Opinion
D074600
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. EDWARD EUGENE THOMAS et al., Defendants and Appellants.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Edward Eugene Thomas. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Dejon Tyree Satterwhite. Laura P. Gordon, under appointment by the Court of Appeal, for Robert Lamar Myers. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD 184845) APPEAL from orders of the Superior Court of San Diego County, Frank Brown, Peter Deddeh, Jeffrey Fraser, Joan Weber, Judges. Reversed with directions. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Edward Eugene Thomas. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Dejon Tyree Satterwhite. Laura P. Gordon, under appointment by the Court of Appeal, for Robert Lamar Myers. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendants Edward Eugene Thomas, Dijon Tyree Satterwhite, and Robert Lamar Myers committed two murders and three attempted murders in drive-by shootings in 2004. Thomas and Myers were 17 years old at the time of the crimes and received sentences of life without parole (LWOP). Satterwhite, who was 15 years old, received a sentence of 196 years to life. All had postappeal orders for the court to resentence them, taking into account their youthful characteristics at the time of the crime and their capacity to change. The law has since been changed to provide eligibility for parole for these defendants and others who committed offenses when they were juveniles and were sentenced to LWOP or to lengthy indeterminate terms. In accordance with legal rulings discussed post, the trial court determined that defendants were no longer serving LWOP or lengthy sentences because all were eligible for parole in the 25th year of their incarceration. The court reinstated the sentences originally imposed because it could provide no further relief to defendants.
Defendants Thomas and Satterwhite contend that the "Public Safety and Rehabilitation Act of 2016" (Proposition 57 or Act), requiring that all cases with juvenile offenders be initiated in the juvenile court, is applicable to them because their sentences were not final when Proposition 57 was enacted. Myers joins in that contention, and also requests a remand for resentencing on his initial LWOP sentence and reversal of the fees and fines imposed on him.
We conclude that Proposition 57 is applicable to defendants. We reverse and remand the case to the juvenile court with directions regarding each defendant.
BACKGROUND
Facts
We provide a very brief summary of the facts here, based on our prior opinions, People v. Thomas (2012) 211 Cal.App.4th 987 (Thomas I), and People v. Myers (July 21, 2010, D054179) [nonpub. opn.] (Myers I).)
We granted Satterwhite's motion to take judicial notice of the record in Thomas I. On our own motion, we also take judicial notice of the record in Myers I, pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a).
Defendants Thomas, Satterwhite, and Myers were gang members who jointly went on a drive-by shooting spree against rival gang members in August 2004. Their spree included three separate shootings in San Diego in less than 24 hours, killing two and injuring three. Defendants were in Thomas's SUV when they shot at the victims.
On August 13, 2004, at about 11:30 p.m., defendants drove along Gribble Street and shot at a group of rival gang members, injuring Charles Foster. (Thomas I, supra, 211 Cal.App.4th at p. 994; Myers I, supra, D054179, at pp. 4-5.) About an hour later, just after midnight on August 14, while driving south on Highway 163, defendants shot from the SUV at three other cars also driving on the freeway. Richard Wilson was killed and Michael Canty and Christopher Scott were injured. (Thomas, at p. 995; Myers I, at pp. 6-7.) At 9:00 p.m. later that day, defendants shot at some men standing at the bus stop at Meadowbrook Drive and Skyline Drive, killing Lee Smith. (Thomas, at p. 996; Myers I, at pp. 7-8.)
Thomas later said this shooting was "part of the game." (Thomas I, supra, 211 Cal.App.4th at p. 994.)
Procedural Background
Trial and Sentence
Thomas and Satterwhite were tried together before two separate juries. Myers was tried separately. Each defendant was convicted of two counts of murder (Pen. Code, § 187, subd. (a)); three counts of attempted premeditated and deliberate murder (§§ 664 & 187, subd. (a)); and two counts of shooting at an occupied motor vehicle (§ 246). The juries found each defendant committed the murders with two special circumstances: (1) the murders were intentional and perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); and (2) defendants were each convicted in this proceeding of more than one murder (§ 190.2, subd. (a)(3)). The jury found true as to all defendants several allegations of firearm use (§ 12022.53, subds. (b), (c), (d), (e)(1)), including the most serious allegation that the defendants were principals in the offense and a principal personally discharged a gun, causing great bodily injury or death to another (§ 12022.53, subds. (d), (e)(1)); and that the crimes were committed for the benefit of a gang (§ 186.22, subd. (b)(1)). Sentences for shooting at an occupied motor vehicle and for the lesser firearm enhancements were stayed. (Thomas I, supra, 211 Cal.App.4th at pp. 990-992; Myers I, supra, D054179, at pp. 1-2.)
Statutory references are to the Penal Code unless otherwise specified. We refer to the code sections in effect in 2004 when discussing the crimes and allegations at issue.
The jury found not true some of the allegations as to Thomas of personal use of a firearm causing death or great bodily injury. In those instances it found true the less serious firearm allegations. (§ 12022.53, subd. (c).) It found true some of the allegations that he was a principal and a principal personally used a firearm, causing great bodily injury or death. (§ 12022.53, subds. (d), (e)(1); Thomas I, supra, 211 Cal.App.4th at p. 991.)
