Opinion
B299307
06-19-2020
In re ROOSEVELT MOORE on Habeas Corpus.
Brad Kaiserman, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Acting Supervisory Deputy Attorney General, and Nancy Lii Ladner, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA007617) ORIGINAL PROCEEDINGS in Habeas Corpus. Superior Court of Los Angeles County, Richard R. Romero, Judge. Petition granted. Brad Kaiserman, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Acting Supervisory Deputy Attorney General, and Nancy Lii Ladner, Deputy Attorney General, for Plaintiff and Respondent.
The parties to this appeal agree petitioner Roosevelt Moore (Moore) is entitled to a juvenile court transfer hearing under a retroactive application of the Public Safety and Rehabilitation Act of 2016 (Proposition 57) if his criminal judgment was not final at the time of the proposition's passage. Finality is therefore the key issue we decide.
I. BACKGROUND
In 1992, a jury convicted Moore of nine counts of forcible rape (Pen. Code, § 261, subd. (a)(2)); seven counts of forcible oral copulation (§ 288a, subd. (c)); two counts of attempted second degree robbery (§§ 664, 211); two counts of second degree robbery (§ 211); forcible sodomy (§ 286, subd. (c)); kidnapping with intent to commit a felony sex offense (§§ 207, 667.8, subd. (a)); genital penetration by a foreign object (§ 289); and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). He was 16 years old at the time he committed his crimes. (Moore v. Biter (9th Cir. 2013) 725 F.3d 1184, 1186.) The trial court sentenced Moore to 254 years and 4 months in prison. On direct appeal, this court affirmed the judgment. (People v. Moore (May 27, 1993, B065363).)
Undesignated statutory references that follow are to the Penal Code.
Almost two decades later, the United States Supreme Court filed its opinion in Graham v. Florida (2010) 560 U.S. 48 (Graham). Graham holds imposition of life without parole (LWOP) sentences on juveniles who were not convicted of a homicide violates the Eighth Amendment. (Graham, supra, 560 U.S. at 82.) In response to Graham, Moore filed habeas corpus petitions in the trial court, this court, and our Supreme Court, all arguing his sentence was tantamount to life in prison and therefore unconstitutional. (Moore v. Biter, supra, 725 F.3d at 1187.) These petitions were denied, as was a habeas petition filed in Federal district court. (Ibid.)
Then, in August 2013, the U.S. Court of Appeals for the Ninth Circuit reversed the district court's denial of Moore's habeas petition. (Moore v. Biter, supra, 725 F.3d at 1186.) Citing Graham, the Ninth Circuit held Moore's sentence was materially indistinguishable from an LWOP sentence and therefore unconstitutional because Moore did not commit a homicide. (Id. at 1191-1192, 1194.) On remand, the district court issued a conditional writ of habeas corpus giving the state 90 days in which to either resentence Moore in a manner consistent with Graham or release him.
In October 2014, the trial court reimposed the same 254 years and 4 month sentence but ordered the Department of Corrections and Rehabilitation to provide Moore a parole hearing on his 62nd birthday. The trial court stated that it considered all the arguments at the original sentencing as well as the mitigating circumstances at the time, including youth-related factors.
This court initially affirmed the judgment following resentencing. (People v. Moore (Dec. 8, 2015, B260667) [nonpub. opn.].) The filed opinion did not, however, address the application of section 3051—newly enacted legislation that in some cases had the effect of shortening the time in which young incarcerated felons must be given a youth offender parole hearing. (§ 3051, subd. (b)(1) ["A person who was convicted of a controlling offense that was committed when the person was 25 years of age or younger and for which the sentence is a determinate sentence shall be eligible for release on parole at a youth offender parole hearing during the person's 15th year of incarceration"].) Moore petitioned for review.
On August 17, 2016, our Supreme Court ordered the matter transferred back to this court "with directions to vacate its decision and reconsider the cause in light of People v. Franklin (2016) 63 Cal.4th 261, 268-269, 283-284." The following month, this court issued an order vacating the December 8, 2015, opinion and resetting the matter for oral argument.
