Opinion
G057811
05-04-2020
THE PEOPLE, Plaintiff and Appellant, v. CESAR IGNACIO LOZA, Defendant and Respondent.
Todd Spitzer, District Attorney, and Holly M. Woesner, Deputy District Attorney, for Plaintiff and Appellant. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 04HF0309 & M-16964) OPINION Appeal from an order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Request for judicial notice. Affirmed. Todd Spitzer, District Attorney, and Holly M. Woesner, Deputy District Attorney, for Plaintiff and Appellant. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Respondent.
* * *
The electorate passed Proposition 57 on November 8, 2016, and it took effect the following day. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 (Lara).) Among other provisions, Proposition 57 eliminated direct filing of criminal charges against juveniles in adult court. Instead of filing directly in adult court, the prosecution now must file a motion in juvenile court asking the court to transfer the minor to adult court. "Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult." (Id. at p. 303.) In Lara, supra, the California Supreme Court held the juvenile court transfer provisions of Proposition 57 apply retroactively to "all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.)
Cesar Loza was sentenced in 2007, and on October 16, 2007, Loza's time to petition the United States Supreme Court for a writ of certiorari expired. In May 2017, he filed a petition for a writ of habeas corpus in this court seeking resentencing, which was granted. (In re Loza (2018) 27 Cal.App.5th 797.) In the habeas proceeding, we vacated Loza's first degree murder conviction and remanded the matter for the prosecutor to elect whether to retry the charge or accept a second degree murder conviction. If the prosecutor accepted a second degree murder conviction, we ordered the trial court to resentence Loza accordingly. (Id. at p. 808.)
Thereafter, Loza filed a motion requesting the superior court remand his case to the juvenile court per Proposition 57. Over the prosecution's objection, the court granted the motion and ordered the matter transferred to the juvenile court. The district attorney appealed, contending Proposition 57 does not apply to Loza. We conclude Proposition 57 applies to Loza because his criminal judgment is not final. In light of Proposition 57 and Lara, the trial court properly transferred the matter to the juvenile court to hold a transfer hearing. Accordingly, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Loza was 17 years old when he handed a gun to a fellow gang member, who used it to kill a rival gang member. He was charged directly in adult court for his crimes. (See In re Loza, supra, 27 Cal.App.5th at pp. 799-800.) "A jury convicted Loza of first degree premeditated murder after being instructed on two derivative liability theories: direct aider and abettor liability, and the natural and probable consequences theory." (Id. at p. 799.) The jury also convicted Loza of street terrorism, and he was sentenced to 50 years to life for the murder plus 2 years for the street terrorism. The California Supreme Court denied Loza's petition for review on July 18, 2007, and he did not file a petition for writ of certiorari in the United State Supreme Court. The time for petitioning the United States Supreme Court for a writ of certiorari expired October 16, 2007.
"In 2014, our Supreme Court held that the natural and probable consequences theory can no longer support a premeditated murder conviction." (In re Loza, supra, 27 Cal.App.5th at p. 799, citing People v. Chiu (2014) 59 Cal.4th 155.) Thereafter, Loza filed a habeas corpus petition, which we granted. We vacated Loza's first degree murder conviction because we could not conclude beyond a reasonable doubt the jury relied on the legally valid direct aider and abettor liability theory to convict Loza. We remanded the matter to allow the prosecution to retry Loza for first degree murder (with proper jury instructions), or to accept a second degree murder conviction. We also ordered the trial court to conduct a hearing under People v. Franklin (2016) 63 Cal.4th 261, allowing the parties to make a record for any future youth related parole reviews. (In re Loza, supra, 27 Cal.App.5th at p. 799.) In our disposition, we stated that if the prosecution does not retry Loza, "the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of second degree murder and shall resentence Loza accordingly." (Id. at p. 808.) On remand, the prosecution accepted a second degree murder conviction.
We grant judicial notice of the fact the prosecution accepted a reduction of the conviction to second degree murder on September 19, 2019.
On February 14, 2019, before he was resentenced, Loza filed a motion requesting the superior court transfer the matter to juvenile court for a transfer hearing pursuant to Proposition 57. The district attorney opposed the motion, arguing Proposition 57 did not apply retroactively to Loza's case. On April 15, 2019, the trial court granted Loza's motion to remand the case to juvenile court for a transfer hearing.
