Opinion
F084278
08-10-2023
THE PEOPLE, Plaintiff and Respondent, v. TAYLOR LEE KOPLEN, Defendant and Appellant.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1454390. Dawna Reeves, Judge.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, J.
INTRODUCTION
In 2014, appellant Taylor Lee Koplen was convicted of felony murder (Pen. Code, § 187, subd. (a); count I), and the jury found true a special circumstance allegation that this murder occurred during an attempted robbery (§ 190.2, subd. (a)(17)(A)). The jury also convicted appellant of three other felonies: (1) attempted robbery of the decedent (§§ 664/211; count III); (2) robbing another victim (§ 211; count II); and attempted robbery of a third victim (§§ 664/211; count IV). Appellant was 17 years old when these crimes occurred, and he was sentenced to prison for life without the possibility of parole (LWOP), plus three years eight months.
All future statutory references are to the Penal Code unless otherwise noted.
Appellant committed these crimes with two codefendants, Juan Manuel Garcia and Jacob Juarez Segura. In 2019, we issued an unpublished opinion which resolved numerous issues that appellant and his codefendants had raised. (People v. Koplen (June 27, 2019, F073136) opn. mod. July 19, 2019.) For appellant, we conditionally reversed his judgment and remanded this matter for further proceedings relevant to whether he should remain in the jurisdiction of the juvenile court in light of Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). If transferred back to criminal (adult) jurisdiction, we directed the trial court, in relevant part, to resentence appellant in conformity with Montgomery v. Louisiana (2016) 577 U.S. 190 (Montgomery) and Miller v. Alabama (2012) 567 U.S. 460 (Miller). We otherwise affirmed appellant's judgment. (People v. Koplen, supra, F073136.)
On January 19, 2023, this court granted appellant's motion to take judicial notice of the record and briefing on appeal in People v. Koplen, supra, F073136. Appellant and his codefendants were tried together, and all three were parties in the previous appeal. Appellant's codefendants are not parties in the present appeal.
In 2013, the prosecution had filed these criminal charges against appellant directly in the criminal (adult) court. In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), our high court subsequently held that Proposition 57, which prohibited charging juveniles directly in criminal court, applied retroactively to nonfinal judgments. (Lara, supra, at pp. 303-304.)
Following remand, the juvenile court issued an order in 2020 transferring appellant to adult jurisdiction. In 2022, the trial court resentenced appellant. After considering the factors set forth in Montgomery and Miller, the court imposed the same sentence as it had before, LWOP, plus three years eight months.
In the present appeal, the parties agree that appellant's judgment must again be conditionally reversed and this matter remanded for further proceedings. Effective January 1, 2023, the Legislature enacted Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 330, § 1). This law retroactively requires the transfer of a minor from juvenile court to a criminal court to be based on "clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (Welf. &Inst. Code, § 707, subd. (a)(3).) In light of these new standards, we agree with the parties that we must conditionally reverse appellant's judgment and remand for a new fitness hearing. If the juvenile court finds that appellant should not be transferred to a court of criminal (adult) jurisdiction, it shall treat his convictions as juvenile adjudications and impose an appropriate disposition.
We reject appellant's remaining contentions on appeal. The LWOP sentence does not violate his constitutional rights, and section 190.5, subdivision (b), (the statute used to impose LWOP in this matter) is not facially unconstitutional. As such, if appellant is not amenable to rehabilitation while under the jurisdiction of the juvenile court, then appellant's criminal judgment shall be reinstated as of that date, and appellant shall be returned to the custody of the California Department of Corrections and Rehabilitation. If appellant's judgment is reinstated, it shall then be deemed affirmed in its entirety.
Oral argument in this matter occurred on July 26, 2023. The day before at 1:04:57 p.m., this court electronically received a letter from appellant that stated oral argument might be unnecessary if this court accepted respondent's concession that this matter should be remanded to the juvenile court for a fitness hearing. According to appellant, this court could fashion a disposition that was without prejudice to both parties renewing their arguments at a later date regarding the remaining issues on appeal. At 1:48:24 p.m. that same afternoon, this court electronically received a letter from respondent which stated its willingness to waive oral argument if this court accepted respondent's concession that a remand was warranted for a juvenile fitness hearing. Later that same afternoon, the clerk's office of this court left voicemail messages for both parties indicating that oral argument would proceed as scheduled. At oral argument the following morning, the court informed the parties that it agreed this matter would be remanded for a juvenile fitness hearing, but the parties were instructed to address the remaining issues which appellant had raised in his appeal. Both parties were given an opportunity to argue the remaining issues, and both parties orally presented their positions before this matter was deemed submitted.
BACKGROUND
We summarize the material facts relevant to appellant's murder conviction and the sentencing issues which appellant now raises. A full summary of the material trial evidence may be found in our prior opinion, People v. Koplen, supra, F073136.
This homicide occurred in 2013. The fatal incident started near a park in Modesto, California. Appellant and his codefendants approached Tylor Crippen and his girlfriend, Brittany W. near the park. Tylor had his back to the codefendants as they approached. One of the codefendants asked them for a cigarette. After Tylor and Brittany said they did not smoke, the same codefendant punched Tylor in his back, and Tylor ran into the park. As he ran, he yelled, "Leave her alone." The other two codefendants chased him, and one yelled they were going to cut off his "dick."
Mere minutes before this fatal incident started, appellant and his codefendants had robbed another victim at a different location in the same park. At about 8:24 p.m., the first robbery incident was reported to law enforcement via a 911 call. We do not summarize the facts from the first robbery, which are irrelevant to the issues raised in this appeal.
We omit Brittany's last name to protect her privacy.
The remaining codefendant threatened Brittany with a knife. He ordered her to give him everything she had. After showing him she had nothing, he said, "Stay there, bitch." Brittany's assailant then also ran after Tylor. A short time later, Brittany heard Tylor scream in pain and call out her name from inside the park.
