Filed 11/20/18 P. v. Perez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

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Jesse Perez III (defendant), who was 17 years old at the time of the offenses of which he was convicted as an adult, appeals following resentencing. He contends he is entitled to have his convictions and sentence vacated, and the matter remanded to the juvenile court for a juvenile fitness/transfer hearing. (Welf. & Inst. Code, § 707.)[1] He further contends the indeterminate abstract of judgment must be corrected to state the amount of fines imposed by the trial court. We agree with both claims.

FACTS AND PROCEDURAL HISTORY[2]

“On July 18, 2008, appellants, both Norteno criminal street gang members, drove around town in a pickup truck stolen from the City of Delano until they found Salvador Gandarilla, Luis Celaya, and brothers Carlos Rodriguez and Alejandro Rodriguez standing outside the Rodriguez residence. Prado got out of the truck and asked the four whether they were Sureno gang members. Gandarilla was a founder of a local Sureno gang, the Rodriguez brothers may have been former gang members, and Celaya was not gang affiliated. After a general denial that they were gang members, Gandarilla asked, ‘What are you gonna do if we are Surenos?’ In response, Prado reached into the truck, pulled out a long-barreled firearm, fatally shot Gandarilla, and seriously injured Carlos Rodriguez and Celaya. Before he was shot, Carlos Rodriguez pulled a loaded flare gun from his pocket and tried to fire it at the shooter, but he dropped it when he was injured. It was uncertain whether the flare gun fired or hit anyone. Perez and Prado then drove off and abandoned the truck after attempting to burn it by igniting some papers inside the cab. Minor damage to the pickup resulted.

“In a subsequent search of Prado’s residence, police officers discovered methamphetamine.” (Prado, supra, F060754.)

As a result of the foregoing, defendant was convicted of premeditated murder that was intentional, committed while an active participant in a criminal street gang, and committed for the benefit of a criminal street gang (Pen. Code, §§ 186.22, subd. (b)(1), 187, subd. (a), 190.2, subd. (a)(22)), three counts of premeditated attempted murder committed for the benefit of a criminal street gang (id., §§ 186.22, subd. (b)(1), 187, subd. (a), 189, 664), three counts of assault with a firearm committed for the benefit of a criminal street gang (id., §§ 186.22, subd. (b)(1), 245, subd. (a)(2)), unlawful taking of a vehicle committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1); Veh. Code, § 10851, subd. (a)), arson committed for the benefit of a criminal street gang (Pen. Code, §§ 186.22, subd. (b)(1), 451, subd. (d)), and active participation in a criminal street gang (id., § 186.22, subd. (a)). It was found true that he was 16 years of age or older when he committed the offenses. (§ 707, former subd. (d)(1).) (Prado, supra, F060754.) He was sentenced to life in prison without the possibility of parole (LWOP) plus 90 years to life, with a determinate term totaling eight years eight months. (Ibid.)

On appeal, we corrected defendant’s sentence on the premeditated attempted murder counts to provide for a term, on each count, of life imprisonment with a minimum parole eligibility period of 15 years. We also directed that the abstract of judgment be corrected with regard to certain fees and fines. In all other respects, we affirmed the judgment. (Prado, supra, F060754.)

On May 15, 2015, defendant filed a petition for writ of habeas corpus in the California Supreme Court. (Cal. Supreme. Ct. docket, supra, S226492.) The Attorney General conceded defendant was entitled to a resentencing hearing pursuant to People v. Gutierrez (2014) 58 Cal.4th 1354 [no presumption in favor of LWOP in sentencing 16- or 17-year-old offender for special circumstance murder]), and the high court issued an order to show cause, returnable before the superior court. (Cal. Supreme Ct. docket, supra, S226492.)

