Opinion
F070564
04-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMIAH CHARLIE BREWER, Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F12904169)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
This is the third time this case has been before us. At the conclusion of a court trial, Jeremiah Charlie Brewer (defendant) was convicted of sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A); count 1), assault with intent to commit rape or forcible sexual penetration during the commission of first degree burglary (§ 220, subd. (b); count 2), and kidnapping to commit rape or forcible sexual penetration (§ 209, subd. (b)(1); count 3). The court found true allegations in count 1 that defendant substantially increased the risk of harm to the victim inherent in the offense by kidnapping her (§ 667.61, subds. (a), (d)(2)), committed the offense during the commission of first degree burglary with the intent of committing sexual penetration by force (§ 667.61, subds. (a), (d)(4)), and kidnapped the victim to accomplish the offense (§ 667.61, subds. (b), (e)(1)). Defendant was sentenced to an unstayed term of 25 years to life in prison.
All statutory references are to the Penal Code unless otherwise stated.
In our original opinion, we held: (1) There was sufficient evidence defendant substantially increased the risk to the victim within the meaning of sections 209, subdivision (b)(1), and 667.61, subdivision (d)(2) by moving her within her own apartment; (2) The fact the allegation under subdivision (d)(2) of section 667.61 was found true does not require reversal of the true finding under section 667.61, subdivision (e)(1); and (3) Defendant's sentence does not constitute cruel and/or unusual punishment under the federal and state Constitutions, and his trial attorney was not ineffective for failing to object on that ground. Accordingly, we affirmed.
Defendant petitioned for rehearing, arguing that Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57 or the Act), enacted by the voters on November 8, 2016, applied retroactively to his case and required a remand to the juvenile court system for further proceedings. We granted rehearing to determine whether defendant was entitled to such relief. We concluded, with one justice dissenting, Proposition 57 did not apply retroactively to defendant's case.
The California Supreme Court granted review, and transferred the matter back to us with directions to vacate our decision and reconsider the matter in light of People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). We have done so, and conclude defendant is entitled to a conditional reversal and remand for a juvenile transfer hearing. We adhere to our original analysis and finding of no error in all other respects.
FACTS
On February 10, 2012, Elizabeth F., a college student, lived in a first-floor apartment near California State University, Fresno. The kitchen of the apartment adjoined the living room. There was a window behind the kitchen sink, as well as windows near a sliding glass door in the living room. At the time of events, the blinds to the window behind the sink were open, as were the blinds to the sliding door. There was a public walkway outside the windows. A person could look through the windows into the apartment from that walkway.
At 4:00 p.m., Elizabeth was alone in the apartment, washing dishes, when she looked up through the window behind the sink and saw a male passing by outside. As the male walked by, he took a couple of steps back, looked through the window blinds, and kept going. Elizabeth saw him a couple of minutes later by the windows near the living room.
The male, who had walked by twice, stopped the second time he passed by, looked back and forth a couple of times, and knocked on Elizabeth's door. At first, Elizabeth thought it was the maintenance man, whom she had called about an hour earlier. When she answered the door, however, defendant — the person who had walked by twice earlier — was standing there.
Defendant asked Elizabeth if her husband was at home. She replied she was not married and asked if he was lost. Defendant said he was looking for his cousin and asked to use Elizabeth's phone. Elizabeth let defendant use her cell phone. Defendant stayed outside at first, but before he finished the call, he signaled that he wanted to enter. Elizabeth stepped back and defendant entered her apartment.
Inside Elizabeth's apartment, defendant handed back her cell phone. She asked defendant to walk out. Defendant turned away as though he was leaving, but slammed the apartment door shut. He immediately grabbed Elizabeth's shoulders and pushed her up against the wall, moving her 10 to 12 feet. Elizabeth asked defendant what he was doing and why. Defendant did not answer.
Elizabeth tried to fight defendant off. Defendant looked toward the window, then turned and saw Elizabeth's bedroom. As Elizabeth struggled with him, defendant forced her to her bedroom. Elizabeth tried to yell, but defendant covered her mouth. He pushed Elizabeth onto the bed in her bedroom. Elizabeth kept telling defendant to stop and asked him why he was doing this. She also yelled for help. The windows and blinds in Elizabeth's bedroom were closed. Although the sliding door and windows in the living room area were open because Elizabeth had been mopping and wanted to air out her apartment, Elizabeth was farther away from the walkway and apartment entrance when in her bedroom than when in the living room.
