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Reversed: 1170(d)(2) Juvenile LWOP Petition Denial

People v. Harring Court: California Courts of Appeal, Docket: F079108 (Fifth Appellate District), Opinion Date: September 27, 2021. Harring is serving life without the possibility of parole for a murder he committed in 1997 before he turned 18 years old. The superior court denied his petition to recall his sentence under Penal Code section 1170(d)(2).The court of appeal reversed. Under section 1170(d)(2) petitioners must prove by a preponderance of the evidence that at least one of four mitigating circumstances is true. Harring attested he does “not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims.” Harring had a prior juvenile felony adjudication for second-degree burglary; the court of appeal concluded that courts must consider the felony crime subject to juvenile adjudication and its elements to determine whether it is a crime with “significant potential for personal harm to victims.” The conduct comprising the crime of second-degree commercial burglary is unlike assault in that it does not involve an act that by its nature creates a risk of physical harm to another. The court declined to consider whether Harring is entitled to a "Franklin" proceeding to make a record of youth-related factors relevant to an eventual parole hearing. If Harring wishes to request a Franklin hearing, he may do so with the trial court.

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