Opinion
G054548
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. DYLAN WILLIAM SALAZAR, Defendant and Appellant.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09NF3148) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Conditionally reversed and remanded as directed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
This is the second appeal in this case, which involves a number of gang-related felonies that occurred when defendant Dylan William Salazar was 17 years old. In our prior opinion, we reversed Salazar's first degree murder conviction and the sentencing allegations attached to that count, as well as his conviction for active gang participation (Pen. Code, §§ 187, subd. (a), 186.22, subd. (a)). (People v. Salazar (Feb. 10, 2015, G048144 [nonpub. opn.] (Salazar I).) On remand, the first degree murder conviction was reduced to second degree, and the prosecution declined to retry the gang participation count. Salazar was sentenced to 40 years to life.
All subsequent statutory references are to the Penal Code unless otherwise stated. --------
Initially, Salazar raised three issues on this second appeal. His key argument was that he was retroactively entitled to a hearing to determine whether he should be treated as a juvenile or an adult (a transfer hearing) under the Public Safety and Rehabilitation Act of 2016 (Proposition 57). He argued that Proposition 57 applied because his case was not yet final at the time it was enacted.
While this case was pending, the California Supreme Court decided People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), which held that the relevant provisions of Proposition 57 applied retroactively. We requested further briefing, and the parties now concur that Salazar's convictions and sentence must be conditionally reversed and remanded to conduct such a hearing in accordance with Lara. We agree.
We also conclude that if the case is ultimately transferred to criminal court, Salazar must be resentenced. As we explain below, due to a change in the law, the court must exercise its discretion as to the imposition of a firearm enhancement under section 12022.53, subdivision (h). Finally, Salazar's custody credits must be recalculated.
I
FACTS AND PROCEDURAL BACKGROUND
We need not spend much time discussing the facts of the case. Salazar was initially tried with respect to two separate incidents, both of which took place September 2009. The incident leading to the murder charge occurred when Salazar and four others arrived at a party at a Buena Park home without an invitation. A confrontation occurred, and Salazar and his friends were removed. Shortly thereafter, Salazar and two of his companions returned with a gun. Shots were fired, and one of the party attendees died as a result of multiple gunshot wounds. The other incident was a confrontation two days earlier when Salazar and a number of companions assaulted a member of a rival gang outside a fast food restaurant.
With respect to the shooting incident, Salazar was charged "with murder (§ 187, subd. (a); count one), conspiracy to commit an aggravated assault (§ 245, subd. (a)(1); count two), and active participation in a criminal street gang (§ 186.22, subd. (a); count three). A special circumstance (§ 190.2, subd. (a)(22)) and a firearm use allegation (§ 12022.53, subds. (d), (e)(1)) were alleged in connection with the murder, and it was alleged the murder and the conspiracy were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1))." (Salazar I, supra, G048144.) Salazar was found guilty of all three charges, and the special circumstances and enhancements were found true.
The assault on the rival gang member led to charges of attempted murder (§§ 664, subd. (a), 187, subd. (a); count four), and active participation in a criminal street gang (§ 186.22, subd. (a); count five). The attempted murder was alleged to have been committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Salazar was acquitted of attempted murder and found guilty of the substantive gang count.
Salazar was sentenced to a total sentence of 50 years to life, consisting of 25 years to life on the first degree murder charge and a consecutive sentence of 25 years to life on the firearm enhancement. On the remaining counts, sentence was either stayed or ordered to run concurrently.
In the first appeal, we reversed Salazar's murder conviction on count one and the sentencing allegations attached to that conviction. (Salazar I, supra, G048144.) We concluded that pursuant to People v. Chiu (2014) 59 Cal.4th 155, 158-159, Salazar could not be convicted of first degree murder based on a natural and probable consequences theory. (Salazar I, supra, G048144.) We also reversed the conviction on count five, one of the two counts of active gang participation, due to instructional error. We affirmed in all other respects, and we remanded the case for further proceedings. (Ibid.)
On remand, the prosecution decided not to retry count five. As to count one, pursuant to People v. Chiu, supra, 59 Cal.4th 155, the prosecution accepted a reduction of the offense to second degree murder instead of retrying the case. On January 9, 2017, the trial court sentenced Salazar to a term of 40 years to life: 15 years to life for second degree murder, and a consecutive term of 25 years to life on the firearm enhancement attached to the murder count. The remaining counts were either sentenced concurrently or stayed pursuant to section 654. Salazar filed the instant appeal.