Myers Sentence and Appeal
Myers was sentenced on October 30, 2008, to a total of two terms of LWOP, consecutive, for the murders; three terms of seven years to life with the possibility of parole, consecutive, for the attempted murders; plus five terms of 25 years to life, consecutive, for personal discharge of a firearm causing great bodily injury or death, for an additional total of 125 years to life.
We affirmed Myers's judgment on July 21, 2010, with the exception of striking a parole revocation fine that had been imposed on him. (Myers I, supra, D054179, at p. 13.) The Supreme Court denied review on September 29, 2010. (Myers I, S185627, rev. den. Sep. 29, 2010.)
Thomas Sentence and Appeal
Thomas was sentenced on June 4, 2010. Thomas, like Myers, received a total of two terms of LWOP, consecutive, for the murders; three terms of seven years to life with possibility of parole, consecutive, for the attempted murders; three consecutive terms of 25 years to life for personal discharge of a firearm causing great bodily injury or death, and two consecutive terms of 20 years for personal discharge of a firearm with respect to two of the attempted murders.
We affirmed Thomas's judgment on December 11, 2012, directing correction of some errors in the minute order and abstract of judgment. (Thomas I, supra, 211 Cal.App.4th 987.) The Supreme Court denied review on March 27, 2013. (Thomas I, S208030, rev. den. Mar. 27, 2013.)
Satterwhite Sentence and Appeal
Satterwhite was also sentenced on June 4, 2010. Pursuant to section 190.5, subdivision (a), Satterwhite was not eligible for LWOP because he was 15 years old at the time of the murders. The court sentenced him to a total term of 196 years to life, comprised of consecutive terms of 25 years to life for each of the two murders, consecutive terms of seven years to life for each of the three attempted murders, and five consecutive terms of 25 years to life for use of a firearm causing great bodily injury or death.
On December 11, 2012, we affirmed Satterwhite's conviction, but we vacated his sentence and remanded his case to the trial court to exercise its discretion in resentencing him in accordance with Miller v. Alabama (2012) 567 U.S. 460 (Miller), which had been issued during the pendency of his appeal. (Thomas I, supra, 211 Cal.App.4th at p. 1019.) The court in Miller found that a court had to consider the characteristics of youth, such as impetuosity and failure to appreciate risks and consequences, before sentencing a minor to a term that would prevent release from prison in his lifetime. (Miller, at p. 479.) The court held that a lifetime sentence could be imposed only on a youthful offender who was irreparably corrupt. (Id. at pp. 479-480.)
The Supreme Court denied Satterwhite's petition for review on March 27, 2013.
Postappeal Procedural History
Satterwhite Postappeal
The trial court vacated Satterwhite's sentence upon receipt of the remittitur. The resentencing that was ordered was continued for years from 2013 until 2018, and was eventually heard on August 10, 2018. During that period, the Legislature changed the law so that most offenders who had committed crimes as juveniles, including Satterwhite, would be eligible for parole within 25 years of incarceration. The electorate also passed Proposition 57, providing that juvenile cases had to be initiated in juvenile court, not adult criminal court.
During that period between 2013 and 2018, Satterwhite filed briefs regarding his resentencing, including one that incorporated two reports from a psychologist who interviewed and tested Satterwhite in 2006 and 2015. The psychologist discussed Satterwhite's youthful characteristics, cognitive maturity, background environment and influences, circumstances of the crime and Satterwhite's role in it, and his capacity to change. Satterwhite also filed a motion to return his case to the juvenile court under Proposition 57.
At the hearing on August 10, 2018, the court permitted Satterwhite to present evidence on his youthful characteristics at the time of the crime and his capacity for change. Satterwhite relied on the briefing he had submitted to the court. The court determined that, as a result of changes in the law, Satterwhite was eligible for parole in his 25th year of confinement and there was no further relief that the court could provide. It reinstated his original sentence. The court denied the motion to return the case to juvenile court under Proposition 57 because Satterwhite's conviction was final in 2013. Satterwhite filed a timely notice of appeal.
Thomas Petition for Resentencing
Thomas filed a petition for writ of habeas corpus in 2014, claiming his sentence was unconstitutional under Miller because he had received a sentence of LWOP for a crime he committed when he was 17 years old, without consideration of his youthful characteristics and capacity for change. The court (Hon. Peter Deddeh) granted the petition on May 1, 2015, issuing an "order[] to show cause why [Thomas's] sentence should not be vacated and resentencing hearing be conducted in light of Miller [, supra, 567 U.S. 460] and [People v.] Gutierrez [(2014) 58 Cal.4th 1354 [Gutierrez]]." Status conferences on the resentencing were set and continued from December 5, 2015, until the final hearing on August 10, 2018.
Thomas's petition and the resulting order are not contained in the record on appeal. We rely on the parties' description of the petition. The court read the concluding sentence of the order into the record at a status conference hearing on January 26, 2018.
In Gutierrez, the California Supreme Court identified factors that had to be considered under Miller before sentencing a juvenile offender to LWOP. (Gutierrez, supra, 58 Cal.4th at pp. 1388-1389.)
