KIRCHNER (KRISTOPHER) ON H.C.

Non-Title Respondent, Department of Corrections and Rehabilitation, Answer Brief on the Merits

Cal.August 19, 2016

COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT No. 8233508 F | L c D AUG 19 2016 In re KRISTOPHER KIRCHNERon Habeas Corpus Frank A. McGuire Clerk Deputy Appeal from the Fourth Appellate District, Division One, Case No. D067920 Superior Court of San Diego County, Case Nos. HC21804, CRN26291 The Honorable Louis R. Hanoian, Judge ANSWERBRIEF ON THE MERITS BONNIE M. DUMANIS District Attorney JAMESE. ATKINS Deputy District Attorney Chief, Appellate & Training Division JENNIFER KAPLAN,SBN 240602 Deputy District Attorney 330 W. Broadway, Suite 860 San Diego, CA 92101 Tel: (619) 531-3798 Fax: (619) 515-8632 Email: jennifer.kaplan@sdcda.org Attorneys for The People and Respondent e e e gh oP S A R R E E o Table of Contents Page [SSUC Lo... .cceecceesecceceeeeceeeeeaesaeaeeceeseneeeeessaeeeceaassesiaaeeeesneeeeeceeeeeseaaaaennaeeeeseaaaeeeteeens ] Statement of the Case and Facts.........ccecceseeseeseecceceeeeeeeeteeseseeeeeeeaesreneteneees 1 1. Factual and procedural background...........eeseneeeesecesensteaeesatenes ] 2. Court of Appeal opinion ....... cee eee eeeseeeeesseeceesseessesseteeneeaes 2 3. Grant Of TOVICW ........ececcceccccccecetseeenteeeeeeeesnsenaaaeeeeessaeeseeseeeenes 3 Summary ofArgument...eeedeaaeceaeeeneeceeseneeeeeeseeaneseaeeeieeeeeneees 3 Argument I. Section 1170, subdivision (d)(2) provides an adequate statutory remedy for Miller error in cases on collateral TOVICW ......cceceesccessccececeeseeeeeecneetessecsennaueaeececeeeeesensatessaeresensaes 4 A. Section 1170, subdivision (d)(2) provides a meaningful opportunity for release as required on COllateral review .......ccccscceeessseeeceeeceeseeeeseecenneeessees 4 B. Thetruth of Miller’s central intuition, that juveniles who commit the most heinous crimes are capable of change, is measured by postconviction conduct, codified in section 1170, subdivision (d)(2) ..........ccceesseeesseeeeenes 7 C. Section 1170, subdivision (d)(2) provides a mechanism for uniform application of Miller rights 0......cccceecccsecceseeeeeeseeseeeesseeeeceeeeseeesessnseses 9 I. Gutierrez does not foreclose collateral relief by section 1170, subdivision (d)(2), because it applies the statute only prospectively ..........ccecesccccceeetenneeeeceeteeesteesseeees 12 Il. People v. Franklin (2016) 63 Cal.4th 261 (Franklin) does not answer whethersection 1170, subdivision (d)(2) is a remedy for Miller error on collateral review.............000 14 CONCIUSION ..... eee cee eeceencccccneeeseneeeceeecesansauaananeeeceieensneeeeeeeceeeeeeeesenaaeonseetsevenes 15 Certificate of Word Coumt.........cccecescsssceseeeessecsneseceeeeceeeseseesneneessseereeaes 16 Table of Authorities Cases Page Graham v. Florida (2010) 560 U.S. 48 [130 S.Ct. 2011]...eeeeeeeee 14 In re Gandolfo (1984) 36 Cal.3d 889.00... .eeccccsccscecsseeeteeseseceeeeseesessseesseesseees 5 In re Kirchner (2016) 244 Cal.App.4th 1398 oo... ceceeeeeeseesteeeeees passim Miller v. Alabama (2012) 567 U.S. __s«[132. S.Ct. 2455]oe.passim Montgomery v. Louisiana (2016) 577 U.S. [136 S.Ct. 718]...passim People v. Berg (2016) 247 Cal.App.4th 418 ....cceceeeeceseseeessetteesseeeeeneners 12 People v. Franklin (2016) 63 Cal.4th 261 ooo. cceeecceescecesseeceerennesteeees 14,15 People v. Gutierrez (2014) 58 Cal.4th 1354 oocccccesseeeeseeeseeeees passim People v. Lozano (2016) 243 Cal.App.4th 1126.0... cceecccesssesetseessseeee 10 Statutes Penal Code Section 187, SUBCIVISION (4) .........cccccsessessssesssceecsesseceeeseceesssseecsscceeersersaaes 1 section 190.2, subdivision (a)(17)(A).......ccccccccsssscccceesessssrecssssetenssseaseese 1 section 190.2 , subdivision (€)(17)(G).........cccccccesssececceeesessecestsccesessertanes 1 SCCHON 190.5eeeceseeseeneeeesseeeeseeaeeceesenesecesseeeseeessseeesaeeessesstesseeeseerens 1 Section 190.5, SUbdIVISION (b)........... cc cccseessscessscececsenseececcsesseserensess 6, 13 SCCUON 211 oeeeeecssceccetceseeceesneeeseeeaceaeeseessecsneeseseessseeeseseseesseesesseseees 1 SECTION 459 oooee eecccceneesecsseeeceaeeeesesaeeeeseseeeeceeerstseeseanecseaeesesesarsssteseeseeees 1 SOCHON 654 ooees