Opinion
E072923
04-23-2020
S.H., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
G. Christopher Gardner, Public Defender, Thomas W. Sone, Jennie Cannady, Gabriella Tokatlian, Stephan J. Willms, Deputy Public Defenders for Petitioner. No appearance for Respondent. Jason Anderson, District Attorney, Brent J. Schultze, Deputy District Attorney for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J279554) OPINION ORIGINAL PROCEEDINGS; petition for extraordinary writ. Winston S. Keh, Judge. Petition denied. G. Christopher Gardner, Public Defender, Thomas W. Sone, Jennie Cannady, Gabriella Tokatlian, Stephan J. Willms, Deputy Public Defenders for Petitioner. No appearance for Respondent. Jason Anderson, District Attorney, Brent J. Schultze, Deputy District Attorney for Real Party in Interest.
On January 29, 2019, a juvenile wardship petition was filed against petitioner, S.H. (Minor), born in December 2002, by real party in interest the People of the State of California, charging him with committing murder and two counts of attempted second degree robbery. On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) went into effect, which amended Penal Code section 189 to limit first degree murder liability to those who (1) are the actual killer; (2) aided and abetted with the intent to kill; or (3) were a major participant in an underlying felony and acted with reckless indifference to human life. Prior to the prima facie hearing, Minor's counsel filed a motion to release Minor based on SB 1437. The People filed opposition arguing that SB 1437 was unconstitutional, and additionally filed opposition that even if SB 1437 was constitutional, Minor could be charged for murder based on him being a major participant in the robberies and he acted with reckless indifference to human life. The juvenile court (respondent court) declared SB 1437 unconstitutional and set the matter for hearing.
All further statutory references are to the Penal Code unless otherwise indicated.
Minor petitions this court for a writ of mandate directing respondent court to issue a peremptory writ of mandate directing respondent court to reverse its order finding SB 1437 unconstitutional (the Petition). The People filed a demurrer and answer on the grounds that the Petition is unripe and, even if this court reviews the claim and finds that SB 1437 is constitutional, it would not relieve Minor of liability for murder. We deny the Petition.
FACTUAL AND PROCEDURAL HISTORY
On January 29, 2019, the People filed a juvenile wardship petition against Minor, age 16, pursuant to Welfare and Institutions Code section 602 alleging that he committed murder within the meaning of Penal Code section 187, subdivision (a) and two additional counts of attempted second degree robbery (Pen. Code, §§ 664, 211). On January 30, 2019, a detention hearing was held and Minor's counsel gave notice of a prima facie hearing. The hearing was continued for filing of briefs at the request of Minor, who wanted to address the constitutionality of SB 1437.
On February 25, 2019, Minor filed a notice and motion to release minor pursuant to prima facie hearing (Motion). He sought a determination by the juvenile court that the People could not make a prima facie case for detention on the charges alleged against him and release him to the custody of his mother. Minor alleged that the People would proceed on the murder charge against him based on the felony murder doctrine and/or the natural and probable consequence theory for the target crime of attempted robbery. He alleged that amendments to sections 188 and 189 "eliminated both the felony murder and the natural and probable consequences theories."
Minor briefly outlined the facts alleged in the police report. On January 27, 2019, Keren Noble and her husband were walking down the street when they were approached by three male teenagers. One of them—not Minor—asked them "what do you got?" That teenager then pulled out a black handgun and pointed it at Mr. Noble. Mr. Noble rushed the teenager and was shot. Minor and the other two teenagers were later found by the police; Minor did not run and complied with the commands of the police officers.
As for the attempted robbery charges, Minor made no argument but reserved any argument pending the prima facie hearing. Minor noted that SB 1437 limited first degree felony murder liability to an aider and abettor who was a major participant in the underlying felony and acted with reckless indifference to human life. It was undisputed that Minor was not the actual killer of the victim. Minor argued that based on the evidence in the police reports, the People would be unable to meet their burden of showing he was a major participant in the robbery and acted with reckless indifference to human life to support his detention. Further, the People could not prove murder under a natural and probable consequences theory.
