People
v.
Canon

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOURNov 6, 2018
A133342 (Cal. Ct. App. Nov. 6, 2018)

A133342

11-06-2018

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CANON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 209815)

Christopher Canon appeals from a judgment upon a jury verdict finding him guilty of second degree murder (Pen. Code, § 187). The jury also found true an allegation that defendant personally discharged a firearm, causing great bodily injury and death (§ 12022.53, subd. (d)). In a separate court trial, the court found defendant guilty of assault on a peace officer with force likely to cause great bodily injury (§ 245, subd. (c)) and assault with force likely to cause great bodily injury (§ 245, subd. (a)). In his original brief, defendant contended that the trial court erred in instructing the jury on manslaughter and that the trial court's imposition of a 49-years-to-life term constitutes a de facto term of life imprisonment without parole (LWOP) in violation of the Eighth Amendment.

All undesignated statutory references are to the Penal Code.

In this court's original opinion, filed September 30, 2014, a different panel of this court affirmed defendant's convictions but concluded that defendant's sentence was in effect the functional equivalent of an LWOP term (People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero)), and thus deprived him of a meaningful opportunity for parole in violation of the Eighth Amendment to the United States Constitution as interpreted in Graham v. Florida (2010) 560 U.S. 48, 74 (Graham) and Miller v. Alabama (2012) 567 U.S. 460, 465 (Miller). This court therefore remanded the matter for resentencing.

Subsequently, our Supreme Court granted defendant's petition for review and, on August 17, 2016, transferred the matter to this court "with directions to vacate [the September 30, 2014] decision and reconsider the cause in light of People v. Franklin (2016) 63 Cal.4th 261, 283-284 [(Franklin)]. (Cal. Rules of Court, rule 8.528(d).)" (People v. Canon (Aug. 17, 2016, No. S222473 [2016 Cal. LEXIS 6814, at *1].)

On April 21, 2017, a different panel of this court issued an opinion concluding defendant's challenge to the length of his sentence was moot because he now had a statutory right to become eligible for parole after serving no more than 25 years of his sentence. (Franklin, supra, 63 Cal.4th 261.) We concluded defendant was entitled to a limited remand for the trial court to determine whether he was afforded an adequate opportunity to make a record of information that would be relevant at a subsequent parole hearing. We also considered the effect of the passage of an initiative measure, "The Public Safety and Rehabilitation Act of 2016," commonly known as Proposition 57, which affected the procedures and standards for charging juvenile offenders in adult court. We concluded Proposition 57 did not apply retroactively to defendant's case.

Our Supreme Court again granted defendant's petition for review, and on February 28, 2018, transferred the matter to us with directions to vacate our decision and reconsider the case in light of People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).) (People v. Canon (Feb. 28, 2018, S242185 [2018 Cal. LEXIS 1119, at We initially filed our opinion on September 28, 2018. In light of subsequently-enacted legislation affecting the trial of minors in adult court, we granted defendant's petition for rehearing.

In this opinion we repeat almost verbatim the portions of the April 21, 2017 decision setting forth the facts of this case, rejecting defendant's contention that his conviction should be reversed because the trial court committed instructional error, and concluding defendant's challenge to the length of his sentence was moot. We then conclude defendant is retroactively entitled to a transfer hearing on whether the matter should have proceeded in juvenile court. If the juvenile court determines defendant is amenable to the court's jurisdiction, his convictions shall be deemed juvenile adjudications and the juvenile court shall impose an appropriate disposition. As further explained below, if the juvenile court concludes defendant should be transferred to a court of criminal jurisdiction, any associated conviction shall be reinstated. The trial court shall then (1) determine whether defendant has had an adequate opportunity to make a record of mitigating evidence that would be relevant at a future youth offender parole hearing and (2) consider whether to exercise its new discretion to strike the section 12022.53 enhancement.

