Opinion
F082916
01-23-2023
THE PEOPLE, Plaintiff and Respondent, v. ANGELIQUE ELANDRA NASH, 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, Julie A. Hokans and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF131808B. Charles R. Brehmer, 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, Julie A. Hokans and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
In 2010, appellant Angelique Elandra Nash, then 17 years old with no prior criminal record, was involved in a residential burglary. The homeowner was fatally injured by another coparticipant and, under the law as it then stood, appellant was directly charged in a court of criminal jurisdiction. (Welf. &Inst. Code, § 707, former subd. (d)(1).) Appellant was convicted of felony murder and her third appeal following that conviction is now pending before us.
We take judicial notice of our prior nonpublished opinion in People v. Nash (Aug. 14, 2015, F068239) (Nash I) for the factual and procedural history. (Evid. Code, §§ 452, subd. (d), 459.)
As discussed herein, it is undisputed that pursuant to former Penal Code section 1170.95, now section 1172.6, appellant is entitled to have her felony murder conviction vacated and to be resentenced for first degree burglary. As a result, her judgment is no longer final within the meaning of Estrada and she is also entitled to the benefit of Proposition 57, enacted by voters in November 2016. (People v. Padilla (2022) 13 Cal.5th 152, 158 (Padilla).) The trial court erred in concluding otherwise, prePadilla, and, therefore, we vacate the orders and judgment entered on May 11, 2021.
All further statutory references are to the Penal Code unless otherwise specified. Former section 1170.95 was renumbered to section 1172.6, effective June 1, 2022. (Assem. Bill No. 200 (2021-2022 Reg. Sess.).) For clarity and consistency, we refer to the statute as renumbered.
In re Estrada (1965) 63 Cal.2d 740 (Estrada).
As explained below, we remand the matter to the trial court with instructions to formally vacate appellant's felony murder conviction pursuant to section 1172.6, subdivision (d)(2), and then transfer the matter to the juvenile court for further proceedings under Welfare and Institutions Code section 707, subdivision (a). Following a determination by the juvenile court whether the matter will remain in that court or be transferred back to adult criminal court, the court of jurisdiction shall redesignate appellant's offense as one for first degree burglary and resentence appellant. (§ 1172.6, subd. (e).)
PROCEDURAL SUMMARY
I. Nash I and Nash II
In April 2010, appellant; her 14-year-old sister, Katila Nash; and 17-year-old David Moses participated in a residential burglary in Bakersfield. While he was inside the house, Moses struck the 81-year-old homeowner and she subsequently died from blunt force trauma to the head. The three were arrested and charged as adults with murder. (Welf. &Inst. Code, § 707, former subd. (d)(1)-(2).) Katila Nash and Moses were convicted at the first trial. In 2013, following two mistrials, appellant was convicted by jury of felony murder with a special circumstance finding that the murder was committed while appellant was engaged in the commission of burglary. (§§ 187, subd. (a), former 189, 190.2, subds. (a)(17)(G) &(d).) Appellant was sentenced to 25 years to life in prison. (§ 190.5, subd. (b).)
In 2015, in Nash I, this court reversed the jury's burglary special-circumstance finding on the ground it was unsupported by substantial evidence that appellant was a major participant in the underlying burglary, in accordance with the California Supreme Court's then-recent decision in People v. Banks (2015) 61 Cal.4th 788 (Banks). Appellant's sentence remained 25 years to life in prison, however. (§ 190, subd. (a).)
On September 30, 2018, the Governor signed Senate Bill No. 1437 into law (2017-2018 Reg. Sess.) (Senate Bill 1437 or Sen. Bill 1437)). Effective January 1, 2019, Senate Bill 1437 "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Sen. Bill 1437, § 1, subd. (f).) The bill amended sections 188 and 189, and added what is now section 1172.6, to provide a process for those convicted of felony murder or murder under a natural and probable consequences theory to petition for relief based on the change to the law. (Sen. Bill 1437, §§ 2-4.)
