Opinion
F074534
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. AUGUSTINE ISARRARAS, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell and Daniel B. Bernstein, Assistant Attorneys General, Stephen G. Herndon, and Matthew A. Kearney, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF319337C)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell and Daniel B. Bernstein, Assistant Attorneys General, Stephen G. Herndon, and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Meehan, J.
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INTRODUCTION
This case arises out of a gang-related shooting that occurred the evening of June 12, 2015. During a confrontation at a convenience store in Sultana, defendant Augustine Isarraras, who was then 14 years old and an active Southern, or Sureño, criminal street gang member, shot and killed the male victim. The shooting was captured on videotape.
Due to the nature of the claims raised on appeal, we need only briefly summarize the facts, which are taken from the probation report.
Defendant was charged by amended information with first degree murder (Pen. Code, §§ 187, 189) in count 1 with the special circumstance that the murder was committed by an active participant in a criminal street gang (§ 190.2, subd. (a)(22)), and with gang conspiracy in count 2 (§ 182.5). The amended information also alleged personal and intentional use of a firearm by a principal (§ 12022.53, subds. (d), (e)(1); counts 1 and 2), personal use of a firearm (§ 12022.5, subd. (a); count 1), and commission of a felony for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C); count 1). On September 6, 2016, defendant pleaded no contest to second degree murder and admitted personal use of a firearm by a principal (§ 12022.53, subd. (d)) and the gang enhancement (§ 186.22, subd. (b)(1)(C)).
All further statutory references are to the Penal Code.
Defendant was charged along with two codefendants, Tony Eugene Ponce and Abraham Ponce.
On October 7, 2016, the trial court sentenced defendant to a term of 15 years to life for second degree murder, plus an additional consecutive term of 25 years to life for the firearm enhancement, for a total indeterminate prison term of 40 years to life. The gang enhancement was stayed.
On appeal, defendant argues Proposition 57 applies retroactively and he is entitled to remand for a juvenile transfer hearing. He also requests remand to make a record of mitigating, youth-related factors pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin), and in supplemental briefing he requests remand in light of the recent amendment to section 12022.53, effective January 1, 2018, which permits the trial court, in the interest of justice, to strike or dismiss an enhancement otherwise required to be imposed under the statute. (Sen. Bill No. 620, approved by Governor Oct. 11, 2017 (2017-2018 Reg. Sess.) § 2; Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018) (Sen. Bill No. 620).)
The People dispute defendant's entitlement to any relief.
Pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), which was decided after briefing was completed in this case, defendant is entitled to relief under Proposition 57, and we conditionally reverse the judgment and remand for further proceedings. We also agree with defendant that he is entitled to make an adequate record in accordance with Franklin, and that given the recent amendment to section 12022.53, the trial court should be afforded the opportunity to exercise its discretion in the first instance.
DISCUSSION
I. Proposition 57
A. Background
In this case, the district attorney directly filed charges against defendant in a court of criminal jurisdiction in 2015. (Welf. & Inst. Code, § 707, former subd. (d)(2)(A).) This procedure was authorized by California voters in March 2000 with the passage of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, which "revised the juvenile court law to broaden the circumstances in which minors 14 years of age and older can be prosecuted in the criminal division of the superior court, rather than in juvenile court." (Manduley v. Superior Court (2002) 27 Cal.4th 537, 549; accord, Lara, supra, 4 Cal.5th at p. 305.) However, on November 8, 2016, voters passed Proposition 57, the Public Safety and Rehabilitation Act of 2016. (Lara, supra, at p. 303.) Following the passage of Proposition 57, in relevant part, the district attorney is no longer authorized to directly file serious felony charges against juveniles in criminal court. (Ibid.; Welf. & Inst. Code, § 707, subd. (a)(1).) Now, the district attorney may seek to transfer a case from juvenile court to criminal court, but allegations of criminal conduct against a person under the age of 18 must be initiated in juvenile court. (Lara, at p. 303; Welf. & Inst. Code, § 707, subd. (a)(1).) If the district attorney brings a transfer motion, it is for the trial court to determine whether the juvenile should be transferred to criminal court. (Lara, at p. 303; Welf. & Inst. Code, § 707, subd. (a)(2).)