The People filed opposition to the Motion to release minor pursuant to prima facie hearing (Opposition). The People set forth their own statement of facts. Keren and Steven Noble were walking in their neighborhood in Ontario on a Sunday evening. Three teenagers blocked the sidewalk in front of them. Steven stepped in front of his wife. Two of the teenagers said, "What you got, motherfuckers?" Steven stepped forward and was shot in the abdomen by one of the teenagers. Minor was later found in the company of two other teenagers and they all matched the description of the three involved in the shooting of Steven. Minor was detained. Minor was interviewed and admitted being present at the time of the shooting. He initially misidentified the shooter but eventually identified him to police. The firearm involved in the shooting was recovered. Keren told police that one of the teenagers who matched Minor's description was "egging on" the shooter, and said "yeah, motherfucker, what you got." She also stated that all three of the teenagers were very confrontational.
The People noted they had filed a separate brief arguing SB 1437 was unconstitutional, but that the Opposition was based on the fact that even if SB 1437 was constitutional, the charges and detention were justified by Minor's conduct. The People contended that it would establish at the prima facie hearing that Minor was a major participant in the attempted robbery and that he acted with reckless indifference to human life. The People set forth the supporting evidence. The People insisted that there was sufficient evidence to establish a prima facie case to support the detention. The People were not proceeding on a natural and probable consequences theory.
We need not address in detail the People's brief on the constitutionality of SB 1437 as we conclude the issue is not ripe for review, post.
Respondent court conducted a hearing on the constitutionality of SB 1437 on April 22, 2019. At the hearing, the People noted that the constitutional argument was a "collateral argument." Respondent court noted, "These are very complicated legal issues the Court has been given. Frankly, I think it's a privilege and an honor to view and to analyze. As I told counsel, I'm not going to rush into making this decision because it has far-reaching implications. [¶] Ultimately, I think the state Supreme Court will be—will have the final say on this—on the subject matter, whether it's from our district or from other districts. I know for a fact that there are different rulings coming from different courts statewide." The hearing was continued.
On April 30, 2019, respondent court noted that the parties were present for it to rule on the constitutionality of SB 1437. The respondent court found that SB 1437 was unconstitutional as it improperly amended Propositions 7 and 115 without the proper authority. Having so found, it declared that it declined to "give enforcement to SB 1437." The respondent court set a prima facie hearing and then converted the hearing to a pretrial hearing. Minor requested a stay so that a petition for writ of mandate could be filed in appellate court, which was granted by the juvenile court.
Minor filed his Petition on June 10, 2019. We issued an order to show cause and the People filed a return by demurrer and verified answer on September 13, 2019 (Return). Minor filed his traverse and exceptions to return on September 30, 2019 (Traverse).
DISCUSSION
Minor contends this court should issue a peremptory writ of mandate ordering respondent court to reverse its order finding SB 1437 unconstitutional.
"On September 30, 2018 the Governor signed SB 1437, which, effective January 1, 2019, amended sections 188 and 189 and added section 1170.95 to the Penal Code, significantly modifying the law relating to accomplice liability for murder." (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098-1099.) The Legislature stated the purpose of SB 1437: " 'It is necessary to amend the felony murder rule and 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.' " (Id. at p. 1099.) "To effectuate this legislative purpose, SB 1437 added a crucial limitation to section 188's definition of malice for purposes of the crime of murder. New section 188, subdivision (a)(3), 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.'" (Ibid., fns. omitted.)
Section 1170.95 sets forth the petitioning procedure for a defendant who seeks to have his or her first degree murder conviction overturned based on the new standard set forth in section 189.
Section 189, subdivision (e), provides after SB 1437, "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) [which includes robbery] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Respondent court concluded that SB 1437 was unconstitutional. However, this determination was simply a resolution of an abstract legal issue that was not based on any real or specific issue in the case.
"The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) In other words, a controversy is not ripe until " ' "the facts have sufficiently congealed to permit an intelligent and useful decision to be made." ' " (People v. Garcia (2018) 30 Cal.App.5th 316, 328-329 [refused to address constitutionality of section 3051 because it was only relevant if juvenile was transferred to adult court and was sentenced, and hence, the issue was not ripe for review].)
"In determining whether a controversy is ripe, we use a two-pronged test: (1) whether the dispute is sufficiently concrete to make declaratory relief appropriate; and (2) whether the withholding of judicial consideration will result in a hardship to the parties. [Citation.] Under the first prong, the courts will decline to adjudicate a dispute if 'the abstract posture of [the] proceeding makes it difficult to evaluate . . . the issues' [citation], if the court is asked to speculate on the resolution of hypothetical situations [citation], or if the case presents a 'contrived inquiry' [citation]. Under the second prong, the courts will not intervene merely to settle a difference of opinion; there must be an imminent and significant hardship inherent in further delay." (Farm Sanctuary, Inc. v. Department of Food and Agriculture (1998) 63 Cal.App.4th 495, 501-502.)
