Opinion
C074438
02-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN JAMES PENN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SF116912A)
Defendant John James Penn appeals from a judgment entered after a jury found him guilty of the willful, deliberate, and premeditated murder of Ja. J. in violation of section 187, subdivision (a) of the Penal Code (unless otherwise set forth, statutory section references that follow are found in the Penal Code) and found to be true the allegations that defendant committed the murder while he was engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)(17)(A), that defendant personally used a firearm in the commission of the murder within the meaning of section 12022.53, subdivision (b) and that defendant personally used a firearm in the commission of the murder within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a).
The jury also found defendant guilty of the second degree robbery of Jo. J. (the brother of Ja. J.) in violation of section 211 and the jury found that the allegations that defendant personally used a firearm in the commission of the robbery within the meaning of section 12022.53, subdivision (b) and that defendant personally used a firearm in the commission of the robbery within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a) to be true.
The jury found the defendant guilty of the second degree robbery of Ja. J. in violation of section 211 and found that the allegations that defendant personally used a firearm in the commission of the robbery within the meaning of section 12022.53, subdivision (b) and that defendant personally used a firearm in the commission of the robbery within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a) were true.
The jury further found defendant guilty of an assault on Jo. J. with a firearm in violation of section 245, subdivision (a)(2) and found true the allegation that defendant personally used a firearm in the commission of the robbery within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a).
Finally, the jury found defendant guilty of being a minor in possession of a firearm in violation of section 12101, subdivision (a)(1) (now renumbered as section 29610), a misdemeanor.
Defendant appeals. He asserts the trial court erred by: (1) refusing to discharge Juror No. eight after that juror's arguable contacts with third parties during trial, (2) failing to instruct the jury sua sponte on defendant's alleged withdrawal from the conspiracy to rob Ja. J, (3) his trial counsel was ineffective for failing to argue that his sentence constituted cruel and unusual punishment and for failing to argue for concurrent rather than consecutive sentences for the murder of Ja. J. and the robbery of Jo. J and, (4) his sentence for the robbery of Ja. J. should be stayed under section 654. Finally, he asserts in supplemental briefing that the passage of Proposition 57 requires remand to the juvenile court for a determination of his fitness to stand trial as an adult and that the passage of Senate Bill No. 620 (SB 620) requires remand so that the trial court may exercise its newfound discretion in regard to the firearm enhancement sentences.
The People agree that the sentence for the robbery of Ja. J should be stayed pursuant to section 654 and that the passage of SB 620 requires remand for resentencing on the firearm enhancements. We accept the People's concessions. We also find that pursuant to the Supreme Court's recent decision in People v. Superior Court (Lara) (Feb. 1, 2018, S241231) ___ Cal.App.5th ___, 2018 Cal. LEXIS 726, we must conditionally reverse the defendant's conviction and sentence and remand the case to the juvenile court for a determination of defendant's fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) Having found no merit in defendant's remaining arguments as discussed post, if defendant is found unfit for juvenile court treatment, the conviction will be reinstated, and he will be subject to resentencing consistent with this opinion. If juvenile treatment is appropriate, the juvenile court is ordered to treat defendant's convictions as juvenile adjudications and impose an appropriate juvenile disposition after a dispositional hearing.
FACTS AND PROCEEDINGS
We relate the basic facts of the crimes here. Further details and procedural matters will be discussed in connection with defendant's specific contentions as addressed herein.
The Prosecution's Case
Prior to the crimes at issue herein, defendant acquired a .25 caliber handgun from a third party. He intended to use this handgun to rob Ja. J. to obtain a gun and/or a bullet-proof vest which Ja. J. had offered for sale. Defendant also wanted a second gun for the robbery because he thought his gun was too small. Defendant and four others met at a bus station on the day of the robbery and defendant told the group they would commit a robbery in the backyard of a vacant house and would be getting a vest and maybe a gun. Defendant and the others took the bus to the area of the vacant house and, while on the bus, one member of the group sent a text message to his ex-girlfriend writing that he was on the way to commit a robbery.
When everyone arrived at the designated house, they discovered the house was no longer vacant, but they found another vacant house that would suit their purposes. They also discussed disguising themselves for the robbery.
