Opinion
A166310
10-18-2023
In re C.J., a Person Coming Under the Juvenile Court Law. v. C.J., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. JV26920A)
RICHMAN, J.
C.J. appeals from an order transferring him from the juvenile court to adult criminal court pursuant to Welfare and Institutions Code former section 707. (Sen. Bill No. 1391 (2017-2018 Reg. Sess.), Stats. 2018, ch. 1012, § 1, eff. Jan. 1, 2019.) He contends we should reverse the order and remand the matter for the juvenile court to conduct a new transfer hearing in light of recent changes to section 707 enacted by Assembly Bill No. 2361 (2021-2022 Reg. Sess., Stats. 2022, ch. 330, § 1, eff. Jan. 1, 2023) (Assembly Bill 2361). The People concede the amendments to section 707 apply retroactively, but they contend remand is unnecessary because there is no reasonable probability the juvenile court would have reached a different result under the amendments. We reverse and remand for the juvenile court to conduct a new transfer hearing applying the amended statute.
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
As summarized in our prior opinion in People v. Blay (Sept. 16, 2019, A138380) [nonpub. opn.] (Blay), the facts are these: "Tong Van Le was the victim of a robbery at his convenience store in San Francisco....On September 13, 2008, Le was killed in his car as it entered the garage of his Novato home. [¶] . . . Le was killed at the direction of [L.B.] because Le was expected to testify against him. [S.W.] drove the vehicle that followed the victim driving home from the San Francisco market that [L.B.] was accused of robbing. [D.B.], [L.B.'s] brother, identified the victim ('There he is') getting into his car, and gave [S.W.] the orders to follow and 'Don't lose him.' Le had just opened his garage door, and driven his car into the garage, when [K.A.] jumped out of [S.W.'s] car, ran into Le's garage, and fired a bullet into Le's face, while Le was still seated in his vehicle. [D.B.] then left the car, went into the garage, and returned with [K.A.], who was carrying a gun. When [S.W.] inquired 'are there any bullets [left] in the gun?', [K.A.] replied, 'No.' [C.J.], who also initially identified the victim, told [S.W.] to drive away from the scene."
Although C.J. was 17 years old at the time of his offenses, he was tried as an adult and found guilty by a jury of first degree murder (Pen. Code, § 187), preventing a witness from testifying (id., § 136.1), conspiring to commit those crimes (id., § 182), and being an accessory to murder (id., § 32). The jury also found true special circumstance allegations that the murder was committed to prevent the victim-witness from testifying (Pen. Code, § 190.2, subd. (10)) and while lying in wait (id., § 190.2, subd. (15)). C.J. appealed from his life sentence. (Blay, supra, A138380.)
In 2019, we conditionally reversed the judgment and remanded for a transfer hearing in light of Proposition 57 and People v. Superior Court (Lara) 4 Cal.5th 299 (Lara). (Blay, supra, A138380.) Under Proposition 57, prosecutors who wish to try a juvenile as an adult must commence the action in juvenile court and move to transfer the matter to adult criminal court. (Lara, supra, 4 Cal.5th at p. 304.)
In 2020, on remand, the People filed a wardship petition against C.J. and sought to transfer C.J. from juvenile court to adult criminal court. After numerous continuances, the transfer hearing was held in March through June of 2022.
On August 24, 2022, the juvenile court issued a written ruling granting the transfer request. After summarizing the evidence from the transfer hearing, the court found that most, but not all, of the factors set forth in section 707, subdivisions (a)(3)(A) through (E) favored transfer. It found the first factor, the degree of C.J.'s criminal sophistication, "mixed" and "[t]he overall effect . . . neutral." The second, third, fourth, and fifth factors- whether C.J. can be rehabilitated prior to the expiration of the juvenile court's jurisdiction, his delinquent history, his success of previous rehabilitation attempts, and the circumstances and gravity of the offenses- weighed in favor of transfer. Based on its assessment of these factors, the court found by a preponderance of the evidence that C.J. should be transferred to adult criminal court.
