Filed 5/24/17 P. v. McNeal CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID J. McNEAL,
Defendant and Appellant.

A147070

(Alameda County
Super. Ct. No. C172678B)


There is currently a split of authority as to whether Proposition 57, adopted by the voters on November 8, 2016, modifying among other things the provisions of Welfare and Institutions Code section 707 concerning the determination of whether a minor should be tried for the commission of a criminal offense as a juvenile or as an adult, applies retroactively to a minor whose conviction in adult court was not final when Proposition 57 became effective. This appeal presents that question but, unlike the cases in which the conflict has emerged, defendant did receive a fitness hearing and under the former provisions of section 707 was found not fit for treatment in juvenile court. Arguing that the amendments to section 707 should apply retroactively, defendant contends he is entitled to a redetermination of that issue under the more lenient provisions of the amended statute. We find it unnecessary to weigh in on the broader question of retroactivity because the juvenile court’s findings in the prior fitness hearing make clear that defendant would also be treated as an adult under the revised standards.
Background
On April 2 and 3, 2013, defendant David J. McNeal, then 15 years of age, and several other youths went on a “two-day crime spree.” The specifics of those crimes are not relevant to the issues raised on appeal, so that the offenses as ultimately found by a jury may be briefly stated. The first offense occurring on April 2 was murder (Pen. Code, § 187) in the course of a carjacking. (Pen. Code, § 215, subd. (a).) Defendant was not the shooter who killed the victim but was involved and the charge against him was enhanced with the allegation that a principal was armed with a firearm. (Pen. Code, § 12022, subd. (a)(1).) The second offense that same day was the carjacking of another vehicle (Pen. Code, § 215, subd. (a)), during which defendant brandished the gun that had been used in the earlier murder. (Pen. Code, §§ 12022.5, subd. (a); 12022.53, subds. (b), (g).) The following day, defendant committed second degree robbery (Pen. Code, § 211), with personal use of a firearm (Pen. Code, §§ 12022.5, subd. (a); 12022.53, subds. (b), (g)) and assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) , in which he personally used a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and inflicted great bodily injury on a third victim (Pen. Code, § 12022.7, subd. (a)). Most of the offenses were serious and violent felonies within the meaning of several Penal Code provisions.
On April 16, 2013, defendant was charged in juvenile court with these offenses. On April 14, 2014, the juvenile court conducted a fitness hearing under the then-applicable provisions of section 707. The court received in evidence defendant’s behavioral study and heard testimony from the probation officer who prepared the study and from the defendant’s mother and from defendant. As set forth more fully below, at the conclusion of the hearing the court found defendant amenable to treatment in juvenile court under three of the five statutory criteria, but not amenable under two of the criteria so that it found him “not fit to be a proper subject to be dealt with under juvenile court law” and referred the matter “to the district attorney for prosecution under general law.” Thereafter, the prosecutor filed a felony complaint and an amended information charging defendant with the offenses specified above. On September 14, 2015, a jury found defendant guilty on all counts and found all enhancements true. On December 4, 2015, the court sentenced defendant to an aggregate term of 48 years, four months to life imprisonment and defendant timely appealed.
Discussion
1. Proposition 57
Defendant’s principal contention is that “Proposition 57 made a major change to the process of determining whether a juvenile is a suitable person to be dealt with in the juvenile system, and this change is retroactive. Therefore, the case should be remanded to the juvenile court for a new determination of suitability, and the felony convictions should be reversed for that purpose.”
