Filed 2/23/16
                             CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                 STATE OF CALIFORNIA




In re KRISTOPHER KIRCHNER on Habeas                 D067920
Corpus.

                                                    (Super. Ct. Nos. HC21804, CRN
                                                    26291)

        APPEAL from a judgment of the Superior Court of San Diego County, Louis R.

Hanoian, Judge. Reversed with directions.



        Bonnie M. Dumanis, District Attorney, James E. Atkins, Jennifer Kaplan and

Craig E. Fisher, Deputy District Attorneys, for Appellant the People.

        Randy Mize, Chief Deputy Public Defender, Abbey J. Noel and Troy Anthony

Britt, Deputy Public Defenders, for Respondent Kristopher Kirchner.

        The district attorney appeals the trial court's order granting Kristopher Kirchner's

petition for habeas corpus. The trial court correctly concluded the holdings of Miller v.

Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407] (Miller) and People v.

Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez) apply retroactively in state collateral

proceedings such as the one presented here and that the Eighth Amendment of the United
States Constitution requires that when inmates, such as Kirchner, are serving life terms

for crimes committed while they were juveniles, they must, except in the most

extraordinary circumstances, be given an opportunity to seek parole. (See Montgomery v.

Lousiana (2016) ___U.S.___ [135 S.Ct. 1546, 191 L.Ed.2d 635] (Montgomery).)

However, where, as is the case in California, a legislature has provided inmates 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.1

                  FACTUAL AND PROCEDURAL BACKGROUND

       On April 28, 1993, Kirchner, age 16 at the time, and Damien Miller, age 15,

executed a plan to rob a gun store in Vista, California owned by Ross Elvey. Once inside

the store, Kirchner repeatedly hit 59-year-old Elvey in the head with a metal pipe causing

severe trauma that ultimately resulted in Elvey's death after languishing in a coma for 40

days. Leaving Elvey unconscious and bleeding, Kirchner and Miller took numerous

weapons and fled on foot. The pair knocked on doors in a nearby residential

neighborhood claiming they needed a ride to nearby San Marcos because they had been

attacked by gang members. The minors convinced someone to drive them, but were

quickly apprehended by sheriff's deputies searching the area.




1       Our opinion is limited to inmates, who, like Kirchner, have been incarcerated for
at least 15 years. We do not decide whether inmates whose incarceration is less than 15
years are entitled to an expedited recall and resentencing under Penal Code section 1170,
subdivision (d)(2).
                                             2
       Kirchner was initially charged in juvenile court. After a hearing under Welfare

and Institutions Code section 707, however, the court found Kirchner unfit to be

prosecuted as a juvenile and he was charged as an adult. During trial, Kirchner brought a

motion to strike the People's special circumstance allegation under Penal Code section

190.2, subdivision (a)(17) that he committed the murder while engaged in the

commission of a robbery and burglary. Kirchner argued the imposition of the sentence of

life without the possibility of parole (LWOP) that he faced under Penal Code section

190.5 as a result of the special circumstance allegation would constitute a violation of the

Eighth Amendment to the United States Constitution. The district attorney responded

that since a sentence of death for a 16- or 17-year-old was constitutionally permissible,

there was no question the LWOP sentence Kirchner faced was also permissible. The trial

court agreed with the prosecutor and denied Kirchner's motion.

       After a court trial, on March 10, 1994, Kirchner was found guilty of one count of

first degree murder (Pen. Code, § 187, subd. (a)). The court found true the special

circumstance allegation that Kirchner committed the murder while engaged in the

commission of a robbery and burglary (Pen. Code, § 190.2, subd. (a)(17)(A), (G)) and

that Kirchner personally used a deadly or dangerous weapon during the commission of

the murder (Pen. Code, § 12022, subd. (b)). Kirchner was also convicted of one count of

robbery (Pen. Code, § 211) and one count of burglary (Pen. Code, § 459), with

allegations as to each offense that Kirchner personally inflicted great bodily injury (Pen.

Code, § 12022.7) and personally used a deadly or dangerous weapon (Pen. Code,

§ 12022, subd. (b)). Kirchner was remanded to the California Youth Authority (CYA)

                                             3
pursuant to Welfare and Institutions Code section 707.2 in order to determine his

amenability to the training and treatment offered by that agency. The CYA concluded

there was a reasonable probability that Kirchner's likelihood to commit further crimes

could be reduced or eliminated within the available confinement time if sentenced as a

juvenile.