In the meantime, Thomas filed a motion to terminate and for a new trial under Proposition 57, asking the court to send his case to juvenile court for a transfer hearing. He also filed briefs regarding his resentencing as a youthful offender. A hearing on Thomas's youthful characteristics and capacity to change was held on August 10, 2018. Thomas submitted no further evidence and relied on the documents that he had filed. The court determined the habeas petition order for resentencing was moot because there was no further relief that the court could provide to Thomas, given that he was eligible for parole in his 25th year. The court, therefore, ordered that Thomas's prior sentence remained in effect, subject to his parole eligibility. The court denied Thomas's motion to terminate the proceedings and to return the case to juvenile court for a transfer hearing because Thomas's conviction was final in 2013. Thomas filed a timely notice of appeal.
Myers Petition for Resentencing
Like Thomas, Myers filed a petition for writ of habeas corpus, seeking a new sentencing hearing because he was sentenced to LWOP for the murders he committed when he was 17 years old. The court (Hon. Jeffrey Fraser) granted the writ, ordering that Myers be given a new sentencing hearing at which the court would consider the factors and characteristics of a youthful offender, pursuant to Miller and Gutierrez.
The order is in the record, but the petition is not.
Myers filed a brief in support of his resentencing. The court held a hearing over several days during which it took information relevant to Myers's circumstances and youthful characteristics at the time of the murders. Myers presented witnesses: his cousin and father, a prison expert on the programs available to a prisoner sentenced to LWOP, and a psychiatrist on the diminished capacity of young offenders. Myers also discussed his remorse for shooting the victims and his life in prison, in remarks described as "thoughtful" by the court. The court concluded that resentencing was not necessarily due to Myers's parole eligibility in his 25th year of imprisonment. Resentencing would be an "academic exercise," the court said, because a lengthy indeterminate term in excess of 50 years—the sentence it would give Myers—would be functionally the same as LWOP. In either case, Myers would be eligible for parole in his 25th year of incarceration.
Myers also moved for a transfer hearing in juvenile court pursuant to Proposition 57, and for a hearing under a new law, Senate Bill No. 620, which gave trial courts discretion to strike firearm enhancements that were previously mandatory. The court denied the motion to return the case to juvenile court under Proposition 57 because Myers's conviction was final before passage of the proposition. The court also denied Myers's request for discretionary consideration of the five firearm enhancement terms, because Myers's sentence was already final and would not be changed. The court stated that if it ruled on the merits, it would deny the request because this was an "aggravated gun use" case, "with this many victims." Myers filed a timely notice of appeal.
DISCUSSION
I. Legal Background
We start with a recap of the changes in juvenile law since defendants were sentenced in 2008 and in 2010.
While the Thomas-Satterwhite appeal was pending, the Supreme Court decided Miller, holding that mandatory imposition of an LWOP sentence on a juvenile was disproportionately harsh under the Eighth Amendment absent consideration by the sentencer of the juvenile's "diminished culpability and heightened capacity for change . . . ." (Miller, supra, 567 U.S. at pp. 465, 477-479.) The court did not foreclose the sentencing court's ability to impose an LWOP sentence, but that penalty must be limited to " 'the rare juvenile offender whose crime reflects irreparable corruption,' " after considering the juvenile's diminished culpability and capacity for change. (Id. at pp. 479-480; see also Montgomery v. Louisiana (2016) 577 U.S. ___, [136 S.Ct. 718, 734, 193 L.Ed.2d 599] (Montgomery).)
After Miller, the California Supreme Court concluded in Gutierrez, supra, 58 Cal.4th 1354 that before Miller, California courts had construed the law (§ 190.5, subd. (b) ) as creating a presumption in favor of LWOP for juveniles who committed murder with special circumstances when they were 16 or 17 years old. (Gutierrez, at pp. 1369-1370, 1387, citing and disapproving People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142 and other cases.) The Gutierrez court found this presumption in favor of LWOP to be unconstitutional under Miller. (Gutierrez, at p. 1379.) It described several factors to be considered before imposing a discretionary LWOP sentence on a juvenile: (1) the defendant's " 'chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences' "; (2) the defendant's " 'family and home environment' " and attendant " 'environmental vulnerabilities' " including childhood abuse or neglect, familial drug or alcohol abuse, lack of adequate parenting or education, prior exposure to violence, and susceptibility to psychological damage or emotional disturbance; (3) the circumstances of the homicide offense, including the extent of the juvenile's involvement and indications of peer pressure; (4) whether the offender's "incompetencies associated with youth" potentially resulted in conviction of a greater offense; and (5) information bearing on the possibility of the juvenile's rehabilitation. (Id. at pp. 1388-1389.)
Section 190.5, subdivision (b) provides: "The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances . . . has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life."
Because of Miller and other cases about youthful offenders, the California Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.) effective January 1, 2014, which granted eligibility for a "youth offender parole hearing" to most, but not all, defendants who had committed a crime when under the age of 18 years. (§ 3051, subds. (a), (b).) The law requires the parole board in the youth offender parole hearing to give the defendant a "meaningful opportunity to obtain release," at which the board "shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§§ 3051, subds. (d), (e), 4801, subd. (c).)