Franklin held a remand was required so a defendant, who was a minor at the time of his commitment offense, could develop a record of youth-related factors to be used at a future youth offender parole hearing. (Franklin, supra, 63 Cal.4th at 269.)
In the meantime, California voters approved Proposition 57. Before its passage, "prosecutors were permitted, and sometimes required, to file charges against a juvenile [defendant] directly in criminal court, where the juvenile would be treated as an adult." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara).) Proposition 57, however, "'amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors . . . c[ould] still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor c[ould] be rehabilitated. [Citation.]' [Citation.]" (Id. at 305-306.) Proposition 57 took effect on November 9, 2016.
Months later, in January 2017, we held Moore's appeal of the reimposed 254-year sentence was mooted by enactment of section 3051. (People v. Moore (Jan. 24, 2017, B260667) [nonpub. opn.].) Our disposition in that opinion reads as follows: "The appeal is moot. The sentence is affirmed and the case is remanded to the trial court to determine whether defendant . . . had sufficient opportunity to establish a record of information relevant to a parole determination made pursuant to . . . sections 3051 and 4801." (Ibid.) Moore petitioned for review of this decision too, but our Supreme Court denied review on May 10, 2017.
The following year, our Supreme Court decided Lara, which held Proposition 57 applies retroactively to all juveniles charged directly in adult court whose judgments were not final at the time it was enacted. (Lara, supra, 4 Cal.5th at 309 ["Proposition 57 is an 'ameliorative change[ ] to the criminal law' that we infer the legislative body intended 'to extend as broadly as possible'"]; see also id. at 303-304 [Proposition 57's changes to the law governing juvenile court transfer hearings "appl[y] to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted"].)
After Lara, and expressly invoking that case's holding, Moore filed a "Motion to Conditionally Reverse [his] convictions and sentence pending transfer hearing in juvenile court . . . ." The superior court denied the motion, believing Proposition 57 did not apply to Moore because his criminal judgment had become final before the proposition became effective. Moore then filed an uncounseled petition for writ of mandate in this court. We construed Moore's filing as a petition for writ of habeas corpus and directed the Attorney General to file an informal response addressing (1) whether Moore's judgment was final at the time Proposition 57 was enacted, and (2) if Moore's judgment was not final, whether he is entitled to a transfer hearing under Proposition 57 even though he had previously received a fitness hearing under the provisions of Welfare and Institutions Code section 707 before they were substantively amended by Proposition 57.
The Attorney General's informal response conceded Moore is entitled to a new transfer hearing under current law if his judgment was not final at the time Proposition 57 took effect. But the Attorney General maintained Moore was not entitled to relief because (and only because) his conviction was then already final. We issued an order to show cause, appointed counsel for Moore, permitted the filing of an amended petition, and considered further briefing by the parties, including supplemental briefing on the effect, if any, of a recent decision by our Supreme Court in a different but arguably pertinent context. (People v. McKenzie (2020) 9 Cal.5th 40, 46 (McKenzie).)
II. DISCUSSION
In California (and in the Federal system for that matter (Berman v. United States (1937) 302 U.S. 211, 212)), the sentence imposed on a defendant constitutes the criminal judgment. (McKenzie, supra, 9 Cal.5th at 46; People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 (Karaman); People v. Tokich (1954) 128 Cal.App.2d 515, 519.) And that is precisely how the Lara court understood background legal principles when it set limits on the retroactivity of Proposition 57. As the court explained, "'[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.'" (Lara, supra, 4 Cal.5th at 308, italics added.) The proper result here, as we shall explain, is therefore straightforward: Moore is entitled to the retroactive benefit of Proposition 57's changes to the Welfare and Institutions Code because his judgment—his sentence—was not final when Proposition 57 took effect in November 2016. The points the Attorney General offers to argue the contrary are all meritless.
