People v. Berg

Filed 5/12/16
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068557

Plaintiff and Appellant,

v. (Super. Ct. No. HC21858)

JASON A. BERG,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County,

Charles G. Rogers, Judge. Affirmed.

Bonnie M. Dumanis, District Attorney, James E. Atkins, Craig E. Fisher and

Jennifer R. Kaplan, Deputy District Attorneys, for Plaintiff and Appellant.

Randy Mize, Chief Deputy Public Defender, Abbey J. Noel and Robert Ford,

Deputy Public Defenders, for Defendant and Respondent.

I.

INTRODUCTION

In 1997, the trial court sentenced Jason Berg to life without the possibility of

parole (LWOP) for committing a first degree murder with special circumstances when he
was 17 years old. (See Pen. Code,1 § 190.5, subd. (b) [providing that the penalty for a

first degree murder with special circumstances for a person "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"].)

Berg filed a petition for habeas corpus in December 2014, in which he requested

that the court vacate his sentence and order a new sentencing hearing on the ground that

the sentencing court's imposition of an LWOP sentence was unconstitutional under Miller

v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] (Miller). In Miller, the United States

Supreme Court held that "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,' " (id. at p. 2460) and stated that the "appropriate occasions" for

sentencing juveniles to LWOP are "uncommon." (Id. at p. 2469.)

The habeas court ruled that the sentencing court's statement of reasons for

imposing an LWOP sentence was "inconsistent with the evolving Eight Amendment

jurisprudence and the requirements of Miller, supra." The court granted the petition,

vacated Berg's sentence, and ordered that the matter be set for resentencing.

On appeal, in their opening brief, the People contend that the habeas court erred in

granting Berg's petition because Miller does not apply retroactively. However, while this

appeal was pending, the United States Supreme Court held that Miller announced a

1 Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
2
substantive rule of constitutional law that must be given retroactive effect. (Montgomery

v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718] (Montgomery)). Accordingly, we

reject the People's argument that Miller does not apply retroactively.

The People also claim that, even assuming Miller applies retroactively, the

sentencing court complied with Miller by considering "youth-oriented factors" before

imposing an LWOP sentence. In People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez),

the California Supreme Court stated, "We understand Miller to require a sentencing court

to admit and consider relevant evidence," pertaining to five specific categories of

evidence relevant to the determination of "whether a particular defendant is a ' "rare

juvenile offender whose crime reflects irreparable corruption." ' " (Id. at p. 1388.) The

Gutierrez court also concluded that an LWOP sentence may be imposed on a juvenile

homicide offender only "when the sentencing court's discretion is properly exercised in

accordance with Miller." (Id. at p. 1379.) While the court carefully considered numerous

factors in sentencing Berg, including Berg's youth, the court did not exercise its

discretion in accordance with the principles espoused in Miller and Gutierrez, which

were both decided long after Berg's sentencing. We therefore reject the People's

contention that the trial court complied with Miller and Gutierrez.

Finally, in a supplemental brief, relying on a recent decision of another panel of

this court in In re Kirchner (2016) 244 Cal.App.4th 1398, 1416 (Kirchner), the People

contend that Berg's petition should be denied because section 1170, subdivision (d)(2)

provides an adequate statutory remedy for Miller error. In Montgomery, the United

States Supreme Court concluded that "[a] State may remedy a Miller violation by

3
permitting juvenile homicide offenders to be considered for parole, rather than by

resentencing them," and cited a Wyoming statute providing that juvenile homicide

offenders are eligible for parole in that state after 25 years of imprisonment.

(Montgomery, supra, 136 S.Ct. at p. 736.)

Unlike the Wyoming statute cited in Montgomery, section 1170, subdivision (d)(2)

does not provide that California juvenile homicide offenders may be considered for

parole after some specified period of time. Instead, the statute sets forth a process

pursuant to which a select group of defendants sentenced to LWOP for crimes committed

as juveniles may file petitions for recall and resentencing, which, if granted, may lead to

the imposition of a new sentence containing a period of parole eligibility. (Ibid.) The

statute expressly disqualifies certain defendants from obtaining relief pursuant to the

statue (id., subd. (d)(2)(A)(ii)), requires a defendant to file a petition "describing his or

her remorse and work towards rehabilitation," (id., subd. (d)(2)(B)), requires the petition

to affirm that one of four qualifying factors is true (id., subd. (d)(2)(B)(i)-(iv)), and sets

forth a nonexclusive list of eight factors for a trial court to consider in determining

whether to grant the petition (id., subd. (d)(2)(F)(i)-(viii)). In short, while section 1170,

subdivision (d)(2) provides a statutory procedure by which some defendants serving

LWOP sentences for crimes committed as juveniles may obtain resentencing, we disagree

with the Kirchner court's conclusion that the statute provides such defendants with "all

the rights set forth in Miller and Montgomery." (Kirchner, supra, 244 Cal.App.4th at p.

1416.) For reasons that we explain in greater detail in part III.C., post, we conclude that

4
section 1170, subdivision (d)(2) does not provide an adequate statutory remedy for Miller

error.