Brittany sought assistance at a nearby house, pounding on its front door. The codefendants reappeared, walking from the park. One told her to "go back inside [your] house, bitch." This suspect lifted his shirt and Brittany saw an apparent gun handle. She fell to her knees and begged them not to hurt her. The codefendants fled when the residence's owner opened the front door. The owner called 911, and authorities were summoned.
At 8:39 p.m. that same night, a responding police officer found Tylor inside the park lying unresponsive in a pool of blood. His pulse was very weak. He was taken to a hospital by ambulance. He was declared dead at about 9:18 p.m. Tylor died due to blood loss from stab wounds to his heart and liver. He also suffered a third superficial cut to his torso.
Tylor was 18 years old when he died. He was just under five feet two inches tall, and he weighed about 134 pounds. During closing argument, the prosecutor asserted that the codefendants had killed Tylor for his phone. Tylor was carrying a cell phone before this fatal incident started. During its investigation, law enforcement located a cell phone in the park a short distance from where Tylor was found.
In contrast to Tylor's small stature, appellant was five feet 11 inches tall and weighed about 185 pounds. Garcia was five feet seven inches tall and weighed about 160 pounds. Segura was six feet tall and weighed about 165 pounds.
Forensic evidence linked appellant to Tylor's murder. Tylor's deoxyribonucleic acid (DNA) profile was a major contributor to some apparent blood found on appellant's right ring finger. Tylor's DNA profile also matched an apparent blood stain found on an area of appellant's jeans. In addition, Tylor's DNA profile was a major contributor to some apparent blood found on one of the shoes belonging to Garcia. No forensic evidence linked Segura to Tylor's murder.
Garcia had two light blood stains on his shoe. It is possible this blood was transferred to his shoe from another source, such as grass.
Segura's black undershirt had human blood on its front left cuff. This blood stain had a mixture of DNA from at least three contributors, and it was too complex for interpretation.
DISCUSSION
I. We Conditionally Reverse Appellant's Judgment and Remand for a New Juvenile Fitness Hearing.
In 2019, this matter was remanded, in part, for the juvenile court to consider appellant's circumstances in light of Proposition 57. In 2020, the juvenile court issued an order that transferred appellant to the jurisdiction of the adult court. At that time, the prosecution bore the burden to establish by a preponderance of the evidence that appellant should be transferred to criminal court. (Cal. Rules of Court, rule 5.770(a); In re E.P. (2023) 89 Cal.App.5th 409, 415.)
In September 2022, the Governor signed Assembly Bill No. 2361. Effective January 1, 2023, this bill amended Welfare and Institutions Code section 707 to require a juvenile court to apply a higher standard of proof in a fitness hearing. Under the current law, a juvenile court may transfer a minor if it makes a finding by "clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (Welf. &Inst. Code, § 707, subd. (a)(3).) Thus, Assembly Bill No. 2361 imposed two changes before a juvenile court may transfer a minor to adult court: (1) it raised the standard of proof and (2) it required a new specific finding regarding amenability to rehabilitation. (In re S.S. (2023) 89 Cal.App.5th 1277, 1284.)
"The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard 'requires a finding of high probability.'" (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) This elevated standard of proof also affects the type and quality of the evidence that must be presented by the prosecution, which bears this increased burden. One appellate court has noted that, given the new focus on whether a minor is amenable to rehabilitation, expert testimony will likely be necessary for a complete analysis at a fitness hearing. (In re S.S., supra, 89 Cal.App.5th at p. 1286.)
Respondent concedes that Assembly Bill No. 2361 retroactively applies in this matter. We agree. Absent evidence to the contrary, we must assume that an amended statute that mitigates the possible punishment for a class of persons is presumptively retroactive and applies to all persons whose judgments were not yet final at the time the statute took effect. (People v. Frahs (2020) 9 Cal.5th 618, 624.) In Lara, supra, 4 Cal.5th 299, our high court held that Proposition 57, which prohibited charging juveniles directly in criminal court, applied retroactively to nonfinal judgments. (Lara, supra, at pp. 303-304.) The Lara court reasoned that "[t]he possibility of being treated as a juvenile in juvenile court-where rehabilitation is the goal-rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment." (Id. at p. 303.)
We agree with the parties that, similar to Proposition 57, Assembly Bill No. 2361 represents an ameliorative change because it increased the burden of proof necessary to transfer appellant to criminal court. Moreover, this amendment now requires a specific finding from the juvenile court that appellant is not amenable to rehabilitation. (Welf. &Inst. Code, § 707, subd. (a)(3).) Appellant would receive a very different outcome if he remained under the jurisdiction of the juvenile court rather than being tried and sentenced as an adult. Accordingly, an inference of retroactivity applies. Because nothing in Assembly Bill No. 2361 rebuts this inference, this amendment retroactively applies to appellant, whose appeal is not yet final.
We conditionally reverse appellant's judgment and remand this matter for the juvenile court to conduct a new fitness hearing. The People bear the burden of establishing by clear and convincing evidence that appellant "is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (Welf. &Inst. Code, § 707, subd. (a)(3).) "If the court orders a transfer of jurisdiction, the court shall recite the basis for its decision in an order entered upon the minutes, which shall include the reasons supporting the court's finding that [appellant] is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (Ibid.) We express no opinion regarding how the juvenile court should rule when this matter is remanded.
As we explain below, however, we reject appellant's remaining contentions in this appeal. As such, if the juvenile court finds that appellant is not amenable to rehabilitation while under the jurisdiction of the juvenile court, then appellant's criminal judgment shall be reinstated as of that date, and appellant shall be returned to the custody of the California Department of Corrections and Rehabilitation.
II. The LWOP Sentence does not Violate Appellant's Sixth and Fourteenth Amendment Rights.
It is undisputed that at trial no evidence conclusively established who delivered the fatal stab wounds in this matter. The jury found that all three codefendants had committed Tylor's murder, or aided and abetted in it, while each were engaged in the commission of an attempted robbery (§ 190.2, subd. (a)(17)(A)). Based on the jury's special circumstance finding, appellant was rendered eligible for a prison sentence of either LWOP or 25 years to life (§ 190.5, subd. (b)).
