Harring

INTRODUCTION

Appellant David Lee Harring, Jr. is serving life without the possibility of parole (LWOP) for a murder he committed in 1997, before he turned 18 years old. Harring appeals from the superior court’s order denying his petition to recall his sentence under Penal Code section 1170, subdivision (d)(2) (section 1170(d)(2) or § 1170(d)(2)). 1 Among other threshold eligibility requirements, under section 1170(d)(2) petitioners must prove by a preponderance of the evidence that at least one of four mitigating circumstances under section 1170, subdivision (d)(2)(B)(i) through (iv) is true. Pursuant to section 1170, subdivision (d)(2)(B)(ii) (section 1170(d)(2)(B)(ii) or subparagraph (ii)), Harring attests he does “not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims .…” (§ 1170(d)(2)(B)(ii).) Harring had a prior juvenile felony adjudication for second degree burglary, which he argues does not come within the category of crimes excluded under subparagraph (ii). For the reasons discussed below, we conclude that subparagraph (ii) requires a court to consider the felony crime subject to juvenile…