I. FACTS

A. The Murder

On November 11, 2007, Michael Price, Jr., age 18, and his cousins, Kiengi White and Karesha Goodman drove from Oakland to San Francisco to meet with three friends. They met their friends in downtown San Francisco and the group went to the Metreon where they played some video games in the arcade on the second floor. They arrived at the Metreon at approximately 6:00 p.m. About an hour later, they decided to leave and took the escalator to the exit. Price and White followed the others down the escalator. When White and Goodman stepped off the escalator on the first floor, they heard Price's voice. White turned around and saw defendant and another boy approach Price. White walked toward them. White heard defendant tell Price, "I'll pop you" two or three times. White told defendant, "Go on with all that," meaning "just leave it alone." Defendant had his right hand in the crotch area of his pants.

Price and White walked away toward the exit of the Metreon. Price had to use the bathroom so they stopped near the Sony PlayStation area to find one. Defendant walked by and asked Price, "You want to take it outside?" Price responded, "We can throw them if you want to throw them," meaning "we can fist fight." Defendant again said, "I'll pop you" about three times. Defendant then fired a gun, shooting Price. White heard four gunshots. Price fell to the ground; White saw defendant and his friend run out of the entrance of the Metreon. Goodman also heard Price arguing with someone. She heard Price say, "you want to . . . you want to just fight," and heard another voice say, "I'll pop you." She walked back towards Price and saw that he was arguing with defendant. Price took off his jacket, and defendant pulled his gun and started shooting him. Goodman heard three or four shots.

White went to Price's aid and tried to call 911. He was unable to get through to 911, but a police officer responded to the scene within about a minute. Price died as a result of multiple gunshot wounds.

Several other people at the Metreon observed or heard the altercation and shooting. A security videotape from the Metreon depicting the scene of the shooting and showing defendant and Price was played for the jury.

Sergeant Henry Yee was directing traffic at the corner of Fourth and Mission Streets on the evening of the shooting. At approximately 7:00 p.m., he heard several gunshots coming from the Metreon. He immediately ran to the Metreon where he found Price on the ground. He also saw several shell casings near Price's body. Yee summoned an ambulance.

In the meantime, Captain Daniel McDonagh was also working near the Metreon when he saw defendant running on Mission Street with a gun in his left hand. McDonagh pursued defendant, who raised his gun and pointed it at McDonagh's body. Defendant turned onto Jessie Alley and ran into the Bloomingdale's store. McDonagh continued to chase defendant, and radioed his location. Once defendant exited from the store onto Mission Street, other officers were able to apprehend him. The police located a firearm at the northwest corner of Fourth and Mission Streets. McDonagh testified that the gun was similar to the weapon he saw in defendant's possession. A criminalist testified that the gun found by the police fired the four cartridge casings that were located at the scene.

The police also found a pocket knife and some clothing at the scene. White identified the knife as belonging to Price. He testified, however, that he did not see Price with the knife on the day of the shooting.

Inspector John Cleary interviewed defendant at about 11:50 p.m. on the evening of his arrest. A videotape of the interview was played for the jury. Although defendant initially explained that the shooting had happened behind him as he was walking in the Metreon, he subsequently admitted that he got into an argument with Price because Price was walking too slow on the escalator. Price said, "Man, I'll whip your ass." Defendant shot Price two or three times.

Defendant was then 15 years old.

Dr. Amanda Gregory testified on behalf of the defense as an expert in clinical neuropsychology. She opined that the adolescent brain is not fully developed, particularly in the areas of higher level cognitive functions such as judgment, reasoning, impulse control, and considering the consequences of behavior. Dr. Gregory examined defendant when he was almost 18 years of age and found that he had no evident brain deficits and his cognitive abilities were within the average range.

B. The Assaults

1. Assault on a peace officer

At about 10:50 a.m. on April 6, 2008, John Zerbe was working as a counselor and peace officer at the Juvenile Justice Center in San Francisco (JJC). Defendant was in Unit 7 and was using the telephone during his morning recreational time. Defendant ended his call after about seven to eight minutes and approached Officer Jesse Aguilar at the counselor's desk and told him that he had been disconnected and wanted to call again to complete the conversation. Aguilar refused to allow defendant to make another call because defendant wanted to call a number that was not on the approved list. Defendant became upset and agitated.

