Opinion
A151402
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. LUIS BRIZUELA-NAVAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151284-7)
On November 8, 2016, the electorate of California passed Proposition 57, the "Public Safety and Rehabilitation Act of 2016." Among other things, Proposition 57 required that prosecutions against defendants who committed their crimes as juveniles be commenced in juvenile court and eliminated provisions that had allowed the district attorney to bring certain criminal charges directly against juvenile defendants in adult court. (Compare Welf. & Inst. Code, §§ 602, 707 with former §§ 602, 707.) Our Supreme Court has held that juvenile defendants whose convictions were not yet final at the time of the passage of Proposition 57 are entitled to retroactive application of the new law. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).) We conclude appellant Luis Brizuela-Nava's conviction was final as of the date Proposition 57 was effective and he is not entitled to relief under that provision. We reject his remaining claims and affirm.
I. BACKGROUND
Appellant was born June 9, 1999. Between the ages of 12 and 15, he committed sexual misconduct with a cousin who was seven years his junior on numerous occasions. Former law permitted the district attorney to directly file charges against appellant in adult court. (Former Welf. & Inst., § 707, subd. (b), (d).) On August 7, 2015, following a preliminary hearing, an information was filed charging him with one count each of aggravated sexual assault of a child (rape), aggravated sexual assault of a child (oral copulation), aggravated sexual assault of a child (foreign object penetration), forcible lewd conduct with a child, forcible oral copulation and forcible sexual penetration. (Pen. Code, §§ 269, subd. (a)(1), (a)(4) & (a)(5), 288, subd. (b)(1), 288a, subd. (c)(2)(b), 289, subd. (a)(1)(B).)
The information was subsequently amended to include an additional count of forcible lewd conduct. (§ 288, subd. (b)(1).) On April 28, 2016, appellant pled guilty to both forcible lewd conduct counts in exchange for dismissal of the other charges. Appellant signed a written plea form indicating that his sentence would be eight years and that he would be "housed at DJJ [Division of Juvenile Justice]," citing People v. Nguyen (1993) 15 Cal.App.4th 1699 (Nguyen), in which the court held that nothing prevents the DJJ (then the California Youth Authority) from housing a defendant even if he is ineligible for commitment to the DJJ. Another paragraph initialed by appellant provided, in accordance with Penal Code section 1016.5, "Federal law provides for mandatory deportation for certain crimes. I understand that if I am not a citizen of the United States, I have the right to contact a diplomatic or consular representative of my country, and conviction of a crime could result in my deportation, denial of my re-entry to the United States and denial of my application for citizenship." Another paragraph stated, "I understand that conviction of the charge(s) will subject me to registration requirements."
On June 29, 2016, a sentencing hearing was held. The district attorney indicated that he had spoken with the DJJ and that he had been told they could not house appellant (who was then 17) with the eight-year sentence. The parties had therefore agreed appellant would be sentenced to five years concurrent, the lower term for a violation of 288, subdivision (b)(1), notwithstanding the plea agreement. The court sentenced appellant to prison for the five-year lower term. It additionally found, apparently with the parties' agreement, that an amenability report under Welfare and Institutions Code section 707.2 was not required. Appellant waived his right to appeal. He was remanded to the custody of the DJJ and did not file a notice of appeal from the court's order.
At the time appellant entered his plea, Welfare and Institutions Code section 1731.5, subdivisions (b) and (c)(3) provided that a defendant under 18 years of age may be transferred to the Division of Juvenile Facilities for the purpose of housing only until, among other things, "[t]he inmate reaches 18 years of age. However, if the inmate's period of incarceration would be competed on or before the inmate's 21st birthday, the director may continue to house the inmate until the period of incarceration is completed." Here, appellant's period of incarceration would be complete before his 21st birthday if he were sentenced to five years, but not if he were sentenced to eight years. Welfare and Institutions Code section 1731.5, subdivision (c) was amended in 2018 to increase the specified age from 21 to 25 years old. (Stats. 2018, ch. 36, §34, effective June 27, 2018.)
On October 27, 2016, at DJJ's request, the court ordered an amenability evaluation pursuant to Welfare and Institutions Code section 707.2.
