Opinion
A149205
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE VELASQUEZ, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on October 16, 2018, be modified as follows:
1. On page 1, the first sentence of the second paragraph is modified to state:
We reject defendant's speedy trial claim, but conditionally reverse and remand the matter to the juvenile court to hold a transfer hearing.
2. On page 4, at the end of the second full paragraph, the following footnote is added:
Defendant also asserts the precharging delay was a denial of his federal due process rights, which he claims must be reviewed under a different standard,
citing People v. Salazar (2005) 35 Cal.4th 1031, 1042 ("Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady [v. Maryland (1963) 373 U.S. 83] claim . . . are subject to independent review. [Citation.] Because the referee can observe the demeanor of the witnesses and their manner of testifying, findings of fact, though not binding, are entitled to great weight when supported by substantial evidence.") Salazar did not set forth a different standard of review for claims of federal due process violations due to precharging delay. And regardless of whether the trial court's factual finding of no prejudice is reviewed for substantial evidence, or is entitled to "great weight," defendant has not demonstrated any error in the court's finding there was no prejudice to defendant."
There is no change in the judgment.
The petition for rehearing is denied. Dated:__________ /s/_________P.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51510692)
Defendant Jose Velasquez was convicted of numerous crimes arising out of a sexual assault in Concord, committed when he was a minor. A few months before the Concord crimes, he had sexually assaulted a woman in Washington. He was subsequently convicted of the Washington crimes, and while he was serving his sentence in that state, a DNA test connected him to the sexual assault in Concord. The Contra Costa District Attorney filed a complaint against defendant while he was incarcerated in Washington, but he was not arrested and arraigned on the California charges until about nine years later, after he was released in Washington.
Defendant claims his Sixth Amendment and state rights to speedy trial and due process were violated by the delay and his conviction must be reversed. He additionally maintains that Proposition 57 applies retroactively and entitles him to a transfer hearing in juvenile court, that the trial court erred in finding he had suffered a prior strike conviction, that the court erroneously imposed a one strike sentence as an enhancement, and that the matter should also be remanded to permit the court to exercise its discretion, under the amended statutory provisions, whether to strike the imposed firearms enhancements. The Attorney General agrees as to the latter assertions.
We reject defendant's speedy trial and one-strike claims, but conditionally reverse and remand the matter to the juvenile court to hold a transfer hearing. In the event the juvenile court concludes it would have transferred defendant to adult criminal court, the convictions shall be reinstated, and the court shall resentence defendant after exercising its discretion as to the firearm enhancements.
BACKGROUND
In November 1999, defendant repeatedly choked and sexually assaulted a woman, Doe 1, whom he encountered on a trail in Washington. After the attack, defendant left Washington and moved to Concord.
Washington police obtained DNA samples from a vaginal swab taken from Doe 1 and a cigarette butt found in the car defendant left behind in Washington. Washington police contacted Concord police after learning defendant had ties to that city, and learned he was in custody in juvenile hall. In June 2000, Concord police assisted in obtaining a warrant for a blood sample from defendant. Defendant's DNA matched that in the two samples from Washington. He was then transported to Washington, where he pleaded guilty and was incarcerated, with a scheduled release date in December 2014.
In the meantime, Concord police were investigating a sexual assault that occurred in May 2000 in a Concord apartment on Detroit Avenue. Around 9:00 or 10:00 p.m. on May 1, Doe 2 returned to her apartment after a trip out of state. She opened the patio door to let in fresh air and began to read her mail. She heard noises and looked up to see a man she had never seen before in the entryway to her bedroom. Doe 2 ran to the front door to get out, but the man grabbed and choked her. She passed out, and when she came to, her shirt was off. Doe 2 could not get a good look at the man, because she had poor vision without her glasses, which at some point had been knocked off.
The man pulled out a gun, grabbed Doe 2's hair, and pulled her into the bedroom, where he "got on top" of her. He choked her unconscious a number of times. The man stripped Doe 2, and she told him, "If you're going to rape me, you need to use a condom." To convince him to do so, Doe 2 asked "Do you want me to abort your unborn child?"
Doe 2 testified the man raped her twice, penetrated her vagina with a dildo, and attempted to sodomize and orally copulate her over the course of "two or three hours." He finally left, taking her car keys and her kitchen knife with him. After Doe 2 heard her car alarm go off, she ran for her phone, but the line had been cut. Doe 2 then went out in the hallway and "kept banging" on doors to get her neighbors to respond. One neighbor called the police.
