Filed 11/30/18 Duran v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge.

Garrick Byers for Petitioner.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Nora S. Weyl, Deputy Attorneys General, for Real Party in Interest.

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INTRODUCTION

Petitioner Mark Perez Duran was charged with committing five felony offenses when he was 17 years old. The district attorney direct-filed the information in the superior court, consistent with then-existing law. Petitioner pleaded no contest to second degree robbery and admitted a firearm enhancement, for an indicated “lid” of five years. While his sentencing hearing was pending, the “Public Safety and Rehabilitation Act of 2016” (Proposition 57) was enacted, which changed the charging procedure for juveniles. Petitioner then filed a request for the superior court to conduct a hearing and determine whether his case should be transferred to juvenile court pursuant to the provisions of the newly-enacted initiative. The superior court denied his request.

Petitioner filed a petition for writ of mandate with this court for relief. We stayed his pending sentencing hearing and issued an order to show cause.

Pursuant to People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), which was decided after briefing was completed in this case, petitioner is entitled to a hearing pursuant to the provisions of Proposition 57 to determine whether he should be subject to the juvenile court’s jurisdiction.

We conditionally reverse the judgment and remand for further appropriate proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

“ ‘Historically, a child could be tried in criminal court only after a judicial determination, before jeopardy attached, that he or she was unfit to be dealt with under juvenile court law. Since 1975 the procedural requirements for fitness hearings have been established by [Welfare and Institutions Code[1]] section 707.’ [Citation.] The general rule used to be that ‘any individual less than 18 years of age who violates the criminal law comes within the jurisdiction of the juvenile court, which may adjudge such an individual a ward of the court.’ [Citation.]” (Lara, supra, 4 Cal.5th at p. 305.)

“Amendments to former sections 602 and 707 in 1999 and 2000, some by initiative, changed this historical rule. Under the changes, in specified circumstances, prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult. [Citations.]” (Lara, supra, 4 Cal.5th at p. 305.)

As applied to this case, “[t]hese provisions were in effect when the prosecution filed the charges against [petitioner] directly in criminal court.” (Lara, supra, 4 Cal.5th at p. 305.) As a result, the law “then in effect permitted the prosecutor to charge the case directly in adult court.” (Id. at p. 303.)

The direct-filed information

On June 15, 2016, the Tulare County District Attorney’s office direct-filed an information in the Superior Court of Tulare County charging petitioner (born 1999) and codefendant Saul Samano (born 1996) with three counts of second degree robbery (Pen. Code, § 211) committed against P.A., on or about April 25, 2016 (count 1); against D.P., on or between April 23 and 25, 2016 (count 2); and against T.M., on or between April 23 and 25, 2016 (count 3).

It was also alleged that both petitioner and Samano committed count 4, having a concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1)); and count 5, receiving stolen property, a .357-caliber Magnum revolver (Pen. Code, § 496, subd. (a)).

As to count 1, it was alleged petitioner personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1); § 1203.06, subd. (a)(1); § 1192.7, subd. (c)(8)). The same firearm enhancement was alleged against Samano only as to count 2.

As to all counts, it was further alleged that petitioner was a minor who was at least 16 years of age at the time the crimes were committed (former § 707, subd. (d)(1)).

Plea proceedings

On September 23, 2016, the superior court conducted a hearing where both petitioner and codefendant Samano accepted the People’s plea offer.

Petitioner pleaded no contest to count 1, second degree robbery, and admitted the firearm allegation for an indicated five-year “lid,” based on two years for robbery and three years for the firearm allegation.

Codefendant Samano pleaded no contest to count 2, second degree robbery, and admitted the attached firearm enhancement for the same indicated “lid” of five years.[2]

The court stated that as to both petitioner and Samano, it would consider their attorneys’ arguments at the sentencing hearing to either grant probation or impose a lesser sentence.

The prosecutor stated the rest of the charges against petitioner and codefendant Samano would be dismissed at the time of sentencing. The court set the sentencing hearing for October 27, 2016.

On October 27, 2016, petitioner’s attorney requested a continuance to prepare information in mitigation for sentencing. The court found good cause and continued the sentencing hearing to December 8, 2016.

Proposition 57

On November 8, 2016, while petitioner’s sentencing hearing was pending, California voters approved Proposition 57. (People v. Barboza (2018) 21 Cal.App.5th 1315, 1318.)

Proposition 57 changed the charging procedure again “and largely returned California to the historical rule. ‘Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors….’ ” (Lara, supra, 4 Cal.5th at p. 305.) Instead, Proposition 57 requires prosecutors to “commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct … a ‘transfer hearing’ to determine whether the matter should remain in juvenile court or be transferred to adult court.” (Id. at p. 303.)

“ ‘Certain categories of minors ... can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor’s maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated. [Citation.]’ [Citation.]” (Lara, supra, 4 Cal.5th at pp. 305–306, fn. omitted.) “Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. [Citation.]” (Id. at p. 303, fn. omitted.)

Petitioner’s request for a transfer hearing

On December 8, 2016, the superior court granted petitioner’s request to again continue the sentencing hearing in his case, so he could prepare a petition for a transfer hearing pursuant to newly-enacted Proposition 57.

On June 8, 2017, the superior court requested petitioner and the People to submit briefing as to whether petitioner was entitled to a postplea transfer hearing under Proposition 57.

