Opinion
E061027
08-24-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO ORTEGA et al., Defendants and Appellants.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Mario Ortega. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant Jimmy Arevalo. Xavier Becerra, Attorney General, and Susan Elizabeth Miller and Amanda Leigh, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] THE COURT:
The petition for rehearing filed by plaintiff and respondent on September 7, 2018, is denied. It is ordered that the opinion filed herein on August 24, 2018, be modified as follows:
1. At the end of the last paragraph on page 5, strike the words "We agree." Replace with the following:
To the extent defendants' sentences relied solely upon a life expectancy analysis, we agree.
2. On page 7, lines four and five, strike "LWOP because it does not allow" and replace with "LWOP, denying" so that the sentence reads:
Under the facts in Contreras . . . it is the functional equivalent of LWOP, denying the juvenile offender a realistic hope . . . .
3. On page 7, in the first full paragraph, strike the last two sentences beginning with "This actuarial approach" and ending "remand for resentencing," and replace with the following:
An actuarial approach to sentencing was disapproved in Contreras. Because nothing in the record establishes the extent to which defendants' sentences were based upon a life expectancy analysis, we are unable to determine whether the imposed sentences necessarily violate the Eighth Amendment. Therefore, we vacate the sentences and remand the matter. On remand, the trial court should determine whether defendants' sentences allow for a meaningful opportunity for release and the possibility of reintegrating into society as productive and respected members. If the sentences do, the trial court may reinstate them with the appropriate reasoning. If the sentences do not, defendants should be resentenced. Either way, the trial court should also develop the record on legislative changes since the last resentencing, as discussed in Contreras.
4. On page 9, after the first partial paragraph ending "in light of Contreras," insert the following as a new paragraph:
The People argue that defendants' judgments were final, defendants are not entitled to the benefits of Proposition 57, and the issues which they may raise are limited to the scope of remand. (People v. Kemp (1974) 10 Cal.3d 611, 614 [retrial on penalty phase after overturning death sentence on habeas corpus does not allow defendant to raise guilt issues on subsequent appeal]; In re Pine (1977) 66 Cal.App.3d 593, 595 [a judgment becomes final at "that point at which the courts can no longer provide a remedy on direct review"]; In re Spencer (1965) 63 Cal.2d 400, 405 ["finality" is "that point at which the courts can no longer provide a remedy to a defendant on direct review"]; People v. Murphy (2001) 88 Cal.App.4th 392, 396-397 ["in an appeal following a limited remand, the scope of the
issues before the court is determined by the remand order."]; People v. Webb (1986) 186 Cal.App.3d 401, 410 ["we specifically affirmed the judgment of conviction in the prior appeal and remanded only for resentencing. Defendant cannot now be permitted to make a direct attack upon his convictions."]; People v. Smyers (1969) 2 Cal.App.3d 666, 667-668 [After a limited remand court may not "consider defendant's arguments regarding alleged trial errors."].) We agree that the issues which defendants may raise are limited to the scope of remand; however, we do not agree that defendants' judgments are final such that they are not entitled to the benefits of Proposition 57.
5. On page 9, in the paragraph which begins "Because defendants' original sentences," delete "they timely appealed" in the first line and replace with "defendants timely appealed . . . ."
6. On page 9, in the paragraph which begins "Because defendants' original sentences," strike the last sentence which begins "Because their judgments" and ends "a transfer hearing." Replace with the following:
Once again, we are vacating defendants' sentences and remanding for further action. While that action is limited to the scope of this remand, because Proposition 57 favors rehabilitation over punishment for juveniles and requires procedural changes to ensure that juveniles undergo a fitness hearing prior to being tried in adult court, we conclude that defendants are entitled to the benefits of Proposition 57 before they may be resentenced in adult court. (Lara, supra, 4 Cal.5th at p. 306 ["While a person convicted of serious crimes in adult court can be punished by a long prison sentence, juveniles are generally treated quite differently, with rehabilitation as the goal."].)
