Opinion
A157172
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. KAYL GERARD MCCUTCHEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51007624) MEMORANDUM OPINION
We resolve this case by Memorandum Opinion pursuant to California Standards of Judicial Administration, section 8.1. We previously granted defendant's judicial notice request of our prior appellate opinions (People v. McCutchen (March 11, 2014, A134003) [nonpub. opn.] and People v. McCutchen (Oct. 22, 2015, A142367) [nonpub. opn.]). --------
As defendant's appeals have made their way through the judicial system, the law has changed a number of times, resulting in multiple reversals of the LWOP sentence the trial court has consistently imposed. The Attorney General concedes reversal is required again in light of the enactment of Proposition 57, and we agree.
Defendant was found guilty of numerous felonies in 2010, including first degree murder and second degree robbery. He was nearly, but not yet, 18 years old at the time of the crimes. After the trial court imposed an LWOP sentence, consecutive to a sentence of 25 years to life for a gun enhancement, defendant appealed. In March 2014, we affirmed the convictions, but reversed and remanded for resentencing in light of Miller v. Alabama (2012) 567 U.S. 460, which had been decided in the interim. (People v. McCutchen, supra, A134003.)
After holding a Miller hearing, the trial court again imposed an LWOP sentence, and defendant again appealed. In October 2015, we again reversed defendant's sentence because the trial court had acted prior to the issuance of our remittitur and thus had acted prior to the return of its jurisdiction. (People v. McCutchen, supra, A142367.)
In April 2019, the trial court for a third time imposed an LWOP sentence. Defendant once again appealed, and this is the appeal that is presently before us. In the meantime, Proposition 57 (Cal. Const., art. II, § 10, subd. (a)) went into effect. The new law prohibits prosecutors from filing criminal charges against juveniles directly in the criminal courts and requires that they file charges in the juvenile court and obtain a transfer order to prosecute the juvenile as an adult. (People v. Ramirez (2019) 35 Cal.App.5th 55, 59 (Ramirez).)
Defendant contends, and the Attorney General agrees, that because, in light of his appeals, the judgment against defendant was not yet final when Proposition 57 went into effect, he is entitled to the benefit of its provisions. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, superceded by statute on another ground as stated in In re M.S. (2019) 32 Cal.App.5th 1177, 1191; Ramirez, supra, 35 Cal.App.4th at p. 59.)
The parties also agree as to the required disposition to effectuate Lara. "The appellate court must conditionally reverse the judgment and remand the matter to the juvenile court to hold a transfer hearing. If the juvenile court determines it would have transferred the juvenile to adult court, the adult court must reinstate the convictions and sentence. If the juvenile court finds it would not have transferred the juvenile, the court will treat the convictions as adjudications and impose an appropriate disposition." (Ramirez, supra, 35 Cal.App.5th at p. 59.)
Defendant also asks us to decide an additional issue that may arise on remand if the juvenile court concludes it would have transferred the case to the adult criminal courts, i.e. whether he would be entitled to a new sentencing hearing in light of People v. Gutierrez (2014) 58 Cal.4th 1354, 1387, which overruled the "Guinn presumption," which had provided that LWOP was the presumptive sentence for first degree murder unless the trial court found good reason to choose the less severe sentence of 25 years to life. The Attorney General maintains this issue is not ripe, given that the juvenile court has not yet considered the case. He further maintains the issue is moot in light of the enactment of Penal Code section 3051, subdivision (b)(4), which provides for parole hearings for juveniles no later than their 25th year of incarceration, a point as to which defendant has made no response. We agree with the Attorney General, and thus conclude for several reasons it is not appropriate to entertain the additional issue defendant proffers on appeal.
DISPOSITION
The judgment is conditionally reversed and the matter is remanded to the juvenile court to hold a transfer hearing. If the juvenile court determines it would have transferred the case to adult court, the adult court must reinstate the convictions and sentence. If the juvenile court finds it would not have transferred the juvenile, the court will treat the convictions as adjudications and impose an appropriate disposition.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Sanchez, J.