Filed 1/8/18 P. v. Salinas CA4/3




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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

LEONARDO ARMANDO SALINAS,

Defendant and Appellant.


G053350

(Super. Ct. No. 12CF3719)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Judgment conditionally reversed; remanded with directions. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Heidi T. Salerno and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The People charged 15-year-old defendant Leonardo Armando Salinas in “adult” criminal court with attempted premeditated murder and assault with a firearm, along with related firearm, great bodily injury (GBI), and gang enhancements. The jury found him guilty of both counts and found all the enhancements true. The trial court imposed a prison term of 40 years to life.
Salinas claims the evidence was insufficient, the trial court made certain evidentiary and instructional errors, and his counsel provided ineffective assistance. None of these claims has merit.
Salinas also claims the trial court did not understand that it had the discretion to strike the punishment for the gang enhancement, that he did not have an opportunity to make a complete record for his first youthful offender parole hearing, that he is entitled to a transfer hearing in the juvenile court, and that the trial court may exercise its discretion on remand and dismiss the firearm related sentencing enhancements. These claims are meritorious.
We conditionally reverse the judgment and remand the matter to the juvenile court for a transfer hearing. If the juvenile court determines that Salinas should remain within its jurisdiction, the juvenile court is to impose an appropriate disposition. If the juvenile court transfers the case back to the trial court, then the trial court is to conduct further hearings and resentence Salinas consistent with this opinion.

I
FACTUAL AND PROCEDURAL BACKGROUND
On December 26, 2012, at about 6:00 p.m., Ivan P. walked to the apartment of his neighbor and friend Mariela A. on Townsend Street in Santa Ana. When Ivan arrived at the home, he noticed that Mariela was outside and a group of three girls were trying to fight with her. The group of girls were recording the encounter with their cellphones, and said, “‘We’re going to get our homies from Townsend.’” Ivan knew that Townsend was the name of a street gang. Ivan and Mariela went inside of her home.
After about 10 minutes, seven or eight men began knocking on Mariela’s front door while yelling “Townsend Street” and “F*** Myrtle.” Myrtle is the name of another street gang. Mariela was scared, so she texted her father Manuel, who arrived a short time later to pick them up. As they were walking out of the apartment, Ivan was approached by someone who asked him if he “banged,” which Ivan understood to mean, “If I was a gang member.” Ivan replied, “‘I don’t bang.’”
As Ivan, Mariela, and Manuel continued walking to the garage, Ivan saw a van pull up. Ivan saw two people get out of the van, although it was dark outside. Mariela saw Salinas approach Ivan in a black hooded sweatshirt; Salinas passed within about five and a half feet of her. Mariela immediately recognized Salinas because he is the younger brother of her ex-boyfriend. Mariela saw Salinas pull the hood of his sweatshirt up and over his head. Salinas got within two or three feet of Ivan and shot him. Ivan saw Salinas run back towards the van. Ivan retreated into the garage and realized he had been shot two times, once in the leg and once in the scrotum. The police arrived shortly thereafter; paramedics took Ivan to the hospital.
That night, Mariela told the police she knew the shooter was Salinas and showed the police where he lived. Salinas lived a short distance away on Townsend Street, with Mariela’s ex-boyfriend. Mariela later identified Salinas in a photographic lineup. Mariela wrote on the document, “‘I know the shooter.’” Mariela told the police that she was “100% certain.” After police arrested Salinas, his attorney and an investigator came to Mariela’s home. Mariela signed another document stating that Salinas was not the shooter, that it was too dark, and she couldn’t see anything. Mariela said that she signed that document because she understood that she would be left alone and would not have to go to court.
The People directly filed a criminal complaint, and later an information, charging 15-year-old Salinas with attempted premeditated murder and an assault with a firearm. (Pen. Code, §§ 664, subd. (a), 187, subd. (a), 245, subd. (a)(2).) The People further alleged related firearm, gang, and GBI sentencing enhancements. (§§ 12022.53, subd. (a), 12022.5, subd. (a), 186.22, subd. (b)(1), 12022.7, subd. (a).) A jury found defendant guilty of both counts and found all allegations to be true. The trial court sentenced defendant to life in prison with the possibility of parole after 40 years.