Photographs depicting Elizabeth's bedroom, the hallway and bedroom, and the living room and entry door were admitted into evidence.
Defendant pulled off Elizabeth's basketball shorts and underwear. Elizabeth became more frightened and tried yelling "Fire," but "it didn't come out" and so she yelled for defendant to stop. Defendant kept Elizabeth in place on the bed with one hand, while trying to remove his pants with the other. When he was unsuccessful, he penetrated her vagina with his first two fingers past the second knuckle of the fingers for 15 to 20 seconds.
To get defendant to stop, Elizabeth told him a couple of times that her father was a cop. Then Elizabeth noticed the sound of the dishwasher and running water. She told defendant her boyfriend was in the shower. Elizabeth repeated this multiple times and told defendant her boyfriend was going to kill him. Defendant stopped, got up, and left through the front door. Elizabeth ran into her bathroom, locked the door, and called 911.
Fresno Police Officer Hansen was dispatched to Elizabeth's apartment immediately after the assault. Hansen took a statement from Elizabeth and described her emotional state as being "extremely upset." Elizabeth was crying the entire time. A sexual assault examination subsequently was performed. Elizabeth suffered bruises from the assault.
Hansen retrieved a phone number from Elizabeth's phone with an area code of 405, the Oklahoma City area. Detective Gray, who was assigned to the sexual assault unit, called the number and left a message. On March 6, 2012, Gray spoke to a woman named Malasia G., who said she lived in Oklahoma City. Malasia said she knew someone on Facebook who lived in Fresno named Jeremiah Brewer. Gray determined defendant lived in an apartment complex not far from Elizabeth. Shown a photographic lineup, Elizabeth identified defendant as her assailant.
Gray arrested defendant and brought him back to police headquarters for interrogation. Defendant was advised of and waived his constitutional rights. After initially denying he was involved in the assault, defendant admitted he came into Elizabeth's apartment and used her cell phone. Defendant said Elizabeth let him into the apartment. Defendant denied touching Elizabeth first. Defendant said Elizabeth "came on" to him and led him to the bedroom, and they lay on the bed together. Defendant denied forcible conduct or rape and said he touched her leg "and stuff like that." He also denied grabbing Elizabeth and dragging her into the bedroom.
Defendant initially denied that things got out of hand, but admitted Elizabeth apparently changed her mind and pushed him away. Defendant again denied raping Elizabeth and said he did not remember putting his fingers into her vagina. When he was asked if things changed after he placed his finger inside Elizabeth's vagina, defendant replied, "Yeah." Defendant admitted things got out of hand but continued to deny he raped Elizabeth and said he guessed she did not want him to place his fingers inside her vagina. Defendant wrote a letter apologizing to Elizabeth.
DISCUSSION
1. SUFFICIENCY OF EVIDENCE OF KIDNAPPING TO COMMIT SEX OFFENSE
Introduction
Defendant contends there was insufficient evidence to: (1) support his conviction for kidnapping to commit forcible sexual penetration (§ 209, subd. (b)(1)); (2) support the trial court's true findings in count 1 that in committing sexual penetration by force he kidnapped the victim (§§ 289, subd. (a)(1)(A), 667.61, subd. (e)(1)); and (3) establish he kidnapped the victim by employing movement that substantially increased the risk of harm to the victim (§ 667.61, subd. (d)(2)). Defendant argues any movement was only incidental to the commission of the underlying sexual offense and did not substantially increase the risk to the victim. We disagree.
Legal Principles
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same whether the People primarily rely on direct or on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.)
Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before a reviewing court can set aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Section 209, subdivision (b) does not require, for an aggravated kidnapping, proof the movement of the victim substantially increased the risk of harm to the victim. It does, however, require proof the movement was more than merely incidental to the enumerated offense and increased the risk of harm above that inherent in said offense. (People v. Robertson (2012) 208 Cal.App.4th 965, 978-982; see People v. Vines (2011) 51 Cal.4th 830, 869-871.)
