Opinion
A147849
12-11-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCELLOUS LEWIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C163699A)
When Marcellous Lewis was between 15 and 17 years of age, he committed three forcible sex offenses, against two different victims (Crystal Doe and Sabrina Doe), and shot and killed a third victim (Robert Tibbs). Lewis was tried as an adult and convicted by a jury of the forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)) and forcible rape of Crystal (§ 261, subd. (a)(2)), the forcible rape of Sabrina (ibid.), and the second degree murder of Tibbs (§ 187, subd. (a)). In addition, the jury found true an enhancement for personal use of a gun with respect to the murder charge (§ 12022.53, subd. (d)), as well as "One Strike" allegations that Lewis's sex offenses involved multiple victims and kidnapping (former § 667.61, subds. (d)(2), (e)(5).) In 2011, the trial court sentenced Lewis to an aggregate sentence of 115 years to life.
Undesignated statutory references are to the Penal Code.
This case is before us for the third time. In a prior appeal (People v. Lewis (2013) 222 Cal.App.4th 108 (Lewis I)), we affirmed Lewis's convictions but found his sentence unconstitutional and remanded "for the trial court to determine a parole eligibility date within Lewis's expected lifetime, unless it finds that Lewis's offenses reflect his irreparable corruption within the meaning of Miller v. Alabama [(2012) 567 U.S. 460]." (Lewis I, at p. 123.) On remand, the trial court held a resentencing hearing at which it considered extensive evidence on the youth-related factors outlined in Miller, and again imposed an aggregate term of 115 years to life, comprised of 15 years to life for the murder of Tibbs; a consecutive term of 25 years to life for the firearm enhancement; and, pursuant to the One Strike law, consecutive terms of 25 years to life for each of the three aggravated sex offenses. Lewis appealed for a second time, arguing the trial court abused its discretion in reimposing the sentence and violated his Sixth Amendment right to a jury trial. We affirmed. Lewis sought review from our Supreme Court arguing, inter alia, that his sentence violated the Eighth Amendment. The Supreme Court granted review and eventually transferred the matter back to us with directions to vacate our July 31, 2017 opinion and reconsider in light of People v. Contreras (2018) 4 Cal.5th 349 (Contreras) and Senate Bill No. 394 (2017-2018 Reg. Sess.) (Senate Bill 394).
In Contreras, a majority of our Supreme Court held that sentences of 50 years to life and 58 years to life, imposed against two juvenile nonhomicide offenders, violated the Eighth Amendment's prohibition against cruel and unusual punishment. (Contreras, supra, 4 Cal.5th at pp. 356, 359-360, 379 [four to three decision].) The Supreme Court also addressed the potential impact and remedial effect of Senate Bill 394, which amended section 3051 to extend youth offender parole eligibility, in the 25th year of incarceration, to juvenile special circumstance murderers sentenced to life without the possibility of parole (LWOP) (§ 3051, subd. (b)(4), as amended by Stats. 2017, ch. 684, § 1.5). Lewis and other juvenile One Strike offenders remain ineligible for youth offender parole hearings. (§ 3051, subd. (h); Contreras, at pp. 373-374, 381.)
Having considered extensive supplemental briefing (Cal. Rules of Court, rule 8.200(b)), we conclude Lewis's convictions must be conditionally reversed. We remand the case to the juvenile court for a transfer hearing pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) and Welfare and Institutions Code section 707, as amended by Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Senate Bill 1391). If juvenile court treatment is determined to be appropriate for any of Lewis's offenses, the juvenile court is ordered to treat such convictions and enhancements as juvenile adjudications and impose an appropriate juvenile disposition. If any of Lewis's offenses are found inappropriate for juvenile court treatment and this case is returned to adult criminal court, the trial court must resentence Lewis and consider striking the term imposed for the firearm enhancement. (§ 12022.53, subd. (h).)
I. FACTUAL AND PROCEDURAL BACKGROUND
We refer the reader to Lewis I, supra, 222 Cal.App.4th 108, for a full statement of the facts. (See id. at pp. 111-117.) We summarize here only the events and procedural history relevant to the issues presented by the current appeal. Although we originally deferred ruling on the People's request for judicial notice of the record in Lewis's prior appeal, we now grant the request.
In November 2009, the court granted the prosecution's motion to consolidate two complaints against Lewis: one charging him with kidnap and forcible sex offenses against Crystal and Sabrina, and the other charging him with Tibbs's murder. In May 2010, the court held Lewis, a minor at the time of the crimes, to answer to the charges as an adult. (Welf. & Inst. Code, former § 707, subd. (d).)
