People v. J.M.

323 Cal.Rptr.3d 430

IN RE J.M., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.J.M., Defendant and Appellant.

C099085

Court of Appeal, Third District.

Filed July 12, 2024

APPEAL from a judgment of the Superior Court of Sacramento County, Dena M. Coggins, Judge. Reversed with directions. (Super. Ct. Nos. JV137240 & 22HC00217)

William Safford, Palo Alto, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Edrina Anderson, Deputy Attorneys General, for Plaintiff and Respondent.

Krause, J.

J.M. appeals from an order transferring his case from juvenile court to adult criminal court pursuant to Welfare and Institutions Code section 707.¹ He contends that we should conditionally reverse the order and remand the matter to juvenile court for a new transfer/amenability hearing in light of recent amendments to section 707 enacted by Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Assembly Bill No. 2361) (Stats. 2022, ch. 330, § 1) and Senate Bill No. 545 (2023-2024 Reg. Sess.) (Senate Bill No. 545) (Stats. 2023, ch. 716, § 1). He further contends that if he is again transferred to adult criminal court, the court should be required to conduct a new sentencing hearing to consider certain ameliorative changes in the sentencing laws that took effect after his sentence was imposed.

The People concede that recent amendments to section 707 apply retroactively to J.M.’s case and that we should remand this matter for a new transfer/amenability hearing. But the People oppose J.M.’s request for resentencing should his case ultimately be transferred to adult criminal court, contending that the original judgment and sentence are now final.

We conclude that because J.M.’s case is on direct appeal and not final, J.M. is entitled to the retroactive benefit of all the ameliorative changes made to the state’s criminal laws. Accordingly, we shall conditionally reverse the transfer order and remand with directions to refer the case to the juvenile court for a transfer/amenability hearing consistent with current law. If, after conducting the hearing, the juvenile court determines that J.M.’s case should be transferred to a court of criminal jurisdiction, then the criminal court is directed to conduct a new sentencing hearing to consider the potentially ameliorative changes in the sentencing laws effected by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567) and Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518).

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, when J.M. was 17 years old, he broke into the home of a 72-year-old woman, assaulted her with the intent to commit rape, and stole about $900 in cash.² Although J.M. was a minor at the time of his crimes, the People elected to file charges against J.M. directly in adult criminal court, as permitted under former section 707.

After a jury trial, J.M. was found guilty of assault with the intent to commit rape during the commission of a burglary (Pen. Code, § 220, subd. (b)), attempted rape (Pen. Code, §§ 664/261, subd. (a)(2)), and first degree robbery (Pen. Code, § 211). The jury also found true an elder abuse enhancement allegation under Penal Code section 667.9, subdivision (a). The trial court sentenced defendant to an aggregate term of 14 years to life, consisting of an indeterminate term of seven years to life for the assault with intent to commit rape, plus a consecutive term of seven years for the robbery (upper term of six years) and elderly victim enhancement (one year). The court imposed, but stayed, an upper term of four years for the attempted rape offense.

In November 2016, shortly after J.M.’s conviction, the electorate passed the Public Safety and Rehabilitation Act of 2016 (Proposition 57), which eliminated direct charging of juveniles in adult criminal court. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304-305, 228 Cal. Rptr.3d 394, 410 P.3d 22 (Lara).) Under Proposition 57, minors still could 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 degree of criminal sophistication and previous delinquent history. (Lara, supra, 4 Cal.5th at p. 305, 228 Cal.Rptr.3d 394, 410 P.3d 22; former § 707, subd. (a)(2), as amended by Prop. 57, Gen. Elec. (Nov. 8, 2016) § 4.2, eff. Nov. 9, 2016.)

On appeal from his conviction, J.M. argued that the provisions of Proposition 57 applied retroactively to his case under In re Estrada (1965) 63 Cal.2d 740, 48 Cal. Rptr. 172, 408 P.2d 948 (Estrada). (McKeever, supra, C083997.) He argued that we should conditionally reverse the judgment and remand the matter to the criminal court for a transfer hearing. (Ibid.)