Section 209, subdivision (b) provides: "(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense."
"The One Strike law, section 667.61, requires a sentence of 25 years to life in prison whenever a defendant (1) is convicted of a current offense specified in subdivision (c), and (2) either 'one or more of the circumstances specified in subdivision (d)' or 'two or more of the circumstances specified in subdivision (e)' are present. (§ 667.61, subd. (a).)" (People v. Hammer (2003) 30 Cal.4th 756, 761, fns. & italics omitted.) The law requires a sentence of 15 years to life in prison whenever a defendant (1) is convicted of a current offense specified in subdivision (c), and (2) "one of the circumstances specified in subdivision (e)" is present. (§ 667.61, subd. (b).)
Sexual penetration, in violation of section 289, subdivision (a), constitutes an offense specified in subdivision (c)(5) of section 667.61. Section 667.61, subdivision (e)(1) incorporates by reference section 209, as it sets out the following circumstance applicable to the offenses specified in subdivision (c): "Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5." Section 667.61, subdivision (d)(2) sets out the following circumstance applicable to the offenses specified in subdivision (c): "The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." Thus, subdivision (d)(2) of section 667.61 requires a substantial increase of risk of harm from the defendant's asportation of the victim beyond that necessarily present in the underlying sexual offense. Any substantial asportation involving forcible control of the victim satisfies the risk of harm test. (People v. Jones (1997) 58 Cal.App.4th 693, 713.)
A seminal case from our Supreme Court relied on by defendant is People v. Daniels (1969) 71 Cal.2d 1119 (Daniels). It held that aggravated kidnapping for robbery requires a movement of the victim that (1) is not merely incidental to the commission of robbery, and (2) substantially increases the risk of harm over and above what is present in the crime of robbery itself. (Daniels, supra, at p. 1139.) In Daniels, though there was a movement of some distance, it was inside a building and the court found the movement incidental. (Id. at p. 1140.)
Prior to the Legislature's revision of section 209, subdivision (b) in 1997, movement of the victim by the defendant had to be substantial. (See People v. Vines, supra, 51 Cal.4th at p. 869, fn. 20.) Several of the authorities we review analyze aggravated kidnapping pursuant to the statute as it existed prior to the 1997 revision. As these authorities address what constitutes a substantial increase in risk of harm, we find them persuasive in analyzing the One Strike law. --------
In People v. Rayford (1994) 9 Cal.4th 1 (Rayford), the high court observed that in determining whether the movement was merely incidental to the crime—the first prong of the Daniels analysis—the trier of fact must consider the scope and nature of the movement. This includes the actual distance the victim is moved; however, there is no minimum number of feet a defendant must move a victim to satisfy this requirement. (Rayford, supra, at p. 12.) The court noted that in Daniels, the movement involved was merely incidental where, in the course of robbing and raping three women in their own homes, the defendants forced the victims to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet. (Rayford, supra, at p. 12; see Daniels, supra, 71 Cal.2d at pp. 1126, 1140.)
Rayford explained that the second prong of Daniels refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in the underlying offense. (Rayford, supra, 9 Cal.4th at p. 13.) "This includes . . . such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.]" (Id. at pp. 13-14.) It also includes both the victim's desperate attempts to extricate himself or herself as well as unforeseen intervention by third parties. (Id. at p. 13.) That these dangers do not in fact materialize does not mean the risk of harm was not increased. (Id. at p. 14.)
The sexual assault victim in Rayford was forcibly moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot. She was forced to sit against the wall beside a small tree, 34 feet from the street. The wall, tree, and bushes at the end of the wall limited any chance the victim might be seen by passersby. An area beyond the wall bordered a two-lane street, but was undeveloped. Although there was some light, there was no evidence whether the victim and defendant were detectable from the street. (Rayford, supra, 9 Cal.4th at p. 23.) The court held this constituted sufficient evidence of asportation from which the jury could reasonably conclude the victim's forcible movement for this distance and under these circumstances was not merely incidental to the commission of attempted rape and substantially increased the victim's risk of harm. (Ibid.)