       The trial court declined to follow the recommendation of the CYA and, on

September 15, 1994, sentenced Kirchner to LWOP on the murder conviction, plus one

year consecutive for the weapon enhancement. The court stayed sentencing on the

remaining counts and attendant allegations under Penal Code section 654. Kirchner

appealed, but the appeal was dismissed after he failed to file an opening brief and his

sentence became final. In 2013, after Miller was decided, Kirchner filed a petition for

writ of habeas corpus challenging the LWOP sentence. The trial court denied the petition

but noted the issues raised by Kirchner were then pending before the California Supreme

Court in Gutierrez.

       Kirchner filed a second petition for writ of habeas corpus in October 2014

contending that under Miller and Gutierrez his sentence violated the Eighth Amendment.

The superior court issued an order to show cause asking why relief should not be granted

and stated that the record showed the "trial court did not engage in the youth oriented

analysis required" under Miller and Gutierrez. The district attorney's initial return

conceded Kirchner was entitled to a new sentencing hearing for the court to consider

whether the imposition of the LWOP sentence was appropriate.



                                             4
       Before the superior court issued a ruling, however, the district attorney filed an

application for permission to file a supplemental return. In the supplemental return, the

district attorney reversed course. The return argued Miller and Gutierrez could not be

applied retroactively and Kirchner was, therefore, barred from collaterally attacking his

sentence. The court granted the request to file a supplemental return. Kirchner filed a

supplemental denial. On March 27, 2015, the superior court granted Kirchner's petition.

The district attorney filed a timely notice of appeal.

                                       DISCUSSION

                                              I

       In Miller, the United States Supreme Court held "mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment's

prohibition on 'cruel and unusual punishments.' "2 (Miller, supra, 132 S.Ct. at p. 2460.)

Miller explained the Supreme Court's prior cases had "establish[ed] that children are

constitutionally different from adults for purposes of sentencing." (Id. at p. 2464.)

Summarizing its holding, the court stated: "Mandatory life without parole for a juvenile

precludes consideration of his chronological age and its hallmark features—among them,

immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents

taking into account the family and home environment that surrounds him—and from

which he cannot usually extricate himself—no matter how brutal or dysfunctional. It


2      Miller decided two companion cases, both involving petitioners who were 14 at
the time they committed homicides that resulted in sentences of LWOP. Petitioner Evan
Miller's case arose on direct appeal, and Kuntrell Jackson's case arose on appeal from a
petition for writ of habeas corpus. (Miller, supra, 132 S.Ct. at pp. 2461-2463.)
                                              5
neglects the circumstances of the homicide offense, including the extent of his

participation in the conduct and the way familial and peer pressures may have affected

him. Indeed, it ignores that he 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. [Citations.] And finally, this mandatory punishment disregards the

possibility of rehabilitation even when the circumstances most suggest it." (Id. at

p. 2468.)

       Miller looked to two lines of precedent to support its holding. The first holds the

Eighth Amendment's bar against cruel and unusual punishment bans sentencing practices

that result in a divergence between the culpability of a class of offenders and the severity

of the penalty imposed. (Miller, supra, 132 S.Ct. 2544, citing Graham v. Florida (2010)

560 U.S. 48 (Graham) [holding unconstitutional a sentence of life imprisonment without

parole for a minor who committed a nonhomicide offense]; Atkins v. Virginia (2002) 536

U.S. 304 [holding the execution of intellectually disabled defendants unconstitutional];

Roper v. Simmons (2005) 543 U.S. 551 (Roper) [holding the execution of individuals

who were under 18 years of age at the time of their capital crimes unconstitutional];

Kennedy v. Louisiana (2008) 554 U.S. 407 [holding unconstitutional the death penalty for

nonhomicide offenses].)

       These cases "evok[e] a second line of . . . precedents . . . prohibit[ing] mandatory

imposition of capital punishment" and instead "require[e] that sentencing authorities

consider the characteristics of a defendant and the details of his offense before sentencing

                                             6
him to death." (Miller, supra, 132 S.Ct. at pp. 2463-2464, citing Woodson v. North

Carolina (1976) 428 U.S. 280 (plur. opn.) and Lockett v. Ohio (1978) 438 U.S. 586.)

Miller looked to these two lines of precedents, as well as advances in the science of

children's brains and behavior, to conclude "juveniles have diminished culpability and

greater prospects for reform" and, therefore, are " 'less deserving of the most severe

punishments.' " (Miller, at p. 2464.)

       In Gutierrez, the California Supreme Court addressed the impact of Miller on

Penal Code3 section 190.5, subdivision (b), enacted in 1990 to permit the imposition of

LWOP sentences on 16- and 17-year-old offenders in California in certain circumstances.