In September 2011, Lewis was charged in an amended information with the murder of Tibbs (§ 187, subd. (a); count one), sexual penetration with a foreign object upon Crystal (§ 289, subd. (a)(1); count two), and rapes of Crystal and Sabrina (§ 261, subd. (a)(2); counts three & four). In connection with the murder count, the information alleged Lewis personally and intentionally discharged a firearm and caused great bodily injury and death. (§§ 12022.53, subds. (b)-(d) & (g), 12022.7, subd. (a).) As to the sexual assault counts, the information alleged Lewis kidnapped his victims and perpetrated offenses against multiple victims, within the meaning of the One Strike law (former § 667.61, subds. (d)(2), (e)(5)). The matter proceeded to a jury trial.
The One Strike law provides life sentences and mandatory minimums for individuals convicted of certain sex offenses "in particularly blameworthy circumstances." (People v. Cervantes (2017) 9 Cal.App.5th 569, 583, disapproved on other grounds by Lara, supra, 4 Cal.5th at pp. 314-315; accord, § 667.61.) Specifically, it "mandates indeterminate sentences of 15 or 25 years to life for specified sex offenses that are committed under one or more 'aggravating circumstances,' such as when the perpetrator kidnaps the victim, commits the sex offense during a burglary, inflicts great bodily injury, uses a deadly weapon, sexually victimizes more than one person, ties or binds the victim, or administers a controlled substance to the victim. [Citations.] The purpose of the One Strike law is 'to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction,' 'where the nature or method of the sex offense "place[d] the victim in a position of elevated vulnerability." ' " (People v. Alvarado (2001) 87 Cal.App.4th 178, 186, italics omitted.)
The jury found Lewis guilty of the sexual penetration and forcible rape of Crystal, which occurred in October 2006 when Lewis was 15 years old, and the forcible rape of Sabrina, which occurred in August 2007 when Lewis was 16 years old. The jury acquitted Lewis of first degree murder but found him guilty of second degree murder. In addition, the jury found true the enhancement for personal use of a gun with respect to the murder charge (§ 12022.53, subd. (d)), as well as the One Strike law allegations that Lewis's sex offenses involved multiple victims and kidnapping (former § 667.61, subds. (d)(2), (e)(5)).
Lewis was originally sentenced to a term of 115 years to life in state prison, comprised of 15 years to life for the murder of Tibbs; a consecutive term of 25 years to life for the firearm enhancement; and, pursuant to the One Strike law, a consecutive 25-year-to-life term for each of the three sex crimes.
2016 Resentencing
In Lewis I, supra, 222 Cal.App.4th 108, we affirmed Lewis's convictions but found his sentence unconstitutional and remanded. (Id. at p. 123.) We concluded that when a juvenile offender is subject to a mixed sentence—having been convicted not just of nonhomicide offenses, but also of a homicide offense—we judge the constitutionality of his or her parole eligibility date by applying Miller v. Alabama, supra, 567 U.S. 460 (Miller) and People v. Caballero (2012) 55 Cal.4th 262 to "the sentence as a whole," rather than looking at its individual parts. (Lewis I, supra, 222 Cal.App.4th at pp. 120, 122.) In our disposition, we instructed the trial court to set a parole eligibility date within Lewis's expected lifetime, "unless it finds that Lewis's offenses reflect his irreparable corruption within the meaning of [Miller]." (Lewis I, at p. 123.)
In January 2014, Lewis filed a petition for Supreme Court review that focused solely on our affirmance of his convictions. Our Supreme Court denied the petition, and we issued our remittitur on March 28, 2014.
After the remittitur issued in Lewis I, the prosecutor filed a sentencing memorandum arguing Lewis's offenses reflect his irreparable corruption within the meaning of Miller, supra, 567 U.S. 460. The People emphasized Lewis was 17 years old when he murdered Tibbs, had committed four violent felonies—all of which were predatory, sadistic, and callous—and acted alone and over pleas to stop in each case. The People acknowledged Lewis's exposure to violence but pointed out he could not blame his crimes on despondence over his friend Carl Williams's death, as the three sex offenses occurred before Williams was killed.
At a three-day resentencing hearing before the same judge who presided over his trial and original sentencing, Lewis presented extensive expert testimony on adolescent brain development and forensic psychology. The forensic psychologist, Gretchen White, created a psychosocial history from a review of Lewis's prison and school records, the probation report, portions of the trial transcript, and the Lewis I opinion. She also spoke with Lewis for four to five hours, as well as, among others, Lewis's mother, ex-girlfriend, and cousin. White opined Lewis grew up in a community that "in some ways was very close and loving" but was also "a very risky environment." Lewis had strong attachments to his family members and friends. Lewis's mother and grandmother, with whom he lived, were loving, supportive, and provided for his basic needs. There was no evidence of abuse. Lewis said his mother sold drugs, which distressed him. Lewis's grandmother was described as the backbone of the family, who "picked up the pieces" for Lewis's mother. Lewis's school records showed he engaged in fights, was defiant of school authority, and had extensive unexcused absences.