To be ripe, an issue must present a "real and substantial controversy" capable of "specific relief through a decree of a conclusive character." (Pacific Legal Foundation v. California Coastal Com., supra, 33 Cal.3d at p. 171.) Courts should abstain from deciding issues until they are ripe, and from issuing advisory opinions upon a hypothetical set of facts. (Ibid.)
Here, Minor asks us to issue a peremptory writ of mandate based on a hypothetical situation that may arise in the future, based on a hypothetical state of facts. The issue before respondent court was whether there was a prima facie case to detain Minor for murder and whether to transfer him to adult court. Minor filed the Motion seeking release on the charges because the People could not produce evidence to support the charges and contending that SB 1437 had all but eliminated aider and abettor liability for felony murder. In response, the People provided in their Opposition they would produce evidence to support that Minor was a major participant in the attempted robberies and acted with reckless indifference to human life. In a separate document, the People argued that SB 1437 was unconstitutional but admitted at the hearing that it was a collateral issue. The juvenile court found only that SB 1437 was unconstitutional and set the case for a future hearing.
The finding that SB 1437 was unconstitutional was purely an advisory opinion and if this court were to issue a peremptory writ of mandate our ruling too would result in an advisory opinion. Respondent court made no ruling as to how the People could proceed with the case. It is speculation on Minor's part that the People will not prove that he was a major participant in the robberies and will not prove he acted with reckless indifference to human life. There is nothing for this court to rule upon as the finding by the juvenile court that SB 1437 was unconstitutional, without taking any further action, has no current consequence in this case. The People provided to the respondent court and this court only that the evidence will establish that Minor was a major participant in the robberies and he acted with reckless indifference to human life. Minor merely speculates that the People will ignore the language in section 189. The juvenile court and this court cannot provide an advisory opinion on an issue that is not presently disputed.
Minor insists that the issue is ripe for review. Initially, Minor states that it is clear the People will proceed under a theory of aiding and abetting. He also argues that the decision by the juvenile court will significantly influence the presentation of evidence and that the People's claim that the Petition is based on pure speculation as to the evidence that will be presented is "nonsense." While it is true the People conceded they will proceed on the murder charge under an aiding and abetting theory, the People have consistently stated that the evidence will establish that Minor was a major participant and acted with reckless indifference to human life. It is only Minor's speculation that the People will not present this evidence.
Minor claims that the issues are ripe for decision because if the People cannot meet their burden under section 189, subdivision (e)(3) then no transfer hearing can occur because the only charges would be attempted robbery. Again, this presumes that the People will not prove this evidence. This pure speculation as to what may occur in the future does not make this a justiciable controversy.
Minor argues that the controversy as to whether SB 1437 is constitutional is simple and concrete, and has been thoroughly briefed by the parties. Moreover, it is being litigated in dozens of cases in the Courts of Appeal. He contends that both parties and "juvenile courts statewide" need a conclusive degree as to the constitutionality of SB 1437. However, this essentially asks this court to issue an advisory opinion as to the constitutionality of SB 1437. We decline to do so in this case.
Moreover, the Fourth District, Division One has already concluded in two published cases that SB 1437 was not an invalid amendment to Proposition 7 or Proposition 115 and did not violate the state Constitution. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 251, review denied February 19, 2020; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 288-289, review denied February 19, 2020.) The California Supreme Court has granted review in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted on November 13, 2019, S258175, to address SB 1437 and attempted murder under the natural and probable consequences doctrine.
Minor argues that this court can decide whether SB 1437 is constitutional because the exceptions to ripeness are evident in this case. Minor relies on the fact that the People will proceed in this case based on an aiding and abetting theory. Further, the case will be delayed waiting for all other appeals of SB 1437 to be resolved. "[T]he ripeness requirement does not prevent [a court] from resolving a concrete dispute if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question." (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998.) Based on the status of the instant case, it is pure speculation that this case will involve the People failing to comply with the new standard set forth in section 189. The People consistently have stated that the evidence supports that Minor was a major participant in the robbery and acted with reckless indifference to human life. Deciding the constitutionality of SB 1437 in this case could delay the resolution of this case needlessly.