In re Estrada (1965) 63 Cal.2d 740 (Estrada).
Proposition 57 amended Welfare and Institutions Code section 707, the statute that governs when a juvenile can be tried in a court of criminal jurisdiction rather than in juvenile court. The proposition's amendments eliminated the presumption that minors accused of certain serious crimes were unfit for juvenile court proceedings and must be tried in a court of criminal jurisdiction (i.e., "adult court"). Proposition 57 also eliminated the requirement that minors charged with serious offenses must satisfy "each and every" one of five "fitness" criteria before being found fit to be dealt with in juvenile court. These changes make it relatively easier for a juvenile to be found fit for juvenile court proceedings, and as Lara explains, such a determination often carries with it quite significant sentencing benefits. (Lara, supra, 4 Cal.5th at 306 ["We must decide whether this requirement of a transfer hearing before a juvenile can be tried as an adult applies to defendant even though he had already been charged in adult court before Proposition 57 took effect. The question has potentially major consequences for juveniles like defendant. 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"].)
The five criteria are: (1) the degree of criminal sophistication exhibited by the minor, (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction, (3) the minor's previous delinquent history, (4) the success of previous attempts by the juvenile court to rehabilitate the minor, and (5) the circumstances and gravity of the offense(s) the minor was alleged to have committed. (Welf. & Inst. Code, § 707, subd. (a)(3).)
Lara holds the changes worked by Proposition 57 apply to all juveniles whose judgment was not final at the time the proposition was enacted. (Lara, supra, 4 Cal.5th at 304; see also id. at 307 [quoting Estrada's holding that an "'amendatory act imposing . . . lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final'"].) Importantly, Lara also observes finality for retroactivity purposes is calculated from the time at which a defendant's sentence becomes final, and that is consistent with well-established law. (Lara, supra, at 308 ["'[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'"]; see also § 1237, subd. (a) [authorizing appeals from a final judgment of conviction, defined as a sentence, an order granting probation, a commitment of a defendant for insanity, an indeterminate commitment of a defendant as a mentally disordered sex offender, or a commitment of a defendant for controlled substance addiction]; McKenzie, supra, 9 Cal.5th at 46 ["[T]he People err by assuming that when we used the phrase 'judgment of conviction' in Estrada, supra, 63 Cal.2d at page 744, we were referring only to 'underlying' convictions and enhancement findings, exclusive of sentence. In criminal actions, the terms 'judgment' and "'sentence'" are generally considered 'synonymous' (People v. Spencer (1969) 71 Cal.2d 933, 935, fn. 1[ ]), and there is no 'judgment of conviction' without a sentence [citation]"]; Karaman, supra, 4 Cal.4th at 344, fn. 9 ["In a criminal case, judgment is rendered when the trial court orally pronounces sentence"].)
Here, Moore's sentence was invalidated in 2013 by the Ninth Circuit, requiring that he either be resentenced in accordance with constitutional standards or released from custody. At that moment, there was no final judgment of conviction because there was no existing sentence. The trial court reimposed sentence in October 2014, but that sentence, and thus the judgment, was not final for retroactivity purposes until disposition in the highest court authorized to review it. (McKenzie, supra, 9 Cal.5th at 45.) That did not occur until 90 days after May 10, 2017, when our Supreme Court finally denied review of this court's January 24, 2017, opinion. (People v. Vieira (2005) 35 Cal.4th 264, 306; 28 U.S.C. § 2101(d); U.S. Supreme Ct. Rules, rule 13(1).) By then, Proposition 57 had been in effect for months. Because Proposition 57's effective date preceded the date on which Moore's judgment was final, he is entitled to retroactive application of Proposition 57. And as the Attorney General has conceded, that means a new juvenile court fitness hearing is required. (People v. Garcia (2018) 30 Cal.App.5th 316, 324-325 (Garcia).)