The knife used in this murder was located in bushes near the park about three and a half months after the fatal night. This knife had been taken from the first robbery victim before appellant and his codefendants had encountered Tylor and Brittany. In the previous appeal, Garcia and Segura had asserted it was appellant who had taken possession of this knife from the first robbery victim. Appellant had disputed that assertion.
At both his initial sentencing in 2016 and his resentencing in 2022, the trial court imposed LWOP against appellant for his role in this murder. At resentencing in 2022, the trial court stated that its recollection of the trial evidence was consistent with the facts outlined in this court's prior opinion. The trial court commented that the circumstances surrounding this homicide showed "a callous act of senseless, unprovoked and violent aggression." The court recognized that the jury had not been asked to make a specific finding as to which of the three codefendants had inflicted the fatal wounds. However, the court expressed its opinion that the trial evidence had "strongly" suggested it was appellant who had threatened Brittany with the knife, and it was appellant who had stabbed Tylor to death in the park.
In the present claim, appellant argues that the trial court imposed LWOP in violation of his Sixth and Fourteenth Amendment rights under the United States Constitution. According to appellant, he can only be sentenced to LWOP as a juvenile if he was "the actual killer." He relies in part on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. In Apprendi, the United States Supreme Court held that any fact (other than the fact of a prior conviction) which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) Apprendi was based on a defendant's Sixth Amendment right not to be exposed to a penalty exceeding the maximum he would receive if punished according to the facts reflected solely in the jury's verdict. (Id. at p. 483.)
All future Amendment references are to the United States Constitution unless otherwise noted.
Citing Graham v. Florida (2010) 560 U.S. 48 (Graham), appellant argues that, under the Eighth Amendment, the United States Supreme Court prohibits LWOP for a juvenile who did not commit homicide. Accordingly, appellant contends that his jury was mandated under the Sixth Amendment to make a foundational determination whether or not he was the actual killer before LWOP could be imposed against him. Appellant asserts that he must be retried so a jury can determine whether he was the actual killer (or whether he held an intent to kill). In the alternative, appellant maintains that he must be resentenced in count I to 25 years to life (§ 190.5, subd. (b)).
In contrast, respondent argues that appellant cannot show any constitutional error under Apprendi. Respondent relies primarily on People v. Blackwell (2016) 3 Cal.App.5th 166 (Blackwell). In reply, appellant contends that Blackwell was wrongly decided. According to appellant, the Blackwell court did not understand the relevant precedent from the United States Supreme Court.
We agree with respondent and we reject appellant's arguments. This record does not establish constitutional error under Apprendi, and reversal of the LWOP sentence in count I is not warranted.
Respondent also raises the forfeiture doctrine, contending that we should not address the merits of this claim because appellant failed to advance this issue during his first appeal. To overcome forfeiture, appellant asserts a number of arguments, including a potential claim of ineffective assistance of counsel. To avert a potential claim of inadequate assistance of counsel, we exercise our discretion to address this issue on the merits. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)
A. The relevant constitutional requirements.
The Sixth Amendment provides that an accused in a criminal prosecution enjoys the right to a speedy and public trial by an impartial jury. Because of this right, a jury has the exclusive province to determine certain facts. (Oregon v. Ice (2009) 555 U.S. 160, 167.) In conjunction with the due process clause from the Federal Constitution, it is required that each element of a crime be proven to a jury beyond a reasonable doubt. (Hurst v. Florida (2016) 577 U.S. 92, 97.)
The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This provision derives from the concept that punishment for a crime should be graduated and proportioned to both the offender and the offense. (Roper v. Simmons (2005) 543 U.S. 551, 560 (Roper).) "The concept of proportionality is central to the Eighth Amendment." (Graham, supra, 560 U.S. at p. 59.) The high court's concern with proportionate punishment has created two strands of precedent. (Miller, supra, 567 U.S. at p. 470.) "The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty." (Graham, supra, 560 U.S. at p. 59.)
B. An overview of Eighth Amendment requirements for juveniles.
In interpreting the Eighth Amendment, the United States Supreme Court has held that the death penalty cannot be imposed on a juvenile offender. (Roper, supra, 543 U.S. at p. 578.) Regarding homicide offenses, the United States Supreme Court prohibits a state from imposing a mandatory LWOP sentence on a juvenile offender. (Miller, supra, 567 U.S. at p. 479.) However, a state may impose LWOP if the sentencing court has adequately considered the offender's age and environment. (Id. at pp. 479-480.) Juveniles who face the prospect of LWOP "must be given the opportunity to show their crime did not reflect irreparable corruption." (Montgomery, supra, 577 U.S. at p. 213.)
These holdings are based on the Supreme Court's Eighth Amendment jurisprudence, and specifically on principles of proportionality. (See, e.g., Roper, supra, 543 U.S. at p. 564 [the issue is "whether the death penalty is a disproportionate punishment for juveniles"]; Montgomery, supra, 577 U.S. at p. 195 [Miller does not foreclose LWOP for a juvenile offender but LWOP is "a disproportionate sentence for all but the rarest of children"].) These holdings are not based on Sixth Amendment principles of the historical right to a jury trial. Prior precedent such as Miller does not mention the Sixth Amendment. (See Jones v. Mississippi (2021) ___ U.S. ___ [141 S.Ct. 1307, 1316, fn. 3] (Jones).)
In 2021, the United States Supreme Court again affirmed that a person under 18 years of age may be sentenced to LWOP if he or she "committed" a homicide. (Jones, supra, ___ U.S. ___ [141 S.Ct. 1307, 1314].) However, it is impermissible to impose a mandatory LWOP sentence in such a situation and the sentencing court must have the discretion to impose a lesser punishment. (Ibid.) Prior to imposing LWOP upon a juvenile, a sentencing court is not required to make a finding that the juvenile has "permanent incorrigibility." (Jones, supra, ___ U.S. ___ .) Instead, a sentencing court need only consider "an offender's youth and attendant characteristics" before imposing LWOP. (Ibid.) No formal factfinding process is required. (Ibid.)
