People v. Propker CA2/8 ( 2023 )

Filed 6/8/23 P. v. Propker CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B321191
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA047962-01)
v.
JONATHAN PROPKER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Daviann L. Mitchell, Judge. Reversed and
Remanded.
Christopher C. Hawthorne, Marisa Harris and Jessica
Sanborn, Juvenile Innocence & Fair Sentencing Clinic, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, David E. Madeo and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________________
INTRODUCTION
In 2011, a jury convicted 15-year-old Jonathan Propker of
murdering a rival gang member. The trial court then sentenced
Propker to life imprisonment without the possibility of parole in
violation of Penal Code section 190.5. Propker appealed. In
2013, we agreed with Propker that his life without parole
sentence was illegal and modified it to 25 years to life. After the
remittitur was issued, the trial court did not modify Propker’s
sentence for nearly a decade. Prior to the superior court’s
resentencing hearing in 2022, Propker requested that the
superior court transfer his case to juvenile court because he was
entitled to retroactive application of Proposition 57, a new law
that eliminates automatic transfer of juveniles to adult court.
The superior court refused and instead resentenced Propker to
25 years to life per our decision in 2013.
We hold that because Propker’s sentence is nonfinal, he is
entitled to retroactive application of Proposition 57. Propker’s
sentence is nonfinal for two independent reasons. First, when he
made his request to transfer his case to juvenile court, he was
still serving an unauthorized life without parole sentence that
could be remedied on direct review. Second, even after the
superior court resentenced him, his sentence remained nonfinal
and subject to our review. Accordingly, we reverse the superior
court’s order denying Propker’s request to transfer his case to
juvenile court.
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BACKGROUND
A. Propker’s Convictions, Sentence, and Initial Appeal
On November 1, 2011, a jury convicted Propker of
murdering rival gang member E.H. during a botched drug sale.1
Propker was 15 years old at the time of the incident. The jurors
further found that Propker committed the murder during an
attempted robbery and convicted him of two counts of attempted
robbery of juveniles E.H. and D.H. As to all crimes, jurors found
the gang enhancement to be true (Pen. Code,2 § 186.22, subd.
(b)(1)(C)) and that Propker personally discharged a firearm
causing death to E.H. within the meaning of section 12022.53,
subdivision (d), and also found subdivisions (b) and (c) of that
statute applicable. The court imposed and stayed the section
12022.53, subdivisions (b) and (c) enhancements. The court then
sentenced Propker to life imprisonment without the possibility of
parole for the murder. For each attempted robbery, the court
sentenced Propker to a total term of 38 years to life, which
included the high term of 3 years on the substantive offense,
10 years for the gang enhancement, and 25 years to life for the
personal use and discharge of a firearm causing death. The court
ordered that Propker serve one attempted robbery sentence
concurrently and the other sentence consecutively.
In a previous appeal, Propker argued that his life without
parole sentence was illegal under section 190.5, which provides
that no child under the age of 16 can be sentenced to life without
1 The specific factual details of the crimes are set forth in
People v. Propker (May 14, 2013, B240210) [nonpub. opn.]).
2 All further statutory references are to the Penal Code
unless otherwise indicated.
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parole for murder, regardless of whether they were tried in adult
or juvenile court. Propker also contended that he could not be
sentenced for both attempted robbery and felony murder for the
same victim (E.H.) under section 654. Lastly, he argued that the
firearm enhancements were erroneous.
We issued our opinion on May 14, 2013. We held that
Propker’s life without parole sentence was illegal and that his
sentence for attempted robbery of E.H. must be stayed. In our
disposition, we ordered, “The judgment is modified to (1) stay the
sentence on the attempted robbery of E.H. and (2) reduce the
sentence of life without the possibility of parole to 25 years to life.
As modified, the judgment is affirmed.”
On June 14, 2013, Propker filed a petition for review with
the California Supreme Court. The Supreme Court denied the
petition on July 17, 2013. The remittitur was issued on July 24,
2013.