Several cases decided after Rayford have found an increased risk of harm to the victim of a sexual assault who was moved a short distance to a more secluded location within a building or to a space farther from public view. In People v. Dominguez (2006) 39 Cal.4th 1141, 1153, the defendant moved the victim in the middle of the night from the side of a road to a spot in an orchard 25 feet away and 10 to 12 feet down a steep hill. In People v. Shadden (2001) 93 Cal.App.4th 164, 167-170, the defendant moved the owner of a video store nine feet from a space behind the store counter to a back room where the defendant was able to close the door and keep the victim out of public view. In People v. Diaz (2000) 78 Cal.App.4th 243, 248-249, the defendant moved the victim from a well-lighted area on the sidewalk to the back of a recreation center, a location still outdoors but more secluded from public view. In People v. Jones (1999) 75 Cal.App.4th 616, 628-630, the victim was moved by the defendant across a parking lot and pushed into her car where, although the car alarm was sounding, the victim was no longer in public view. In People v. Smith (1995) 33 Cal.App.4th 1586, 1594, the defendant moved the victim 40 to 50 feet from a driveway open to a view from the street, into a camper. In People v. Salazar (1995) 33 Cal.App.4th 341, 344, 348, the victim was moved 29 feet from an outside walkway to the bathroom of a motel room, where the defendant closed the door. In each of these cases, the defendant's conduct was held to have caused increased risk of harm to the victim because of how and where the defendant moved the victim to commit a sexual assault.
"[E]ach case must be considered in the context of the totality of its circumstances." (People v. Dominguez, supra, 39 Cal.4th at p. 1152.) In the present case, Elizabeth's apartment was on the first floor of her apartment building. Elizabeth testified she was cleaning the common areas of her apartment with the window blinds open over the sink. The blinds for the sliding glass door were also open, as was the sliding glass door itself. From these windows and the door, anyone walking by Elizabeth's apartment could look in and view the kitchen and living room area. After entering the apartment, defendant slammed the apartment door shut, grabbed Elizabeth, and forced her, against her struggles, about 10 feet to the wall. He then looked toward the window because the blinds were open, turned and saw Elizabeth's bedroom, and forced Elizabeth to her bedroom. The windows and blinds in the bedroom were closed, and the bedroom was farther away from the walkway and entrance into the apartment than was the living room. Once in the bedroom, defendant began his sexual assault.
The facts in the instant action demonstrate defendant moved Elizabeth twice, the second movement leading her into a secluded room not visible from outside the apartment. This was more movement than necessary to effectuate the offense of digital penetration. The movement also significantly increased the risk of harm to Elizabeth. It greatly reduced the possibility a passerby would see defendant's assault or at least hear Elizabeth's cries for help. The facts of this case are as strong as, if not stronger than, the facts found to show an increased risk of harm to the victims in Rayford, Dominguez, Shadden, Diaz, Jones, Smith, and Salazar. We reject defendant's contention his movement of Elizabeth was only incidental to his sexual assault and did not pose a significantly greater risk of harm to her.
2. TRUE FINDINGS OF MULTIPLE SUBDIVISIONS OF SECTION 667.61
Defendant contends the trial court's true findings under subdivisions (d)(2) and (e)(1) of section 667.61 cannot both stand. According to defendant, subdivision (e)(1) is expressly inapplicable where subdivision (d)(2) applies. The People say the language of section 667.61, subdivision (e)(1) is definitional and does not preclude an additional finding under subdivision (d)(2) of the statute. We agree with the People that defendant reads subdivision (e)(1) too narrowly.
Subdivision (e)(1) of section 667.61 states: "Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5." Defendant argues the express language of this subdivision "explicitly provides an exception where the kidnapping circumstance does not apply, that is, where the circumstance of subdivision (d)(2) applies." According to defendant, the true finding under subdivision (d)(2) of section 667.61 precludes a true finding pursuant to section (e)(1) of the statute.
Section 667.61 is not a sentence enhancement; rather, it is an alternative and harsher sentencing scheme for the underlying specified sex crimes themselves. (People v. Acosta (2002) 29 Cal.4th 105, 118.) As we previously explained, subdivision (a) of section 667.61 provides that if a defendant is convicted of an offense enumerated in subdivision (c) of the statute under one or more of the circumstances specified in subdivision (d) of the statute or two or more of the circumstances specified in subdivision (e) of the statute, he or she is subject to a sentence of 25 years to life. Subdivision (b) of section 667.61 provides for a sentence of 15 years to life if the defendant is convicted of an enumerated offense under one of the circumstances specified in subdivision (e) of the statute.
