In re Adrian H. CA4/1 ( 2021 )

Filed 4/16/21 In re Adrian H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ADRIAN H., a Person Coming
Under the Juvenile Court Law.
D077906
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J238031)
v.
ADRIAN H.,
Defendant and Appellant.
APPEAL from a dispositional order of the Superior Court of San Diego
County, Kathleen M. Lewis, Judge. Affirmed as modified.
Janice R. Mazur, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin
Urbanski and Genevieve Herbert, Deputy Attorneys General, for Plaintiff
and Respondent.
A petition was filed in the juvenile court alleging Adrian H. (the Minor)
committed lewd acts on a child. The Minor admitted one count of committing
lewd acts on a child (Pen. Code, § 288, subd. (a)).
At the dispositional hearing, the court committed the Minor to the
Division of Juvenile Justice (DJJ) for a maximum term of up to eight years.
After the disposition in this case, the Legislature modified Welfare and
Institutions Code1 section 731. Under the statute, as amended, the court
could no longer impose a term in DJJ longer than the middle term of
imprisonment that could be imposed upon an adult convicted of the same
offense. (§ 731, subd. (c).)
The Minor appeals contending the amendment to section 731 must be
retroactively available to cases not final on appeal. The Minor asks that we
either vacate the disposition or modify it to conform with the new limitations.
The Attorney General has filed a brief conceding the amendment should
apply to this case. (In re Estrada (1965) 63 Cal.2d 740 (Estrada); People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308 (Lara).)
We agree with the parties that Estrada compels the conclusion that the
amendment to section 731, subdivision (c) must be retroactively applied to
this case.
We will order the dispositional order modified to reflect six years (the
middle term for violating Pen. Code, § 288, subd. (a)). We will affirm the
disposition as modified.2
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise specified.
2 Since there are no factual issues presented by this appeal, we will omit
the traditional statement of facts.
2
DISCUSSION
Where legislation is passed that ameliorates the punishment for an
offense, and the Legislature has not specifically rejected retroactive
application, the benefits of the change must be made available to those cases
that were not final at the time of the enactment of the new legislation. (Lara,
supra, 4 Cal.5th at pp. 307-308.)
It is not disputed that the Minor’s case was not final when the
amendment was enacted. Thus, the parties have correctly agreed that the
Minor must receive the benefit of the statutory change.
DISPOSITION
The dispositional order is modified to reflect a maximum commitment
to DJJ not to exceed six years. The court shall modify the abstract of
judgment accordingly. In all other respects, the dispositional order is
affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
3