That neighbor died prior to trial, and his statement to police was read into the record. He stated in part: "The female was screaming she had been raped and that the suspect had a gun. [The neighbor] said the female screams sounded genuine and convinced him to call the police. [¶] [He] did not want to answer his door for fear the suspect was still in the area."
A DNA analyst tested the vaginal swabs taken from Doe 2's sexual assault exam and uploaded the DNA profile to the Combined DNA Index System, a national network of DNA databases. In 2004, the analyst was notified of a match in the Washington state database, identifying defendant.
Concord police obtained a warrant to obtain a blood sample from defendant, and an analysis showed the DNA profile of his blood matched that of the samples taken from Doe 2's vaginal swabs. A Washington state deputy sheriff questioned defendant while he was in custody in prison there. Defendant denied committing any sexual assaults in Concord in May 2000, claiming he was in juvenile hall at the time. He also denied having " 'consensual sex with any female that lived in an apartment on Detroit Avenue in Concord.' "
The felony complaint charging defendant with the California crimes was filed in February 2005, and an arrest warrant was issued at that time. Defendant was not arrested until 2014, upon his release from prison in Washington, and he was arraigned in Contra Costa County in December 2014. The district attorney filed the information in July 2015.
At trial, defendant testified that he had consensual sex with Doe 2. He claimed he had friends at the Detroit Avenue apartment complex, and went there often. Defendant testified he was with his friend when he met Doe 2 coming in from the parking lot at the apartment complex. Defendant stated he went to Doe 2's apartment and she gave him a drink. Defendant told her he "would be back later, and she just said, yes." He returned to her apartment two or three days later, but Doe 2 was not at home. A few days later, he went back to the apartment complex, and, after a woman at the pool gave him tequila, he went to Doe 2's apartment. She was not there, so defendant returned that night. He "knocked on her door, and she opened the door." Doe 2 went into her bedroom, and he "grabbed her from behind and . . . kissed her on the neck." Doe 2 "fell on top" of defendant, they started to kiss. Doe 2 grabbed a condom and put it on him. They had sex, and then he found a box of "sexual things." Defendant testified Doe 2 took out a dildo and showed him how to use it. She again insisted he put on a condom, and they had sex a second time.
Afterwards, defendant found an envelope containing photographs of Doe 2 with her shirt open. Doe 2 told him to give her the photographs, but defendant told her "No, you're a whore." He was "playing," but Doe 2 was "seriously angry." She approached him, and "we kissed each other," but she bit his lip. According to defendant, Doe 2 grabbed the photographs, so he hit her. He testified "I hit her hard. She went back. She hit her back on the table and fell sitting on the ground, and she stayed with her face bent. [¶] I don't know if I made her faint. . . . [¶] Then she returned . . . [a]nd then she told me to scram," and said she would call the police. Defendant asked her "Why are you going to call the police if you bit me?" and told her "You're a whore." He explained "Then I came this way, and there was her telephone cord. Then I did like this, playing with the knife, but the telephone line cut. That's when she got more angry . . . [¶] . . . we started to struggle with the chair . . . I let go of the chair and she fell back." Defendant testified he cut the telephone line because he "was making fun of her." Doe 2 "tried to scratch [him]," so he "hit her back here with my open hand." Defendant told her he would tie her up, and did so with a shoelace.
Defendant left by going out the back door and jumping over the fence into the parking lot. He stated Doe 2 "turned on her car alarm and threw the keys at me," but he took nothing from her apartment.
Defendant also testified that, at the time his blood was drawn when he was incarcerated in Washington, he denied ever having consensual sex with any female at the Detroit Avenue apartments because he "really didn't remember her." Defendant explained he asked the officer if "he had a name or a photograph so that I could know the person or the name. . . . [¶] . . . He told me he didn't. So, I told him that I had not had sex with someone."
A jury convicted defendant of two counts of rape, one count of attempted rape, two counts of attempted sodomy, and one count each of forcible sexual penetration, first degree residential burglary and first degree residential robbery. (Pen. Code, §§ 261, subd. (a)(2), 664, 286, subd. (c)(2), 289, subd. (a)(1), 459, 460, subd. (a), 211, 212.5, subd. (a).) The jury also found true the enhancing allegations of use of a handgun as to all counts but the burglary, and that he committed the burglary with the intent to commit a sexual offense.