B. Propker Continued to Serve an Illegal Life Without
Parole Sentence
For close to a decade, the trial court did not modify
Propker’s sentence after the remittitur was issued in 2013.
Thereafter, on March 17, 2022, Propker filed a pro se request for
a People v. Franklin (2016) 63 Cal.4th 261 (Franklin) hearing.
This is an evidentiary proceeding that allows persons convicted of
committing a crime when they were under the age of 26 to
introduce mitigation evidence related to their youth. At that
point, the superior court noticed that Propker was serving an
illegal life without parole sentence for nearly a decade. The judge
that noted the error was not the same judge that received the
remittitur in 2013. The superior court stated that there was “no
evidence that this order was ever carried out and there does not
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appear to be any evidence of any resentencing of defendant.
This Court, will therefore, resentence the defendant at the next
hearing consistent with the remittitur.” On March 28, 2022, the
trial court issued an order “granting Franklin hearing and
resentencing per remittitur.”
On May 18, 2022, Propker requested that the superior
court transfer his case to juvenile court because he was entitled
to retroactive application of Proposition 57, a new law that
eliminates automatic transfer of juveniles to adult court. Prior to
the hearing, the superior court asked for briefing on two issues to
determine whether Propker’s new sentence was a final judgment:
(1) whether the trial court proceeding was a resentencing or
modification of a sentence; and (2) whether the superior court
had discretion in resentencing Propker.
Propker set forth in his briefing that his sentence was not
final because he was still serving an illegal life without parole
sentence and the trial court never corrected the sentence even
though the Court of Appeal modified the judgment. Propker
asserted that whether the pending proceeding was a resentencing
or modification of a sentence had no impact given that Propker
was still serving an illegal, and therefore, nonfinal sentence.
The People opposed the motion, arguing that because we
modified the sentence to 25 years to life in 2013, the trial court
did not have sentencing discretion on remand and therefore the
judgment became final as modified.
At the June 14, 2022 hearing, the superior court denied
Propker’s request to transfer his case to juvenile court. The
superior court stated that it was only using “resentencing” as a
“term of art” and that our disposition in Propker’s prior appeal
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only stated that the judgment is modified. As such, the superior
court’s “only job is to carry out that modification.”
The superior court then sentenced Propker to “25 to life per
the appellate court order.” As the People point out, the superior
court incorrectly imposed the section 654 stay on count 4 instead
of count 5. The superior court then stated that it “simply
modified the judgment as ordered by the appellate court.”
Propker’s amended abstract of judgment also incorrectly reflects
807 total credits for time served. This number is the same in the
abstract of judgment from his initial sentencing hearing on
March 22, 2012.
Propker timely appealed the superior court’s order denying
his request to transfer his case to juvenile court.
DISCUSSION
A. Proposition 57 and Senate Bill No. 1391 Apply
Retroactively to All Nonfinal Judgments
In 2016, California voters approved Proposition 57, which
“requires prosecutors to commence all cases involving a minor in
juvenile court.” (O.G. v. Superior Court (2021) 11 Cal.5th 82, 87
(O.G.).) As such, Proposition 57 “prohibits prosecutors from
charging juveniles with crimes directly in adult court.” (People v.
Superior Court of Riverside County (2018) 4 Cal.5th 299, 303
(Lara).) Although the measure required charges against minors
to be filed in juvenile court, it still granted prosecutors some
discretion to seek transfers to adult criminal court for 14- and 15-
year-old defendants who were accused of specified serious or
violent offenses. (O.G., at p. 89 [citing former Welf. & Inst. Code,
§ 707, subd. (a)(1), as amended by Prop. 57, § 4.2].) Under
Proposition 57, “ ‘[c]ertain categories of minors . . . can still be
tried in [adult court], but only after a juvenile court judge
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conducts a transfer hearing to consider various factors.’ ” (Lara,
at p. 305.) In 2018, the Legislature enacted Senate Bill No. 1391
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1012, § 1), which
amended Proposition 57 by eliminating the authority of
prosecutors to seek transfer to criminal court of a minor who was
14 or 15 years old at the time of the offense, “save for a narrow
exception if the minor is ‘not apprehended prior to the end of
juvenile court jurisdiction.’ (Welf. & Inst. Code, § 707, subd.