Following the enactment of Senate Bill 1437, appellant, represented by counsel, filed a petition under present section 1172.6, subdivision (a), seeking relief from her felony murder conviction on the ground that she was "not the actual killer, did not act with the intent to kill, [and] was not a major participant in the underlying felony who acted with reckless indifference to human life." (Sen. Bill 1437, § 1, subd. (f); accord, Pen. Code, § 189, subd. (e).) The prosecutor opposed the petition and after hearing argument and taking the matter under submission, the trial court denied appellant relief. The court rejected the prosecutor's contentions that Senate Bill 1437 amended Proposition 115 (the Crime Victims Justice Reform Act) and Proposition 9 (the Victims' Bill of Rights Act of 2008: Marsy's Law), in violation of the California Constitution, but the court agreed that at least as to retroactive application, Senate Bill 1437 was an unconstitutional amendment of Proposition 7 (the Briggs Initiative). The trial court dismissed appellant's petition and she filed a timely notice of appeal challenging the judgment. (§ 1237.)
In 2020, in Nash II, this court, with Justice Poochigian dissenting, concluded that the trial court erred in finding that Senate Bill 1437 unconstitutionally amended Proposition 7. (People v. Nash (2020) 52 Cal.App.5th 1041, 1053 (Nash II).) Additionally, we unanimously rejected respondent's claims on appeal that Senate Bill 1437 unconstitutionally amended Proposition 115 and Proposition 9 and that it violated the separation of powers doctrine. (Nash II, supra, at p. 1053.) We reversed the judgment and remanded the matter for further proceedings under present section 1172.6. (Nash II, supra, at p. 1053.)
II. Present Appeal
On remand following Nash II, there was no dispute between the parties that under section 1172.6, appellant was entitled to relief from her felony murder conviction and to be resentenced for the underlying felony of first degree burglary. (§ 460, subd. (a).) However, appellant contended her entitlement to relief under section 1172.6 rendered her conviction nonfinal and she requested transfer of the matter to the juvenile court pursuant to changes in the law effected by Proposition 57. The trial court acknowledged a split of appellate authority on the issue, as did the prosecutor, but concluded that appellant's judgment was final following Nash I and she was not entitled to retroactive application of Proposition 57. There was also some disagreement over the procedure for redesignation and resentencing under section 1172.6 and the prosecutor sought to have appellant enter a plea to burglary. The trial court instead required appellant to agree to be resentenced for first degree burglary and imposed the upper term of six years, with credit for time served, but neglected to formally vacate appellant's murder conviction and redesignate the offense.
Appellant's timely appeal following her resentencing is now before us. Appellant advances her trial court claim that the proceedings under section 1172.6 rendered her judgment nonfinal and, therefore, pursuant to Proposition 57, she is entitled to a transfer hearing in juvenile court. Alternatively, she argues that equitable considerations relating to resolution of Katila Nash's appeal compel application of Proposition 57 in this case.
Appellant also requests that we direct the lower court to follow the procedure set forth in section 1172.6 by vacating her murder conviction; redesignating that conviction as one for first degree burglary; resentencing her; and entering these events in the minutes. Further, appellant claims that under section 2900.5, former subdivision (a), in effect at the time of her 2010 offense, the $280 restitution and $10 crime prevention fines imposed by the trial court under sections 1202.4, former subdivision (b)(1), and 1202.5, subdivision (a), must be deemed satisfied by her excess custody credits. Finally, she requests correction of clerical errors in the court's minute orders and the abstract of judgment.
In support of her claims, appellant requests we take judicial notice of the records in Nash I and Nash II, the records in the appeals of Katila Nash and David Moses in cases Nos. F066160 and F066278, and the writ petition proceedings against Katila Nash in case No. F079208. Respondent did not file a response, which we deem an agreement to the request for judicial notice, in accordance with our prior order. We grant appellant's request for judicial notice of the records in Nash I and Nash II, but, based on the disposition of this appeal, it is unnecessary for us to consider the records in Katila Nash's and David Moses's cases and we deny that request as moot.
Respondent concedes that pursuant to section 2900.5, former subdivision (a), appellant's $280 restitution fine and $10 crime prevention fine must be deemed satisfied by virtue of her excess custody credits, and respondent impliedly concedes that the abstract of judgment incorrectly reflects imposition of a $300 rather than a $280 restitution fine. Respondent maintains the position it took in the trial court that appellant's judgment is final, precluding relief under Proposition 57, but concedes that if the California Supreme Court holds to the contrary in Padilla, appellant is entitled to remand and transfer to the juvenile court. Finally, respondent contends that appellant forfeited her claims of error concerning the pronouncement of judgment and the court's minute orders, and that she fails to show prejudice.
