Opinion
D076201
04-08-2020
THE PEOPLE, Plaintiff and Respondent, v. TARON MARKEL ANDERSON et al., Defendants and Appellants.
Jennifer Lynne Peabody, under appointment by the Court of Appeal, for Defendant and Appellant, L. Miller. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant, Taron Markel Anderson. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Bernardino County Super. Ct. No. FSB1200889) APPEAL from judgments of the Superior Court of San Bernardino County, Katrina West, Judge. Affirmed in part; reversed in part and remanded with directions. Jennifer Lynne Peabody, under appointment by the Court of Appeal, for Defendant and Appellant, L. Miller. Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant, Taron Markel Anderson. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted 15-year-old L. Miller and 16-year-old Taron Anderson (together, appellants) of the second degree murder of a rival gang member, 15-year-old A.M. (the Victim). (Pen. Code, § 187, subd. (a).) The jury found that appellants committed the offense in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a principal discharged a firearm causing death (former § 12022.53, subd. (d), (e)(1)). The jury found "not true" that appellants personally discharged a firearm.
All statutory references are to the Penal Code unless otherwise indicated.
At sentencing and acting against the advice of counsel, Anderson waived his right to be transferred to juvenile court for a hearing on whether he should be tried in adult criminal court, as provided for by the then recently-enacted Proposition 57. The court sentenced appellants to 15 years to life for the murder, plus a consecutive 25 years to life for the firearm enhancement and stayed a 10-year term for the gang enhancement.
Appellants contend their murder convictions must be reversed because the jury was permitted to rely on the natural and probable consequences theory, which they claim has been abolished by Senate Bill No. 1437, and that the record fails to establish that all jurors relied on a legally correct theory to convict them. In a variation on the same theme, they also argue that the judgments must be reversed because the court instructed the jury on an improper theory. We find no instructional or other error and conclude that relief under Senate Bill No. 1437 must be sought in the trial court in the first instance through the petition process set forth in section 1170.95.
Anderson alternatively argues that his conviction should be vacated and the matter remanded for a transfer hearing in light of Proposition 57 and Senate Bill No. 1391. Miller alternatively argues that Senate Bill No. 1391 bars adult court jurisdiction over 15-year-old offenders such as himself, and therefore we should vacate his judgment and remand the matter to the juvenile court. The People agree with both contentions and we concur.
Finally, appellants assert this matter should be remanded for resentencing to allow the trial court to exercise its discretion to strike their firearm enhancements. Should we deem this issue forfeited, appellants contend we should reverse the enhancements based on ineffective assistance of counsel. We decline to find the issue forfeited and agree that a remand is warranted.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts under the applicable standard of review: " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Appellants attended high school together in San Bernardino County. The high school had two rival criminal street gangs—the California Garden Crips (CGC) and the Blood-based Little Zions. The gangs had an ongoing feud where members assaulted each other by fighting, stabbing, and shooting.
Miller was a member of CGC and had a history of provoking fights by taunting and throwing gang signs. Anderson was an associate member of CGC and had recently started socializing with Miller's group. Codefendant Lemonta Maddox was an 18-year-old former student who associated with Miller and Anderson, but was not a gang member. Miller and Maddox were friends and spent time together. The Victim was a Little Zions gang member but did not attend the high school. A. The Shooting
At the end of the school day on February 27, 2012, R.O. received a ride home from school. He saw people on the street including Anderson. Anderson stood close to another African-American male who wore a black and white sweatshirt with a square pattern, later identified as Maddox. Miller was also there. R.O. heard gunshots. When the gunshots rang out, some of the individuals ran and others dropped to the ground. Anderson and Miller were in the group of people who ran. R.O. saw Anderson standing next to the person who fired the gun, but could not identify that person.