Moreover, as recognized by both parties, there are numerous cases on appeal that will, and have, address(ed) the constitutionality of SB 1437. If we were to address the issue in this case, it would not guarantee that the case will move forward in an expeditious manner if SB 1437 becomes relevant to the resolution of this case. Further, there is adequate case law available to the juvenile court to guide its handling of this case and other cases.
Finally, Minor argues that he has no other adequate remedy at law. Again, this is based on his belief that the People will not prove he was a major participant in the robbery and acted with indifference to human life. Further, if he is wrongly convicted, he clearly has a remedy in section 1170.95 to file a petition contesting his conviction.
We also note that this court cannot grant Minor effective relief. "An important requirement for justiciability is the availability of 'effective' relief—that is, the prospect of a remedy that can have a practical, tangible impact on the parties' conduct or legal status." (In re I.A. (2011) 201 Cal.App.4th 1484, 1490.) This court must decide actual controversies by a judgment that can be carried into effect, and not give opinions upon abstract propositions or declare principles or rules of law, which cannot affect the matter in issue in the case before us. (Ibid.; see also In re Anna S. (2010) 180 Cal.App.4th 1489, 1498 [a case is moot when it is " 'impossible for the appellate court to grant the appellant effective relief' "].)
Here, Minor has not shown he would have obtained any additional benefit from the juvenile court had it found that SB 1437 was constitutional. The People have provided that they will proceed with evidence that Minor was a "major participant" in the robberies and acted with a "reckless indifference to life." Other appellate court cases support that SB 1437 is constitutional. (People v. Lamoureux, supra, 42 Cal.App.5th at p. 251, People v. Superior Court (Gooden), supra, 2 Cal.App.5th at pp. 288-289. As such, even had the juvenile court concluded that SB 1437 was constitutional, Minor would not be entitled to dismissal of his murder charge nor avoided transfer to the adult criminal system. The order that SB 1437 is unconstitutional at this juncture has no immediate impact on the case and we cannot provide any effective relief to Minor. We need not vacate the juvenile court's purely advisory opinion at this juncture as it has no impact on Minor's case. The stay order filed August 19, 2019, is DISSOLVED.
DISPOSITION
The petition for writ of mandate is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. I concur: RAMIREZ
P. J.
Slough, J., Dissenting.
My colleagues misapply the ripeness doctrine to avoid correcting the trial court's ruling that Senate Bill 1437 is unconstitutional, a ruling which, if left to stand, would alter the trial court's discretionary decisions about whether to try S.H. as a juvenile or an adult. The ruling also would allow the People to prosecute S.H. in a manner now contrary to the law. I therefore dissent.
A. The Offense
S.H. involved himself in a very serious crime on January 27, 2019, when he was a 16-year-old minor. He and two other teenagers confronted a man and a woman walking together down the street in Ontario. One of S.H.'s confederates demanded, "what do you got?" or "what you got, motherfuckers?" and pulled out a handgun. According to the woman, S.H. said, "yeah, motherfucker, what you got?" All three teenagers were confrontational. The man moved toward the gunman, and the gunman shot and killed him. The three teenagers fled, and police later apprehended them together. Once detained, S.H. complied with the police, though he initially misidentified the shooter. The People charged S.H. with first degree murder under the felony-murder rule.
B. Senate Bill 1437 and Felony Murder
Previously, a defendant could be convicted of murder without a showing of malice if the killing occurred during the commission of certain crimes. The felony-murder rule made "a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state." (People v. Chun (2009) 45 Cal.4th 1172, 1182.) First degree felony murder was "a killing during the course of a felony specified in [Penal Code] section 189, such as rape, burglary, or robbery." (Ibid.) Second degree felony murder was '"an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among felonies enumerated in [Penal Code] section 189."' (Ibid.) Thus, until recently, a defendant like S.H. could be convicted of first degree murder based simply on proof he participated in a robbery during which someone was killed.
A defendant could also be convicted of murder without a showing of malice under the natural and probable consequences doctrine if they aided and abetted a confederate in the commission of one criminal act and a killing occurred that was a natural and probable consequence of the first offense. (People v. Prettyman (1996) 14 Cal.4th 248, 254.) However, the People represent they do not intend to rely on that doctrine in prosecuting S.H.