7. On page 11, third line from the top of the page, strike "We agree with the Vela court's remedy and find it applicable in this case." Replace with the following paragraph:
We agree with the Vela court's remedy and find it applicable in this case if no transfer hearing was conducted. The People initially claimed that it was "unclear from the record currently available to respondent whether this is a direct file case requiring transfer to the juvenile court for a Proposition 57 hearing." However, they subsequently asserted that defendants had a transfer hearing because this case originated before Proposition 21's enactment of the direct filing which Proposition 57 was enacted to correct. Because the case is being remanded, the trial court is in the best position to determine whether a transfer hearing has already been conducted.
8. On page 11, in the first paragraph under "III. DISPOSITION," strike the second sentence which begins "The cause is remanded" and ends "filing of the remittitur," and replace with the following:
The cause is remanded to the juvenile court with directions to conduct a transfer hearing, if none was previously conducted, no later than 120 days from the filing of the remittitur.
9. On page 11, in the first paragraph under "III. DISPOSITION," strike the last sentence which begins "The criminal court" and ends "within this opinion." Replace with the following:
The criminal court is then directed to determine whether defendants' vacated sentences violate the Eighth Amendment. If they do not, the court may reinstate them with the appropriate reasoning. If they do, the court should conduct a resentencing hearing within 60 days as discussed within this opinion.
10. On page 12, under the signature line for "RAMIREZ," delete the word "Acting" before "P. J."
Except for the above modifications, the opinion remains unchanged. There is no change in judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. MILLER
J.
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. RIF72231) OPINION APPEAL from the Superior Court of Riverside County. Michele D. Levine, Judge. Conditionally reversed and remanded with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Mario Ortega. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant Jimmy Arevalo. Xavier Becerra, Attorney General, and Susan Elizabeth Miller and Amanda Leigh, Deputy Attorneys General, for Plaintiff and Respondent.
In December 1998, defendants and appellants Mario Ortega and Jimmy Arevalo were convicted by separate juries of carjacking, kidnapping and sexual offenses they committed as 16 and 15 year olds, respectively. Defendants' sentences (55 years to life) were vacated when the People conceded that defendants were entitled to resentencing in compliance with the California Supreme Court's decision in People v. Caballero (2012) 55 Cal.4th 262 [juvenile's sentence violates Eighth Amendment rights against cruel and unusual punishment because it amounts to a de facto life without the possibility of parole (LWOP) sentence for nonhomicide crimes] (Caballero). On April 10, 2014, defendants were resentenced to indeterminate terms of 40 years to life. They appealed, contending that their sentences constitute de facto LWOP sentences in violation of the Eighth Amendment, and that Penal Code section 3051 violates their equal protection rights because it excludes juveniles tried as adults and sentenced under the One Strike law from a youth offender parole hearing after serving at most 25 years in prison. We rejected their contentions and affirmed on November 23, 2015. (People v. Ortega (Nov. 23, 2015, E061027 [nonpub. opn.].)
All further statutory references are to the Penal Code unless otherwise indicated.
On March 9, 2016, the California Supreme Court granted review of our decision (People v. Ortega (Mar. 9, 2016, No. S230917) ___ Cal.5th ___ ), and on June 13, 2018, review was transferred to this court to vacate the decision and reconsider the case in light of People v. Contreras (2018) 4 Cal.5th 349, 356 (Contreras). On June 15, 2018, we issued an order vacating our previous opinion and inviting the parties to submit supplemental briefing. Both the People and defendants did so. For the reasons stated below, we reverse the judgments and remand with directions.
I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND
The facts of the underlying crimes are not pertinent to the issues raised on appeal. Briefly, during the early morning hours of June 29, 1996, defendants Arevalo (born in October 1980; age 15) and Ortega (born in September 1979; age 16) carjacked two individuals, one male and one female, while they had stopped at a fast-food restaurant in the Casa Blanca area of Riverside. Defendants forced the male to drive to a secluded area where defendants (under the threat of shooting the victims) robbed the victims, repeatedly raped and sodomized the female, and forced her to orally copulate each defendant. Defendants claimed that what they were doing was part of a gang initiation. (See People v. Arevalo, supra, E024506, E024509 [nonpub. opn.].)
