Filed 4/24/17



           IN THE SUPREME COURT OF CALIFORNIA


                                    )
                                    )
                                    )                             S233508
In re KRISTOPHER KIRCHNER           )
                                    )                      Ct.App. 4/1 D067920
         on Habeas Corpus.          )
                                    )                        San Diego County
                                    )              Super. Ct. Nos. HC21804, CRN26291
____________________________________)


        In Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller), the United
States Supreme Court ruled that under the Eighth Amendment to the United States
Constitution ―a state may authorize its courts to impose [a sentence of] life without parole
on a juvenile homicide offender [only] when the penalty is discretionary and when the
sentencing court‘s discretion is properly exercised . . . .‖ (People v. Gutierrez (2014)
58 Cal.4th 1354, 1379 (Gutierrez).) The proper exercise of discretion in this context
requires the sentencing court to consider relevant evidence as may exist concerning
factors that Miller identified as bearing on the ―distinctive attributes of youth‖ and how
these attributes ―diminish the penological justifications for imposing the harshest
sentences on juvenile offenders.‖ (Miller, at p. ___ [132 S.Ct. at p. 2465]; see also
Gutierrez, at pp. 1388-1390.)
        Petitioner Kristopher Kirchner committed murder as a 16 year old, for which he is
serving a sentence of life without the possibility of parole (hereinafter life without
parole). The People have conceded that in imposing this sentence, the sentencing court
did not give due consideration to the Miller factors. The judgment in petitioner‘s original



                                          1
criminal proceedings became final more than two decades ago, when petitioner did not
pursue his appeal. Through this proceeding for a writ of habeas corpus, petitioner seeks a
resentencing hearing at which the court would properly integrate the Miller factors into
its sentencing calculus, potentially leading to a new sentence that would offer the
possibility of parole. After the superior court granted habeas corpus relief, the Court of
Appeal reversed. The Court of Appeal determined that the existence of a statutory
mechanism, Penal Code section 1170, subdivision (d)(2) (hereafter section 1170(d)(2)),1
through which petitioner could seek recall of his sentence and resentencing to a term of
life with the opportunity for parole, remedied any constitutional defect in petitioner‘s
sentence, and therefore precluded habeas corpus relief.
       We hold that section 1170(d)(2) does not provide an adequate remedy at law for
Miller error, and that petitioner may obtain a Miller resentencing as a form of habeas
corpus relief. Section 1170(d)(2) was not designed to address Miller error, and its recall
of sentence and resentencing procedure is not well suited to remedy the constitutional
error of which petitioner complains. Specifically, as a process designed to revisit lawful
sentences of life without parole, section 1170(d)(2) limits the availability of resentencing
under its terms, and the resentencing inquiry it prescribes does not necessarily account for
the full array of Miller factors in the manner that a proper resentencing under Miller
would. Even though petitioner conceivably could avail himself of the section 1170(d)(2)
process, we conclude that his claim of constitutional error need not be pursued, either
exclusively or in the first instance, through this statutory scheme. Because petitioner
cannot be required to exhaust the section 1170(d)(2) procedure prior to seeking habeas
corpus relief from his sentence, let alone accept section 1170(d)(2) as his exclusive
remedy, we reverse the judgment of the Court of Appeal.



1      Statutory references are to the Penal Code unless otherwise indicated.


                                          2
                I. FACTUAL AND PROCEDURAL BACKGROUND
       In April 1993, petitioner and another juvenile robbed and murdered the owner of a
gun store. Petitioner beat the victim to death with a metal pipe. After being found unfit
for juvenile court proceedings (see Welf. & Inst. Code, § 707) petitioner was charged and
tried as an adult. Following a bench trial, petitioner was convicted of first degree murder
(§ 187, subd. (a)), robbery (§ 211), and burglary (§ 459). The court also found true
enhancement allegations that petitioner personally used a deadly weapon (former
§ 12022, subd. (b)) and personally inflicted great bodily injury (former § 12022.7), and
the special circumstances that petitioner committed the murder while engaged in a
burglary and a robbery (§ 190.2, subd. (a)(17)).
       Prior to sentencing, petitioner was found amenable to the treatment and training
services offered by the California Youth Authority (now the Div. of Juvenile Justice).
The referral report advised that petitioner ―has the physical and mental capacity to
change‖ and ―there is a reasonable possibility that [petitioner‘s] likelihood to commit
criminal behavior can be significantly reduced or eliminated within the confinement time
or jurisdiction time available.‖ The court declined to follow this recommendation in
pronouncing sentence and described petitioner as a ―clear demonstration of a person
whose life has turned to complete and ultimate violence.‖ For the murder with its
attendant allegations, the court sentenced petitioner to life without parole, plus one year
for the weapon enhancement. The sentences for the robbery and burglary counts, with
their associated enhancements, were stayed.
       Petitioner filed a notice of appeal, but he did not file an opening brief in the Court
of Appeal. His appeal was therefore dismissed.
       The present petition for writ of habeas corpus was filed in October 2014. Through
this collateral proceeding, petitioner attacks his sentence of life without parole on the
ground that it was imposed without appropriate consideration of the array of factors
specified in Miller, supra, 567 U.S. ___ [132 S.Ct. 2455]. Petitioner seeks a resentencing