Ja. J. and Jo. J. picked defendant up and the three of them traveled to the vacant house and parked. The four other members of defendant's group were in front of the house. After they parked, defendant handed Ja. J. the gun, who examined the gun and then returned it to defendant. Defendant told Ja. J. he wanted to trade the gun for the vest, and the three of them then got out of the car.
Defendant briefly spoke with the others, telling them he had seen the vest and had let Ja. J. handle the gun so that he would think nothing was wrong. Defendant, Ja. J., and one of defendant's colleagues went into the backyard, and Ja. J. signaled Jo. J. to stay out front with the other young men. Once in the backyard, defendant fired two shots in the air and then informed Ja. J. that he was being robbed and not to move. Defendant stole a gold chain from Ja. J.'s neck. Ja. J. protested, and defendant went through Ja. J.'s pockets, taking his wallet and keys. Defendant gave the keys to his friend and told him to have Jo. J. get the vest out of the car.
Jo. J. heard the gunshots, but assumed Ja. J. was test firing the gun. Defendant's colleague from the backyard went to Jo. J. with Ja. J.'s keys and told Jo. J. to "Go get that thing." Jo. J. wasn't sure what defendant's friend was talking about, but Jo. J. found the vest in the backseat of Ja. J.'s car and he and the other man took it into the backyard. Defendant was still holding Ja. J. at gunpoint, but then pointed the gun at Jo. J. and told him it was a robbery and to put his hands up. Ja. J. and Jo. J. argued with each other about being robbed, and defendant told Jo. J. to get down on the ground. Ja. J. said, "No" and rushed defendant in an attempt to get the gun from him. A struggle ensued, and the gun went off, shooting Ja. J. in the head.
Defendant asked Jo. J. if he wanted to get shot and instructed him to get on the ground. Jo. J. complied, and defendant searched his pockets and found some money and ecstasy pills. In all, defendant took $11 from Jo. J.
Defendant and the others ran away from the backyard, and defendant kept the gun pointed at Jo. J. as he backed out of the yard with the bullet proof vest. Defendant and the others then ran, and defendant put the gun and vest in some bushes near where some children were playing. The children saw them flee.
Once the others were gone, Jo. J. checked on Ja. J. and began to drag his body to the front yard, screaming for help. A neighbor heard Jo. J. and called 911. Ja. J. suffered a single gun-shot wound to the head and died of his injuries several days later.
The Defendant's Case
Defendant testified on his own behalf and a good portion of his testimony was consistent with the prosecution's case and will only be recounted here to the extent it diverges in a material way.
Defendant admitted planning to rob Ja. J., although he said he felt pressured to do so by his friends. Defendant and his friends attempted to obtain another gun for the robbery, but were unsuccessful. Defendant testified that because they could not secure the second gun, they called off the robbery and decided to just do a trade of his gun for the bullet proof vest.
After defendant fired the two test shots in the backyard, he handed Ja. J. the gun and asked Ja. J. if they would do the trade. Ja. J. agreed. Defendant told his friend to get the vest from Jo. J. and bring it to the backyard. After defendant's friend left, Ja. J. asked defendant about the operation of the gun, and defendant showed him how to remove the clip. When defendant's friend and Jo. J. returned to the backyard, defendant saw his friend take the vest from Jo. J. In response, Ja. J. jumped on defendant and attempted to take the gun from him. Defendant tried to push Ja. J. off the gun, and the gun went off shooting Ja. J. Defendant's other friends who had entered the backyard grabbed him and told him to go. Everyone ran, and defendant discarded the vest and gun in a bush. Defendant did not intend to shoot Ja. J.
Defendant denied taking anything from Jo. J. or pointing the gun at him or otherwise threatening him. When defendant learned the police were looking for him, he turned himself in.
After the jury returned the verdicts noted above, the Court sentenced defendant to a total of 48 years to life in state prison.
DISCUSSION
I
The Retention of Juror No. Eight
Defendant argues the trial court's failure to dismiss Juror No. eight, who had complained that defendant's associates were trying to intimidate Juror No. eight during a break in the trial, violated the 6th and 14th Amendments of the U.S. Constitution. We disagree.