ceenecseeseeneeseneeesaeecesueeesecseeaeeetesuseesseeeaeesssesssnessaeeeseeees 2 section 1170, subdivision (d)(2) .........cccsccescccssecesessececesseeseessessuesees passim section 1170, subdivision (d)\(2)(A)Q1)......ccccccccccecsscccceessceesssecssssesssaneseess 2 section 1170, subdivision (d)(2)(B)(i)-(ill).......... ccc cceceeesessecssseeseesessaes 11 section 1170, subdivision (d)(2)(F)........veeeeneeenaneeeseeeeeeeeseeeetseesaneeeees 7,11 section 1170, subdivision (d)(2)(F)G)-(V).......cccececccesessececessesssesssseeeeess 11 section 1170, subdivision (d)(2)(F)()-(Vill) ..... ccc ceeecceceessseecscenerseseenens 7 section 1170, subdivision (d)(2)(H_)........cccccccccsssssceececeeessssesnsecceesersnees 6 li section 1170, subdivision (d)(2)(D) ........ccceeeeessecenetneeceeeesneeeeteeeeeesns 7,11 SOCHON BOS] oo... ceeceeceesscsesseeeeeceeseseeeeeececeeesssteeseeeeeeenseeaseneetaseteeees 6, 14,15 section 12022.1, SUbdIVISION (D)..........:cccccceessssessseesceeseeeestsesesseesensnseeeeeess 2 section 12022, SUbdIVISION (D).........cccccccceseecececseseeeseeeeeeeeeeetseeeensateseeses 1,2 SECHON 1202227 ooo. ecccccceeecesneeeceesnsnneceeceseeeeecesenenaeaeaaesereecterseneeeesensaseaes 1 Other Authorities Wyoming Statute Annotated section 6-10-301(C) eeecseseeceteeeteeees 5 ili ISSUE Whenajuvenile offender seeksrelief from a life-without-parole (LWOP)sentence that has become final, does Penal Code!section 1170, subdivision (d)(2), which permits most juvenile offenders to petition for recall of an LWOPsentence imposed pursuantto section 190.5 after 15 years, provide an adequate remedy under Miller v. Alabama (2012) 567 U.S. [132 S.Ct. 2455] (Miller), as recently construed in Montgomery v. Louisiana (2016) 577 U.S.___— [136 S.Ct. 718] (Montgomery)? STATEMENT OF THE CASE AND FACTS 1. Factual and Procedural Background’ On April 28, 1993, Kristopher Kirchner, age 16, robbed and beat to death 59-year-old Vista gun shop ownerRoss Elvey when herepeatedly crushed Elvey’s skull with a metal pipe. Kirchner and his companion, Damien Miller, age 15, left Elvey to die as they gathered as many guns as they could carry andran. After a court trial, Kirchner was convicted on March 10, 1994, of first degree murder (§ 187, subd. (a)). The court found true the special circumstance allegation that Kirchner committed the murder while engaged in the commission of a robbery and burglary (§ 190.2, subds. (a)(17)(A) & (a)(17)(G)) and that Kirchner personally used a deadly or dangerous weapon during the commission of the murder (§ 12022, subd. (b)). Kirchner wasalso convicted of robbery (§ 211) and burglary (§ 459), with allegations that he personally inflicted great bodily injury on Elvey (§ 12022.7) and ' All statutory referencesare to the Penal Code unless otherwise specified. * The factual and procedural background is taken from the Court of Appeal’s opinion and appellant’s opening brief in Jn re Kirchner (2016) 244 Cal.App.4th 1398, review granted May 18, 2016, S233508 (Kirchner). 1 personally used a deadly or dangerous weapon (§ 12022.1, subd. (b)). The trial court sentenced Kirchner to LWOPfor his murder conviction, plus one year consecutive for the weapon enhancement. The court stayed sentencing on the remaining counts and attendantallegations undersection 654. Kirchnerfiled a notice of appeal, but the appeal was dismissed for failure to file appellant’s openingbrief. In 2013, Kirchnerfiled a petition for writ of habeas corpus challenging his LWOPsentence. Thetrial court denied the petition, noting the issues raised by Kirchner were then pending before the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). On October 27, 2014, Kirchnerfiled a second petition for writ of habeas corpus. Kirchner contended his LWOPterm violated the constitutional requirements ofMiller and Gutierrez because the sentencing court did not engage in a youth-oriented analysis before imposing LWOP. The superior court issued an order to show cause asking whyrelief should not be granted. The People’s supplemental return argued Miller and Gutierrez did not apply retroactively and Kirchner was barred from collaterally attacking his sentence. On March 27, 2015, the superior court granted Kirchner’s petition. The People filed a timely notice of appeal. 