B. Defendant Entitled to Relief Under Proposition 57
Citing the reasoning articulated in In re Estrada (1965) 63 Cal.2d 740, the California Supreme Court recently held in Lara that while Proposition 57 does not mitigate punishment for any particular crime, it does confer potential benefits to a class of persons, i.e., juveniles, and constitutes an "'ameliorative change[] to the criminal law' that ... the legislative body intended 'to extend as broadly as possible.'" (Lara, supra, 4 Cal.5th at pp. 303-304, 308-309.) In short, Proposition 57 applies retroactively "to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, at p. 304.) As such, defendant is entitled to relief and the parties' pre-Lara arguments are moot.
The Lara opinion tacitly endorses a remand procedure described by the Fourth District Court of Appeal in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela). (Lara, supra, 4 Cal.5th at pp. 310, 313 ["we believe remedies like those provided in Vela ... are readily understandable, and the courts involved can implement them without undue difficulty"].) Accordingly, defendant's conviction and sentence will be conditionally reversed, and the matter will be remanded for the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707. (Lara, supra, at p. 310.)
"'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] 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 [or she] is "not a fit and proper subject to be dealt with under the juvenile court law," then [his or her] convictions ... 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 [him or her] to a court of criminal jurisdiction, then it shall treat [his or her] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.'" (Lara, supra, 4 Cal.5th at p. 310, quoting Vela, supra, 11 Cal.App.5th at p. 82, review granted.)II. Franklin Hearing
In Franklin, the California Supreme Court considered an appeal filed by a defendant who was convicted of a murder committed when he was 16 years old and sentenced to a total indeterminate term of 50 years to life in prison. (Franklin, supra, 63 Cal.4th at p. 268.) Relying on Graham v. Florida (2010) 560 U.S. 48, Miller v. Alabama (2012) 567 U.S. 460 (Miller), and People v. Caballero (2012) 55 Cal.4th 262, the defendant in Franklin challenged his sentence as unconstitutional under the Eighth Amendment. (Franklin, at p. 268.) The court first determined that the defendant's constitutional claim was rendered moot by the then-recent enactment of section 3051 and amendment to section 4801. (Franklin, at p. 268.) The court then recognized that the defendant raised "colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth. The criteria for parole suitability set forth in ... sections 3051 and 4801 contemplate that the Board [of Parole Hearings'] decisionmaking at [the defendant's] eventual parole hearing will be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense." (Id. at p. 269.) The court therefore remanded the case for the trial court to determine whether the defendant "was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth." (Ibid.)
The decision in Franklin was issued on May 26, 2016, and as such, as the People point out, the parties and the trial court had the benefit of Franklin, as well as sections 3051 and 4801, at the time of sentencing in October 7, 2016. However, the probation officer's report identified no mitigating factors; defendant's age was added by hand by the trial court. Further, while the trial court mentioned Miller at one point in passing, that occurred in the context of discussing, pre-plea bargain, whether the defense psychologist's proposed testimony was relevant during the guilt phase of the upcoming trial. Defendant thereafter entered a plea of no contest, and neither Miller nor Franklin was mentioned in the probation report or discussed during the sentencing hearing. The People do not contend otherwise but maintain defendant had a sufficient opportunity to present mitigating information.
While the trial court was cognizant of the fact that this was a special circumstances case involving juveniles, we agree with defendant that the record does not suggest the parties and the trial court were focused during sentencing on creating the type of record contemplated by Franklin. As we have discussed, the California Supreme Court's decision in Lara entitles defendant to a juvenile fitness hearing at which the court is required to consider youth-related factors. (Welf. & Inst. Code, § 707, subd. (a)(2).) In the event the juvenile court determines it would have transferred defendant to a court of criminal jurisdiction and it reinstates the conviction and sentence, the trial court shall afford both parties an adequate opportunity to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under sections 3051 and 4801, subdivision (c).
