Filed 5/10/18 P. v. Anthony E. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY E.,

Defendant and Appellant.
D073276



(Super. Ct. No. RIF1500002)

APPEAL from a judgment of the Superior Court of Riverside County, Steven G. Counelis, Judge. Judgment conditionally vacated and remanded with instructions.
David L. Polsky, 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 and James H. Flaherty III, Deputy Attorneys General for Plaintiff and Respondent.
After briefing had been completed in this case, the California Supreme Court definitively ruled on the sole issue raised in this appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).) Lara held the requirement in Proposition 57, passed by voters on November 8, 2016 — that all criminal charges against juveniles be initially filed in the juvenile court — is retroactively applicable to cases such as the instant one that are not yet final. (Id. at pp. 303–304.) We thus conditionally vacate the judgment and remand to the juvenile court to determine if minor defendant Anthony E. is fit for juvenile adjudication, to set a disposition hearing if so, and to reinstate the judgment if not.
BACKGROUND
Fifteen-year-old Anthony E. and 16-year-old Daniel Davidson murdered Marlo Williams in the course of robbing her of marijuana.
Police found Williams' dead body on the floor of her apartment on December 23, 2014, a week after she was killed. She was lying in a large pool of blood. Williams had been stabbed well over 50 times, on her head, torso, arms and legs. The stab wounds penetrated her right and left lungs, right liver, right kidney, diaphragm, and colon. She had also suffered blunt force injuries on both the right and left temples of her forehead that caused internal bleeding.
The police determined that Williams' cell phone was being used by Davidson. Officers contacted Anthony E. after interviewing Davidson. Anthony E. admitted that he had been to Williams' apartment to buy marijuana from her, but denied any participation in the murder and robbery. He was taken to the police station and advised of his Miranda rights. The officers told Anthony E. that Davidson said that Anthony E. had killed Williams. Anthony E. then admitted that he and Davidson were at Williams' apartment and that he helped Davidson kill Williams.
Anthony E. said that Davidson hit Williams over the head without warning or provocation, then grabbed a knife from the kitchen and stabbed her repeatedly. Davidson then told him to choke Williams, because she was not dying despite the multiple stabbings. Anthony E. put his hands on Williams' neck and choked her. He estimated that he choked her for about 30 seconds.
Davidson told Anthony E. to get another knife from the kitchen because he could not kill Williams with the first knife. Anthony E. brought Davidson a second knife, and then another knife when the second one did not do the job. Davidson repeatedly stabbed Williams with the knives. Anthony E. denied ever stabbing Williams, but admitted that, in addition to choking her, he punched Williams twice, trying "to knock her out" because she kept thrashing and resisting.
After Williams was subdued, Anthony E. ransacked the apartment looking for marijuana. He found no large cache. Anthony E. stole the 14 or 15 grams of marijuana that were in her bedroom. Before leaving the apartment, Anthony E. checked Williams' eyes to make sure she was dead.
Anthony E. said that several times, he, Davidson, and Anthony G. had talked about killing Williams and stealing her marijuana, but Anthony E. thought they were joking. He said he had no plan to rob Williams when he went to her apartment on December 17, and he did not intend to kill her. He instead blamed Davidson for the murder. Anthony E. said that he was scared when Davidson told him to strangle Williams, and that he "didn’t think about it" when he put his hands on Williams' neck; he was just caught up in the moment. He also said, however, that he choked her "to get her to stop movin[g]" because he "wanted it to be over," and that he punched her to "knock her out."
Anthony G. contacted the police to provide information shortly after he heard about the murder. He was 17 years old at that time. He testified that he, Anthony E., and Davidson visited with Williams about five or six times in December 2014 to smoke marijuana with her and to buy marijuana from her. On December 15 or 16, Anthony E., Davidson, and Anthony G. were smoking marijuana together. Davidson or Anthony E. brought up the subject of robbing and killing Williams. Anthony G. refused to participate. The other two said they were joking and dropped the subject.
The Riverside County District Attorney directly filed criminal charges against Anthony E. in the superior court, charging him with murder, robbery, and the special circumstance of committing the murder during the course of a robbery. (Pen. Code,
§§ 187, subd. (a), 190.2, subd. (a)(17)(A) & 211.) A jury found Anthony E. guilty of the charges, and found true the special circumstance. On August 26, 2016, the trial court sentenced Anthony E. to a term of 25 years to life in state prison for murder, pursuant to sections 190 and 190.5, and imposed and stayed under section 654, subdivision (a) the upper term of six years for robbery.
