Opinion
E069026
10-01-2018
THE PEOPLE, Plaintiff and Respondent, v. CARLOS DUBOSE, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marilyn L. George, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB903492) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Conditionally reversed and remanded with directions. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
This opinion constitutes this court's third time addressing this case. A jury found defendant and appellant Carlos Dubose, guilty of (1) first degree murder (Pen. Code, § 187, subd. (a)); (2) carjacking (Pen. Code, § 215, subd. (a)); (3) robbery (Pen. Code, § 211); (4) kidnapping for purposes of committing robbery (Pen. Code, § 209, subd. (b)(1)); and (5) fleeing a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)). (People v. Dubose I (March 25, 2014, E054926) [nonpub. opn.] [2014 Cal.App.LEXIS 273, *1419] (Dubose I).)
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found true the allegations that defendant used two deadly or dangerous weapons during the murder, carjacking, robbery, and kidnapping. (§ 12022, subd. (b)(1).) The jury found true the special circumstance allegations that defendant murdered George Onyango (the victim), while committing (1) a robbery, and (2) a carjacking. (§ 190.2, subd. (a)(17).) The jury also found true the special circumstance allegation that defendant intentionally murdered the victim and the murder involved torturing the victim. (§ 190.2, subd. (a)(18).) The trial court sentenced defendant to prison for a determinate term of five years four months, plus an indeterminate term of life without the possibility of parole (LWOP) to be followed by a term of life with the possibility of parole. (Dubose I, supra, [2014 Cal.App.LEXIS at *1420].)
Defendant was a minor at the time of the offense, but he was charged and sentenced as an adult. (Welf. & Inst. Code, § 707, subd. (d)(1).) (Dubose I, supra, [2014 Cal.App.LEXIS at *1419].) In the first appeal, this court reversed defendant's sentence and directed the trial court to resentence defendant, taking into consideration the factors set forth in Miller v. Alabama (2012) 567 U.S. 460. (Dubose I, at *1440].)
Upon remand, the trial court treated this court's resentencing directive as a petition by defendant to recall the LWOP sentence and resentence him. (§ 1170, subd. (d)(2).) The trial court denied the "petition." Defendant appealed, asserting the trial court failed to resentence him. (People v. Dubose II (March 27, 2017, E062089) [2017 Cal.App.Unpub. LEXIS 2144, *2-3].) We remanded the case to the trial court with directions to follow this court's prior directive. (Id. at p. *23.)
At the second resentencing hearing, the trial court considered the Miller v. Alabama factors. The trial court resentenced defendant to a determinate term of one year eight months, a consecutive LWOP term, and a concurrent term of life with the possibility of parole.
The indeterminate abstract of judgment incorrectly reflects that defendant received two LWOP sentences. It should reflect one LWOP sentence and one sentence of life with the possibility of parole. --------
In this third appeal, defendant contends, pursuant to Proposition 57, that the judgment should be conditionally reversed and the case remanded to the juvenile court for a hearing as to whether the case should be transferred to the criminal court. (Welf. & Inst. Code, § 707, subd. (a).) The People concede defendant is entitled to a transfer hearing. Additionally, defendant contends the trial court erred in recalculating defendant's custody credits. We conditionally reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant and Davion Whitmore resided in a group home, in Yucaipa, pursuant to their probation conditions. Defendant and Whitmore were friends. The victim was a counselor at the group home. On August 22, 2009, Whitmore was upset that the probation department denied him a weekend pass to go home. The victim worked the night shift at the group home on August 22; the victim was the sole counselor on the night shift. (Dubose I, supra, [2014 Cal.App.LEXIS at *1421].)
That night, Dubose removed the wooden rod, which is used to hang clothes, from his closet. Dubose went into the hallway, between his bedroom and Whitmore's bedroom, to speak with Whitmore. The victim told Dubose and Whitmore to return to their beds. Dubose struck the victim's back with the wooden rod, causing the victim to fall down. Whitmore laughed and began punching and kicking the victim. The victim put his hands up with his palms out to defend himself. The victim screamed, " 'Leave me alone, take everything.' " (Dubose I, supra, [2014 Cal.App.LEXIS at *1421-1422].)
The beating took place in the hallway for several minutes, with the victim being punched, kicked, and struck with the rod. Defendant swung the rod from over his head. The victim begged for his life. The victim tried to exit the house by moving down the hallway, but defendant followed the victim and caused the victim to move further back into the hallway, eventually arriving in Whitmore's bedroom. The beating continued in Whitmore's bedroom. Eventually the victim stopped screaming. Two other residents of the group home found the victim inside a locked closet in Whitmore's bedroom. The victim was "hog-tied" with sheets and extension cords. One of the sheets was tied around the victim's neck. (Dubose I, supra, [2014 Cal.App.LEXIS at *1422].)