The law, as enacted, gave Satterwhite eligibility for a parole hearing in his 25th year of imprisonment (§ 3051, subd. (b)(3)), but excluded Myers, Thomas and other juvenile offenders who had received LWOP sentences (§ 3051, former subd. (h)). The statute was later amended, effective January 1, 2018 (Sen. Bill. No. 394 (2017-2018 Reg. Sess.)), to extend parole eligibility to persons who were convicted and sentenced to LWOP for crimes committed before they were 18 years of age. (§ 3051, subd. (b)(4); see In re Jenson (2018) 24 Cal.App.5th 266, 277 [describing history of § 3051].) Myers and Thomas are now eligible for parole in their 25th year of incarceration and were eligible when the final hearings in this case occurred.
There are some exceptions to eligibility that are not applicable here.
The United States Supreme Court further expounded on Miller in Montgomery v. Louisiana, supra, 136 S.Ct. 718, and held that Miller must be given retroactive application as it had announced a new "substantive rule of constitutional law." (Montgomery, supra, 136 S.Ct. at pp. 734, 736.) It said that the Miller opinion "rendered life without parole an unconstitutional penalty for 'a class of defendants because of their status'—that is, juvenile offenders whose crimes reflect the transient immaturity of youth." (Id. at p. 734.) The court explained that "[g]iving Miller retroactive effect . . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. [Citation.]" (Id. at p. 736.) The court continued, "Extending parole eligibility to juvenile offenders does not . . . disturb the finality of state convictions." It explained, "Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller's central intuition—that children who commit even heinous crimes are capable of change." (Id. at p. 736.)
Following this guidance from the high court, the California Supreme Court held in People v. Franklin (2016) 63 Cal.4th 261 (Franklin) that the enactment of sections 3051 and 4801 rendered moot a juvenile offender's constitutional challenge to his 50-year-to-life homicide sentence under Miller. (Id. at p. 268.) The Franklin court stated that the new law "means that [the defendant] is now serving a life sentence that includes a meaningful opportunity for release during his 25th year of incarceration. Such a sentence is neither LWOP nor its functional equivalent. Because [the defendant] is not serving an LWOP sentence or its functional equivalent, no Miller claim arises here." (Id. at pp. 279-280.)
The Franklin court also authorized a postjudgment proceeding giving the parties "an opportunity . . . to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board [of Parole Hearings], years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' . . . ." (Franklin, supra, 63 Cal.4th at p. 284.) The defendant "may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Ibid.) Defendants have all had the opportunity to place on the record any evidence that may be relevant at their upcoming youthful offender parole hearings.
II. Proposition 57
In addition to this evolving case law and legislative change regarding the length of punishment for those who committed crimes when they were juveniles, California effected a significant change in the manner of treating youthful offenders. As explained in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara), criminal charges against juveniles were historically filed in juvenile courts. Juvenile courts place a greater emphasis on rehabilitation than on punishment. " 'There is no "sentence," per se, in juvenile court. Rather, a judge can impose a wide variety of rehabilitation alternatives after conducting a "dispositional hearing," which is equivalent to a sentencing hearing in a criminal court. [Citations.] In the more serious cases, a juvenile court can "commit" a minor to juvenile hall or to the Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA). . . .' " (Id. at pp. 306-307.) DJJ commitments are for much shorter terms than criminal punishment provides. A minor committed to DJJ must generally be discharged no later than when he or she is 23 years old. (Ibid.)
Under the historical system, a juvenile court could transfer the case to criminal court for adjudication if it found a minor charged with serious crimes to be unfit for juvenile justice. Starting in 1999, in response to the growing severity of juvenile crime, laws were changed to permit, and sometimes require, prosecutors to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult. (Lara, supra, 4 Cal.5th at p. 305.) The special-circumstance murders and other charges against defendants were filed directly in criminal court. Defendants were tried by juries and sentenced to prison.
The rule of direct filing and adult treatment of serious juvenile offenders was changed in 2016, when the electorate passed Proposition 57, eliminating the ability of prosecutors to file charges against juveniles directly in adult criminal court. (Lara, supra, 4 Cal.5th at p. 304.) Under this Act, all charges against juveniles must be filed initially in juvenile court. For serious offenses, the prosecution may file a motion in juvenile court asking the court to transfer the minor to adult court. Minors who were charged with murder committed when they were 14 years of age or older could still be tried in criminal court, but only after a juvenile court conducted a transfer hearing "to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated." (People v. Vela (2018) 21 Cal.App.5th 1099, 1103 (Vela), citing Welf. & Inst. Code, § 707, subd. (a)(1).)
Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Sen. Bill 1391), effective January 1, 2019, eliminated the ability of juvenile courts to transfer minors under the age of 16 to adult court, with one exception not relevant here. (See Welf. & Inst. Code, § 707, subd. (a).) Under this current provision, the charges against Satterwhite could have been adjudicated only in juvenile court, and Satterwhite would be subject only to the maximum punishment for juveniles, which is substantially less than even the minimum punishment for defendants tried in criminal court. (See Welf. & Inst. Code, § 607, subd. (f); see also Lara, supra, 4 Cal.5th at pp. 306-307; Vela, supra, 21 Cal.App.5th at pp. 1104-1105.)