Accordingly, we affirm the trial court's order granting Berg's petition and directing

that the matter be set for resentencing.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The commitment offenses2

At the age of 17, Berg murdered victim Kettie Hancock during a burglary/robbery

of a store at which Hancock was the manager. Berg's girlfriend, who worked at the store,

let Berg and an accomplice into the store. Berg stabbed Hancock more than 21 times.

Approximately two weeks prior to the Hancock murder, Berg committed a robbery

of a gas station. During the robbery, Berg stabbed the victim, Richard Couch, at least

twice, causing Couch to suffer a deep puncture wound to his left arm.

B. The underlying criminal case

In October 1996, the People charged Berg with murder (§ 187) (count 1), and

alleged the special circumstance that Berg committed the murder in the course of a

robbery (§ 190.2, subd. (a)(17)), and during the commission of a burglary (§ 190.2, subd.

(a)(17)). The People also alleged that Berg personally used a knife during the murder

(§ 12022, subd. (b)(1)). In addition, the People charged Berg with conspiracy to commit

robbery and burglary (§ 182, subd. (a)(1)) (count 2), robbery (§ 211) (count 3), and

2 Our factual summary is based on the probation report because Berg pled guilty to
the commitment offenses and there was thus no trial in this case.
5
burglary (§ 459) (count 4) and alleged a knife use allegation with respect to each count

(§ 12022, subd. (b)(1)). Counts 1 through 4 were all related to the Hancock murder.

With respect to the incident involving Couch, the People charged Berg with

attempted murder (§§ 664, 187, subd. (a)) (count 5), assault with a deadly weapon and by

means of force likely to produce great bodily injury (§ 245, subd. (a)) (count 6), and

robbery (§ 211) (count 7). The People also alleged numerous weapon and injury

enhancements with respect to these counts.

In May 1997, Berg pled guilty to all charges and allegations.

As discussed in greater detail in part III.B., post, the trial court sentenced Berg to

LWOP on the murder conviction. Pursuant to section 654, the court stayed execution of

the sentence on the knife enhancement (§ 12022, subd. (b)(1)) on count 1. The court also

stayed execution of the sentences on both the substantive offenses and enhancements on

counts 2 through 4 pursuant to section 654. With respect to the attempted murder on

count 5 and related enhancements, the court imposed an aggregate term of 11 years to be

served concurrently with the LWOP sentence. The court stayed execution of the sentence

on count 6 pursuant to section 654 and imposed a seven-year sentence on count 7, to be

served concurrently with the LWOP sentence.

C. Berg's petition for habeas corpus

In December 2014, Berg filed a petition for habeas corpus and a supporting brief

in which he contended that the sentencing court's imposition of an LWOP sentence for a

crime that he committed as a juvenile constituted a violation of the prohibition against

cruel and unusual punishment contained in the Eighth Amendment of the United States

6
Constitution under Miller and Gutierrez.3 Berg supported his petition with relevant

portions of the record in the underlying criminal case.

After the People filed an informal response and Berg filed a reply, the trial court

issued an order to show cause as to why Berg's sentence should not be vacated and a

resentencing hearing held.

The People filed a return and a supporting brief in which they argued that the

sentencing court had given "full consideration to the relevant youth-related factors

applicable to [Berg]," and contended that "further guidance by Miller and Gutierrez

decisions would not have altered the court's sentencing choice." (Boldface &

capitalization omitted.) In the alternative, the People argued that Miller should not be

applied retroactively to Berg's case, which was final at the time Miller was decided.

After Berg filed a denial and the habeas court held a hearing on the petition, the

court issued an order granting the petition. In its order granting the petition, the habeas

court concluded that "current Eighth Amendment jurisprudence regarding the imposition

of life sentences on juvenile offenders must be applied retroactively to persons serving

actual or functional LWOP sentences." The habeas court further concluded that the

sentencing court's statement of reasons for imposing an LWOP sentence on Berg did not

comport with the requirements of Miller. The court ordered "that a writ of habeas corpus

3 Berg also claimed that the punishment violated the prohibition of cruel or unusual
punishments under Article I, section 17 of the California Constitution. However, only the
federal claim is relevant to this appeal.
7
be issued; that [Berg's] sentence of LWOP be vacated; and that the matter be set for re-

sentencing in the Superior Court."

The People appeal the trial court's order granting Berg's petition for habeas corpus.

III.

DISCUSSION

A. The habeas court did not err in concluding that Miller applies retroactively

As noted in part I., ante, in their opening brief, the People contend that the trial

court erred in granting Berg's petition because Miller does not apply retroactively to

Berg's case. However, the People concede in their supplemental brief that "the United

States Supreme Court in Montgomery held that Miller is retroactive . . . ."

We agree with the People's concession. In Montgomery, the United States

Supreme Court held that Miller's "holding is retroactive to juvenile offenders whose

convictions and sentences were final when Miller was decided." (Montgomery, supra,

136 S.Ct. at pp. 725, 732-736 [concluding that Miller established a substantive rule of

law that must be given retroactive effect under the federal constitution].)

Accordingly, the habeas court did not err in concluding that Miller applies

retroactively.