II
DISCUSSION
Proposition 57 and Lara
Initial briefing took place before Lara was decided. Salazar's key argument was that in light of Proposition 57, his convictions should be conditionally reversed and remanded to juvenile court to conduct a transfer hearing. (See Welf. & Inst. Code, § 707, subd. (a)(2).) Essentially, his claim was that Proposition 57 was retroactive. The Attorney General disagreed.
After briefing was completed, on February 1, 2018, the California Supreme Court decided Lara, addressing this issue directly, and concluded that Proposition 57 was retroactive. "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, [the In re Estrada (1965) 63 Cal.2d 740] inference of retroactivity applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.)
Salazar I was decided in February 2015. (Salazar I, supra, G048144.) Salazar's case was on remand at the time Proposition 57 was enacted in November 2016 (Lara, supra, 4 Cal.5th at p. 303); he was not sentenced until January 9, 2017, some eight weeks later. Thus, Salazar was a juvenile charged directly in adult court whose case was not final at the time Proposition 57 was enacted.
We requested further briefing from the parties in light of Lara. Both Salazar and the Attorney General agreed that Salazar is entitled to a conditional reversal of his convictions and sentence, and we should remand the matter to juvenile court to conduct a transfer hearing pursuant to Lara. We concur.
"If, after conducting the hearing, the juvenile court judge determines that [defendant]'s case should be transferred to a court of criminal jurisdiction, then his convictions will be reinstated. The court is then to resentence [defendant] within the bounds of its discretion . . . . But if the juvenile court determines that [defendant] is amenable to rehabilitation, and should remain within the juvenile justice system, then his convictions will be deemed juvenile adjudications. The juvenile court is then to impose an appropriate disposition within its discretion under juvenile court law." (People v. Vela (2018) 21 Cal.App.5th 1099, 1102.)
Firearm Enhancement
In a separate supplemental brief, Salazar argued that statutory changes required an opportunity for the trial court to reconsider the imposition of the consecutive 25 years to life sentence for the firearm enhancement attached to count one. Effective January 1, 2018, section 12022.53, subdivision (h), was amended to allow a trial court to exercise its discretion to strike or dismiss such an enhancement at the time of sentencing: "The court 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 by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The Attorney General agrees with the import of this change in law. "In accordance with current . . . section 12022.53, subdivision (h), the court must . . . conduct a resentencing hearing so it can exercise its discretion to either impose or strike the firearm enhancement." We agree. Thus, if Salazar's convictions are reinstated following the transfer hearing, the court must conduct a resentencing hearing and exercise its discretion on this point.
Remaining Issues
Salazar raised several additional issues in his original brief in this appeal. These issues are potentially moot, depending on the outcome of the transfer hearing. In the event they are not, we address them briefly.
Salazar first argues that the record is not clear as to whether the court intended to stay sentence on count three under section 654 or for the sentence to run concurrently. We agree with the Attorney General that the record reflects the court's intent to stay sentence on count three under section 654. This was what the court did at Salazar's first sentencing hearing, and it is reflected in the abstract of judgment.
Second, the parties agree that on resentencing, the trial court failed to properly credit Salazar for the number of days spent in custody between the date of his original sentencing and his resentencing. We agree the record reflects this error, which can readily be addressed at a resentencing hearing.
III
DISPOSITION
The judgment of the trial court is conditionally reversed. The matter is remanded to the juvenile court with directions to conduct a transfer hearing no later than 90 days from the filing of the remittitur. If, at the transfer hearing, the juvenile court determines that it would have transferred Salazar to a court of criminal jurisdiction, then the convictions shall be reinstated as of that date. The trial court is then directed to conduct a resentencing hearing within 30 days. At that hearing, Salazar's custody credits must be recalculated and the court must exercise its discretion as to the imposition of the firearm enhancement.
If, at the transfer hearing, the juvenile court determines that it would not have transferred Salazar to a court of criminal jurisdiction, then Salazar's criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing within its usual time frame.
MOORE, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.