                                          3
hearing in which these factors will be properly taken into account, potentially leading to a
new sentence that will incorporate an opportunity for parole.
       Following a review of the petition, the superior court issued an order to show
cause. In a return to the order to show cause, the People acknowledged that ―the record
does not show that the judge considered all the factors relating to petitioner‘s youth as
now required by Miller and Gutierrez.‖ The People also conceded, at first, that petitioner
was entitled to resentencing, but reserved the right to argue for reimposition of a sentence
of life without parole at a new sentencing hearing. In a supplemental filing, however, the
People objected that Miller did not apply retroactively. The superior court rejected the
People‘s retroactivity argument, granted the petition for writ of habeas corpus, and
remanded the matter to the trial court for resentencing.
       The People appealed. After oral argument, the Court of Appeal requested and
received supplemental briefing on the relationship between the section 1170(d)(2) recall
of sentence and resentencing procedure and language in Montgomery v. Louisiana (2016)
577 U.S. ___ [136 S.Ct. 718] (Montgomery) providing that ―[a] State may remedy a
Miller violation by permitting juvenile homicide offenders to be considered for parole,
rather than by resentencing them. [Citation.] Allowing those offenders to be considered
for parole ensures that juveniles whose crimes reflected only transient immaturity — and
who have since matured — will not be forced to serve a disproportionate sentence in
violation of the Eighth Amendment.‖2 (Montgomery, at p. ___ [136 S.Ct. at p. 736].)
       The Court of Appeal‘s ensuing decision held that habeas corpus relief was
unavailable to petitioner because section 1170(d)(2) provided an adequate remedy at law.
It determined that ―where, as is the case in California, a legislature has provided inmates

2      As discussed in more detail post, Montgomery, supra, 577 U.S. ___ [136 S.Ct.
718] made this observation after determining that Miller operated retroactively. (Id., at
p. ___ [136 S.Ct. at p. 736].) Montgomery‘s holding on retroactivity resolved the issue
on which the People originally premised their appeal.


                                          4
serving life sentences for crimes committed while they were juveniles with an
opportunity to obtain a parole hearing, the state has remedied any constitutional defect in
the inmate‘s sentence.‖ The Court of Appeal acknowledged that ―section 1170,
subdivision (d)(2) does not provide an inmate with a parole hearing‖ as a certain matter;
rather, the inmate must petition for recall of sentence and resentencing to engage a
process that then might lead to a sentence that incorporates an opportunity for parole.
Nevertheless, the Court of Appeal determined that section 1170(d)(2) ―provides [the
inmate] with all the rights set forth in Miller and Montgomery.‖
       The Court of Appeal conceded that ―where a prisoner is serving [a] . . . sentence
[of life without parole] for a crime committed while he or she was a juvenile, and at the
time of his or her sentence the trial judge failed to employ the procedures required by
Miller, his or her sentence is presumptively unlawful and he or she is entitled to relief
from it.‖ For this reason, it determined that ―a petition under section 1170, subdivision
(d)(2) will meet the requirements of Miller and Montgomery, only if, at both the trial
court‘s review of the sufficiency of the petition [citation] 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 individuals for
whom no possibility of parole should be provided.‖
       We granted review.3
                                    II. DISCUSSION
       In determining whether the Court of Appeal erred in casting section 1170(d)(2) as
an adequate remedy at law that precludes habeas corpus relief for Miller error, we first


3      Shortly after the Court of Appeal filed its decision, another panel of the Fourth
Appellate District, Division One, concluded that section 1170(d)(2) did not provide an
adequate remedy for Miller error, expressly disagreeing with the contrary conclusion
reached by the Court of Appeal in this matter. (People v. Berg (2016) 247 Cal.App.4th
418, 432-442, review granted July 27, 2016.)


                                          5
review the United States Supreme Court‘s recent jurisprudence concerning sentences of
life without parole for juvenile offenders. We then turn to section 1170(d)(2) and analyze
that provision‘s bearing upon habeas corpus proceedings that seek a proper resentencing
under Miller.
       A.       Recent Supreme Court Jurisprudence
       The Eighth Amendment to the United States Constitution prohibits the infliction
of ―cruel and unusual punishments.‖ (U.S. Const., 8th Amend.) The ―cruel and unusual‖
standard is construed by reference ―to ‗the evolving standards of decency that mark the
progress of a maturing society‘ to determine which punishments are so disproportionate
as to be cruel and unusual.‖ (Roper v. Simmons (2005) 543 U.S. 551, 561 (Roper),
quoting Trop v. Dulles (1958) 356 U.S. 86, 101 (plur. opn. of Warren, C. J.).)
       Some punishment is cruel and unusual as it pertains to juvenile offenders, even
though the same sanction may not run afoul of the Eighth Amendment when applied to
adults. In Roper, supra, 543 U.S. 551, the United States Supreme Court determined that
the Eighth Amendment categorically prohibited imposition of the death penalty on
juvenile offenders. (Roper, at p. 568.) In reaching this conclusion, the court observed
that ―[t]hree general differences between juveniles under 18 and adults demonstrate that
juvenile offenders cannot with reliability be classified among the worst offenders.‖ (Id.,
at p. 569.) First, ― ‗[a] lack of maturity and an underdeveloped sense of responsibility are
found in youth more often than in adults and are more understandable among the young.
These qualities often result in impetuous and ill-considered actions and decisions.‘ ‖
(Ibid., quoting Johnson v. Texas (1993) 509 U.S. 350, 367.) A ―second area of difference
is that juveniles are more vulnerable or susceptible to negative influences and outside
pressures, including peer pressure.‖ (Ibid.) And third, ―the character of a juvenile is not
as well formed as that of an adult. The personality traits of juveniles are more transitory,
less fixed.‖ (Id., at p. 570.) Put together, ―These differences render suspect any
conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles

                                          6
to immature and irresponsible behavior means ‗their irresponsible conduct is not as
morally reprehensible as that of an adult.‘ [Citation.] Their own vulnerability and
comparative lack of control over their immediate surroundings mean juveniles have a
greater claim than adults to be forgiven for failing to escape negative influences in their
whole environment. [Citation.] The reality that juveniles still struggle to define their
identity means it is less supportable to conclude that even a heinous crime committed by
a juvenile is evidence of irretrievably depraved character. From a moral standpoint it
would be misguided to equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor‘s character deficiencies will be reformed.‖ (Ibid.)
       After its decision in Roper made juvenile offenders ineligible for the death
penalty, the high court has on several occasions considered the relationship between the
Eighth Amendment‘s prohibition of ―cruel and unusual punishments‖ and sentences of
life without parole for this same class of defendants. In Graham v. Florida (2010)
560 U.S. 48 (Graham), the court held that the Eighth Amendment prohibits sentences of
life without parole for juvenile offenders who have committed crimes other than
homicides. The court reasoned that ―[l]ife without parole is an especially harsh
punishment for a juvenile‖ (Graham, at p. 70), and the imposition of such a sentence for
a nonhomicide crime could not be justified by retribution, deterrence, incapacitation, or
rehabilitation interests. (Id., at pp. 71-75.) Although ―[a] State is not required to
guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,‖
because ―[t]hose who commit truly horrifying crimes as juveniles may turn out to be
irredeemable,‖ the court held that the Eighth Amendment prohibits ―[s]tates from making
the judgment at the outset‖ that juvenile offenders convicted of nonhomicide crimes ―will
never be fit to reenter society.‖ (Id., at p. 75.) Therefore, the court directed that these
defendants be provided ―some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.‖ (Ibid.)



                                           7
       Two years later, in Miller, supra, 567 U.S. ___ [132 S.Ct. 2455], the court
considered whether the Eighth Amendment prohibits sentencing schemes that mandate a
life without parole sentence for all juvenile offenders convicted of a specific homicide
offense. In finding these sentencing schemes unconstitutional, Miller condemned them
as impermissibly ―preclud[ing] a sentencer from taking account of an offender‘s age and
the wealth of characteristics and circumstances attendant to it.‖ (Id., at p. ___ [132 S.Ct.
at p. 2467].) Because the 14-year-old defendants in Miller had been sentenced pursuant
to mandatory sentencing laws, the court declined to address their alternative argument
that the Eighth Amendment categorically prohibits sentences of life without parole for all
juvenile offenders, or at least those 14 years of age or younger at the time of their crimes.
(Id., at p. ___ [132 S.Ct. at p. 2469].) Miller cautioned, however, that ―given all we have
said . . . about children‘s diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to this harshest possible penalty will
be uncommon. That is especially so because of the great difficulty . . . of distinguishing
at this early age between ‗the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.‘ [Citations.] Although we do not foreclose a sentencer‘s ability to make that
judgment in homicide cases, we require it to take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.‖ (Ibid.)
       In its analysis, Miller, supra, 567 U.S. ___ [132 S.Ct. 2455] provided a ―recap‖ of
factors relevant to the imposition of ―a State‘s harshest penalties‖ upon a juvenile
offender. (Id., at p. ___ [132 S.Ct. at p. 2468].) These factors provide a framework for
sentencing courts to ―take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.‖ (Id., at
p. ___ [132 S.Ct. at p. 2469].) As we explained in Gutierrez, supra, 58 Cal.4th 1354,
under Miller a sentencing court considering a sentence of life without parole for a