B. The habeas court properly concluded that, in sentencing Berg, the trial court did
not exercise its discretion in accordance with the juvenile LWOP sentencing
requirements later established in Miller

The People contend that the sentencing court "[c]omplied with Miller and

Gutierrez" because the sentencing court took "into account Miller-type youth-oriented

factors, and decided that LWOP was the appropriate sentence." The People's contention

8
raises a question of law. We review questions of law de novo. (See e.g., People v. Butler

(2003) 31 Cal.4th 1119, 1127 (Butler).)

1. Governing Law

In Montgomery, the United States Supreme Court held that before a defendant

may be sentenced to LWOP for a crime committed as a juvenile, the sentencing court

must hold a hearing at which the court considers the principles espoused in Miller

concerning youth:

"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. [Miller, supra, 132 S.Ct. at p. 2460.] 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 Gutierrez, the California Supreme Court applied Miller in disapproving People

v. Guinn (1994) 28 Cal.App.4th 1130 (Guinn). In Guinn, the Court of Appeal held that

section 190.5, subdivision (b) creates a presumption in favor of life without parole for

those sentenced under its provisions. The Gutierrez court summarized its holding and

disposition as follows:

"[W]e hold that section 190.5[, subdivision (b)], properly construed,
confers discretion on a trial court to sentence a 16- or 17-year-old
juvenile convicted of special circumstance murder to life without
parole or to 25 years to life, with no presumption in favor of life
without parole. We further hold that Miller requires a trial court, in
exercising its sentencing discretion, to consider the 'distinctive
attributes of youth' and how those attributes 'diminish the
penological justifications for imposing the harshest sentences on
juvenile offenders' before imposing life without parole on a juvenile
offender. (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2465].)

9
 Because the sentencing regime created by section 190.5[,
subdivision (b)] authorizes and indeed requires consideration of the
distinctive attributes of youth highlighted in Miller, we find no
constitutional infirmity with section 190.5[, subdivision (b)] once it
is understood not to impose a presumption in favor of life without
parole.

"Because the two defendants here were sentenced before Miller in
accordance with the interpretation of section 190.5[, subdivision (b)]
prevailing at the time (see Guinn, supra, 28 Cal.App.4th at p. 1142),
we remand for resentencing in light of the principles set forth in
Miller and this opinion." (Gutierrez, supra, 58 Cal.4th at pp. 1360-
1361.)

The Gutierrez court further concluded that Miller requires that a court deciding

whether to impose an LWOP sentence on a defendant for a crime committed as a juvenile

consider the following five types of evidence pertaining to youth: (1) "offender's

'chronological age and its hallmark features—among them, immaturity, impetuosity, and

failure to appreciate risks and consequences,' " (Gutierrez, supra, 58 Cal.4th at p. 1388);

(2) "any evidence or other information in the record regarding 'the family and home

environment that surrounds [the defendant]—and from which he cannot usually extricate

himself—no matter how brutal or dysfunctional,' " (id. at pp. 1388-1389); (3) "any

evidence or other information in the record regarding 'the circumstances of the homicide

offense, including the extent of [the defendant's] participation in the conduct and the way

familial and peer pressures may have affected him,' " (id. at p. 1389); (4) "any evidence

or other information in the record as to 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

10
agreement) or his incapacity to assist his own attorneys,' " (ibid.); and (5) "any evidence

or other information in the record bearing on 'the possibility of rehabilitation.' " (Ibid.)

In People v. Chavez (2014) 228 Cal.App.4th 18 (Chavez), this court applied Miller

and Gutierrez and stated that the five aforementioned types of evidence "when

considered together in a reasoned manner . . . [are a] useful and necessary means by

which a sentencing court must determine whether transient immaturity requires some

degree of leniency or irreparable corruption must be punished as severely as possible."

(Id. at p. 33.) Because there was nothing in the record in Chavez that indicated "that the

trial court itself directly considered this ultimate question," this court remanded the

matter for resentencing. (Id. at p. 34, italics omitted.)

2. Factual and procedural background

a. The sentencing court's statement of reasons for imposing an
LWOP sentence

At sentencing, the trial court stated that, pursuant to Guinn, Berg's sentence was

"presumptive[ly] life without possibility of parole." The court added, "I want to make it

clear, however, that in my view, if I had to weigh between the two [sentence alternatives

under section 190.5, subdivision (b) (i.e. LWOP or a sentence of 25 years to life)] on an

equal basis, the sentence in this case would be the same."

The court also noted that it was required to consider both aggravating and

mitigating factors in determining an appropriate sentence. In the course of its discussion

of such factors, the court made reference to several types of evidence related to Berg's

youth. For example, the court referred to Berg's childhood as follows:

11
 "The most important and significant item in mitigation relates to the
defendant's childhood. And here I recognize — I was bowled over
by the hellish childhood that this individual had. I have read
thousands of probation reports. I have handled juvenile dependency
cases. I have seen many, many sad situations, but this is probably
the worst that I have ever seen, short of torture of a child. That was
mental torture."

