Opinion
B299666
08-07-2020
In re BRIAN VIRDEN, On Habeas Corpus.
Wallin & Klarich and Stephen D. Klarich for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Michael R. Johnson, Deputy Attorneys General, for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. KA096392) ORIGINAL PROCEEDINGS, writ of habeas corpus. Bruce F. Marrs, Judge. Petition granted. Wallin & Klarich and Stephen D. Klarich for Petitioner. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Michael R. Johnson, Deputy Attorneys General, for Respondent.
PROCEDURAL BACKGROUND
In 2012, petitioner Brian Virden was convicted of committing a forcible lewd act on a child. (Pen. Code, § 288, subd. (b)(1).) Virden, who was between 13 and 16 years old at the time of the crime, was sentenced to six years in state prison and ordered to register as a sex offender. (See People v. Virden (December 19, 2013, B245435) [nonpub. opn.] at p. 9 (Opinion); 2013 WL6684205, at p. *1.)
Virden appealed, raising alleged errors not at issue here. We affirmed. (Opinion, at pp. 4-14; 2013 WL6684205, at pp. *2-*7.) The California and the United States Supreme Court summarily denied Virden's petitions for review and certiorari, respectively. (See People v. Virden, rev. denied March 12, 2014, S216100; Virden v. California (2014) 574 U.S. 823.) Virden filed an unsuccessful habeas corpus petition in the trial court in 2016, and a habeas corpus petition in this Court in August 2019, which we denied as untimely and for failure to state a prima facie case for relief. The California Supreme Court granted Virden's petition for review and transferred the case to this Court with directions to issue an order to show cause as to Virden's claim that he was improperly prosecuted in adult court and concomitant claim for ineffective counsel. We issued the order to show cause on April 24, 2020.
The Attorney General concedes Virden is entitled to relief on his claims, and maintains the proper remedy is to reclassify Virden's "conviction" as a juvenile court adjudication. Virden correctly maintains that the judgment entered against him stemming from his adult court conviction (i.e., six years in state prison) is tantamount "to an illegal sentence" and that In re Harris (1993) 5 Cal.4th 813, 840, and People v. Castillero (2019) 33 Cal.App.5th 393, 400 (Castillero), require this matter be remanded to the juvenile court to reconsider the appropriate adjudication in light of the circumstances.
FACTUAL BACKGROUND
The facts of Virden's felony offense are largely irrelevant to the issues presented on appeal. We paraphrase a portion of the facts set forth in the Opinion.
Virden was born in January 1982. (Opinion at p. 3, fn. 2; 2013 WL6684205, at p. *1, fn. 2.) The victim, Virden's cousin Ryan, was about 10 years younger than Virden. (Id. at p. 3, fn. 3; 2013 WL6684205, at p. *1, fn. 3.) At trial, Ryan testified Virden had sexually molested him when he was approximately three to five years old but was unable further to narrow the time span during which the molestation occurred. (Id. at p. 3.) The time frame which Ryan recalled encompassed a period during which the offense would have been committed when Virden was between 13 and 16 years old. Ryan remained aware that Virden had molested him, but never discussed or disclosed the incident until he was 17 and his mother read a paper he wrote in high school mentioning the incident. Ryan's parents respected his wishes and did not contact the police. (Id. at pp. 3-4.)
DISCUSSION
In light of Virden's age range at the time the crime occurred, the parties agree Virden is entitled to habeas corpus relief based on his trial counsel's failure to object to Virden's trial in adult court. The parties also agree Virden's "conviction" should be redesignated as a juvenile adjudication. However, Virden further contends that once "his adult court 'conviction' is converted to a juvenile court adjudication," his six-year prison sentence "stemming from his 'conviction' . . . amounts to an illegal sentence and, therefore, his case should be remanded to the juvenile court to reconsider the appropriate adjudication in light of the circumstances of the case." We agree.
Since the enactment of Senate Bill No. 1391 (SB 1391) in September 2018 (effective Jan. 2019), Welfare and Institutions Code section 707, subdivision (a) prohibits the prosecution in adult criminal court of individuals who were under 16 years of age at the time they committed a criminal violation. (Castillero, supra, 33 Cal.App.5th at p. 399.) The Attorney General appropriately agrees SB 1391 applies retroactively to this action which was not yet final as of the effective date of the statute. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308-309; C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1038.)
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DISPOSITION
The petition for habeas corpus is granted. The sentence previously imposed is vacated. The case is remanded to the juvenile court with directions to deem the adult court convictions equivalent juvenile court adjudications and impose an appropriate disposition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.