Opinion
C083997
03-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH LAMAR McKEEVER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F06187)
On October 3, 2015, defendant Joseph Lamar McKeever broke into a home, assaulted the 72-year-old woman who lived there, tried to sexually assault her, and took jewelry and $900 from her before leaving. He was 17 years old at the time.
The People elected to charge defendant as an adult pursuant to former Welfare and Institutions Code section 707. Following a jury trial, defendant was convicted of assault with the intent to commit rape during the commission of a burglary, attempted rape as a lesser included offense of rape, and robbery, along with an enhancement for a victim older than 65. The trial court sentenced defendant to state prison for seven years to life plus seven years.
Undesignated statutory references are to the Welfare and Institutions Code. --------
Defendant contends on appeal that under the recently enacted Proposition 57, his conviction should be conditionally reversed and remanded for the trial court to consider whether he is suitable for trial in adult court. Applying the recent Supreme Court decision holding that Proposition 57 is retroactive, we shall conditionally reverse and remand for a transfer hearing.
DISCUSSION
Defendant was charged on January 26, 2016. At that time, former section 707, subdivision (d)(1) allowed a prosecutor to bypass the juvenile court by filing certain charges against a minor in adult court. (Stats. 2008, ch. 179, § 236.) Defendant was subject to direct filing in adult court because he was charged with two qualifying offenses, robbery and forcible rape. (Former § 707, subds. (d)(1), (b)(3), (4); Stats. 2008, ch. 179, § 236.) He was convicted on June 23, 2016, and sentenced on September 2, 2016.
On November 8, 2016, the voters approved Proposition 57, The Public Safety and Rehabilitation Act (the Act). Following the Act, the juvenile court has original jurisdiction in any criminal proceeding involving a person under the age of 18. (§ 602.) The only way a minor can be prosecuted in adult court is by a motion to transfer the case from juvenile to adult court. (§ 707, subd. (a)(1).) In ruling on the transfer motion, the juvenile court shall consider 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 in the petition to have been committed by the minor." (§ 707, subd. (a)(2)(A)-(E).)
Defendant contends the provisions of the Act apply retroactively to his case. While appeal was pending in this case, the Supreme Court held Proposition 57's amendment to section 707 applied retroactively to cases not final on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) The Supreme Court viewed favorably the remedy of conditional reversal and remand for a transfer hearing. (Id. at pp. 308-311.) We shall do so here.
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 defendant's case to a court of criminal jurisdiction. (§ 707, subd. (a)(1); see People v. Superior Court (Lara), supra, 4 Cal.5th at p. 310.) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred defendant to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then defendant's convictions and sentence are to be reinstated. (§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat defendant's convictions as juvenile adjudications and impose an appropriate disposition within its discretion.
DISPOSITION
The judgment is conditionally reversed. The case is remanded to the juvenile court with directions to conduct a transfer hearing, as discussed within this opinion and follow the procedures described immediately above.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Duarte, J. /s/_________
Hoch, J.