However, the court reasoned that, notwithstanding Berg's horrendous childhood,

he had made a choice to commit the murder, stating: "The problem with all of this is that

the defendant, at some point, began to make his own decisions. He was old enough at the

age of 17 years eight months to decide [sic] he had examples of the other way." The

court continued, "He had ceased being the child. The child was already damaged and

gone. The adult made the decision to kill [the victim]."

In discussing whether to follow a psychologist's recommendation to impose a

sentence other than LWOP, the court stated:

"If I look at this, the protection of society must be uppermost, and I
cannot think that we have the means yet, at the state where we are
today in history, particularly with the state of our prisons, to say that
he could get enough therapy, and enough rehabilitation, to be a safe
bet, even when he's an old man. It seems to me that too much
damage has been done to take that risk. [¶] I don't disagree that that
would be wonderful, but I do disagree that we have the means to
accomplish it."

The court further stated, "I find age as a slightly mitigating factor in this case.

[Berg] was young, but old enough to be sent to war in four months, and old enough to

make the choice."

12
 After a lengthy discussion of aggravating and mitigating factors, the court stated,

"So, I must sentence [Berg] to prison without the possibility of parole. The aggr[a]vants

outweigh the mitigants, so I must do that."

b. The habeas court's review of the sentencing court's statement of reasons

In its order granting Berg's petition, the habeas court rejected the People's

contention that the sentencing court had adequately considered the factors associated with

youth discussed in Miller. The habeas court reasoned:

"The court finds and concludes that [the sentencing judge's]
decision, though careful and thoughtful in the extreme, did not give
consideration to these factors—then unknown and, in this court's
view, largely unforeseeable—when she pronounced judgment.
Instead the thrust of the court's analysis was to consider aggravants
and mitigants under [former] rules 421 and 423 of the California
Rules of Court. [Citation.] For this reason alone, this court
concludes the petition must be granted."

3. Application

We acknowledge that the sentencing court's statements demonstrate that the court

did consider Berg's youth, to some degree, prior to imposing an LWOP sentence.

However, "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.' " (Montgomery, supra, 136 S.Ct. at p. 734.) Therefore, "[e]ven 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." ' " (Ibid.) Thus, before an LWOP sentence may be imposed on a

13
juvenile, a sentencing court must hold a hearing at which it considers whether the

defendant is " ' "the rare juvenile offender whose crime reflects irreparable

corruption . . . ." ' " (Ibid.)

The record in this case does not reflect that the sentencing court ever considered

"the ultimate question posed by the courts in both Miller and Gutierrez, . . . : Did th[is]

crime[ ] reflect transient immaturity or irreparable corruption?" (Chavez, supra, 228

Cal.App.4th at p. 33.) Rather than considering Berg's youth in determining whether he

was the " ' "rare juvenile offender whose crime reflects irreparable corruption" ' "

(Gutierrez, supra, 58 Cal.4th at p. 1388), the sentencing court considered Berg's youth in

the context of determining whether, as the sentencing court stated, the "aggr[a]vants

outweigh the mitigants." Thus, it is clear that in imposing an LWOP sentence on Berg,

the trial court did not exercise its discretion "in accordance with Miller," as is required.

(Id. at p. 1379.)4

In addition, given that Berg was sentenced prior to the decisions in Miller and

Gutierrez, the record does not reflect that the sentencing court considered all relevant

evidence related to whether the court could lawfully impose an LWOP sentence on Berg.

(See Gutierrez, supra, 58 Cal.4th at pp. 1389-1390 [outlining five categories of youth-

related evidence relevant to the determination of whether to impose an LWOP sentence

4 Given that the sentencing in this case occurred long before Miller and Gutierrez
were decided, it is entirely understandable that the sentencing court did not address the
principles espoused in these later decided cases. However, "[a] court commits error
where it acts contrary to a higher court's articulation of the law, even if such error is
understandable given the state of the law at the time the lower court acted." (People v.
Bryant (2013) 222 Cal.App.4th 1196, 1208 (conc. opn. of Aaron, J.).)
14
on a defendant for a crime committed as a juvenile].) A new sentencing hearing will

afford the opportunity for the parties to present, and the trial court to consider, such

evidence.

Accordingly, we conclude that the habeas court properly determined that, in

sentencing Berg, the trial court did not exercise its discretion in accordance with the

juvenile LWOP sentencing requirements established in Miller.

C. Section 1170, subdivision (d)(2) does not provide an adequate remedy for
Miller error

In their supplemental brief, the People contend that "Berg's habeas petition should

be denied because he has a statutory remedy [for Miller error] under section 1170,

subdivision (d)(2)."5 (Citing Kirchner, supra, 244 Cal.App.4th 1398.) The People's

contention raises a pure question of law. We review questions of law de novo. (See, e.g.,

Butler, supra, 31 Cal.4th at p. 1127.)