There is no dispute about the significance of the changes made by Proposition 57. The amendment removed the prosecutor’s authority to file any charges against a minor directly in “adult” court, requiring that all such charges be filed in juvenile court and handled there unless the court ordered transfer “from juvenile court to a court of criminal jurisdiction.” (§ 707, subd. (a)(1).) Under the provisions of section 707 as modified by a ballot measure in 2000 and in effect until Proposition 57 became effective on November 9, 2016, minors 14 years of age or older who were alleged to have committed any of specified offenses (including those charged against defendant here) were “presumed to be not a fit and proper subject to be dealt with under the juvenile court law” unless the minor convinced the court that he or she “would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of” five specified criteria. To find a minor fit for treatment as a juvenile, the court was required to find the minor “fit and proper under each and every one” of those criteria. (§ 707, former subd. (c); Prop. 21, § 26, approved by voters, Primary Election (Mar. 7, 2000); Stats. 2010, ch. 178, § 97; Stats 2007, ch. 137, § 1.) Proposition 57 retained the same five criteria but eliminated the presumption that the minor is unfit for juvenile court treatment and removed the requirement that the court find the minor suitable under “each and every one” of the five criteria. (§ 707.)
The Attorney General asserts that the revisions that Proposition 57 made to section 707 do not apply retroactively to a conviction entered prior to the effective date of the amendment even if the conviction was not yet final. When the Attorney General’s briefs were filed, two cases—one from our colleagues in this district and one from the Sixth Appellate District—had so held. (People v. Cervantes (2017) 9 Cal.App.5th 569, 580, review granted May 17, 2017, A140464 [affirmed convictions need not be reevaluated under new provisions, but fitness hearing under new provisions required as to charges reversed and remanded for new trial]; People v. Mendoza (2017) 10 Cal.App.5th 327, 331 [no retroactive application of Proposition 57].) Subsequently, a division of the Fourth District Court of Appeal has come to the opposite conclusion. (People v. Vela (2017) 11 Cal.App.5th 68 [conviction of minor conditionally reversed and remanded for juvenile transfer hearing under revised section 707 provisions; if juvenile court determines defendant not fit subject for treatment under juvenile court law, the conviction to be reinstated].)
In none of these cases had there been prior hearings to determine the suitability of the minor for treatment under juvenile court procedures. Rather, under the provisions of section 707 in effect when the charges were filed and the minors were convicted, the charges against the minors were filed directly in “adult” criminal court. In Cervantes and Mendoza the courts rejected the contention that because the judgments were not yet final and the amendments to section 707 effectively resulted in a reduction of punishment, under In re Estrada (1965) 63 Cal.2d 740 the more lenient provisions must be applied retroactively. Both courts concluded that subsequent Supreme Court decisions “have limited Estrada’s retroactivity exception to statutory changes that mitigate the penalty for a particular crime, which is not true of Proposition 57.” (Cervantes, supra, 9 Cal.App.5th at p. 600, review granted May 17, 2017, A140464; Mendoza, supra, 10 Cal.App.5th at pp. 346-347.) The court in Vela disagreed, “infer[ing] that the electorate intended the possible ameliorating benefits of Proposition 57 to apply to every minor to whom it may constitutionally apply.” (People v. Vela, supra, 11 Cal.App.5th at p. 81.)
We need not express an opinion on this fundamental disagreement because even if the new provisions should be applied retroactively, defendant in this case would not be entitled to a new fitness hearing. Defendant did receive such a hearing before this matter was transferred to the “adult” criminal court, and he was found not suitable for treatment in juvenile court. Defendant is correct that he was found suitable under three of the statutory criteria (whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; the minor’s previous delinquent history; and success of previous attempts by the juvenile court to rehabilitate the minor [section 707, subdivision (a)(2)(B, C, D)]) and under the amended provisions fitness for juvenile court treatment no longer requires a finding of suitability under all five of the statutory criteria. However, in finding defendant not fit, the juvenile court found him unsuitable under two criteria (the degree of criminal sophistication exhibited by the minor; and the circumstances and gravity of the offense alleged in the petition to have been committed by the minor [section 707, subdivision (a)(2)(A, E)]) and the court stated explicitly that those factors alone were sufficient to find defendant not fit for juvenile treatment.
