Filed 6/23/17 In re Kirchner CA4/1
Opinion on remand from Supreme Court

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re KRISTOPHER KIRCHNER on Habeas Corpus.

D067920

(Super. Ct. Nos. HC21804, CRN26291)

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

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. 460 (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.___ [136 S.Ct. 718, 193 L.Ed.2d 599] (Montgomery).)
We initially determined that the procedure provided by Penal Code section 1170 subdivision (d)(2) was an adequate remedy for any failure to provide a juvenile defendant with consideration of the factors required by Miller and reversed the trial court's order granting Kirchner's petition. On review, the Supreme Court found that Penal Code section 1170, subdivision (d)(2) is not an adequate remedy for a Miller deficiency, reversed our judgment and directed that we affirm the trial court's order granting habeas relief and remand the matter to the superior court for a resentencing hearing consistent with Montgomery, Miller and Gutierrez. (In re Kirchner (2017) 2 Cal.5th 1040, 1056.) Accordingly, we do so herein.
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.
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) 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.
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.' " (Miller, supra, 567 U.S. at p. 502.) 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. 471.) 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 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. 477.)
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, 567 U.S. at p. 470, 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 him to death." (Miller, supra, 567 U.S. at p. 470, 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. 471.)
In Gutierrez, the California Supreme Court addressed the impact of Miller on Penal Code 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 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, 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.]" (Ibid.)
Finally, Gutierrez rejected the Attorney General's contention 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.
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. (Montgomery, supra, 136 S.Ct. at p. 724.)
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.' [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, 136 S.Ct. at pp. 729-730.)
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, 136 S.Ct. at p. 734, 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 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, 136 S.Ct. at p. 735.)
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, 136 S.Ct. at p. 744 (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 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.] 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, 136 S.Ct. at p. 736, 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 arguably suggested 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 commit even heinous crimes are capable of change." (Montgomery, supra, 136 S.Ct. at p. 736.) In sum, following Montgomery, in collateral proceedings a petitioner must be provided either an opportunity for parole or resentencing consistent with Montgomery itself, as well as Miller and Gutierrez. (In re Kirchner, supra, 2 Cal.5th at p. 1056.)
B. 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' "].) As noted at the outset, the Supreme Court has determined section 1170, subdivision (d)(2) is not an adequate remedy that Kirchner was required to pursue before seeking habeas relief. (In re Kirchner, supra, 2 Cal.5th at pp. 1054-1056.) Because the Penal Code does not otherwise provide Kirchner with an opportunity for parole, the trial court did not err in granting Kirchner habeas relief compelling a hearing in the superior court to determine whether, under Montgomery, Miller and Gutierrez, he must be provided an opportunity to apply for parole.
DISPOSITION
The trial court's order granting Kirchner's petition is affirmed and remanded to the superior court for a resentencing hearing consistent with Montgomery, supra, 136 S.Ct. 718; Miller, supra, 567 U.S. 460; and Gutierrez, supra, 58 Cal.4th 1354. (In re Kirchner, supra, 2 Cal.5th at p. 1056.)


BENKE, J.

I CONCUR:



McCONNELL, P. J.

I CONCUR IN THE RESULT:



HUFFMAN, J.