In re JASON A. BERG on Habeas Corpus
No. D068557
Fourth Dist., Div. One
May 12, 2016
418
THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) July 27, 2016, S235277.
Bonnie M. Dumanis, District Attorney, James E. Atkins, Craig E. Fisher and Jennifer R. Kaplan, Deputy District Attorneys, for Appellant the People.
Randy Mize, Chief Deputy Public Defender, Abbey J. Noel and Robert Ford, Deputy Public Defenders, for Respondent Jason A. Berg.
AARON, J.—
I.
INTRODUCTION
In 1997, the trial court sentenced Jason A. 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
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. ___ [183 L.Ed.2d 407, 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. ___ [132 S.Ct. at p. 2460]) and stated that the “appropriate occasions” for sentencing juveniles to LWOP are “uncommon.” (Id. at p. ___ [132 S.Ct. at p. 2469].)
The habeas corpus court ruled that the sentencing court‘s statement of reasons for imposing an LWOP sentence was “inconsistent with the evolving Eighth 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 corpus 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 substantive rule of constitutional law that must be given retroactive effect. (Montgomery v. Louisiana (2016) 577 U.S. ___ [193 L.Ed.2d 599, 136 S.Ct. 718] (Montgomery).) Accordingly, we reject the People‘s argument that Miller does not apply retroactively.
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 [199 Cal.Rptr.3d 416] (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 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, 577 U.S. at p. ___ [136 S.Ct. at p. 736].)
Unlike the Wyoming statute cited in Montgomery,
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 (
With respect to the incident involving Couch, the People charged Berg with attempted murder (
As discussed in greater detail in part III.B., post, the trial court sentenced Berg to LWOP on the murder conviction. Pursuant to
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 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 corpus court held a hearing on the petition, the court issued an order granting the petition. In its order granting the petition, the habeas corpus 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 corpus court further concluded that
The People appeal the trial court‘s order granting Berg‘s petition for habeas corpus.
III.
DISCUSSION
A. The habeas corpus 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, 577 U.S. at p. ___ [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 corpus court did not err in concluding that Miller applies retroactively.
B. The habeas corpus 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 raises a question of law. We review questions of law de novo. (See, e.g., People v. Butler (2003) 31 Cal.4th 1119, 1127 [37 Cal.Rptr.2d 729] (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,
In Gutierrez, the California Supreme Court applied Miller in disapproving People v. Guinn (1994) 28 Cal.App.4th 1130 [33 Cal.Rptr.2d 791] (Guinn). In Guinn, the Court of Appeal held that
“[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].) 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
In People v. Chavez (2014) 228 Cal.App.4th 18 [175 Cal.Rptr.3d 334] (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: “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
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.”
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 corpus court‘s review of the sentencing court‘s statement of reasons
In its order granting Berg‘s petition, the habeas corpus court rejected the People‘s contention that the sentencing court had adequately considered the factors associated with youth discussed in Miller. The habeas corpus 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.”
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, 577 U.S. at p. ___ [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 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 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.
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 Cal.4th at p. 1390, quoting Miller, supra, 567 U.S. at p. ___ [132 S.Ct. at p. 2465]; accord, Montgomery, supra, 577 U.S. at p. ___ [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, 577 U.S. at p. ___ [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 p. ___ [136 S.Ct. at pp. 727, 737].) The Montgomery court also clarified that states are not required to “relitigate sentences” (
“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.)
2. Section 1170, subdivision (d)(2)
“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.”
“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.
“(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
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 [164 Cal.Rptr.3d 232].) Thus, we must determine whether
To begin with, to conclude that
Given the stringent requirements of
In addition to being inconsistent with Montgomery, concluding that
Similarly, in People v. Lozano (2016) 243 Cal.App.4th 1126, 1138 [197 Cal.Rptr. 257] (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 (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
In any event,
4. We decline to follow Kirchner
As noted in part I., ante, in Kirchner, a panel of this court concluded that
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,
Further, the Kirchner court‘s primary reason for concluding that
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 defendant‘s 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: “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
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
There is also nothing in the text of
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
Accordingly, we decline to follow Kirchner and instead conclude that
IV.
DISPOSITION
The trial court‘s order granting Berg‘s petition for writ of habeas corpus is affirmed.
Haller, Acting P. J., concurred.
inconsistent with the statutory language. The latter demonstrates the Kirchner court‘s misapplication of the statute in a context unintended by the Legislature.
Appellant‘s petition for review by the Supreme Court was granted July 27, 2016, S235277.
Notes
“(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.”