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In People v. Vela (2018) 21 Cal.App.5th 1099, 1113, 230 Cal.Rptr.3d 880, for example, the Court of Appeal conditionally reversed the judgment and remanded the matter to the juvenile court for it to conduct a transfer hearing.
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G052282
03-28-2018
The PEOPLE, Plaintiff and Respondent, v. Adrian Raphael VELA, Defendant and Appellant.
Sharon M. Jones, Ventura, and Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier, Elizabeth M. Carino and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Sharon M. Jones, Ventura, and Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier, Elizabeth M. Carino and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.I
INTRODUCTION
Sixteen-year-old defendant Adrian Raphael Vela and one of his fellow gang members "hit up" (confronted) two suspected rival gang members. Vela's accomplice pulled out a gun and shot the two victims, killing one of them. The prosecutor directly filed charges against Vela in "adult" criminal court. The jury found Vela guilty of murder, attempted murder, and found true the related firearm and gang allegations.
Vela makes several interrelated claims of instructional error concerning accomplice liability. Vela also raises two constitutional challenges to his 72 years to life sentence. In the unpublished parts of this opinion, we will find that the trial court committed no instructional errors. Further, Vela's sentence does not violate either the equal protection clause or the Eighth Amendment.
In the published portion of this opinion, we conditionally reverse the judgment. Due to the electorate's recent approval of Proposition 57, which emphasized juvenile rehabilitation, prosecutors can no longer directly file charges against a minor in an "adult" criminal court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult, after conducting a transfer hearing, taking into account various factors such as the minor's age, maturity, criminal sophistication, and his or her likelihood of rehabilitation. We also address the retroactivity of Senate Bill No. 620 (2017-2018 Reg. Sess.) as enacted, which made changes to two firearm sentencing enhancement statutes, Penal Code sections 12022.5, subdivision (c), and 12022.53, subdivision (h). (Stats. 2017, ch. 682, §§ 1, 2, eff. Jan. 1, 2018.)
We find that Vela is retroactively entitled to a transfer hearing because his case is not yet final on appeal. If, after conducting the hearing, the juvenile court judge determines that Vela's case should be transferred to a court of criminal jurisdiction, then his convictions will be reinstated. The court is then to resentence Vela within the bounds of its discretion as discussed further within this opinion. But if the juvenile court determines that Vela is amenable to rehabilitation, and should remain within the juvenile justice system, then his convictions will be deemed juvenile adjudications. The juvenile court is then to impose an appropriate disposition within its discretion under juvenile court law.II
See footnote *, ante .
III
DISCUSSION
See footnote *, ante .
D. The Effect of Proposition 57
Although Vela was 16 years old when he committed these offenses, the Orange County District Attorney chose to file the charges directly in "adult" or criminal court. At that time, the district attorney was permitted to do so.
While this appeal was pending, Proposition 57, also known as "The Public Safety and Rehabilitation Act of 2016," became effective. Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors—which would include Vela—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. ( Welf. & Inst. Code, § 707, subd. (a)(1).)
Further undesignated statutory references will be to the Welfare and Institutions Code.
After we filed an unpublished opinion affirming the judgment, Vela filed a petition for rehearing contending that Proposition 57 applies retroactively to his case. ( In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) Ordinarily, this court will not address an issue that has been raised for the first time in a petition for rehearing. ( People v. Holford (2012) 203 Cal.App.4th 155, 136 Cal.Rptr.3d 713.) However, for good cause we may do so. ( Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 338, fn. 10, 125 Cal.Rptr.3d 556.) This court granted the petition.We hold that: 1) the amendments to the Welfare and Institutions Code that require a juvenile transfer hearing before a minor may be prosecuted and sentenced in a criminal court apply retroactively; and 2) the appropriate resolution is a conditional reversal dependent on the outcome of a juvenile transfer hearing on remand.