On November 8, 2016, the voters enacted Proposition 57, which "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 what we will call a 'transfer 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. (See Welf. & Inst. Code, § 707, subd. (a).)" (Lara, supra, 4 Cal.5th at p. 303.) Courts of appeal were initially split as to whether Proposition 57 applied prospectively only (see Pen. Code, § 3), but our Supreme Court has since held that it reduces the possible punishment for a crime and applies retroactively to cases not yet final on appeal. (Id. at pp. 303-304; see also In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66.)
On January 27, 2017, the district attorney filed a "Motion to Maintain Superior Court Jurisdiction" addressing Proposition 57 and its effect on this case. At a hearing held January 27, 2017, defense counsel was relieved and the public defender was appointed; this order was later reversed and defense counsel filed a motion regarding the applicability of Proposition 57. Defense counsel noted the pendency of the amenability study under Welfare and Institutions Code section 707.2 and argued the judgment was not final.
After a hearing, the trial court ruled on March 24, 2017 that the June 29, 2016 sentencing order was final and it was therefore powerless to grant relief under Proposition 57. The court noted, "This is a case where if there was any legal basis for [the] court to find a way to get [appellant] into juvenile court, the Court would find a way legally to do so." However, "[n]o case was cited to support the notion that because his housing placement is still pending that the judgment is not final."
Another hearing was held April 14, 2017, at which time the amenability report under Welfare and Institutions Code section 707.2 was not ready. On May 9, 2017, the amenability report was complete and appellant was found amenable. The court ordered that appellant be housed at DJJ. A notice of appeal was filed on May 18, 2017 from the May 9 order. A certificate of probable cause was granted by the trial court on January 8, 2018, following an unopposed motion to file a late certificate of probable cause in this Court.
II. DISCUSSION
A. Proposition 57
Penal Code section 3 provides that a statute shall not have retroactive effect unless expressly declared. An exception to this rule was formulated in Estrada, supra, 63 Cal.2d 740. When a statute is enacted calling for a lighter penalty and circumstances do not indicate a contrary legislative intent, "[i]t is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply" provided the judgment "is not final." (Id. at p. 745.)
Appellant contends Proposition 57 requires us to remand this matter to the juvenile court for a transfer hearing under the principles of Estrada, supra, 63 Cal.2d 740. The parties agree that if the judgment in the case was not final when Proposition 57 went into effect, appellant is entitled to have the case remanded for a transfer hearing, pursuant to Lara, supra, 4 Cal.5th at page 303, in which the Supreme Court held that Estrada principles of retroactivity apply to Proposition 57. (See People v. Barboza (2018) 21 Cal.App.5th 1315, 1319 (Barboza) [Proposition 57 does not apply to final judgments].) They disagree as to whether there was a final judgment as of November 9, 2016, when Proposition 57 became effective.
The Attorney General argues the judgment was already final because appellant was sentenced June 29, 2016 and did not appeal within 60 days. (See Pen. Code, 1237; Cal. Rules Court, rule 8.308; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421 (Ramirez).) Appellant argues that because a required amenability study under Welfare and Institutions Code section 707.2 was pending, he had not been finally sentenced and the judgment was not final. We agree with the Attorney General.
"In a criminal case, the sentence is the judgment." (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213; see also People v. Wilcox (2013) 217 Cal.App.4th 618, 625.) " 'For purposes of the Estrada rule, a judgment is "not final so long as the courts may provide a remedy on direct review [including] the time within which to petition to the United States Supreme Court for writ of certiorari." ' " (Barboza, supra, 21 Cal.App.5th at p. 1319.) Here, appellant was sentenced to five years in prison, to be housed at DJJ, on June 29, 2016. He did not file a timely appeal within 60 days, and that sentence, or the judgment, became final for purposes of direct review on August 29, 2016, the next court date after the 60th day. Proposition 57 was enacted after the judgment was final.