We have taken judicial notice of our opinion in defendants' first appeal, People v. Arevalo (June 28, 2001, E024506, E024509 [nonpub. opn.].
Separate juries convicted defendants of two counts each of kidnapping during a carjacking (§ 209.5), kidnapping to commit robbery (§ 209, subd. (b)), robbery (§ 211) and carjacking (§ 215), during all of which Ortega used a sawed-off rifle (§ 12022.5, subd. (a)), a principal was armed with a sawed-off rifle (as to Arevalo) (§ 12022, subd. (a)(1)), and both committed the crimes for the benefit of a street gang (§ 186.22, subd. (b)(1)). (See People v. Arevalo, supra, E024506, E024509 [nonpub. opn.].) The juries further convicted each defendant of forcible sodomy (§ 286, subd. (c)), forcible rape (§ 261, subd. (a)(2)), and four counts of forcible oral copulation in concert (§ 288a, subd. (d)). (See People v. Arevalo, supra, E024506, E024509 [nonpub. opn.].) As to each of these offenses, the juries found that Ortega used a sawed-off rifle, while, as to Arevalo, that a principal was armed with the weapon. The juries further found as to each sex offense that the defendants had kidnapped the female victim and substantially increased the risk of harm to her due to the movement (§ 667.61, subd. (d)(2)) and had acted in concert (§ 264.1). (See People v. Arevalo, supra, E024506, E024509 [nonpub. opn.].) Both defendants were sentenced to prison for eight consecutive life terms, two of which had a minimal term of 15 years before parole eligibility and six of which had a 25-year minimal term. In addition, defendant Arevalo was sentenced to seven years four months, and Ortega to 19 years four months. On appeal, this court affirmed defendants' convictions, but found the sentences were calculated in error. (See People v. Arevalo, supra, E024506, E024509 [nonpub. opn.].) Subsequently, defendant Ortega's sentence was corrected to 74 years four months to life, while defendant Arevalo's sentence was corrected to 62 years four months to life. These sentences were vacated when the People conceded that defendants were entitled to resentencing in compliance with the Caballero decision.
On April 10, 2014, the trial court conducted the resentencing hearing to comply with the Eighth Amendment. The court summarized the facts and referenced the applicable cases, specifically, Graham v. Florida (2010) 560 U.S. 48, 75 (Graham) [Eighth Amendment prohibits states from sentencing a juvenile convicted of a nonhomicide offense to life imprisonment without the possibility of parole] and Miller v. Alabama (2012) 567 U.S. 460, 470 [Even in homicide cases a mandatory sentence of life in prison without the possibility to parole imposed on a defendant who was under the age of 18 at the time of his or her crime violates the Eighth Amendment]. Additionally, the court reviewed and considered the life expectancy documents submitted by both sides, calculating defendants' life expectancies to be between 77 and 82. It observed that a sentence of 40 years to life "satisfies the Eighth Amendment and also . . . recognizes and respects the severity of the crimes and offenses." The court noted that if it imposed a 40 year-to-life sentence and 15 percent conduct credits were earned, the initial parole eligibility date would be after 34 years of imprisonment, when Arevalo would be 50 years old and Ortega would be 51 years old. The court added, "Even generously discounting their life expectancies to 70 due to their imprisonment, this would still leave them with a remaining life expectancy of 20 and 19 years respectively." Concluding that that period constituted a "meaningful length of time," the trial court opined that, even if no conduct credits were awarded, Arevalo would be eligible for parole at age 56 and Ortega at age 57, such that each would still have over a decade of remaining life expectancies. The court then sentenced both defendants to aggregate terms of 40 years to life.
II. DISCUSSION
A. The Trial Court Erred in Conducting a Life Expectancy Analysis in Sentencing Defendants.
Defendants contend their sentences violate the Eighth Amendment as interpreted by Contreras. We agree.