The United States Supreme Court has noted that sentencing a minor to LWOP is excessive for all but" 'the rare juvenile offender whose crime reflects irreparable corruption.' [Citations.]" (Miller, supra, 567 U.S. at pp. 479-480; see also Montgomery, supra, 577 U.S. 190, 208.)
In a footnote, the Jones majority stated in 2021 that, if "permanent incorrigibility" was a required factual prerequisite for an LWOP sentence, then the United States Supreme Court's Sixth Amendment precedents-including Apprendi-might require a jury, and not a judge, to make such a finding. However, prior precedent such as Miller does not mention the Sixth Amendment. This is "further reason to doubt" that a sentencing court is required to find "permanent incorrigibility" before imposing LWOP against a juvenile. (Jones, supra, ___ U.S. ___ [141 S.Ct. at p. 1316, fn. 3].)
In California, section 190.5 permits a trial court to sentence 16- and 17-year-olds convicted of special circumstance murder to either LWOP or 25 years to life. (§ 190.5, subd. (b).) The California Supreme Court has determined that this statute does not violate the Eighth Amendment because its possible sentence of LWOP is discretionary and not mandatory. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1360-1361 (Gutierrez).) The Gutierrez court held that, when properly construed, section 190.5 does not presume that LWOP should be imposed. (Gutierrez, at pp. 1360-1361.) According to our high court, this sentencing scheme "authorizes and indeed requires consideration of the distinctive attributes of youth highlighted in Miller." (Id. at p. 1361.) Thus, a sentencing court has discretion to decide on an individualized basis if the defendant is a"' "rare juvenile offender whose crime reflects irreparable corruption," '" and is, therefore, deserving of LWOP. (Gutierrez, at p. 1380.)
C. A summary of Blackwell.
In Blackwell, the opinion upon which respondent primarily relies to resolve appellant's Apprendi claim, the defendant was 17 years old when he committed a burglary and attempted robbery with an accomplice. A victim was shot and killed in the course of those offenses, and the defendant was convicted of first degree murder with a robbery-murder special circumstance. He was sentenced to LWOP. (Blackwell, supra, 3 Cal.App.5th at p. 173.) In relevant part, the defendant argued on appeal that (1) his LWOP sentence violated his Sixth Amendment rights under Apprendi because it exceeded the punishment allowable absent a jury finding of irreparable corruption, and (2) his sentence amounted to cruel and unusual punishment under the Eighth Amendment, as construed in Graham. (Blackwell, supra, 3 Cal.App.5th at p. 182.)
The Blackwell court concluded that a jury finding of irreparable corruption was not required under Apprendi in order for the trial court to impose LWOP. (Blackwell, supra, 3 Cal.App.5th at p. 186.) In part, Blackwell held that 25 years to life is not the statutory maximum under section 190.5, subdivision (b). (Blackwell, supra, at p. 187.) Instead, based on Gutierrez, sentencing judges have discretion to determine the appropriate sentence for 16- or 17-year-old offenders convicted of special circumstance murder-either LWOP or 25 years to life. (Blackwell, supra, at pp. 187-188.) Thus, after the jury convicted the defendant of first degree murder with special circumstances, LWOP was the maximum statutory sentence that the trial court could impose. Accordingly, the Blackwell court concluded that Apprendi was not violated when the trial court sentenced the defendant within the prescribed range after considering the factors in Miller. (Blackwell, at p. 188.) The Blackwell court held that, once a juvenile offender "has been convicted of first degree murder and one or more special circumstances has been found true beyond a reasonable doubt, the sentencing court need not find any particular fact before imposing LWOP. The 'statutory maximum' for Apprendi purposes was determined when the jury returned its guilty verdict on the charge of first degree murder with special circumstances. [Citations.] No additional factfinding by the judge was required to impose an LWOP sentence." (Blackwell, supra, 3 Cal.App.5th at p. 190.)
It was unclear from the verdicts rendered whether the jury in Blackwell had convicted the defendant of special circumstance murder as an aider and abettor, or whether the jury may have believed he was guilty as a personal gun user. (Blackwell, supra, 3 Cal.App.5th at p. 196.) Regarding the Eighth Amendment, the Blackwell court stated that, even if it assumed the defendant was convicted as an aider and abettor under a felony-murder theory, "it does not follow that his LWOP sentence is categorically barred." (Blackwell, at p. 196.) Blackwell commented that the only authority supporting the defendant's position was a concurring opinion in Miller from Justice Breyer (joined by Justice Sotomayor), which stated that the Eighth Amendment as interpreted in Graham forbids sentencing a juvenile offender to LWOP if he did not kill or intend to kill. (Miller, supra, 567 U.S. at pp. 489-490 (conc. opn. of Breyer, J.); Blackwell, supra, 3 Cal.App.5th at p. 196.) Justice Breyer also wrote in that same concurrence that a juvenile might not even be eligible for LWOP under a "reckless disregard" standard. (Miller, supra, 567 U.S. at p. 492 (conc. opn. of Breyer, J.).) The Blackwell court, however, concluded that the majority in Miller had not adopted Justice Breyer's "suggested categorical rule." (Blackwell, supra, 3 Cal.App.5th at p. 197.) Instead, the Miller majority had observed that whether a juvenile actually killed, intended to kill, or acted with reckless indifference to human life were circumstances affecting the juvenile's culpability for the offense that should be considered in determining punishment. (Miller, supra, 567 U.S. at pp. 477-478, citing Graham, supra, 560 U.S. at p. 69.) The Blackwell court declined to interpret Graham as imposing a categorical ban against LWOP for juvenile felony-murder offenders when it was not proven that they had killed or intended to kill (in other words, when they were convicted as aiders and abettors). (Blackwell, supra, 3 Cal.App.5th at p. 197.)