2. Court of Appeal Opinion On February 23, 2016, Division One of the Fourth District Court of Appealissued its opinion in Kirchner, supra, 244 Cal.App.4th 1398, which applied the Montgomery decision. Montgomery had held Miller is retroactive in cases on collateral review. (Montgomery, supra, 136 S.Ct. at p. 732.) Montgomery hadalso held that a “State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” (/d. at p. 736.) The Kirchner court analyzed section 1170, subdivision (d)(2)(A)(i), which provides: 2 Whena defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonmentfor 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. Applying the holding ofMontgomery, the court in Kirchner held that section 1170, subdivision (d)(2) is an adequate statutory remedy for Miller error that must be exhausted before habeas relief may be sought. (Kirchner, supra, 244 Cal.App.4th at pp. 1416-1419.) “Where a habeas petitioner has an adequate remedy at law, he or she must employit before seeking writ relief.” Ud. at p. 1416.) 3. Grant of Review This court granted defendant’s petition for review on May18, 2016. SUMMARY OF ARGUMENT Section 1170, subdivision (d)(2) provides prisoners multiple opportunities to petition for relief by showing they “have since matured,”as Montgomery requiresin cases on collateral review. The statute employs rehabilitation and remorseas a litmustest for the arc of maturity. And rightly so: the “truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change”—is measured most logically by postconviction conduct. (Montgomery, supra, 136 S.Ct.at p. 736.) This arc of changeis codified in section 1170, subdivision (d)(2). Althoughsection 1170, subdivision (d)(2) does not automatically convert an LWOPsentence into a life-with-parole sentence forall defendants, it provides them with all the rights demanded by Miller and Montgomery, and it answers whether a murder wasthe productof transient immaturity or irreparable corruption. Section 1170, subdivision (d)(2) is the appropriate remedyin collateral cases because it allows a sentencing court to consider evidence dating back to a defendant’s juvenile status as well as 3 evidence of actual rehabilitation since the time of the murder. The only accurate, truthful way to determine whether a juvenile was capable of change two decadesagois to look at the evidence of that very change. The evidence of that changeis seen in the arc from the time of the murderto the present. A juvenile whose crimes were a product of transient immaturity will have changed with the passage of time. Section 1170, subdivision (d)(2) provides that changed juvenile—now an adult—with a life-with-parole sentence. Likewise, a juvenile whose crimes were the product of “irreparable corruption”will not have changed over time. Those incapable of change will have proven to be incorrigible and exhibit continued depravity. Because that person’s post-murder behavior will prove that the murder was indeed a productofirreparable corruption, he or she will not be resentenced to a life-with-parole sentence. Becausea life-with-parole sentence undersection 1170, subdivision (d)(2) depends on whether the defendant “has since matured,”it is not only an adequate statutory remedy for Miller error, it is exactly the measure Montgomery sanctioned for cases on collateral review. ARGUMENT 1. SECTION 1170, SUBDIVISION (d)(2) PROVIDES AN ADEQUATE STATUTORY REMEDY FOR MILLER ERROR IN CASES ON COLLATERAL REVIEW A. Section 1170, Subdivision (d)(2) Provides a Meaningful Opportunity for Release as Required on Collateral Review The United States Supreme Court held in Montgomery that a statutory remedy can cure a Miller violation. (Montgomery, supra, 136 S.Ct. at p. 736.) The Court declared: 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 permittingjuvenile homicide offenders to be consideredfor 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 doesit disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to servelife sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition— that children who commit even heinouscrimesare capable of change. (Montgomery, supra, 136 S.Ct. at p. 736, italics added.) California’s Legislature previously enacted section 1170, subdivision (d)(2), which entitles a defendant sentenced to LWOP for committing special circumstances murder when he was 16-17 years old to apply for a resentencing hearing. Where a habeas petitioner has an adequate remedyat law, he must exhaust it before seeking habeasrelief. (In re Gandolfo (1984) 36 Cal.3d 889, 899-900.) Section 1170, subdivision (d)(2) providesrelief to defendants previously sentenced as juveniles to LWOP.Petitions for recall and resentence maybefiled after serving 15 years of an LWOPterm.