Zerbe approached defendant and asked him to sit down at one of the dining tables. Defendant sat down and told Zerbe that he was upset about not being able to make his phone call. Zerbe told him that he would talk with Aguilar. While Zerbe was talking with Aguilar, defendant got up from the table and moved closer to the counselor's desk. Zerbe told defendant to sit down. He was hoping to diffuse the situation, but defendant continued to walk around. Zerbe then directed defendant and the rest of the detainees to return to their rooms. When Zerbe looked toward the group of detainees that was beginning to move toward their rooms, defendant lunged toward him and punched him in the left side of his face. The punch fractured Zerbe's upper molar and caused a jaw contusion. Zerbe was unable to eat solid foods for a couple of days and his jaw was sore for one to two weeks. He was on medical leave for 18 days as a result of the injury.

2. Assault with force likely to cause great bodily injury

On January 5, 2009, Reginald Cooks was working as a counselor at the JJC. He was in the gym with about 12 detainees including defendant. After the detainees played flag footfall, one of the detainees punched another detainee in the face. The victim fell to the ground and appeared unconscious. Cooks pulled the perpetrator away but as he did so, defendant began punching the victim in the face. Defendant punched the victim three to four times. The victim was bleeding from the mouth and had a laceration on his upper lip. Medical personnel responded and the victim regained consciousness.

II. DISCUSSION

A. Manslaughter Instruction

The trial court instructed the jury on first and second degree murder as well as the lesser offense of voluntary manslaughter. The court instructed on voluntary manslaughter in accordance with CALCRIM No. 570. During deliberations, the jury asked the court for a definition of the term, "average disposition." After conferring with counsel, the court responded, "In response to your question re: CALCRIM 570 'a person of average disposition . . .' please refer to CALCRIM 200."

In pertinent part, CALCRIM No. 570 provides as follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured [his] reasoning or judgment; AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] . . . [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up [his] own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (Italics added.) Our Supreme Court recently approved CALCRIM No. 570, noting that "[t]elling the jury to consider how a person of average disposition 'would react' properly draws the jury's attention to the objective nature of the standard and the effect the provocation would have on such a person's state of mind." (People v. Beltran (2013) 56 Cal.4th 935, 954.)

In relevant part, CALCRIM No. 200 provides, "[s]ome words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions . . . . Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."

Defendant contends that the trial court erred in failing to instruct the jury that it could consider youth in its analysis of whether a person of average disposition would have been sufficiently provoked as a result of a sudden quarrel or heat of passion. We need not decide the substantive merits of this issue because we conclude that the evidence fails to show that defendant was sufficiently provoked regardless of his age. Accordingly, any instructional error was harmless.

For the same reason, we need not decide whether defendant waived the issue or invited the error when he requested that the jury be instructed pursuant to CALCRIM No. 200.

"Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 201.) " 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.' [Citations.]" (People v. Moye (2009) 47 Cal.4th 537, 549-550.) "To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection." (People v. Beltran, supra, 56 Cal.4th at p. 949.) Whether the provocation was adequate is determined by an objective test. (Id. at p. 950; People v. Lee (1999) 20 Cal.4th 47, 60.) "The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation and heat of passion must be affirmatively demonstrated." (Lee, supra, 20 Cal.4th at p. 60.)

Here, the evidence fails to demonstrate that defendant was sufficiently provoked to react without reflection based on his altercation with Price. As the Attorney General points out, defendant's annoyance that Price was moving too slowly on the escalator would not have caused a reasonable person—whether an adult or a teenager—to be so inflamed as to lose all reason and judgment. While an argument between defendant and Price ensued with name-calling, and mutual invitations to fight outside, Price's conduct was insufficiently provocative to incite an ordinary person of average disposition to act rashly or without due deliberation and reflection. (See People v. Najera (2006) 138 Cal.App.4th 212, 226 & fn. 2 [victim's name-calling and pushing of the defendant to the ground insufficiently provocative under an objective standard to cause an ordinary person of average disposition to act rashly or without due deliberation]; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303, 1313 [defendant who provokes a fight by taunts and threats of violence is not entitled to claim provocation when the victim responds by engaging in a fight].) In this case, Price's taunts to "throw them" or "just fight" were so slight that a reasonable person of any age would not have acted rashly or without due deliberation. There was simply insufficient evidence that Price provoked defendant to react in a heat of passion. Hence, even if the trial court erred in its instructions to the jury on the issue, the error was harmless. (See People v. Beltran, supra, 56 Cal.4th at pp. 955-956 [Watson standard of harmless error applies to issues concerning misdirection of the jury]; People v. Breverman (1998) 19 Cal.4th 142, 177-178 [same].) It is not reasonably probable that defendant would have obtained a more favorable verdict absent any instructional error. (Watson, supra, 46 Cal.2d at p. 836.)