D. We agree with Blackwell and follow it here.
We agree with respondent that it is appropriate to follow Blackwell's interpretation of Apprendi. The jury convicted appellant of felony murder (§ 187, subd. (a); count I), and the jury found true the special circumstance allegation that this homicide occurred during an attempted robbery (§ 190.2, subd. (a)(17)(A)). That conviction and jury finding triggered section 190.5, which permitted the trial court to impose either LWOP or 25 years to life. (§ 190.5, subd. (b).) As such, the trial court was not required to find any additional facts before it was permitted to impose LWOP. Instead, as explained by Blackwell, the statutory maximum for Apprendi purposes was determined when the jury returned its guilty verdict. (Blackwell, supra, 3 Cal.App.5th at p. 190.) Thus, no Apprendi violation is present and this claim fails.
We recognize that the Blackwell court addressed a different Apprendi issue from the one raised here. In Blackwell, the appellate court analyzed whether the imposition of LWOP violated the defendant's Sixth Amendment rights under Apprendi because it exceeded the punishment allowable absent a jury finding of irreparable corruption. (Blackwell, supra, 3 Cal.App.5th at p. 182.) In contrast, appellant argues that the Apprendi issue here is different because the jury was required to make a foundational finding whether or not he was the actual killer. Despite this difference, we disagree that Blackwell's interpretation of Apprendi has no bearing on the present situation. To the contrary, the underlying premise from Blackwell remains valid that the trial court here was not required to find any additional facts in order to impose LWOP once the jury returned its verdicts. Consequently, Blackwell provides guidance in this situation, and appellant's claim of Apprendi error remains unpersuasive.
We likewise reject appellant's remaining arguments. He asserts that the evidence is "at most inconclusive" whether he killed, intended to kill, or foresaw that life would be taken. He notes that the prosecutor in this matter even argued to the jury that it was very unlikely appellant was the actual killer. Appellant contends that Blackwell failed to understand the United States Supreme Court opinions from Graham and Miller. According to appellant, the United States Supreme Court requires a juvenile offender to be the actual perpetrator who inflicts a homicide, and not merely someone who is convicted of committing a homicide, before LWOP may be imposed. Appellant insists that, under Apprendi, he has the right to have a jury decide that foundational issue with proof beyond a reasonable doubt before he can receive LWOP. We disagree.
The California Supreme Court has already held that section 190.5, subdivision (b), does not violate the Eighth Amendment. Instead, this statute authorizes and indeed requires consideration of the distinctive attributes of youth highlighted by the United States Supreme Court. (Gutierrez, supra, 58 Cal.4th at p. 1390.) No constitutional infirmity is found with section 190.5, subdivision (b), once it is understood that it does not impose a presumption in favor of LWOP. (Gutierrez, supra, at p. 1387.)
The jury in this matter determined beyond a reasonable doubt that appellant was guilty of special circumstance murder. Thus, the jury found all of the facts necessary to render appellant eligible for a sentence of LWOP. Accordingly, appellant is incorrect that an Apprendi violation occurred or that Blackwell was wrongly decided in this regard.
We reject appellant's assertion that 25 years to life is the statutory maximum under section 190.5, subdivision (b). The United States Supreme Court has clarified that the relevant "statutory maximum" for a sentence" 'is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.'" (Cunningham v. California (2007) 549 U.S. 270, 283, quoting Blakely v. Washington (2004) 542 U.S. 296, 303-304.) In other words, in evaluating the statutory maximum for a sentence for Sixth Amendment purposes, the relevant inquiry is what is allowed solely from the jury's verdict. (Blakely, supra, 542 U.S. at p. 304.) Given these principles, the Supreme Court concluded that a California law violated the Sixth Amendment when it required a trial judge to "find the facts that expose a defendant to an elevated 'upper term' sentence." (Cunningham v. California, supra, 549 U.S. at p. 274.) In contrast, however, section 190.5, subdivision (b), permits a trial court to impose LWOP absent any other evidentiary findings once a jury renders a verdict that triggers this statute. Thus, for Apprendi purposes, LWOP must be construed as the statutory maximum under section 190.5, subdivision (b). (Blackwell, supra, 3 Cal.App.5th at p. 190.)
Finally, we need not resolve appellant's contention that the United States Supreme Court requires proof beyond a reasonable doubt that a juvenile "actually killed" or "intended to kill" before LWOP may be imposed. It is undisputed that the United States Supreme Court recently clarified its holding in Graham. According to the majority in Jones, the Graham court had held that the Eighth Amendment prohibits LWOP for offenders who were under 18 and "committed" nonhomicide offenses. However, Graham did not prohibit LWOP for offenders who were under 18 and "committed" homicide. (Jones, supra, ___ U.S. ___ [141 S.Ct. 1307, 1314].) From this language, appellant contends that LWOP may not be imposed on a juvenile convicted of merely participating in a special-circumstance murder.
As an initial matter, we note that the United States Supreme Court has not expressly held that LWOP cannot be imposed against a juvenile defendant who committed homicide unless a jury first makes a factual finding that the juvenile actually killed the victim or intended the victim's death. Instead, the high court holds that LWOP may be imposed against a juvenile defendant who committed homicide so long as the sentence is not mandatory, i.e., "so long as the sentencer has discretion to 'consider the mitigating qualities of youth' and impose a lesser punishment. [Citation.]" (Jones, supra, ___U.S. ___ .)
In any event, we need not delve more deeply into this issue because appellant's present claim is based on an alleged Apprendi violation under the Sixth Amendment. The opinions which appellant relies upon from the United States Supreme Court are based on Eighth Amendment jurisprudence, and specifically on principles of proportionality. Those opinions are not based on Sixth Amendment principles regarding a historical right to a jury trial. (See, e.g., Roper, supra, 543 U.S. at p. 564 [the issue is "whether the death penalty is a disproportionate punishment for juveniles"]; Montgomery, supra, 577 U.S. at p. 195 [Miller does not foreclose LWOP for a juvenile offender but LWOP is "a disproportionate sentence for all but the rarest of children"].)