(Gutierrez, supra, 58 Cal.4th at pp. 1371-1372.) Section 190.5, subdivision (b), which

authorized Kirchner's LWOP sentence, provides in relevant part: "The penalty for a

defendant found guilty of murder in the first degree, in any case in which one or more

special circumstances . . . has been found to be true under Section 190.4, who was 16

years of age or older and under the age of 18 years at the time of the commission of the

crime, shall be confinement in the state prison for life without the possibility of parole or,

at the discretion of the court, 25 years to life." (§ 190.5, subd. (b).)

       Gutierrez stated that since the pronouncement in People v. Guinn (1994) 28

Cal.App.4th 1130 (Guinn), "Courts of Appeal have uniformly interpreted section 190.5[,

subdivision] (b) as establishing a presumption in favor of life without parole for juvenile

offenders who were 16 years of age or older when they committed special circumstance



3      All further statutory references are to the Penal Code unless otherwise indicated.
                                               7
murder." (Gutierrez, supra, 58 Cal.4th at p. 1369.) Gutierrez concluded Guinn's

interpretation of the statute to create a presumption in favor of LWOP "was inconsistent

with the principles set forth in Miller. ' "Treating [life without parole] as the default

sentence takes the premise in Miller that such sentences should be rarities and turns that

premise on its head, instead placing the burden on a youthful defendant to affirmatively

demonstrate that he or she deserves an opportunity for parole." ' " (People v. Chavez

(2014) 228 Cal.App.4th 18, 31 (Chavez), quoting Gutierrez, at p. 1379.)

       Gutierrez "further held that in considering whether to impose a life sentence

without possibility of parole, a sentencing court must consider the five factors

enumerated in Miller: (1) the inherent impact of the juvenile's age on his culpability; (2)

the juvenile's home and family environment; (3) the circumstances of the homicide

offense; (4) the juvenile's ability to deal with law enforcement officers and prosecutors as

well as effectively assist in his own defense; and (5) the possibility of rehabilitation."

(Chavez, supra, 228 Cal.App.4th at p. 32, citing Gutierrez, supra, 58 Cal.4th at pp. 1389-

1390.).) Gutierrez, which decided two companion cases both arising on direct appeal,

presumed that the trial courts had followed the law as interpreted by Guinn and its

progeny and "therefore erroneously treated a sentence of life without possibility of parole

as required by section 190.5, unless good reason to impose the less severe option of 25

years to life existed." (Chavez, at p. 32, italics added.)

       Gutierrez concluded the presumed error required remand for resentencing because

the records before it did "not clearly indicate that [the trial courts] would have imposed

the same sentence had they been aware of the full scope of their discretion." (Gutierrez,

                                               8
supra, 58 Cal.4th at p. 1391.) "Because the trial courts operated under a governing

presumption in favor of life without parole, we cannot say with confidence what sentence

they would have imposed absent the presumption. . . . [¶] . . . The question is whether

each [defendant] can be deemed, at the time of sentencing, to be irreparably corrupt,

beyond redemption, and thus unfit ever to reenter society, notwithstanding the

'diminished culpability and greater prospects for reform' that ordinarily distinguish

juveniles from adults. [Citation.]"4 (Ibid.)

       Finally, as we discuss more fully in part III, Gutierrez rejected the Attorney

General's contention that the LWOP sentence the court was reviewing on direct appeal

had been remedied by the Legislature's enactment of section 1170, subdivision (d)(2).

(Gutierrez, supra, 58 Cal.4th at p. 1386.)

                                               II

       The principal issue we consider here is whether the rule announced in Miller must

be applied retroactively in a collateral proceeding. The issue was quite recently, and

definitively, resolved by the court's opinion in Montgomery, which held that Miller must

be given retroactive application.




4       Kirchner was sentenced weeks before Guinn announced that "Penal Code section
190.5 means . . . that 16- or 17-year-olds who commit special circumstance murder must
be sentenced to LWOP, unless the court, in its discretion, finds good reason to choose the
less severe sentence of 25 years to life." (Guinn, supra, 28 Cal.App.4th at p. 1141.) The
district attorney, however, does not argue that the sentencing court properly exercised its
discretion under 190.5 in imposing the LWOP sentence, rather than improperly applying
a presumption in favor of LWOP.
                                               9
       The petitioner in Montgomery was 17 years old in 1963 when he killed a police

officer. Although initially sentenced to death, his initial conviction was reversed, and, on

retrial, he was given an automatic LWOP sentence. Following Miller, he filed a petition

for habeas corpus relief in state court in Louisiana and was denied any relief.

