Filed 5/21/18 P. v. Fraire CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE ,

Plaintiff and Respondent,

v.

WILLIAM FRAIRE,

Defendant and Appellant.

F073697

(Super. Ct. No. MCR046034D )


OPINION

APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge.
Law Office of Nicco Capozzi and Nicco Capozzi for Defendant and Appellant.
Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


William Fraire was among six individuals charged with numerous offenses that occurred in Madera County in January of 2013. He pled guilty to attempted second degree murder, robbery, and criminal street gang activity, as well as a special allegation that the offenses were committed for the benefit of a criminal street gang and a use of a firearm allegation. In exchange, he received a 26-year prison sentence.
On appeal, Fraire, who was 14 years old at the time of the offenses, argues for retroactive application of the Public Safety and Rehabilitation Act of 2016 (Proposition 57.) We will conditionally reverse and remand for further proceedings.
STATEMENT OF THE CASE
In April 2013, an indictment charged William Fraire in Madera Superior Court with numerous offenses, which were committed in January of 2013.
On January 8, 2016, after numerous pretrial hearings over the course of many months, Fraire pled guilty to one count of attempted second degree murder (count 6; Pen. Code, §§ 664/187, subd. (a)) ; one count of robbery (count 8; § 211); and one count of criminal street gang activity (count 19; § 186.22, subd. (a)). Fraire admitted a gang-benefit allegation (§ 186.22, subd. (b)(1)(C)) and a firearm use allegation (§ 12022.53, subds. (c) & (e)(1)). In return, Fraire was to receive a state prison sentence of 26 years.
On February 26, 2016, the trial court sentenced Fraire to an aggregate state prison term of 26 years: the mitigated term of five years for the attempted murder; a one-year consecutive (one-third the midterm) for the robbery; and 20 years consecutive for the firearm enhancement. Fraire received a concurrent term for criminal street gang activity and a stayed term for the gang-benefit enhancement.
STATEMENT OF THE FACTS
Count 6 (attempted murder)
On January 22, 2013, Fraire, Nicholas Castrejon, Fernando Magana, and Ricardo Cendejas were driving around in a vehicle and discussed the idea of robbing a store. Fraire admitted that Castrejon told him about the robbery before they got to the store.
Once at the store, Castrejon, Magana, and Fraire got out of the vehicle. Castrejon had a shotgun. Fraire claimed his role was to hold the door and act as a lookout. Castrejon and one of the storekeepers exchanged gunshots. Castrejon, Magana, and Fraire ran back to the vehicle and Cendejas drove them from the store.
Count 8 (robbery)
Later that night, the four were again driving around when Castrejon and Magana stole a vehicle; one of the men pulled a passenger from the vehicle and put a gun to her head.
Count 19 (criminal street gang activity)
Detectives searched Cendejas’s Instagram account and found gang-related pictures. One of Cendejas’s Instagram followers was Fraire, who had been identified as a suspect in the attempted robbery at the store. Fraire admitted the passcode to his cell phone was “1404,” which represented “Norte.” Fraire also admitted knowing that Magana, Castrejon, and Cendejas were Norteño gang members, and admitted covering his face with a red rag.
DISCUSSION
Fraire was charged in criminal or adult court with the crimes committed in January of 2013 when he was 14 years, seven months. Former Welfare and Institutions Code section 707, subdivision (d), gave prosecutors discretion under specified circumstances to file charges against a minor directly in a court of criminal jurisdiction. Proposition 57, enacted by the electorate in November 2016, prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct a hearing to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. (Welf. & Inst. Code, § 707, subd. (a).)
Fraire contends the provisions of Proposition 57 should be applied retroactively. In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), decided during the pendency of this appeal, our Supreme Court answered that question in the affirmative. Citing the reasoning articulated in In re Estrada (1965) 63 Cal.2d 740, the Lara opinion held that, while Proposition 57 does not mitigate punishment for any particular crime, it does confer potential benefits to a class of persons, i.e., juveniles, and constitutes “an ‘ameliorative change[ ] to the criminal law’ that … the legislative body intended ‘to extend as broadly as possible.’” (Lara, supra, at pp. 303-304, 308-309.) The high court unanimously concluded that the relevant provisions of Proposition 57 apply retroactively “to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Lara, supra, at pp. 303-304.)
Since Fraire’s judgment of conviction is not yet final, his Proposition 57 claim is well taken. In terms of the relief he is entitled to, the Lara decision tacitly endorsed a remand procedure described by the Fourth District Court of Appeal in People v. Vela (2017) 11 Cal.App.5th 68, review granted S242298, and case transferred back to court of appeal (Vela). (Lara, supra, 4 Cal.5th at pp. 310-311, 313.) Accordingly, Fraire’s convictions and sentence will be reversed, and the matter will be remanded for the juvenile court to conduct a juvenile transfer hearing pursuant to Welfare and Institutions Code section 707. (Lara, supra, 4 Cal.5th at p. 310.) “‘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, supra, 4 Cal.5th at p. 310, quoting Vela, supra, 11 Cal.App.5th at p. 82, rev. granted.)
DISPOSITION
The judgment against Fraire is conditionally reversed pending further proceedings in accordance with Proposition 57. The cause 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 that it would not have transferred Fraire to a court of criminal jurisdiction, then Fraire’s 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.
If, at the transfer hearing, the juvenile court determines that it would have transferred Fraire to a court of criminal jurisdiction, then the judgment and sentence shall be reinstated as of that date with regard to all convictions and enhancements pleaded to.


FRANSON, J.
WE CONCUR:



LEVY, Acting P.J.



DETJEN, J.