In her testimony, White relayed hearsay from the interviews she conducted and the school and prison records she reviewed. Although the underlying records themselves were admitted into evidence, the out of court statements made to White were not admitted for their truth.
Lewis had experienced significant violence and loss. His father was killed before he was born. In 2005, Lewis witnessed a friend's murder. The same year, Lewis was shot in the shoulder. Thereafter, Lewis began carrying a gun. The next year another of Lewis's friends was killed, and the year after that Williams was shot and killed while committing a robbery. Williams's death greatly impacted Lewis, as he considered Williams his best friend. White opined, "It was for [Lewis] like losing both his best friend and . . . his big brother, . . . pretty much his everything." At this point, Lewis became depressed, withdrawn, angrier, and began to drink and use drugs heavily. Lewis said he used ecstasy, among other drugs, which White believed can "increase[] the likelihood of acting out [and] bad behavior." Lewis also admitted smoking marijuana. He told White that, when placed on probation after his juvenile adjudication, he did not quit smoking marijuana altogether, but was able to time his use to avoid positive drug test results.
Lewis admitted his involvement in a fight in jail. He had suffered a prison disciplinary violation for possession of dangerous contraband after he was found to have dismantled a hot plate and kept the metal, which could be used as a weapon, in his cell. Once in prison, Lewis began therapy and psychotropic medication to address impulsive and angry behavior. His 2014 prison medical records showed Lewis had been diagnosed with a mood disorder, posttraumatic stress disorder, antisocial personality disorder, and intermittent explosive disorder. White opined Lewis was maturing "quite normally, as one would expect." Looking solely at his psychosocial history, rather than the crimes he committed, White did not see any impediment to the possibility of rehabilitation.
Daniel Vasquez, who had worked for the California Department of Corrections and Rehabilitation (CDCR) for 30 years, including as a warden, testified as an expert on prison adjustment and future dangerousness. Vasquez interviewed Lewis and reviewed his central prison file, which included criminal and prison history, arrest reports, probation reports, prison disciplinary reports, and medical/mental health history. Lewis did not "have any reports of assaulting other inmates or assaulting staff, or threatening staff, or threatening inmates," which Vasquez opined was somewhat unusual for an inmate designated "level four" or "maximum custody." Lewis had sustained only the one disciplinary violation, for possession of dangerous contraband, described above. Lewis was participating in anger management classes and counseling. Based on Lewis's past behavior in prison, Vasquez believed Lewis would not pose a future danger to society.
Although Vasquez initially testified Lewis had no gang affiliation, CDCR records showed Lewis admitted active affiliation with the "Bloods" and "STI Goonz."
L.C. testified she dated Lewis for approximately a year, 10 years earlier, when she was 14. She had an eight-year-old child with Lewis, to whom Lewis was a "good father." In her experience, Lewis was respectful, understood "no means no," and knew how to follow rules. Lewis's family was close and supportive. After Williams was murdered, Lewis changed dramatically; he began to act sad and distant.
The trial court also took judicial notice of the evidence at trial, the original presentencing probation report, and admitted Lewis's CDCR and school records. The probation report described Lewis's juvenile criminal history, which began in 2007, when at the age of 16 he was placed on nonwardship probation for possessing marijuana for sale (Health & Saf. Code, former § 11360, subd. (a)). In fact, Lewis was on probation at the time he committed the Tibbs murder. The probation officer also observed that Lewis had scored in "the Moderate-High Risk Category" on the Static-99R, "which is an actuarial measure of risk for sexual offense recidivism."
At the conclusion of the January 2016 resentencing hearing, the trial court resentenced Lewis to a total term of 115 years to life. Again the sentence was comprised of 75 years to life for nonhomicide offenses (25 years to life for each of the aggravated sex offenses, to be served consecutively) and 40 years to life with respect to the homicide offense (15 years to life for second degree murder and 25 years to life for the gun use enhancement).