Our conclusion is consistent with the result reached in Garcia. In that case, the defendant was convicted in 1996 of multiple violent sex offenses and sentenced to 94 years to life in prison. (Garcia, supra, 30 Cal.App.5th at 319.) Over a decade later, long after the time for direct appeal expired, defendant filed a habeas petition challenging his sentence as unconstitutional under the Graham line of cases. (Id. at 320.) The trial court agreed and resentenced defendant, and defendant then argued Proposition 57 (which had taken effect) required the Court of Appeal to vacate the sentence, conditionally reverse the defendant's convictions, and remand to the trial court with directions to refer the case to the juvenile court for a transfer hearing to determine the propriety of prosecution of the case in adult criminal court. (Ibid.) The Court of Appeal agreed with Garcia and conditionally reversed for further proceedings pursuant to Proposition 57 without any opposition from the Attorney General. (Id. at 320, 324, 330.)
The Attorney General argues Garcia should be ignored for two reasons, both unpersuasive. The Attorney General states, correctly, that the issue of finality was conceded in Garcia but contested here. The Garcia court, however, was not required to accept the concession (but did), and the Attorney General provides no explanation of why his position on the issue of finality has changed. The Attorney General also argues Garcia is wrongly decided and its outcome should not be duplicated, but the Attorney General is hard pressed to criticize a result in which he acquiesced and, again, Garcia's outcome is consistent with our own independent analysis.
The Attorney General additionally relies on People v. Kemp (1974) 10 Cal.3d 611 (Kemp) but that case is an unreliable guide here. In Kemp, the defendant was sentenced to death for murder but "the judgment was [later] vacated [on habeas corpus] insofar as it imposed the death penalty and was affirmed in all other respects." (Id. at 613-614.) On retrial of the penalty phase, a judgment of death was again imposed. (Ibid.) On appeal, and "[i]n response to [the Supreme Court's] invitation to state a claim under any applicable retroactive constitutional decision of the United States Supreme Court or of this court filed after affirmance of this judgment on the issue of guilt," the defendant sought to raise an evidentiary challenge to his convictions. (Id. at 613.) The Kemp court held such a challenge was beyond the scope of the appeal because the judgment had been vacated only insofar as it related to the death penalty and the original judgment on the issue of guilt remained final during the retrial of the penalty issue and all subsequent appellate proceedings. (Id. at 614.) Here, because the issue of juvenile court fitness has "has potentially major consequences" for Moore's sentencing exposure (Lara, supra, 4 Cal.5th at 306), and because the validity of Moore's sentence was very much still at issue in his direct appeals following the resentencing ordered by the Ninth Circuit, Kemp's penalty-based holding is inapposite.
In the end, the Attorney General's position in this appeal is perhaps best captured by his observation that "it simply cannot be the case that the voters intended the provisions of Proposition 57 to apply to a person such as [Moore], who committed heinous crimes, is now in his 40s, and could not even receive the benefits of rehabilitation from being treated as a juvenile . . . ." These assertions are appropriately among the considerations the trial court will assess when deciding whether Moore is fit for juvenile court proceedings, but they are no valid reason to forestall the court from undertaking such consideration at all.
DISPOSITION
The petition for writ of habeas corpus is granted and the judgment is vacated. The cause is remanded to the juvenile court with directions to hold a transfer hearing under Welfare and Institutions Code section 707, assuming the prosecution moves for such a hearing, no later than 90 days from the date the remittitur issues. If, after the hearing, the juvenile court determines it would transfer Moore to a court of criminal jurisdiction under current law, the judgment of conviction shall be reinstated as of the date of that determination.
If no motion for a transfer hearing is filed, or if a transfer hearing is held and the juvenile court determines it would not transfer Moore to a court of criminal jurisdiction, Moore's criminal convictions will be deemed to be juvenile adjudications as of the date of the juvenile court's determination. In the event the convictions are deemed juvenile adjudications, the juvenile court shall hold a disposition hearing and craft an appropriate disposition within the court's discretion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
KIM, J.