The information charged defendant with two counts of attempted sodomy by use of force under Penal Code section 286, subdivision (c)(2). The abstract of judgment incorrectly indicates one of the attempted sodomy convictions was under section 286, subdivision (a)(2), which does not exist.
The court sentenced defendant to a total term of 38 years to life.
DISCUSSION
California and Federal Speedy Trial and Due Process Rights
Defendant maintains the nine-year delay between the filing of the complaint and issuance of an arrest warrant, and his arrest itself, violated his Sixth Amendment and state speedy trial rights. He also contends his state due process rights were violated by the precharging delay between the commission of the crime and the time the state charged him with the crime.
Defendant filed a motion to dismiss prior to trial on the basis he was denied his right to a speedy trial. The court deferred ruling on the motion until after trial, and then denied it. "When a speedy trial claim requires a demonstration of prejudice, the trial court has discretion to defer hearing the motion until after trial . . . ' . . . at which time it has the opportunity to determine whether material witnesses were missing or had poor memories or there was other prejudice . . . .' " (People v. Martinez (2000) 22 Cal.4th 750, 769-770 (Martinez).)
We begin by summarizing the differences between the California and federal constitutional rights at issue. "[T]here are two important differences in the operation of the state and federal constitutional rights as construed by our courts. [¶] The first difference concerns the point at which the speedy trial right attaches. Under the state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. [Citations.] Under the federal Constitution, however, the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. [Citation.] The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: '[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' [Citation.]" (Martinez, supra, 22 Cal.4th at pp. 754-755.) Thus, "[u]nlike its federal counterpart, the speedy trial guarantee under the state Constitution is triggered by the filing of a felony complaint." (People v. DePriest (2007) 42 Cal.4th 1, 27 (DePriest).)
"The second difference is in the showing that a defendant must make to obtain a dismissal for violation of the speedy trial right. For the federal Constitution's speedy trial right, the United States Supreme Court has articulated a balancing test that requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defense caused by the delay. [Citation.] Because delay that is 'uncommonly long' triggers a presumption of prejudice [citation], a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government's want of diligence prejudiced the defendant's ability to defend against the charge. [Citation.] Under the state Constitution's speedy trial right, however, no presumption of prejudice arises from delay after the filing of a complaint and before arrest or formal accusation by indictment or information [citation]; rather, in this situation a defendant seeking dismissal must affirmatively demonstrate prejudice." (Martinez, supra, 22 Cal.4th at p. 755, DePriest, supra, 42 Cal.4th at p. 27.)
"[U]nlike other constitutional rights afforded the accused, deprivation of the right to a speedy trial 'may work to the accused's advantage,' as '[d]elay is not an uncommon defense tactic.' [Citation.] 'Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.' " (People v. Williams (2013) 58 Cal.4th 197, 233.) The defendant has the burden of demonstrating prejudice, which may be shown by " ' "loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay." ' " (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).) "[S]peculation about prejudice because potential witnesses' memories have failed or because witnesses and evidence are now unavailable is insufficient to discharge defendant's burden." (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946 (Shleffar).) "The prejudice we must consider is the harm to defendant's ability to defend himself." (People v. Conrad (2006) 145 Cal.App.4th 1175, 1184.)
A defendant is similarly required to demonstrate prejudice in connection with a state due process claim based on precharging delay. " '[R]egardless of whether defendant's claim is based on a due process analysis or a right to a speedy trial not defined by statute, the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.' [Citation.] But we find nothing improper in this convergence when, as here, the two separate constitutional rights are protecting the same interest." (Martinez, supra, 22 Cal.4th at p. 767.)
"We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial prearrest delay [citation], and defer to any underlying factual findings if substantial evidence supports them [citation]." (Cowan, supra, 50 Cal.4th at p. 431.) "As the threshold question of whether a defendant has established prejudice occasioned by the delay is clearly a factual matter to be resolved by the trial court, its decision on that point will not be overturned by an appellate court if supported by substantial evidence." (Shleffar, supra, 178 Cal.App.3d at p. 945 [regarding speedy trial right].)