1. Proposition 57 applies retroactively.
The Legislature ordinarily makes laws that will apply to events that will occur in the future. Accordingly, there is a presumption that laws apply prospectively rather than retroactively. But this presumption against retroactivity is a canon of statutory interpretation rather than a constitutional mandate. ( Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1224, 246 Cal.Rptr. 629, 753 P.2d 585.) Therefore, the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication. ( Tapia v. Superior Court (1991) 53 Cal.3d 282, 311, 279 Cal.Rptr. 592, 807 P.2d 434 (dis. opn. of Mosk, J.).) In order to determine if a law is meant to apply retroactively, the role of a court is to determine the intent of the Legislature, or in the case of a ballot measure, the intent of the electorate. ( People v. Conley (2016) 63 Cal.4th 646, 659, 203 Cal.Rptr.3d 622, 373 P.3d 435.)
a. The purpose of the juvenile justice system is to rehabilitate minors.
Before we consider the intent of Proposition 57, a brief discussion of some of the distinctions between the juvenile justice system and the criminal justice system is in order. Generally, all of the laws regarding juvenile delinquency proceedings are included within the Welfare and Institutions Code, while other code sections—primarily the Penal Code—define the offenses. "Significant differences between the juvenile and adult offender laws underscore their different goals: The former seeks to rehabilitate, while the latter seeks to punish." ( In re Julian R. (2009) 47 Cal.4th 487, 496, 97 Cal.Rptr.3d 790, 213 P.3d 125.)
Notably, the presumption against retroactivity is incorporated within the preliminary provisions of the Penal Code and other code sections, but not within the Welfare and Institutions Code. (See Pen. Code, § 3 ; Civil Code, § 3 ; Code Civ. Proc. § 3.)
Generally, any person under the age of 18 who is charged with violating a law is considered a "minor." (§ 602.) A "juvenile court" is a separate, civil division of the superior court. (§ 246.) A prosecutor charges a minor with an offense by filing a juvenile petition, rather than a criminal complaint. (See §§ 653.7, 655.) Minors "admit" or "deny" an offense, rather than plead "guilty" or "not guilty." (§ 702.3.) There are no "trials," per se, in juvenile court, rather there is a "jurisdictional hearing" presided over by a juvenile court judge. (§ 602.) The jurisdictional hearing is equivalent to a "bench trial" in a criminal court. (See Cal. Rules of Court, rule 5.780.) Although a juvenile court judge adjudicates alleged law violations, there are no "convictions" in juvenile court. (§ 203.) Rather, the juvenile court determines—under the familiar beyond the reasonable doubt standard and under the ordinary rules of evidence—whether the allegations are "true" and if the minor comes within its jurisdiction. (See § 602 et seq.)
There is no "sentence," per se, in juvenile court. Rather, a judge can impose a wide variety of rehabilitation alternatives after conducting a "dispositional hearing," which is equivalent to a sentencing hearing in a criminal court. (§ 725.5; In re Devin J. (1984) 155 Cal.App.3d 1096, 1100, 202 Cal.Rptr. 543.) In the more serious cases, a juvenile court can "commit" a minor to juvenile hall or to the Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA). In order to commit a minor to the DJJ, the record must show that less restrictive alternatives would be ineffective or inappropriate. ( In re Teofilio A . (1989) 210 Cal.App.3d 571, 576, 258 Cal.Rptr. 540.) The DJJ, rather than the court, sets a parole consideration date. DJJ commitments can range from one year or less for nonserious offenses, and up to seven years for the most serious offenses, including murder. (See Cal. Code Regs, tit. 15, § 4951 - 4957.) A minor committed to DJJ must generally be discharged no later than 23 years of age. (§ 607, subd. (f).)
b. Discretionary direct filing by prosecutors began with Proposition 21.