Defendant was constitutionally entitled to an impartial jury where every member was willing to decide the case solely based upon the evidence presented in court. (People v. Harris (2008) 43 Cal.4th 1269, 1303 (Harris) [citing In re Hamilton (1999) 20 Cal.4th 273, 294].) If even one juror was improperly influenced, defendant would be entitled to a reversal of his conviction. (Harris, at p. 1303.)
" 'A sitting juror's involuntary exposure to events outside the trial evidence, even if not "misconduct" in the pejorative sense, may require . . . examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation. [Citations.]' (In re Hamilton, supra, 20 Cal.4th at pp. 294-295.) '[T]ampering contact or communication with a sitting juror . . . usually raises a rebuttable "presumption" of prejudice. [Citations.]' (Id. at p. 295.) 'Still, whether an individual verdict must be overturned for jury misconduct or irregularity " ' "is resolved by reference to the substantial likelihood test, an objective standard." ' " [Citation.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]' (Id. at p. 296.) We independently determine whether there was such a reasonable probability of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 303.)" (Harris, supra, 43 Cal.4th at pp. 1303-1304.)
During a break in the testimony of Jo. J., Juror No. eight spoke to the bailiff, and the bailiff informed the judge that Juror No. eight had information to share with the judge. Juror No. eight, the judge and counsel met in chambers where Juror No. eight said that during the lunch break he had used a restroom in the court house. Juror No. eight had seen some of "[D]efendant's friends hanging . . . around the corner of the restroom." When Juror No. eight went into the restroom he saw a tall man with dreadlocks at the urinal and he recognized this man from the courtroom. After Juror No. eight entered a stall, one or two other people entered the restroom and started "dissing the - the gentleman on the stand, how he was a liar and he was this and he was that. And there were some other gang comments made that, uh - I didn't think was appropriate, considering they knew I was in there."
Juror No. eight did not see who spoke, and they were gone by the time he left the stall. He did not know if they had been in the courtroom, but he did feel that they knew each other. Juror No. eight said defendant's friends had been "hanging around the jurors[,]" and he did not "think it's appropriate." He acknowledged the friends were in a public space, but he still thought their behavior had been inappropriate.
Specific to the bathroom incident, Juror No. eight was unable to articulate what gang stuff he had heard, stating, "I don't know the phrases. They just said that - you know, he was a fricking creep, and squirrelly, and stuff like that." These individuals did not threaten the witness or the jurors, but Juror No. eight felt "[t]he intimidation factor was differently [sic] there." Juror No. eight said this incident would not affect his decision on the credibility of the testimony of the witness.
Regarding the number of defendant's friends outside the courtroom in general, Juror No. eight said there were lots of them, both men and women, and that he tried to avoid eye contact with them. He thought there were maybe 10 or 11 of them and that they had spoken with defense counsel at different times. He further said his decision in the case would not be affected by what he had seen or heard outside the courtroom, but that he was concerned for the woman jurors because the group could be very intimidating.
Juror No. eight did not draw any conclusions regarding defendant's guilt or innocence as a result of Juror No. eight's experiences, and the juror said, "I'm waiting to hear all the evidence." These experiences "wouldn't be a factor in the deliberation" and would not be discussed with other jurors.
In response to this, defense counsel asked to have Juror No. eight excused because, although he professed he would not be impacted by the experiences, "I don't know that anyone could put an experience behind them like that and still be fair." He argued that although he believed that Juror No. eight's "answers were earnest" and that although Juror No. eight believed he could set the experience aside, that he "really just [did not] think anyone could put that experience aside." The prosecution opposed his removal because Juror No. eight said, "he could still be fair and he hadn't formed any opinion."
The trial court denied the request to remove Juror No. eight stating on the record:
"[T]he Court not only heard his responses but would like to also note for the record that in his responses he seemed quite resolute and very - I felt forthright in indicating that he - nothing of the event would cause him to feel that he has made certain determinations in the case or could not continue to be fair to both sides. As he said, and I think quite strongly and resolutely, and directly to all of us, that he yet needs to hear all the evidence in this case before making up his mind. And so the motion to remove juror number eight is denied."