DISCUSSION
Proposition 57 applies to this case
While this appeal was pending, the voters approved Proposition 57, the Public Safety and Rehabilitation Act (Act). (See Welf. & Inst. Code, § 707.) Among other changes, this Act changed the procedures for filing criminal charges against juveniles. Before Proposition 57, district attorneys had discretion to file certain serious criminal charges against juveniles in superior court, instead of initially filing a petition in the juvenile court and seeking a transfer to the superior court. (Lara, supra, 4 Cal.5th at
p. 305.) Under Proposition 57, all criminal charges against minors must be filed in the juvenile court. The juvenile court may transfer a minor to the superior court after hearing evidence on the minor's fitness for juvenile adjudication. (Lara, at pp. 303, 305; Welf. & Inst. Code, § 707.)
As noted, Anthony E.'s sole claim on appeal is that the new Proposition 57 procedure is applicable to him because his case is not yet final. In Lara, our supreme court held that Proposition 57 applied retroactively to all nonfinal criminal judgments involving juvenile defendants. (Lara, supra, 4 Cal.5th at pp. 303–304.) Although it is presumed that penal legislative enactments apply prospectively only (§ 3), the Lara court found that under the Act's new rule, "[t]he possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment." (Lara, at
p. 303.) It thus inferred that the People intended for Proposition 57 to apply to juvenile cases that, like the instant one, are not yet final. (Id. at pp. 308–309 & fn. 5.)
This case is remanded for determination of Anthony E.'s fitness for juvenile adjudication
Remand is appropriate for the juvenile court to determine if Anthony E. should be prosecuted in juvenile court or in criminal court, even though adult prosecution may well be warranted given the violence associated with the murder of Williams.
On the one hand, this crime was particularly callous and vicious. Williams had invited Anthony E. and Davidson into her home several times. Anthony E. considered her a "regular friend." Nothing provoked the defendants other than a desire to take marijuana without paying. Davidson and Anthony E. planned the murder-robbery in advance, according to Anthony G. Williams was particularly vulnerable in her own home, unarmed, alone against two young men.
But on the other hand, Anthony E. was very young, only 15 years old, when he committed the crime. He had no prior criminal history. He claims that he never intended to kill Williams and that he thought Davidson was joking when talking about robbing and killing her. Anthony E. said that he smoked a heavy amount of marijuana, up to 16 grams per day.
We conclude a juvenile court is in the best position to determine Anthony E.'s fitness for juvenile adjudication, after hearing and considering Anthony E.'s behavioral and social history, the circumstances of the offense, and the criteria set forth in Welfare and Institutions Code section 707, subdivision (a)(2), including: the degree of criminal sophistication exhibited, based in part on maturity and mental abilities; potential for rehabilitation; previous delinquent history; success of prior rehabilitation attempts; and the circumstances and gravity of the offense. (Ibid.)
The Lara court endorsed a remand procedure described by Division Three of this court in People v. Vela (2017) 11 Cal.App.5th 68 (Vela I) (review granted S242298, and case transferred back to court of appeal). (Lara, supra, 4 Cal.5th at pp. 310, 313 ["we believe remedies like those provided in Vela . . . are readily understandable, and the courts involved can implement them without undue difficulty"].) Vela I had conditionally vacated the conviction and sentence of the minor defendant, and remanded the matter to the juvenile court to conduct a juvenile transfer hearing.
We will follow that same procedure in the instant case. In doing so, we note that remand here is no reason for a retrial of the facts, as Anthony E. had a jury trial with all the rights afforded to him in that proceeding. The jury unanimously found him guilty beyond a reasonable doubt. The jury's verdicts and its true finding of the special circumstance are not affected by our ruling.
On remand, the juvenile court is directed to conduct a transfer hearing pursuant to Welfare and Institutions Code section 707. If, at the transfer hearing, the juvenile court determines that Anthony E. is fit for juvenile adjudication, Anthony E.'s criminal convictions and special circumstance true finding will be reinstated as juvenile adjudications as of that date and the juvenile court shall conduct a dispositional hearing. If Anthony E. is not fit for juvenile adjudication, the current judgment shall be reinstated. (See Lara, supra, 4 Cal.5th at p. 310; see also Vela II, supra, __ Cal.App.5th __ [2018 WL 1517083 at p. *14].)
DISPOSITION
The judgment is conditionally vacated and the matter remanded to the juvenile court for further proceedings in accordance with this opinion.


BENKE, Acting P. J.

WE CONCUR:




NARES, J.




GUERRERO, J.