The California Supreme Court determined that Proposition 57 is applicable "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 p. 304, italics added.) The court relied on the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada), explaining that " '[t]he Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' [Citation.]" (Lara, at p. 308.) The Lara court stated that "[t]he 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." (Id. at p. 303.) Proposition 57 ameliorated punishment for a particular class of persons, juvenile offenders, who would benefit from more lenient treatment unless a juvenile court determined transfer to adult court was appropriate. (Id. at pp. 303-304, 308; see People v. Barboza (2018) 21 Cal.App.5th 1315, 1318.) The Lara court applied the reasoning of Estrada that enactment of a lesser punishment shows an express determination that the former system was "too severe." (Lara, at p. 309.) The Lara court inferred that the electorate intended that the benefit of the Act " ' "apply to every case to which it constitutionally could apply" ' [Citation]," (ibid.), i.e. to every case that was not final when Proposition 57 was enacted (id. at p. 304).
III. Application of Proposition 57 and Sen. B. 1391 to Defendants
Defendants contend that their cases should be returned to the juvenile court for that court to determine if the charges against them should be adjudicated in juvenile court or in adult criminal court, pursuant to Proposition 57 and subsequent legislation. They contend that these changes in the law are applicable to them because their sentences, and hence their judgments, are not final. We agree.
Myers joined in all arguments raised by the other defendants, to the extent those arguments accrued to each other's benefit and were not inconsistent with any of his own arguments. (See Cal. Rules of Court, rule 8.200(a)(5) [providing: "Instead of filing a brief, or as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal"].) The only issue raised by Thomas and Satterwhite was the application of Proposition 57 and Sen. Bill 1391. We note our high court has criticized blanket joinders in claims raised in a multiple defendant appeal. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant) [stating "[w]e strongly disapprove of this seriously improper tactic"].) That court concluded that, although joinder is broadly permitted, California Rules of Court, rule 8.200(a)(5) is not satisfied by "cursory and unfocused statements" of joinder. (Bryant, at p. 363.) We accept Myers's joinder here, however, despite his cursory joinder, because the application of Proposition 57 is an issue of law that is not dependent on facts particular to Myers, other than the undisputed facts of the underlying proceedings and his age at the time of the crime. (See id. at pp. 363-364; see also People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)
Neither Estrada nor Lara explained finality in detail. The convictions of all defendants in this case were affirmed and final in 2012 and 2013, but the case is still pending on this appeal of the sentences. The instant appeal is a timely, direct appeal from postjudgment orders concluding that resentencing was moot because the court could provide no further relief, and denying transfer to the juvenile court.
Proposition 57 became effective November 9, 2016, while the hearings to resentence defendants were pending in the trial court. Sen. Bill 1391, applicable to Satterwhite, went into effect on January 1, 2019, after Satterwhite had filed his notice of appeal and while this case was pending in this court. Defendants contend that Proposition 57 and Sen. Bill 1391 are applicable to them because their judgments were not final at the time those laws were enacted. The Attorney General contends, on the other hand, that Proposition 57 is not applicable because the defendants' convictions have long been final.
Both parties agree that a judgment is final when it has reached final disposition in the highest court authorized to review it. (People v. Covarrubias (2016) 1 Cal.5th 838, 935; People v. Kemp (1974) 10 Cal.3d 611, 614; People v. Vieira (2005) 35 Cal.4th 264, 306 (Vieira).) The parties also agree on the established rule that " 'the judgment in a criminal action is a record of the adjudication of guilt and the determination of the penalty.' [Citation.]" (People v. McKenzie (2020) 9 Cal.5th 40, 45 (McKenzie) [the sentence is the judgment in a criminal case]); Burton v. Stewart (2007) 549 U.S. 147, 156 [" 'Final judgment in a criminal case means sentence. The sentence is the judgment.' "]; People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 987 ["[I]n a criminal case, judgment is synonymous with the imposition of sentence"].)
Because defendants' original sentences were vacated and defendants timely appealed the trial court's 2018 orders on their sentences, their judgments are not final. (See McKenzie, supra, 9 Cal.5th at p. 45 ["The record here shows that when the revisions to [the Penal Code section] took effect, defendant's ' "criminal proceeding . . . ha[d] not yet reached final disposition in the highest court authorized to review it." ' [Citation.] "]; Burton v. Stewart, supra, 549 U.S. at p. 156; Martinez, supra, 225 Cal.App.4th at p. 987.)
The Attorney General argues, however, that these cases were final in 2010 and 2013, upon completion of review of our appellate opinions upholding the convictions. He relies on cases holding that in an appeal following a limited remand for sentencing issues, the defendant cannot challenge the conviction of guilt anew. In People v. Kemp (1974) 10 Cal.3d 611, 614, the Supreme Court held that after remand for retrial on the penalty phase, the defendant could not raise guilt issues on subsequent appeal. It said, " '[t]he scope of this retrial is a matter of state procedure under which the original judgment on the issue of guilt remains final during the retrial of the penalty issue and during all appellate proceedings reviewing the trial court's decision on that issue.' " (Ibid.) The other cases cited by respondent also held that after a limited remand, a defendant could not raise on appeal issues that were outside the scope of the remand. (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397 ["in an appeal following a limited remand, the scope of the issues before the court is determined by the remand order."]; People v. Webb (1986) 186 Cal.App.3d 401, 410 ["we specifically affirmed the judgment of conviction in the prior appeal and remanded only for resentencing. Defendant cannot now be permitted to make a direct attack upon his convictions"]; People v. Smyers (1969) 2 Cal.App.3d 666, 667-668 [after limited remand court may not "consider defendant's arguments regarding alleged trial errors"].)