1. The law governing collateral relief for Miller error

As discussed in part III.B., ante, under Miller, Gutierrez and Montgomery, before

imposing an LWOP sentence for a crime committed while the defendant was a juvenile, a

"trial court must consider all relevant evidence bearing on the 'distinctive attributes of

youth' discussed in Miller and how those attributes 'diminish the penological

justifications for imposing the harshest sentences on juvenile offenders.' " (Gutierrez, 58

5 Given that Kirchner was not decided until after the habeas court entered its order
granting Berg's petition in this case, we exercise our discretion to consider this issue even
though the People did not raise this contention in the trial court. (See People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6 ["An appellate court is generally not prohibited from
reaching a question that has not been preserved for review by a party"].)
15
Cal.4th at p. 1390, quoting Miller, supra, 132 S.Ct. at p. 2465; accord Montgomery,

supra, 136 S.Ct. at p. 735.) A trial court's failure to consider such factors constitutes

error.

In Montgomery, the United States Supreme Court held "that Miller announced a

substantive rule of constitutional law," that must be applied retroactively. (Montgomery,

supra, 136 S.Ct. at p. 736.) The Montgomery court reversed the Louisiana Supreme

Court's denial of an inmate's application for a supervisory writ seeking collateral review

of his LWOP sentence. (Id. at pp. 727, 737.) The Montgomery court also clarified that

states are not required to "relitigate sentences" (id. at p. 736) in order to remedy Miller

error, but can simply permit juvenile homicide offenders to be considered for parole:

"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. See, e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile
homicide offenders eligible for parole after 25 years). 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.

"Extending parole eligibility to juvenile offenders does not impose
an onerous burden on the States, nor does it disturb the finality of
state convictions. 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." (Ibid.)

16
 2. Section 1170, subdivision (d)(2)

Section 1170, subdivision (d)(2) outlines a process by which certain defendants

serving an LWOP sentence for a crime committed as a juvenile may file a petition for

recall and resentencing.

Section 1170, subdivision (d)(2)(A) describes the types of defendants who qualify

to file such a petition. Section 1170, subdivision (d)(2)(A)(i) requires that the defendant

have served "at least 15 years of [the LWOP] sentence," prior to filing a petition. Section

1170, subdivision (d)(2)(A)(ii) provides that the statute "shall not apply" to defendants

who tortured their victim or to defendants whose victim was a public safety official.6

Section 1170, subdivision (d)(2)(B) outlines the required contents of a petition for

recall and resentencing, including mandating that the defendant describe "his or her

remorse and work towards rehabilitation," and state that one of four qualifying factors is

true. Section 1170, subdivision (d)(2)(B) provides:

6 Section 1170, subdivision (d)(2)(A) provides:
"(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."
17
 "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.

"(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."

Section 1170, subdivision (d)(2)(C) provides that "[i]f any of the information

required in subparagraph (B) is missing from the petition," the trial court "shall return the

petition to the defendant and advise the defendant that the matter cannot be considered

without the missing information."

Section 1170, subdivision (d)(2)(D) authorizes the People to file a reply to the

petition.

Section 1170, subdivision (d)(2)(E) specifies the circumstances under which a

court shall hold a hearing on the petition:

18
 "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."

Section 1170, subdivision (d)(2)(F) outlines several factors that a court may

consider in determining whether to recall and resentence a defendant:

"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.

19
 "(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."7

Section 1170, subdivision (d)(2)(G) describes the court's discretion to recall the

sentence and resentence the defendant:

"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."

Section 1170, subdivision (d)(2)(H) defines the circumstances under which a

defendant may file a subsequent petition for recall of sentence after the denial of a

petition:

"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

7 "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." (§ 1170, subd. (d)(2)(I).)
20
 that petition shall be determined, during the 25th year of the
defendant's sentence."

3. Section 1170, subdivision (d)(2) does not provide an adequate remedy for a
defendant seeking collateral relief for Miller error

"[H]abeas corpus is appropriate only when there are no other available and

adequate remedies; it may not be used to avoid otherwise available and adequate

remedies." (Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 433.)

Thus, we must determine whether section 1170, subdivision (d)(2) provides an adequate

remedy for a defendant, such as Berg, imprisoned under a sentence imposed in violation

of Miller and its progeny. For the reasons discussed below, we conclude that section

1170, subdivision (d)(2) does not provide an adequate remedy.

To begin with, to conclude to that section 1170, subdivision (d)(2) provides an

adequate remedy for those serving sentences imposed in violation of Miller would be

inconsistent with the United States Supreme Court's decision in Montgomery. The

Montgomery court indicated that states could remedy a Miller violation by "[e]xtending

parole eligibility" to offenders serving LWOP sentences for crimes committed as

juveniles. (Montgomery, supra, 136 S.Ct. at p. 736.) At no point in the Montgomery

court's opinion did the court suggest that a state could remedy Miller error by permitting

a defendant to utilize a statutory procedure that might lead to parole eligibility. The

actual remedy authorized in Montgomery, extending parole eligibility, provides an

adequate remedy for Miller error because it is the defendant's ineligibility for parole that

is the harm suffered by juvenile defendants sentenced to LWOP. In contrast, providing a

defendant with the opportunity to file a petition under section 1170, subdivision (d)(2)

21
that may or may not lead to the imposition of a new sentence containing a period of

parole clearly does not guarantee such relief.