The pendency of an amenability evaluation under Welfare and Institutions Code section 707.2, ordered on October 27, 2016, after the period for filing an appeal from the judgment had expired, does not change this result. A minor tried in adult court may be committed to the DJJ rather than state prison. (Welf. & Inst. Code, § 1731, subd. (a).) A minor who is not committed to the DJJ may be sentenced to prison and transferred to the DJJ for housing purposes only. (Welf. & Inst. Code,§ 1731.5, subds. (a), (c); Nguyen, supra, 15 Cal.App.4th at pp. 1701-1703.) "Although the two decisions, commitment (Welf. & Inst. Code, § 707.2) and 'housing' (Welf. & Inst. Code, 1731.5, subd. (c)), are different, they are related and similar." (People v. Higareda (1994) 24 Cal.App.4th 1399, 1411.) The purpose of the report under Welfare and Institutions Code section 707.2 is to determine a defendant's amenability to the training and treatment offered by the DJJ. (See People v. Rangel (1999) 70 Cal.App.4th 350, 354.) It is intended to advise the trial court as to whether a DJJ commitment is appropriate and it is not binding on the court. (See, e.g., People v. Jones (1988) 46 Cal.3d 585, 602; Higareda at pp. 1412.)
Welfare and Institutions Code section 707.2, subdivision (a) provides, "Prior to sentence and after considering a recommendation on the issue which shall be made by the probation department, the court of criminal jurisdiction may remand the minor to the custody of the Department of the Youth Authority for a period not to exceed 90 days for the purpose of evaluation and report concerning his or her amenability to training and treatment offered by the Department of the Youth Authority. If the court decides not to remand the minor to the custody of the Department of the Youth Authority, the court shall make a finding on the record that the amenability evaluation is not necessary. However, a court of criminal jurisdiction shall not sentence any minor who was under the age of 16 years when he or she committed any criminal offense to the state prison unless he or she has first been remanded to the custody of the Department of the Youth Authority for evaluation and report pursuant to this section. [¶] The need to protect society, the nature and seriousness of the offense, the interests of justice, and the needs of the minor shall be the primary considerations in the court's determination of the appropriate disposition for the minor." (Italics added.)
Here, the court had already ordered DJJ housing pursuant to the plea agreement when the amenability study was ordered. (See Welf. & Inst. Code, § 1731.5, subd. (b), (c)(3).) Assuming a Welfare and Institutions Code section 707.2 report was still required, the pendency of such a report does not extend finality for Estrada purposes when judgment has already--even if erroneously--been imposed. Although such a report was, on the face of the statute, required because appellant was under 16 years of age at the time the offense was committed, its absence at the time of the judgment did not render that judgment void in the sense that it deprived the court of fundamental jurisdiction and was thus not final. "[A] challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted" and absent "exceptional circumstances, a party has no right to attack a voidable judgment long after it is final." (Ramirez, supra, 159 Cal.App.4th at p. 1422.) We are not here dealing with an unauthorized sentence that the court could not impose under any circumstance, and which is subject to correction at any time. (Cf. People v. Smith (2001) 24 Cal.4th 849, 852.)
The Attorney General argues that no amenability study was actually required in this case. He cites Welfare and Institutions Code section 707.2, subdivision (b), which provides, "This section shall not apply where commitment to the [DJJ] is prohibited pursuant to Section 1732.6" and argues that Welfare and Institutions Code section 1732.6, subdivision (b) applies. We disagree. Welfare and Institutions Code section 1732.6, subdivision (b)(1) does provide that a defendant is ineligible for a juvenile commitment when convicted of "[a]n offense described in subdivision (b) of Section 602." But while former Welfare and Institutions Code section 602, subdivision (b)(2) referred to convictions of Penal Code section 288, subdivision (b)(1), the crime of which appellant stands convicted, that former subdivision applied to such convictions only when "the prosecutor alleges that the minor personally committed the offense, and if the prosecutor alleges one of the circumstances enumerated in the One Strike law, subdivision (d) or (e) of Section 667.61 of the Penal Code, applies." This was not a case in which the prosecutor alleged circumstances under the One Strike law.
Appellant notes that housing at DJJ was a term of his plea bargain and suggests that if DJJ had not found him amenable to treatment there, and if the court had ultimately denied him housing at DJJ, he would be entitled to withdraw his plea. (See Pen. Code, 1192.5.) This did not occur, but if it had, appellant's remedy would not be direct appellate review of the June 29, 2016 judgment sentencing him to prison with housing at DJJ—he would instead be entitled to habeas corpus relief or an appeal directly from the order as one entered after judgment affecting his substantial rights. (See Pen. Code, 1238, subd. (b).) "A case may involve more than one appealable order after guilt . . . yet there is but a single act of sentencing in a criminal case." (Wilcox, supra, 217 CalApp.4th at p. 625.)
