Metropolitan News-Enterprise


Monday, May 23, 2016


Page 1


S.C. to Review Issue of Life Sentences for Minors


By a MetNews Staff Writer


The state Supreme Court has agreed to decide whether a recently enacted law giving youthful offenders serving life sentences an opportunity for parole brings the state into compliance with a U.S. Supreme Court decision barring mandatory life-without-parole sentencing for crimes committed by juveniles.

The justices, at their weekly conference in San Francisco Wednesday, unanimously granted review in In re Kirchner (2016)  244 Cal. App. 4th 1398. The Court of Appeal held there that a defendant sentenced to life imprisonment without possibility of parole for a brutal murder he committed when he was 16 was not entitled to resentencing under Miller v. Alabama (2012) 132 S.Ct. 2455.

That ruling struck down a statute mandating a life sentence without possibility of parole for juveniles convicted of the highest degree of murder. But it held that such a sentence may be imposed after a weighing of aggravating and mitigating factors, although the burden of proving that the defendant should not have a chance of eventual freedom is placed on the prosecution.

In response to Miller, the Legislature enacted Penal Code §1170(d)(2). This permits an inmate serving a life without parole (“LWOP”) sentence for a crime committed as a juvenile to file a petition for resentencing after serving at least 15 years in prison.

Kirchner is serving LWOP for the 1993 murder of Ross Elvey during the commission of a robbery of his business, a gun store in Vista. The victim was beaten with a metal pipe, sustaining 25 skull fractures and dying after being in a coma for 40 days, according to testimony at the trial.

He was sentenced in 1994. He has been seeking habeas corpus relief since shortly after Miller was decided.

The District Attorney’s Office in San Diego initially conceded that he was entitled to a new sentencing hearing, but withdrew the concession, arguing that Miller and a subsequent state case, People v.  Gutierrez (2014) 1354, should not be applied retroactively. San Diego Superior Court Judge Louis Hanoian rejected the argument and granted the petition.

The Court of Appeal agreed with Hanoian on the retroactivity issue, but reversed on the ground that §1170(d)(2) provided an adequate remedy.

Justice Patricia Benke, in concluding that Kirchner is not entitled to resentencing, explained that under the statute, the prosecution’s burden would be the same as at a resentencing hearing, that “of showing that the defendant is one of the rare individuals for whom no possibility of parole should be provided.”

On the other hand, she wrote:

“A process in which an inmate serving an unlawful sentence was required to show that he or she was not one of the rare incorrigible criminals would ignore the mandate…that Miller be given retroactive effect, as well as creating a presumption in favor of LWOP akin to the one rejected by the court in Gutierrez.”

The justice did caution in a footnote that the court was ruling only as to cases like Kirchner’s where the defendant has already served the minimum 15 years that permit him or her to petition under the statute.


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