People v. Watson (1956) 46 Cal.2d 818, 836.

B. Sentencing

The trial court sentenced defendant to the mandatory indeterminate term of 15 years to life on the second degree murder count plus an additional mandatory term of 25 years to life for the gun enhancement, for a total indeterminate term of 40 years to life. In addition, the court imposed a determinate term of five years on the assault upon a peace officer offense plus an additional term of three years for the great bodily injury enhancement, and a consecutive one-year term on the second assault offense, for a total term of 49 years to life in state prison. Defendant contends that the sentence imposed violates the Eighth Amendment because the trial court failed to consider the mitigating circumstances of his youth and background as required by Miller, supra, 567 U.S. at pp. 477-480.

In Graham, supra, 560 U.S. at p. 74, the United States Supreme Court held that the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole. The Court mandated that juvenile offenders must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Id. at p. 75.) The Court noted that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. [Citations.] Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults. [Citation.] [ ]" (Id. at p. 68.) The Court therefore concluded that an LWOP sentence was "not appropriate in light of a juvenile nonhomicide offender's capacity for change and limited moral culpability." (Id. at p. 74.)

In Miller, supra, 567 U.S. at p. 465, the United States Supreme Court applied the reasoning of Graham to homicide cases, holding that mandatory LWOP sentences for juveniles violate the Eighth Amendment's prohibition on cruel and unusual punishment. Although the court did not foreclose a court's ability to impose an LWOP term on " 'the rare juvenile offender whose crime reflects irreparable corruption,' " the Court required that courts "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." (Id. at pp. 479-480, citations and footnote omitted.) [ ]

In Caballero, supra, 55 Cal.4th at p. 265, our Supreme Court addressed the applicability of Graham and Miller to a juvenile convicted of nonhomicide offenses and sentenced to a 110 years-to-life term. The Caballero court held 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." (Id. at p. 268.) "[It is] the functional equivalent of a life without parole sentence." [ ] (Id. at p. 268.) The Court reasoned that "[a]lthough proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future." (Ibid.) The Court urged the Legislature to address the issue by enacting legislation to establish a parole procedure to permit juvenile defendants serving a de facto LWOP term for nonhomicide crimes to have an opportunity to obtain release upon a showing of rehabilitation and maturity. (Id. at p. 269, fn. 5.) The Caballero court declined to consider the question of whether de facto life sentences for juveniles in homicide cases violate the Eighth Amendment. (Id. at p. 268, fn. 4.)

The Legislature responded to our Supreme Court's suggestion in Caballero to enact legislation [by] establishing a parole eligibility mechanism providing juvenile offenders who are committed to state prison with an opportunity for release. (See § 3051, added by Stats. 2013, ch. 312, § 4 (Sen. Bill No. 260 (2013-2014 Reg. Sess.)) (Senate Bill No. 260).) It "recognize[d] that youthfulness both lessens a juvenile's moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society. [ ] . . . . It is the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established." (Stats. 2013, ch. 312, § 1, pp. 2-3.)

Section 3051 hence provides that "any prisoner who was under 23 years of age at the time of his or her controlling offense" shall be provided a "[a] youth offender parole hearing . . . for the purpose of reviewing the [prisoner's] parole suitability." (§ 3051, subd. (a)(1); and see § 3046, subd. (c).) "A person who was convicted of a controlling offense that was committed before the person had attained 23 years of age and for which the sentence is a life term of 25 years to life shall be eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing . . . ." (§ 3051, subd. (b)(3).) At that hearing, the Board of Parole Hearings (the Board) "shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)

In our original opinion, we concluded defendant's sentence was the equivalent of LWOP and that defendant was entitled to a new sentencing hearing. Our Supreme Court's recent decision in Franklin, however, compels the conclusion that defendant's constitutional challenge to his sentence is moot.