While defendant was pending reconsideration of resentencing, his attorney filed on his behalf a petition for writ of habeas corpus, asserting defendant’s first degree murder conviction should be reversed pursuant to the holding of People v. Chiu (2014) 59 Cal.4th 155 [aider and abettor cannot be convicted of first degree premeditated murder under natural and probable consequences doctrine].) The People conceded reversal of the murder conviction was required, and the court subsequently ordered that conviction vacated.

On November 8, 2016, voters enacted Proposition 57. It went into effect the next day. (Cal. Const., art. II, § 10, former subd. (a).) Insofar as we are concerned, it eliminated the People’s ability to initiate criminal cases against juvenile offenders anywhere but in juvenile court. It also removed the presumption of unfitness that attached to the alleged commission of certain offenses. (See generally §§ 602, 707, subds. (a) & (b).)

On November 22, 2016, defendant was resentenced. His murder conviction was reduced to second degree murder, the People having elected not to retry him for first degree murder. Insofar as is pertinent, he asked that the case be sent to juvenile court for a retroactive fitness hearing pursuant to Proposition 57. The court stated it did not “have the guidance to do anything in that regard” at that moment, but was “open to further reconsideration.” It then proceeded to sentence defendant to a total indeterminate sentence of 60 years to life in prison plus a determinate term of eight years eight months. It also imposed various fees, fines, and assessments.

DISCUSSION

I

Proposition 57

As previously stated, defendant was 17 years old at the time of his offenses. He was charged directly in criminal (adult) court, tried, and convicted long before Proposition 57 went into effect.

Defendant claims that because his case was not yet final at the time Proposition 57 was enacted, however, he is entitled to have his conviction and sentence vacated, and to have the matter remanded to the juvenile court for a fitness/transfer hearing devoid of any presumption he is unfit for disposition as a juvenile. The Attorney General argues defendant is not entitled to such a hearing, because his trial occurred before Proposition 57 was passed.

After briefing was completed in this case, the California Supreme Court agreed with defendant. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304.) Accordingly, we will conditionally reverse defendant’s convictions and sentence, and order the juvenile court to conduct a juvenile fitness/transfer hearing (§ 707), as more fully set out in our disposition, post. Defendant is not entitled to a jurisdictional hearing or the equivalent of a second trial in juvenile court, however. (Lara, supra, at pp. 309-310.)[3]

II

Restitution and Parole Revocation Fines

At resentencing, the trial court ordered defendant to pay, inter alia, a restitution fine in the amount of $200, pursuant to Penal Code section 1202.4, subdivision (b); and a parole revocation restitution fine in the same amount, pursuant to Penal Code section 1202.45.[4] The indeterminate abstract of judgment incorrectly states the amount of both fines as $300. The Attorney General agrees the errors should be corrected.

DISPOSITION

The convictions and sentence are conditionally reversed, and the matter is remanded to the juvenile court with directions to conduct a juvenile fitness/transfer hearing. (Welf. & Inst. Code, § 707.) When conducting said hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a petition in juvenile court and then moved to transfer defendant’s case to a court of criminal (adult) jurisdiction under the applicable laws as amended by Proposition 57.

If, after conducting the juvenile fitness/transfer hearing, the juvenile court finds it would not have transferred defendant to a court of criminal (adult) jurisdiction, it shall treat defendant’s convictions as juvenile adjudications and impose an appropriate disposition within its discretion.

If, after conducting the juvenile fitness/transfer hearing, the court determines it would have transferred defendant to a court of criminal (adult) jurisdiction because he is not a fit and proper subject to be dealt with under the Juvenile Court Law, then defendant’s convictions and sentence shall be reinstated as of that date. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall cause to be prepared an amended indeterminate abstract of judgment that reflects fines in the amount of $200 were imposed pursuant to Penal Code section 1202.4, subdivision (b), and imposed and suspended pursuant to Penal Code section 1202.45, and shall cause a certified copy of same to be transmitted to the appropriate authorities.

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DETJEN, Acting P.J.

WE CONCUR:

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PEÑA, J.

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SNAUFFER, J.