                                          8
juvenile offender must consider evidence that may exist regarding (1) ―a juvenile
offender‘s ‗chronological age and its hallmark features — among them, immaturity,
impetuosity, and failure to appreciate risks and consequences‘ ‖; (2) ― ‗the family and
home environment that surrounds [the juvenile] — and from which he cannot usually
extricate himself — no matter how brutal or dysfunctional‘ ‖; (3) ― ‗the circumstances of
the homicide offense, including the extent of [the juvenile defendant‘s] participation in
the conduct and the way familial and peer pressures may have affected him‘ ‖;
(4) ―whether the offender ‗might have been charged and convicted of a lesser offense if
not for incompetencies associated with youth — for example, his inability to deal with
police officers or prosecutors (including on a plea agreement) or his incapacity to assist
his own attorneys‘ ‖; and (5) ―the possibility of rehabilitation.‖ (Id., at pp. 1388-1389,
quoting Miller, 567 U.S. at p. ___ [132 S.Ct. at p. 2468].)
       Most recently, in Montgomery, supra, 577 U.S. ___ [136 S.Ct. 718], the court
clarified that Miller announced a substantive rather than a procedural rule, and therefore
operates retroactively. (Montgomery, 577 U.S. at p. ___ [136 S.Ct. at p. 736].)
Montgomery explained that ―Miller . . . did more than require a sentencer to consider a
juvenile offender‘s youth before imposing life without parole; it established that the
penological justifications for life without parole collapse in light of ‗the distinctive
attributes of youth.‘ [Citation.] Even if a court considers a child‘s age before sentencing
him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a
child whose crime reflects ‗ ―unfortunate yet transient immaturity.‖ ‘ [Citation.]
Because Miller determined that sentencing a child to life without parole is excessive for
all but ‗ ―the rare juvenile offender whose crime reflects irreparable corruption,‖ ‘
[citation], it rendered life without parole an unconstitutional penalty for ‗a class of
defendants because of their status‘ — that is, juvenile offenders whose crimes reflect the
transient immaturity of youth. [Citation.] As a result, Miller announced a substantive
rule of constitutional law. Like other substantive rules, Miller is retroactive because it

                                           9
‗ ―necessarily carr[ies] a significant risk that a defendant‖ ‘ — here, the vast majority of
juvenile offenders — ‗ ―faces a punishment that the law cannot impose on him.‖ ‘
[Citation.]‖ (Montgomery, at p. ___ [136 S.Ct. at p. 734].)
       B.     Section 1170(d)(2)
       Senate Bill No. 9 (2011-2012 Reg. Sess.), the measure that added
subdivision (d)(2) to section 1170, was introduced in the Legislature after Graham, but
before Miller. Like Graham, supra, 560 U.S. 48, Miller, supra, 567 U.S. ___ [132 S.Ct.
2455], and Montgomery, supra, 577 U.S. ___ [136 S.Ct. 718], section 1170(d)(2) was
inspired by concerns regarding sentences of life without parole for juvenile offenders.
(See Assem. Com. on Appropriations, Analysis of Sen. Bill No. 9 (2011-2012 Reg. Sess.)
as amended Aug. 15, 2011, pp. 3-6.)
       As enacted, section 1170(d)(2) provides an avenue for juvenile offenders serving
terms of life without parole to seek recall of their sentences and resentencing to a term
that includes an opportunity for parole.4 This process is unavailable to a defendant
sentenced to life without parole where it was pleaded and proved that the defendant
tortured his or her victim, or that the victim was a public safety official, another law
enforcement officer, or a firefighter. (§ 1170, subd. (d)(2)(A)(ii).)5 An eligible

4       Juveniles sentenced to life without parole presently are ineligible for the ―youth
offender parole hearing[s]‖ under section 3051 that are available to most other juvenile
offenders and defendants under 23 years of age at the time of their controlling offense.
(See § 3051.) In People v. Franklin (2016) 63 Cal.4th 261, we determined that an inmate
eligible for a youth offender parole hearing is not serving the ―functional equivalent‖ of
life without parole, meaning that his or her sentence does not implicate Miller and its
strictures. (People v. Franklin, at pp. 278-280.) Pending legislation would make juvenile
offenders sentenced to life without parole eligible for these hearings in their 25th year of
incarceration. (Sen. Bill No. 394 (2017-2018 Reg. Sess.), as introduced Feb. 15, 2017,
§ 1.)
5       The Legislature amended section 1170(d)(2) in various respects last year.
(Stats. 2016, ch. 867, § 1.1.) These amendments became effective on January 1, 2017.
Our discussion of the section 1170(d)(2) procedure reflects the statute‘s present terms.


                                          10
defendant may file a petition requesting recall and resentencing with the sentencing court
after having been incarcerated for at least 15 years. (Id., subd. (d)(2)(A)(i).) In this
petition, the defendant must describe his or her remorse, relate his or her work toward
rehabilitation, and state that a qualifying circumstance is true.6 (Id., subd. (d)(2)(B).) If
the court finds by a preponderance of the evidence that one or more of the qualifying
circumstances in the petition are true, the court must recall the defendant‘s sentence and
hold a hearing to resentence the defendant. (Id., subd. (d)(2)(E).)
       During this hearing, in deciding whether to resentence the defendant to a term of
imprisonment with the possibility of parole the court ―may consider‖ factors that
―include, but are not limited to, the following: [¶] (i) The defendant was convicted
pursuant to felony murder or aiding and abetting murder provisions of law. [¶] (ii) The
defendant does not have juvenile felony adjudications for assault or other felony crimes
with a significant potential for personal harm to victims prior to the offense for which the
defendant was sentenced to life without the possibility of parole. [¶] (iii) The defendant
committed the offense with at least one adult codefendant. [¶] (iv) Prior to the offense
for which the defendant was sentenced to life without the possibility of parole, the
defendant had insufficient adult support or supervision and had suffered from
psychological or physical trauma, or significant stress. [¶] (v) The defendant suffers from
cognitive limitations due to mental illness, developmental disabilities, or other factors