II
DISCUSSION
Salinas argues: (A) there was insufficient evidence to sustain his convictions; (B) his counsel provided ineffective assistance by failing to call an expert witness; (C) the trial court improperly admitted hearsay evidence; (D) his counsel provided ineffective assistance by failing to request a limiting instruction; (E) the cumulative effect of his first four claims require reversal; (F) the trial court did not understand that it had the discretion to strike the gang enhancement; (G) he must be given the opportunity on remand to make a record for his first youthful offender parole hearing; (H) this court should remand his case for a transfer hearing; and (I) that the trial court may exercise its discretion on remand and dismiss the firearm related sentencing enhancements. We shall address each contention in turn.

A. Sufficiency of the Evidence
Salinas argues that Mariela’s “equivocal” statements identifying him as the shooter were insufficient to support his convictions. We disagree.
“‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
“‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal.” (Id. at pp. 357-358.)
Here, immediately after the shooting, Mariela identified Salinas as the person who shot Ivan. She also identified Salinas during the trial in front of the jury. The statement of a witness immediately after a crime, as well as the sworn testimony of a witness at trial, are the types of evidence that jurors can reasonably rely on. Thus, there was sufficient evidence to sustain Salinas’s convictions.
On appeal, Salinas argues, “the only evidence directly linking [Salinas] as the shooter was Mariela’s identification, which she recanted.” Salinas is referring to the document Mariela signed in the presence of his attorney and investigator. However, Mariela testified that she had felt intimidated. Salinas candidly admits that: “Certainly it was possible that Mariela’s original identification was genuine and that she recanted due to pressure from the community.” Apparently the jury relied on Mariela’s positive identifications of Salinas as the shooter, rather than her recantation. We cannot reweigh the evidence and substitute our judgment for that of the jury.

B. Ineffective Assistance of Counsel
Salinas argues that his trial counsel’s failure to call an expert witness on eyewitness identification establishes that he received ineffective assistance. We disagree.
A criminal defendant has a constitutional right to effective assistance of counsel. (U.S. Const., 6th Amend.; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland).) To establish a violation of this right, a defendant must show: 1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Id. at p. 689.) “‘The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 46 Cal.3d 612, 656.)
If the record does not explain why counsel acted, or failed to act, in the manner challenged, a reviewing court must reject the ineffective assistance claim on appeal, unless counsel was asked for and did not provide an explanation, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.) In such cases, a defendant can typically raise a claim of ineffective assistance in a habeas corpus proceeding where he can litigate matters outside of the appellate record. (Id. at p. 267 [“claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding”].)
Here, the appellate record does not explain why Salinas’s counsel failed to call an eyewitness identification expert at trial; indeed, this court has no way of knowing whether counsel ever contemplated or investigated the possibility. Recognizing the paucity of the record, Salinas argues that there can simply be no satisfactory explanation for his counsel not calling an eyewitness identification expert to testify. We disagree.
Criminal defendants ordinarily call an eyewitness identification expert to testify when a witness to a crime has identified the defendant as the perpetrator. (See e.g., People v. McDonald (1984) 37 Cal.3d 351, 363-364.) The expert normally testifies that certain factors such as stress can affect the reliability of eyewitness identifications. (Ibid.) Courts have routinely admitted this evidence recognizing that eyewitness identifications are often unreliable, particularly when a witness identifies a stranger. (People v. Wright (1988) 45 Cal.3d 1126, 1153, fn. 26 [“An identification by a stranger is not as trustworthy as an identification by an acquaintance”].)
However, in this case the witness was not a stranger. Mariela immediately recognized Salinas at the scene of the shooting. Mariela knew Salinas because he is the brother of her ex-boyfriend; she had seen Salinas on prior occasions. Given that Salinas was not a stranger to Mariela, it is not at all clear that an eyewitness identification expert’s testimony would have been relevant or helpful to the jury under these facts. (Evid. Code, § 801, subd. (a) [an expert’s opinion is limited to that which would “assist the trier of fact”].) “Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary.” (People v. Lewis & Oliver (2006) 39 Cal.4th 970, 995, citing People v. McDonald, supra, 37 Cal.3d at p. 377 [no ineffective assistance found for failure to offer eyewitness expert testimony].)
Therefore, at least for purposes of this appeal, we cannot say Salinas has established that his counsel’s failure to call an eyewitness identification expert fell below prevailing professional norms. (Strickland, supra, 466 U.S. at pp. 684-685, 691-692.) Thus, Salinas has not established that his counsel provided ineffective assistance.