The defendant in Franklin was 16 years old when he shot and killed another teenager. (Franklin, supra, 63 Cal.4th at p. 268.) He was convicted of first degree murder with a personal firearm-discharge enhancement, and the trial court imposed the statutorily mandated sentence of two consecutive 25-year-to-life sentences. (Ibid.) The defendant challenged his sentence under Miller, supra, 567 U.S. 460, on the ground it was the functional equivalent of an LWOP sentence for a juvenile offender and therefore violated the Eighth Amendment to the federal constitution. (Franklin, 63 Cal.4th at p. 268.)

The high court held in Franklin that the defendant's constitutional challenge was rendered moot by the passage of Senate Bill No. 260, which became effective January 1, 2014. (Franklin, supra, 63 Cal.4th at pp. 276-280.) The court explained that "[a]t the heart of Senate Bill No. 260 was the addition of section 3051, which requires the Board to conduct a 'youth offender parole hearing' during the 15th, 20th, or 25th year of a juvenile offender's incarceration. (§ 3051, subd. (b).) [ ]" (Franklin, 63 Cal.4th at p. 277.) This statutory scheme "reflects the Legislature's judgment that 25 years is the maximum amount of time that a juvenile offender may serve before becoming eligible for parole. . . . The statute establishes what is, in the Legislature's view, the appropriate time to determine whether a juvenile offender has 'rehabilitated and gained maturity' (Stats. 2013, ch. 312, § 1) so that he or she may have 'a meaningful opportunity to obtain release' (§ 3051, subd. (e))." (Id. at p. 278.)

The Franklin court concluded that "section 3051 has changed the manner in which the juvenile offender's original sentence operates by capping the number of years that he or she may be imprisoned before becoming eligible for release on parole. The Legislature has effected this change by operation of law, with no additional resentencing procedure required. [Citation.]" (Franklin, supra, 63 Cal.4th at pp. 278-279.) The effect of Senate Bill No. 260 was that the Franklin defendant was serving a life sentence with a meaningful opportunity for parole during his 25th year of incarceration, when he would be 41 years old, a sentence that was not the functional equivalent of LWOP. (Id. at pp. 279-280.) Thus, our high court ruled, "[t]he Legislature's enactment of Senate Bill No. 260 has rendered moot [defendant's] challenge to his original sentence under Miller." (Id. at p. 280.)

Finally, our Supreme Court concluded that, although the Franklin defendant's Miller claim was moot, it was not clear whether he "had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.) Thus, although the defendant would not be resentenced, the court remanded the matter to the trial court to determine whether he "was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Ibid.) The court explained: "If the trial court determines that [defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law' [citation]." (Ibid.)

[F]ollowing Franklin, we conclude that defendant's claim that the trial court failed to consider the Miller factors has been rendered moot by the enactment of Senate Bill No. 260, under which defendant now has a statutory right to become eligible for release on parole after serving no more than 25 years of his sentence. (§ 3051.)

We also conclude that, as in Franklin, defendant here is entitled to a limited remand. Neither Miller nor Caballero had been decided at the time [ ] of defendant's sentencing hearing, and we cannot determine whether defendant had sufficient opportunity to place on the record the sort of information that will be relevant at a youth offender parole hearing under sections 3051 and 4801. (Franklin, supra, 63 Cal.4th at p. 284.)

C. Proposition 57

Defendant's case was originally brought in the juvenile court. The district attorney moved pursuant to Welfare and Institutions Code section 707, subdivision (c) for a determination that defendant was not fit to be dealt with under juvenile court law.

Under the version of Welfare and Institutions Code section 707 in effect at the time, if a minor aged 14 years or older was alleged to have committed certain crimes, including murder or a crime in which the minor personally used a firearm, the district attorney could either file a juvenile court petition or charge the minor directly in adult criminal court. (Former Welf. & Inst. Code, § 707, subds. (b)(1), (c), (d).) If a petition was filed in juvenile court, the district attorney could move to transfer the matter to adult court. (Former Welf. & Inst. Code, § 707, subd. (c).) For purposes of the motion, the minor was "presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, . . . that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court," based on five criteria: "(1)(A) The degree of criminal sophistication exhibited by the minor. [¶] (2)(A) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction. [¶] (3)(A) The minor's previous delinquent history. [¶] (4)(A) Success of previous attempts by the juvenile court to rehabilitate the minor. [¶] (5)(A) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor." (Ibid., italics added.) In order to make a finding of fitness, the court had to find "the minor [was] fit and proper under each and every one of [the above] criteria." (Ibid., italics added)

Before defendant's fitness hearing, the probation department prepared a fitness report evaluating these factors and recommending defendant be referred to general criminal court. Accepting the report's findings and recommendations without taking further evidence, the juvenile court found defendant not fit for treatment in the juvenile court under each of the five statutory criteria and referred him to the district attorney for prosecution in adult criminal court.