The introductory phrase of subdivision (e)(1) of section 667.61 — "Except as provided in paragraph (2) of subdivision (d)" — is definitional language. As the People contend, it specifies the situation under which the circumstance applies, i.e., where the defendant kidnaps the victim in violation of section 207, 209, or 209.5, but does not substantially increase the risk of harm to the victim over and above the level of risk inherent in the underlying offense. It does not mean a true finding pursuant to section 667.61, subdivision (d)(2) is precluded by subdivision (e)(1) or that a subdivision (e)(1) finding must be stricken where there is also a true finding under subdivision (d)(2). As the People accurately point out, subdivision (g) of section 667.61 states: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section."
Where allegations are found true under both subdivisions (d)(2) and (e)(1) of section 667.61, subdivision (b) of the statute (which reads, in part, "[e]xcept as provided in subdivision (a)") precludes a sentence under that very same provision, and the defendant is sentenced pursuant to subdivision (a) of the statute. Here, the trial court sentenced defendant on count 1 pursuant to subdivision (a) of section 667.61. The court properly followed the statutory sentencing scheme of section 667.61, the sentence was authorized, and a true finding pursuant to subdivision (e)(1) of the statute was not precluded as argued by defendant.
3. CRUEL AND/OR UNUSUAL PUNISHMENT
Defendant contends his sentence was cruel and/or unusual under the United States and California Constitutions because he was only 16 years old when he committed the offenses and he had no prior criminal record. Defendant further asserts his trial counsel was ineffective for failing to challenge his sentence as cruel and/or unusual punishment. We reject these arguments.
Defendant's Eighth Amendment challenge does not fall within the narrow proportionality principle in the Eighth Amendment reserved for extreme sentences that are grossly disproportionate to the offenses committed by the defendant. (See Ewing v. California (2003) 538 U.S. 11, 20-21 (lead opn. of O'Connor, J.).) Article 1, section 17 of the California Constitution sets forth three factors for courts to consider when analyzing whether a sentence is cruel or unusual: (1) the degree of danger the offender and the offense pose to society; (2) how the punishment compares with punishments for more serious crimes; and (3) how the punishment compares for the same offense in other jurisdictions. (People v. Dillon (1983) 34 Cal.3d 441, 479-482, disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1185-1186; In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch).)
First, in People v. Andrade (2015) 238 Cal.App.4th 1274, 1309, 1310, the court did not find a sentence of 195 years to life disproportionate, shocking, or inhumane for a violent sex offender who lacked a criminal history but who committed his crimes against young, vulnerable women; threatened his victims; and claimed an affiliation with law enforcement to avoid detection. In People v. Hamlin (2009) 170 Cal.App.4th 1412, 1474-1476, the court found a life term constitutional for a defendant who lacked a prior criminal record but who was convicted of torture and showed no remorse. While perhaps not as serious as torture, residential burglary nevertheless is a serious offense that poses a risk to human life, especially when it is perpetrated with the goal of committing a sexual assault. (People v. Estrada (1997) 57 Cal.App.4th 1270, 1281-1282 [concluding sentence of 25 years to life for forcible rape in course of burglary committed with intent to commit forcible rape is neither cruel nor unusual].)
Second, lengthy noncapital sentences have been upheld in a variety of sentencing scenarios. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1230-1231 [upholding sentence of 135 years pursuant to One Strike law]; People v. Crooks (1997) 55 Cal.App.4th 797, 803-809 [mandatory minimum sentence of 25 years to life under One Strike law not cruel and/or unusual]; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828 [sentence of 25 years to life under Three Strikes law for being ex-felon in possession of handgun not cruel and/or unusual]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [sentence of more than 283 years for multiple sex offenses constitutional]; but see People v. Contreras (2018) 4 Cal.5th 349, 356, 367-370 (Contreras) [sentences of 50 years to life and 58 years to life, imposed under the One Strike law on juvenile offenders for nonhomicide offenses, unconstitutional].)
