Opinion
E070865
09-09-2019
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH NAVARRO, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers, Adrianne S. Denault and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWF021408) OPINION APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Reversed with directions. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers, Adrianne S. Denault and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant, Joseph Navarro, guilty of two counts of first degree murder and one count of unpremeditated murder. The jury additionally found true a multiple-murder special circumstance. On September 28, 2012, the court sentenced defendant to two consecutive terms of 25 years to life. In the opinion dated June 9, 2015, we modified the judgment to award defendant additional custody credits and a reduction in parole revocation restitution fines. As modified, we affirmed the judgment.
On April 15, 2019, we granted the People's request for judicial notice of the record in case No. E057279, the record of defendant's prior appeal from the judgment. We derive most of our factual and procedural recitation in this opinion from the opinions in that case.
After defendant and his codefendant filed petitions for rehearing, we modified our opinion in part to allow defendant "to raise the issue of whether [he] [is] entitled to the benefits of Proposition 57 to the same extent that [he] raised this issue in the petition[] for rehearing that [he] filed with this court." The California Supreme Court denied defendant's petition for review; however, it issued a "grant and hold" order, identifying People v. Franklin (S217699) as the lead case.
After the California Supreme Court issued its opinion in Franklin (People v. Franklin (2016) 63 Cal.4th 261), it transferred this case back to this court with directions to vacate our decision and to reconsider the cause in light of Franklin. We vacated our original opinion, modified the judgments, and remanded the matter to the trial court with directions, pursuant to Franklin, to determine whether defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearings and, if not, to afford him such an opportunity.
At the Franklin hearing on May 18, 2018, defendant's counsel noted that defendant requested not to be transported to the hearing. Defense counsel proceeded with the Franklin hearing without raising any issue with respect to Proposition 57. On appeal, defendant contends the matter should be returned to the trial court to conduct a Proposition 57 transfer hearing. The People agree. We conditionally reverse the judgment for a limited remand.
Counsel did not raise the Proposition 57 issue in his previously filed Franklin brief either.
I. FACTS AND PROCEDURAL HISTORY
In May 2007, at a party when defendant was 17 years old, he, his older brother, and another individual became involved in a fight. The three defendants were each seen with a knife; each was seen hitting or stabbing someone. By the time defendants left, three party guests had been stabbed. Two died; one survived.
At the Franklin hearing on May 18, 2018, defendant's counsel stated that defendant "is not present. He requested not to be transported due to some medical issues that he is going through right now." Defense counsel never raised the issue of whether the court should conduct a juvenile court transfer hearing pursuant to Proposition 57 and our direction in the modification of opinion "to raise the issue of whether [he] [is] entitled to the benefits of Proposition 57 to the same extent that [he] raised this issue in the petition[] for rehearing that [he] filed with this court."
II. DISCUSSION
Defendant contends the court was required to hold a juvenile court transfer hearing pursuant to Proposition 57 and that the matter must be conditionally reversed for such a hearing. The People concede the issue. We agree. A. Waiver
Defendant contends he never personally waived his right to be present at the hearing and, hence, did not waive or forfeit his right to a juvenile court transfer hearing. The People concede. We agree.
"The federal Constitution provides a defendant the right to be present if '"(1) the proceeding is critical to the outcome of the case, and (2) the defendant's presence would contribute to the fairness of the proceeding."' [Citation.] A defendant's right to be present under the California Constitution and Penal Code section 977, subdivision (b)(1) is similar. [Citations.] The burden is on a defendant to show that the '"absence prejudiced his case or denied him a fair and impartial trial."' [Citations.]" (People v. Caro (2019) 7 Cal.5th 463, 478-479.) Penal Code section 977 "requires the defendant's presence . . . when it bears a reasonably substantial relation to the fullness of his opportunity to defend against the charge." (People v. Cooper (1991) 53 Cal.3d 771, 825.) The requirement of a defendant's presence at such proceedings may only be obviated where, with leave of the court and with the defendant's counsel's approval, the defendant executes, in open court, a written waiver of his or her right to be personally present. (Pen. Code, § 977, subd. (b).)
Here, as the court in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 agreed, "'the potential benefit of a juvenile transfer hearing is that it may, in fact, dramatically alter a minor's effective sentence or "juvenile disposition" for past criminal conduct.'" (Id. at p. 311.) Thus, we hold that Penal Code section 977 requires a defendant's presence at a juvenile court transfer hearing unless the court has obtained a proper waiver of defendant's presence at the hearing.
Here, the court did not obtain a proper waiver of defendant's presence at the hearing. Defendant never appeared in person, in open court, to execute a written waiver of his right to be personally present at a juvenile court transfer hearing. Defense counsel's sole statement on the reason that defendant was not present at the Franklin hearing was that "[h]e requested not to be transported due to some medical issues that he's going through right now." This was insufficient for purposes of Penal Code section 977 to waive defendant's presence for a juvenile court transfer hearing. Thus, defendant did not waive or forfeit his right to a juvenile court transfer hearing by failing to raise the issue below. B. Juvenile Court Transfer Hearing
Defendant contends the matter must be remanded to the trial court to conduct a juvenile court transfer hearing because his judgment is not final. The People concur that Proposition 57 is applicable to defendant because his judgment was not final at the time it was enacted and that the matter must be conditionally reversed. We agree.
"On November 8, 2016, the electorate passed Proposition 57, and it took effect the next day. [Citation.]" (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 304.) "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 what we will call 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. [Citation.]" (Id. at p. 303, fn. omitted.) "Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.)
Here, defendant's judgment is not final because we have yet to issue a final opinion in the matter. (Cal. Rules of Court, rule 8.366(b)(1) [in general, a Court of Appeal decision in a criminal proceeding is final in that court 30 days after the filing of an opinion or order dismissing the matter].) Thus, defendant is entitled to retroactive application of Proposition 57, i.e., he is entitled to a juvenile court transfer hearing.
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 elapsed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) --------
"'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] cause to a court of criminal jurisdiction. [Citation.] 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. [Citation.] 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.' [Citation.]" (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 310.)
III. DISPOSITION
The judgment is conditionally reversed, and a limited remand is ordered for the juvenile court to hold a juvenile court transfer hearing pursuant to Proposition 57 in accordance with the views expressed in this opinion. We express no opinion on whether the judgment should be reinstated or dealt with in the juvenile court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.