Defense counsel did not argue that Juror No. eight's comments showed that he was somehow prejudiced against defendant.
As we recognized above, a juror's involuntary contact with a third party attempting to influence that juror creates a presumption that juror was prejudiced by that contact. We are not however convinced that the record establishes that defendant's friends were in fact trying to influence Juror No. eight or were simply talking outside the courtroom without regard to who might be listening. Even so, we will treat Juror No. eight's experience as creating a presumption of prejudice and analyze the issue accordingly.
Doing so, we find that there is no substantial likelihood that Juror No. eight was influenced by the comments he overheard or was biased against the defendant based on what he reported to the court. (See Harris, supra, 43 Cal.4th at pp. 1303-1304.) The trial court promptly investigated the circumstances regarding the third party contact, and as observed by the trial court, Juror No. eight resolutely professed his continuing ability to impartially judge the case. The court "may properly rely on such statements to determine whether a juror can maintain his or her impartiality after an incident raising a suspicion of prejudice" (id. at p. 1304), and we defer to such credibility determinations when they are supported by substantial evidence. (Id. at p. 1305.) There was nothing in Juror No. eight's contact that is of such an extraordinary nature that his statements that he would remain impartial should be disregarded.
The situation here was less extreme than other cases wherein the California Supreme Court has found the presumption rebutted, such as death threats in Harris, supra, 43 Cal.4th at pages 1305-1306 or suspicious notes left by a friend of a juror in People v. Foster (2010) 50 Cal.4th 1301, 1342.
This analysis is not altered by defendant's arguments concerning Juror No. eight's description of defendant's friends as using gang speech or gang intimidation. Moreover defendant's citation to People v. Turner (2001) 90 Cal.App.4th 413, 420 is of no moment dealing as it does with peremptory challenges of prospective jurors based on group bias. There was none of that here.
II
Instructions on Withdrawal from the Conspiracy to Commit Robbery
Defendant complains the trial court erred in failing to instruct the jury that he was not responsible for the actions of his "co-conspirators" after his withdrawal from the conspiracy, those actions being the alleged act of his confederate to forcibly take the bullet proof vest from Jo. J. The People counter that the trial testimony established that the conspiracy had ended, not that defendant withdrew from it, so that there was no error in failing to instruct on withdrawal. We agree.
The trial court only had a duty to instruct on the defense of withdrawal if defendant relied on the asserted defense or there was "substantial evidence" supporting that defense and it was "not inconsistent" with defendant's case theory. (People v. Martinez (2010) 47 Cal.4th 911, 953.) The trial court had no sua sponte duty to instruct on a defense supported by " 'minimal and insubstantial' evidence." (See People v. Barnett (1998) 17 Cal.4th 1044, 1152.) Here, there was simply no evidence from which a "reasonable juror could infer" that defendant withdrew from an ongoing conspiracy to rob his victims. (Id. at pp. 1151-1152.)
The evidence at trial established that, while defendant and his friends originally conspired to rob Ja. J., that conspiracy ended when, not having access to a better weapon, the defendant and the others decided to simply trade defendant's gun for Ja. J.'s bullet proof vest. Thereafter, the events moved forward and defendant personally participated in each of them, that is, the murder of Ja. J., the robbery of Ja. J., the robbery of Jo. J., the assault with a firearm on Jo. J. and the defendant's possession of a firearm by a minor. There was no evidence that he was convicted of any of these offenses based on the acts of co-conspirators pursuant to an ongoing conspiracy. After the group agreed not to rob Ja. J., this was nothing more than a group of young men participating together in a series of crimes. To the extent that there was arguably a conspiracy originally, it had ended by the time these crimes were committed by defendant.
Moreover, defendant unequivocally and consistently testified at trial that he and his friends agreed not to rob Ja. J. and instead opted to trade defendant's gun for the bullet proof vest. Likewise, defendant's attorney argued there was no conspiracy to rob and what happened was not a robbery. Defendant has not shown error for failure to instruct on withdrawal where his own testimony, if believed, established the conspiracy to rob had ended by the time of these confrontations, not that he "withdrew" from an ongoing conspiracy such that he was not responsible for the acts of others.
There was no error.