C. Admission of Evidence
Salinas argues that the trial court abused its discretion by admitting hearsay testimony that a group of unidentified girls said to Mariela at her front door that: “‘We’re going to get our Homies from Townsend.’” We disagree.
The standard of review concerning the admissibility of evidence, including a trial court’s “determination of issues concerning the hearsay rule, is abuse of discretion.” (People v. Clark (2016) 63 Cal.4th 522, 590.) That is, “we will not disturb the trial court’s ruling ‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
Under the hearsay rule, an out-of-court statement is generally inadmissible when the statement “is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subds. (a) & (b).) However, the hearsay rule has a number of exceptions, including a statement of a declarant’s mental or physical state. (Evid. Code, § 1250, subd. (a).) Therefore, a statement is not hearsay, “when: (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time . . . ; or (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).) An out-of-court statement is also not hearsay when it is being offered for not for its truth, but rather for a nonhearsay purpose (such as the effect on the person who heard the statement). (See People v. Montes (2014) 58 Cal.4th 809, 863.)
Here, during motions in limine, Salinas sought to exclude hearsay statements made by an unidentified group of girls at Mariela’s apartment. The court stated that there were “a variety of different exceptions” for admitting the statements, but the court did not state which specific exceptions applied. Over objection, Ivan testified during the trial that an unidentified group of girls said to Mariela at her front door that: “‘We’re going to get our Homies from Townsend.’” He also testified that about 10 minutes later a group of seven or eight men then showed up at the front door yelling “Townsend Street” and “F*** Myrtle.”
The People’s purpose in offering the threatening statement by the unidentified girls to “‘get our Homies’” is not obvious, based on the record. But the statement evidently demonstrated the girls’ (the declarants) mental state (anger), as well as their subsequent conduct (contacting Townsend members to go to Mariela’s home). The statement was therefore admissible under the state of mind hearsay exception. (Evid. Code, § 1250.) Further, the statement also explained why Mariela and Ivan were fearful, why they contacted her father, and why they left her apartment. Therefore, if the statement was offered for its effect on the listeners, and not for its truth, it was a not a hearsay statement. (See People v. Montes, supra, 58 Cal.4th at p. 863.) In either case, the trial court did not abuse its discretion by allowing the jury to hear the statements.
In his reply brief, Salinas concedes that the challenged statements “may in fact have been admissible under Evidence Code section 1250 . . . . However, as described in the Opening Brief, the evidence was unduly prejudicial under Evidence Code section 3[52].” In his opening brief, Salinas briefly mentioned that he made an Evidence Code section 352 objection in the trial court, but in this appeal he has not made any supporting arguments concerning this point, nor has he cited any legal authorities. As such, we need not consider it. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’”].)
In any event, the trial court ruled that the challenged statements by the group of unidentified girls were “relevant and more probative than prejudicial” because the statements explained how Mariela and Ivan got into her house, why they were scared, why they called Mariela’s father, and why they left the house. We agree with the trial court’s analysis and again we find no abuse of its discretion.