Federal Right to Speedy Trial Claims
Defendant maintains, contrary to our Supreme Court's discussion in Martinez, that his federal right to speedy trial attached when the felony complaint was filed and the arrest warrant issued, both in February 2005. Unlike the California right to speedy trial, once the federal right to speedy trial attaches, "delay that is 'uncommonly long' triggers a presumption of prejudice [citation], a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government's want of diligence prejudiced the defendant's ability to defend against the charge." (Martinez, supra, 22 Cal.4th at p. 766.)
In an effort to avail himself of the federal presumption of prejudice, defendant claims the California Supreme Court's "hyper-technical analysis" of when the federal Sixth Amendment right to speedy trial attaches, as expressed in Martinez, DePriest, and subsequent cases, "should be discarded as inconsistent with the United States Supreme Court." He claims Dickey v. Florida (1970) 398 U.S. 30 (Dickey) "held that issuance of an arrest warrant that tolled the statute of limitations while the defendant was in custody in another jurisdiction triggered the Sixth Amendment Speedy trial protection."
Defendant misstates Dickey's holding. In that case, the defendant had been "taken into custody on federal bank robbery charges and placed in the Jackson County Jail" in Florida. (Dickey, supra, 398 U.S. at pp. 31-32.) While there, he was identified by the victim in a state armed robbery case, and police obtained an arrest warrant that day. (Id. at p. 32.) Police "made no effort to serve the warrant" during the following two months, during which he remained in the county jail awaiting trial on the federal charges. (Ibid.) Defendant was convicted of the federal charges and removed from Florida to federal prison. (Ibid.) "On the same day, the . . . warrant was sent to the [U.S. Marshall] and a formal detainer was lodged against Dickey." (Ibid.) Two years later, Dickey began demanding, via various writ petitions and motions, either a trial on the Florida charges or withdrawal of the detainer. (Id. at pp. 32-33.) Five years after Dickey's first writ petition, the Florida State Attorney filed an information against him, and he was tried and convicted. (Id. at pp. 34-36.)
Contrary to defendant's assertion, the court in Dickey did not address whether issuance of an arrest warrant triggered the Sixth Amendment right to speedy trial. Rather, the issue was whether, prior to the high court's decision in Klopfer v. North Carolina (1967) 386 U.S. 213, the federal constitutional right to speedy trial applied to the states, and whether, prior to Smith v. Hooey (1969) 393 U.S. 374, there was "a constitutional requirement that the State press for trial of a defendant in custody in another jurisdiction." (Dickey, supra, 398 U.S. at p. 36.) In concluding that Dickey had been denied his right to speedy trial, the Supreme Court concluded, "In addition to exerting every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. This is sufficient to make a remand on that issue unnecessary. We therefore reverse . . . ." (Id. at p. 38.)
The United States Supreme Court has since expressly identified the trigger of Sixth Amendment rights as arrest or indictment. (Betterman v. Montana (2016) ___U.S.___, [136 S.Ct. 1609, 1613] ["The Sixth Amendment's Speedy Trial Clause homes in on the second period: from arrest or indictment through conviction. The constitutional right, our precedent holds, does not attach until this phase begins, that is, when a defendant is arrested or formally accused."]; United States v. Marion (1971) 404 U.S. 307, 320 ["it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment"].)
Defendant also claims his incarceration in Washington state triggered his Sixth Amendment right to speedy trial. That incarceration was the result of his Washington arrest and conviction, however, defendant cites no authority for his claim that incarceration in one case triggers the right to speedy trial in a second case, in the absence of an arrest or indictment in the second case.
Thus, we not only disagree with defendant's assertion that Martinez and its progeny are wrongly decided, but it is not our role, in any case, to "discard" decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["The decisions of this court are binding upon and must be followed by all the state courts of California."].)
Turning to the time that passed after defendant's Sixth Amendment speedy trial right was triggered, the time between defendant's arrest on the California charges and commencement of his trial was a little over a year. This was not an "uncommonly long" delay that would trigger the federal presumption of prejudice. Indeed, defendant contributed to this delay by making continued waivers of time.
Defendant's prison term in Washington concluded sometime between September and December 2014. On December 18, 2014, defendant was arraigned in Contra Costa County. On December 30, 2014, he waived time for the preliminary hearing. The preliminary hearing was held on June 24, 2015, and defendant was held to answer. The district attorney filed an information on July 9, 2015, and defendant was arraigned the next day. Following arraignment, defendant waived time for trial, and, in fact, requested several continuances. Trial began in February, 2016.