On February 26, 2018, the California Supreme Court considered whether a sentence of 50 years to life for a juvenile nonhomicide offender violates the Eighth Amendment. (Contreras, supra, 4 Cal.5th at p. 359.) In Contreras, the defendants were convicted of kidnapping and sexual offenses they committed as 16 year olds, receiving sentences of no less than 50 years to life. (Id. at p. 356.) Had they been sentenced to LWOP, or to a term of years more than natural life expectancy, for their crimes, their sentences would have violated the Eighth Amendment. (Graham, supra, 560 U.S. at pp. 74-75; Caballero, supra, 55 Cal.4th at pp. 267-268.) However, since their sentences provided them with an opportunity for parole within their expected natural lifetime, the Supreme Court was tasked with deciding whether the sentences still violated "the same Eighth Amendment principles that bar the imposition of LWOP for their crimes." (Contreras, supra, 4 Cal.5th at p. 360.)
The Attorney General urged the California Supreme Court to rule that "'any term of imprisonment that provides a juvenile offender with an opportunity for parole within his or her expected natural lifetime is not the functional equivalent of LWOP . . . .'" (Contreras, supra, 4 Cal.5th at p. 360.) The Court rejected this approach, finding that it "gives rise to a tangle of legal and empirical difficulties" (id. at p. 361-363) and is "misguided at a more fundamental level." (Id. at p. 364.) Instead, the Court found the reasoning in Graham instructive. (Contreras, supra, at pp. 364-369.) Per the Graham court, a lawful sentence is one that recognizes "a juvenile nonhomicide offender's capacity for change and limited moral culpability" (Graham, supra, 560 U.S. at p. 74); offers "hope of restoration" (id. at p. 70), "a chance for fulfillment outside prison walls," a "chance for reconciliation with society," and an "incentive to become a responsible individual." (Id. at p. 79.) Under the facts in Contreras, the California Supreme Court determined that a sentence of 50 years to life violates the Eighth Amendment under the standards articulated in Graham because it is the functional equivalent of LWOP because it does not allow the juvenile offender a realistic hope of release and the possibility of reintegrating into society as a productive and respected member. (Contreras, supra, at pp. 368, 373, 379.)
In this case, the trial court was aware of the Graham court's analysis of sentencing nonhomicide juvenile offenders and considered the factors deemed relevant in Graham. However, the court also considered and calculated defendants' life expectancies (between 77 and 82) in determining their sentences. This actuarial approach to sentencing was disapproved in Contreras. Because nothing in the record establishes the extent to which defendants' sentences were based upon the life expectancy analysis, we must vacate the sentences and remand for resentencing.
B. Defendants Are Retroactively Entitled to a Transfer Hearing.
Defendants contend the "Public Safety and Rehabilitation Act of 2016" (Proposition 57), passed in November 2016, applies retroactively to cases like theirs, because their case is not yet final on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 314.) We agree.
"'Historically, a child could be tried in criminal court only after a judicial determination, before jeopardy attached, that he or she was unfit to be dealt with under juvenile court law. Since 1975 the procedural requirements for fitness hearings have been established by [Welfare and Institutions Code] section 707.' [Citation.] The general rule used to be that 'any individual less than 18 years of age who violates the criminal law comes within the jurisdiction of the juvenile court, which may adjudge such an individual a ward of the court.' [Citation.] [¶] Amendments to former [Welfare and Institutions Code] sections 602 and 707 in 1999 and 2000, some by initiative, changed this historical rule. Under the changes, in specified circumstances, prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult. [Citations.] . . . [¶] Proposition 57 changed the procedure again, and largely returned California to the historical rule. 'Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors . . . can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. [Citation.]' [Citation.]" (Lara, supra, 4 Cal.5th at pp. 305-306.)
