amendment barred the imposition of LWOP on juvenile nonhomicide offenders. The trial court granted their petitions and reduced the LWOP sentences to life with the possibility of parole. Thereafter, Lopez and Chacon filed petitions to recall their sentences under section 1170, subdivision (d)(2), which the trial court granted, resulting in both being released on probation. The People appealed, arguing that recall was unavailable under section 1170 because Lopez and Chacon were no longer serving LWOP terms. Held: Affirmed. Section 1170, subdivision (d)(2) was enacted in response to Graham and it provides that when a defendant “who was under 18 years of age at the commission of the offense for which the defendant was sentenced to imprisonment for [LWOP] has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.” While the statute appears to contemplate that an LWOP term be in effect, and Lopez and Chacon’s LWOP terms were no longer in effect by virtue of Graham, it is unlikely that the Legislature anticipated that individuals would obtain relief under Graham before section 1170, subdivision (d)(2) was enacted. Furthermore, preventing a juvenile nonhomicide offender from filing a recall petition because he exercised his constitutional rights under Graham is akin to punishing him for exercising a protected right.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B256146.PDF