There was no denial of defendant's Sixth Amendment right to a speedy trial.
California Right to Speedy Trial and Due Process
In claiming violations of both the California right to speedy trial and due process, defendant must make a threshold showing before the trial court is called upon to balance the prejudice to the defendant against the justification for the delay. Under the state Constitution, " ' "the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed." ' " (People v. Alexander (2010) 49 Cal.4th 846, 874.) "[I]f the defendant fails to meet his or her burden of showing prejudice, there is no need to determine whether the delay was justified." (People v. Abel (2012) 53 Cal.4th 891, 909.)
"Prejudice may be shown by ' "loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay." ' [Citations.] And although the federal constitutional standard for what constitutes sufficient justification for delay is unclear [citation], we have noted that 'the law under the California Constitution is at least as favorable for the defendant in this regard' as federal law." (Cowan, supra, 50 Cal.4th at pp. 430-431.)
Defendant maintains he was prejudiced due to the deaths of two potential witnesses: the neighbor who called the police, and his friend, who he claimed he was walking with when he saw Doe 2. He maintains the testimony of the two deceased witnesses would have corroborated his claimed defense of consent by contradicting the victim's testimony.
At trial, defendant testified he had met Doe 2 a few days before the attack, had gone to her apartment, and that she agreed he should return. He claimed he returned a few days later, and only after they had consensual sex did they get in an argument and he left. In his closing statement, his attorney maintained that Doe 2 testified she had never seen defendant before the night of the crime because she knew defendant was a minor and did not want to be charged with unlawful sex with a minor. Defendant claims his friend would have testified he was there during defendant's claimed first meeting with Doe 2, as they walked in from the apartment parking lot, thus suggesting Doe 2 was lying about never having seen defendant before. Defendant also asserts the neighbor who called police "would have testified that he heard no prior screaming, which would have contradicted [Doe 2's] testimony that she had screamed throughout the two and one-half hour assault."
Defendant submitted two declarations in conjunction with his motion to dismiss based on lack of a speedy trial. The first stated in part: "Three or four days prior to the alleged rape, I met the Complainant while walking through the complex. We had a good conversation, and I walked with her to her apartment. We were in [the] public areas of the complex, and were seen by other residents." (Italics added.) In the second declaration, executed nine days later, defendant changed some of his factual assertions. He declared "A few days prior to the alleged rape, I met the Complainant while walking through the complex with another friend, . . . , also know[n] as Gordo. The three of us had a good conversation. After [the friend] left, I walked with her to her apartment." (Italics added.)
In considering whether there was prejudice, the trial court observed that the second declaration and defendant's testimony at trial modified his version of the facts in a way that conformed to facts learned later. For example, in the second declaration, defendant "specifically refers to a few days prior to the alleged rape. And at that time, the only discovery and the only knowledge Defendant had about the whereabouts of his victim was some vague reference to her being away for the weekend, and [the attack] having occurred on a Monday. "However, at trial, [Doe 2] was clear that she had just returned from an out of state trip, had just entered her apartment, had opened the sliding door. . . . [¶] And her testimony undisputed here at the trial is that she was away for five days. That means that this alleged meeting between [the friend], now deceased, and the victim and the Defendant, is a story made up by the Defendant to support the actual prejudice argument that is being made here. [¶] The Defendant's testimony on the stand is, in my view, nothing short of incredible, and I can give no credence to anything he said about the encounter being consensual, let alone the meeting that he alleges occurred beforehand." Defendant also drastically changed his version of allegedly meeting Doe 2 prior to the attack. In his first declaration, he claimed to have met Doe 2 before the attack while walking through the apartment complex and "they" had a good conversation. In his second declaration, he changed the description of the meeting, claiming his friend was with them, and "the three of [them] had a good conversation."
Defendant's claims about how the deceased witnesses would have testified are purely speculative and, thus, insufficient to make a threshold showing of prejudice. Simply because the neighbor's short statement to police mentioned nothing about hearing screaming earlier in the evening does not mean either that he did not hear earlier screams, or that none occurred. Similarly, it is purely speculation to suggest the friend would have testified to defendant's claimed preexisting relationship with Doe 2 based on defendant's changed story as to how and when he allegedly met Doe 2 before the attack.