D. Limiting Instruction
Salinas argues that: “The jury should have been instructed that that they were not to draw adverse inferences against defendant from the evidence that Mariela had been intimidated [after the shooting and before trial]; even if the court did not have a sua sponte duty to so instruct, trial counsel was ineffective for failing to request such an instruction.” We disagree.
Here, Mariela testified that that she grew up in areas of Santa Ana where people did not ordinarily cooperate with the police. Mariela said that she did not want to come to court for fear of being labeled “a rat.” Mariela said that she had been threatened prior to trial about testifying. The People then asked Mariela: “What have they been saying to you? And I’m not asking for names. What have people been saying to you about your involvement in this case?” Salinas objected on hearsay grounds. The court said: “Overruled. It has a limited purpose. It just goes to the state of mind of the speaker at this time which is relevant. You can answer.” Mariela then testified that she had been called a “snitch” and a “bitch.” Mariela also testified that some of her family members had felt intimidated.
When appropriate, the Evidence Code requires a trial court to give a limiting instruction upon request: “When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Evid. Code, § 355, italics added.) However, absent a request, a trial court has no duty to give a limiting instruction. (People v. Cowan (2010) 50 Cal.4th 401, 479.) There is “a narrow exception to this rule in the ‘“occasional extraordinary case”’ in which the evidence at issue ‘“is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.”’” (Ibid.)
Salinas did not ask the trial court to give a limiting instruction concerning the threats against Mariela. Salinas has also not argued that this is an “extraordinary case,” which would have required the trial court to give a limiting instruction on its own motion. Therefore, the trial court did not commit instructional error. Anticipating the obvious forfeiture issue, Salinas argues that his trial counsel was ineffective for failing to request a limiting instruction. We disagree.
Once again, to establish ineffective assistance of counsel, a defendant must show: 1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resulted in prejudice to the defendant. (Strickland, supra, 466 U.S. at pp. 687-688, 691-692.) “A court need not first determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed.” (Id. at p. 670.)
A criminal “‘defendant cannot establish a constitutional violation simply by demonstrating that an alleged trial-related error could or might have affected the jury. To establish that ineffective assistance of counsel violates the Sixth Amendment . . . a defendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050-1051.) The standard for analyzing prejudice under an ineffective assistance of counsel claim mirrors the state standard for analyzing prejudicial error. (Id. at p. 1050.) That is, “a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
In this case, we need not examine whether counsel’s failure to request a limiting instruction fell below an objective standard of reasonableness under the first prong of Strickland, supra, 466 U.S. 668. Under the second prong, we do not think Salinas has established prejudice: a reasonable probability that the jury would have reached a more favorable result had the court given a limiting instruction. (Ibid.)
The relevant pattern jury instruction would have told the jurors: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” (CALCRIM No. 303.) Within its discretion, a trial court can give a limiting instruction at the time the court admits the evidence or at the close of evidence. (People v. Dennis (1998) 17 Cal.4th 468, 533-534.)
Here, when it overruled Salinas’s hearsay objection, the trial court stated that Mariela’s testimony concerning the threats made against her “has a limited purpose. It just goes to the state of mind of the speaker at this time which is relevant.” In essence, the jury heard a limiting instruction, even though the court’s ruling may not have been specifically directed towards the jurors. Therefore, had Salinas’s trial counsel requested a written limiting instruction at the close of evidence, specifically CALCRIM No. 303, it would have been somewhat redundant. More importantly, the crucial part of Mariela’s testimony was her identification of Salinas as the shooter. Mariela’s identification of Salinas as the shooter was the central issue in this trial; the jury must have relied on that identification in order to find Salinas guilty. Mariela’s testimony about intimidating words she heard after the shooting, by people other than Salinas, may have been relevant to explain her demeanor on the stand, but it was not particularly relevant to the identification itself.
In sum, we do not think that Salinas would have received a more favorable result had his counsel requested a written limiting instruction at the close of evidence. Thus, we reject Salinas’s ineffective assistance of counsel claim.

E. Cumulative Error
Salinas argues that the cumulative effect of his prior evidentiary, ineffective assistance, and instructional claims requires reversal of his convictions. We disagree.
“In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself.” (In re Reno (2012) 55 Cal.4th 428, 483.) However, the rejection of each of a defendant’s individual claims “cannot logically be used to support a cumulative error claim [where] we have already found there was no error to cumulate.” (Ibid.; see People v. Williams (2013) 56 Cal.4th 165, 201.)
In sum, since we have found no individual claim of error to be meritorious, there are no errors to cumulate.