The trial court explained: "Lewis is a smart and cunning young man. He knew how to commit these crimes, and . . . he knows now what it takes to get along in the prison system. Were he to be released, this Court does believe that he would continue to be a danger to our society. [¶] These crimes were not attributable to any youthful folly. [Lewis's] crimes went way beyond that. [Lewis] is that rare juvenile offender whose crimes reflect irreparable corruption. This Court finds that the circumstances of [Lewis's] offenses show such irreparable corruption as to warrant a de facto [LWOP] sentence without offending the [E]ighth [A]mendment. Therefore, it is this Court's decision after considerable thought and careful consideration of the testimony of the expert witnesses and other Defense witnesses that in light of all the relevant circumstances, including [Lewis's] age, sophistication, the extent of his participation, the lack of peer pressure, the fact that he had a caring family, no evidence of any incompetencies or incapacities, that this case involved a three-year crime spree involving three separate victims. In light of all relevant circumstances, the sentence that was pronounced on December 14th, 2011, shall stand." Lewis filed a timely notice of appeal.
Our Prior Decision
In a July 31, 2017 decision, we affirmed, concluding the trial court did not abuse its discretion in conducting its Miller analysis and that the sentence did not violate Lewis's Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). In November 2017, the Supreme Court granted Lewis's petition for review and deferred the case pending a decision in Contreras, supra, 4 Cal.5th 349. After issuing its decision in Contreras, the Supreme Court transferred Lewis's case back to this court "with directions to vacate [our] decision and to reconsider the case in light of" Contreras and Senate Bill 394. (See Cal. Rules of Court, rule 8.528(d).) At our request, Lewis and the People filed extensive supplemental briefing. We have vacated the prior opinion by separate order.
II. DISCUSSION
We concluded in Lewis I that Lewis's 115-year-to-life sentence, and even the 75-year-to-life component imposed for nonhomicide offenses, is the functional equivalent of an LWOP sentence (Lewis I, supra, 222 Cal.App.4th at p. 119; see People v. Caballero, supra, 55 Cal.4th at pp. 267-268.) We also declared the constitutionality of Lewis's parole eligibility date should be determined "by looking at the sentence as a whole," rather than its individual parts. (Lewis I, at p. 122.) Lewis has not explicitly sought to relitigate that issue, either in his initial appellate briefs or in his supplemental briefs after transfer. (See People v. Whitt (1990) 51 Cal.3d 620, 638-639 ["where an appellate court states a rule of law necessary to its decision, such rule ' "must be adhered to" ' in any ' "subsequent appeal" ' in the same case, even where the former decision appears to be ' "erroneous" ' "].)
Instead, Lewis argues (1) his sentence exceeds the punishment allowable absent a jury finding of irreparable corruption and thereby violates his Sixth Amendment rights under Apprendi, supra, 530 U.S. 466; (2) the trial court abused its discretion in considering the mitigating circumstances of Lewis's youth, as required by Miller, and reimposing a sentence of 115 years to life; (3) he is entitled to a youth offender parole hearing, in his 25th year of incarceration, as a matter of equal protection; (4) remand is required for the trial court to exercise its discretion to decide whether to strike the firearm use enhancement under a recent statutory amendment (§ 12022.53, subd. (h)) made by Senate Bill No. 620 (2017-2018 Reg. Sess.)); (5) section 3051's exclusion of juvenile One Strike offenders from youth offender parole eligibility violates the Eighth Amendment and article I, section 17 of the California Constitution; (6) Eighth Amendment concerns with his sentence are not mooted by section 3055's provisions for elderly parole; (7) he is entitled to a limited remand for a transfer hearing under the Public Safety and Rehabilitation Act of 2016 (Proposition 57); and (8) Senate Bill 1391's amendments to Welfare and Institutions Code section 707 require the juvenile court to vacate his convictions on counts two and three, which were committed when Lewis was 15 years old.
We consider Lewis's arguments in a different sequence and agree Proposition 57 and Senate Bill 1391 require a remand to juvenile court for a transfer hearing. (See Lara, supra, 4 Cal.5th at pp. 303-304.) Assuming at least part of this case is ultimately returned to criminal court, we also conclude the trial court should resentence Lewis and exercise its newly authorized discretion with respect to Lewis's firearm enhancement (§ 12022.53, subd. (h)). A. Proposition 57 and Senate Bill 1391
Although Lewis was a juvenile at the time he committed his crimes, the People filed charges against him directly in adult criminal court, as was authorized (and in some cases required) at the time. (Welf. & Inst. Code, former § 602, subd. (b)(2)(A), (b)(2)(E), as amended by Stats. 2001, ch. 854, § 72; Welf. & Inst. Code, former §707, subd. (d)(1), as amended by Stats. 2008, ch. 179, § 236; People v. Cervantes, supra, 9 Cal.App.5th at p. 596.) In November 2016, Proposition 57 eliminated the People's ability to directly charge juvenile offenders outside of juvenile court. (See Welf. & Inst. Code, §§ 602, 707, subds. (a)-(b); Lara, supra, 4 Cal.5th at pp. 304-305.) Certain juveniles may still be tried as adults in criminal court, but only after the prosecutor files a motion to transfer, the juvenile court conducts a transfer hearing, and the juvenile court (not the prosecutor) determines the matter should be transferred to criminal court. (Lara, at pp. 303, 305; Welf. & Inst. Code, § 707, subd. (a).)