II
DISCUSSION
A. Proposition 57 Applies Retroactively to Loza's Case
As noted, in Lara, the California Supreme Court held the juvenile court transfer provisions of Proposition 57 apply retroactively to all juveniles charged directly in adult court whose judgment is not final. (Lara, supra, 4 Cal.5th at p. 304.) The court reasoned the rationale behind the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applied to Proposition 57, explaining that "'[t]he Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" (Lara, supra, 4 Cal.5th at p. 308, quoting People v. Conley (2016) 63 Cal.4th 646, 657.)
Aside from quoting the relevant language in Estrada, the Lara court did not address when a judgment is final for retroactivity purposes. Likewise, the Estrada court did not explain what it meant when it referred to a judgment that was not yet final. (Estrada, supra, 63 Cal.2d at p. 745 [concluding that an "amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final."].)
Several months before Estrada, however, the California Supreme Court discussed the finality of a judgment in In re Spencer (1965) 63 Cal.2d 400 (Spencer). There, in ruling on a habeas corpus petition, the Spencer court explained the U.S. Supreme Court had held federal habeas relief was available for any judgment not final before the Supreme Court issued its decision finding a constitutional right. (Id. at p. 405.) The Spencer court noted the United States Supreme Court "has in substance defined finality as denoting that point at which the courts can no longer provide a remedy to a defendant on direct review. If defendant does petition for certiorari within the requisite time period the avenue of direct review remains open until the denial of that petition; at that time the judgment becomes final." (Ibid.)
The California Supreme Court expressly adopted the U.S. Supreme Court's definition of finality of a judgment in In re Dabney (1969) 71 Cal.2d 1 (Dabney). There, in ruling on a habeas petition, the court addressed the retroactive application of several decisions prohibiting the introduction of unconstitutionally obtained prior convictions. (Id. at pp. 3-4.) It concluded the rule promulgated in those decisions (the Woods-Coffey rule) applies retroactively "only to decisions which became final after January 26, 1966, the date on which we filed our decision in Woods." (Dabney, 71 Cal.2d at pp. 8-9.) The court found that "[p]etitioner's conviction only became final for retroactivity purposes on October 10, 1967, when the period during which he might have applied for certiorari ended. [Citation.] For this reason his case is governed by Woods and Coffey." (Dabney, 71 Cal.2d at p. 11.)
Our Supreme Court has applied the Dabney rule on finality of a judgment to the Estrada rule on retroactivity. (See, e.g., People v. Vieira (2005) 35 Cal.4th 264, 306 (Vieira); People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5; In re Pedro T. (1994) 8 Cal.4th 1041, 1046.) The court consistently has held that, "'for the purpose of determining 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.' [Citation]." (Vieira, supra, 35 Cal.4th at p. 306.)
Here, Loza was sentenced in 2007, and his time for petitioning the United States Supreme Court for a writ of certiorari expired October 16, 2007. Thus, the district attorney argues that for Estrada retroactivity purposes, the 2007 judgment was final well before Proposition 57 took effect. Loza, however, argues the judgment in his case is not yet final within the meaning of Lara and Estrada because in criminal cases a sentence is synonymous with the judgment and we vacated his first degree murder conviction and sentence when we granted his habeas petition. Loza has the better argument.
Loza's criminal judgment is not yet final because his original sentence was reversed. (See People v. Spencer (1969) 71 Cal.2d 933, 934, fn. 1 ["The appeal from the 'sentence' is the same as the appeal from the judgment since in a criminal action the terms are synonymous."]; People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213 [the sentence is the judgment in a criminal case].) As noted, the California Supreme Court has defined the finality of a judgment for Estrada retroactivity purposes as "that point at which the courts can no longer provide a remedy to a defendant on direct review." (Spencer, supra, 63 Cal.2d at p. 405.) Here, even after the prosecution accepted a second degree murder conviction, if an error had occurred during the resentencing, Loza could directly appeal the sentencing error and this court could correct that error. Thus, the courts can provide Loza with a remedy on direct review.
People v. Amons (2005) 125 Cal.App.4th 855 (Amons) and People v. Barboza (2018) 21 Cal.App.5th 1315 (Barboza) do not assist the district attorney. In both cases, the trial court imposed a sentence, but suspended execution of the sentence and placed the defendant on probation. (Amons, supra, 125 Cal.App.4th at p. 868; Barboza, supra, 21 Cal.App.5th at p. 1318.) The respective appellate courts concluded the defendant's conviction and sentence became final once the time for appeal lapsed from the order granting probation. (Amons, supra, 125 Cal.App.4th at pp. 868-869; Barboza, supra, 21 Cal.App.5th at pp. 1318-1319.) The judgments in Amons and Barboza were not vacated, and neither case involved habeas relief. In contrast, Loza's conviction and sentence were vacated when we granted his habeas petition.