F. Gang Enhancement
The trial court imposed an additional 15 years of punishment for the gang enhancement. Salinas argues that the court did not understand that it had the discretion to strike it. The Attorney General argues that the court understood the scope of its discretion, but chose not to exercise it. The record is somewhat unclear. There appeared to be some confusion as to the court’s ability to strike (rather than stay) the punishment for the gang enhancement. Therefore, we will remand the matter for resentencing.
When a jury finds an alleged gang enhancement to be true, the trial court must generally impose the consequent punishment “in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted.” (§ 186.22, subd. (b).) When the punishment for the underlying felony is life in prison, the additional punishment for the gang enhancement is “a minimum of 15 calendar years” before the defendant is eligible for parole. (§ 186.22, subd. (b)(5).)
Though the gang enhancement is mandatory and consecutive, a trial court has the broad discretion to dismiss (or fully strike) the enhancement in the interests of justice under section 1385, subdivision (a); in fact, a court can exercise such discretion before, during, or after a trial. (People v. Fuentes (2016) 1 Cal.5th 218, 221; People v. Orin (1975) 13 Cal.3d 937, 945.) Further, a trial court also has the discretion “strike the additional punishment” for a gang enhancement. (Fuentes, at pp. 227-228; §§ 1385, subd. (c)(1) [“the court may instead strike the additional punishment for [an eligible] enhancement”], 186.22, subd. (g) [“the court may strike the additional punishment for the enhancements provided in this section”].)
Conversely, a trial court does not have the authority to stay the punishment for a gang enhancement based on “its own discretionary sense of justice.” (People v. Lopez (2004) 119 Cal.App.4th 355, 364.) In fact, “the stay has no express statutory basis. It is implied, so that a defendant who is subject to one of two alternative punishments will not be wrongly subjected to the other; if, however, one of the two punishments is invalidated, the defendant will still be subject to the remaining one.” (Id. at p. 365; see § 654.)
As relevant here, the jury found Salinas guilty of attempted premeditated murder and found true the gang enhancement. (§§ 664/187, subd. (a), 186.22, subd. (b).) The trial court imposed a life sentence with a minimum parole eligibility period of 25 years. As to the gang enhancement, the court imposed an additional and consecutive 15 years for an aggregate sentence of 40 years to life. Thus, based on the foregoing, the court had the discretion to “dismiss” (or fully strike) the gang enhancement under section 1385, subdivision (a). Further, the court also had the discretion to “strike the additional punishment” for the gang enhancement either under section 1385, subdivision (c)(1), or under section 186.22, subdivision (g).
“Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Where a trial court imposes sentence without an accurate understanding of its sentencing discretion, remand for resentencing is appropriate. (People v. Rodriguez (1998) 17 Cal.4th 253, 257.)
At sentencing, the trial court began by stating that “the tentative from the court, as both parties know, is the mandatory minimum here which is kind of the mandatory maximum which is here, which is the way I view it, which is 40 to life.” After hearing argument from defense counsel urging the court to both “stay” and “strike” the enhancements, and after some discussion regarding relevant cases on these issues, the court said to Salinas: “All right. These are interesting cases, because the court doesn’t have a lot of ability to change anything. The law and the way the sentencing structure is currently set up the court doesn’t have a lot of discretion, quite frankly. . . . And it is sad to have to put someone in custody for 40 years to life, especially someone of your young age. [¶] That’s terrible that the court is in a position that it has to do this, but the fact [sic] in this case are such that law requires it [sic].” (Italics added.)
Here, we presume that the trial court understood that it had the discretion to dismiss (or fully strike) the gang enhancement in the interests of justice under section 1385, subdivision (a). Courts broadly retain that discretion with very few exceptions.
However, the italicized portions of the trial court’s ruling indicate that it may not have accurately understood the scope of its discretion to “strike the additional punishment” for the gang enhancement, rather than stay the punishment for the enhancement (both actions have virtually the same effect), either under section 1385, subdivision (c)(1) or section 186.22, subdivision (g). (See People v. Deloza (1998) 18 Cal.4th 585, 599-600 [transcript indicated trial court misunderstood the scope of its discretion based on its comments that it had “‘very little discretion’” and that “‘it would be unlawful for me to proceed in any other fashion’”].)
In sum, and out of an abundance of caution, we will direct the trial court on remand to either strike or impose the punishment for the gang enhancement based on its discretion and in accordance with the relevant statutes.

