Filed 11/30/18 P. v. Birdsall CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
| THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN BIRDSALL, Defendant and Appellant. |
A146666
(Alameda County Super. Ct. No. H54947A)
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MEMORANDUM OPINION[1]
Defendant Christian Birdsall, who was 16 years old when the crimes charged in this matter occurred, was convicted in criminal (or adult) court of first degree murder with special circumstances, as well as arson. The trial court sentenced him to life imprisonment without the possibility of parole. On appeal, Birdsall argues among other things that, under Proposition 57, he is entitled to a transfer hearing in juvenile court to determine whether he was fit to be tried in adult court. We agree.
The prosecutor directly filed charges against Birdsall in adult court. In November 2016, while this appeal was pending, California voters enacted Proposition 57, which eliminated this direct filing option and requires instead that the prosecution commence an action such as this one in juvenile court. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) “If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what we will call a ‘transfer hearing’ to determine whether the matter should remain in juvenile court or be transferred to adult court.” (Ibid.)
Our Supreme Court has held that Proposition 57’s elimination of direct filing by the district attorney was an ameliorative change in the law that applied retroactively to cases not yet final on appeal. (Lara, supra, 4 Cal.5th at pp. 303–304.) Because Birdsall’s judgment of conviction is not yet final, he is entitled to benefit from the changes enacted by Proposition 57. We will conditionally reverse the judgment and remand the case for a juvenile court transfer hearing (see Lara, at pp. 310, 312–313 [discussing a similar remand procedure]), without prejudice to the right of the parties to appeal any subsequently entered judgment or disposition.[2]
DISPOSITION
The judgment is conditionally reversed, and the cause is remanded to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. If the juvenile court determines it would have transferred Birdsall to a court of criminal jurisdiction under current law, the judgment shall be reinstated, subject to the parties’ right to appeal the reinstated judgment. If the juvenile court determines it would not have transferred Birdsall to a court of criminal jurisdiction, then his criminal convictions will be deemed to be juvenile adjudications as of that date. The court is then to conduct a dispositional hearing and impose an appropriate disposition, subject to the parties’ right to appeal the dispositional order.
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Streeter, J.
We concur:
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Pollak, P.J.
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Reardon, J.*
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[1] We resolve this appeal by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. The parties are aware of the detailed factual and procedural background of this case.
[2] In addition to raising the Proposition 57 issue in this appeal, Birdsall presents several other challenges to his convictions and sentence. In light of our disposition of the appeal on Proposition 57 grounds, we do not address his other contentions. He is free to raise them (to the extent they may still be applicable) in an appeal of any subsequently entered judgment or disposition.
* Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