On September 14, C.J. appealed from the transfer order and requested a stay pending the outcome of the appeal.
Apparently, at a hearing on September 15, the court noted an error it had made in the August 24 order. That order states that it "is not an appealable order, but must be challenged by extraordinary writ." However, section 801, which was added by the Legislature and took effect before the August 24 order, provides that a transfer order is subject to immediate appeal. (Assem. Bill No. 624 (2021-2022 Reg. Sess.), Stats. 2021, Ch. 195, § 1, eff. Jan. 1, 2022; § 801, subd. (a); Cal. Rules of Court, rule 5.770(g)(1).)
On September 20, the court issued an order granting the request for a stay. It also issued an "Amended Ruling After the Transfer Hearing," which stated that the transfer order is in fact appealable under recently added section 801, that a stay shall issue, and that it retained jurisdiction to modify or lift the stay upon C.J.'s request. It made no other changes to the August 24 order.
Although not raised by either party, we note the general rule that" 'an appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court,'" thus precluding it from vacating or amending the order. (People v. Cunningham (2001) 25 Cal.4th 926, 1044; People v. Alanis (2008) 158 Cal.App.4th 1467, 1472.) One exception is that a court may correct clerical errors anytime. (In re Candelario (1970) 3 Cal.3d 702, 705; People v. Alanis, at pp. 1473-1474.) "Clerical error, however, is to be distinguished from judicial error which cannot be corrected by amendment. The distinction between clerical error and judicial error is 'whether the error was made in rendering the judgment, or in recording the judgment rendered.' [Citation.]" (In re Candelario, supra, 3 Cal.3d at p. 705.) Here, it appears the changes made in the amended order did more than simply correct a clerical error. (See Hunydee v. Superior Court of San Diego County (1961) 198 Cal.App.2d 430, 433 ["Where the court's error is due to a mistake of law or an incorrect interpretation of the law, then the error is judicial and not correctable"].) Accordingly, the court was without jurisdiction to amend the August 24 order being appealed. But even assuming the amended order is valid, we would still reach the same conclusion of reversing and remanding for a new transfer hearing, for the reasons now discussed in the text.
DISCUSSION
C.J. argues that the amendments to section 707 that took effect after the juvenile court's ruling here require remand for a new transfer hearing. The People concede that the amended law applies retroactively to C.J.'s case, but they contend remand is unnecessary, because it is not reasonably probable the court would reach a different result under the amended law. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
Section 707 governs the procedures for transferring a minor from juvenile court to adult criminal court. At the time of C.J.'s transfer hearing, the People bore the burden to prove by a preponderance of the evidence that the minor "should be transferred to a court of criminal jurisdiction." (Cal. Rules of Court, former rule 5.770(a); former § 707, subd. (a)(3); see Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186.) Section 707 also required the juvenile court to consider five criteria in making that decision: (1) the minor's criminal sophistication; (2) whether the minor could be rehabilitated before juvenile court jurisdiction expired; (3) the minor's previous delinquent history; (4) the success of previous attempts at rehabilitation; and (5) the circumstances and gravity of the alleged offense(s). (Former § 707, subds. (a)(3)(A)-(E).) The court was also required to state in its order the basis for its ultimate finding that the juvenile should be transferred. (Former § 707, subd. (a)(3).)
Effective January 1, 2023, Assembly Bill 2361 amended section 707, subdivision (a)(3) in a number of ways. First, it raised the People's burden of proof to clear and convincing evidence. (§ 707, subd. (a)(3); Stats. 2022, ch. 330, § 1.) Second, it made the minor's amenability to rehabilitation "the ultimate question for the court to decide," rather than simply one of the five factors to consider. (§ 707, subd. (a)(3); Stats. 2022, ch. 330, § 1; In re E.P. (2023) 89 Cal.App.5th 409, 416 (E.P.).) Third, amended section 707 requires the court to recite not only the basis for its decision, but also the reasons supporting its finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. (§ 707, subd. (a)(3); Stats. 2022, ch. 330, § 1; E.P., supra, 89 Cal.App.5th at p. 416.)