(§ 1170, subd. (d)(2).) Even if a defendant’s initial petition is denied, section 1170, subdivision (d)(2) gives LWOP defendants multiple chancesat parole becauseit allows them to petition at the 15th, 20th, and 24th yearsoftheir 5 incarceration. (§ 1170, subd. (d)(2)(H).) All LWOP defendants who were sentenced as juveniles were convicted of special circumstances murder. That crime carries a minimum sentence of 25 years to life. (§ 190.5, subd. (b).) Those who are determined to have been transiently immature and are resentenced undersection 1170, subdivision (d)(2) will have a parole hearing at the 25th year oftheir incarceration. (§ 3051.) Thus, the relief under section 1170, subdivision (d)(2) is obtained before the first available parole hearing. Kirchner argues, “Anything short of converting Mr. Kirchner’s illegal life without parole sentence to life with parole at 25 years cannot stand as a constitutionally sound substitute.” He claims section 1170, subdivision (d)(2) is an inadequate remedy because, unlike the Wyoming statute cited in Montgomery,it does not automatically bestow a parole hearing upon every defendant serving LWOP. (AOB 13-14.) Although section 1170, subdivision (d)(2) does not automatically convert an LWOP sentenceinto a life-with-parole sentencefor all defendants, it provides them with all the rights demanded by Miller and Montgomery. A parole hearingis granted once a sentencing court determines that the defendant murdered as a result of transient immaturity. That determination is made through section 1170, subdivision (d)(2). In fact, the statute gives defendants successive opportunities to show they “have since matured,” as Montgomery requires for collateral case review. (Montgomery, supra, 136 S.Ct. at p. 736.) Kirchneris currently eligible to petition for relief under section 1170, subdivision (d)(2). He has chosen notto do so. As required by Montgomery, section 1170, subdivision (d)(2) affords a defendant an “opportunity for release.” (Montgomery, supra, 136 S.Ct. at p. 736.) The statute outlines various factors a sentencing court may consider to determine whetherto recall and resentence. (§ 1170, subd. 6 (d)(2)(F)(i)-(viii).) But, crucially, the sentencing court is not limited to the statute’s enumerated factors. (§ 1170, subd. (d)(2)(F).) In fact, it “may consider any othercriteria that the court deemsrelevantto its decision ... .” (§ 1170, subd. (d)(2)(1).) Such criteria, even if deemed not already covered by the statute’s factors, will include the Miller factors. Section 1170, subdivision (d)(2) is the appropriate remedy in collateral cases becauseit allows a sentencing court to “examinenotjust the factors existing at the time of the crime, that is, those factors related to the defendant’s status as a juvenile, but also the factors relating to the defendant’s postconviction conduct and rehabilitation.” (Kirchner, supra, 244 Cal.App.4th at pp. 1416- 1417.) In collateral cases, section 1170, subdivision (d)(2) measures whether a defendant whokilled long ago was capable of reform; it provides him relief, so he is not “mandated [to] die in prison.” (Miller, supra, 132 S.Ct. at p. 2460.) B. The Truth of Miller’s Central Intuition, that Juveniles Who Commit the Most Heinous Crimes are Capable of Change, is Measured by Postconviction Conduct, Codified in Section 1170, Subdivision (d)(2) Montgomery providesthat, under Miller and on collateral review, postconviction conduct must be measured to determine whether a defendant has, in fact, rehabilitated. (Montgomery, supra, 136 S.Ct. at p. 736.) Evaluation of postconviction conduct fulfills Miller’s demandfor a meaningful opportunity for release. Specifically, section 1170, subdivision (d)(2) gives reformed defendants a resentencing hearing.It is also important to underscore that the defendants sentenced as juveniles to LWOP whoare eligible for collateral relief are a limited group. Approximately 130 currently fall within the parameters of section 1170, subdivision (d)(2) relief. Approximately 100 have not yet reached the 15-year mark. About 35- 50 have already had their cases resolved on direct review following Miller. (AOB,Appendix A.) Today’s sentencing court cannot turn back time and, for instance, invent a non-existent psychological evaluation of a then- 16-year-old Kirchner. The court is limited by the passage of time. The retroactive application of Miller does not necessarily demand that collateral cases have the exact same remedyas those on direct appeal. It is impossible to recreate the 16- or 17-year-old defendant atthis late stage. What Montgomery demandsis thatall the rights of Miller be fulfilled, whatever the method.In collateral cases, the time frame of “at the outset” has long since passed. But the sentencing court now has an advantage:instead of imprecisely predicting whether a defendant will rehabilitate, the court has actual evidence of rehabilitation or continued depravity. Section 1170, subdivision (d)(2) embodies, fulfills, and standardizes this advantage.In collateral cases, the presence or lack of maturity can be measured best by postconviction conduct. Montgomery’s use of the phrase “have since matured” demandsan analysis of the defendant’s behavior since the murder. A determination of whether one has “since matured” requires a look at prison behavior to evaluate and understand whether the murder wasa productofthe presumptive transient immaturity or, instead, irreparable corruption. Section 1170, subdivision (d)(2) avoids the fiction of resentencing a 39-year-old prisonerlike Kirchner as though the two-plus decades of postconviction behavior do not exist. After all, Kirchner has lived more years since he murdered Ross Elvey than before the murder. Because section 1170, subdivision (d)(2) measures actual maturity and rehabilitation, it complies with Montgomery’s mandate that states resolve Miller error on collateral review by answering one question: does the prisoner have an opportunity to demonstrate an ability to reform? (Montgomery, supra, 136 S.Ct. at p. 736.) In sum,section 1170, subdivision (d)(2) does not ignore a juvenile’s capacity to mature. It measures it. The numerousfactors in the statute standardize how courts should remedy Miller error in collateral cases. Because section 1170, subdivision (d)(2) relief depends on whetherthe defendant “has since matured,”it is an adequate statutory remedy for Miller error in collateral cases. C. Section 1170, Subdivision (d)(2) Provides a Mechanism for Uniform Application of Miller Rights As noted by Justice Benke in the Kirchner opinion,if section 1170, subdivision (d)(2) is deemed to be an inadequate remedy, then a defendant can select whetherto utilize a section 1170, subdivision (d)(2) petition or a habeas corpus petition. (Kirchner, supra, 244 Cal.App.4th at p. 1417.) Allowing the defendant to choose would potentially subvert justice. A prisoner whohas behaved poorly in prison will chooseto file a habeas petition rather than a section 1170, subdivision (d)(2) petition in order to eliminate negative postconviction evidence. With that discretion left to the defendant, a prisoner whohas not reformed—and thus whosecrimereflects irreparable corruption—might nonetheless be resentenced to 25 yearsto life if he simply showsthatat the time of his original sentencing there was no proofof his incorrigibility. Meanwhile, a prisoner who has behaved well in prison will opt for the much simpler section 1170, subdivision (d)(2) petition, because it permits a court to considerhis positive postconviction conduct. (/bid.) This inconsistency will erode the internal integrity necessary to fair and consistent proceedings. (/bid.) Section 1170, subdivision (d)(2) codifies the admissibility of postconviction conduct, whether demonstrative of reform or corruption. A system that allows a defendantto select his own method of relief—rather than a mandatory resort to section 1170, subdivision (d)(2)— leads to “mischief,” as the Court of Appeal put it. (Kirchner, supra, 244 Cal.App.4th at p. 1417.) Indeed, without section 1170, subdivision (d)(2) some resentencing courts will admit postconviction conduct and somewill not, depending ontheir interpretation of Miller.’ This inconsistency would erode the internal integrity necessary to fair proceedings. (/bid.) It would also lead to sentencesthat do not accurately reflect whether the defendant was one whohadbeen capable of changeoris irreparably corrupt. Further, Kirchner claimsthat, in a post-habeas Miller resentencing hearing, “rehabilitation evidenceis not the overriding factor in determining whether an offender should be resentencedto life with parole, butit canstill be considered bythetrial court.” He complainsthat a section 1170, subdivision (d)(2) resentencing hearing violates Miller “becauseit places too much emphasis on postconviction conduct.” (AOB 11.) It is unclear how an emphasis onrehabilitation evidence violates Miller. But the point of the statutory solution sanctioned by Montgomery is that postconviction conduct is the measure of Miller’s central intuition that juveniles can change. A 20-year-old sentence cannot now berecreated “at the outset” with the same accuracy as a prospective sentence; evidence surrounding the circumstances of the 16- or 17-year-old juvenile’s offense is often unavailable, stale, or incomplete. A resentencing court today cannottruly * In People v. Lozano (2016) 243 Cal.App.4th 1126 (Lozano), a case that pre-dated Montgomery, a resentencing court excluded postconviction conduct becauseit interpreted Miller and Gutierrez as requiring it “ ‘to go back in time’ and sentence Lozanoasthe facts existed at the time ofthe original sentencing hearing in 1996.” (Lozano, supra, 243 Cal.App.4th atp. 1132.) The Fifth Division of the Second District Court of Appeal held that “all relevant evidence of amenability to rehabilitation must be considered at a sentencing hearing.” (/d. at p. 1138.) This rule applies where the defendant brings forth evidence tending to show rehabilitation. It remains open to interpretation whether the People can proffer evidence tending to showirreparable corruption. 10 assess whether, 20 years ago, a defendant was immature, impetuous, suffered from familial pressure, or was incapable ofassisting his own attorneys. Any attempt to recreate the “at the outset” time frame would result in an unsupportable legalfiction. In collateral cases, there is one Miller factor that can accurately be measured: “the possibility of rehabilitation.” (Miller, supra, 132 S.Ct. at p. 2468.) And the wayto measureit is to look at evidence of actual rehabilitation. That is exactly whatsection 1170, subdivision (d)(2) does. Of course, section 1170, subdivision (d)(2) does more than just measure rehabilitation. Its other factors are related to the defendant’s status as a juvenile. (§ 1170, subds. (d)(2)(B)(i)-(aii), (d)(2)(F)(i)-(v), (d)(2)(D.) Furthermore,all Miller factors may be considered by a court deciding a section 1170, subdivision (d)(2) petition. As the statute’s languagestates, the court is “not limited to” the enumerated factors and “may consider any other criteria that the court deemsrelevant ... .” (§ 1170, subds. (d)(2)(F), (d)(2)().) Section 1170, subdivision (d)(2), then, is not just an adequate remedy but also the fairest and mostlogical one.It is unfair andillogical to both parties to return a 39-year-old defendant to the samestatus as existed on the day of the original sentencing two decades ago. Both parties benefit from a rounded,truthful, fully-informed hearing. A defendant, now yearsinto his prison sentence, will be assessed under the standardized factors provided by section 1170, subdivision (d)(2). If he has reformed, he will be resentenced. If he has not, hestill has the opportunity to demonstrate change over the 10- year course of the petition process. Kirchnerclaims that section 1170, subdivision (d)(2) makesit “all but certain that many defendants would be required to continue to serve LWOPsentences without any sentencing court ever having considered 1] whether such defendants were the rare juvenile offender whose crime reflects irreparable corruption.” (AOB 