On June 19, 2017, petitioner filed a request for a Proposition 57 transfer hearing to juvenile court on the issue of his sentencing. Petitioner argued the initiative’s provisions applied prospectively since his sentencing hearing was pending and also applied retroactively even though he already entered his plea.

On or about June 26, 2017, the People filed opposition and argued the initiative’s provisions were not applicable to petitioner’s situation. On June 28, 2017, petitioner filed a reply.

The superior court’s denial

On June 30, 2017, the superior court conducted a hearing on petitioner’s request for a transfer hearing under Proposition 57. The court acknowledged there were conflicting authorities and question was pending before the California Supreme Court, but it denied the request.

The court granted petitioner’s request to continue his sentencing hearing until August 17, 2017, so petitioner could file a petition for writ of mandate. The court stated it would not indefinitely stay the matter pending a decision from the California Supreme Court, “so if you intend to get some appellate relief, you need to do that right away.”

Writ proceedings and stay

On August 14, 2017, petitioner filed a petition for writ of mandate with this court and requested a stay of the pending sentencing hearing. Petitioner argued that Proposition 57 applied to his case, and the matter should be remanded for a transfer hearing.

On August 15, 2017, this court issued an order to show cause why the relief prayed for in the petition should not be granted, ordered the People to file a written return, and stayed petitioner’s sentencing hearing pending further order of this court.

On August 31, 2017, the People filed a return and argued Proposition 57 was not retroactive and petitioner was not entitled to a transfer hearing since he had entered his plea at the time the initiative passed. On September 29, 2017, petitioner filed a reply.

DISCUSSION

The applicable provisions of Proposition 57 provide that the district attorney is no longer authorized to directly file serious felony charges against juveniles in criminal court. Now, the district attorney may seek to transfer a case from juvenile court to criminal court, but allegations of criminal conduct against a person under the age of 18 must be initiated in juvenile court. (Lara, supra, 4 Cal.5th at p. 303; § 707, subd. (a)(1).) If the district attorney brings a transfer motion, it is for the trial court to determine whether the juvenile should be transferred to criminal court. (Lara, supra, 4 Cal.5th at p. 303; § 707, subd. (a)(2).)

As explained above, Proposition 57 was passed by the voters in November 2016, after petitioner entered his no contest plea but before he was sentenced. Thereafter, petitioner requested the superior court to conduct a transfer hearing in accordance with Proposition 57. When the superior court heard and denied petitioner’s request for a juvenile transfer hearing, there were conflicting appellate opinions as to the retroactivity of Proposition 57 and the question was pending before the California Supreme Court.

While petitioner’s petition for writ of mandate was pending before this court, the California Supreme Court resolved the issue. In Lara, supra, 4 Cal.5th 299, the court held the relevant provisions of Proposition 57 applied retroactively. Lara cited the reasoning of In re Estrada (1965) 63 Cal.2d 740 (Estrada), which held that “a statute that reduced the punishment for a crime applied retroactively to any case in which the judgment was not final before the statute took effect. In People v. Francis (1969) 71 Cal.2d 66 (Francis), we applied Estrada to a statute that merely made a reduced punishment possible. Estrada is not directly on point; Proposition 57 does not reduce the punishment for a crime. But its rationale does apply. The 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. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada’s inference of retroactivity applies. As nothing in Proposition 57’s text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Lara, supra, 4 Cal.5th at pp. 303–304.)

Lara thus held that Proposition 57’s prohibition against direct filing in the superior court applies retroactively to cases not yet final on appeal. (Lara, supra, 4 Cal.5th at pp. 308–309.) In this case, petitioner entered a no contest plea to second degree robbery and admitted the firearm enhancement for an indicated five-year “lid,” but he had not been sentenced at the time Proposition 57 was approved; thus, the judgment was not final. (People v. Wilcox (2013) 217 Cal.App.4th 618, 625; People v. Barboza, supra, 21 Cal.App.5th at pp. 1318–1319.) As a result, petitioner is entitled to relief and a transfer hearing.

Accordingly, petitioner’s conviction will be conditionally reversed, and the matter will be remanded for the juvenile court to conduct a juvenile transfer hearing pursuant to section 707, as amended by Proposition 57. (Lara, supra, 4 Cal.5th at p. 310.) Lara endorsed the following remand procedure described in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2015, S242298 (Vela). (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 [petitioner’s] 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 [petitioner] 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 [petitioner’s] convictions and sentence are to be reinstated. (§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred [petitioner] to a court of criminal jurisdiction, then it shall treat [petitioner’s] convictions as juvenile adjudications and impose an appropriate ‘disposition’ within its discretion.’ [Citation.]” (Lara, supra, 4 Cal.5th at p. 310, original italics.)

DISPOSITION

Petitioner’s conviction and his admission to the firearm enhancement are conditionally reversed and the matter is remanded to the juvenile court with directions to conduct a juvenile fitness hearing. (§ 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 the 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 transfer hearing, the juvenile court finds it would not have transferred defendant to a court of criminal (adult) jurisdiction, it shall treat defendant’s conviction and admission to the firearm enhancement as juvenile adjudications. The juvenile court must then conduct a dispositional hearing and impose an appropriate disposition within its discretion.

If, after conducting the juvenile transfer hearing, the court determines it would have transferred petitioner 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 petitioner’s conviction and admission shall be reinstated as of that date and the court shall proceed with the sentencing hearing pursuant to the terms of petitioner’s plea. (§ 707.1, subd. (a).)