Prior to Proposition 57, rather than filing a juvenile petition, a prosecutor could, for certain offenses, choose to directly file a criminal complaint against a minor 14 years of age or older in criminal court. (Former § 707, subd. (d), repealed by Initiative Measure (Prop 57, § 4.2, approved Nov. 8, 2016, eff. Nov. 9, 2016.) Discretionary direct filing was the result of a previous ballot measure, Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. ( Manduley v. Superior Court (2002) 27 Cal.4th 537, 549, 574, 117 Cal.Rptr.2d 168, 41 P.3d 3 ( Manduley ).)) Among other provisions, "Proposition 21 revised the juvenile court law to broaden the circumstances in which minors 14 years of age and older can be prosecuted in the criminal division of the superior court, rather than in juvenile court. [The initiative], authorize[d] specified charges against certain minors to be filed directly in a court of criminal jurisdiction, without a judicial determination of unfitness under the juvenile court law." ( Ibid ., italics added.) In Manduley , the Supreme Court upheld Proposition 21 against a variety of challenges to the prosecutor's discretionary authority to directly file charges: "The decision to file charges in criminal court [against a minor] is analogous to a prosecutor's decision to pursue capital charges against a defendant." ( Id . at p. 570, 117 Cal.Rptr.2d 168, 41 P.3d 3.)Proposition 21 included various findings and declarations, among them: "While overall crime is declining, juvenile crime has become a larger and more ominous threat"; "The rehabilitative/treatment juvenile court philosophy was adopted at a time when most juvenile crime consisted of petty offenses. The juvenile justice system is not well-equipped to adequately protect the public from violent and repeat serious juvenile offenders"; "Juvenile court resources are spent disproportionately on violent offenders with little chance to be rehabilitated"; "Dramatic changes are needed in the way we treat juvenile criminals ... if we are to avoid the predicted, unprecedented surge in juvenile and gang violence." (Text of Proposition 21 < http://vigarchive.sos.ca.gov/2000/primary/propositions/21text.htm>.)
c. The express intent of Proposition 57 was to emphasize juvenile rehabilitation.
Sixteen years after Proposition 21, the electorate approved Proposition 57, which repealed both discretionary and mandatory direct filing by prosecutors and emphasized juvenile rehabilitation. During that time there had been a sea change in penology regarding the relative culpability and rehabilitation possibilities for juvenile offenders, as reflected in several judicial opinions. (See, e.g., Graham v. Florida (2010) 560 U.S. 48, 67, 130 S.Ct. 2011, 176 L.Ed.2d 825 [a juvenile cannot be sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense]; see also Miller v. Alabama (2012) 567 U.S. 460, 469-470, 132 S.Ct. 2455, 183 L.Ed.2d 407 [no more mandatory LWOP sentences for juveniles even for a homicide offense; there must be a consideration of youth-related factors in sentencing].) In Miller , the United States Supreme Court took note of the practice of prosecutors directly filing charges against minors: "The States next argue that courts and prosecutors sufficiently consider a juvenile defendant's age, as well as his background and the circumstances of his crime, when deciding whether to try him as an adult. But this argument ignores that many States use mandatory transfer systems. In addition, some lodge the decision in the hands of the prosecutors, rather than courts." ( Id. at p. 463, 132 S.Ct. 2455.)
In order to determine the intent of Proposition 57, we look not only to its provisions, but we may also look to the ballot materials in support of its passage. (See, e.g., Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901, 135 Cal.Rptr.2d 30, 69 P.3d 951 [official ballot pamphlet useful in interpreting voter initiatives].) Here, the ballot pamphlet "supporting Proposition 57 contains two express purposes related to juvenile offenders: ‘Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles'; and ‘Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.’ (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 2, p. 141.) In addition, the legislative analysis supporting Proposition 57 went so far as to state: ‘the only way a youth could be tried in adult court is if the juvenile court judge in the hearing [under Welfare and Institutions Code section 707, subdivision (a) ] decides to transfer the youth to adult court.’ " ( People v. Superior Court (Lara ) (2017) 9 Cal.App.5th 753, 776-777, 215 Cal.Rptr.3d 456, quoting Ballot Pamp., Gen. Elec. (Nov. 8, 2016) analysis of Prop. 57 by Legis. Analyst, p. 56, disapproved of on another point of law in People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 314, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Proposition 57 also provided that: "This act shall be liberally construed to effectuate its purposes." (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 9, p. 146.)
Thus, while the intent of the electorate in approving Proposition 21 was to broaden the number of minors subject to adult criminal prosecution, the intent of the electorate in approving Proposition 57 was precisely the opposite. That is, the intent of the electorate in approving Proposition 57 was to broaden the number of minors who could potentially stay within the juvenile justice system, with its primary emphasis on rehabilitation rather than punishment. d. The implied intent of Proposition 57 was to retroactively extend its emphasis on juvenile rehabilitation to every minor to whom it could constitutionally apply.