Furthermore, about 14 years before it decided Apprendi, the United States Supreme Court stated that the Eighth Amendment does not require a jury to make the constitutional findings that were discussed in Enmund v. Florida (1982) 458 U.S. 782 (Enmund). (Cabana v. Bullock (1986) 474 U.S. 376, 392, overruled in part on other grounds by Pope v. Illinois (1987) 481 U.S. 497, 503-504, fn. 7.) The Cabana court wrote that the ruling in Enmund did not concern the guilt or innocence of the defendant, it did not establish new elements of the crime of murder that a jury was required to find, and it did not impact a state's definition of any substantive offense. (Cabana, supra, at p. 385.) Thus, according to the high court, a state can comply with Enmund's requirements at either sentencing or even on appeal. (Hopkins v. Reeves (1998) 524 U.S. 88, 100, citing Cabana, supra, at p. 392.) Accordingly, the high court holds that Enmund and Tison do not impact the showing a state must make at a defendant's trial for felony murder, so long as their requirement is satisfied at some point thereafter. (Hopkins v. Reeves, supra, 524 U.S. at p. 100.)
In Enmund, the United States Supreme Court held that the death penalty was inappropriate for an accomplice who did not kill, attempt to kill, intend a killing take place or intend for lethal force to be employed. (Enmund, supra, 458 U.S. at p. 797.) The high court emphasized that the focus must be on the accomplice's culpability and not on the murderer's culpability. (Id. at p. 798.)
Tison v. Arizona (1987) 481 U.S. 137 (Tison). In Tison, two brothers aided a prison escape by arming two murderers, one of whom they knew had killed in the course of a previous escape attempt. After the breakout, one brother flagged down a passing car, and both fully participated in kidnapping and robbing the vehicle's occupants. Both stood by and watched as those people were killed. The brothers made no attempt to assist the victims before, during, or after the shooting, but continued to assist the killers. (Tison, supra, 481 U.S. at pp. 151-152.) The Supreme Court held the brothers could be sentenced to death despite the fact they had not committed the killings or intended to kill. (Id. at p. 158.) The brothers had a substantial involvement in the crimes and they did not act as mere getaway drivers. (Ibid.) Instead, they were "actively involved in every element" of the underlying felonies, and they were physically present during the entire sequence of criminal activity culminating in the murders. (Ibid.) The brothers' "high level of participation" implicated them in the resulting deaths. (Ibid.)
The Supreme Court has not overruled these pronouncements, including in Apprendi or its Sixth Amendment progeny or in Eighth Amendment cases such as Miller or Montgomery. (See Raines v. State (2020) 309 Ga. 258, 267; People v. Skinner (2018) 502 Mich. 89, 123-124, fn. 17 ["While Cabana was decided before Apprendi, state and lower federal courts since Apprendi have held that the Sixth Amendment does not require that a jury make the Enmund/Tison findings."]; Blackwell, supra, 3 Cal.App.5th at p. 194.) Thus, the United States Supreme Court makes it clear that, although the Eighth Amendment might impose certain requirements when a particular offender is sentenced, that does not also necessarily trigger a corresponding right under the Sixth Amendment for a jury to make specific findings. (See Raines v. State, supra, 309 Ga. at pp. 267-268 [where LWOP is authorized by state statute, a jury is not required to make specific findings to justify that sentence "even when the Eighth Amendment has imposed additional constitutional limitations on the availability of that sentence"]; see also Blackwell, supra, 3 Cal.App.5th at p. 194 ["Miller, like Enmund/Tison, avoids disproportionate punishment by mandating consideration of mitigating circumstances specific to youth. This is not the same as increasing the punishment authorized by a jury's verdict based on a fact not found by the jury."].) Therefore, we must reject appellant's present claim.
We conclude that, because section 190.5, subdivision (b), authorizes LWOP, it does not constitute a "sentence enhancement" for Sixth Amendment purposes. As such, there was no requirement that appellant's jury had to make specific findings to justify imposition of that sentence, even though the Eighth Amendment imposes additional constitutional limitations regarding when LWOP is appropriate. Accordingly, appellant's Sixth Amendment challenge under Apprendi must fail, and this claim is without merit. Because Apprendi error did not occur, we do not address appellant's arguments regarding alleged prejudice.
We note that, at resentencing in 2022, the trial court considered the factors set forth in Miller before it again imposed LWOP against appellant. As such, the Eighth Amendment's obligations were met because the court considered appellant's youth and attendant characteristics. (See Jones, supra,___ U.S.___ .) We also point out that, even though appellant received LWOP, he is nevertheless statutorily eligible for parole starting his 25th year of incarceration because he is a youth offender. (§ 3051, subd. (b)(4).)
III. Section 190.5, Subdivision (b), is not Facially Unconstitutional.
Appellant claims that section 190.5, subdivision (b), is facially unconstitutional under the Eighth Amendment because it does not specify what aggravating circumstances must be found to impose LWOP rather than 25 years to life. He raises numerous arguments in support of this claim. He contends that an analogy must be reached between imposing LWOP upon a juvenile and imposition of the death penalty upon an adult. He asserts that imposition of the death penalty requires a jury to find specific and narrowly tailored aggravating factors. However, the Penal Code lists no such aggravating factors for the imposition of LWOP against a juvenile. Thus, he maintains that the juvenile LWOP sentencing scheme suffers from the same constitutional flaw that was recognized for the death penalty in Furman v. Georgia (1972) 408 U.S. 238 (Furman).
The United States Supreme Court has explained that Furman (which was issued per curiam) holds "that Georgia's then-standardless capital punishment statute was being applied in an arbitrary and capricious manner" because "there was no principled means provided to distinguish those that received the penalty from those that did not. [Citations.] Since Furman, our cases have insisted that the channeling and limiting of the sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action. [Citations.]" (Maynard v. Cartwright (1988) 486 U.S. 356, 362.)