       The petitioner asserted Miller provided a substantive federal constitutional

limitation on the state's sentencing power, rather than a procedural one. He argued the

United States Supreme Court had federal question jurisdiction over his contention as to

the nature of the rights recognized in Miller and that, given their substantive character,

state courts should be required to apply Miller retroactively. The court agreed both that

the petition presented a federal question and that Miller was a substantive limitation on

the state's sentencing powers. The court found that under the court's prior holdings in

Teague v. Lane (1989) 489 U.S. 288 (Teague), Schriro v. Summerlin (2004) 542 U.S.

348, 352 and Penry v. Lynaugh (1989) 492 U.S. 302, Miller's substantive, as opposed to

procedural, character in turn required that Miller be given retroactive effect.5

(Montgomery, supra, 193 L.Ed.2d at p. 609.)



5        In Teague, the United States Supreme Court held "new constitutional rules of
criminal procedure will not be applicable to those cases which have become final before
the new rules are announced," unless the rule falls within one of two narrow categories of
exception. (Teague, supra, 489 U.S. at p. 310.) The court explained new rules are
generally not applied retroactively to cases on collateral review because the function of
habeas corpus is limited. " '[T]he Court never has defined the scope of the writ simply by
reference to a perceived need to assure that an individual accused of crime is afforded a
trial free of constitutional error.' " (Id. at p. 308.) "Application of constitutional rules not
in existence at the time a conviction became final seriously undermines the principle of
finality which is essential to the operation of our criminal justice system. Without
finality, the criminal law is deprived of much of its deterrent effect." (Id. at p. 309.)
                                              10
       In explaining the need for retroactive application of new substantive constitutional

rules, as opposed to procedural ones, the Montgomery court stated: "Substantive rules

. . . set forth categorical constitutional guarantees that place certain criminal laws and

punishments altogether beyond the State's power to impose. It follows that when a State

enforces a proscription or penalty barred by the Constitution, the resulting conviction or

sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to

enhance the accuracy of a conviction or sentence by regulating 'the manner of

determining the defendant's culpability.' [Citations.] Those rules 'merely raise the

possibility that someone convicted with use of the invalidated procedure might have been

acquitted otherwise.' [Citation.] Even where procedural error has infected a trial, the

resulting conviction or sentence may still be accurate; and, by extension, the defendant's

continued confinement may still be lawful. For this reason, a trial conducted under a

procedure found to be unconstitutional in a later case does not, as a general matter, have

the automatic consequence of invalidating a defendant's conviction or sentence.

       "The same possibility of a valid result does not exist where a substantive rule has

eliminated a State's power to proscribe the defendant's conduct or impose a given

punishment. '[E]ven the use of impeccable factfinding procedures could not legitimate a

verdict' where 'the conduct being penalized is constitutionally immune from punishment.'

        Teague nonetheless identified two categories of exception to this bar: "First, a
new rule should be applied retroactively if it places 'certain kinds of primary, private
individual conduct beyond the power of the criminal law-making authority to proscribe.'
[Citation.] Second, a new rule should be applied retroactively if it requires the
observance of 'those procedures that . . . are "implicit in the concept of ordered
liberty." ' " (Teague, supra, 489 U.S. at p. 307.)

                                              11
[Citation.] Nor could the use of flawless sentencing procedures legitimate a punishment

where the Constitution immunizes the defendant from the sentence imposed. 'No

circumstances call more for the invocation of a rule of complete retroactivity.'

[Citation.]" (Montgomery, supra, 193 L.Ed.2d at p. 615.)

       In determining that Miller was a substantive limitation on state sentencing powers,

the Montgomery court emphasized the narrow number of instances in which imposing an

LWOP sentence on a juvenile will be permissible under the Eighth Amendment: "Miller,

it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or

Graham. Miller did bar life without parole, however, for all but the rarest of juvenile

offenders, those whose crimes reflect permanent incorrigibility. For that reason, Miller is

no less substantive than are Roper and Graham. Before Miller, every juvenile convicted

of a homicide offense could be sentenced to life without parole. After Miller, it will be

the rare juvenile offender who can receive that same sentence. The only difference

between Roper and Graham, on the one hand, and Miller, on the other hand, is that Miller

drew a line between children whose crimes reflect transient immaturity and those rare

children whose crimes reflect irreparable corruption. The fact that life without parole

could be a proportionate sentence for the latter kind of juvenile offender does not mean

that all other children imprisoned under a disproportionate sentence have not suffered the

deprivation of a substantive right." (Montgomery, supra, 193 L.Ed.2d at p. 620, italics

added.)