Although Proposition 57 plainly applies to minors whose charges are filed after its effective date, we must now determine whether it also applies retroactively. That is, does the electorate's express intent to emphasize juvenile rehabilitation extend to minors—such as Vela—who have been directly filed upon in criminal court by a prosecutor, but who were not given the benefit of a juvenile transfer hearing, and whose cases are not yet final on appeal?
When analyzing questions regarding retroactivity, we look primarily to our Supreme Court's opinion in Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, for guidance. In Estrada , the defendant was initially convicted of a drug offense and was committed to a rehabilitation center. ( Id . at pp. 742-743, 48 Cal.Rptr. 172, 408 P.2d 948.) Estrada left the center at some point and was later captured and pleaded guilty to escape without force or violence. ( Id . at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) At the time of his escape, the punishment for an escape was at least one consecutive year in prison. Further, there was also a statutory delay in an inmate's parole eligibility. But in Estrada's case, after his escape, but before his conviction, the Legislature amended the applicable statutes. An escape without force or violence was now punishable by imprisonment in the state prison for a term of not less than six months, nor more than five years, with no delay in parole eligibility. ( Id . at pp. 743-744, 48 Cal.Rptr. 172, 408 P.2d 948.)The Supreme Court reasoned that Estrada was "entitled to the ameliorating benefits of the statutes" as they had been amended. ( Estrada , supra , 63 Cal.2d at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) The Supreme Court recognized "the general rule of construction, coming to us from the common law, that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively. That rule of construction, however, is not a straitjacket. Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent." ( Id . at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)
In determining the lawmakers' intent, the Supreme Court found "one consideration of paramount importance. It leads inevitably to the conclusion that the Legislature must have intended, and by necessary implication provided, that the amendatory statute should prevail. When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." ( Estrada , supra , 63 Cal.2d at pp. 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.)The Supreme Court further explained that: " ‘A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts.’ " ( Estrada , supra , 63 Cal.2d at pp. 745-746, 48 Cal.Rptr. 172, 408 P.2d 948.)
Here, for a minor accused of a crime, it is a potential "ameliorating benefit" to have a neutral judge, rather than a district attorney, determine that he or she is unfit for rehabilitation within the juvenile justice system. While a district attorney has an obligation to be objective and impartial, the duty of that position is also to act as a zealous advocate. ( People v. Eubanks (1996) 14 Cal.4th 580, 590, 59 Cal.Rptr.2d 200, 927 P.2d 310.) And the impact of the decision to prosecute a minor in criminal court rather than juvenile court can spell the difference between a 16-year-old minor such as Vela being sentenced to prison for 72 years to life, or a discharge from the DJJ's custody at a maximum of 23 years of age. After the passage of Proposition 57, a juvenile court judge can only make that irrevocable decision after receiving a probation report and after conducting a full hearing considering the minor's prior history, the circumstances of the offense, and several other factors relating to his or her youth and immaturity. ( § 707, subd. (a).)
Applying the reasoning of Estrada , we find that by its approval of Proposition 57, and its rejection of Proposition 21, the electorate has "expressly determined" that the former system of direct filing was "too severe." Further, we find an "inevitable inference" that the electorate "must have intended" that the potential "ameliorating benefits" of rehabilitation (rather than punishment), which now extend to every eligible minor, must now also "apply to every case to which it constitutionally could apply." ( Estrada , supra , 63 Cal.2d at pp. 744-746, 48 Cal.Rptr. 172, 408 P.2d 948.) As in Estrada , "to hold otherwise" we would have to conclude that the electorate was motivated "by a desire for vengeance" against Vela and similarly situated minors. That conclusion would be directly at odds with the intent of the electorate in its approval of Proposition 57.
e. The possibility for a minor's rehabilitation within the juvenile justice system is analogous to the possible reduction of a criminal defendant's sentence.