While J.M.’s appeal was pending, our Supreme Court held that Proposition 57 is an ameliorative change in the law that applies retroactively to all defendants whose judgments are not yet final. (Lara, supra, 4 Cal.5th at pp. 303-304, 228 Cal. Rptr.3d 394, 410 P.3d 22.) The court reasoned that while new legislation is generally presumed to apply prospectively, there is an established exception under Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, when the Legislature amends a statute to lessen the punishment for a criminal offense. (Lara, supra, at p. 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.) The court noted that " ‘[t]he Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ [Citations.]" (Id. at p. 308, 228 Cal.Rptr.3d 394, 410 P.3d 22, fn. omitted.)

Although Proposition 57 did not reduce the punishment for a crime, the court held that Estrada’s inference of retroactivity still applied because it ameliorated the possible punishment for a class of persons, namely juveniles, by providing an opportunity for them to remain in the juvenile system. (Lara, supra, 4 Cal.5th at pp. 303, 308, 228 Cal.Rptr.3d 394, 410 P.3d 22.) And since nothing in Proposition 57’s text or ballot materials rebutted this inference, the court concluded that the law applies retroactively to all nonfinal cases. (Lara, supra, at pp. 303-304, 228 Cal.Rptr.3d 394, 410 P.3d 22.) The court further held that the appropriate remedy for juveniles entitled to a transfer hearing whose cases are already pending in adult court is a conditional reversal and remand for a juvenile transfer hearing. (Id. at pp. 309-310, 313, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Pursuant to Lara, supra, 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22, we conditionally reversed J.M.’s judgment and remanded the case to the juvenile court with directions to conduct a transfer hearing consistent with our opinion. (McKeever, supra, C083997.) Our opinion directed: "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 defendant’s case to a court of criminal jurisdiction. [Citations.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred defendant to a court of criminal jurisdiction … then defendant’s con- victions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat defendant’s convictions as juvenile adjudications and impose an appropriate disposition within its discretion." (Ibid.)

On remand, the superior court (sitting as the juvenile court) held a transfer hearing that spanned multiple days, commencing on September 24, 2020. In December 2020, at the conclusion of the hearing, the court ordered the case transferred to criminal court and reinstated the prior criminal judgment.

At the time the transfer order was entered, there was no statutory right to appeal the order; appellate review was limited to a petition for extraordinary writ. (People v. Superior Court (S.L.) (2019) 40 Cal.App.5th 114, 120, 253 Cal.Rptr.3d 39.) Although J.M. was advised of this fact, J.M.’s counsel nevertheless filed a notice of appeal instead of a writ petition. On December 8, 2021, this court dismissed the appeal as taken from an unappealable order.

After the appeal was dismissed, J.M. filed a petition for writ of habeas corpus with the superior court (Super. Ct. Sacramento County, 2023, No. 22HC00217), contending that his attorney provided ineffective assistance of counsel by filing a notice of appeal instead of a writ petition to contest the transfer order. In June 2023, the superior court granted the habeas petition. In considering an appropriate remedy, the court noted that due to changes in the law (Stats. 2021, ch. 195, § 1 [Assembly Bill No. 624 (2021-2022 Reg. Sess.)]) transfer orders entered after January 1, 2022, are appealable. (§ 801, subd. (a).) Thus, the court ordered the juvenile court to "vacate and reenter the order previously issued on December 2, 2020" to allow J.M. the opportunity to file a direct appeal.

The trial court subsequently vacated the transfer order and reentered it, effective July 12, 2023. Shortly thereafter, on July 18, 2023, J.M. filed this appeal of the reentered order.

DISCUSSION

I Amendments to Section 707

Section 707 governs the procedure for transferring a minor from juvenile court to adult criminal court. At the time of J.M.’s transfer hearing, section 707 required the prosecution to prove by a preponderance of the evidence that the minor should be transferred to adult criminal court. (Former § 707, subd. (a)(3); In re S.S. (2023) 89 Cal.App.5th 1277, 1284, 306...