The day before appellant filed her reply brief, the California Supreme Court issued its decision in Padilla, which resolves in appellant's favor her main claim that judgment is no longer final in this case and she is entitled to benefit from Proposition 57. (Padilla, supra, 13 Cal.5th at p. 158.) Accordingly, pursuant to Padilla, we vacate the orders and judgment entered on May 11, 2021, and remand the matter. On remand, the trial court shall formally vacate appellant's murder conviction under section 1172.6, subdivision (d)(2), and transfer this matter to the juvenile court for further proceedings under Welfare and Institutions Code section 707, subdivision (a), after which the appropriate court shall redesignate the offense as either a juvenile adjudication or a conviction for first degree burglary, and resentence appellant. (§ 1172.6, subd. (e).)
We note respondent states that if transferred to juvenile court under Proposition 57, appellant is categorically ineligible for transfer back to criminal court because burglary is not an offense listed in section 707, subdivision (b), of the Welfare and Institutions Code. Appellant was 17 years old at the time of the crime, however, and burglary is a felony. (Welf. &Inst. Code, § 707, subd. (a).) Therefore, a transfer motion by the prosecutor is not prohibited, but, following the passage of Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Assembly Bill No. 2361), effective January 1, 2023, "[i]n order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find 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), italics added.)
This disposition moots appellant's alternative claim of entitlement to an equitable remedy and, as previously stated, her related request for judicial notice of the records in Katila Nash's and David Moses's cases.
With respect to appellant's remaining claims, we accept respondent's concession that appellant is entitled to application of her excess custody credits against her fines. Given remand of this matter and in view of appellant's suggestion that double jeopardy may bar imposition of the crime prevention fine and respondent's suggestion that the court may have erred in awarding appellant 1,272 of good time/work time credit, we leave final resolution of the matter to the parties and court of jurisdiction at the time of resentencing. As discussed herein, we agree with appellant that two minute orders issued by the clerk necessitate correction and that the abstract of judgment incorrectly reflects imposition of a $300 restitution fine. However, we disagree with appellant's assertion that the abstract of judgment should reflect, as her date of conviction, the date her murder conviction is redesignated as burglary. Final resolution of these issues is dependent upon whether the matter remains in juvenile court or is transferred back to criminal court, but we nevertheless briefly address the issues given the necessity of remand in this matter.
Neither party advances a claim of error on these grounds or requests a remedy, but they nevertheless suggest that the sentence imposed was, in part, unauthorized as a matter of law, which subjects the errors to judicial correction, either in the lower court or on review. (People v. Cunningham (2001) 25 Cal.4th 926, 1044-1045.)
DISCUSSION
I. Entitlement to Retroactive Application of Proposition 57
A. Padilla Decision
Enacted by voters in November 2016, "Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct ... a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara), citing Welf. &Inst. Code, § 707, subd. (a).)
Further amendments to Welfare and Institutions Code section 707 were made by Senate Bill No. 1391 (2017-2018 Reg. Sess.), effective January 1, 2019, and Assembly Bill No. 2361 (2021-2022 Reg. Sess.), effective January 1, 2023.
Following remand in Nash II in 2020, the parties did not disagree that Proposition 57 applies retroactively in nonfinal cases (Lara, supra, 4 Cal.5th at pp. 303 304), but they disagreed whether appellant's entitlement to relief from her murder conviction under section 1172.6 and resentencing reopened her judgment, affording her relief under Proposition 57. The trial court concluded that appellant's judgment became final in February 2016, nine months before Proposition 57 was enacted.
As previously summarized, in Nash I, we vacated the jury's special circumstance finding in light of the California Supreme Court's 2015 decision in Banks and directed the trial court to issue an amended abstract of judgment, but we expressly stated that appellant's sentence was not affected. (Nash I, supra, F068239.) Remittitur issued in Nash I on November 24, 2015, and the trial court issued an amended abstract of judgment as directed on December 4, 2015. The trial court concluded that appellant's judgment became final after the 60-day period within which to file an appeal expired. (Cal. Rules of Court, rule 8.308(a).) We note that an abstract of judgment, while an official clerical record, is not the judgment of conviction (People v. Delgado (2008) 43 Cal.4th 1059, 1070), but regardless, as discussed herein, the act of vacating appellant's murder conviction for redesignation and resentencing under section 1172.6 renders her judgment nonfinal, which entitles her to relief under Proposition 57 (Padilla, supra, 13 Cal.5th at pp. 162163).
