We are seeing successful stories that some LWOP inmates are getting their chance at Parole via the Parole Suitability Hearing Process, once they are re-sentence as Lifers with the Possibility of Parole.
There are 2 Petition that can be filed in the Court to recall an LWOP sentence; 1) A Miller v. Alabama Petition and 2) SB9 Petition to recall of LWOP sentence under PC Section 1170 ((d)(2).
It is apparent that the Court are really swayed by Case Law arguments made in a Miller v Alabama Petition more so than the SB9 Senate Bill. See below:
The People v. Berg ____ Cal.App.4th ____, 2016 (D068557) 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.”
Court of Appeal, Fourth District, Division 1, California.
The PEOPLE, Plaintiff and Appellant, v. Jason A. BERG, Defendant and Respondent.
Decided: May 12, 2016
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. 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.” 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 court held a hearing on the petition, the court issued an order granting the petition. In its order granting the petition, the habeas 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 court further concluded that the sentencing court's statement of reasons for imposing an LWOP sentence on Berg did not comport with the requirements of Miller. The court ordered “that a writ of habeas corpus be issued; that [Berg's] sentence of LWOP be vacated; and that the matter be set for re-sentencing in the Superior Court.”
COURT OF APPEAL:
The (DA) People appeal the trial court's order granting Berg's petition for habeas corpus.
The Summary arguments were 1) Miller does not apply retroactively 2) trial court complied with Miller and Gutierrez 3) Section 1170, subdivision (d)(2) provides an adequate statutory remedy for Miller error.
The Court of Appeal (COA) disagreed with all 3 arguments put forth by the People (DA) and concluded
1) Miller does apply retroactively, 2) Trial Court did not comply with the Miller factors and 3) while section 1170, subdivision (d)(2) provides a statutory procedure by which some defendants serving LWOP sentences for crimes committed as juveniles may obtain resentencing, we disagree with the Kirchner court's conclusion that the statute provides such defendants with “all the rights set forth in Miller and Montgomery.” (Kirchner, supra, 244 Cal.App.4th at p. 1416.) We NOW conclude that section 1170, subdivision (d)(2) does not provide an adequate statutory remedy for Miller error.
The trial court's order granting Berg's petition for writ of habeas corpus is affirmed. The COA 4th, Div One, doubled back on their Kirchmer Decision by stating: "I concur in the opinion and write separately to acknowledge that after considerable reflection, although I signed the opinion in In re Kirchner (2016) 244 Cal.App.4th 1398, I agree with the opinion in this case including its provisions that are inconsistent with In re Kirchner."
Thanks to Findlaw website:
The full Case can be viewed at Findlaw