Welfare and Institutions Code section 602 provides: "Except as provided in Section 707 , any person who is under 18 years of age when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court." (Italics added.) At the moment, Welfare and Institutions Code section 707, subdivision (a)(1), provides in relevant part: "In any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of . . . any felony criminal statute or of an offense listed in subdivision (b) when he or she was 14 or 15 years of age, the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction." (Italics added.)
"In deciding whether to retain jurisdiction or transfer the minor to adult court, the court must consider specific statutorily defined factors, namely, the degree of criminal sophistication exhibited by the minor; whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction; the minor's previous delinquent history; the success of previous attempts by the juvenile court to rehabilitate the minor; and the circumstances and gravity of the offense alleged to have been committed by him or her. ([Welf. & Inst. Code,] § 707, subd. (a)(2)(A)-(E).)" (People v. Cervantes, supra, 9 Cal.App.5th at p. 606, italics added.)
"The 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." (Lara, supra, 4 Cal.5th at p. 303.) Accordingly, our Supreme Court has held Proposition 57, because it reduces possible punishment for a class of persons (juveniles), applies retroactively "to all juveniles charged directly in adult court whose judgment was not final at the time [Proposition 57] was enacted." (Lara, at pp. 303-304.) Lewis argues he is entitled to conditional reversal and a transfer hearing in the juvenile court.
Lewis also points out Senate Bill 1391's recent amendments to Welfare and Institutions Code section 707 (Stats. 2018, ch. 1012, § 1, eff. Jan. 1, 2019) will eliminate the juvenile court's power to transfer offenses committed at age 15, such as Lewis's offenses against Crystal. Currently, all four of Lewis's offenses would be eligible for transfer to criminal court under Welfare and Institutions Code section 707, subdivisions (a)(1), (b)(4), and (b)(8).
As of January 1, 2019, Welfare and Institutions Code section 707, subdivision (a), will provide in relevant part: "(1) In any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of any offense listed in subdivision (b) or any other felony criminal statute, the district attorney or other appropriate prosecuting officer may make a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. . . . [¶] (2) In any case in which an individual is alleged to be a person described in Section 602 by reason of the violation, when he or she was 14 or 15 years of age, of any offense listed in subdivision (b), but was not apprehended prior to the end of juvenile court jurisdiction, the district attorney or other appropriate prosecuting officer may make a motion to transfer the individual from juvenile court to a court of criminal jurisdiction." (Italics added.) The People concede the exception for late apprehension does not apply to Lewis. Thus, Lewis and the People agree his offenses against Crystal (counts two and three) would be ineligible for transfer to criminal court after Senate Bill 1391 becomes operative. Counts one and four would remain eligible for transfer.
1. Proposition 57 and Finality of Judgment
Seeking to avoid this result, the Attorney General argues neither Proposition 57, nor the further amendments made by Senate Bill 1391 are applicable because Lewis's judgment is final. First, the People contend Lewis's convictions are final because he did not file a petition for writ of certiorari following the California Supreme Court's denial of his petition for review challenging Lewis I, in which we affirmed his judgment of conviction. (Lewis I, supra, 222 Cal.App.4th at p. 123.) In other words, the People contend the retroactivity rule announced in Lara "does not apply to [Lewis's] case because this is not an appeal from a judgment of conviction and alleged trial errors are not open for review." (Italics added.) We disagree.
"In a criminal case, the sentence is the judgment." (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213; accord, § 1237, subd. (a); People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 ["[i]n a criminal case, judgment is rendered when the trial court orally pronounces sentence"].) Lewis's original sentence was vacated and remanded "for the trial court to determine a parole eligibility date within Lewis's expected lifetime, unless it finds that Lewis's offenses reflect his irreparable corruption within the meaning of Miller[, supra, 567 U.S. 460]." (Lewis I, supra, 222 Cal.App.4th at p. 123.) "In all other respects, the judgment [was] affirmed." (Ibid.) After resentencing, Lewis timely appealed from the January 2016 sentence. Lewis's judgment is not final because we (and higher courts) can still provide a remedy on direct review. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [in " 'determining the retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed' "]; People v. Barboza (2018) 21 Cal.App.5th 1315, 1319 [same]; People v. Ketchel (1966) 63 Cal.2d 859, 864-866 [judgment not final following penalty retrial until both conviction and sentence affirmed].)