And even if the deceased witnesses would have testified in the manner defendant now claims, there was overwhelming evidence of lack of consent. Assuming the friend would have testified defendant met Doe 2 before the attack, that testimony would not have corroborated defendant's claim that Doe 2 consented, or negated Doe 2's testimony that she did not recognize her attacker. Indeed, Doe 2 testified she did not "get a good look" at her attacker, because of her poor eyesight without her glasses, which were lost "at some point." And, assuming the neighbor would have testified he heard screaming only right before he called police, that testimony does not negate Doe 2's testimony that she was screaming throughout the attack.
In sum, the overwhelming evidence supporting defendant's conviction—including Doe 2's testimony, the severe physical injuries she suffered, the state of her apartment, the similarities between the attack and defendant's prior rape conviction, and defendant's earlier statements to police that he did not engage in consensual sex with anyone in the Detroit Avenue apartments—demonstrates defendant failed to establish prejudice based on the absence of the testimony defendant claims these two witnesses would have given. Accordingly, substantial evidence supports the trial court's determination that defendant's consent defense and claim of meeting Doe 2 two days before the attack was "incredible" and deserving of no credence. And the court did not abuse its discretion in denying defendant's speedy trial motion.
Because defendant failed to meet his initial burden of showing prejudice, the trial court was not required to consider whether the delay was justified. (People v. Jones (2013) 57 Cal.4th 899, 921.) The prosecutor conceded that "There's no affirmative justification for, 'Gosh, we didn't know where [defendant] was," and the court agreed that "all the eggs of the DA are in the basket of prejudice."
Proposition 57
Defendant additionally claims he is entitled to the benefit of Proposition 57. The Attorney General concedes that is the case.
Although defendant was a juvenile when he committed the Concord crimes, the prosecutor filed the criminal charges in superior court, as was then permitted under former Welfare and Institutions Code section 707, subdivision (d). (Former Welf. & Inst. Code, § 707, subd. (d)(1).) In November 2016, California voters enacted the "Public Safety and Rehabilitation Act of 2016" (Proposition 57), which prohibits "prosecutors from charging juveniles with crimes directly in adult court." (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) Post-Proposition 57, "[i]f the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct . . . a 'transfer hearing' to determine whether the matter should remain in the juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult." (Lara, at p. 303; see Welf & Inst. Code, § 707, subd. (a).)
Proposition 57's prohibition against direct filing in the superior court applies retroactively to cases not yet final on appeal. (Lara, supra, 4 Cal.5th at pp. 308-309.) Since defendant's conviction is not yet final, he is entitled to invoke Proposition 57.
Lara also specifies the procedure we are to follow in ordering a reversal and remand: Defendant's convictions must be conditionally reversed, and the matter remanded for the juvenile court to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. (Lara, supra, 4 Cal.5th at pp. 310, 312-313.) " '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 [the] cause to a court of criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [the defendant] to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then [his] convictions . . . are to be reinstated. ([Welf. & Inst. Code,] § 707, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [him] to a court of criminal jurisdiction, then it shall treat [his] convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' [Citation.]" (Id. at p. 310, italics omitted.)
Accordingly, we will conditionally reverse and remand in accordance with Lara's specifications.
Error in Finding a Prior Strike Conviction
Defendant also maintains the trial court erred in finding he had suffered a prior strike conviction, i.e., his conviction of rape in Washington. The Attorney General concedes the error.
Under the three strikes law: " 'The determination of whether a prior conviction is a prior felony conviction for purposes of [this section] shall be made upon the date of that prior conviction . . . .' " (People v. Laino (2004) 32 Cal.4th 878, 895.) The "conviction for a serious or violent felony must precede the present felony; the present felony must be committed after the serious or violent felony conviction." (People v. Flood (2003) 108 Cal.App.4th 504, 507.)
Because defendant committed the Concord offenses on May 1, 2000, but was not convicted of the Washington rape until 2001, he did not have a prior conviction at the time he committed the crimes against Doe 2.
Error in Imposing Both a One-Strike Sentence and a Base Term For a Rape Conviction
Defendant further contends the trial court erroneously imposed a one-strike sentence as an enhancement for the count 1 rape conviction, in addition to imposing the lower three-year base term for that conviction. The Attorney General agrees.
The jury found true the One Strike allegation that defendant committed the sex crimes in counts 1 through 6 during the commission of a burglary. (Pen. Code, § 667.61, subd. (d)(4).)