Welfare and Institutions Code section 707 was amended effective January 1, 2016, to eliminate the district attorney's ability to file charges directly in adult court. (Lara, supra, 4 Cal.5th at pp. 305-306; Welf. & Inst. Code, § 707.) The amendments also eliminated the presumption that a minor was not fit for the juvenile court; eliminated the requirement that the juvenile court find the minor fit under all five of the statutory criteria in order to retain the matter in juvenile court; and provided additional guidance for the evaluation of each of the five criteria that the juvenile court must consider in deciding whether to "transfer" the minor to adult criminal court. (Welf. & Inst. Code, § 707, subd. (a)(2)(A)-(E).) That guidance allows the court to "give weight to any relevant factor," and lists for each of the five criteria factors it may consider. Among the factors are: "the minor's age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense, the minor's impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the minor's actions, and the effect of the minor's family and community environment and childhood trauma on the minor's criminal sophistication" (id., subd. (a)(2)(A)(ii)); "the minor's potential to grow and mature" (id., subd. (a)(2)(B)(ii)); and "the person's mental and emotional development" (id., subd. (a)(2)(E)(ii)).

In Lara, our high court held that this part of Proposition 57, requiring a transfer hearing in juvenile court before a case against a 14- or 15-year old defendant may be filed in adult criminal court, applies retroactively to defendants whose judgments are not yet final. (Lara, supra, 4 Cal.5th at pp. 303-304.) The court reasoned that "[t]he possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment." (Id. at p 303, citing In re Estrada (1965) 63 Cal.2d 740.) Although the defendant in Lara was charged directly in adult court, the court's reasoning applies equally to Canon, who received a fitness hearing under standards different than those currently in effect.

The People acknowledge that the transfer hearing provisions of Proposition 57 apply retroactively, but argue a remand is unnecessary because there is no reasonable probability of a different result. (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 [remand for resentencing unnecessary "if the record reflects that the sentencing court clearly indicated that it would not have exercised discretion to sentence [differently] even if it had been aware that it had such discretion"]; People v. Villa (2009) 178 Cal.App.4th 443, 453 [failure to evaluate suitability for juvenile disposition under § 1170.17 before sentencing as an adult subject to harmless error analysis].) In support, the People point to the evidence that defendant was not amenable to juvenile court treatment under each of the five statutory criteria.

This argument ignores important differences between a Proposition 57 transfer hearing and the analogous fitness hearing under prior law. First is Proposition 57's shift in the burden of proof at a fitness hearing. At defendant's hearing, the juvenile court was bound by a rebuttable presumption that defendant was not fit for the juvenile court system, whereas under current law there is no such presumption. (Welf. & Inst. Code., § 707, subd. (a).) Second, the court at Canon's fitness hearing could not retain jurisdiction unless it found him fit for juvenile court under all five criteria. (Former Welf. & Inst. Code, § 707, subd. (c).) In a transfer hearing under current law, the court must consider all five factors, but has broad discretion in how to weigh them. (Welf. & Inst. Code., § 707, subd. (A)(2).)

Third, at Canon's fitness hearing, the court did not have before it the statutory factors associated now with the five criteria, many of which are favorable to a defendant who was immature, impulsive, subject to poor familial or community influences, or had suffered childhood trauma. (Welf. & Inst. Code, § 707, subd. (a)(2).) A social history prepared before sentencing indicated defendant's living situation had been unstable; that he reported extensive physical abuse and cruelty from family members during his childhood; that he had been exposed to violence and trauma in the community, including losing friends to murder, seeing people get shot, and being robbed at gunpoint; and that he had poor impulse control. The amendments made by Proposition 57 would invite counsel to introduce evidence of this background because it is pertinent to the factors set forth in Proposition 57, and the juvenile court would have broad discretion to consider it. Given these differences, the record does not clearly indicate that, under current standards, the court would have referred defendant to adult criminal court.