6      These circumstances consist of: ―(i) The defendant was convicted pursuant
to felony murder or aiding and abetting murder provisions of law. [¶] (ii) The
defendant does not have juvenile felony adjudications for assault or other felony
crimes with a significant potential for personal harm to victims prior to the offense
for which the sentence is being considered for recall. [¶] (iii) The defendant
committed the offense with at least one adult codefendant. [¶] (iv) The defendant
has performed acts that tend to indicate rehabilitation or the potential for
rehabilitation, including, but not limited to, availing himself or herself of
rehabilitative, educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using self-study for self-
improvement, or showing evidence of remorse.‖ (§ 1170, subd. (d)(2)(B)(i)-(iv).)


                                          11
that did not constitute a defense, but influenced the defendant‘s involvement in the
offense. [¶] (vi) The defendant has performed acts that tend to indicate rehabilitation or
the potential for rehabilitation, including, but not limited to, availing himself or herself of
rehabilitative, educational, or vocational programs, if those programs have been available
at his or her classification level and facility, using self-study for self-improvement, or
showing evidence of remorse. [¶] (vii) The defendant has maintained family ties or
connections with others through letter writing, calls, or visits, or has eliminated contact
with individuals outside of prison who are currently involved with crime. [¶] (viii) The
defendant has had no disciplinary actions for violent activities in the last five years in
which the defendant was determined to be the aggressor.‖ (§ 1170, subd. (d)(2)(F).) In
addition, the court may consider ―any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record, provides a statement of
reasons for adopting them, and states why the defendant does or does not satisfy the
criteria.‖ (Id., subd. (d)(2)(I).)
       Upon conducting this assessment, ―The court shall have the discretion to
resentence the defendant in the same manner as if the defendant had not previously been
sentenced, provided that the new sentence, if any, is not greater than the initial sentence.‖
(§ 1170, subd. (d)(2)(G).) If the defendant‘s first section 1170(d)(2) petition does not
result in resentencing to a term of imprisonment with the possibility of parole, he or she
may apply again for section 1170(d)(2) relief after having been committed to custody for
at least 20 years. (Id., subd. (d)(2)(H).) A defendant may file a third petition after
serving 24 years of his or her sentence of life without parole. (Ibid.)
       This court has had one prior opportunity to consider the intersection of the Eighth
Amendment, sentences of life without parole for juvenile offenders, and section
1170(d)(2). In Gutierrez, supra, 58 Cal.4th 1354, we construed section 190.5,
subdivision (b), which provides that the penalty for special circumstance murder, when
committed by a 16 or 17 year old, ―shall be confinement in the state prison for life

                                          12
without the possibility of parole or, at the discretion of the court, 25 years to life.‖
(§ 190.5, subd. (b).) Both defendants in Gutierrez had been convicted of special
circumstance murder for crimes committed as juveniles, and sentenced to life without
parole under section 190.5, subdivision (b). (Gutierrez, at p. 1360.) On appeal, they
argued that their sentences had been skewed by a presumption read into section 190.5,
subdivision (b) by the Courts of Appeal (e.g., People v. Guinn (1994) 28 Cal.App.4th
1130) and trial courts that life without parole was the appropriate penalty for juvenile
offenders convicted of special circumstance murder. (Gutierrez, at pp. 1365, 1368,
1369.)
         In addressing this argument, Gutierrez, supra, 58 Cal.4th 1354, considered and
rejected the People‘s contention that the section 1170(d)(2) process eliminated the
constitutional concerns that otherwise might be associated with reading a presumption in
favor of a life without parole sentence into section 190.5, subdivision (b).7 We explained
that ―[n]either Miller nor Graham indicated that an opportunity to recall a sentence of life
without parole 15 to 24 years into the future would somehow make more reliable or
justifiable the imposition of that sentence and its underlying judgment of the offender‘s
incorrigibility ‗at the outset.‘ ‖ (Gutierrez, supra, 58 Cal.4th at p. 1386, quoting Graham,
supra, 560 U.S. at p. 75.) We also observed that ―the high court in Graham explained
that a juvenile offender‘s subsequent failure to rehabilitate while serving a sentence of
life without parole cannot retroactively justify imposition of the sentence in the first
instance . . . . By the same logic, it is doubtful that the potential to recall a life without
parole sentence based on a future demonstration of rehabilitation can make such a

7      Gutierrez ultimately concluded that such a presumption would generate ―serious
constitutional concerns,‖ and therefore held ―that section 190.5[, subdivision] (b) confers
discretion on the sentencing court to impose either life without parole or a term of 25
years to life on a 16- or 17- year-old juvenile convicted of special circumstance murder,
with no presumption in favor of life without parole.‖ (Gutierrez, supra, 58 Cal.4th at
p. 1387.)