At about the same time, a high school resource officer parked his car at the rear exit of the school. The officer heard gunshots and drove in the direction of the shots. While he drove, he saw a group of young African-American males running and then observed them split up. The officer saw Miller running across the street, stopped him and performed a search. He found no weapons on Miller and released him. The officer then heard that someone had been injured, responded to that location and saw the Victim, a young African-American male, lying on his back in the gutter. He died from a single gunshot wound through his neck. B. The Investigation and Trial
On the day of the shooting, police interviewed Miller and Anderson. Anderson claimed that the Victim argued with Miller, and that he, Miller and Maddox chased the Victim. Maddox then pulled out a pistol and shot the Victim. Miller similarly stated there was some arguing, that the Victim turned his back and that Maddox pulled out a gun and started shooting. Miller claimed he returned to the scene about two hours after the shooting to retrieve the gun that Maddox had thrown away. Police later found the murder weapon in Miller's bedroom. When asked whether he was the shooter, Miller replied "No, I swear to [G]od I didn't shoot him. I could take a lie detector or anything, I didn't, I didn't shoot nobody. I'll take a lie detector if you just make me." At trial, Miller's story changed. Miller claimed he shot the Victim and that he previously lied to the police.
At the time of the murder, CGC and Little Zions were in the midst of a gang war. The prosecution's gang expert testified that murdering a rival gang member assists CGC gang members in the future, constitutes a pledge of allegiance to the gang, and enhances the shooter's status in the gang. After the Victim's murder, the prosecution's gang expert noticed that Maddox's status within the CGC gang had increased. About four years after the Victim's murder, Miller's stepfather was murdered. The gang expert believed that this murder may have been retaliation for the Victim's murder.
DISCUSSION
A. Senate Bill No. 1437
1. Additional Facts
Miller, Anderson and Maddox were tried in a single proceeding, but with two juries. The court instructed the Miller and Anderson jury on multiple theories of murder, including: (1) first degree murder either premeditated or by lying in wait; (2) aiding and abetting the target crime of disturbing the peace by a challenge to fight and that murder was a natural and probable consequence of that crime; and (3) aiding and abetting murder where the aider/abettor knew the perpetrator intended to commit murder and intended to aid and abet the perpetrator in the commission of the murder.
A jury convicted Miller and Anderson of second degree murder and found true that a principal had discharged a gun, but found not true all the personal gun use enhancements. A second jury found Maddox guilty of second degree murder and found true that he personally used and discharged a firearm.
2. The Enactment of Senate Bill No. 1437
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Prior to the enactment of Senate Bill No. 1437, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted of not only the target crime but also of the resulting murder. (People v. Chiu (2014) 59 Cal.4th 155, 161 (Chiu); In re R.G. (2019) 35 Cal.App.5th 141, 144 (R.G.).) Thus, the "natural and probable consequences" doctrine allowed aiders and abettors to be liable not only for the target crime they intended to assist in committing, but also for unintentional nontarget crimes that were merely foreseeable. (See In re Loza (2018) 27 Cal.App.5th 797, 801.)
In 2018 the Legislature declared it was necessary to "amend . . . the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 accomplished that purpose by amending sections 188 and 189 and adding section 1170.95.
Amended section 188 provides, "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." Section 189, as amended, limits murder liability to a person who: (1) was the actual killer; (2) although not the actual killer, intended to kill and assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. (§ 189, subd. (e).)
Our Supreme Court is currently considering whether (1) Senate Bill No. 1437 applies retroactively to cases not yet final on appeal; (2) the legislation eliminates second degree murder liability under the natural and probable consequences doctrine; and (3) instructing on the doctrine is error. (People v. Gentile (2019) 35 Cal.App.5th 932, rev. granted Sep. 11, 2019, S256698, 2019 Cal. Lexis 6665.)
Senate Bill No. 1437 also added section 1170.95, which provides a mechanism for resentencing defendants convicted of murder under a natural and probable consequences theory. Section 1170.95, subdivision (a), provides, "A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial . . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."
The petition must include a declaration by the petitioner that he or she is eligible for relief under the section. (§ 1170.95, subd. (b)(1)(A).) Upon receipt of the petition, the trial court determines if the petitioner has made a prima facie showing he or she falls within the provisions of the section. (§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial court "shall issue an order to show cause." (Ibid.) The trial court must hold a hearing within 60 days from issuing the order to show cause "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) If a hearing is held, "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (§ 1170.95, subd. (d)(3).) The prosecution has the burden of proving, "beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges." (Ibid.)