III. Amendment to Sections 12022.5 and 12022.53
Finally, effective January 1, 2018, amendments to section 12022.5, subdivision (c), and section 12022.53, subdivision (h), permit a trial court, in the interest of justice, to strike or dismiss an enhancement otherwise required to be imposed under those statutes. (Sen. Bill No. 620, §§ 1, 2.) The California Supreme Court has explained that "'[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, we have held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 427-428; People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)
Relying primarily on People v. Francis (1969) 71 Cal.2d 66, 75-76, the Attorney General concedes the foregoing amendments pursuant to Senate Bill No. 620 apply retroactively to defendant's case, as it was not yet final when the amendments went into effect (see People v. Vieira (2005) 35 Cal.4th 264, 306). We accept the concession without further analysis and turn to the People's claim that remand is not appropriate because the "firearm enhancement was part and parcel of [defendant's] plea agreement." Defendant responds that he is not seeking to vacate his plea agreement or reduce his sentence. Rather, he seeks remand only so the parties and the trial court can reconsider the agreement given Senate Bill No. 620.
Defendant relies on the California Supreme Court's decision in Doe v. Harris (2013) 57 Cal.4th 64 (Harris), in which the California Supreme Court answered, at the request of the Ninth Circuit Court of Appeals, the following question: "'Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?'" (Id. at p. 66.) The court held,
"[T]he general rule in California is that a plea agreement is '"deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good
and in pursuance of public policy...."' [Citation.] It follows, also as a general rule, that requiring the parties' compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law." (Id. at pp. 73-74.)
The People do not acknowledge Harris and therefore offer no explanation why the general rule discussed therein would not apply to the Senate Bill No. 620 amendments, which the Legislature determined were appropriate in furtherance of public policy concerns. The parties may raise any issues they deem pertinent in the trial court, but under the circumstances, the argument advanced by the People here appears foreclosed by Harris.
Defendant was 14 years old at the time of his offense. If his conviction is reinstated following his juvenile transfer hearing, he will be afforded a hearing under Franklin. We do not know what information might be presented to the trial court at that hearing. We do not discount the fact defendant murdered someone, but we cannot say, as a matter of law, that the trial court would abuse its discretion if it were to strike the firearm enhancement. Nor can we say that information presented at the Franklin hearing will have no bearing on its decision in this regard.
Relating to his Senate Bill No. 620 argument, defendant states in his supplemental opening brief, "Here, after defense counsel's argument for a lesser sentence, the trial court noted that its 'discretion in this matter is somewhat limited.... It's significantly limited.' (2CT 343.) The trial court found that appellant was not 'totally incorrigible' and that the offenses had been committed when appellant 'was 14 years old, easily impressionable, and impulsive, a subject to impulsive behavior. (2CT 345.)'" We are unable to locate these statements in the record and note that defendant cites to a Clerk's Transcript volume and page numbers that do not correspond to the record filed in this appeal. --------
DISPOSITION
The conviction and sentence are conditionally reversed and the matter is remanded to the juvenile court with directions to conduct a juvenile fitness hearing. (Welf. & Inst. Code, § 707.) When conducting said hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a petition in the juvenile court and then moved to transfer defendant's case to a court of criminal (adult) jurisdiction under the applicable laws as amended by Proposition 57.
If, after conducting the juvenile transfer hearing, the juvenile court finds it would not have transferred defendant to a court of criminal (adult) jurisdiction, it shall treat defendant's conviction as a juvenile adjudication; exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620; and impose an appropriate disposition within its discretion.
If, after conducting the juvenile transfer hearing, the court determines it would have transferred defendant to a court of criminal (adult) jurisdiction because he is not a fit and proper subject to be dealt with under the juvenile court law, then defendant's conviction and sentence shall be reinstated as of that date. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall (1) afford both parties an adequate opportunity to make a record of information that will be relevant to the parole authority as it fulfills its statutory obligations under sections 3051 and 4801, subdivision (c); (2) exercise its discretion under section 12022.53, subdivision (h), as amended by Senate Bill No. 620; and (3) if appropriate following exercise of that discretion, resentence defendant accordingly. If the trial court resentences defendant, it shall cause to be prepared an amended abstract of judgment that reflects the new sentence, and shall cause a certified copy of same to be transmitted to the appropriate authorities.