Opinion
C083660
10-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW STEVEN JONES, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on October 30, 2018, be modified as follows:
After the last paragraph on page 7 starting with "We adopt the same remedy," insert the following new paragraph:
In a petition for rehearing, defendant has drawn our attention to recently passed legislation, Senate Bill No. 1391, which will be effective January 1, 2019. As amended by this bill, Welfare and Institutions Code section 707, subdivision (a) will no longer authorize minors who are younger than 16 at the time of an offense to be tried in adult criminal court, unless they are not apprehended before the end of juvenile court jurisdiction. Defendant argues that this amendment should be applied retroactively to him. By the time this matter has returned to the juvenile court and a transfer hearing has been scheduled, the amendment will most likely be operative. At the transfer hearing, the juvenile court shall consider the current state of the law in deciding whether it would have transferred defendant to a court of criminal jurisdiction on counts one through four. We decline defendant's invitation to determine whether the amended version of Welfare and Institutions Code section 707, subdivision (a) prohibits the juvenile court from transferring defendant to criminal court. This issue should be addressed by the trial court in the first instance.
There is no change in the judgment.
Appellant's petition for rehearing is denied. BY THE COURT:
/s/_________
Blease, Acting P. J.
/s/_________
Butz, J.
/s/_________
Mauro, J. NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F04447)
This is defendant's second appeal after he was convicted of numerous sex-related crimes, including four counts of lewd and lascivious acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)) when he was 15 years old (counts one through four). In his first appeal, we affirmed the judgment but remanded for resentencing as to counts one through four because the aggregate sentence imposed on those counts--100 years to life-- constituted cruel and unusual punishment in violation of the Eighth Amendment. We also ordered the trial court to correct errors in the abstract of judgment. (People v. Jones (Sep. 10, 2015, C076049) [nonpub. opn.] (Jones).)
Undesignated statutory references are to the Penal Code.
At the resentencing hearing, the trial court imposed an aggregate sentence of 50 years to life on counts one through four under the one strike law. In his second appeal, appointed counsel for defendant filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After reviewing the entire record, we ordered the parties to file supplemental letter briefs addressing the following: (1) is defendant entitled to a transfer hearing on counts one through four under Proposition 57?; (2) is resentencing on counts one through four required in view of People v. Contreras (2018) 4 Cal.5th 349 (Contreras)?; and (3) in view of the recent amendments to section 3051, is a limited remand under People v. Franklin (2016) 63 Cal.4th 261 (Franklin) required?
We will conditionally reverse the judgment as to counts one through four and remand the matter to the juvenile court with direction to hold a juvenile transfer hearing to determine defendant's suitability for treatment in juvenile or criminal court. If the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction because he was not suitable for treatment under juvenile court law, the trial court shall resentence defendant on counts one through four consistent with our Supreme Court's recent decision in Contreras. If the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall deem defendant's convictions on counts one through four to be juvenile adjudications and conduct a dispositional hearing on those counts.
FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise specified, the facts and procedural history are taken from our opinion disposing of defendant's first appeal. (Jones, supra, C076049.)
We provide the following brief description of the factual and procedural background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
While defendant was living in a residential facility for juvenile sex offenders, he left the home late at night, broke into the home of 12-year-old G. Doe, woke her up, and engaged in lewd and lascivious acts. Defendant's image was caught on surveillance cameras around G. Doe's home, and defendant was apprehended when the manager of his residential facility recognized his picture and called authorities.
Defendant volunteered to authorities that he had committed similar acts against a young boy (A. Doe) who lived in the area, and that he had entered four other homes for the same purpose, but had found no children. Defendant was 18 years old at the time of these offenses.
Defendant also volunteered that he committed a similar offense several times against a boy in Stockton when defendant had been living at a residential facility in Stockton. Defendant was 15 years old when he committed those offenses.
Defendant was tried by the court. The court found him guilty of four counts of lewd and lascivious acts with a child under the age of 14 for the offenses defendant committed in Stockton when he was 15 years old (counts one through four). The court found defendant guilty of four counts of lewd and lascivious acts with a child under the age of 14 by force or violence and one count of lewd and lascivious acts with a child under the age of 14 (a lesser included offense to the forcible act) for the two children he violated when he was 18 years old. The court also found defendant guilty of two counts of first degree burglary.