3. The Validity of the Natural and Probable Consequences Theory and the Availability of Relief on Direct Appeal
Appellants claim that Senate Bill No. 1437 entitles them to immediate relief from their murder convictions because the record does not demonstrate, beyond a reasonable doubt, that jurors relied on a valid theory of aiding/abetting murder, i.e., that they performed an act with express or implied malice, independent of their participation in an underlying crime. In a similar but repackaged argument, appellants rely on the alleged invalidity of the natural and probable consequences theory to contend they are entitled to a new trial because of instructional error. They claim that where, as here, the jury is instructed on alternative theories of liability—i.e., the natural and probable consequences theory and the personal malice theory—and one of those theories is later deemed invalid based on a change in the law, the remedy is reversal of the defendant's conviction unless the record affirmatively demonstrates beyond a reasonable doubt all 12 jurors relied upon the legally valid theory. (Chiu, supra, 59 Cal.4th at p. 167; see also People v. Guiton (1993) 4 Cal.4th 1116, 1130 [jury instruction on an unsupported theory is prejudicial if it was the sole basis for a guilty verdict. If the jury based its verdict on a valid ground, or on both a valid and invalid ground, there would be no prejudice.].)
In response, the People concede that Senate Bill No. 1437 was intended to apply retroactively to a variety of defendants including appellants in this case. They argue, however, that because their trial concluded before the effective date of the statute, appellants cannot obtain relief by direct appeal but must follow the procedures set forth in section 1170.95.
The sole question before us is whether appellants, whose sentences are not yet final, must follow the procedures set forth in section 1170.95. Several Courts of Appeal have extensively analyzed whether the changes effected by Senate Bill No. 1437 afford defendants relief on direct appeal and concluded that relief must be sought in the trial court in the first instance via the petition procedure set forth in section 1170.95. (People v. Martinez (2019) 31 Cal.App.5th 719, 729 (Martinez); accord, People v. Anthony (2019) 32 Cal.App.5th 1102, 1157-1158 (Anthony) [following Martinez]; In re R.G., supra, 35 Cal.App.5th at p. 151 [Senate Bill No. 1437 applies to juveniles, following Martinez and Anthony]; People v. Cervantes (2020) 46 Cal.App.5th 213, 215-216 [following Martinez and Anthony]; accord, People v. Munoz (2019) 39 Cal.App.5th 738, 751-752 (Munoz) [following Martinez]; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113 (Lopez) [following Martinez and Anthony]; see also People v. Carter (2019) 34 Cal.App.5th 831, 835 [analysis omitted in published portion of opinion, but concluding the defendants must file a petition in trial court raising Senate Bill No. 1437 claims].)
The California Supreme Court has granted review in Munoz, supra, 39 Cal.App.5th 738 and Lopez, supra, 38 Cal.App.5th 1087 to decide whether Senate Bill No. 1437 applies to attempted murder and whether People v. Favor (2012) 54 Cal.4th 868 should be reconsidered in light of Alleyne v. United States (2013) 50 U.S. 99 and Chiu, supra, 59 Cal.4th 155.
Specifically, the Martinez court noted that the petitioning procedure of "section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill [No.] 1437 should not be applied retroactively to nonfinal convictions on direct appeal." (Martinez, supra, 31 Cal.App.5th at p. 727.) We agree with this observation.
We also agree that the section 1170.95 petitioning procedure giving the parties "the opportunity to go beyond the original record in the petition process, a step unavailable on direct appeal, is strong evidence the Legislature intended for persons seeking the ameliorative benefits of Senate Bill [No.] 1437 to proceed via the petitioning procedure. The provision permitting submission of additional evidence also means Senate Bill [No.] 1437 does not categorically provide a lesser punishment must apply in all cases, and it also means defendants convicted under the old law are not necessarily entitled to new trials. This, too, indicates the Legislature intended convicted persons to proceed via section 1170.95's resentencing process rather than avail themselves of Senate Bill [No.] 1437's ameliorative benefits on direct appeal." (Martinez, supra, 31 Cal.App.5th at pp. 727-728.) Assuming appellants make a prima facie case for relief in the trial court, the parties will have the opportunity to present "new or additional evidence" (§ 1170.95, subd. (d)(3)) and the trial court will decide whether the prosecution met its burden of proving beyond a reasonable doubt that appellants were "major participant[s] in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e)(3).)