(a)(2).)” (People v. Superior Court (Alexander C.) (2019)
34 Cal.App.5th 994, 998.)
“Section 3 of the Penal Code instructs that no part of that
code applies retroactively, which we have taken to mean that new
criminal laws do not govern prosecutions initiated before the law
went into effect. [Citation.] But we have recognized an exception
to this rule for new laws that mitigate punishment [in Estrada].”
(People v. Padilla (2022) 13 Cal.5th 152, 160 (Padilla), citing In
re Estrada (1965) 63 Cal.2d 740 (Estrada).) Our Supreme Court
held that to determine retroactivity in criminal law “ ‘in the
absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as
broadly as possible, distinguishing only as necessary between
sentences that are final and sentences that are not.’ ” (Lara,
supra, 4 Cal.5th at p. 308.)
Our Supreme Court concluded 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. Therefore, Proposition 57 reduces the possible
punishment for a class of persons, namely juveniles. For this
reason, Estrada’s inference of retroactivity applies. As nothing in
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Proposition 57’s text or ballot materials rebuts this inference, we
conclude this part of Proposition 57 applies to all juveniles
charged directly in adult court whose judgment was not final at
the time it was enacted.” (Lara, supra, 4 Cal.5th at pp. 303–304.)
“Senate Bill No. 1391 effectively broadens the ameliorative
benefit of Proposition 57 to 14 and 15 year olds by prohibiting
prosecuting attorneys from moving to transfer individuals who
commit certain offenses when they were 14 or 15 years old to
adult court, unless they were ‘not apprehended prior to the end of
juvenile court jurisdiction.’ (Welf. & Inst. Code, § 707, subd.
(a)(2).) Such ameliorative changes to criminal law are entitled to
broad application.” (People v. Hwang (2021) 60 Cal.App.5th 358,
365, review dism., request for remand den. as moot July 27,
2022.)
Finality occurs for purposes of the Estrada rule “ ‘ “where
the judgment of conviction was rendered, the availability of
appeal exhausted, and the time for petition for certiorari ha[s]
elapsed.” ’ ” (Padilla, supra,13 Cal.5th at p. 162.) More recently,
our Supreme Court expounded upon Proposition 57’s retroactivity
to nonfinal judgments and held that it “applies during
resentencing when a criminal court sentence imposed on a
juvenile offender before the initiative’s passage has since been
vacated.” (Padilla, at p. 158.) The Court observed that because
the defendant’s conviction was vacated after a habeas petition
and the trial court regained jurisdiction to resentence him, his
sentence remained nonfinal because the parties could appeal
imposition of the new sentence. Thus, a criminal case is
considered final “when ‘the criminal proceeding as a whole’ has
ended [citation] and ‘the courts can no longer provide a remedy to
a defendant on direct review.’ ” (Id. at p. 161, italics added.)
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B. The Trial Court’s Failure to Pronounce Propker’s
Sentence Resulted in an Unauthorized Sentence
That Is Reviewable
First, Propker’s sentence was nonfinal at the time he made
his request to transfer his case to juvenile court because he was
still serving an illegal life without parole sentence. As such, it
was an unauthorized sentence subject to our correction.
“In a criminal case, judgment is rendered when the trial
court orally pronounces sentence.” (People v. Karaman (1992)
4 Cal.4th 335, 344, fn. 9 (Karaman).) “When a judgment other
than death has been pronounced, and the judgment is for
incarceration in a state prison, execution of the judgment does
not occur until the commitment document [i.e., the abstract of
judgment] is transferred to the proper officer and the defendant
is delivered into that officer’s custody.” (People v. Nubla (1999)
74 Cal.App.4th 719, 727, rehg. den. Sept. 24, 1999; Karaman, at
pp. 344–345.) If a sentence is modified, it must be done orally in
open court and with the presence of defendant and counsel; a
modification of the sentence by written order is not sufficient.
