People v. Rodriguez

THE PEOPLE, Plaintiff and Respondent, v. ISAAC FERNANDO RODRIGUEZ, Defendant and Appellant.

E071612

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 3, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.Nos. INF1401548 & INJ020395)

OPINION

APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Reversed and remanded in part; dismissed in part.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Isaac Fernando Rodriguez was tried and convicted in adult criminal court on two counts of premeditated attempted murder for a shooting that took place when he was less than three weeks shy of his 16th birthday, and for one count of premeditated first degree murder and one count of discharging a firearm into an occupied motor vehicle for a shooting that took place six months later. The jury found true sentence enhancement allegations for defendant's firearm use, and the trial court sentenced him to state prison for 44 years to life.

After defendant was convicted but before he was sentenced, the Legislature enacted Senate Bill No. 1391 (2017-2018 Reg. Sess.) to amend Welfare and Institutions Code section 707. Except in extremely limited circumstances not applicable here, that amendment bars the juvenile court from transferring a minor who is 14 or 15 years old to adult criminal court. (Welf. & Inst. Code, § 707, subd. (a)(1)-(2), as amended by Stats. 2018, ch. 1012, § 1; O.G. v. Superior Court (2021) 11 Cal.5th 82, 87, 89, 97.) In this direct appeal, defendant argues he is entitled to the retroactive benefit of that statutory amendment and requests that we vacate his convictions on the attempted murder counts and remand to the juvenile court for appropriate adjudication of the alleged offenses. In addition, he argues that, because the juvenile court failed to issue a written and adequate statement of its reasons in the minutes for concluding he was not a fit and proper subject for treatment under the juvenile court law when it transferred him to adult criminal court, we should reverse his conviction for the offenses that were committed after he turned 16 years old and remand for the juvenile court to reconsider its decision to transfer him to adult criminal court.

The People agree with defendant that Senate Bill No. 1391 is both constitutional¹ and retroactively applicable to nonfinal judgments. However, because the order of the juvenile court transferring defendant to adult criminal court was not directly appealable, and defendant did not timely petition this court for extraordinary relief from that order before his trial in the adult criminal court, the People argue defendant waived any challenge to the transfer order, and it is now final. In addition, the People argue defendant was required to challenge by timely writ petition the juvenile court's failure to issue an adequate written statement of its reasons for transferring him to adult criminal court, he may not pursue that challenge on appeal from the judgment of the adult criminal court, and the error is harmless because the record contains the court's statement of reasons.

We agree with defendant that, after the enactment of Senate Bill No. 1391, the juvenile court lacked the authority to transfer him to adult criminal court for the attempted murders he committed before he turned 16 years old. Because at the time of his transfer the juvenile court did have such authority, and the change in the law did not take place until after he had already been tried and convicted in adult criminal court, he should not be penalized for failing to file a writ petition based on a legal claim of error that had not yet arisen. Therefore, his failure to timely petition this court for relief from the transfer order does not prevent him from arguing in this appeal that he is entitled to the retroactive benefit of Senate Bill No. 1391 to his attempted murder convictions. And,because the People concede the juvenile court no longer has the authority to transfer 14-and 15-year-old minors to adult criminal court, we must reverse the convictions and sentence and direct the adult criminal court to remand defendant to the juvenile court for that court to treat the convictions on counts 5 and 6 as juvenile adjudications and to conduct a dispositional hearing on them. Because we reverse the entire sentence, the adult criminal court shall resentence defendant on counts 1 and 2.

However, we agree with the People that defendant cannot challenge in this appeal the juvenile court's alleged failure to issue a written and adequate statement of reasons in the minutes for transferring defendant to adult criminal court. That claim of error was legally available to defendant at the time of the transfer order and could have been timely raised in a petition for writ of mandate. Because defendant did not do so, he is precluded from raising that claim in this appeal, and that portion of his appeal is dismissed. He may seek to address that claim of error in a petition for writ of habeas corpus.