Appellant recognizes that, under section 3051, subdivision (b)(4), he has a "meaningful opportunity" in his lifetime to obtain parole as a youth offender. He also concedes that his statutory right to parole eligibility "would render moot any argument that a juvenile LWOP sentence violates the Eighth Amendment." However, he maintains that the issue is how an LWOP sentence is imposed.
Appellant contends that, even with his statutory right to a youth offender parole eligibility hearing, he is nevertheless disadvantaged from his LWOP sentence. He raises the following four concerns because he has LWOP: (1) he cannot obtain any good conduct credit to advance the date of his parole eligibility; (2) he will be housed in the most restrictive level of the prison; (3) he is ineligible for a particular job placement program; and (4) he is ineligible for compassionate release. He also asserts that his LWOP sentence amounts to a pronouncement from the trial court that he is not redeemable and he should never be permitted to return to society. He maintains that the conclusions from the sentencing judge will have lasting ramifications in negatively influencing the parole board when he is eligible for parole consideration.
Finally, appellant insists that his LWOP sentence must be reversed per se without analyzing prejudice. He asks this court to reverse his LWOP in count I and remand this matter to the trial court with directions for it to impose a sentence of 25 years to life.
Appellant's numerous arguments are without merit. The California Supreme Court has already determined that section 190.5 does not violate the Eighth Amendment. As such, appellant's facial challenge must fail.
In part, respondent asserts that we should not reach the merits of this argument based on the forfeiture doctrine. To overcome forfeiture, appellant asserts a number of arguments, including a potential claim of ineffective assistance of counsel. To avert a potential claim of inadequate assistance of counsel, we exercise our discretion to address this issue on the merits. (People v. Yarbrough, supra, 169 Cal.App.4th at p. 310.)
A facial challenge to a statute is difficult because the challenger must establish that no set of circumstances exists under which the statute would be valid. (United States v. Salerno (1987) 481 U.S. 739, 745.) In other words, the challenger must demonstrate that the law is unconstitutional in all of its applications. (Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 449.)
In Gutierrez, the California Supreme Court analyzed whether a presumption in favor of LWOP under section 190.5, subdivision (b), violated the Eighth Amendment under the principles announced in Miller. (Gutierrez, supra, 58 Cal.4th at p. 1360.) Prior to Gutierrez, section 190.5, subdivision (b), had been construed by California courts as creating a presumption in favor of LWOP "as the appropriate penalty for juveniles convicted of special circumstance murder." (Ibid.) Gutierrez held that, "[b]ecause the sentencing regime created by section 190.5[, subdivision] (b) authorizes and indeed requires consideration of the distinctive attributes of youth highlighted in Miller, we find no constitutional infirmity with section 190.5[, subdivision] (b) once it is understood not to impose a presumption in favor of [LWOP]." (Gutierrez, supra, at pp. 1360-1361.)
In light of Gutierrez, we reject appellant's facial challenge. Appellant does not establish that no set of circumstances exists under which section 190.5, subdivision (b), would be valid. (See United States v. Salerno, supra, 481 U.S. at p. 745.) In other words, appellant fails to demonstrate that this statute is unconstitutional in all of its applications. (See Washington State Grange v. Washington State Republican Party, supra, 552 U.S. at p. 449.) Accordingly, we do not address appellant's arguments regarding his alleged prejudice. Instead, appellant's facial challenge lacks merit, and reversal is not required.
IV. We Decline to Construe Section 190.5 as Part of Senate Bill No. 567.
Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, §§ 1.3, 2) amended sections 1170 and 1170.1. In general, section 1170 controls how trial courts may impose determinate prison sentences, and section 1170.1 controls how trial courts may impose an aggregate term of imprisonment for persons convicted of two or more felonies where consecutive terms of imprisonment are imposed.
Under the change to section 1170, a trial court may now only impose an upper term sentence where aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial. (§ 1170, subd. (b)(1) &(2).) Otherwise, when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the trial court is directed to order imposition of the middle term. (§ 1170, subd. (b)(1).)
Appellant concedes that Senate Bill No. 567 did not address or mention section 190.5. Nevertheless, appellant argues that this court should construe that the Legislature intended Senate Bill No. 567 to also encompass section 190.5. According to appellant, it does not make "logical sense" for the Legislature to impose a presumption that the middle term must be used for determinate sentences, but not also require the same approach for the "dyad" in section 190.5, subdivision (b). He maintains that the intent behind Senate Bill No. 567 was to reinstitute a presumption against the maximum term, which applies equally to both triad and dyad sentencing schemes. He asserts that he should have received "the protections" of Senate Bill No. 567, which he contends would be a presumption against LWOP and a requirement for the jury to find true all aggravating factors used to elevate his sentence to LWOP. He claims that the trial court erred at sentencing because it did not follow Senate Bill No. 567.
Appellant asserts that, compared to the numerous triad sentencing options in the Penal Code, it appears section 190.5, subdivision (b), presents the only dyad option for "a noncapital sentencing choice."
Appellant's arguments lack merit. Based on principles of statutory construction, we decline to rewrite Senate Bill No. 567 so that it is deemed to also amend section 190.5. Accordingly, the trial court did not err.
The fundamental task of statutory construction is to determine the intent of the lawmakers in order to effectuate the purpose of the law. (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) We are to follow the lawmakers' intent, which is exhibited by the plain meaning of the actual words of the law. (People v. Loeun (1997) 17 Cal.4th 1, 9.) An appellate court may not add language to a statute except in an extreme situation when convinced the Legislature failed to utilize words through inadvertence. (People v. Buena Vista Mines, Inc. (1996) 48 Cal.App.4th 1030, 1034.)
