People v. Romero CA5 ( 2021 )

Filed 9/14/21 P. v. Romero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079426
Plaintiff and Appellant,
(Super. Ct. No. VCF321084)
v.
JORGE ROMERO, OPINION
Defendant and Respondent.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Nathan G.
Leedy, Judge.
Tim Ward, District Attorney, Adam Clare, Deputy District Attorney for Plaintiff
and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Respondent.
-ooOoo-
The People of the State of California appeal from the May 30, 2019 ruling of the
superior court dismissing the complaint in case No. VCF321084 and substituting the
* Before Franson, Acting P.J., Meehan, J. and De Santos, J.
juvenile delinquency petition in case No. JJD068414. The People argue that the superior
court erred by finding that Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Senate Bill
1391) was a valid amendment to Proposition 57, which prohibited the further prosecution
of Jorge Romero in adult court for a murder committed when Romero was 14 years old
and an attempted murder committed when he was 15 years old. The juvenile court had
earlier concluded that Romero was unfit to be treated by the juvenile court and granted
the People’s motion to transfer.
Proposition 57, which voters approved in 2016, eliminated a district attorney's
ability to directly file charges in criminal court against minors 14 years old or older at the
time of the alleged crime, requiring juvenile court approval before prosecuting such cases
in criminal court. In 2018, the Legislature amended provisions of Proposition 57 by
enacting Senate Bill 1391, which prohibits the transfer of 14- and 15-year-old offenders
to criminal court in nearly all circumstances. The People argue Senate Bill 1391 is
unconstitutional because it is inconsistent with and does not further the intent of
Proposition 57. We disagree and affirm.
BACKGROUND1
Romero was born in November of 1998. In August of 2013, Romero, then 14
years old, shot and killed victim M.S. because the victim’s cousin was dancing in the
front yard and displaying gang signs, which Romero thought was disrespectful to the
neighborhood. Romero fled the scene with a bandana covering his face. He disposed of
the firearm in a nearby ditch.
Five months later, in January of 2014, Romero, then 15 years old, approached
victim R.V. and asked him if he participated in gang activity. R.V. replied that he did
not. Romero then stated the identity of his own gang and, with another subject, attacked
1 The facts are briefly summarized from the probation honor release report. No
preliminary hearing or trial has been held.
2.
R.V. During the assault, Romero pulled out a knife and stabbed R.V. several times
before fleeing the scene.
Romero was charged in a felony complaint on July 17, 2015, with attempted
murder (Pen. Code, § 664/187, subd. (a)), with allegations that the offense was gang
related (Pen. Code, § 186.22), that Romero personally inflicted great bodily injury (Pen.
Code, § 12022.7, subd. (a)), and that he personally used a deadly weapon in the
commission of the offense (Pen. Code, § 12022, subd. (b)(1)). Pursuant to existing law at
the time, charges were directly filed in criminal court under former Welfare and
Institutions Code section 707, subdivision (d).2
Romero was arraigned on the complaint on November 2, 2016.
On November 4, 2016, a first amended felony complaint was filed, charging the
additional offense of murder (Pen. Code, § 187, subd. (a)), also with gang allegations.
The charge was directly filed in adult court under former section 707, subdivision (d).
Romero was arraigned on the amended complaint the same day.
On November 8, 2016, a second amended felony complaint was filed, which
added an additional allegation to the murder charge of the gang murder special
circumstance (Pen. Code, § 190.2, subd. (a)(22)) and personal used of a firearm causing
great bodily injury (Pen. Code, § 12022.53, subd. (d)). An additional charge of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) was also added with gang
allegations.
On November 8, 2016, the electorate approved Proposition 57, which repealed the
direct file provisions in section 707, subdivision (d). As a result, minors aged 14 and 15
were eligible for transfer for offenses listed in section 707, subdivision (b).
On November 30, 2016, the People withdrew the second amended complaint.
2 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
3.
On April 26, 2017, following a series of continuances, the matter was sent to
juvenile court to conduct a transfer hearing pursuant to Proposition 57.
Romero appeared in juvenile court on May 8, 2017, and the People requested a
transfer. The matter was referred to the probation department for a report.
Following a series of continuances, the transfer hearing began on August 8 and,
after argument by the parties, concluded August 14, 2018. The juvenile court granted the
People’s motion to transfer Romero to adult court.
On August 15, 2018, the People filed a third amended felony complaint containing
the same charges in the previously withdrawn second amended felony complaint.
Romero was arraigned on the complaint the following day.
In September 2018, the Governor signed Senate Bill 1391 (Stats. 2018, ch. 1012,
§ 1), which became effective January 1, 2019, prohibiting the transfer of minors for
offenses committed when they were 14 or 15 years old.
On May 30, 2019, following a series of continuances and briefing related to the
constitutionality of Senate Bill 1391, the superior court denied the People’s motion to
declare Senate Bill 1391 unconstitutional, dismissed the third amended felony complaint
on its own motion, and reinstated the juvenile wardship petition.
The People timely appealed.
DISCUSSION
The People challenge the amendments created by Senate Bill 1391, contending
they are not consistent with and do not further Proposition 57’s intent to protect public
safety and to have judges and not prosecutors determine juvenile eligibility for criminal
court by eliminating prosecutors’ ability to seek transfer of violent 14- and 15-year-old
offenders to criminal court. Prior to filing of this appeal, this court addressed the
constitutionality of the amendments of Senate Bill to Proposition 57 in People v. Superior
Court (T.D.) (2019) 38 Cal.App.5th 360 (T.D.) and found them constitutional. The
People contend T.D. was wrongly decided and should be reconsidered. Review was
4.
granted in T.D. on November 26, 2019, pending consideration of this question before the
Supreme Court in O.G. v. Superior Court (2019) 40 Cal.App.5th 626 (rev. granted Sept.
30, 2019).
After briefing on this matter concluded, the Supreme Court issued its opinion in
O.G. v. Superior Court (2021) 11 Cal.5th 82, in which it concluded that Senate Bill 1391
was a constitutional amendment to Proposition 57. (O.G., supra, at p. 87). The review
granted and held in T.D., supra, 38 Cal.App.5th 360 was dismissed. We are bound by the
decision in O.G. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455
[decisions of the Supreme Court are binding upon and must be followed by all the state
courts of California]), and we will accordingly affirm the superior court’s reinstatement
of the juvenile wardship petition.3
DISPOSITION
The superior court’s reinstatement of the juvenile wardship petition is affirmed.
3 On February 10, 2020, Romero requested this court take judicial notice of portions
of the Voter Information Guide for the November 8, 2016, general election. On March
17, 2020, the People requested that this court take judicial notice of the complete portion
of the Guide concerning Proposition 57. We deny the requests as unnecessary to resolve
the issues raised in this appeal.
5.