I.

PROCEDURAL BACKGROUND²

Defendant was born on November 26, 1997. In a complaint filed on June 5, 2014, the People alleged that on November 9, 2013—less than three weeks before his 16th birthday—defendant committed the offense of premeditated attempted murder of two women (Pen. Code, §§ 664, 187, subd. (a), counts 5 & 6), and that on May 17, 2014—well after he turned 16—defendant committed the premeditated murder of one man (Pen.Code, § 187, subd. (a), count 1) and the premeditated attempted murder of three other men (Pen. Code, §§ 664, 187, subd. (a), counts 2-4). The People alleged various firearm sentence enhancements and that defendant was at least 14 years old at the time of the offenses for purposes of filing charges directly in adult criminal court. (Welf. & Inst. Code,³ § 707.)

After a preliminary examination conducted on April 27, 2015, defendant was bound over for trial, and the People filed an information alleging the same counts and sentence allegations. Trial was continued numerous times over the next two years or so. In the meantime, the voters enacted Proposition 57 (as approved, Gen. Elec. (Nov. 8, 2016)), which went into effect November 9, 2016. That ballot initiative amended section 707 to prohibit the direct filing of charges in adult criminal court against minors under the age of 16 years and, instead, required prosecutors to file a wardship petition in the juvenile court and request a fitness hearing. On March 29, 2017, defendant moved to have his case transferred to the juvenile court for a fitness hearing, arguing he was entitled to the retroactive benefit of Proposition 57. The prosecutor opposed the request, but the trial court agreed Proposition 57 applied retroactively, granted defendant's motion, suspended criminal proceedings, and transferred the case to juvenile court.

On April 12, 2017, the People filed a wardship petition in the juvenile court alleging defendant was a minor within the description of section 602 for the same offenses alleged in the information. The People moved for the juvenile court to conducta fitness hearing under section 707 and to find defendant was not a fit and proper subject for treatment under the juvenile court law. After a hearing held February 2, 2018, the juvenile court found by a preponderance of the evidence that defendant did not meet the criteria for treatment under the juvenile court law and transferred the case back to adult criminal court.

Defendant's trial in adult criminal court commenced on August 21, 2018. On September 17, 2018, the trial court granted the People's oral motion to file an amended information. The People dismissed the attempted murder counts alleged in counts 3 and 4 and, in lieu of the attempted murder previously alleged in count 2, alleged that on May 17, 2014, defendant discharged a firearm into an occupied motor vehicle. (Pen. Code, § 246.)

On September 20, 2018, a jury found defendant guilty on all four counts alleged in the amended information (counts 1, 2, 5 & 6) and found true the firearm sentence enhancement allegations. Ten days later, the Governor signed into law Senate Bill No. 1391, which amended section 707 to effectively eliminate the ability of prosecutors to request a fitness hearing and transfer to adult criminal court minors who had committed their offenses when they were 14 or 15 years old.

Finally, on November 2, 2018, the trial court sentenced defendant to state prison for a determinate term of the middle term of five years for discharging a firearm at a motor vehicle; seven years to life for each attempted murder conviction; and 25 years to life for the premeditated murder, for a total indeterminate term of 39 years to life. Thetrial court granted the prosecutor's motion to strike the punishment for the jury's true finding on the firearm enhancements, in the interests of justice. (Pen. Code, § 1385.)

II.

DISCUSSION

A. Defendant May Challenge the Juvenile Court's Transfer Order on Counts 5 and 6 In This Appeal from the Adult Criminal Court's Judgment, and He Is Entitled to the Retroactive Benefit of Senate Bill No. 1391 on Those Counts.

Defendant contends he is entitled to the retroactive benefit of Senate Bill No. 1391 because the premeditated attempted murders alleged in counts 5 and 6 occurred when he was 15 years old, and we must vacate his convictions on those counts and remand to...