Citing People v. Murtishaw (1989) 48 Cal.3d 1001 (Murtishaw), the district attorney argues that because the "judgment of conviction" remains in full effect, the finality of the judgment of conviction precludes retroactive application of Proposition 57. We disagree for several reasons. First, the district attorney has cited no authority for the proposition that our 2018 order vacating Loza's first degree murder conviction left a 2007 "murder" conviction in place and did not affect the date the conviction became final.
Second, Murtishaw does not assist the district attorney because it did not address the Estrada rule, which permits retroactive application of certain amendatory criminal statutes.
Moreover, Proposition 57's juvenile court transfer provisions neither constitute a new rule of criminal procedure nor undermine the jury's finding of guilt. In Murtishaw, the California Supreme Court determined that retroactive application of a new rule of criminal procedure based on the federal constitution would not "undermine defendant's convictions," and declined to apply retroactively new "rules of criminal procedure derived solely from state law." (Murtishaw, supra, 48 Cal.3d at p. 1013.) Here, the transfer provisions do not create a new procedural rule for criminal courts, but rather create a new procedure for prosecuting charges involving juveniles. They provide that all charges against a juvenile must be brought in juvenile court, although the juvenile court may transfer the matter to criminal court after a suitability hearing. Additionally, the juvenile court transfer provisions do not undermine Loza's convictions. As this court noted in People v. Vela (2018) 21 Cal.App.5th 1099, even if Loza is entitled to a juvenile transfer hearing, "[t]he 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 'dispositional hearing,' or effectively a second trial, in the juvenile court." (Id. at p. 1112.)
Finally, the district attorney's proposed distinction between a final "judgment of conviction" and a final "sentence" for Estrada retroactivity is not legally sound. As noted, the Supreme Court has defined finality for Estrada retroactivity based on federal habeas jurisprudence. Under federal law, a state prisoner must file a habeas petition within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." (28 U.S.C. § 2244(d)(1)(A).) The U.S. Supreme Court has concluded that the petitioner's "limitations period did not begin until both his conviction and sentence 'became final by the conclusion of direct review or the expiration of the time for seeking such review.'" (Burton v. Stewart (2007) 549 U.S. 147, 156-157.) The reason is "'[f]inal judgment in a criminal case means sentence. The sentence is the judgment.'" (Id. at p. 156, quoting Berman v. United States (1937) 302 U.S. 211, 212.)
Thus, in a criminal case where the conviction is affirmed but the sentence is reversed, the judgment becomes final for habeas review purposes after conclusion of direct review of the new sentence imposed at resentencing, not after conclusion of direct review of the conviction. As a federal appellate court has explained, a petitioner's "judgment did not become final after his first round of direct review because he no longer was subject to a sentence. The judgment became final upon the conclusion of direct review of the new sentence he received at resentencing." (Rashad v. Lafler (6th. Cir. 2012) 675 F.3d 564, 569.) Likewise, in California, the sentence is the judgment in a criminal case. (See, e.g., People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 ["In a criminal case, judgment is rendered when the trial court orally pronounces sentence."]; In re Gray (2009) 179 Cal.App.4th 1189, 1196 ["Only after a sentence is imposed following the return of a verdict is there a 'final judgment that may be appealed'"].) Thus, for Estrada retroactivity, a judgment is final after conclusion of direct review of both the conviction and the sentence. Because Loza's new sentence has not yet been imposed, his judgment is not yet final, and therefore he is entitled to the benefits of Proposition 57.
Finally, the trial court's transfer order did not exceed the scope of the relief granted on Loza's habeas petition. In People v. Ramirez (2019) 35 Cal.App.5th 55 (Ramirez), we rejected the claim that the trial court's order transferring the matter to the juvenile court exceeded the scope of the remittitur ordering resentencing. (Id. at p. 64.) We reasoned that because a juvenile defendant entitled to the benefits of Proposition 57 cannot be sentenced as an adult if the juvenile court has not transferred the juvenile to adult court, the trial court must consider the effect of Proposition 57 to comply with the remittitur. (Ibid.) Likewise, to implement habeas relief here, including resentencing Loza on the second degree murder conviction, the trial court also must consider the effect of Proposition 57 and issue any related orders, including transferring the matter to juvenile court. In sum, the trial court properly ordered the matter transferred to the juvenile court to conduct a transfer hearing.
III
DISPOSITION
The order transferring the matter to juvenile court is affirmed.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.