Appellants' repackaged instructional error argument does not yield any different result. It is premised on the contention that the change in the law after their convictions (i.e., the amendments to section 188 and 189 under Senate Bill No. 1437) rendered the natural and probable consequences theory of liability invalid at the time of trial. Our Supreme Court will ultimately decide whether Senate Bill No. 1437 has eliminated the natural and probable consequences theory on a going forward basis. (Ante, fn. 3.) Even accepting that it did, "[t]he natural and probable consequences instruction was correct when the trial court gave it, and [Senate Bill No.] 1437 does not apply retroactively to make the instruction erroneous." (People v. Cervantes, supra, 46 Cal.App.5th at p. 225.) It merely provides already convicted defendants with a supplemental procedural mechanism by which they can seek relief. This mechanism, in turn, permits the prosecution the opportunity to rebut a defendant's prima facie case under section 1170.95 by presenting new or additional evidence to prove, beyond a reasonable doubt, that appellants are ineligible for resentencing because they could be convicted of second degree murder under a direct aider and abettor theory.
In summary, Senate Bill No. 1437 does not provide any grounds for us to vacate appellants' convictions for second degree murder.
Accordingly, we conclude that section 1170.95 provides the exclusive means for appellants to seek relief under Senate Bill No. 1437 and deny their request to reverse their convictions. B. Juvenile Transfer Hearing
In his reply brief, Anderson argues for the first time that the petitioning procedure of section 1170.95 puts him twice in jeopardy and violates his right to equal protection. "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.) " '[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.' " (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) Anderson failed to make such a showing and we deem these arguments forfeited.
At the time of the murder, Miller was 15 years old and Anderson 16 years old. When appellants were charged and tried, California law permitted a district attorney, for certain offenses, to file a case against a juvenile 14 years of age or older directly in adult court. (Former Welf. & Inst. Code, § 707, subd. (d).) Here, appellants were directly charged in adult criminal court. On November 9, 2016, about a month after appellants' convictions, the voters approved Proposition 57, which amended this law to provide that certain categories of minors may be tried in adult court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and rehabilitation potential. (Welf. & Inst. Code, § 707, subd. (a), eff. Jan. 1, 2019.) Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time of its enactment. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 (Lara).)
In Lara, supra, 4 Cal.5th 299, the California Supreme Court observed: "Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct . . . a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult." (Id. at p. 303.) Proposition 57 applies retroactively "to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.)
Anderson contends we should vacate his sentence and remand the matter to allow him the opportunity to withdraw his waiver of his Proposition 57 rights because the sentencing court, sitting as a juvenile court, accepted his agreement for immediate sentencing without advising him that he would be giving up the right to seek a much lighter sentence in the juvenile court. Accordingly, Anderson claims the waiver of his Proposition 57 rights was not intelligently made. He asserts that the appropriate remedy is to either (1) remand the matter to the trial court, with instructions to transfer it to the juvenile court for a hearing pursuant to Proposition 57 or, alternatively, (2) order a conditional remand to the trial court to give him the option of deciding whether again to waive his Proposition 57 rights after a correct advisement. The People contend, and we agree, that the appropriate remedy is a conditional reversal because this is the remedy endorsed by our supreme court. (Lara, supra, 4 Cal.5th at pp. 309-310, 312-313.)
Accordingly, we conditionally reverse Anderson's judgment of conviction and remand the matter to the juvenile court for a juvenile transfer hearing. If that court determines it would have transferred Anderson to a court of criminal jurisdiction because he was not, at the time his case was originally filed in the trial court, "a fit and proper subject to be dealt with under the juvenile court law" (Welf. & Inst. Code, § 707.1, subd. (a)), his convictions and sentence are to be reinstated. If, however, the juvenile court finds it would not have so transferred Anderson, then it shall treat Anderson's convictions as juvenile adjudications and impose an appropriate disposition within its discretion.
Effective January 1, 2019, Senate Bill No. 1391 amended Proposition 57 by prohibiting the People from transferring a minor from juvenile court to criminal court if the minor committed certain serious offenses while he or she was 14 or 15 years old, with exceptions not relevant here. (Welf. & Inst. Code, § 707, subds. (a)(1), (b), as amended by Stats. 2018, ch. 1012, § 1.) Miller was 15 years old when he committed his crimes. His second degree murder conviction is a felony subject to Senate Bill No. 1391. (Welf. & Inst. Code, § 707, subd. (b)(1).) Miller argues, and the People concede, that Senate Bill No. 1391 applies retroactively to his sentence. We also agree.
