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In re Kirchner

Section 1170, subd.(d)(2), allowing for recall of an LWOP term and resentencing to life with parole did not provide an adequate remedy for Miller error.

In Miller v. Alabama (2012) 567 U.S. ___, the court found a juvenile homicide offender can only be sentenced to life without parole when the penalty is discretionary and the sentencing court properly exercises its discretion. The court should consider the distinctive attributes of youth when considering an LWOP term. Defendant, whose sentence was final two decades ago, filed a habeas corpus petition seeking resentencing because he received an LWOP sentence without consideration of the Miller factors. The court of appeal determined the existence of Penal Code section 1170, subd.(d)(2), which allowed for a recall and resentencing to life with parole, remedied the defect. However, section 1170, subd.(d)(2) does not provide an adequate remedy for Miller error.

____ Cal.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3901 (2017) April 24, 2017 (S233508)

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