We have no quarrel with these holdings but they are not on point. Neither Proposition 57 nor Sen. Bill 1391 challenge the validity of the conviction of guilt and true findings on the allegations. These laws impact the potential sentencing of defendants who committed crimes when they were minors. When a court is resentencing a defendant, it has jurisdiction to modify every part of the sentence, not just the portion that was the subject of the remand. (People v. Buycks (2018) 5 Cal.5th 857, 893.) Under the "full resentencing rule," upon remand for resentencing a court may consider " 'any pertinent circumstances which have arisen since the prior sentence was imposed.' " (Ibid.) Proposition 57 and Sen. Bill 1391 are relevant laws that arose after the case was on remand and appeal. These laws impact sentencing because they provide the possibility of "dramatically different and more lenient" penal consequences for juvenile offenders. (Lara, supra, 4 Cal.5th at p. 303.) Both laws favor rehabilitation over punishment for juveniles and require procedural changes—juvenile fitness hearings—that may result in lesser punishment. (Id. at p. 306 ["While a person convicted of serious crimes in adult court can be punished by a long prison sentence, juveniles are generally treated quite differently, with rehabilitation as the goal"].)
Our conclusion is reinforced by the procedure on remand approved by the Lara court, which provides for a potentially different sentence while preserving intact the findings of guilt. The Lara court endorsed the remand procedure described by Division Three of this district in People v. Vela, which we will adopt. (Lara, supra, 4 Cal.5th at p. 313.) "[T]he Vela court ordered as follows: '. . . Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' [Citation.]" (Lara, supra, 4 Cal.5th at p. 310.)
The Supreme Court endorsed the procedure described in People v. Vela (2017) 11 Cal.App.5th 68. It also granted review in that case. (S242298, July 12, 2017.) After Lara was issued, Division Three modified its opinion in other respects and republished it in 2018 as Vela, supra, 21 Cal.App.5th 1099.
Thus, the findings of guilt and true findings on allegations remain valid. The convictions are reversed only because they must be treated as juvenile adjudications if the juvenile court decides not to transfer the case to criminal court. If the case is transferred, the convictions are reinstated along with the sentence. The findings of guilt and true allegations are not substantively changed in any event.
We will follow this procedure in our disposition, post, with the exception that no transfer hearing may be held for Satterwhite. Pursuant to Sen. Bill 1391, the juvenile court on remand must treat Satterwhite's convictions as juvenile adjudications and impose an appropriate disposition within its discretion.
IV. Myers' Claim of Sentencing Error
Myers contends that the trial court erred in failing to resentence him in accordance with the order granting his writ of habeas corpus. The court concluded that Myers no longer had an LWOP sentence because he was entitled to a meaningful opportunity for parole in his 25th year. Myers claims that was error, and requests remand for the trial court to exercise its discretion in resentencing him. Myers argues that his request is not moot, asserting that prisoners who are sentenced to indeterminate life terms with the possibility of parole have beneficial opportunities in custody that are not available to those sentenced to a term of LWOP. He asserts that as a youthful offender with an opportunity for parole, he has an equal protection right to the same beneficial opportunities as other youthful offenders with opportunities for parole. Finally, he claims that he has shown compelling grounds to be resentenced to an indeterminate term of years. In a supplemental brief, Myers asks that we reverse the imposition of a fine and fee due to the court's failure to consider whether Myers had the ability to pay.
As we explain below, we agree with the trial court that resentencing is moot as a result of the legal change that makes Myers eligible for parole in his 25th year. Myers has not provided sufficient evidence that he is still categorized as an LWOP prisoner for purposes of program and credit opportunities; his attorney did not know Myers's status at the final hearing in the superior court. We will remand his case to the juvenile court for a transfer hearing and if the juvenile court finds that Myers is not fit and suitable for treatment in the juvenile justice system, Myers will have the opportunity to present evidence of any actual collateral consequences to him. We deny his request to reverse the fine and fee imposed on him due to his failure to object when those fees and fines were imposed.
A. Resentencing Was Moot
As discussed in Montgomery, supra, 136 S.Ct. at pp. 734, 736, and in Franklin, supra, 63 Cal.4th at p. 284, providing juvenile offenders with the opportunity to be considered for parole dispenses with the need to reconsider LWOP and lengthy prison sentences. (Montgomery, at p. 736 [courts need not relitigate sentences when juvenile offenders are eligible for parole]; Franklin, at pp. 278-279 [Legislature effected change of sentences by operation of law; resentencing not necessary].) The court in Franklin said, "The Legislature's enactment of Senate Bill No. 260 has rendered moot [the defendant's] challenge to his original sentence under Miller." (Franklin, at p. 280, italics added.)