The Legislature eliminated that basis for charging murder by passing Senate Bill 1437 (S.B. 1437) which amended Penal Code sections 188 and 189. Under the new law, malice may not "be imputed to a person based solely on his or her participation in a crime." (Pen. Code, § 188, subd. (a)(3).) Instead, a defendant can be convicted of felony murder only if they were a major participant in the underlying felony (here, a robbery) and acted with reckless indifference to human life. (Pen. Code, § 189, subd. (e).) The new law became effective on January 1, 2019, and therefore applies to the prosecution of S.H.
Or it would apply to his prosecution unless S.B. 1437 wasn't validly enacted. The trial court in this case decided the Legislature did not validly enact the amendment in a ruling related to its decision whether the People had presented a prima facie case for the murder charge and whether S.H. should be transferred from juvenile court to face charges as an adult.
C. Ripeness
Juvenile court jurisdiction attaches in cases in which the defendant is between 12 and 17 years of age when they violate any California law. (Welf. & Inst. Code, § 602.) However, for a defendant like S.H. who is 16 years old or older and is alleged to have committed, among other offenses, robbery or murder, "the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction." (Welf. & Inst. Code, § 707, subd. (a); Cal. Rules of Court, rule 5.766(a).) The prosecution must prove by a preponderance of the evidence that the minor is unfit for juvenile court.
In making its transfer decision, the court must consider the five criteria set out in Welfare and Institutions Code section 707. The court must consider (i) the degree to which the minor showed criminal sophistication, (ii) the chances the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction, (iii) the minor's history of delinquency, (iv) the success of previous attempts by the juvenile court to rehabilitate the minor, and (v) the circumstances and gravity of the offense the prosecution alleges the minor committed. (Welf. & Inst. Code, § 707, subds. (a)(3)(A)-(E).) The weight the trial court assigns each factor lies within its sound discretion. (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 710, 716, 719-721.)
However, "[t]he fitness determination is dependent upon the People making a prima facie case for the offense alleged in the petition. '[T]he issue of fitness cannot be considered unless the prima facie case is first made out.'" (D.W. v. Superior Court (2019) 43 Cal.App.5th 109, 118-119.) So, before deciding a transfer motion, the trial court must also determine whether the prosecution has made a "prima facie showing . . . that the offense alleged is an offense that makes the child subject to transfer." (Cal. Rules of Court, rule 5.766(c); see also Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763, 780, fn. 10, 784.) This prima facie showing requires a showing of "reasonable and probable cause"—"a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused." (Edsel P., at p. 780, fn. 10; see also D.W., at pp. 117-118 [holding Edsel P. prima facie case requirement is a matter of due process and survived amendment of these procedures by Proposition 57].)
This is the procedural setting in which the trial court in this case faced and decided the question whether S.B. 1437 was constitutional—that is, whether it had validly amended Penal Code sections 188 and 189. The People sought a hearing to establish S.H. is unfit for juvenile court jurisdiction and should be transferred to adult court to face the murder charge. And counsel for S.H. responded by bringing a motion seeking to establish the People couldn't present a prima facie case for murder under the law as amended.
S.H. argued the People had evidence he participated in a robbery and the victim was killed during the offense, but not evidence that he was a major participant in the robbery who acted with reckless indifference to human life. In other words, he argued the People had evidence sufficient to hold him on murder charges before January 1, 2019, but not after. The People objected that S.B. 1437 was unconstitutional because it improperly amended statutes enacted by voter initiatives. They argued they could establish a prima facie case of felony murder based solely on the evidence that S.H. participated in the robbery and a victim was killed—precisely the type of prosecution S.B. 1437 was designed to stop. They argued in the alternative that they could establish a prima facie case of felony murder under the law as amended, with evidence that S.H. was present at the robbery and acted in a confrontational manner.
The trial court, presented with a live dispute over the constitutionality of S.B. 1437, gave the issue careful consideration and determined the Legislature had attempted to amend voter enacted statutes without following the required procedure. The court therefore concluded it would not give effect to the amendments and, in proceeding with S.H.'s case, would enforce the law as it previously existed. The pending question was whether the People could establish a prima facie case on the felony-murder charge. That was a no-brainer under prior law, and the defense conceded the People could do so and agreed to turn immediately to the issue of transferring S.H. to adult court.
To the extent the majority thinks the trial court's ruling had no impact on the decision of S.H.'s motion, they simply misread the record. But even if we set that error aside, it's clear the parties presented the trial court with a specific and real dispute over the state of the law—a dispute that had real and immediate implications for the charges and evidence S.H. would face.