       Thus, the court held the procedural limitations Miller imposed when courts

sentence juveniles did not deprive the constitutional interests recognized in Miller of their

                                             12
substantive nature. "To be sure, Miller's holding has a procedural component. Miller

requires a sentencer to consider a juvenile offender's youth and attendant characteristics

before determining that life without parole is a proportionate sentence. [Citation.]

Louisiana contends that because Miller requires this process, it must have set forth a

procedural rule. This argument, however, conflates a procedural requirement necessary

to implement a substantive guarantee with a rule that 'regulate[s] only the manner of

determining the defendant's culpability.' [Citation.] There are instances in which a

substantive change in the law must be attended by a procedure that enables a prisoner to

show that he falls within the category of persons whom the law may no longer punish.

[Citation.] For example, when an element of a criminal offense is deemed

unconstitutional, a prisoner convicted under that offense receives a new trial where the

government must prove the prisoner's conduct still fits within the modified definition of

the crime. In a similar vein, when the Constitution prohibits a particular form of

punishment for a class of persons, an affected prisoner receives a procedure through

which he can show that he belongs to the protected class. [Citation.] Those procedural

requirements do not, of course, transform substantive rules into procedural ones.

       "The procedure Miller prescribes is no different. A hearing where 'youth and its

attendant characteristics' are considered as sentencing factors is necessary to separate

those juveniles who may be sentenced to life without parole from those who may not.

[Citation.] The hearing does not replace but rather gives effect to Miller's substantive

holding that life without parole is an excessive sentence for children whose crimes reflect

transient immaturity." (Montgomery, supra, 193 L.Ed.2d at pp. 620-621.)

                                             13
       In light of the holding in Montgomery, inmates such as Kirchner, who are serving

LWOP sentences for crimes they committed while they were juveniles, are plainly

entitled to the benefits of Miller, even though their judgments of conviction are final.

                                              III

       A. Remedies Available in Collateral Proceedings

       The court's majority opinion in Montgomery was subject to a vigorous dissent, in

which among other matters Justice Scalia pointed out the practical burden state courts

will face in attempting to resentence juveniles who committed crimes long before they

are given habeas relief under the court's holding. Justice Scalia stated: "Federal and (like

it or not) state judges are henceforth to resolve the knotty 'legal' question: whether a 17-

year-old who murdered an innocent sheriff's deputy half a century ago was at the time of

his trial 'incorrigble.' Under Miller, bear in mind, the inquiry is whether the inmate was

seen to be incorrigible when he was sentenced—not whether he has proven corrigible and

so can safely be paroled today. What silliness. (And how impossible in practice, see

Brief for National District Attorneys Assn. et al. as Amici Curiae 9-17.)" (Montgomery,

supra, 193 L.Ed.2d at p. 631 (dis. opn. of Scalia, J.).)

       In apparent response to Justice Scalia's concerns, in addition to finding that Miller

sets forth substantive limitations, rather than wholly procedural ones, the court in

Montgomery also prescribed alternative remedies states may provide to inmates serving

LWOP sentences imposed for crimes committed while they were juveniles, when, as

here, their judgments of conviction are final: "Giving Miller retroactive effect, moreover,

does not require States to relitigate sentences, let alone convictions, in every case where a

                                              14
juvenile offender received mandatory life without parole. A State may remedy a Miller

violation by permitting juvenile homicide offenders to be considered for parole, rather

than by resentencing them. [Citation.][6] 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." (Montgomery, supra, 193 L.Ed.2d at p. 622, italics added.)

       In expressly providing that a state need not relitigate sentences, but may instead

simply permit defendants such as Kirchner "to be considered for parole," the court in

Montgomery made it unambiguously clear that, in collateral proceedings, a defendant's

release may, under the Constitution, depend in part at least on his postconviction

behavior. Indeed, in explaining that the opportunity for parole is sufficient to satisfy the

Eighth Amendment, the court stated: "Those prisoners who have shown an inability to

reform will continue to serve life sentences. The opportunity for release will be afforded

to those who demonstrate the truth of Miller's central intuition—that children who