We conclude, therefore, that defendant is entitled to a fitness hearing in the juvenile court. We shall reverse the judgment and order the juvenile court to conduct a juvenile transfer hearing. "If, after conducting the juvenile transfer hearing, the court determines that it would have transferred [defendant] 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 [defendant's] convictions are to be reinstated. [Citation.]" (People v. Vela (2018) 21 Cal.App.5th 1099, 1113; see Lara, supra, 4 Cal.5th at p. 313; see also People v. Cervantes (2017) 9 Cal.App.5th 569, 613-614, reversed on other grounds in Lara, at pp. 313-314.) If the court finds it would not have transferred defendant to criminal court, "it shall treat [his] convictions as juvenile adjudications and impose an appropriate 'disposition' within its discretion." (Vela, supra, 21 Cal.App.5th at p. 1113.)

In a petition for rehearing, defendant drew our attention to recently-passed legislation, Senate Bill 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 this amendment should be applied retroactively to him. The Attorney General concedes the amendment's retroactive effect, but argues that the claim is not ripe because the bill has not yet gone into effect and that, in any case, Canon is still subject to a transfer hearing as to one of his offenses because he committed the January 5, 2009 assault after he turned 16 years old. By the time this matter has returned to the juvenile court and a transfer hearing, if any, has been scheduled, the amendments may well be operative. If the prosecution moves for a transfer hearing, the juvenile court may take into account the state of the law at the time of the hearing.

D. Firearm Enhancement

The jury found true an allegation that defendant personally and intentionally discharged a firearm, causing great bodily injury and death. (§ 12022.53, subd. (d).) The prison sentence included a mandatory term of 25 years to life for the enhancement.

After defendant's sentencing, the Legislature enacted Senate Bill 620. (Sen. Bill. No. 620 (2017-2018 Reg. Sess.) [effective January 1, 2018].) The bill amended section 12022.53 to give trial courts discretion to strike or dismiss enhancements otherwise required to be imposed by that statute. (§ 12022.53, subd. (h), as amended by Stats. 2017, § 2.) Defendant contends this provision should be applied retroactively and that he is entitled to ask the trial court to exercise its discretion to strike the firearm use enhancement. The Attorney General properly concedes this point. The appellate courts have consistently concluded that the amendments to section 12022.53 apply retroactively to cases not yet final on appeal, and the sentencing record does not show how the court would have exercised its new discretion to strike the enhancement. (See, e.g., Vela, supra, 21 Cal.App.5th at pp. 1113-1114; People v. Arredondo (2018) 21 Cal.App.5th 493, 506-507; see also People v. McDaniels (2018) 22 Cal.App.5th 420, 424-428.)

Accordingly, if the juvenile court determines it would transfer the matter to the criminal court, in reinstating Canon's convictions the trial court shall consider whether to exercise its discretion to strike the firearm enhancement.

III. DISPOSITION

This court's April 21, 2017 decision is vacated. The judgment is conditionally reversed. The cause is remanded to the juvenile court with directions to conduct a transfer hearing, as discussed in this opinion, if the prosecution moves for such a hearing. If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction under the law prevailing at the time of the transfer hearing, any associated conviction shall be reinstated. In conducting the transfer hearing, the court shall consider the effect of the amendments to Welfare and Institutions Code section 707 made by Senate Bill 1391. The trial court is then directed to determine whether defendant "was afforded an adequate opportunity to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801." (Franklin, supra, 63 Cal.4th at pp. 286-287.) The court shall also resentence defendant if some but not all offenses are transferred, and shall consider whether to exercise its discretion to strike the section 12022.53 enhancement (if transferred).

If no motion for a transfer hearing is filed, or to the extent a hearing is held and the juvenile court determines it would not transfer defendant to a court of criminal jurisdiction, then defendant's criminal convictions and enhancement will be deemed to be juvenile adjudications. The court is then to conduct a dispositional hearing and impose an appropriate disposition.

/s/_________


Tucher, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.

Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------