III
Ineffective Assistance of Counsel
Defendant argues this court should remand his case for a new sentencing hearing because his trial counsel rendered ineffective assistance in failing to argue his sentence of 48 years to life constituted cruel and unusual punishment and also for not arguing for concurrent sentences on the felony murder of Ja. J. and the robbery of Jo. J.
Defendant is guaranteed the right to effective assistance of counsel by the Sixth Amendment to the U.S. Constitution and article I, section 15 of the California Constitution. (People v. Lucas (1995) 12 Cal.4th 415, 436.) To establish a claim for ineffective assistance, defendant bears the burden of showing that his trial counsel's performance "fell below an objective standard of reasonableness under prevailing professional norms" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." (See People v. Kelly (1992) 1 Cal.4th 495, 519-520 (Kelly) [citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 ]; Lucas, at p. 436.) On direct appeal, the court reviews whether the record contains an explanation for the challenged conduct. (Kelly, at p. 520.) Where the record is silent on the issue, relief will only be available where " 'there simply could be no satisfactory explanation.' " (Ibid. [citing People v. Jackson (1989) 49 Cal.3d 1170, 1188, citing People v. Pope (1979) 23 Cal.3d 412, 426].) "A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (Ibid. [citing People v. Milner (1988) 45 Cal.3d 227, 238].)
The record does not disclose why trial counsel did not specifically argue that a 48-year-to-life sentence constituted cruel and/or unusual punishment or argue for concurrent sentences for the murder of Ja. J. and the robbery of Jo. J. Nevertheless, as we explain, there were reasonable tactical grounds for not doing so, precluding a finding that there could be no satisfactory explanation for counsel not making these arguments. Accordingly, we do not find that defendant failed to receive effective assistance of counsel. Defendant's contentions must be denied. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A. Defendant's Sentence of 48 Years to Life
Defendant complains trial counsel's performance was deficient for failing to make the argument that the Court's imposition of a sentence of 48 years to life constituted cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution and article I, section 17 of the California Constitution because it was "grossly disproportionate to his individual culpability."
Defendant's trial counsel filed a detailed sentencing brief arguing that a sentence of life without the possibility of parole was unconstitutional and, in addition, that defendant had a right to a sentence that would allow him a parole hearing within his lifetime. While not specifically challenging a 48 year sentence, counsel did make the point to the court, both in briefing and in argument. Thus, in effect, defendant did have the benefit of an argument that, however many minimum number of years were assessed the sentence would have to allow him a chance for parole within his lifetime. While a sentence of 48 years minimum is long, it still allows for defendant's parole while he was in his sixties, an age within his reasonable life expectancy.
In response to these arguments, the court declined to impose an LWOP sentence, noting its consideration of the circumstances in mitigation, including defendant's lack of a prior record and his age at the time of the crime. While defendant's sentence is substantial, so were his crimes including his being found guilty of ending the life of another person. Counsel was not required to risk alienating the court and jeopardizing his argument against a sentence of life without the possibility of parole or its equivalent by further arguing that a reduced sentence allowing for the possibility of parole also constituted cruel and/or unusual punishment. This was a reasonable tactical decision, one intended to avoid alienating the trial court or shifting the focus of the sentencing away from counsel's primary goal of avoiding a life without the possibility of parole sentence for defendant.
B. Consecutive Sentences
Defendant also argues trial counsel rendered ineffective assistance in failing to argue for concurrent sentences on the felony murder of Ja. J. and the robbery of Jo. J. Defendant was sentenced to 35 years total for the felony murder of Ja. J. with the firearm enhancement and 13 years total for the robbery of Jo. J. with the firearm use enhancement. The trial court ordered these sentences be served consecutively for a total of 48 years to life. For the very same reasons discussed, supra, having successfully avoided the LWOP sentence on the felony murder charge, we cannot say trial counsel's decision not to argue for concurrent sentencing on these convictions is without any satisfactory explanation. (Kelly, supra, 1 Cal.4th at p. 520.)
IV
Stay Pursuant to Penal Code Section 654
The People have conceded the three year sentence for the robbery of Ja. J. (derived from Count 3), which had been ordered to be served concurrently with the sentence for the felony murder of Ja. J. should have been stayed under section 654. We will order that execution of the sentence on this offense be stayed pursuant to section 654 and direct the trial court to modify any new abstract of judgment accordingly.