Given the stringent requirements of section 1170, subdivision (d)(2), if the statute

were deemed to provide an adequate remedy for defendants serving a sentence imposed

in violation of Miller, it is all but certain that many defendants would be required to

continue to serve LWOP sentences without any sentencing court ever having considered

whether such defendants were the " ' "rare juvenile offender[s] whose crime reflects

irreparable corruption," ' " as is required. (Montgomery, supra, 136 S.Ct. at p. 724.)8

Such a result would be inconsistent with Montgomery's central tenet, namely, that a

retroactive application of Miller is required in light of the "grave risk" that many inmates

serving LWOP sentences from crimes committed as juveniles are "being held in violation

of the Constitution." (Id. at p. 736.)

In addition to being inconsistent with Montgomery, concluding that section 1170,

subdivision (d)(2) provides an adequate remedy for a Miller violation would also be

contrary to Gutierrez. In Gutierrez, the California Supreme Court rejected the People's

argument that the enactment of section 1170, subdivision (d)(2) eliminated the possibility

that a defendant serving an LWOP sentence under California law for a crime committed

8 As described in part III.C.2., ante, section 1170, subdivision (d)(2) directs trial
courts to consider a host of factors, some of which are completely unrelated to those
discussed in Miller, before granting resentencing. (See, e.g., § 1170, subd. (d)(2)(F)(vii)
[listing whether "[t]he 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," as a factor to consider in determining
whether to grant a section 1170, subdivision (d)(2) petition].)
22
as a juvenile, had suffered a Miller violation. (Gutierrez, supra, 58 Cal.4th at p. 1387.)

The Gutierrez court reasoned in part:

"The Attorney General contends that section 1170[, subdivision
(d)(2)] removes life without parole sentences for juvenile offenders
from the ambit of Miller's concerns because the statute provides a
meaningful opportunity for such offenders to obtain release. In
support of this contention, the Attorney General relies on a 'cf.'
citation in Miller to language in Graham [v. Florida (2010) 560 U.S.
48 (Graham)].[9] (See Miller, supra, 567 U.S. at p. ___, 132 S.Ct.
at p. 2469 ['Cf. Graham, 560 U.S., at ___ [130 S.Ct., at p. 2030] ("A
State is not required to guarantee eventual freedom," but must
provide "some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation").']; see also Graham,
supra, 560 U.S. at p. 75 ['It is for the State, in the first instance, to
explore the means and mechanisms for compliance'].) However,
Graham spoke of providing juvenile offenders with a 'meaningful
opportunity to obtain release' as a constitutionally required
alternative to—not as an after-the-fact corrective for—'making the
judgment at the outset that those offenders never will be fit to reenter
society.' (Graham, at p. 75, italics added.) Likewise, Miller's 'cf.'
citation to the 'meaningful opportunity' language in Graham
occurred in the context of prohibiting 'imposition of that harshest
prison sentence' on juveniles under a mandatory scheme. (Miller, at
p. ___ [132 S.Ct. at p. 2469].) Neither Miller nor Graham indicated
that an opportunity to recall a sentence of life without parole 15 to
24 years into the future would somehow make more reliable or
justifiable the imposition of that sentence and its underlying
judgment of the offender's incorrigibility 'at the outset.' (Graham, at
p. 75.)" (Id. at p. 1386.)

Similarly, in People v. Lozano (2016) 243 Cal.App.4th 1126, 1138 (Lozano), the

California Court of Appeal concluded that a prisoner serving an LWOP sentence imposed

for a crime committed as a juvenile "does have a remedy under section 1170, subdivision

9 In Graham, the United States Supreme Court held that "the Eighth Amendment
prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide
offender." (Graham, supra, 560 U.S. at p. 75.)
23
(d)(2), but that remedy is not exclusive, nor is it a substitute for her Eighth Amendment

right to a sentencing hearing considering amenability to rehabilitation in the first

instance." (Ibid., italics added.)

In addition to being inconsistent with case law from the United States Supreme

Court, the California Supreme Court, and the California Court of Appeal, concluding that

section 1170, subdivision (d)(2) provides an adequate remedy to those serving sentences

imposed in violation of Miller raises serious constitutional concerns. Clearly, section

1170, subdivision (d)(2) does not provide an adequate remedy for those defendants

serving juvenile LWOP sentences to whom the statute, by its terms, does not apply.

Consider a petitioner such as the defendant in Montgomery, whose victim was a deputy

sheriff. (Montgomery, supra, 136 S.Ct. at p. 725.) A defendant who kills a law

enforcement officer is expressly disqualified from bringing a section 1170, subdivision

(d)(2) petition. (See § 1170, subdivision (d)(2)(A)(ii).)10 To conclude that a statutory

procedure for which the defendant is expressly disqualified affords an adequate remedy

for an Eighth Amendment violation would violate basic principles of due process. On the

other hand, if Kirchner is intended to limit the habeas corpus remedies only for those

10 Those prisoners who are expressly disqualified by section 1170, subdivision
(d)(2)(A)(ii), are not the only prisoners effectively unable to obtain relief under section
1170, subdivision (d)(2). If a prisoner's petition does not contain a "statement describing
his or her remorse and work towards rehabilitation," (id., subd. (d)(2)(B), the petition is
facially deficient and a trial court is required to "return the petition to the defendant . . . . "
(Id., subd. (d)(2)(C).) Thus, a prisoner who maintains his innocence, and therefore,
would not be in a position to express remorse, would also be ineligible to obtain relief for
Miller error via section 1170, subdivision (d)(2).
24
defendants who are not disqualified from filing a section 1170, subdivision (d)(2)

petition, this would raise equal protection concerns.