An issue is moot when, without fault of the opposing party, an event occurs that renders it impossible for this court to grant a prevailing defendant any effectual relief. (See People v. DeLeon (2017) 3 Cal.5th 640, 645.) The court here found that resentencing Myers would be an "exercise in futility" because it could not provide any effectual relief. There would be no functional difference between a lengthy indeterminate term and LWOP. The minimum term for Myers was 50 years to life, for one count of first degree murder with the enhancement for personal use of a firearm causing death. That minimum sentence assumes that the court would run concurrent the punishment for the four other victims. With either a lengthy indeterminate term or the existing sentence of LWOP, Myers would be eligible for parole in his 25th year of incarceration. We agree with the trial court that resentencing Myers would be moot. (See People v. Phung (2018) 25 Cal.App.5th 741, 755-756 [defendant's claims of excessive punishment under federal and state constitutions moot under Franklin]; People v. Cornejo (2016) 3 Cal.App.5th 36, 68 [constitutional claim moot]; People v. Lozano (2017) 16 Cal.App.5th 1286, 1291, review granted Feb. 21, 2018, S246013, dism. as moot Aug. 29, 2018 [claim remedied by opportunity for meaningful parole consideration; no need for resentencing defendant to minimum sentence of 26 years to life].)
The 25-year-to-life enhancement for personal use of a firearm causing death is now discretionary (§ 12022.53, subd. (h)), but the court said that it would not exercise its discretion to strike the firearm enhancements because this was an aggravated case of gun use fired at five victims, killing two and causing great bodily injury to the other three victims.
B. Jurisdiction
Myers contends that the trial court erred in reinstating the existing sentence because the court had jurisdiction only to comply with the habeas order, relying on People v. Berg (2019) 34 Cal.App.5th 856 (Berg). In Berg, our colleagues held that a lower court has jurisdiction " 'only to carry out the judgment as ordered by the appellate court.' " (Id. at p. 877.) The facts in Berg are similar to the facts here, but the procedural posture is very different, as the trial court in Berg impermissibly disregarded an order of remand from the appellate court, contrary to the fundamental rule of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We concluded that the trial court's jurisdiction on remand is limited to that necessary to " 'carry out the judgment as ordered by the appellate court.' " (Berg, at p. 876.) Here, the trial court permissibly modified an interim order from the trial court. The superior court has the inherent power to reconsider its own rulings before they become final to ensure the orderly administration of justice. (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1065; see also People v. Montellano (2019) 39 Cal.App.5th 148, 156 [order to resentence is not final; requires the completing step of resentencing in order to be final and appealable].) A court is not jurisdictionally bound to follow its own prior order when there is a change in the law, as here. (People v. Gray (2005) 37 Cal.4th 168, 197; People v. Stanley (1995) 10 Cal.4th 764, 787.) There was no jurisdictional bar preventing the superior court in 2018 from vacating its own ruling from 2017 in response to the dramatic change in the law. The Berg rule is not applicable to Myers because the court did not modify an order from a higher court.
The habeas order was to give Myers "a resentencing hearing where the court will consider the factors of youth as set forth in Miller and Gutierrez in determining whether to impose LWOP."
C. Collateral Consequences
Myers argues his resentencing is not moot because his presumptive LWOP sentence impacts his placement in the prison system, his opportunity to earn credits, and his access to rehabilitative programming. Myers has not met his burden of demonstrating error in the trial court's ruling. (People v. Hurtado (2019) 35 Cal.App.5th 871, 878 [defendant bears the burden of affirmatively showing error in discretionary decision of trial court].)
Myers raised this argument of adverse collateral consequences at the sentencing hearing in the superior court. His attorney said the contention was based on his "conversations with my prison expert," that there could be different programming available to a juvenile offender sentenced to LWOP when compared to a juvenile offender sentenced to a lengthy indeterminate term. The expert, Daniel Vasquez, had retired from the Department of Corrections in 1994. He testified at Myers's Franklin hearing in September 2017, before the law was changed to allow parole eligibility to previously LWOP juvenile offenders. The court was skeptical of the expert's knowledge of the current treatment of prior juvenile LWOPs. The court stated that as of January 1, 2018, youthful offenders with LWOP sentences were getting the same parole hearing opportunity as other youthful offenders. It said, "And my ruling is based on the assumption that the CDCR is going to treat Mr. Myers as a 25-year-to-life defendant and should be offering him whatever opportunities are available at the prison for someone who's getting a parole hearing after 25 years. . . . If I'm incorrect about that then I'm happy for you to place this back on my calendar. That is my assumption that in my view, he is absolutely not an LWOP prisoner anymore." The court asked Myers's counsel, "Are you confident . . . that the prison authorities are not also changing [Myers's] designation?" Counsel answered, "I'm not confident of that. I'm not confident of it either way. I don't have any information to say." Myers did not produce any evidence showing that he was not currently being offered the same opportunities as other non-LWOP prisoners. California regulations show that LWOP prisoners do not have the same opportunities as prisoners with the possibility of parole, but Myers is now in the latter class. The record does not adequately support Myers's contention that he is being treated differently from other juvenile offenders with parole eligibility. There is insufficient evidence of collateral consequences that render the resentencing non-moot.
The court said, "I do have a concern in terms of this witness pontificating on what kinds of programming or lack of programming would be available in 2017 for an LWOP prisoner versus in the '90s because I would [imagine] that there would be changes."