Resolution of the dispute also had real and immediate implications for the court in which S.H. would face those charges. The ruling on constitutionality was critical to the question whether the juvenile court should retain jurisdiction or transfer S.H. to stand trial as an adult. That's so because, as we've already seen, the "[t]he fitness determination is dependent upon the People making a prima facie case for the offense alleged in the petition." (D.W. v. Superior Court, supra, 43 Cal.App.5th at pp. 118-119.) The conclusion that S.H. was in jeopardy on a first degree murder charge rather than a robbery charge would affect the trial court's determination of whether juvenile court jurisdiction was appropriate. "The fitness analysis is informed by the nature of the offense alleged. The court must consider the 'circumstances and gravity of the offense alleged in the petition to have been committed by the minor.'" (Id. at p. 119.)
Robbery is a significantly less serious offense than first degree murder. The maximum punishment for robbery in the first degree is six years in prison (Pen. Code, § 213, subd. (a)(1)(B)), whereas first degree murder must be punished by no less than 25 years to life in prison. (Pen. Code, § 190, subd. (a).) "Although the juvenile court does not actually 'sentence' a minor, the sentence set by the Legislature is an indication of how it views the gravity of an offense. This overwhelming gap between how it judges culpability for [robbery] versus murder cannot be divorced from the juvenile court's analysis of the gravity of the offense in determining a minor's fitness for treatment." (D.W. v. Superior Court, supra, 43 Cal.App.5th at p. 119.) It is very likely the trial court would place substantially more weight on the gravity of the offense if the charge is first degree murder rather than robbery. (Ibid.)
It's for that very reason defense counsel asked for a stay of further proceedings in the trial court—to allow S.H. to pursue a writ of mandate in this court. If we were to do our job and direct the trial court to give effect to the law as amended by S.B. 1437, S.H. would be entitled to renew his motion that the People cannot establish a prima facie case for the felony murder charge and the parties could properly litigate whether S.H. should be tried as a juvenile.
Against this background, I simply do not understand the majority's conclusion that the trial court's "determination was simply a resolution of an abstract legal issue that was not based on any real or specific issue in the case." (Maj. opn. ante, at p. 8.) The majority cites the correct standard—an issue is ripe if there is a "real and substantial controversy" capable of "specific relief through a decree of a conclusive character." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171.) But they botch the application.
The majority rely on People v. Garcia (2018) 30 Cal.App.5th 316, 328-329, but that case is decidedly unhelpful to their position. Garcia involved a habeas petitioner who had been convicted of several violent sex crimes committed when he was 17 years old, including two designated One Strike sex offenses under Penal Code section 667.61. (Garcia., at p. 321.) Garcia was tried as an adult and sentenced to 94 years to life in prison. (Ibid.) Afterward, the U.S. Supreme Court established that a sentence of life without possibility of parole for juveniles convicted of nonhomicide offenses is unconstitutional. (Graham v. Florida (2010) 560 U.S. 48, 81-82.) Subsequently, the California Supreme Court applied Graham to nonhomicide juvenile offenders who receive a sentence so long it amounts to a de facto sentence of life without possibility of parole. The court held such sentences were also unconstitutional, instructing that a sentence must provide the juvenile offender a "meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future." (People v. Caballero (2012) 55 Cal.4th 262, 268.)
Garcia filed a habeas petition seeking to take advantage of that new rule. (People v. Garcia, supra, 30 Cal.App.5th at pp. 322, 325.) The trial court concluded the new line of cases "require that juvenile offenders be given 'a meaningful opportunity to rehabilitate and to demonstrate that [they] should be paroled within their natural life expectancy.'" The court then imposed a sentence of 50 years to life comprised of two terms of 25 years to life for two of the counts under the One Strike law. (Garcia, at p. 322.)
While his new sentence was on appeal, the voters passed Proposition 57, which substantially changed the process required before trying juvenile defendants in adult criminal court. (People v. Garcia, supra, 30 Cal.App.5th at p. 322.) Because Proposition 57 applies retroactively, the Court of Appeal took supplemental briefing on the issue of Garcia's entitlement to a hearing in the juvenile court to determine whether his case should be transferred to adult criminal court under the new law. (Garcia, at p. 322.) The People conceded he was entitled to a new transfer hearing and the Court of Appeal conditionally reversed the judgment to allow for one. (Id. at p. 325.)