In any event, section 1170, subdivision (d)(2) does not provide an adequate

remedy for Miller error even for those defendants who might ultimately obtain a

resentencing pursuant to the statute. There is nothing in Miller or its progeny that

suggests that a state may condition a prisoner's right to receive a lawful sentencing

hearing upon the prisoner's success in a separate collateral proceeding. Thus, as Berg

correctly argues in his supplemental brief, "Mr. Berg must be granted a resentencing

hearing where the five Miller factors [outlined in Gutierrez] are the controlling factors

before the sentencing court, not the miscellaneous factors dictated in . . . section 1170,

subdivision (d)(2)."

4. We decline to follow Kirchner

As noted in part I., ante, in Kirchner, supra, a panel of this court concluded that

section 1170, subdivision (d)(2) "meets the requirements of Miller and Montgomery and

is therefore an adequate remedy which Kirchner[11] must pursue before resorting to

habeas corpus relief." (Kirchner, supra, 244 Cal.App.4th at pp. 1418-1419.) Kirchner's

11 The Kirchner court stated that its opinion was "limited to inmates, who, like
Kirchner, have been incarcerated for at least 15 years," of an LWOP sentence imposed
for a crime committed by the inmate as a juvenile. (Kirchner, supra, 244 Cal.App.4th at
p. 1405 and fn.1.) It is unclear under Kirchner whether a prisoner must wait 15 years
before attempting to obtain relief for Miller error pursuant to section 1170, subdivision
(d)(2) or whether more recently sentenced inmates may seek habeas relief without regard
to the statute.
25
conclusion that section 1170, subdivision (d)(2) provides an adequate remedy for Miller

error is unpersuasive for the following reasons.12

The Kirchner court stated 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." (Kirchner, supra, 244 Cal.App.4th at p. 1416, italics

added.) We disagree. As discussed in part III.C.3., ante, section 1170, subdivision (d)(2)

affords many defendants sentenced to LWOP in violation of Miller none of the rights set

forth in Miller and Montgomery, either because they are disqualified from obtaining relief

under the statute or they do not meet the requirements for obtaining such relief. Further,

1170, subdivision (d)(2) requires all prisoners seeking to obtain resentencing for Miller

error under the statute to prevail in a separate collateral proceeding before obtaining any

of the rights guaranteed by Miller and Montgomery.

Further, the Kirchner court's primary reason for concluding that section 1170,

subdivision (d)(2) provides an adequate remedy for Miller error appears to be its

(mistaken) assumption that only through a section 1170, subdivision (d)(2) proceeding

may a court consider a defendant's postconviction conduct. (Kirchner, supra, 244

Cal.App.4th at pp. 1416-1418.) The Kirchner court reasoned:

"This procedure [outlined in section 1170, subdivision (d)(2)] of
course responds to and remedies Justice Scalia's concerns [expressed
in his dissent in Montgomery], which are implicitly recognized by

12 While we acknowledge that we ordinarily follow prior decisions from this court,
we are not bound to do so. We may depart from such decisions when there are " 'good
reasons' " for doing so. (Lucent Technologies, Inc. v. State Board of Equalization (2015)
241 Cal.App.4th 19, 35.)
26
 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. . . . [¶] . . . [¶]
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,[13] 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." (Id. at p. 1417, italics altered.)

This reasoning is unpersuasive because there is nothing in Miller, Gutierrez, or

Montgomery that suggests, much less states, that a trial court is precluded from

considering evidence of a defendants' postconviction conduct in conducting a

resentencing as a remedy for Miller error. On the contrary, a trial court is required to

consider such evidence in determining a defendant's amenability to rehabilitation upon

resentencing. (Lozano, supra, 243 Cal.App.4th at pp. 1137-1138.)14 In Lozano, in

response to a defendant's petition for habeas corpus, the People conceded that the

defendant was entitled to a new sentencing hearing in light of Miller. (Lozano, supra, at

pp. 1129-1130.) Upon resentencing, the trial court excluded evidence of Lozano's

postconviction rehabilitation. (Id. at p. 1137.) The Lozano court concluded that this

ruling constituted error, reasoning:

13 While portions of the Kirchner opinion appear to indicate that a prisoner must file
a section 1170, subdivision (d)(2) petition "before resorting to habeas corpus relief,"
(Kirchner, supra, at p. 1419, italics added), this portion of the opinion suggests that
section 1170, subdivision (d)(2), is a prisoner's "exclusive remedy," for Miller error.
(Kirchner, supra, at p. 1417.) We conclude that both conclusions are incorrect, for the
reasons stated in the text.
14 Indeed, the Kirchner court itself recognized this point, stating, elsewhere in its
opinion, "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." (Kirchner, supra, 244 Cal.App.4th at p. 1413.)
27
 "In light of Miller and Gutierrez, we conclude the trial court could
not categorically exclude Lozano's proffered evidence of
postconviction rehabilitation. As Gutierrez, supra, 58 Cal.4th at
page 1390, interpreted Miller, 'the trial court must consider all
relevant evidence bearing on the "distinctive attributes of youth"
discussed in Miller and how those attributes "diminish the
penological justifications for imposing the harshest sentences on
juvenile offenders." (Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at
p. 2465].)' All relevant evidence, in our view, includes what Lozano
asserts is 15 years of rehabilitation in prison. Disregard of evidence
of rehabilitation, under the circumstances presented here, is
inconsistent with the focus required by Miller and Gutierrez." (Id. at
pp. 1137-1138.)

The Lozano court also specifically rejected the People's argument that evidence of

postconviction conduct could be presented only in a petition for resentencing under

section 1170, subdivision (d)(2):

"We reject the Attorney General's argument that Lozano's proper
forum for introduction of evidence of postconviction rehabilitation is
via a petition for resentencing under section 1170, subdivision
(d)(2). Gutierrez effectively disposes of this contention in its
recognition that amenability to rehabilitation must be considered at
sentencing before imposition of an LWOP sentence. (Gutierrez,
supra, 58 Cal.4th at pp. 1386-1387.)" (Lozano, supra, 243
Cal.App.4th at pp. 1137-1138.)15

There is also nothing in the text of section 1170, subdivision (d)(2) that manifests

the Legislature's intent to create a procedure for providing a remedy for Miller error.

Rather than providing a mechanism for recalling sentences imposed in violation of

Miller, section 1170, subdivision (d)(2) provides a statutory procedure by which

defendants whose LWOP sentences were validly imposed may seek to recall such

15 The Kirchner court did not cite Lozano, which was decided a little more than a
month before Kirchner.
28
sentences by making the requisite statutory showing. However, the Kirchner court's

holding requiring that the statute be used to remedy Miller error led the court to further

conclude that the statute must be applied in a manner that finds no support in the text of

the statute. Specifically, the Kirchner court imposed upon the People the burden of proof

in a section 1170, subdivision (d)(2) / Miller remedy proceeding. (See Kirchner, supra,

244 Cal.App.4th at p. 1418 ["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 for

whom no possibility of parole should be provided," italics added].)16

There is no support for the Kirchner court's reassigning of the burden of proof to

the People in the statutory language. On the contrary, section 1170, subdivision (d)(2)

clearly places the burden of proof on the defendant. The statute provides that "[t]he

defendant shall file the original petition with the sentencing court" (id., subd. (d)(2)(B),

italics added), requires that the petition contain the "defendant's statement" that various

qualifying factors are true (ibid., italics added), authorizes the People to file a "reply to

the petition," (id., subd. (d)(2)(D), italics added), and mandates that the court shall hold a

16 It is not clear whether the Kirchner court concluded that the People always bear
the burden of proof in a section 1170, subdivision (d)(2) proceeding, or bear the burden
only when the proceeding is used to remedy Miller error. Either result is problematic.
The former is inconsistent with the statutory language. The later demonstrates the
Kirchner court's misapplication of the statute in a context unintended by the Legislature.
29
hearing "[i]f the court finds by a preponderance of the evidence that the statements in the

petition are true" (id., subd. (d)(2)(E), italics added). Placing the burden of proof on the

defendant is consistent with the statute's purpose of providing a defendant who is serving

a lawfully imposed LWOP sentence with the opportunity to obtain a new sentence.

Finally, we are not persuaded by the Kirchner court's assertion that "[o]ur

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

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

(Kirchner, supra, 244 Cal.App.4th at p. 1419.) As the Kirchner court acknowledged, the

Gutierrez court explicitly concluded "that the possibility that an LWOP 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." (Ibid., italics added.) Thus, the Kirchner

court's conclusion that section 1170, subdivision (d)(2) does provide an adequate remedy

for a Miller violation conflicts with Gutierrez. While the Kirchner court noted that

Gutierrez was decided in the context of a direct appeal while Kirchner's case arose in the

context of a collateral proceeding, there is nothing in Gutierrez that suggests that this

distinction had any bearing on the court's decision. Further, given that the United States

Supreme Court in Montgomery held that Miller must be given retroactive effect in

collateral proceedings, we see no reason why this distinction should have any relevance

in this context.

Accordingly, we decline to follow Kirchner and instead conclude that section

1170, subdivision (d)(2) does not provide an adequate remedy for a defendant seeking

collateral relief for Miller error.

30
 IV.

DISPOSITION

The trial court's order granting Berg's petition for writ of habeas corpus is

affirmed.

AARON, J.

I CONCUR:

HALLER, Acting P. J.

31
McDonald, J., Concurring.

I concur in the opinion and write separately to acknowledge that after considerable

reflection, although I signed the opinion in In re Kirchner (2016) 244 Cal.App.4th 1398, I

agree with the opinion in this case including its provisions that are inconsistent with In re

Kirchner.

McDONALD, J.