V
Retroactive Application of Proposition 57
Defendant argues in supplemental briefing that the passage of Proposition 57 requires remand of his case for a determination by the juvenile court of whether his case should proceed in juvenile or adult court. He contends if the juvenile court declines to find his case appropriate for adult court, his conviction must be reversed and his case processed through the juvenile system. The People disagree, arguing the relevant portion of Proposition 57 does not apply retroactively to cases filed before its enactment.
In People v. Superior Court (Lara), supra, ___ Cal.App.5th ___, 2018 Cal. LEXIS 726, the California Supreme Court determined whether the requirement to conduct a transfer hearing in juvenile court in the first instance applies to a defendant charged in adult court prior to effective date of Proposition 57. (Id. at p. *7.) It agreed with the trial court's determination that the inference of retroactivity first described in In re Estrada (1965) 63 Cal.2d 740 applied to extend the benefits of Proposition 57 to every case to which it could constitutionally apply. (Id. at pp. *12-14.) It also approved of the procedure implemented by the Vela court (People v. Vela (2017) 11 Cal.App.5th 68) as "readily understandable" and capable of "implement[ation] . . . without undue difficulty." (Id. at pp. *21-22.)
Therefore, defendant is entitled to what was previously referred to as a "fitness hearing" in juvenile court to determine whether his case should proceed through the juvenile justice system or be transferred back to adult court. Consistent with the approach taken by the Vela court (see id. at pp. *15-16 [quoting Vela order]), we will conditionally reverse defendant's conviction and sentence, and we will transfer the case to the juvenile court for a transfer hearing. (Welf. & Inst. Code, §707.) If the juvenile court determines it would have transferred the case to adult court, then defendant's case will be transferred to adult court and his conviction and sentence (to the extent not inconsistent with this opinion) shall be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).)
Alternatively, if the juvenile court finds that it would not have transferred defendant to adult court, it shall treat defendant's convictions as juvenile adjudications and enter appropriate findings consistent with Welfare and Institution Code section 702. (Welf. & Inst. Code, §§ 602 [defining ward], 702 [wardship determination].) It shall thereafter impose an appropriate disposition after a dispositional hearing. (Welf. & Inst. Code, § 706.)
VI
Retroactive Application of SB 620
Defendant argues in his second supplemental brief that the passage of SB 620 requires remand so that the trial court may exercise its newfound discretion regarding the imposition of sentence for the firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subd. (b)), which were previously mandatory. The People concur that remand is necessary "for limited purpose of giving the superior court an opportunity to consider striking the section 12022.53 and section 12022.5 enhancements." We accept this concession and find SB 620 retroactive as explained in People v. Woods (Jan. 26, 2018, C081813) ___ Cal.App.5th ___, 2018 Cal.App. LEXIS 68, pages *1-4 [SB 620 retroactive to firearm enhancement cases without final judgments]. Therefore, we will order remand to allow the trial court to exercise its sentencing discretion, as needed under the circumstances described post.
DISPOSITION
Consistent with this opinion, we conditionally reverse defendant's convictions and sentence and remand the matter to the juvenile court for a transfer hearing wherein the court will determine defendant's fitness for treatment within the juvenile justice system. (Welf. & Inst. Code, § 707.) If defendant is found unfit for juvenile court treatment, the case will be transferred to adult court and his convictions reinstated. He will then be subject to resentencing on the firearm enhancement counts and his sentence modified to stay execution of the sentence on Count 3 pursuant to Penal Code section 654. The trial court shall prepare an amended abstract of judgment reflecting the new resulting sentence and forward it to the Department of Corrections and Rehabilitation.
If defendant is found fit for juvenile court retreatment, the juvenile court is ordered to treat defendant's convictions as juvenile adjudications and impose an appropriate juvenile disposition after a dispositional hearing. (Welf. & Inst. Code, §§ 702 [§ 602 wardship determination], 706 [disposition hearing].)
HULL, J.
We concur:
RAYE, P. J.
MURRAY, J.