The dispute over the finality of appellant's judgment was subsequently resolved in appellant's favor by the California Supreme Court in Padilla, supra, 13 Cal.5th 152. The court explained, "Proposition 57 reflects a decision by California's voters that the range of punishments meted out in criminal court is too severe for most juvenile offenders. In accord with Estrada, our presumption is that the voters wanted that reduction in punishment to stretch '"as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not."' [Citations.] Nothing about this presumption is undermined when a case is nonfinal because the defendant's sentence has been vacated rather than because the initial review of the sentence has not yet concluded." (Id. at p. 162.) "[O]nce a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence." (Id. at p. 163.)
In accordance with Padilla, appellant's successful petition under section 1172.6 for vacatur of her murder conviction and resentencing for burglary renders her judgment nonfinal and she is entitled to the benefit of Proposition 57. (Padilla, supra, 13 Cal.5th at p. 158; People v. Keel (2022) 84 Cal.App.5th 546, 564-565.) Therefore, we vacate the trial court's orders and judgment entered on May 11, 2021, and remand this matter. Following the issuance of remittitur, the trial court shall transfer this matter to the juvenile court for further proceedings under Welfare and Institutions Code section 707, subdivision (a). In light of this disposition, appellant's alternative argument that equitable considerations require she be afforded relief under Proposition 57 is moot and we do not consider it.
B. Section 1172.6, Subdivision (e), Procedure
As stated, there was no dispute appellant was entitled to have her murder conviction vacated. (§ 1172.6, subd. (d)(2).) Section 1172.6, subdivision (e), provides that "[t]he petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged._" In the trial court, the parties agreed that appellant should be resentenced to first degree burglary as the target offense, but there was disagreement over the procedure and the prosecutor argued, incorrectly, that appellant should be required to enter a plea to burglary. The trial court instead required appellant to agree to be sentenced for burglary and then imposed the upper term of six years, with credit for time served. The trial court neglected to formally vacate appellant's murder conviction and redesignate it as conviction for first degree burglary prior to resentencing her for that offense. (§ 1172.6, subds. (d)(2), (e); see People v. Silva (2021) 72 Cal.App.5th 505, 516-517 [discussing general procedure]; People v. Howard (2020) 50 Cal.App.5th 727, 737-739 [same].) In her appeal, appellant requests that we direct the trial court to do so.
The prosecutor did not proceed on a natural and probable consequences theory, but first degree burglary was the felony underlying appellant's murder conviction.
We note that under Senate Bill No. 567 (2021-2022 Reg. Sess.), effective January 1, 2022, the lower term is now the presumptive term if the person was under 26 years of age at the time the offense was committed. (§ 1170, subd. (b)(6)(B).)
We agree that proper procedure must be followed, as it is the vacatur of appellant's murder conviction for redesignation of the offense and resentencing that reopens the judgment and entitles her to relief under Proposition 57. However, whether the vacated murder conviction is redesignated as an adjudication for burglary in juvenile court or a conviction for burglary in criminal court depends on future proceedings in the juvenile court following remand, and appellant's resentencing follows the redesignation. It also appears that the failure to follow the formal statutory procedure led to errors with the minute orders, discussed below. Accordingly, on remand, following issuance of the remittitur, the trial court shall formally vacate appellant's conviction for murder (§ 1172.6, subd. (d)(2)), and then transfer the matter to the juvenile court for further proceedings under Welfare and Institutions Code section 707, subdivision (a).
II. Application of Excess Custody Credits to Fines
After sentencing appellant to six years for burglary, the trial court reimposed a restitution fine of $280 under section 1202.4, former subdivision (b)(1), and imposed a crime prevention fine of $10 under section 1202.5, subdivision (a). There is no dispute that appellant has excess custody credits, but the trial court did not apply the excess credits to her fines under section 2900.5, former subdivision (a), which was in effect at the time the crime was committed. The parties agree that pursuant to section 2900.5, former subdivision (a), appellant is entitled to have her excess custody credits applied to the fines imposed by the trial court on a proportional basis at a rate of not less than $30 per day. (People v. Lamoreaux (2020) 57 Cal.App.5th 136, 152; People v. Morris (2015) 242 Cal.App.4th 94, 101-103.)