Because appellant's conviction was already final for Estrada purposes when Proposition 57 was enacted, he is not entitled to relief under the provisions of that new law.
B. Finding of Capacity
Appellant notes that minors who were less than 14 years of age are presumed to lack the legal capacity to commit a crime unless it is proved by clear and convincing evidence that he or she understood its wrongfulness. (Pen. Code, § 26, subd. One; In re Manuel L. (1994) 7 Cal.4th 229, 231-232.) He argues the evidence of capacity was insufficient and the trial court erred in failing to find, on the record, that he had the capacity to commit crimes that were alleged to have occurred within a range of dates when he might have been, but was not necessarily, under 14. We disagree for several reasons.
First, appellant's claim is barred on direct review because he did not timely appeal from the June 26, 2016 judgment. (Pen. Code, § 1237; see Ramirez, supra, 159 Cal.App.4th at pp. 1420-1421.) Second, assuming capacity can be raised as an issue after a final judgment, here appellant pled guilty to an information that alleged he was "a minor who was at least 14 years of age at the time of the commission of the above offense." He specifically admitted that the crimes occurred on or about October 25, 2011, a time when he was under 14, through January 10, 2015, a time when he was over 14. This defeats his claim that he lacked legal capacity when he committed the crimes by virtue of being under 14. Third, an implied finding of capacity will suffice (In re Jerry M. (1997) 59 Cal.App.4th 289, 297-298), and the trial court impliedly made such a finding when it accepted the plea. Fourth, to the extent appellant's claim involves the sufficiency of the evidence, such claims are not cognizable following a guilty plea. (People v. Turner (1985) 171 Cal.App.3d 116, 125.)
C. Immigration Consequences
Although he did not seek to withdraw his plea in the trial court, appellant argues his plea must be set aside on appeal because the court did not adequately advise him of the immigration consequences, in that the plea form stated only that he might be deported when in fact that was a certainty given the nature of the crimes to which he pled. We reject the claim.
Penal Code section 1016.5 requires the court to advise a criminal defendant on the record of adverse immigration consequences of the plea. An oral advisement is not required in cases where the advice is contained in the change of plea form. (People v. Ramirez (1999) 71 Cal.App.4th 519, 521-523.) A defendant may bring a motion under Penal Code section 1016.5 at any time and may seek review of a denial of a post-judgment motion without a certificate of probable cause under Penal Code section 1237.5. (People v. Arriaga (2014) 58 Cal.4th 950, 955, 960 (Arriaga); People v. Patterson (2017) 2 Cal.5th 885, 897 (Patterson).) When a defendant is not adequately advised, he must be permitted to withdraw his plea unless the court concludes it is not reasonably probable the defendant would have rejected the plea if so advised. (People v. Martinez (2013) 57 Cal.4th 555, 559.)
Here, appellant was advised in the language of Penal Code section 1016.5, subdivision (a), making any statutory claim under that section dubious. (Arriaga, supra, 58 Cal.4th at pp. 957-958.) But more to the point, he did not bring a motion under Penal Code 1016.5 in the trial court. We cannot review what is not in front of us and accordingly reject any claim under section 1016.5. We also reject any alternative claim to withdraw the plea under Penal Code section 1018 (see Patterson, supra, 2 Cal.5th at p. 897) as untimely. Finally, we reject any assertion that the case is governed by Padilla v. Kentucky (2010) 559 U.S. 356, 373-374, in which the court held that a defense lawyer provides constitutionally deficient assistance when a noncitizen client is not advised of the risk of deportation attendant to a guilty plea. Appellant has not alleged ineffective assistance of counsel.
D. Sex Offender Registration
Appellant argues his plea was not voluntary because he was not advised until sentencing that it would result in a lifetime sex offender registration requirement. The claim is not timely because appellant did not appeal from the judgment.
We note that appellant should have been advised of the lifetime registration requirement when he entered his plea. (People v. Zaidi (2007) 147 Cal.App.4th 1470, 1484, 1486.) However, he has not established on this record that the error was prejudicial when the requirement was imposed at sentencing and neither he nor his counsel objected. (People v. McClellan (1993) 6 Cal.4th 367, 376.) We would accordingly reject the claim even if we reached the merits.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.