The Attorney General argues that " Estrada 's retroactivity rule only applies in the specific situation where the law unambiguously reduces a sentence or liability for a particular crime." The Attorney General contends that since Proposition 57 does not "unambiguously" reduce a sentence for a particular crime, the reasoning of Estrada does not apply. We disagree.
We recognize, of course, that we are bound by the opinions of the California Supreme Court. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) However, we do not interpret the holding, or ratio decidendi, of Estrada to be limited to its particular facts. "The fundamental rule for determining the precedential force and applicability of a case is to ascertain its true holding or ratio decidendi . The rule has been summarized as follows: ‘The ratio decidendi is the principle or rule which constitutes the ground of the decision, and it is this principle or rule which has the effect of a precedent.’ " ( Santa Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 1033, 250 Cal.Rptr. 384.) But a close reading of Estrada reveals that the Legislature did not unambiguously reduce the sentence for Estrada's particular crime: an escape without force or violence. ( Estrada , supra , 63 Cal.2d at p. 743, 48 Cal.Rptr. 172, 408 P.2d 948.)
Again, in Estrada , the defendant had been convicted of an escape without force or violence under the then existing version of the escape statute. ( Estrada , supra , 63 Cal.2d at p. 743, 48 Cal.Rptr. 172, 408 P.2d 948.) On the day of Estrada's escape, the statute made no distinction between escapes with force or violence and escapes without force or violence. Every defendant was required to be sentenced to a term of not less than one year in state prison consecutive to his or her commitment offense and a two-year minimum period for parole consideration after being returned to custody following an escape. ( Ibid . ) But prior to Estrada's case becoming final, the Legislature amended the escape and parole statutes. The sentence for an escape with force or violence remained the same. But a sentence for an escape without force or violence was now " ‘imprisonment in the state prison for a term of not less than six months nor more than five years .’ " ( Ibid ., italics added.) The Legislature also amended the parole statute to no longer require a minimum period before parole consideration following an escape. In Estrada's case, he was being held in custody because his parole eligibility had been delayed. ( Ibid . )
However, the sentence for Estrada's particular crime—an escape without force or violence—was not "unambiguously reduced" by the amendment. That is, after the Legislature amended the escape statute, a court could still sentence a particular defendant to a one-year or greater consecutive sentence for a nonviolent escape and still have remained within the five-year sentencing range. Thus, the actual effect of the amendment was to create the possibility for a reduction in a defendant's sentence based on the discretion of the court and a defendant's particular circumstances.
When a change in the law allows a court to exercise its sentencing discretion more favorably for a particular defendant, the reasoning of Estrada applies. ( People v. Francis (1969) 71 Cal.2d 66, 75-76, 75 Cal.Rptr. 199, 450 P.2d 591 ( Francis ).) In Francis , the defendant had no prior record of narcotic offenses, but was convicted of possessing "four ‘sandwich bag packages' " of marijuana. ( Id . at pp. 70-71, 75 Cal.Rptr. 199, 450 P.2d 591.) The court denied probation and sentenced the defendant to state prison for one to 10 years. ( Id . at p. 75, 75 Cal.Rptr. 199, 450 P.2d 591.) "While the instant case was pending on appeal, [the Health and Safety Code section] was amended to provide for alternative sentences of imprisonment in the county jail for not more than one year or in the state prison for one to ten years where no prior narcotics offenses are shown [citation]." ( Ibid . ) The Supreme Court applied the reasoning of Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, and remanded the defendant's case "to the trial court to reconsider the matter of probation and sentence." ( Francis , supra , 71 Cal.2d at p. 75, 75 Cal.Rptr. 199, 450 P.2d 591.)In Francis , the Attorney General argued that Estrada was distinguishable because the Legislature had not unambiguously reduced the defendant's sentence; rather, it had changed the crime from a straight felony to a "wobbler." ( Francis , supra , 71 Cal.2d at p. 76, 75 Cal.Rptr. 199, 450 P.2d 591.) The Supreme Court disagreed. "Here, unlike Estrada , the amendment does not revoke one penalty and provide for a lesser one but rather vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty." ( Ibid. , italics added.) The Supreme Court was persuaded that "the mere fact that the Legislature changed the offense from a felony to a felony-misdemeanor conceivably might cause a trial court to impose a county jail term or grant probation in a case where before the amendment the court denied probation ... and sentenced the defendant to prison." ( Id . at p. 77, 75 Cal.Rptr. 199, 450 P.2d 591.) Thus, just as it had reasoned four years earlier in Estrada , the Supreme Court found that there was an "inference" that the Legislature intended the amendment to "apply to every case" to which it might constitutionally apply "because the Legislature has determined that the former penalty provisions may have been too severe in some cases and that the sentencing judge should be given wider latitude in tailoring the sentence to fit the particular circumstances." ( Id. at p. 76, 75 Cal.Rptr. 199, 450 P.2d 591, italics added.)