In People v. Barboza, supra, 21 Cal.App.5th 1315, the defendant did not appeal after the trial court imposed a six-year prison sentence, suspended execution of that sentence, and placed the defendant on probation. (Id. at p. 1318.) Four months later the defendant moved for remand to the juvenile court under Proposition 57, but our colleagues in Division One concluded the judgment was final. (Barboza, at pp. 1318-1319.)
The People are correct that after a limited reversal only for sentencing error, "on a subsequent appeal . . . only errors connected with that [resentencing] hearing may be considered. [Citation.] The doctrine of the law of the case precludes a review of any other matters," including trial errors. (People v. Smyers (1969) 2 Cal.App.3d 666, 668; accord, People v. Webb (1986) 186 Cal.App.3d 401, 410.) However, to the extent the People suggest application of Proposition 57 in these circumstances would amount to review of an issue of guilt (or a trial error), we see no indication our Supreme Court agrees. (Lara, supra, 4 Cal.5th at pp. 304, 309-310.)
Lara did not involve the same procedural posture as the instant case. (Lara, supra, 4 Cal.5th at p. 304.) But Lara explicitly endorsed a remedy for cases, like this one, where the defendant has already been convicted by a jury and sentenced in adult court but an appeal remains pending. (Id. at pp. 308, 309-310.)
The remedy cited with approval by the Lara court was originally found in People v. Vela (2017) 11 Cal.App.5th 68 (Vela), a case for which review had been granted. After Lara was decided, Vela was transferred back to the Fourth District with directions to vacate the decision and reconsider the cause in light of Senate Bill No. 620 (2017-2018 Reg. Sess.). The endorsed remedy remained the same in the Fourth District's subsequent opinion in People v. Vela (2018) 21 Cal.App.5th 1099, 1113.
With respect to the Vela remedy, our high court in Lara wrote: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' [Citation.] Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances . . ." [citation],' the court ordered a limited remand. [Citation.] [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] 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 Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela 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 Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at pp. 309-310.) The Lara court dismissed concerns about the complexity of this approach, emphasizing "[t]he potential complexity in providing juveniles charged directly in adult court with a transfer hearing is no reason to deny the hearing." (Id. at p. 313.)
Here, "the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place.' " (Lara, supra, 4 Cal.5th at pp. 309-310.) Thus, we do not view Lewis's Proposition 57 argument as improperly seeking to relitigate trial errors. In the absence of any authority limiting the scope of Lara's holding, we follow the bright line rule our high court announced: "Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, at p. 304, italics added.)
In the alternative, the People contend the judgment is final because our Lewis I disposition affirmed Lewis's 2011 sentence. The argument rests on the People's understanding that our remittitur in Lewis I did not vacate Lewis's original sentence or direct the trial court to impose a new judgment should it find irreparable corruption. The People contend we merely remanded for the trial court to make a threshold corrigibility finding and only if it resolved that issue favorably to Lewis would the trial court need to resentence. (See People v. Rodriguez (1998) 17 Cal.4th 253, 258 ["it appears we may properly remand to permit the trial court to make the threshold determination of whether to exercise its discretion in defendant's favor without necessarily requiring resentencing unless the court does act favorably"].) Under the People's view of Lewis I, Lewis's judgment is final and we have jurisdiction in this matter not because Lewis's appeals from a final judgment but because Lewis appeals from an "order made after judgment, affecting [Lewis's] substantial rights." (See § 1237, subds. (a)-(b).)
Generally, a sentencing reversal "restore[s]" a defendant "to his original position as if he had never been sentenced." (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744.) But remand for sentencing can take different forms. (People v. Buckhalter (2001) 26 Cal.4th 20, 35 ["[t]hat a sentencing remand necessarily entails a full resentencing [is] not correct" (italics omitted)].) A "reviewing court has the power, when a trial court has made a mistake in sentencing," for example, "to remand with directions that do not inevitably require all of the procedural steps involved in arraignment for judgment and sentencing." (People v. Rodriguez, supra, 17 Cal.4th at p. 258.)
Here, the People's reading of our disposition reads out "other respects." (Lewis I, supra, 222 Cal.App.4th at p. 123.) Its argument that the trial court did not "resentence" Lewis to 115 years to life, but rather "merely reiterated that sentence to complete the record," is equally perplexing and has been forfeited. In January 2016, the trial court completed an amended abstract of judgment and recalculated Lewis's actual custody credits. The trial court also orally pronounced Lewis's January 2016 sentence (§ 1193) and directed his delivery to the custody of the Director of Corrections. (§ 1202a.) The trial court clearly understood our Lewis I disposition, and the People did not object that arraignment for sentencing was unnecessary because we had affirmed Lewis's 2011 sentence rather than vacating it. Lewis's judgment is not yet final and he is entitled to benefit from Proposition 57. (Lara, supra, 4 Cal.5th at pp. 303-304.)