G. Franklin Hearing
Salinas initially argued that his sentence of 40 years to life is cruel and unusual because he was 15 years old on the day of the shooting. Salinas later conceded that his opportunity for a youth offender parole hearing after 25 years moots this claim. (§ 3051.) However, Salinas now argues that he must be given the opportunity on remand to “set a proper record for a subsequent parole hearing.” We agree.
In 2013, the California Legislature changed both parole eligibility and parole considerations for youthful offenders. (§§ 3051, 4801, subd. (c).) The current version of section 3051, subdivision (a)(1), provides that: “A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was under 23 years of age at the time of his or her controlling offense.” Generally, juveniles sentenced to lengthy indeterminate terms are entitled to such a hearing during their 25th year of incarceration. (§ 3051, subd. (b)(3).) The youth offender parole hearing “shall provide for a meaningful opportunity to obtain release[,]” and “shall take into consideration the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual.” (§ 3051, subds. (e) & (f)(1).)
In 2016, the California Supreme Court clarified the impact of section 3051 on the sentencing of juvenile defendants to life sentences. (Franklin, supra, 63 Cal.4th 261.) In Franklin, our Supreme Court explained: “[S]ection 3051 has superseded [the 16-year-old defendant’s] sentence so that notwithstanding his original term of 50 years to life, he is eligible for a ‘youth offender parole hearing’ during the 25th year of his sentence. Crucially, the Legislature’s recent enactment also requires the Board not just to consider but to ‘give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.’ (§ 4801, subd. (c).)” (Id. at p. 277.) The Franklin court determined that the Legislature did not intend “that the original sentences of eligible youth offenders would be vacated.” (Id. at p. 278.) However, the court determined that it was “not clear whether [the defendant] had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing.” (Id. at p. 284.) As such, the Supreme Court remanded “for the limited purpose of determining whether [the defendant] was afforded an adequate opportunity to make” the appropriate record for use in a future youth offender parole hearing. (Id. at pp. 286-287.)
Here, the trial court sentenced Salinas to an indeterminate life prison term, triggering his right to a youth offender parole hearing when he will be about 40 years old. But Salinas’s sentencing took place shortly before our Supreme Court filed its opinion in Franklin, supra, 63 Cal.4th 261. Consequently, we direct the trial court to determine whether Salinas had an adequate opportunity to make a complete record of any relevant youth-related characteristics and circumstances at the time of his offenses (a “Franklin hearing”). If not, we direct that court to allow both parties to put on the record any relevant evidence that demonstrates Salinas’s “culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.” (Id. at p. 284.)

H. Retroactivity of Proposition 57
While this appeal was pending, California voters enacted Proposition 57, which eliminated the ability of the People to file charges against minors directly in adult criminal courts. In all cases, the People must now initiate such charges in juvenile court. (Welf. & Inst. Code, §§ 602, 707, subd. (a)(1).) Thereafter, the People can move to transfer certain types of more serious cases to a criminal court, but that decision rests solely with a juvenile court judge after holding a transfer 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.)
Here, Salinas was 15 years old on the day of the shooting. The People directly filed charges in adult court as the law provided for at that time. Salinas now argues that Proposition 57 applies retroactively, since his case is not yet final on appeal, and that this court should remand his case for a transfer hearing. We agree.
Several courts of appeal, including this court, have thoroughly analyzed whether Proposition 57 applies retroactively, and the issue is currently pending review before the California Supreme Court. (See People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323 [Proposition 57 is not retroactive, though as to counts reversed for a retrial, Proposition 57 does apply and requires a fitness hearing to determine where that retrial will be held]; People v. Mendoza (2017) 10 Cal.App.5th 327, review granted July 12, 2017, S241647 [Proposition 57 is not retroactive]; People v. Vela (2017) 11 Cal.App.5th 68 (Vela), review granted July 12, 2017, S242298 [Proposition 57 is retroactive; convictions conditionally reversed and remanded to juvenile court for a fitness hearing]; People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, review granted May 17, 2017, S241231 [where crime was committed before effective date of Proposition 57 but case had not yet been tried, defendant was entitled to fitness hearing to determine whether case could proceed in adult court; although Proposition 57 is not retroactive, requiring a fitness hearing under these circumstances does not amount to retroactive application of the law because the trial has not yet been held]; People v. Marquez (2017) 11 Cal.App.5th 816, review granted July 26, 2017, S242660 [Proposition 57 not retroactive]; People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687, review granted Sept. 13, 2017, S243072 [Proposition 57 not retroactive]; People v. Pineda (2017) 14 Cal.App.5th 469, review granted Dec. 13, 2017, S244451 [Proposition 57 is retroactive; convictions conditionally reversed and remanded to juvenile court for a fitness hearing].)
Although most of the other appellate courts that have analyzed this issue have reached a different result, we continue to hold, consistent with our reasoning in Vela, supra, 11 Cal.App.5th 68, that Proposition 57 applies retroactively to cases pending on appeal. Because our Supreme Court will eventually resolve the issue, it is not necessary for us to elaborate much further on our reasoning in this unpublished opinion. However, we will briefly reiterate a couple of points.
First, we recognize the general presumption that a new statute is “to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) However, the clear purpose of Proposition 57 was to: “‘“Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 2, p. 141.)’” (Vela, supra, 11 Cal.App.5th at p. 75.) Therefore, a retroactive application of Proposition 57 is consistent with its stated purpose, as well as the relatively recent “sea change in penology regarding the relative culpability and rehabilitation possibilities for juvenile offenders.” (Vela, at p. 75.)
Second, our Supreme Court has created a long-standing exception to the presumption against retroactivity and its rationale was clear: “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. . . . [T]o hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (In re Estrada (1965) 63 Cal.2d 740, 745, italics added.)
Here, as in similar cases, the potential for Salinas to obtain a juvenile disposition in lieu of a prison sentence would necessarily result in significantly less custody time (i.e., punishment). Indeed, our Supreme Court has held that “the certification of a juvenile offender to an adult court has been accurately characterized as ‘the worst punishment the juvenile system is empowered to inflict.’” (Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 810, italics added.) In sum, we would have to ignore our sense of justice not to recognize that retroactive application of Proposition 57 effects a potential reduction in Salinas’s punishment within the spirit of In re Estrada, supra, 63 Cal.3d 740, even though it does not lower the penalty for a particular offense.
In this case, just as in Vela, supra, 11 Cal.App.5th at page 82, we conditionally reverse the trial court’s judgment and “order the juvenile court to conduct a juvenile transfer hearing. (§ 707.) 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. (§ 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 [defendant’s] convictions . . . are to be reinstated. (§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [the defendant] to a court of criminal jurisdiction, then it shall treat [the defendant’s] convictions as juvenile adjudications and impose an appropriate ‘disposition’ within its discretion.”