In Lara, the California Supreme Court concluded that Proposition 57's elimination of direct filing by the district attorney was an ameliorative change in the law that applied retroactively to "all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at p. 303-304, italics added.) In this case, defendants' judgments were not final at the time Proposition 57 was enacted: Defendants were convicted on December 8, 1998, and sentenced on February 26, 1999. They appealed and this court affirmed their judgments, but ordered a modification of their sentences. (See People v. Arevalo, supra, E024506, E024509 [nonpub. opn.].) The remittitur issued on August 31, 2001. Subsequently, defendants filed petitions for writ of habeas corpus (In re Figueroa (2018) 4 Cal.5th 576, 587 ["'a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment'"]) and the People conceded that defendants were entitled to resentencing in compliance with Caballero. On April 10, 2014, defendants were resentenced. Defendants appealed, we affirmed on November 23, 2015, and the Supreme Court granted review. On June 13, 2018, review was transferred to this court to vacate our decision and reconsider the case in light of Contreras.
Because defendants' original sentences were vacated and they timely appealed their April 2014 sentences, their judgments are not final. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 987 ["[I]n a criminal case, judgment is synonymous with the imposition of [a] sentence."]; 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."]; Burton v. Stewart (2007) 549 U.S. 147, 156 ["'Final judgment in a criminal case means sentence. The sentence is the judgment.'"].) Because their judgments are not final, defendants are entitled to the benefits of Proposition 57, specifically a transfer hearing.
Noting the "potential complexity in providing juveniles charged directly in adult court with a transfer hearing," the Lara court tacitly endorsed the remand procedure described by Division Three of this district in People v. Vela (2017) 11 Cal.App.5th 68 (Vela). (Lara, supra, 4 Cal.5th at p. 313.) In Vela, defendant was 16 years old when he was charged in "adult" criminal court and convicted of murder, attempted murder, and related firearm and gang enhancements. (Vela, supra, at p. 70-71.) While Vela's appeal was pending, Proposition 57 became effective. (Vela, supra, at p. 72.) Concluding that the statutory amendments under Proposition 57 apply retroactively, and that defendant was entitled to a transfer hearing, the Vela court considered the remedy. (Vela, supra, at p. 81-82.) Vela pressed for reversal of his convictions, while the Attorney General contended that "the failure to provide Vela with a juvenile transfer hearing constitutes only 'harmless error' given the nature of the charges and the underlying facts of this case." (Id. at p. 81.) Rejecting these remedies, the Vela court decided that the best approach was to conditionally reverse and remand with instructions. (Id. at pp. 81-82.) "[T]he Vela court ordered as follows: '. . . 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.' [Citation.]" (Lara, supra, 4 Cal.5th at p. 310.)
We agree with the Vela court's remedy and find it applicable in this case.
C. The Need to Correct the Second Amended Abstracts of Judgment Is Moot.
Although the parties concur that the second amended abstracts of judgment contain errors that require correction, this issue is moot because the matter is being remanded for resentencing. However, to the extent the third amended abstract of judgment matches the second amended abstract of judgment, the trial court shall make the necessary corrections. (People v. Buckhalter (2001) 26 Cal.4th 20, 41; People v. Mitchell (2001) 26 Cal.4th 181, 185.)
The parties agree that the second amended abstracts of judgment fail to reflect the correct amount of presentence custody credits; the correct date of the resentencing hearing; the correct year when defendants' offenses were committed; and that defendants are to pay $500 each in restitution, jointly and severally. --------
III. DISPOSITION
The judgment of the criminal court is conditionally reversed. The cause is remanded to the juvenile court with directions to conduct a transfer hearing no later than 120 days from the filing of the remittitur. If, at the transfer hearing, the juvenile court determines that it would have transferred defendants to a court of criminal jurisdiction, then the convictions shall be reinstated as of that date. The criminal court is then directed to conduct a resentencing hearing within 60 days as discussed within this opinion.
If, at the transfer hearing, the juvenile court determines that it would not have transferred defendants to a court of criminal jurisdiction, then defendants' criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing within its usual timeframe.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
Acting P. J. We concur: MCKINSTER
J. MILLER
J.