Third, how the punishment compares for the same offense in other jurisdictions — need not be reviewed under the facts of this case. (See People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 846.) We note, however, that punishments for sex offenses in sister state jurisdictions include similar or harsher sentences. (See People v. Estrada, supra, 57 Cal.App.4th at p. 1282 [comparing sentences in Washington and Louisiana].)
In Miller v. Alabama (2012) 567 U.S. 460, 479-480 (Miller), the United States Supreme Court found an Eighth Amendment violation where a juvenile was subject to a mandatory sentence of life without the possibility of parole. The California Supreme Court reached a similar conclusion where a juvenile received a sentence of over 100 years for a noncapital offense, a span beyond the natural life expectancy of the offender. (People v. Caballero (2012) 55 Cal.4th 262, 266-269.) In People v. Palafox (2014) 231 Cal.App.4th 68, 73, 89-92 (Palafox), this court held a juvenile who committed homicide could be sentenced to life without the possibility of parole where the term imposed was not mandatory and the sentencing court properly evaluated all relevant sentencing criteria, including mitigating factors.
Defendant was 16 years old when he committed the instant offense. Unlike the defendants in Miller and Palafox, he did not receive a sentence of life without the possibility of parole. Unlike the defendants in Contreras, his sentence was not the functional equivalent of life in prison without the possibility of parole. Rather, he received a sentence of 25 years to life and will be eligible for parole well within his natural life expectancy. The trial court did not abuse its sentencing discretion when it imposed an indeterminate sentence of 25 years to life on count 1.
Because defendant's sentence is not cruel and/or unusual, he cannot demonstrate either deficient performance by trial counsel or prejudice therefrom. Accordingly, his ineffective assistance of counsel claim fails. (See People v. Maury, supra, 30 Cal.4th at p. 389.)
4. PROPOSITION 57
As previously stated, defendant was 16 years old at the time he committed the charged offenses. The matter was initiated in juvenile court. That court conducted a fitness hearing under the law then in effect, pursuant to which defendant was presumed to be unfit for treatment under the Juvenile Court Law. (Former Welf. & Inst. Code, § 707, subd. (c); see Rene C. v. Superior Court (2006) 138 Cal.App.4th 1, 10.) The juvenile court concluded defendant was unfit for treatment under the Juvenile Court Law and referred the case for prosecution in criminal (adult) court.
On June 8, 2012, charges were filed against defendant in criminal court. He was convicted on September 2, 2014, and sentenced on October 29, 2014. His notice of appeal was filed on November 26, 2014. On November 8, 2016, while defendant's appeal was pending, voters enacted Proposition 57. It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Insofar as we are concerned, the Act eliminated the People's ability to initiate criminal cases against juvenile offenders anywhere but in juvenile court. It also removed the presumption of unfitness that previously attached to the alleged commission of certain offenses. (See generally Welf. & Inst. Code, §§ 602, 707, subds. (a), (b).)
Defendant claims that because his case was not yet final at the time voters approved Proposition 57, he is entitled to have his convictions and sentence vacated, and to have the matter remanded to the juvenile court for a transfer hearing devoid of any presumption he is unfit for disposition as a juvenile. The California Supreme Court recently agreed (Lara, supra, 4 Cal.5th at pp. 303-304), and the Attorney General concedes a limited remand is required. Accordingly, we will conditionally reverse defendant's convictions and sentence, and order the juvenile court to conduct a juvenile transfer hearing (Welf. & Inst. Code, § 707), as more fully set out in our disposition, post. Defendant is not entitled to a jurisdictional hearing, or the equivalent of a second trial, in juvenile court, however. (Lara, supra, 4 Cal.5th at pp. 309-310.)
DISPOSITION
The convictions and sentence are conditionally reversed, and the matter is remanded to the juvenile court with directions to conduct a juvenile fitness hearing. (Welf. & Inst. Code, § 707.) When conducting said 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 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 convictions as juvenile adjudications and impose an appropriate disposition within its discretion.
If, after conducting the juvenile transfer hearing, the court determines it would have transferred defendant to a court of criminal (adult) jurisdiction because defendant is not a fit and proper subject to be dealt with under the Juvenile Court Law, then defendant's convictions and sentence shall be reinstated as of that date.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.