In re Kirchner

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)).

that a juvenile falls among the worst offenders. The susceptibility of juveniles 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

Gutierrez , su pra , 58 Cal.4th 1354 , 171 Cal.Rptr.3d 421 , 324 P.3d 245 , under Miller a sentencing court considering a sentence of life without parole for a 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

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.

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

III. DISPOSITION

The judgment of the Court of Appeal is reversed and the matter remanded to 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.

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

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 , 193 L.Ed.2d 599 ( 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

as an adequate remedy at law that precludes habeas corpus relief

( 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, 130 S.Ct. 2011 ), 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, 130 S.Ct. 2011 .) 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, 130 S.Ct. 2011 .) Therefore, the court directed that these defendants be provided "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." ( Ibid . )

Two years later, in Miller , supra , 567 U.S. 460 , 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

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, 171 Cal.Rptr.3d 421 , 324 P.3d 245 , 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 ' "necessarily carr[ies] a significant risk that a defendant" '-here, the vast

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)(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 .)

that the potential to recall a life without parole sentence based on a future demonstration of rehabilitation can make such a 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, 171 Cal.Rptr.3d 421 , 324 P.3d 245 .)

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

parole potentially subject to recall under its terms. Resentencing

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, 171 Cal.Rptr.3d 421 , 324 P.3d 245 , 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 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, 202 Cal.Rptr.3d 496 , 370 P.3d 1053 [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

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) 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, 203 Cal.Rptr.3d 622 , 373 P.3d 435 [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. 460 , 132 S.Ct. 2455 .

The situation here does not resemble that involved in In re Gandolfo , supra , 36 Cal.3d 889 , 206 Cal.Rptr. 149 , 686 P.2d 669 , 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, 206 Cal.Rptr. 149 , 686 P.2d 669 .) 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.

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 , 171 Cal.Rptr.3d 421 , 324 P.3d 245 .

We Concur:

Werdegar, J.

Chin, J.

Corrigan, J.

Liu, J.

Cuéllar, J.

Kruger, J.

In Miller v. Alabama (2012) 567 U.S. 460 , 132 S.Ct. 2455 , 183 L.Ed.2d 407 ( 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, 171 Cal.Rptr.3d 421 , 324 P.3d 245 ( 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, 171 Cal.Rptr.3d 421 , 324 P.3d 245 .)

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

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. 460 , 132 S.Ct. 2455 . Petitioner seeks a resentencing 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

for Miller error, we first 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, 125 S.Ct. 1183 , 161 L.Ed.2d 1 ( Roper ), quoting Trop v. Dulles (1958) 356 U.S. 86 , 101, 78 S.Ct. 590 , 2 L.Ed.2d 630 (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 , 125 S.Ct. 1183 , the United States Supreme Court determined that the Eighth Amendment categorically prohibited imposition of the death penalty on juvenile offenders. ( Roper , at p. 568, 125 S.Ct. 1183 .) 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, 125 S.Ct. 1183 .) 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, 113 S.Ct. 2658 , 125 L.Ed.2d 290 .) 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, 125 S.Ct. 1183 .) Put together, "These differences render suspect any conclusion

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 , 130 S.Ct. 2011 , 176 L.Ed.2d 825

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. 460 , 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

( 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 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." (

This court has had one prior opportunity to consider the intersection of the Eighth

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, 21 Cal.Rptr.2d 509 , 855 P.2d 729 .) 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, 265 P. 947 ), 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, 206 Cal.Rptr. 149 , 686 P.2d 669 ). (See also

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

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