Here, there is nothing ambiguous about Senate Bill No. 567, which specifically addresses the triad determinate sentencing scheme appearing in section 1170, and the aggregate sentencing scheme appearing in section 1170.1. Senate Bill No. 567 never mentions section 190.5, which has no relationship to determinate sentencing and, instead, involves potential indeterminate sentences. Section 190.5, subdivision (b), is only triggered when a jury finds a juvenile guilty of special circumstance murder. Furthermore, section 190.5, subdivision (b), does not present a triad sentencing option. As such, we decline to read beyond the plain language of Senate Bill No. 567, and we reject appellant's position that we may rewrite Senate Bill No. 567 to include section 190.5 within its scope. "It cannot be too often repeated that due respect for the political branches of our government requires us to interpret the laws in accordance with the expressed intention of the Legislature." (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.) This court has no power to rewrite the law in order to make it conform to a presumed intention which is not expressed. (Ibid.)
Finally, we must assume the Legislature is well aware of Gutierrez, which sets forth how a sentencing court is to sentence a juvenile under section 190.5, subdivision (b), in conformity with Eighth Amendment standards. Gutierrez makes it clear that LWOP is not the presumed sentencing option for a juvenile convicted of special circumstance murder. (Gutierrez, supra, 58 Cal.4th at pp. 1360-1361.) Instead, a sentencing court is to consider the Miller factors regarding the distinctive attributes of youth. (Gutierrez, supra, at p. 1361.) In failing to amend section 190.5, it is very reasonable to assume that the Legislature has acquiesced to Gutierrez's holding. (See Therolf v. Superior Court (2022) 80 Cal.App.5th 308, 335.) Consequently, appellant's arguments are wholly without merit, and this claim fails.
V. Appellant's Equal Protection Rights were not Violated.
In an alternative argument to the one above, appellant asserts that, if section 190.5 is not construed as being amended by Senate Bill No. 567, then its omission would violate his rights to equal protection. We reject this constitutional challenge.
In general terms, equal protection of the laws means that no person or class of person shall be denied the same protection of the law that is enjoyed by other persons or other classes in similar circumstances. (People v. Guzman (2005) 35 Cal.4th 577, 591.) A threshold requirement of any meritorious equal protection claim is a showing that the state has adopted a classification that impacts two or more similarly situated groups in an unequal manner. (Id. at pp. 591-592.) Assuming that initial showing is made, different types of levels of scrutiny are then applied depending on the type of classification at issue. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. (Id. at p. 592.) In contrast, classifications based on race or national origin, and classifications affecting fundamental rights, are given the most exacting scrutiny. (People v. Wilkinson (2004) 33 Cal.4th 821, 836.) Between the extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. (Ibid.)
We will assume, without necessarily deciding, that appellant has met the threshold requirement that the state has adopted a classification that impacts two or more similarly situated groups in an unequal manner. As such, we proceed directly to the issue of whether that classification is unconstitutional. We find no error.
The parties rely on a "rational basis" standard to evaluate this claim. We agree that this is the appropriate standard. "An equal protection challenge to a statute that creates two classifications of accused or convicted defendants, without implicating a constitutional right, is subject to a rational-basis analysis. [Citation.]" (People v. Fitch (1997) 55 Cal.App.4th 172, 184.) Under the rational basis standard, we begin with the premise that this statute, once duly enacted, is presumed to be constitutional. (Kimco Staffing Services, Inc. v. State of California (2015) 236 Cal.App.4th 875, 884.) The unconstitutionality of this statute must be clearly shown, and we must resolve all doubts in favor of its validity. (Ibid.)
Under the rational basis standard, a statute must be upheld against an equal protection challenge"' "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." '" (California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 209, italics omitted; see also FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 315.) So long as the challenged distinction bears some rational relationship to a conceivable legitimate state purpose, it will be upheld. (California Grocers Assn., supra, 52 Cal.4th at p. 209.)
In this matter, the Legislature has a rational basis to treat juveniles who commit special circumstance murder differently from juveniles who commit other felonies which trigger determinate sentencing under section 1170. An LWOP sentence is available for only a small number of crimes, and these crimes are deemed more morally depraved and injurious. (People v. Acosta (2021) 60 Cal.App.5th 769, 780.) It is presumed that the Legislature is aware of Gutierrez, which sets forth how a sentencing court is to sentence a juvenile under section 190.5, subdivision (b), in conformity with Eighth Amendment standards. (See Therolf v. Superior Court, supra, 80 Cal.App.5th at p. 335.) Therefore, we disagree with appellant's position that, because section 190.5, subdivision (b), is not mentioned in the committee reports underlying Senate Bill No. 567, it is likely that the Legislature did not contemplate it. To the contrary, the opposite is overwhelmingly more apparent, i.e., that the Legislature intended to exclude section 190.5 from this bill. In any event, it is readily apparent why the Legislature has enacted different sentencing outcomes in section 190.5 versus section 1170.
Appellant has not shown that section 190.5. is clearly unconstitutional. (See Kimco Staffing Services, Inc. v. State of California, supra, 236 Cal.App.4th at p. 884 [setting forth this standard].) Thus, section 190.5 must be upheld against an equal protection challenge because there is a reasonably conceivable state of facts that could provide a rational basis for the classification at issue. (See California Grocers Assn. v. City of Los Angeles, supra, 52 Cal.4th at p. 209; FCC v. Beach Communications, Inc., supra, 508 U.S. at p. 315.) The challenged distinction bears some rational relationship to a conceivable legitimate state purpose. (See California Grocers Assn., supra, 52 Cal.4th at p. 209.) Consequently, this equal protection claim is without merit.
DISPOSITION
Appellant's judgment is conditionally reversed and this matter is remanded for the juvenile court to conduct a fitness hearing under Welfare and Institutions Code section 707, as amended by Assembly Bill No. 2361. If the juvenile court finds it is not appropriate to transfer appellant to a court of criminal (adult) jurisdiction, it shall treat his convictions as a juvenile adjudication and impose an appropriate disposition.
If the juvenile court finds based on clear and convincing evidence that appellant is not amenable to rehabilitation while under the jurisdiction of the juvenile court, then appellant's criminal judgment shall be reinstated as of that date, and appellant shall be returned to the custody of the California Department of Corrections and Rehabilitation. If appellant's judgment is reinstated, it shall then be deemed affirmed in its entirety.
WE CONCUR: HILL, P. J. MEEHAN, J.