2. Application of Senate Bill 1391
Lewis contends Senate Bill 1391 should also apply retroactively to his nonfinal judgment under Lara. The People contend any dispute regarding Senate Bill 1391 is not ripe for statutory construction because it will not be effective until January 1, 2019. However, the People cite no authority supporting its assertion. The ripeness doctrine "is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of legal opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170, italics added.)
In a recently published opinion, the Fourth District Court of Appeal applied Lara to legislation enacted at the same time as Senate Bill 1391, despite the fact it would not be operative until January 1, 2019. (People v. Garcia (2018) 28 Cal.App.5th 961, 971-973 [considering Sen. Bill No. 1393 (Reg. Sess. 2017-2018) which grants a court discretion to strike or dismiss a prior serious felony conviction for sentencing purposes]; Stats. 2018, ch. 1013, §§ 1-2.) Although recognizing "matters not ripe for adjudication should ordinarily be left to a future forum," the Garcia court rejected the ripeness argument raised here and concluded Senate Bill No. 1393 should also apply retroactively to nonfinal judgments. (Id. at p. 973.) Garcia observed: "Because it is highly unlikely that defendant's judgment will in any event be final by January 1, 2019, we remand the matter to the trial court for resentencing pursuant to Senate Bill 1393, after January 1, 2019." (Ibid., fn. omitted.) Here, too, it is not possible that Lewis's judgment will be final before January 1, 2019. We do not see that judicial efficiency would be served by leaving this concrete legal dispute to be addressed anew by the juvenile court.
Our Supreme Court has already decided "[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." (Lara, supra, 4 Cal.5th at p. 303.) Because the Legislature has not indicated its intent to apply Senate Bill 1391 only prospectively (Stats. 2018, ch. 1012, § 1), and Senate Bill 1391 "ameliorate[s] the possible punishment for a class of persons, namely juveniles," we agree with Lewis "the same inference of retroactivity should apply." (Lara, at p. 308; People v. Garcia, supra, 28 Cal.App.5th at p. 973.)
We will conditionally reverse Lewis's conviction and sentence. We order the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 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 Lewis's cause to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).) In addition, because the transfer hearing will occur after Senate Bill 1391 becomes effective, the juvenile court shall consider the effect of Senate Bill 1391 on Lewis's convictions for offenses committed at age 15. If the juvenile court finds it would not have transferred any of the charged counts to a court of criminal jurisdiction, then it shall treat those convictions as juvenile adjudications and impose an appropriate disposition within its discretion. (People v. Vela, supra, 21 Cal.App.5th at p. 1113.) However, if, after conducting the juvenile transfer hearing, the court determines it would have transferred any of the charged counts to a court of criminal jurisdiction, then those convictions are to be reinstated. (Ibid.; Welf. & Inst. Code, § 707.1, subd. (a).) B. Discretion to Strike Firearm Use Enhancement
Lewis also contends the trial court should have the opportunity to consider striking the firearm enhancement, as authorized by a recent amendment to section 12022.53, subdivision (h). Because Lewis's murder conviction and its enhancement may ultimately be returned to adult criminal court, we address the application of the amendment to this case. The jury found true an enhancement allegation that Lewis personally and intentionally discharged a firearm causing Tibbs's death within the meaning of section 12022.53, subdivision (d). Accordingly, the trial court imposed a consecutive term of 25 years to life for the firearm enhancement. (§ 12022.53, subd. (d).) Before January 1, 2018, section 12022.53 contained a provision prohibiting a trial court from striking "an allegation under this section or a finding bringing a person within the provisions of this section." (Former § 12022.53, subd. (h), as amended by Stats. 2010, ch. 711, § 5.) Thus, at the time of Lewis's resentencing hearing, the trial court had no statutory discretion but to impose a consecutive term of 25 years to life for the firearm enhancement. (See People v. Franklin (2016) 63 Cal.4th 261, 273.)
While Lewis's case was pending review at the Supreme Court, the Legislature amended section 12022.53, subdivision (h), to permit courts to strike or dismiss a firearm enhancement in furtherance of justice. (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) Section 12022.53, subdivision (h) now provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
The People concede the amendment applies retroactively to nonfinal judgments. (See, e.g., People v. McDaniels (2018) 22 Cal.App.5th 420, 424; People v. Watts (2018) 22 Cal.App.5th 102, 119.) However, the Attorney General repeats the argument that Lewis's judgment is final. For the reasons stated above, we disagree.