15, quoting People v. Berg (2016) 247 Cal.App.4th 418, 437, review granted July 27, 2016, S235277,internal quotes omitted, italics in original.) But, section 1170, subdivision (d)(2) does exactly that: it forces a sentencing court to determine whether the accrual of evidence over time demonstrates the defendant was capable of changeoris irreparably corrupt. I. Gutierrez Does Not Foreclose Collateral Relief by Section 1170, Subdivision (d)(2), Because It Applies the Statute Only Prospectively There remain two categories ofjuveniles affected by Miller and Montgomery:(1) those who haveyet to be sentenced, and (2) those whose cases are final and whoseekcollateralrelief, like Kirchner. Montgomery exists because there were two separate categories. And Montgomery held while the second category ofjuveniles is entitled to relief, the form ofrelief may be different from thatof the first category ofjuveniles. (Montgomery, supra,136 S.Ct. at p. 736.) Gutierrez held that, from Miller forward, no future juvenile special circumstances murderer could be sentencedto LWOPwithout a Miller analysis accounting for his potential to rehabilitate. Butit was not until Montgomery that the question of “continued confinement” was taken up—the question asked on collateral review. (Kirchner, supra, 244 Cal.App.4th at p. 1419,italics in original.) It makes sense that in this context, Montgomery recognized that demonstrated rehabilitation is the litmus test of whether a presently mature prisoner must have been merely transiently immature at age 17 when he murderedhis victim. Kirchner overstates the holding of Gutierrez. He claims the court held section 1170, subdivision (d)(2) is not a constitutional remedy— 12 prospective or retrospective—for juveniles illegally sentenced to LWOP. Butthat baselessly broadens the court’s holding. Asthe Court of Appeal in Kirchner correctly pointed out, Gutierrez arose on direct appeal, rather than collateral review. The question before the Gutierrez court was whether, going forward, the presumptive LWOP interpretation of section 190.5, subdivision (b) violates Miller; and, whether, going forward, section 190.5, subdivision (b) sentences were even subject to Miller in thefirst place. The Attorney General in Gutierrez had argued the sentences were not subject to Miller because section 1170, subdivision (d)(2) “converted”the sentencesto life with parole sentences. The court in Gutierrez rejected that argument. Gutierrez found that section 1170, subdivision (d)(2) did not moot constitutional concern where a defendant was sentenced under a presumptive LWOP schemeatthe outset. Going forward in California, a sentencing court cannot continue to sentence juvenile special circumstance murderers to LWOPwithout consideration of Miller factors by simply justifying that they may get a resentencing hearing in 15 years. At the outset, they wouldstill be receiving the unconstitutional sentence. (Gutierrez, supra, 58 Cal.4th at pp. 1386-1387.) Butin the instant case, the People do not argue that section 1170, subdivision (d)(2) removes the defendants from the ambit of Miller. Instead, section 1170, subdivision (d)(2) remedies cases on collateral review by accurately providing a retrospective measure of a defendant’s capability to change. Neither Miller nor Gutierrez addressed the remedy for defendants who were sentenced years ago. Montgomery did. Montgomery sensibly sanctions evidence of rehabilitation to determine, retrospectively, whether the defendant was indeed capable of change so long ago. Section 1170, subdivision (d)(2) measures that evidence in standardized form. As the Court of Appeal in Kirchnerstated, 13 There is no conflict between the strictly prospective focus of the courts in Gutierrez and Graham [v. Florida (2010) 560 US. 48 (130 S.Ct. 2011) (Graham)] and the retrospective focus expressly permitted by the court in Montgomery. Where, as in Gutierrez and Graham,the court was directly reviewingthe legality of a sentence, its focus was properly prospective and on the requirements of the constitution when a sentencing judge is making a prospective sentencing decision. In contrast, in Montgomery, the court was considering the somewhatbroader question of the