Here, the electorate has taken away from prosecutors the discretion to directly file cases against minors in criminal courts. As a result—similar to the discretion of a judge to reduce a crime from a felony to a misdemeanor in some cases —a juvenile court judge can now exercise his or her discretion in some cases and determine that a minor should remain in the juvenile justice system rather than face prosecution and sentencing in the criminal courts. For those minors who remain in the juvenile court, with its primary emphasis on rehabilitation rather than punishment, the potential effect of that "ameliorating benefit" is analogous to the potential reduction in a criminal defendant's sentence as in Estrada and Francis .
Our colleagues in the First District Court of Appeal, Division Four, addressed Proposition 57 under similar circumstances. ( People v. Cervantes (2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174 ( Cervantes ), disapproved of in People v. Superior Court (Lara ), supra , 4 Cal.5th 299, 315, 228 Cal.Rptr.3d 394, 410 P.3d 22.) In Cervantes , a 14-year-old defendant had been tried and convicted in an "adult" criminal court, prior to the passage of Proposition 57, without a "transfer" or "fitness" hearing. The court reversed eight of the defendant's 15 convictions. ( Cervantes , supra , 9 Cal.App.5th at p. 570, 215 Cal.Rptr.3d 174.) The court held that Proposition 57 affords the defendant an opportunity for a fitness hearing on remand as to any counts to be retried, but Cervantes did not find that Proposition 57 applies retroactively under Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948. Cervantes held that "the Supreme Court has limited Estrada to statutory changes that mitigate the penalty for a particular offense." ( Cervantes , supra , 9 Cal.App.5th at p. 600, 215 Cal.Rptr.3d 174, original capitalization omitted.) We respectfully disagree. Again, in Francis , supra , 71 Cal.2d at page 76, 75 Cal.Rptr. 199, 450 P.2d 591, the Supreme Court applied the reasoning of Estrada in a situation where a statutory change converted a crime from a straight felony into a wobbler. That is, in Francis , the Supreme Court applied the statutory change retroactively, even though did not necessarily mitigate the penalty for that particular crime for that particular defendant.In Cervantes , the court also relied on People v. Brown (2012) 54 Cal.4th 314, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ( Brown ), for the proposition that the reasoning of Estrada , supra , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, cannot be extended to any situation other than the reduction of a defendant's sentence for a particular offense. ( Cervantes , supra , 9 Cal.App.5th at pp. 601-602, 215 Cal.Rptr.3d 174.) In Brown , the court held that a statutory change that temporarily increased conduct credits for prisoners did not apply retroactively. ( Brown , supra , 54 Cal.4th at pp. 323-324, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) In Brown , the Supreme Court distinguished Estrada and held that the conduct credits law did "not alter the penalty for any crime; a prisoner who earns no conduct credits serves the full sentence originally imposed. Instead of addressing punishment for past criminal conduct, the statute addresses future conduct in a custodial setting by providing increased incentives for good behavior." ( Id . at p. 325, 142 Cal.Rptr.3d 824, 278 P.3d 1182.)
In People v. Superior Court (Lara ), supra , 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22, the California Supreme Court disapproved of People v. Cervantes , supra , 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174, and held that the juvenile transfer provisions of Proposition 57 are retroactive to cases not yet final on appeal.
But under Proposition 57, a transfer hearing conducted by a juvenile court judge does not address future conduct or provide incentives for good behavior as in Brown . Rather, 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. Thus, just as the Supreme Court reasoned in Estrada and Francis , we infer that the electorate intended the possible ameliorating benefits of Proposition 57 to apply to every minor to whom it may constitutionally apply, including Vela.