6       In creating this alternative remedy, the court cited, as an example, a Wyoming
statute (Wyo. Stat. Ann § 6-10-301(c) (2013)), which makes juvenile offenders eligible
for parole after 25 years so long as they have not committed an assault on a prison
employee or attempted to escape. (Montgomery, supra, 193 L.Ed.2d at p. 622.) The
Wyoming statute is somewhat similar to our own section 3051, which provides for
juvenile parole hearings for prisoners sentenced to either determinate sentences or life
sentences with the possibility of parole. As we explain, LWOP sentences imposed on
juveniles are governed by section 1170, subdivision (d)(2), which permits a prisoner to
apply for a recall and resentencing after serving 15 years of his or her sentence. We do
not believe the court's citation to the Wyoming statute excluded alternative remedies such
as section 1170, subdivision (d)(2), which, like the Wyoming statute and section 3051,
avoid the practical problem of attempting to determine retroactively whether a defendant
was incorrigible at the time of his or her initial sentence.
                                             15
commit even heinous crimes are capable of change." (Montgomery, supra, 193 L.Ed.2d

at p. 622.) Thus, following Montgomery, in collateral proceedings all that is required is

either resentencing in compliance with Miller or a process by which the defendant is

given a fair opportunity to be considered for parole.

       In an order permitting the parties to provide supplemental briefing with respect to

Montgomery, we brought the foregoing passage from Montgomery, as well as section

1170, subdivision (d)(2) to the parties' attention.

       B. Section 1170, subdivision (d)(2)

       In general and with exceptions not pertinent here, section 1170, subdivision

(d)(2)7 permits an inmate serving an LWOP sentence for a crime committed while he or




7       Section 1170, subdivision (d)(2) provides:
        "(A)(i) When a defendant who was under 18 years of age at the time of the
commission of the offense for which the defendant was sentenced to imprisonment for
life without the possibility of parole has served at least 15 years of that sentence, the
defendant may submit to the sentencing court a petition for recall and resentencing.
        "(ii) Notwithstanding clause (i), this paragraph shall not apply to defendants
sentenced to life without parole for an offense where the defendant tortured, as described
in Section 206, his or her victim or the victim was a public safety official, including any
law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of
Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any
segment of law enforcement who is employed by the federal government, the state, or
any of its political subdivisions.
        "(B) The defendant shall file the original petition with the sentencing court. A
copy of the petition shall be served on the agency that prosecuted the case. The petition
shall include the defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the possibility of parole, the
defendant's statement describing his or her remorse and work towards rehabilitation, and
the defendant's statement that one of the following is true:
        "(i) The defendant was convicted pursuant to felony murder or aiding and abetting
murder provisions of law.
                                              16
        "(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.
        "(C) If any of the information required in subparagraph (B) is missing from the
petition, or if proof of service on the prosecuting agency is not provided, the court shall
return the petition to the defendant and advise the defendant that the matter cannot be
considered without the missing information.
        "(D) A reply to the petition, if any, shall be filed with the court within 60 days of
the date on which the prosecuting agency was served with the petition, unless a
continuance is granted for good cause.
        "(E) If the court finds by a preponderance of the evidence that the statements in
the petition are true, the court shall hold a hearing to consider whether to recall the
sentence and commitment previously ordered and 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. Victims, or victim family
members if the victim is deceased, shall retain the rights to participate in the hearing.
        "(F) The factors that the court may consider when determining whether to recall
and resentence 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 sentence is being considered for recall.
        "(iii) The defendant committed the offense with at least one adult codefendant.
        "(iv) Prior to the offense for which the sentence is being considered for recall, 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 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.
                                             17
she was a juvenile, to file a petition in the sentencing court for recall and resentencing

after serving 15 years of the LWOP sentence. (§ 1170, subd. (d)(2)(A)(i).) The petition

must be supported by a statement from the inmate that one of four enumerated

circumstances is true, and the court must hold a hearing on the petition if it determines by

a preponderance of the evidence that the petitioner's statement is true. At the hearing,

based on eight criteria set forth in the statute or any other criteria identified by the

sentencing court as relevant, the court may recall the sentence and resentence the inmate

as if the inmate had not been previously sentenced. (§ 1170, subd. (d)(2)(G).) If the

petition is not granted, the inmate may petition again for recall and resentencing after

serving 20 years and again after serving 24 years. (§ 1170, subd. (d)(2)(H).)