Still, "[u]nder the amended statute, like the previous version, the court has the discretion to conclude that one or more of the five factors predominate so as to determine the result, even though some or all of the other factors might point to a different result." (E.P., supra, 89 Cal.App.5th at p. 417.)
The parties agree, as do we, that because C.J.'s case is not yet final, he is entitled to the benefit of the amended statute. (E.P., supra, 89 Cal.App.5th at p. 416; see Lara, supra, 4 Cal.5th at p. 304; In re Estrada (1965) 63 Cal.2d 740, 744-748.)
Applying the amendments to section 707 retroactively, we conclude the juvenile court erred in ordering C.J.'s transfer because it applied the former preponderance of the evidence standard and directed its analysis to whether "transfer[ ] is appropriate," not whether C.J. is "amenable to rehabilitation while under the jurisdiction of the juvenile court." (§ 707, subd. (a)(3).)
This leads us to whether we should remand for a new transfer hearing, an issue the parties disagree on. The People contend remand is unnecessary, asserting we should evaluate the claim of section 707 error under the harmless error standard of Watson, and conclude it is not reasonably probable the court would have reached a different result under the amended law. (See Watson, supra, 46 Cal.2d at p. 836.) The People rely on recent appellate court decisions that have applied the harmless error standard of Watson to a juvenile court's failure to comply with the retroactively-applicable amendments to section 707. (See In re T.A. (2023) 90 Cal.App.5th 347, 352-356, review granted July 26, 2023, S279635 [holding error harmless under Watson]; In re S.S. (2023) 89 Cal.App.5th 1277, 1289-1294 [accepting the parties' "implicit[] agree[ment] a more favorable result for minor is reasonably probable" and remanding for a new fitness hearing].)
In his reply brief, C.J. counters that a harmless error analysis should not apply here. As he notes, two days after the People filed their respondent's brief, our Supreme Court granted review in In re T.A., with directions to the Fourth District, Division Two to vacate its decision, rendering it depublished, and to reconsider "the cause in light of In re F.M. (2023) 14 Cal.5th 701, 712-716 [(F.M.)] and E.P.[, supra,] 89 Cal.App.5th [at p.] 416 ['under the previous version whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court was one of five factors for the court to consider in determining whether the case should be transferred to criminal court. The amendment states it as the ultimate question for the court to decide']." (In re T.A., supra, 90 Cal.App.5th 347.)
In F.M., our Supreme Court addressed the standard that applies when a juvenile court fails to comply with section 702's requirement that it declare on the record at a hearing "before or at the time of disposition" its choice whether to treat an alleged wobbler as a misdemeanor or as a felony. (F.M., supra, 14 Cal.5th at pp. 712-716.) The Court found the harmless error standard of Watson inappropriate, concluding the standard "does not address the risk of courts misapprehending the extent of their lawful authority in this particular context." (F.M., at p. 716.) The Court also discussed the "practical difference in assessing the effect of an error when the court has not articulated whether a discretionary decision was made in the first place, as compared to when there were errors in a decision the court actually rendered." (Ibid.) It observed that in the former situation, "where the concern is that no discretionary decision was made, attempting to discern the likelihood of a 'more favorable' decision is a more speculative inquiry." (Ibid.) "Instead of hypothesizing what decision the juvenile court would have made if it had understood the extent of its lawful authority, reviewing courts have consistently held that remand is appropriate in these circumstances." (Ibid.)
C.J. analogizes the situation in F.M. to his case and contends we should also decline to apply a harmless error analysis to the juvenile court's failure to comply with amended section 707. His argument is well taken. It would be inappropriate to adopt the People's position, as it would require us to speculate as to how the juvenile court might apply the new legal standards. Accordingly, we agree with C.J. that the transfer order should be reversed, and the matter remanded for a new transfer hearing.
DISPOSITION
The order is reversed, and the matter remanded to the juvenile court for a new transfer hearing pursuant to amended section 707.
We concur: Stewart, P.J., Miller, J.