2. Vela is entitled to a juvenile transfer hearing .
Having found that the statutory amendments under Proposition 57 apply retroactively, we must now address what should happen with Vela's judgment. Not surprisingly, Vela urges that his convictions should be reversed. We disagree. The jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "dispositional hearing," or effectively a second trial, in the juvenile court. Vela has already had a jury trial with all the rights afforded to him in that proceeding; 12 jurors found him guilty beyond a reasonable doubt.On the other hand, the Attorney General argues 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. We disagree. This court is not in a position to evaluate the various factors to be considered at a juvenile transfer hearing such as Vela's "physical, mental, and emotional health at the time of the alleged offenses." ( § 707, subd. (a)(1)(A)(ii).)
We will seek to strike a middle ground. An appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances." ( Pen. Code, § 1260.) "A limited remand is appropriate under section 1260 to allow the trial court to resolve one or more factual issues affecting the validity of the judgment but distinct from the issues submitted to the jury...." ( People v. Braxton (2004) 34 Cal.4th 798, 818-819, 22 Cal.Rptr.3d 46, 101 P.3d 994.) Indeed, a remand with instructions for the lower court to conduct a limited hearing is not a particularly unusual disposition. (See, e.g., People v. Lightsey (2012) 54 Cal.4th 668, 674, 143 Cal.Rptr.3d 589, 279 P.3d 1072 [remand for hearing concerning defendant's competency]; People v. Johnson (2006) 38 Cal.4th 1096, 1097, 45 Cal.Rptr.3d 1, 136 P.3d 804 [remand for hearing regarding prosecutor's use of peremptory challenges]; People v. Wycoff (2008) 164 Cal.App.4th 410, 412, 78 Cal.Rptr.3d 907 [conditional reversal and remand for review of police personnel records].)
Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. ( § 707.) 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. ( § 707, subd. (a)(1).) 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 are to be reinstated. (§ 707.1, subd. (a).) The court is to resentence Vela consistent within the bounds of its discretion as discussed within the following section of this opinion. 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.
E. Retroactivity of Senate Bill No. 620
Prior to January 1, 2018, trial courts did not have authority to dismiss or strike a firearm sentencing allegation under sections 12022.5 or 12022.53. (Former § 12022.5, added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 1, eff. Jan. 1, 2018; former § 12022.53, added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.)
Effective January 1, 2018, the Legislature amended sections 12022.5 and 12022.53 to add the following language: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." ( §§ 12022.5, subd. (c) ; 12022.53, subd. (h).)
Vela contends that the recent amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final on appeal. ( Estrada , supra , 63 Cal.2d at pp. 742-748, 48 Cal.Rptr. 172, 408 P.2d 948 ; Francis , supra , 71 Cal.2d at pp. 75-76, 75 Cal.Rptr. 199, 450 P.2d 591.) The Attorney General concedes the argument and we agree. In short, Senate Bill No. 620 provides an opportunity for Vela to receive a more lenient sentence; because the judgment is not yet final on appeal, the same rationale regarding retroactivity applies as in our previous discussion regarding Proposition 57.
Here, the jury found true the allegation that during the commission of the gang-related murder and attempted murder, another principal intentionally discharged a firearm causing death and great bodily injury. ( Pen. Code, §§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).) The trial court imposed a mandatory sentence of 25 years to life. If, on remand, the juvenile court transfers the matter to the criminal court, that court has the discretion to strike or dismiss the firearm allegation.
IV
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 as discussed within this opinion, no later than 90 days from the filing of the remittitur. If, at the transfer hearing, the juvenile court determines that it would have transferred Vela 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 and a " Franklin hearing" within 30 days as discussed within the unpublished portion of this opinion.
If, at the transfer hearing, the juvenile court determines that it would not have transferred Vela to a court of criminal jurisdiction, then Vela's 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 time frame.
WE CONCUR:
BEDSWORTH, ACTING P.J.
THOMPSON, J.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of all of part II and subparts A., B., and C. of part III.