        "(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.
        "(G) The court shall have the discretion to recall the sentence and commitment
previously ordered and 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. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim family members if
the victim is deceased, shall be notified of the resentencing hearing and shall retain their
rights to participate in the hearing.
        "(H) If the sentence is not recalled, the defendant may submit another petition for
recall and resentencing to the sentencing court when the defendant has been committed to
the custody of the department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition after having served 24
years. The final petition may be submitted, and the response to that petition shall be
determined, during the 25th year of the defendant's sentence.
        "(I) In addition to the criteria in subparagraph (F), 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.
        "(J) This subdivision shall have retroactive application."
                                               18
       The eight criteria for recall listed in the statute are factors related to: the nature of

the defendant's participation in the underlying offense (§ 1170, subd. (F)(i) & (iii)); the

defendant's previous criminal record, if any (§ 1170, subd. (F)(ii)); the defendant's

psychological and social history at the time of the underlying offense (§ 1170,

subd. (F)(iv) & (v)); and the defendant's conduct while incarcerated (§ 1170, subd.

(F)(vi), (vii) & (viii)). In particular, the defendant may show that he or she 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. (F)(vi).)

       C. Adequate Remedy

       Where a habeas petitioner has an adequate remedy at law, he or she must employ

it before seeking writ relief. (In re Gandolfo (1984) 36 Cal.3d 889, 899-900; see In re

Robbins (1998) 18 Cal.4th 770, 777 ["habeas corpus is an extraordinary remedy that 'was

not created for the purpose of defeating or embarrassing justice, but to promote it' "].)

Thus, we must determine whether, in light of Montgomery, section 1170, subdivision

(d)(2) is an adequate remedy which Kirchner was required to pursue before seeking

habeas relief.

       It is important to recognize that, although section 1170, subdivision (d)(2) does not

provide an inmate with a parole hearing, it provides him or her with all the rights set forth

in Miller and Montgomery. As we have discussed, the statute establishes that when a

                                               19
defendant who was under 18 years of age at the time of the commission of the offense for

which the defendant was sentenced to imprisonment for life without the possibility of

parole has served at least 15 years of that sentence, the defendant may submit to the

sentencing court a petition for recall and resentencing. In determining whether recall

and resentencing is warranted, the sentencing court will examine not just the factors

existing at the time of the crime, that is, those factors related to the defendant's status as a

juvenile, but also the factors relating to the defendant's postconviction conduct and

rehabilitation.

       This procedure of course responds to and remedies Justice Scalia's concerns,

which are implicitly recognized by the majority in Montgomery, that, after perhaps

decades in prison, a defendant cannot logically or in fairness be returned to the same

status as existed on the day of sentencing. Under section 1170, subdivision (d)(2), a

defendant who has committed a heinous crime but, in the aftermath, has matured and

exhibited remorse and rehabilitation will be given not just the benefit of worthy conduct,

but also judicial recognition of his or her inherent ability to reform. Likewise, upon the

People's proper showing, a defendant who has committed a heinous crime and, in the

aftermath, has continued a life of additional heinous acts, may continue to be separated

from society, as expressly permitted by the court in Montgomery.

       The state has obvious and legitimate interests in requiring a petition under section

1170, subdivision (d)(2), as opposed to either simple resentencing or providing an

unconditional right to parole to all inmates serving LWOP sentences imposed for crimes

committed while they were juveniles. Not only does the section 1170, subdivision (d)(2)

                                              20
process of recall and resentencing provide an inmate with his or her Miller rights, it

provides the state with a mechanism for uniform application of those rights.

       Were we to find that section 1170, subdivision (d)(2) was not an adequate remedy

at law and, thus, not a petitioner's exclusive remedy, we would permit a petitioner to

select whether to take advantage of section 1170, subdivision (d)(2) or seek a direct

resentencing limited to those factors existing at the time of the original sentencing.

Arguably, in the absence of mandatory resort to section 1170, subdivision (d)(2), a

defendant whose postconviction conduct would not warrant an opportunity for parole

would nonetheless be entitled to a new sentence upon a showing that at the time of his or

her original sentencing there had been no proof of his or her incorrigibility.

       This case presents an example of the mischief possible if a defendant is left to

select whether or not to use the statutory recall of sentence procedure. Kirchner has

served some 22 years in prison. It is clear that he is eligible for recall and resentencing

according to the provisions of section 1170, subdivision (d)(2). At oral argument, we

asked why he has not availed himself of that statute's recall and resentencing process.

Counsel candidly admitted selection of the process depends on the defendant. Counsel

also indicated to the court that when seeking resentencing in trial courts, some courts

have allowed resentencing based only upon circumstances exiting at the time of

resentencing and some have allowed evidence of all postconviction conduct, maturity and

rehabilitation. Such a system lacks uniformity and internal integrity.