                                           13
sentence any more valid when it was imposed. If anything, a decision to recall the
sentence pursuant to section 1170(d)(2) is a recognition that the initial judgment of
incorrigibility underlying the imposition of life without parole turned out to be
erroneous.‖ (Gutierrez, at pp. 1386-1387.)
       The Court of Appeal below acknowledged Gutierrez‘s determination that the
prospect of resentencing under section 1170(d)(2) represents an inadequate response to
the concerns implicated by a court‘s failure to properly integrate the Miller factors into its
initial sentencing decision. The Court of Appeal regarded the present matter as
distinguishable, however, in that it involves a collateral challenge to a sentence, rather
than a direct appeal. The Court of Appeal determined that a different rule should apply in
this context, whereby the existence of an adequate remedy at law will displace habeas
corpus proceedings targeting Miller error. We consider this position next.
       C.      Habeas Corpus Proceedings and Section 1170(d)(2)
       ―Habeas corpus is an ‗extraordinary remedy.‘ [Citation.]‖ (In re Clark (1993)
5 Cal.4th 750, 764, fn. 3.) As a general rule, it ―may not be invoked where the accused
has such a remedy under the orderly provisions of a statute designed to rule the specific
case upon which he relies for‖ relief (In re Alpine (1928) 203 Cal. 731, 739), at least
when the remedy at law is ―well suited, in ordinary circumstances, to enforc[e]‖ or
vindicate the right being asserted (In re Gandolfo (1984) 36 Cal.3d 889, 899). (See also
6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Writs, § 25, p. 630
[―habeas corpus is not a proper remedy to review errors that could be raised on appeal or
by other appropriate remedies, and . . . ordinarily the aggrieved party must exhaust those
remedies‖].)
       The Court of Appeal applied these principles to this matter.8 It construed section
1170(d)(2) as a constitutionally adequate remedy for Miller error, so that petitioner must

8     Because the Court of Appeal was not entirely clear whether it regarded the section
1170(d)(2) recall of sentence and resentencing process as entirely displacing the writ of

                                          14
pursue recall and resentencing through section 1170(d)(2) as an absolute substitute for, or
at least a prerequisite to, obtaining a Miller resentencing as a form of habeas corpus
relief. 9
        As explained below, we disagree with this characterization of the section
1170(d)(2) procedure as an adequate remedy for Miller error. Having originally been
developed prior to the decision in Miller, the section 1170(d)(2) process was not designed
to provide a remedy for this type of error, and it is not well suited to serve this purpose.
Instead, the section 1170(d)(2) recall and resentencing process anticipates the lawfulness
of a sentence of life without parole potentially subject to recall under its terms.
Resentencing under section 1170(d)(2) is thus unavailable to certain juvenile offenders
sentenced to life without parole — without regard to whether their sentences comport
with Miller — and does not necessarily require consideration of all relevant evidence
bearing on the Miller factors, through the lens prescribed by Miller, as part of the
resentencing inquiry. These features, although reasonable given the assumption of a
lawful sentence, also establish that resort to the section 1170(d)(2) process should not be
required in lieu or in advance of habeas corpus proceedings where, as here, the
petitioner‘s original sentence is infirm under Miller.
        One flaw with characterizing section 1170(d)(2) as an adequate remedy at law for
Miller error involves the limitations the statute imposes on who may engage this process.
As previously observed, to initiate section 1170(d)(2) proceedings a juvenile offender


habeas corpus as a remedy for Miller error, or as merely a procedure that must be
exhausted as a prerequisite to habeas corpus proceedings, our analysis addresses both of
these possibilities.
9      We have recognized that in appropriate contexts, habeas corpus proceedings may
provide a vehicle to obtain relief limited to a new sentencing hearing in the original
criminal action, which may result in a different sentence. (See, e.g., People v. Superior
Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13; In re Lewallen (1979) 23 Cal.3d 274,
282; In re Levi (1952) 39 Cal.2d 41, 47.)


                                          15
sentenced to life without parole must not have committed an offense as to which it was
pleaded and proved that they tortured the victim, or that the victim was a public safety
official, another law enforcement officer, or a firefighter. (§ 1170, subd. (d)(2)(A)(ii).)10
Furthermore, to be resentenced under section 1170(d)(2), other juvenile offenders
sentenced to life without parole must submit a petition to the sentencing court that
describes their remorse, relates their efforts at rehabilitation, and states that at least one of
four qualifying circumstances applies; the sentencing court then must find by a
preponderance of the evidence that at least one qualifying circumstance related in the
petition is true. (§ 1170, subd. (d)(2)(B), (E).) The statute‘s categorical exclusion of
certain offenders and its threshold pleading requirements both have the potential of
making resentencing under section 1170(d)(2) unavailable to some juvenile offenders
who are serving sentences that contravene Miller, supra, 567 U.S. ___ [132 S.Ct.
2455].11 Thus, even if section 1170(d)(2) provided an adequate remedy at law for Miller
error for those juvenile offenders capable of being resentenced under its terms, it would
not provide such a vehicle for relief for other defendants, also serving sentences that do
not comport with Miller, who are either categorically excluded from this process or
whose petitions do not meet the criteria for resentencing.

