Filed 3/28/18 P. v. Cooper CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


THE PEOPLE OF THE STATE OF CALIFORNIA.,
Plaintiff and Respondent,
v.
DA’SHAWN COOPER,
Defendant and Appellant.

A151872

(Alameda County
Super. Ct. No. C174871)


MEMORANDUM OPINION
On December 31, 2013, appellant Da’Shawn Cooper approached a parked car and opened fire on its four occupants with a semiautomatic pistol, killing one of them. Although he was 17 years old at the time, he was prosecuted as an adult and sentenced to prison for a term of 78 years to life after a jury convicted him of one count of second degree murder, three counts of attempted murder, one count of shooting at an occupied motor vehicle, and three counts of assault with a semiautomatic firearm accompanied by various firearm and great bodily injury enhancements. (Pen. Code, §§ 187, 664/187, 246, 245, subd. (b), 12022.5, subd. (a), 12022.53, subds. (b)-(d), 12022.7, subd. (a).) Appellant was sentenced on October 14, 2016, and timely filed a notice of appeal.
Appellant contends (1) under recently enacted Proposition 57, his convictions should be conditionally reversed and the case remanded to the juvenile court to determine whether he is suitable for trial in adult court; and (2) the case must be remanded for resentencing so the trial court can determine whether one or more firearm enhancements should be stricken in the interests of justice pursuant to recent statutory amendments conferring such discretion on trial courts. The Attorney General appropriately concedes the case must be remanded for these purposes.
I. Proposition 57
Although appellant was a juvenile when he committed the shooting underlying the charges in this case, the prosecutor directly filed the charges against him in adult court, as was permitted under former Welfare and Institutions Code section 707, subdivision (d), rather than filing a wardship petition in juvenile court. On November 8, 2016, while this appeal was pending, California voters enacted Proposition 57 requiring all charges against juveniles to be initially filed in juvenile court. Though a district attorney may bring a motion to transfer certain cases to adult court, the juvenile court is now charged with deciding whether a transfer is appropriate and may order a transfer only after it holds a hearing to consider such factors as the minor’s maturity, degree of criminal sophistication, prior delinquent history, and potential for rehabilitation. (Welf. & Inst. Code, § 707, subd. (a).)
In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara), our Supreme Court concluded 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. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada); People v. Francis (1969) 71 Cal.2d 66, 75–76 (Francis).) Since appellant’s judgment of conviction is not yet final, his Proposition 57 claim is well-taken.
In terms of the relief to which appellant is entitled, the Lara opinion tacitly endorses a remand procedure described by the Fourth District Court of Appeal in People v. Vela (2017) 11 Cal.App.5th 68, 82 (Vela), which requires a conditional reversal of the criminal convictions and a remand of the case for a transfer hearing before the juvenile court. (Lara, supra, 4 Cal.5th at pp. 310, 312–313.) Accordingly, appellant’s convictions and sentence must be conditionally reversed, and the matter remanded so the juvenile court can conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707. (Lara, 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,] § 707.1, 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.’ ” (Lara, at p. 310, citing Vela, at p. 82, italics omitted.)
II. Senate Bill No. 620
Appellant’s sentence includes firearm enhancements under sections 12022.5 and 12022.53, both of which were mandatory at the time of the sentencing hearing in this case. (See former §§ 12022.5, subd. (c) [“Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”]; 12022.53, subd. (h) [same], both statutes amended by Stats. 2017, ch. 682, § 2, p. 95.) Last year, however, the Legislature enacted Senate Bill No. 620, effective January 1, 2018. (Sen Bill No. 620 (2017-2018 Reg. Sess.).) Under its provisions, sentencing courts now have the discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), to “strike or dismiss an enhancement otherwise required to be imposed by” those statutes if doing so would be “in the interest of justice pursuant to Section 1385.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).) This new discretion to strike firearm enhancements applies explicitly “to any resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
Appellant argues his case must be remanded for resentencing so the trial court can exercise its discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h), and determine whether to strike any of the firearm enhancements. We accept the Attorney General’s concession that a remand for this purpose is appropriate. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678–679 [under Estrada, supra, 63 Cal.2d at pp. 747–748, and Francis, supra, 71 Cal.2d at p. 76, amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final].)
III. Disposition
The judgment is conditionally reversed for further proceedings in accordance with Proposition 57, and the case is remanded to the juvenile court with directions to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707, as discussed within this opinion.
If, at the transfer hearing, the juvenile court determines it would not have transferred appellant to a court of criminal jurisdiction, his criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date, and the juvenile court will conduct a dispositional hearing.
If, on the other hand, the juvenile court determines it would have transferred appellant to a court of criminal jurisdiction, the judgment shall be reinstated as of that date with regard to all convictions and enhancement findings, and a resentencing hearing will be held before the criminal court for the purpose of allowing it to exercise its discretion under sections 12022.5, subdivision (c), and 12022.53, subdivision (h). Once it has resentenced appellant, the court shall prepare an amended abstract of judgment and send a certified copy to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.

NEEDHAM, J.



We concur.




JONES, P.J.




BRUINIERS, J.









(A151872)