For the violations of section 288, subdivision (b)(1) (forcible lewd & lascivious acts against a child under the age of 14) that defendant committed when he was 18 years old, the court found true the allegations pursuant to section 667.61, subdivision (j)(1) that the crimes were committed during the commission of a first degree residential burglary, and sentenced defendant to four consecutive terms of life in prison without the possibility of parole. For the four violations of section 288, subdivision (a) (lewd & lascivious acts against a child under the age of 14) that defendant committed when he was 15 years old, the court found true the allegations pursuant to section 667.61, subdivision (j)(1) that the crimes were committed during the commission of a first degree residential burglary, and sentenced defendant to four consecutive terms of 25 years to life. For the violation of section 288, subdivision (a) that defendant committed when he was 18 years old, the court sentenced defendant to a consecutive term of 15 years to life. For the two first degree burglary convictions, the court sentenced defendant to a determinate term of seven years four months. Defendant thus received a sentence of seven years four months, plus 115 years to life, plus four terms of life without the possibility of parole (LWOP).
In his first appeal, defendant argued, among other things, that he received ineffective assistance of counsel at sentencing because his trial counsel failed to argue the sentence on counts one through four (i.e., the counts he committed when he was 15 years old) constituted cruel and unusual punishment in violation of the Eighth Amendment. He also argued that the abstract of judgment contained errors that required correction.
We remanded the matter for resentencing as to counts one through four, ordered corrections to the abstract of judgment, but otherwise affirmed the judgment. In remanding for resentencing, we explained that defendant was 15 years old when he committed the acts giving rise to counts one through four, and that a series of United States and California Supreme Court cases have held life sentences for juvenile offenders in nonhomicide offenses to be cruel and/or unusual punishment. (See People v. Caballero (2012) 55 Cal.4th 262, 268 [holding that "sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment"].) We concluded that had defendant's trial counsel objected to the sentence for counts one through four, the trial court would have sentenced defendant to a sentence for those offenses that did not fall outside defendant's natural life expectancy, and that trial counsel's failure to object to the sentence fell below an objective standard of reasonableness.
At resentencing the trial court, after considering any mitigating circumstances of defendant's crimes and life, imposed an aggregate sentence of 50 years to life on counts one through four, comprised of consecutive sentences of 25 years to life on counts one and two and concurrent sentences of 25 years to life on counts three and four. In doing so, the court observed that it was required to sentence defendant to an aggregate sentence of 100 years to life under the one strike law (§§ 667.61, 3051, subd. (h)) but reasoned that doing so would render the sentence unconstitutional under recent case law. The court recalculated defendant's actual custody credits and ordered that corrections be made to the abstract of judgment as directed by this court. The court stated that all other aspects of the original sentence remain as previously ordered. Thereafter, at the request of defendant's appellate counsel, the trial court corrected the abstract of judgment twice.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) After reviewing the entire record, we ordered the parties to file supplemental letter briefs addressing the following: (1) is defendant entitled to a juvenile transfer hearing on counts one through four under Proposition 57?; (2) is resentencing on counts one through four required in view of Contreras?; and (3) in view of the recent amendments to section 3051, is a limited remand under Franklin required?
I
Proposition 57
Defendant contends that he is entitled to a juvenile transfer hearing on counts one through four under Proposition 57. The People concede the point, and we agree.
As previously indicated, defendant was 15 years old when he committed the crimes charged in counts one through four. The charges were filed in criminal court. After a court trial, defendant was found guilty on each count and sentenced to an aggregate term of 100 years to life. In September 2015, we remanded the matter for resentencing as to counts one through four because the aggregate sentence imposed constituted cruel and unusual punishment in violation of the Eighth Amendment. (Jones, supra, C076049.)
In November 2016, the electorate enacted Proposition 57, which among other things, repealed the statutory provision (former Welf. & Inst. Code, § 707, subd. (d); Stats. 2015, ch. 234, § 2) authorizing a prosecutor to dispense with the filing of a juvenile petition and instead directly file a criminal complaint against a minor 14 years of age or older in the superior court for certain offenses. (Prop. 57, § 4.2, as approved by voters, Gen. Elec. (Nov. 8, 2016), eff. Nov. 9, 2016.) Now, a prosecutor may file criminal charges against certain classes of minors only with the juvenile court's approval, after the court has considered factors listed in the statute at a transfer hearing. (Welf. & Inst. Code, § 707, subd. (a).)