Defendant and Whitmore took the victim's car from the group home. California Highway Patrol Officer Goulding saw the car on westbound Interstate 10, weaving across lanes of traffic and fluctuating between speeds of 65 and 80 miles an hour. Officer Goulding and his partner activated their car's lights and sirens. The victim's car accelerated and weaved through traffic. As the victim's car exited the freeway at a high rate of speed, the brakes locked, the car skidded through the intersection, and it made a hard right turn onto Sierra Avenue. As the car travelled down Sierra, it turned, skidded, travelled over a raised concrete center median, collided with a metal traffic sign, and became lodged on the median. The driver "revv[ed]" the engine, but the car did not move. A few seconds later, the driver and front passenger doors opened. Defendant exited the driver's side of the car. Whitmore exited the passenger side of the car. Defendant ran north, while Whitmore ran south. Officers detained defendants. (Dubose I, supra, [2014 Cal.App.LEXIS at *1423].)
At the hospital, doctors removed a blood clot that was pressing on the victim's brain. Doctors did not replace a piece of the victim's skull, which doctors had removed because they were waiting for the brain swelling to reduce. The victim's facial bones were fractured and he had various defensive wounds. The victim suffered a fractured rib on his back, reflecting he had been struck. The victim also suffered hemorrhages in his neck, likely due to being strangled. The victim died five days after the beating. The swelling in the victim's brain was so great that blood could not circulate to it. It was determined the victim's death was caused by "[b]lunt head injury," with strangulation possibly being a contributing factor. (Dubose I, supra, [2014 Cal.App.LEXIS at *1424].)
Defendant was born in January 1992. On August 22, 2009, defendant was 17 years old. The prosecutor filed a felony complaint against defendant on August 25, 2009, and the information was filed on July 13, 2010. The jury found defendant guilty on September 19, 2011.
DISCUSSION
A. TRANSFER HEARING
Defendant contends that, due to the passage of Proposition 57, he is entitled to a hearing in juvenile court regarding whether his case should be transferred to criminal court. Defendant requests the judgment be conditionally reversed, so the hearing may take place. The People concede defendant is entitled to a transfer hearing.
In 2009, if a minor 16 years of age or older were charged with certain crimes, such as murder or robbery, then the prosecutor could file charges against the minor directly in criminal court, rather than juvenile court. (Former Welf. & Inst. Code, § 707, subd. (d)(1).) In November 2016, "the electorate passed Proposition 57, the 'Public Safety and Rehabilitation Act of 2016' (Proposition 57). Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what [is called] a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara), fn. omitted.)
The California Supreme Court has held that Proposition 57 applies retroactively. (Lara, supra, 4 Cal.5th at p. 303.) The Supreme Court approved of the remedy set forth in People v. Vela (2017) 11 Cal.App.5th 68, for juveniles that had cases pending in criminal court prior to the passage of Proposition 57. (Lara, at pp. 309-313.)
The Supreme Court wrote, "Specifically, the Vela court ordered as follows: 'Here, under these circumstances, [the defendant]'s conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. (§ 707.) 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 [the defendant]'s cause to a court of criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [the defendant] 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 [the defendant]'s convictions and sentence are to be reinstated. ([Welf. & Inst. Code,] § 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [the defendant] to a court of criminal jurisdiction, then it shall treat [the defendant]'s convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' (Vela, supra, 11 Cal.App.5th at p. 82.)" (Lara, supra, 4 Cal.5th at p. 310.)
In sum, our Supreme Court has held that Proposition 57 is retroactive and the appropriate remedy for minors' cases pending in adult court prior to the passage of Proposition 57 is a conditional reversal followed by a transfer hearing. In conformance with the Supreme Court's holding, we will conditionally reverse the judgment, so that a transfer hearing may be held in the juvenile court. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456 [lower courts must follow the holdings of higher courts].)
B. CREDITS
When defendant was sentenced in 2011, his custody credits were listed as 805 days. After defendant was resentenced in 2017, his custody credits on the determinate abstract of judgment were again listed as 805 days. The issue of custody credits was not discussed at the second resentencing hearing.
Defendant contends the trial court erred at the second resentencing hearing by not recalculating defendant's custody credits. The People contend defendant needs to raise this issue in the trial court, and can do so if his sentence is reinstated.
Section 1237.1 provides, "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction."
As explained ante, we will conditionally reverse defendant's sentence in order for a transfer hearing to take place. (Welf. & Inst. Code, § 707, subd. (a).) If defendant's sentence is reinstated, then defendant may raise the issue of custody credits by motion in the criminal court. (Pen. Code, § 1237.1.)
DISPOSITION
The judgment of the criminal court is conditionally reversed. The cause is remanded to the juvenile court with directions to conduct a transfer hearing, no later than 90 days from the filing of the remittitur. (Welf. & Inst. Code, § 707, subd. (a); Lara, supra, 4 Cal.5th at pp. 310-313.) If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, then the judgment and sentence shall be reinstated as of that date. If, at the transfer hearing, the juvenile court determines that it would not have transferred defendant to a court of criminal jurisdiction, then defendant's criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then directed to conduct a dispositional hearing within its usual time frame.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.