10      These exclusions underscore that treating section 1170(d)(2) as an adequate
remedy at law for Miller error would create a number of dubious distinctions. Among
them, with section 1170, subdivision (d)(2)(A)(ii), the Legislature presumably sought to
deny juvenile offenders who committed what might be perceived as particularly heinous
crimes the benefit of the section 1170(d)(2) process. Yet if section 1170(d)(2) were
regarded as the exclusive remedy for Miller error for those defendants eligible to engage
this process, juvenile offenders subject to section 1170, subdivision (d)(2)(A)(ii) could
pursue habeas corpus relief for their claims of Miller error directly, whereas juvenile
offenders serving sentences of life without parole for other offenses would be limited to
section 1170(d)(2), notwithstanding its shortcomings as a vehicle to remedy Miller error.
11     Section 1170(d)(2) also affords no remedy to defendants who have not yet served
15 years of their sentences, or who thrice petitioned for recall of sentence and
resentencing, but were not resentenced to a term offering an opportunity for parole.


                                           16
       Even more fundamentally, the ultimate resentencing inquiry specified under
section 1170(d)(2) is not designed to address Miller error, and will not necessarily
provide a defendant with the lawful sentence that Miller requires. As we have explained,
under Miller, prior to sentencing a juvenile offender to life without parole, a court must
give proper consideration to (1) ―a juvenile offender‘s ‗chronological age and its
hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks
and consequences‘ ‖; (2) ― ‗the family and home environment that surrounds [the
juvenile] — and from which he cannot usually extricate himself — no matter how brutal
or dysfunctional‘ ‖; (3) ― ‗the circumstances of the homicide offense, including the extent
of [the juvenile defendant‘s] participation in the conduct and the way familial and peer
pressures may have affected him‘ ‖; (4) ―whether the offender ‗might have been charged
and convicted of a lesser offense if not for incompetencies associated with youth — for
example, his inability to deal with police officers or prosecutors (including on a plea
agreement) or his incapacity to assist his own attorneys‘ ‖; and (5) ―the possibility of
rehabilitation.‖ (Gutierrez, 58 Cal.4th at pp. 1388-1389, quoting Miller, 567 U.S. at
p. ___ [132 S.Ct. at p. 2468].) In contrast, section 1170(d)(2) provides that when
resentencing a defendant a court ―may consider‖ a set of enumerated factors, which only
partially overlap with those identified in Miller. (§ 1170, subd. (d)(2)(F).) The court also
―may consider any other criteria that the court deems relevant to its decision‖ (§ 1170,
subd. (d)(2)(I)), language that suggests the court may consider all pertinent Miller factors
through this route. But the possibility of consideration is not the same as the certainty
that Miller and Montgomery demand.
       The above circumstances establish to our satisfaction that the recall of sentence
and resentencing process provided under section 1170(d)(2) does not constitute an
adequate remedy for Miller error that would displace habeas corpus proceedings in this
context. In crucial respects, section 1170(d)(2) is different from statutes that
automatically provide a timely parole hearing to juvenile offenders sentenced to terms

                                          17
that otherwise might raise Eighth Amendment concerns. By simply transforming the
affected sentences to life with parole terms, those laws avoid the Miller issues associated
with the earlier sentences. (See Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at
p. 736] [identifying Wyo.Stat.Ann. § 6–10–301(c), which provides that juvenile
offenders sentenced to life terms shall receive parole hearings after 25 years of
incarceration, as an example of an adequate response to Miller]; People v. Franklin,
supra, 63 Cal.4th at pp. 278-280 [finding Miller issues moot with regard to defendants
subject to § 3051, subd. (b)(1)-(3), which provides for parole hearings for certain juvenile
offenders no later than their 25th year of incarceration].) Section 1170(d)(2), by contrast
— having been designed as a method to revisit lawfully imposed sentences of life without
parole — provides only a selective and qualified remedy, the application of which is
ultimately premised on an inquiry that may, but does not necessarily, overlap with the
one demanded under Miller.
       Arguably, section 1170(d)(2)‘s shortfalls as an adequate remedy at law loom
larger insofar as the statute would be cast as completely displacing habeas corpus
proceedings that seek a proper resentencing under Miller, as opposed to merely a
procedure that must be exhausted prior to the initiation of a collateral challenge to a
sentence brought on the basis of alleged Miller error. Nevertheless, a rule that would
require resort to section 1170(d)(2) as a prerequisite to any habeas corpus proceedings in
this context would, at a minimum, interpose additional proceedings — culminating in a
potentially inapposite inquiry — ahead of the vindication of a constitutional right, and
assign to section 1170(d)(2) a function it was not designed to perform. With regard to the
latter point, nothing within the language or history of section 1170(d)(2), as originally
enacted or recently amended, suggests that the Legislature perceived this procedure as
necessarily implicated whenever a claim of Miller error arises. On the contrary, the
Legislature‘s recent revision of the statute (Stats. 2016, ch. 867) points unmistakably in
the opposite direction, with the newly added section 1170, subdivision (d)(2)(K)