The One Strike Law "sets forth an alternative and harsher sentencing scheme for certain enumerated sex crimes perpetrated by force. . . ." (People v. Mancebo (2002) 27 Cal.4th 735, 741.) "Because the One Strike law constitutes a separate sentencing scheme for offenses within its scope, punishment for such offenses is not subject to other sentencing schemes, except where the One Strike law so provides." (People v. Rodriguez (2012) 207 Cal.App.4th 204, 214.) Thus, the One Strike sentence must be imposed as the principal term, not as an enhancement to the principal term. (See People v. Acosta (2002) 29 Cal.4th 105, 118-128; People v. Fuller (2006) 135 Cal.App.4th 1336, 1343 ["the trial court erred in sentencing [defendant] under both the one strike and the determinate sentencing laws for each rape count because the former is an alternative, harsher sentencing scheme for those to whom it applies, not an enhancement under the latter"].) As the court in People v. Fuller explained, "on remand, on all counts other than the one on which the court imposes the single one strike sentence, the trial court should sentence [defendant] under the determinate sentencing law." (People v. Fuller, supra, 135 Cal.App.4th at p. 1343.)
"Before September 2006, the One Strike law contained former subdivision (g), which stated that a One Strike sentence 'shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.' (Former [Pen. Code,] § 667.61, subd. (g), italics added.)" (People v. Rodriguez, supra, 207 Cal.App.4th at p. 212.) Because defendant's crimes were committed prior to the 2006 amendment, the court properly imposed only a single One Strike sentence.
The Firearm Enhancements
Defendant also claims he is entitled to the benefit of the statutory change allowing the trial court to strike to firearm enhancements. (Pen. Code, §§ 12022.5, subd. (c), 12022.53, subd. (h).) The Attorney General also concedes this point.
Here, the trial court imposed and stayed seven firearm enhancements: five under Penal Code section 12022.53, subdivision (b) and two under Penal Code section 12022.3, subdivision (a).
The minute order erroneously reflects that the firearm enhancement as to count 1 was imposed under Penal Code section 12022.3, subdivision (c), but the firearm enhancement found true by the jury was alleged under Penal Code section 12022.53, subdivision (b).
The abstract of judgment erroneously indicates the court imposed and stayed two firearm enhancements under Penal Code section 12022.5, subdivision (a)(1), which were neither found by the jury nor addressed by the trial court in its minute order.
Effective January 1, 2018, both sections were amended to allow the trial court to exercise its discretion to strike the enhancements. (Pen. Code, §§ 12022.5, subd. (c), 12022.53, subd. (h).) We agree the amendments apply retroactively under the rule of In re Estrada (1965) 63 Cal.2d 740, 746, and the matter should be remanded to allow the court to exercise its discretion regarding whether to strike these enhancements.
Cruel and Unusual Punishment
Defendant lastly maintains his sentence of 38 years to life for crimes committed as a minor constitutes cruel and unusual punishment, relying on People v. Contreras (2018) 4 Cal.5th 349 (Contreras).) The Attorney General observes that, since defendant is entitled to remand for resentencing, the trial court at that time must "follow the reasoning of Contreras in resentencing defendant."
Although defendant signed forms indicating he was 16 years old at the time he committed his crimes, at trial his sister testified that he was actually 14 years old. On appeal, he claims he was 16 years old. --------
Contreras held sentences of 50 years-to-life and 58 years-to-life imposed on 16-year-olds violated the Eighth Amendment, explaining "[c]onfinement with no possibility of release until age 66 or age 74 seems unlikely to allow for the reintegration that Graham [v. Florida (2010) 560 U.S. 48] contemplates." (Contreras, supra, 4 Cal.5th at p. 368.) "Under Graham, juvenile nonhomicide offenders must be given 'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.' " (Id. at p. 364.)
We will therefore direct the court to comply with Contreras in resentencing defendant.
DISPOSITION
Defendant's conviction is conditionally reversed, and the matter remanded to the juvenile court to hold a transfer hearing. In the event the court concludes it would have transferred defendant to adult criminal court, the convictions shall be reinstated, but the court is directed to vacate the finding that defendant suffered a prior strike conviction, and the court shall resentence defendant in accordance with this opinion, issue an amended abstract of judgment, and forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.