The People, relying on People v. McVey (2018) 24 Cal.App.5th 405, also contend a remand would serve no purpose because the trial court has made clear it would not strike the firearm enhancement. McVey involved a defendant who shot an unarmed homeless man seven times. (Id. at p. 410.) At sentencing, the court explained its exercise of discretion in imposing the high term on the section 12022.5 firearm enhancement: " '[T]his is as aggravated as personal use of a firearm gets,' and 'the high term of 10 years on the enhancement is the only appropriate sentence on the enhancement.' " (McVey, at p. 419, italics added.) Here, when resentencing Lewis, the trial court made clear its belief Lewis should serve an LWOP sentence as well as its views that Lewis's offenses were "goal-directed acts of violence and cruelty." However, once the trial court found Lewis irreparably corrupt, it had no discretion but to impose a term of 15 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement. (See § 190, subd. (a); former § 12022.53, subds. (d), (h).) Unlike in McVey, the court here made no remarks specifically justifying the imposition of Lewis's firearm enhancement other than to say it was imposing a consecutive period of 25 years to life, for the firearm enhancement, "[b]y virtue of . . . section 12022.53(d)."
We cannot say the record in this case "clearly indicate[s]" the trial court would not have exercised its discretion to strike the section 12022.53 enhancement. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 ["[r]econsideration . . . is required under Romero where the trial court believed it did not have discretion to strike a three strikes prior conviction, unless the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion to strike the allegations"]; People v. McDaniels, supra, 22 Cal.App.5th at p. 425 [applying same standard].) Because a remand is otherwise necessary under Proposition 57, we conclude the trial court should have an opportunity to exercise its discretion. If, on remand, the juvenile court transfers Lewis's murder conviction and firearm enhancement back to the criminal court, the criminal court must resentence Lewis and exercise its discretion to determine whether to strike or dismiss the firearm allegation. (People v. Vela, supra, 21 Cal.App.5th at p. 1114.)
Lewis also raises constitutional challenges to the exclusion of juvenile One Strike offenders from youth offender parole eligibility (§ 3051, subd. (h)) and at least hints at an argument that his current sentence violates the Eighth Amendment. There remains a possibility all or part of Lewis's case will not be returned to adult criminal court and, if it is returned, Lewis's aggregate sentence could be significantly reduced. We will, therefore, not provide what might be only an advisory opinion on constitutional issues potentially presented by his current sentence. (Contreras, supra, 4 Cal.5th at pp. 381-382 ["in light of the changing statutory landscape, we see no reason to opine here on constitutional and statutory issues that may be rendered moot by further legislative action"].) Accordingly, we need not, and do not, address Lewis's other arguments. Should this case return to the adult criminal court for resentencing, we trust the court will consider any mitigating circumstances of Lewis's crimes and life and the impact of any new legislation, regulations, and judicial authority on appropriate sentencing. (Id. at pp. 379, 383.)
Because a de facto LWOP sentence may not result, we also need not provide an advisory opinion on Lewis's Apprendi and abuse of discretion arguments. Suffice it to say the record currently before us does not suggest the trial court abused its discretion in its consideration of the Miller factors. We have also previously rejected the Apprendi argument. (See People v. Blackwell (2016) 3 Cal.App.5th 166, 195.)
III. DISPOSITION
The judgment is conditionally reversed. The matter is remanded to the juvenile court with directions to conduct, no later than 90 days from the filing of the remittitur, a transfer hearing wherein the court will determine if Lewis's case, or any portion of it, would have been transferred to adult criminal court had the case originally been filed in juvenile court (Welf. & Inst. Code, § 707). The juvenile court shall consider Senate Bill 1391, which will take effect January 1, 2019. If the juvenile court determines that it would have transferred any of the charges against Lewis to a court of criminal jurisdiction, those convictions shall be reinstated. The criminal court shall then resentence Lewis and must consider whether to exercise its discretion to strike the section 12022.53, subdivision (d) firearm enhancement. The court is further directed to consider any mitigating circumstances of Lewis's crimes and life and the impact of any new legislation, regulations, and judicial authority on appropriate sentencing. (Contreras, supra, 4 Cal.5th at pp. 379, 383.) At the conclusion of the resentencing hearing, the trial court shall prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
If the juvenile court determines it would not have transferred any of the charges against Lewis to a court of criminal jurisdiction, then Lewis's criminal convictions and enhancements on such charges will be deemed juvenile adjudications. The juvenile court shall then conduct a dispositional hearing.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------