We accept respondent's concession on the applicability of section 2900.5, former subdivision (a). However, given that this matter must be remanded for further proceedings to include resentencing, appellant's view that the $10 crime prevention fine may have been improperly imposed, and respondent's view that the trial court may have miscalculated the time credits, it is appropriate for the parties to address this issue on remand in the sentencing court.
III. Clerical Errors in Minute Orders and Abstract of Judgment
Appellant requests the correction of two minute orders and the abstract of judgment. Respondent asserts that appellant's failure to object to the minute orders forfeits the issue and that any error is harmless. We have the authority to correct clerical errors even on our own motion (§ 1260; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705-706; People v. Amaya (2015) 239 Cal.App.4th 379, 385), and given the failure to follow the statutory procedure and the necessity of remand in this matter for correction and transfer to the juvenile court, the record will benefit from the correction appellant seeks.
First, on May 20, 2021, the clerk issued a minute order following the section 1172.6 resentencing hearing held on May 11, 2021. The minute order contains the following sentence: "Information amended as to Count 1, felony, violation of ... section 460[, subdivision ](a) on motion of district attorney." (Full capitalization omitted.) Appellant objects to the inclusion of this sentence because she was afforded relief under former section 1170.95 and resentenced; the prosecutor did not move to amend the information and the information was not amended. We agree and we order that portion of the minute order stricken.
Second, on June 9, 2021, the clerk issued a minute order amending the minute order for July 23, 2013, which was the date the jury returned the verdict in appellant's third trial. The amended minute order added the following three events: "Due to remittitur this minute order amended on 05/21/2021 by L. Suniga to correct Count 1 to reflect . section 460[, subdivision ](a)"; "Information amended as to Count 1, felony, violation of . section 460[, subdivision ](a) on motion of district attorney"; and "jury returns with verdict of guilty as to Count 1, violation of . section 460[, subdivision ](a)." (Full capitalization omitted.) Appellant objects to the amended minute order in general and to the inclusion of this information specifically because it misrepresents what occurred during the hearing held on May 11, 2021, and it is inappropriate to issue a minute order purporting to amend past events, in the absence of judicial action and based on events that never occurred. Again, we agree and conclude the appropriate remedy in this circumstance is to strike the amended minute order issued on June 9, 2021, in its entirety.
Finally, appellant points out that the abstract of judgment incorrectly reflects imposition of a $300 restitution fine and asserts that the abstract incorrectly reflects her date of conviction for burglary as July 23, 2013. We agree with respect to appellant's first contention; the restitution fine imposed during appellant's original sentencing hearing, and again during resentencing, was $280 rather than $300. However, in light of appellant's entitlement to remand, transfer to juvenile court, and resentencing, her request for a correction is moot.
We are unpersuaded by appellant's second contention, which respondent did not address. As discussed herein, appellant is entitled to have her murder conviction redesignated as either a conviction or an adjudication for first degree burglary, and to resentencing on the redesignated offense. Redesignation of the conviction from murder to burglary pursuant to the statutory process provided by the Legislature does not change the fact that the conviction occurred on July 23, 2013. Appellant reasons that she was not convicted of burglary on July 23, 2013, but neither was she convicted of burglary on May 11, 2021; rather, her existing conviction was-or should have been, as it stands- redesignated. Appellant provides no authority or persuasive argument supporting her position on this issue and, therefore, we reject the claim.
DISPOSITION
We order the following erroneous entry stricken from the minute order for the hearing held on May 11, 2021: "Information amended as to Count 1, felony, violation of ... section 460[, subdivision ](a) on motion of district attorney." (Full capitalization omitted.) Further, we order the minute order issued on June 9, 2021, which erroneously amended the minute order following the jury's verdict on July 23, 2013, stricken in its entirety.
In accordance with Padilla, supra, 13 Cal.5th at page 158, we vacate the orders and judgment entered on May 11, 2021, and we remand this matter to the trial court. Following the issuance of remittitur, the trial court shall vacate appellant's murder conviction and recall her sentence under section 1172.6, subdivision (d)(2), and transfer this matter to the juvenile court for further proceedings under Welfare and Institutions Code section 707, subdivision (a). Following resolution of whether this matter remains in the juvenile court or is transferred back to adult criminal court, the court of jurisdiction shall redesignate appellant's vacated conviction as either an adjudication or a conviction for first degree burglary and shall resentence appellant. (§ 1172.6, subds. (d)(2), (e).)
WE CONCUR: POOCHIGIAN, Acting P. J., SMITH, J.