For this reason, we reject Myers's claim that he faces adverse collateral consequences as a result of his initial sentence of LWOP, as well as his claim that there are unconstitutional differences of treatment between youthful offenders who were sentenced with the possibility of parole and those sentenced without the possibility of parole. Myers can, however, present evidence of adverse collateral consequences to the sentencing court if he is found unfit for treatment in juvenile court. If he is able to show that he is being denied opportunities others have, then the sentencing court should consider whether the crimes committed by Myers show irreparable corruption such that LWOP was an appropriate sentence. (Montgomery, supra, 136 S.Ct. at p. 734; Gutierrez, supra, 58 Cal.4th at p. 1388; Miller, supra, 567 U.S. at pp. 479-480.)
D. Fees, Fines and Assessments
Myers requested permission to file a supplemental brief, which we granted. In that brief he requests stay or striking of the fines that were imposed on him at the time of sentence.
At his sentencing in 2008, Myers did not object or claim an inability to pay when the court imposed joint and several restitution in the amount of $12,404.27 for the victims pursuant to section 1202.4, subdivision (f); a restitution fine of $5000, pursuant to section 1202.4, subdivision (b); and a court security fee of $140, pursuant to section 1465.8.
The court also imposed and stayed a parole revocation fine, but we struck that fine on direct appeal. (Myers I, supra, at p. 13.)
Myers now contends that under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), decided after his sentencing, that the fines, fees, and assessments are unconstitutional because the court did not consider his present ability to pay. He argues that we should give Dueñas retroactive effect because of the proclaimed "serious constitutional question raised by imposition of restitution fines on an indigent defendant." (People v. Belloso (2019) 42 Cal.App.5th 647, review granted, March 11, 2020, S259755.)
This issue is pending before the California Supreme Court in People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844 (Kopp), and numerous other cases.
Dueñas is not applicable to victim restitution. The defendant in Dueñas challenged the constitutionality of imposing mandatory court facilities and operations assessments that were part of a legislative plan to raise funds for California courts. There was no victim restitution in that case. (Dueñas, supra, 30 Cal.App.5th at pp. 1164-1167.) Victim restitution is constitutionally mandated for the purpose of making victims whole for their losses. (Cal. Const., art. I, § 28, subd. (b); People v. Allen (2019) 41 Cal.App.5th 312, 326; People v. Evans (2019) 39 Cal.App.5th 771, 776; Kopp, supra, 38 Cal.App.5th at p. 94, fn. 22.) The Evans court found no cases extending Dueñas to victim restitution, and we have found no cases since then that purport to do so. (Evans, at p. 777.) In sum, there is no basis for challenging the imposition of joint and several liability for victim restitution of $12,404.27.
With respect to the restitution fine and court security fee, we conclude that Myers forfeited his claim by failing to raise his inability to pay when the fines were imposed. Section 1202.4, subdivision (c) permitted the court to consider the defendant's inability to pay when it imposed a restitution fine greater than the $200 minimum. "The California Supreme Court has repeatedly held that when a court imposes fees and/or fines pursuant to statutes that specifically include ability to pay findings, the defendant must raise an objection at the sentencing hearing or forfeit the appellate claim that the court failed to make such a finding or there was no evidence of the defendant's ability to pay the imposed amounts." (People v. Aviles (2019) 39 Cal.App.5th 1055, 1073 (Aviles); see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen).) The court imposed a restitution fine of $5,000, substantially higher than the $200 minimum. Rather than exercise his statutory right, Myers remained silent. "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (Frandsen, at p. 1154.)
We conclude Myers forfeited his challenge to the restitution fine. Because the restitution fine amount was so much higher than the other assessment of $140, Myers forfeited his right to now contest the court-security assessment on the claim he had no ability to pay it. If Myers chose not to object to the $5,000 restitution fine based on inability to pay, he surely would not complain on similar grounds regarding an additional $140 in fees. (See People v. Gutierrez, supra, 35 Cal.App.5th at p. 1033.)
Any possible error was harmless beyond a reasonable doubt because Myers has had the ability to pay the fine and fee from prison wages during his lengthy prison term. (Aviles, supra, 39 Cal.App.5th at p. 1076; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140.)
DISPOSITION
We reverse Satterwhite's convictions and sentence and remand his case to the juvenile court. We direct the juvenile court to treat Satterwhite's convictions and true findings as juvenile adjudications and to impose an appropriate disposition on him within its discretion. We conditionally reverse Thomas's and Myers's convictions and sentences and transfer them to the juvenile court with directions to conduct juvenile transfer hearings. If the court finds one or the other to be a fit and proper subject for juvenile justice, then it shall treat their convictions as juvenile adjudications and impose an appropriate disposition' on that defendant or defendants. If the juvenile court determines that Thomas and/or Myers are not fit and proper subjects to be dealt with under the juvenile court law, then those defendants shall be transferred back to criminal court. In this event, we direct the criminal court to reinstate the defendants' convictions and Thomas's sentence. If Myers presents evidence that he is being denied programming and credits available to others with parole eligibility, the court should reconsider his sentence to determine if LWOP was an appropriate sentence. If Myers cannot demonstrate that he is being denied those benefits, we direct the court to reinstate his sentence.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. GUERRERO, J.