But the Court of Appeal took its ruling further. The court had already decided the trial court would have to determine under the new law whether to retain jurisdiction and, if so, sentence Garcia as appropriate as a juvenile offender. If the court took that action, Garcia could not have faced a 50-year sentence. Garcia nevertheless asked the Court of Appeal to decide whether he should be resentenced "assuming his case does not remain in juvenile court." (People v. Garcia, supra, 30 Cal.App.5th at p. 326.) The Court of Appeal saw no ripeness issue with deciding that issue. On the contrary, it concluded "the matter must be remanded to the trial court for resentencing, assuming the case is transferred to adult criminal court following the transfer hearing. If the case is not transferred, appellant's convictions will be treated as juvenile adjudications and the juvenile court will impose an appropriate disposition within its discretion." (Ibid.)
The Court of Appeal did invoke the ripeness doctrine to refuse to rule on an issue that had not yet been presented in the case. In response to Caballero, the Legislature had passed Penal Code section 3051, which among other things provides for mandatory parole eligibility hearings in the 25th year of incarceration. However, that provision doesn't apply to One Strike sentences for certain serious sex crimes, with the result that some offenders may be kept in prison more than 25 years before being allowed to seek parole. (People v. Garcia, supra, 30 Cal.App.5th at p. 325.) Garcia was such an offender, and he asked the Court of Appeal to rule that Penal Code section 3051 violated his equal protection rights because "there can be no rational basis for treating him, as a One Strike sex offender, more severely than a juvenile who commits the more serious crime of murder with special circumstances." (Garcia, at p. 327.)
It was this issue the Court of Appeal determined didn't present a ripe controversy. "Here, the juvenile court has yet to decide whether appellant's case should be transferred to adult criminal court for disposition. If the case is not transferred, the constitutionality of [Penal Code] section 3051 will be irrelevant. And even assuming the case is transferred, the trial court has yet to determine appellant's sentence and his earliest parole eligibility date. Until a new sentence is imposed, it is uncertain whether the same constitutional concerns will arise." (People v. Garcia, supra, 30 Cal.App.5th at p. 329.)
We don't face any such uncertainty here. On the contrary, a ruling on the constitutionality of S.B. 1437 was instrumental to deciding what evidence the People had to present to establish a prima facie case that S.H. committed felony murder. Moreover, deciding whether the People could successfully present felony murder charges is critical to the trial court's next determination—whether to maintain jurisdiction in the juvenile court or transfer S.H. to face charges as an adult. What the trial court did here is what trial courts do every day across California, it interpreted the law to enable the parties to litigate their cases in an efficient manner. I simply can't understand how the majority concludes that, by doing this very basic job, the court was impermissibly issuing an advisory opinion.
The majority imputes to the trial court a basic misunderstanding of its job, but I believe it is they who suffer from a basic confusion.
D. Constitutionality of Senate Bill 1437
I believe it's clear the trial court erred in holding S.B. 1437 improperly amended prior voter endorsed initiative statutes. Because I believe the issue was ripe and providing guidance to the trial court is one of our most important jobs, I would reach the issue.
As the People point out in their briefs, our court is currently considering the constitutionality of S.B. 1437 in several cases. Though those decisions are not yet final, every published Court of Appeal decision has reached the same conclusion—that the amendment is constitutional and enforceable. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270; People v. Lamoureux (2019) 42 Cal.App.5th 241; People v. Solis (2020) 46 Cal.App.5th 762; People v. Cruz (2020) 46 Cal.App.5th 740.) I would follow these courts and conclude S.B. 1437 is constitutional.
I note that despite the majority's choice to dodge the issue, the trial court is required to enforce S.B. 1437 on remand. That's so, not because of anything we do here, but because a trial court must follow the decisions of any Court of Appeal decision. (Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 637 [trial court must follow controlling precedent from a Court of Appeal]; see generally Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Since every published Court of Appeal case has determined the amendment is constitutional, the trial court has no leeway to depart from those rulings. On remand it must hold the People to establish S.H. was a major participant and acted in reckless disregard for human life.
E. Conclusion
For these reasons, I would grant the petition for writ of mandate and remand for the trial court to consider whether the People can present a prima facie showing that S.H. committed felony murder under the new definition of murder.
SLOUGH
J.