In December 2016, the trial court resentenced defendant to an aggregate term of 50 years to life on counts one through four. This timely appeal followed. While defendant's appeal was pending, our Supreme Court held that Proposition 57 applies retroactively. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 309 (Lara).) The court explained, "Proposition 57 is an 'ameliorative change[] to the criminal law' that we infer the legislative body intended 'to extend as broadly as possible.' [Citation.]" (Ibid.) The court concluded that the relevant provision of Proposition 57 "applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, at p. 304.)
Turning to the remedy, the Lara court cited with approval the remedy set forth in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298, and transferred the case back to the Court of Appeal. " 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] 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 Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela 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 Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' " (Lara, supra, 4 Cal.5th at p. 310.)
After remand, the Court of Appeal subsequently issued its modified opinion, which did not affect the remedy endorsed in Lara. (People v. Vela (2018) 21 Cal.App.5th 1099, 1113.) --------
We adopt the same remedy. Accordingly, we will conditionally reverse the judgment as to counts one through four and order the juvenile court to conduct a juvenile transfer hearing. (Welf. & Inst. Code, § 707.)
II
Remaining Issues
In the event the juvenile court finds that it would have transferred defendant to a court of criminal jurisdiction, the parties agree that defendant is entitled to resentencing on counts one through four under Contreras. The parties also agree that defendant is not entitled to a limited remand under Franklin. We concur.
In Contreras, our Supreme Court recently held that the Eighth Amendment is violated where, as here, a juvenile nonhomicide offender is sentenced to 50 years to life under the one strike law. (Contreras, supra, 4 Cal.5th at pp. 356, 359-360, 367-370.) In so holding, the court reasoned, in part, that such a sentence violates the Eighth Amendment because it is the functional equivalent of LWOP, as an offender sentenced under the one strike law is not entitled to a youth offender parole hearing during his 25th year of incarceration. (Contreras, at pp. 359, 367-370.)
Because defendant is not entitled to a youth offender parole hearing, a limited remand under Franklin is not required. In Franklin, the defendant shot and killed his victim at 16 years of age, and the trial court sentenced him to an aggregate prison term of 50 years to life. (Franklin, supra, 63 Cal.4th at p. 268.) Our Supreme Court held that the enactment of sections 3051 and 4801 mooted the defendant's Eighth Amendment challenge to his sentence, because they gave him the possibility of release after 25 years of imprisonment. (Franklin, at p. 268.) Still, the defendant had raised "colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth." (Id. at p. 269.) Because the defendant had been sentenced before the enactment of sections 3051 and 4801, "the trial court understandably saw no relevance to mitigation evidence at sentencing." (Franklin, at p. 269.) Given the changes in the legal landscape, our high court remanded the case for the trial court to determine whether the defendant had sufficient opportunity to make a record of mitigating evidence for later use at his youth offender parole hearing. (Id. at pp. 269, 284.)
Whereas Senate Bill No. 260 added section 3051 to the Penal Code and made youth offender parole hearings available for juveniles who committed their controlling offense before age 18 (Stats. 2013, ch. 312, § 4); the Legislature has since amended the age threshold to age 23 (Stats. 2015, ch. 471, § 1), and now to age 25 (Stats. 2017, ch. 684, § 1.5 [eff. Jan. 1, 2018]). In addition, the Legislature recently amended section 3051 to add subdivision (b)(4) as follows: "A person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole by the board [of Parole Hearings] during his or her 25th year of incarceration at a youth offender parole hearing, unless previously released or entitled to an earlier parole consideration hearing pursuant to other statutory provisions." (Stats. 2017, ch. 684, § 1.5, [eff. Jan. 1, 2018].)
While the Legislature recently extended youth offender parole hearings in the 25th year of incarceration to juveniles serving an LWOP sentence (§ 3051, subd. (b)(4)), one strike offenders, like defendant, remain ineligible for youth offender parole hearings (§ 3051, subd. (h)). (See Contreras, supra, 4 Cal.5th at p. 381.) In addition, defendant is ineligible for a youth offender parole hearing because he was sentenced to LWOP for a controlling offense he committed after he attained the age of 18. (§ 3051, subd. (h).)
DISPOSITION
The judgment as to counts one through four is conditionally reversed and the matter is remanded to the juvenile court with direction to hold a juvenile transfer hearing to determine defendant's suitability for treatment in juvenile or criminal court. If the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction because he was not suitable for treatment under juvenile court law, the trial court shall resentence defendant on counts one through four consistent with our Supreme Court's recent decision in Contreras. If the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall deem defendant's convictions on counts one through four to be juvenile adjudications and conduct a dispositional hearing on those counts.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.