I. Retroactivity of Sections 12022.5 and 12022.53
Prior to January 1, 2018, trial courts did not have authority to dismiss or strike a firearm sentencing allegation under sections 12022.5 or 12022.53. (Former § 12022.5, subd. (e), added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 1, eff. Jan. 1, 2018; former § 12022.53, subd. (h), added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.)
Effective January 1, 2018, the Legislature amended sections 12022.5 and 12022.53 to add the following language: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§§ 12022.5, subd. (c); 12022.53, subd. (h).) Salinas and the Attorney General contend that the recent amendments to sections 12022.5 and 12022.53 apply retroactively to cases not yet final on appeal. (In re Estrada, supra, 63 Cal.2d at pp. 742-748; People v. Francis (1969) 71 Cal.2d. 66, 75.) We agree for reasons discussed more fully in other parts of this opinion regarding retroactivity. In short, the legislation provides an opportunity for Salinas to receive a more lenient sentence.
Here, the jury found true the allegations that Salinas used a firearm in the commission of a felony and that he personally discharged a firearm causing great bodily injury. (§§ 12022.5, subd. (a), 12022.53, subd. (d).) The trial court stayed the sentence on the section 12022.5, subdivision (a), allegation. The court imposed a sentence of 25 years to life on the section 12022.53, subdivision (d), allegation. Because of the retroactive nature of the amendments, the criminal court has the discretion on remand to strike or dismiss either or both firearm allegations.

III
DISPOSITION
The judgment of the criminal court is conditionally reversed. The cause is remanded to the juvenile court with directions to conduct a transfer hearing as discussed within this opinion, no later than 90 days from the filing of the remittitur. If, at the transfer hearing, the juvenile court determines that it would have transferred Salinas to a court of criminal jurisdiction, then the convictions and enhancements are to be reinstated as of that date. The criminal court is then to conduct a “Franklin hearing” within 60 days as discussed within this opinion. The criminal court is further directed to resentence Salinas consistent with its sentencing discretion as discussed in this opinion.
If, at the transfer hearing, the juvenile court determines that it would not have transferred Salinas to a court of criminal jurisdiction, then the criminal convictions and enhancements will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing within its usual time limits.



MOORE, J.


WE CONCUR:



O’LEARY, P. J.



IKOLA, J.