       It must be emphasized that Miller and Montgomery do not hold, and Kirchner does

not contend, that a sentence of prison for life without the possibility of parole is in all

                                              21
instances unlawful. The LWOP sentence of a juvenile is unconstitutional only when the

trial judge has imposed it without meeting the procedural requirements of Miller.

However, Montgomery does not preclude a procedure, such as set forth in section 1170,

subdivision (d)(2), under which both a defendant's interests and the state's are fully

examined and vindicated and where, as here, a defendant is seeking release after decades

of incarceration.

       It bears emphasizing, however, that where a prisoner is serving an LWOP sentence

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.

(Montgomery, supra, 193 L.Ed.2d at pp. 620-622.) As we have noted, under

Montgomery he or she must be given either a statutory right to apply for parole or a

hearing in which the People establish that he or she falls within the narrow category of

incorrigible criminals for whom an LWOP sentence is not disproportionate. Because an

LWOP sentence is presumptively unlawful when the underlying crime was committed

while an inmate was a juvenile and because Miller and Montgomery repeatedly state that

courts will only rarely be able to find that a juvenile criminal is so incorrigible that he or

she may never be considered for release, 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 (see § 1170, subd. (d)(2)(E)) 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

                                              22
for whom no possibility of parole should be provided. A process in which an inmate

serving an unlawful sentence was required to show that he or she was not one of the rare

incorrigible criminals would ignore the mandate of Montgomery that Miller be given

retroactive effect, as well as creating a presumption in favor or LWOP akin to the one

rejected by the court in Gutierrez.

       In sum then, under the circumstances we have described, and in particular given

the requirement that the People bear the burden of proof at all stages of a section 1170,

subdivision (d)(2) petition, the statute meets the requirements of Miller and Montgomery

and is therefore an adequate remedy which Kirchner must pursue before resorting to

habeas relief.

       D. Gutierrez

       Our conclusion the remedy provided by section 1170, subdivision (d)(2) meets the

requirements of Montgomery, does not conflict with the holding in Gutierrez. Gutierrez

was considered by the court on the direct appeals of two defendants from LWOP

sentences imposed by separate trial courts. After sentence was imposed in each case and

while the defendants' appeals were pending in the Court of Appeal, Miller was decided.

In discussing the Attorney General's argument that any defect in the defendants'

sentences under Miller had been cured by enactment of section 1170, subdivision (d)(2),

the court noted that at the time a juvenile is sentenced to a life term without the

possibility of parole, the sentence is, except in rare circumstances, disproportionate

because it ignores the possibility of future rehabilitation and maturation. (Gutierrez,

supra, 58 Cal.4th at pp. 1386-1387.) The court found that the possibility that an LWOP

                                             23
sentence would later be recalled and a new sentence imposed under section 1170,

subdivision (d)(2) did not cure the defect in the original sentence. (Gutierrez, at

pp. 1386-1387.) In reaching this conclusion on appeal, the court in Gutierrez cited the

following from the Supreme Court's earlier opinion in Graham, supra, 560 U.S. at page

73, also a direct appeal, in which the court held that it was unconstitutional to impose

LWOP's on juveniles who had not committed a homicide offense: "Even if the State's

judgment that Graham was incorrigible were later corroborated by prison misbehavior of

failure to mature, the sentence was still disproportionate because that judgment was made

at the outset." (Ibid., italics added; see Gutierrez, at pp. 1386-1387.)

       There is no conflict between the strictly prospective focus of the courts in

Gutierrez and Graham and the retrospective focus expressly permitted by the court in

Montgomery. Where, as in Gutierrez and Graham, the court was directly reviewing the

legality of a sentence, its focus was properly prospective and on the requirements of the

constitution when a sentencing judge is making a prospective sentencing decision. In

contrast, in Montgomery, the court was considering the somewhat broader question of the

constitutionality of the prisoner's continued confinement. (Montgomery, supra, 193

L.Ed.2d at p. 622) [Miller must be retroactive because of "grave risk that many are being

held in violation of the Constitution"].) In that procedural context, it is quite reasonable

to permit consideration of a defendant's postconviction conduct, especially in light of the

possibility that a defendant's postconviction behavior might show that he or she falls

within the very narrow category of incorrigible.



                                             24
                                      DISPOSITION

       The trial court's order granting Kirchner's petition is reversed with directions that

the trial court enter an order denying the petition without prejudice to Kirchner's right to

bring a petition under section 1170, subdivision (d)(2).




                                                                                  BENKE, J.

WE CONCUR:


McCONNELL, P. J.


McDONALD, J.




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