constitutionality of the prisoner’s continued confinement. (Montgomery, supra, 193 L.Ed.2d at p. 622) ({Miller must be retroactive because of “grave risk that manyare being held in violation of the Constitution”].) In that procedural context, it is quite reasonable to permit consideration of a defendant’s postconviction conduct, especially in light of the possibility that a defendant’s postconviction behavior might show that he or she falls within the very narrow category of incorrigible. (Kirchner, supra, 244 Cal.App.4th at p.1419, italics in original.) Indeed, the procedure under section 1170, subdivision (d)(2) codifies admission of postconviction conduct as the reasonable,reliable measure of retrospectively determining transient immaturity versus irreparable corruption. Therefore, contrary to Kirchner’s argument, Gutierrez does not foreclose section 1170, subdivision (d)(2) as a collateral remedy. To the contrary, Montgomery calls for a retrospective look at postconviction conduct on collateral review. And section 1170, subdivision (d)(2) epitomizes that demand. HI. People v. Franklin (2016) 63 Cal.4th 261 (Franklin) Does Not Answer Whether Section 1170, Subdivision (d)(2) is a Remedy for Miller Error on Collateral Review This court recently held in Franklin that, on direct appeal, section 3051 moots a Miller error when a functional LWOPsentenceis imposed. 14 (Franklin, supra, 63 Cal.4th at p. 268.) Similar to the Attorney General’s argument in Gutierrez, this court reasoned that section 3051 converted Franklin’s sentence lo a non-LWOPsentence, so no Miller claimarose. (Franklin, supra, 63 Cal.4th at pp. 281-282.) The high court distinguished section 3051 from section 1170, subdivision (d)(2), noting that section 3051 converted functional LWOPsentencesto sentences not subject to the constitutional sentencing demands of Miller.bid.) As a result, there was no requirementthat the lower court evaluate Franklin’s incorrigibility at the outset. (/bid.) Franklin did not foreclose section 1170, subdivision (d)(2) as an adequate remedy oncollateral review for prisoners sentenced as juveniles to LWOP. CONCLUSION Accordingly, the People respectfully request that the judgment of the Court ofAppeal be affirmed. Dated: August 18, 2016 Respectfully submitted, BONNIE M. DUMANIS District Attorney JAMESE. ATKINS Deputy District Attorney Chief, Appellate & Training Division JENNIFER KAPLAN Deputy District Attorney Attorneys for The People and Respondent 15 Certificate of Word Count I certify that thi ANSWER BRIEF ON THE MERITS,including footnotes, and excludingtables andthis certificate, contains 4,240 words according to the computer JENNIFER KAPLAN Deputy District Attorney program used to prepareit. 16 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA For Court Use Only In re KRISTOPHER KIRCHNER on Habeas Corpus Supreme Court No.: S233508 Court of Appeal No.: D067920 Superior Court Nos.: HC21804, CRN26291 PROOF OF SERVICE I, the undersigned, declare as follows: Iam employed in the County of San Diego, over eighteen years of age and nota party to the within action. My business address is 330 West Broadway, Suite 860, San Diego, CA 92101. On August 18, 2016, a memberofour office served a copy of the within ANSWER BRIEF ON THE MERITSto the interested parties in the within action by placing a true copy thereof enclosed in a sealed envelope, with postage fully prepaid, in the United States Mail, addressed as follows: Abbey J. Noel The Honorable Louis R. Hanoian Deputy Public Defender Judge of the Superior Court OFFICE OF THE PRIMARY Department 52 PUBLIC DEFENDER SAN DIEGO SUPERIOR COURT 450 B Street, Suite 900 220 W. Broadway San Diego, CA 92101 San Diego, CA 92101 Attorneysfor Petitioner Kristopher Kirchner I electronically served the same referenced above documentto the following entities: ATTORNEY GENERAL’S OFFICE: AGSD.DAService@doj.ca.gov APPELLATE DEFENDERS,INC:eservice-criminal@adi-sandiego.com I also served the following parties electronically via www.truefiling.com: COURT OF APPEAL, FOURTH DISTRICT, DIVISION ONE I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct andthat this declaration was executed on August 18, 2016 at 330 West Broadway, San Diego, CA - Dhl | Phoebe Le