Absent evidence to the contrary, courts assume the Legislature intended amendments to statutes that reduce punishment for a crime to apply to all defendants whose judgments are not yet final on the amendments' operative date. (People v. Brown (2012) 54 Cal.4th 314, 323 [discussing In re Estrada (1965) 63 Cal.2d 740].) Senate Bill No. 1391 is ameliorative because it reduces the potential punishment for persons who qualify for application of the statute. (Lara, supra, 4 Cal.5th at pp. 308-309.) Accordingly, we vacate Miller's sentence and remand the matter to the trial court with directions to return the case to the juvenile court for appropriate disposition under Senate Bill No. 1391. C. Senate Bill No. 620
Following their convictions, the court sentenced Anderson on February 13, 2018, and Miller two days later. Appellants each received a consecutive 25-year term for the vicarious firearm enhancement. Effective January 1, 2018, over 40 days before the sentencing hearings, Senate Bill No. 620 amended sections 12022.5 and 12022.53 to provide that trial courts may, "in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed . . . ." (§§ 12022.5, subd. (c), 12022.53, subd. (h).) The new legislation granted trial courts discretion they did not previously possess to strike firearm enhancements. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.)
Appellants contend this matter should be remanded to allow the trial court the opportunity to exercise its discretion to strike the vicarious firearm enhancement (§ 12022.53, subd. (e)(1)) in accordance with section 12022.53, subdivision (h). The People assert that appellants forfeited this issue by failing to request the court dismiss the firearm enhancements. "[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' [Citations.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights." (In re Seaton (2004) 34 Cal.4th 193, 198.) Nonetheless, "[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so." (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
The court sentenced appellants less than two months after the effective date of Senate Bill No. 620. The parties agree, and our review of the record confirms, that neither the court nor counsel mentioned the passage of Senate Bill No. 620 or the court's new discretion to strike firearm enhancements at the sentencing hearings. Rather, the court's statement at Miller's sentencing—that it was "required" to impose 40 years (15 for the murder and 25 for the firearm enhancement)—strongly suggests the court and counsel were unaware of the new discretion to strike the firearm enhancement when Miller and Anderson (two days earlier) were sentenced. Under these circumstances, we decline to find the issue forfeited.
"Defendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The trial court's statement that it was "required" to impose 25 years for the firearm enhancement expresses a misunderstanding of its discretion to strike the firearm enhancement, and is therefore an abuse of that discretion. Remand is appropriate to allow the trial court the opportunity to exercise its discretion to determine whether to strike appellants' firearm enhancements. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["remand is required when the trial court is unaware of its sentencing choices"].) We express no opinion as to how the trial court should exercise its discretion, but simply remand so that it may do so in the first instance.
DISPOSITION
The judgment entered against Anderson is conditionally reversed. His matter is remanded to the juvenile court with directions to conduct a transfer hearing as discussed in this opinion no later than 90 days from the filing of the remittitur. If, at the transfer hearing, the juvenile court determines it would have transferred Anderson's matter to a court of criminal jurisdiction, then the judgment shall be reinstated as of that date. If the judgment is reinstated and the case is transferred to a court of criminal jurisdiction, (1) Anderson may file a petition requesting that the trial court vacate his murder conviction and resentence him as specified in section 1170.95, subdivision (d); and (2) the trial court shall consider whether or not to strike the vicarious firearm use enhancement in the interest of justice. If, however, the juvenile court determines it would not have transferred Anderson to a court of criminal jurisdiction, then his criminal convictions will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing within its usual timeframe. At the dispositional hearing (1) Anderson may file a petition requesting that the juvenile court vacate his murder conviction and resentence him as specified in section 1170.95, subdivision (d); and (2) the juvenile court shall consider whether or not to strike the vicarious firearm use enhancement in the interest of justice.
Miller's sentence is vacated and the matter is remanded to the trial court with directions to return the case to the juvenile court for appropriate disposition under Senate Bill No. 1391. At the dispositional hearing (1) Miller may file a petition requesting that the juvenile court vacate his murder conviction and resentence him as specified in section 1170.95, subdivision (d); and (2) the juvenile court shall consider whether or not to strike the vicarious firearm use enhancement in the interest of justice. Miller's judgment is otherwise affirmed.
DATO, J. WE CONCUR:
AARON, Acting P. J.
GUERRERO, J.