Metropolitan News-Enterprise


Tuesday, April 25, 2017


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Supreme Court Orders New Sentencing for Defendant Who Killed at 16


By a MetNews Staff Writer


A defendant serving a life sentence without possibility of parole for a murder he committed at the age of 16 is entitled to a new sentencing hearing, the state Supreme Court ruled yesterday.     

Chief Justice Tani Cantil-Sakauye, writing for a unanimous court, agreed with a San Diego Superior Court judge that Kristopher Kirchner must be resentenced 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.

Cantil-Sakauye said a recently enacted law giving such offenders an opportunity for release does not cure Miller error. Penal Code §1170(d)(2)  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.

The statute sets forth a non-exclusive list of factors the court may consider, including the defendant’s specific role in the offense, juvenile court record, social and mental health history, efforts at rehabilitation, efforts to maintain family ties and disassociate himself from criminal associates, and prison record.

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.

Kirchner 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.”

The chief justice, however, said the statutory procedure—which was designed prior to Miller—“is not well suited to serve [the] purpose” of curing Miller error because it does not necessarily require a court to hear all of the evidence a resentencing under Miller requires, and because it does not apply to all defendants sentenced to LWOP for crimes committed as juveniles.

The statute, Cantil-Sakauye noted, specifically excludes some defendants, such as those convicted of killing peace officers, from seeking resentencing. It also includes mandatory pleading requirements not consistent with Miller, the chief justice said.

A more fundamental flaw, she said, is that while the statute permits the trial court to consider certain factors, it does not provide “the certainty” that Miller requires. Noting that other states have sought to comply with Miller by simply converting LWOP sentences to life terms with possibility of parole, the chief justice wrote, the California law “provides only a selective and qualified remedy, the application of which is ultimately premised on an inquiry that may, but does not necessarily, overlap with the one demanded by Miller.

 The case is In re Kirchner, 17 S.O.S. 2156.


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