                                         18
providing that ―[n]othing in this paragraph is intended to diminish or abrogate any rights
or remedies otherwise available to the defendant.‖ (Cf. People v. Conley (2016)
63 Cal.4th 646, 661 [discussing similar language in the Three Strikes Reform Act of
2012, § 1170.126, subd. (k)].) We therefore conclude section 1170(d)(2) is not properly
regarded as an exclusive remedy for Miller error, or as a remedy that must be exhausted
prior to the initiation of habeas corpus proceedings that seek a resentencing under Miller,
supra, 567 U.S. ___ [132 S.Ct. 2455].
       The situation here does not resemble that involved in In re Gandolfo, supra,
36 Cal.3d 889, upon which the Court of Appeal relied in characterizing section
1170(d)(2) as an adequate remedy at law. There, we determined that the provisions of
the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) providing for
periodic review of a conservatee‘s placement were ―well suited, in ordinary
circumstances, to enforcing the right to an appropriately nonrestrictive environment.‖
(Gandolfo, at p. 899.) Given this scheme, we disallowed the routine use of habeas corpus
proceedings to seek less restrictive conservatee placements, determining that such an
overlap of remedies would ―only invite a hopeless flood of cases which would wreak
havoc on the ‗continuing jurisdiction‘ of appointing courts.‖ (Ibid.) Here, by
comparison, allowing petitioner and others in his position to obtain a Miller resentencing
through habeas corpus proceedings would not undermine the proper functioning of any
statutory procedure that is well suited to vindicate their right to a lawful sentence,
because as determined above, section 1170(d)(2) is not such a scheme.
       The Court of Appeal sought to bridge the disconnects between the section
1170(d)(2) process and the resentencing required under Miller by rewriting the statute to
impose upon the People the burden ―of showing [in § 1170(d)(2) proceedings] that the
defendant is one of the rare individuals for whom no possibility of parole should be
provided.‖ We decline to so transform the section 1170(d)(2) process into something
different from what the Legislature intended — namely, an avenue for recalling lawfully

                                          19
issued sentences of life without parole, and potentially resentencing defendants to terms
that incorporate an the opportunity for parole. We consider it preferable to simply
recognize that the possibility that a resentencing that accounts for the Miller factors will
occur under section 1170(d)(2) does not represent an adequate substitute for the timely
and certain resentencing hearings that Miller, supra, 567 U.S. ___ [132 S.Ct. 2455], and
Montgomery, supra, 577 U.S. ___ [136 S.Ct. 718] require for persons who, like
petitioner, were sentenced without the appropriate consideration of factors bearing on
their youth at the time of their offense, and the relationship of those factors to
proportionate punishment.12




12      Section 1170(d)(2) nevertheless serves a useful purpose in the overall sentencing
framework for juvenile offenders. Miller and Montgomery do not absolutely prohibit
sentences of life without parole for juveniles who commit murder. (See Montgomery,
supra, 577 U.S. at p. ___ [136 S.Ct. at p. 734]; Miller, supra, 567 U.S. at p. ___
[132 S.Ct. at p. 2471].) Section 1170(d)(2) provides a mechanism that allows a second,
third, and perhaps even a fourth look at a lawful sentence of life without parole, junctures
at which a court may exercise its discretion to issue a new sentence that will afford a
juvenile offender an opportunity at parole. Our holding merely provides that a sentence
subject to section 1170(d)(2) should itself represent the product of a sentencing where the
court has taken ―into account ‗how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison‘ ‖ (Montgomery, at
p. ___ [136 S.Ct. at p. 733], quoting Miller, at p. ___ [132 S.Ct. at p. 2469]), as Miller
and Montgomery require.


                                          20
                                     III. DISPOSITION
       The judgment of the Court of Appeal is reversed and the matter remanded to the
Court of Appeal with instructions to affirm the order of the superior court granting habeas
corpus relief and to remand the matter to the superior court for a resentencing hearing
consistent with Montgomery, supra, 136 S.Ct. 718, Miller, supra, 132 S.Ct. 2455, and
Gutierrez, supra, 58 Cal.4th 1354.

                                                 CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                         21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Kirchner
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 244 Cal.App.4th 1398
Rehearing Granted

__________________________________________________________________________________

Opinion No. S233508
Date Filed: April 24, 2017
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Louis R. Hanoian

__________________________________________________________________________________

Counsel:

Randy Mize, Chief Deputy Public Defender, Abbey J. Noel and Troy Anthony Britt, Deputy Public
Defenders, for Petitioner Kristopher Kirchner.

Elizabeth M. Calvin; DLA Piper and Steven S. Kimball for Human Rights Watch as Amicus Curiae on
behalf of Petitioner Kristopher Kirchner.

Michael T. Risher and L. Richard Braucher for American Civil Liberties Union of Northern California and
Pacific Juvenile Defender Center as Amici Curiae on behalf of Petitioner Kristopher Kirchner.

Bonnie M. Dumanis, District Attorney, James E. Atkins, Jennifer Kaplan and Craig E. Fisher, Deputy
District Attorneys, for Respondent the People.

Mark Zahner and Kelli Catlett for California District Attorneys Association as Amicus Curiae on behalf of
Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Abbey J. Noel
Deputy Public Defender
250 East Main Street, Sixth Floor
El Cajon, CA 92020
(619) 441-4804

Jennifer Kaplan
Deputy District Attorney
330 West Broadway, Suite 860
San Diego, CA 92101
(619) 531-3798