In finding that defendant’s level of sophistication militated against suitability, the court “kind of agree[d] with the prosecutor, that if [defendant] were not as sophisticated a criminal as [the prosecutor] alleges, he would have walked away at some point. Maybe not the first time, maybe not the first incident where they accosted Mr. Jaramillo and took his car. But certainly I cannot understand how he could not have walked away after a murder, and continue to hang out with the same people, and continue to possess the weapon that, in fact, committed that crime. [¶] That, to me, is evidence of a level of criminal sophistication. And from the court’s perspective, is incredibly depressing and sad. It’s almost an amoral situation, which he doesn’t really appreciate the gravity and the circumstances of that offense. [¶] . . . [¶] I think it’s a level of immorality that is shocking to the court. [¶] . . . [¶] . . . So, I think with respect to criteria number one, the minor clearly is not amenable to the treatment, care, and training programs in juvenile court. [T]hat is based on the evidence that I heard, as well as what is in the probation officer’s report.”
“With respect to criteria number five,” the court continued, “which is the seriousness and gravity of the offense, there is probably no more serious offense that can be committed by anyone these days, than murder. [¶] Now I know that the minor was not the actual shooter. The minor was not actually out of the car, and was not involved with his co-participants. But, nonetheless, he was there. He did nothing to pull himself away from the situation, and in fact, aided in their getting away from the crime, and actually harbored the gun for a long time afterward. [¶] And that in that regard, he aided and abetted both as a participant, and later as an accessory, because he had the murder weapon, and in terms of that alone, I think that he is clearly not amenable to the care, treatment, and training of the juvenile court. [¶] I would say that just based on that criteria alone, since I don’t find the minor amenable, that that alone would be enough for me to send him to adult court.”
The juvenile court having already found defendant unsuitable for treatment in juvenile court under criteria that remain in effect under the changes made by Proposition 57, there is no basis to require a redetermination even if the statutory amendments should be applied retroactively to cases not final on appeal.
2. Sentencing enhancements
Defendant also contends that the trial court erred in determining the length of two sentencing enhancements. The Attorney General asserts the sentence is correct but that the abstract of judgment must be corrected to show the correct Penal Code provision under which the enhancements were imposed.
Count 2 (carjacking) and count 3 (robbery) of the amended information both alleged enhancements for personal use of a firearm under Penal Code sections 12022.5, subdivision (a) and 12022.53, subdivision (b). The additional and consecutive term under section 12022.5 subdivision (a) is three, four, or 10 years. The additional and consecutive term under section 12022.53, subdivision (b) is 10 years. The sentences under counts 2 and 3 were made subordinate to the principal term under count 4. In imposing sentence on count 2, the court stated “as to the use of the weapon, personally use of the weapon, to the midterm, which is one-third of the midterm, to a term of three years, four months.” As to count 3, the court again stated, “a separate and independent act, the personal use and discharging of a firearm, to one-third the midterm to three years and four months.” Although three years and four months is one-third of the 10-year term under Penal Code section 12022.53, subdivision (b), defendant contends that the court’s reference to the “midterm” indicates that the court meant to impose the enhancement under Penal Code section 12022.5, subdivision (a), which unlike Penal Code section 12022.53 subdivision (b) does provide a triad of potential sentences. Thus, defendant argues that the enhancements should be only one third of four years, or one year four months. Defendant’s questionable interpretation of the trial judge’s intent is not supported by any of the sentencing memoranda submitted to the court. And, in all events, the shorter term would violate the law. The 10-year enhancement mandated by Penal Code section 12022.53 applies only to specified offenses, carjacking and robbery among them, and subdivision (j) of that section provides: “When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment for that enhancement pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another enhancement provides for a greater penalty or a longer term of imprisonment.” Therefore, the length of the term imposed for the two enhancements was correctly stated but, as the Attorney General points out, the abstract of judgment should be corrected to show that the enhancement was imposed under section 12022.53, subdivision (b) rather than under section 12022.5, subdivision (a) of the Penal Code.
Disposition
The judgment is affirmed. The abstract of judgment shall be corrected as stated above.


Pollak, Acting P.J.

We concur:

Siggins, J.
Jenkins, J.

















A147070