(People v. McGahuey (1981) 121 Cal.App.3d 524, 530.)
We have found reversible error in circumstances where a
trial court failed to pronounce a legal sentence. (People v. Price
(1986) 184 Cal.App.3d 1405, 1411–1412.) Specifically, we have
held that failure to pronounce an enhancement as to even one
count “produced an unauthorized sentence” (id. at p. 1412, italics
added) that “[could] be rectified on remand.” (Id. at p. 1411; see
also People v. Benton (1979) 100 Cal.App.3d 92, 102 [trial court’s
failure to either state that it was striking the enhancement or to
impose it was “analogous to a failure to pronounce sentence on all
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counts, which is the type of unauthorized sentence that can be
corrected by remand on the defendant’s appeal”].)
Here, the trial court failed to pronounce Propker’s sentence
in 2013 after his initial appeal. Moreover, the trial court did not
modify the abstract of judgment even though the abstract acts as
the order committing the defendant to prison (§ 1213, subd. (a)),
and is “ ‘the process and authority for carrying the judgment and
sentence into effect.’ ” (In re Black (1967) 66 Cal.2d 881, 890.)
Consequently, Propker was serving an illegal sentence since
2013.
“A claim that a sentence is unauthorized . . . may be raised
for the first time on appeal, and is subject to judicial correction
whenever the error comes to the attention of the reviewing court.”
(People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, italics added.)
Propker’s illegal sentence was therefore subject to our correction
at any time.
Because Propker was 15 years old at the time of his crimes,
he is entitled to the ameliorative benefits of Senate Bill No. 1391.
(See People v. Keel (2022) 84 Cal.App.5th 546, 564 [holding that
because defendant was 15 years old when he committed his
crime, he is precluded from transfer to adult court on remand].)
At the time, Propker made his request for a transfer to juvenile
court—which was prior to the lower court’s resentencing
hearing—Propker was still serving an illegal life without parole
sentence. As such, Propker continued to serve a nonfinal and
unauthorized sentence that remained reviewable on appeal and
subject to correction on direct review. (See Lara, supra, 4 Cal.5th
at p. 303.) Thus, the trial court erred in failing to grant Propker’s
motion to transfer to juvenile court, and this Court can remedy
that error.
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C. Propker’s Modified Sentence Is Still Reviewable for
Error
Propker prevails on appeal for a second, independent
reason as his modified sentence from June 14, 2022 remained
nonfinal and reviewable on appeal.
After a trial court modifies a sentence upon remand from
the Court of Appeal, we have authority to review the modified
sentence for any purported errors. In addition to the
requirements outlined above, a lower court must comply with
various legal requirements when carrying a sentence into effect
on remand from the Court of Appeal’s modification order.
“[W]hen a prison term already in progress is modified as the
result of an appellate sentence remand, the sentencing court
must recalculate and credit against the modified sentence all
actual time the defendant has already served, whether in jail or
prison, and whether before or since he was originally committed
and delivered to prison custody.” (People v. Buckhalter (2001)
26 Cal.4th 20, 29.) The court must then calculate conduct credits
for the period before the original sentencing hearing. (Id. at
p. 30.) Thus, when a defendant is resentenced, all actual time
spent in custody must be credited against the modified sentence
and reflected in the amended abstract of judgment. (Id. at pp. 37,
41.)
“[T]he trial court [commits reversible error when it does]
not update defendant’s credits for actual time served between the
original sentencing hearing and the resentencing hearing.”
(People v. Sek (2022) 74 Cal.App.5th 657, 673 (Sek); People v.
Walker (2022) 86 Cal.App.5th 386, 400–401 [reversing the
judgment “to the extent it failed to reflect the proper custody
credits earned by defendant” and directed the trial court “to
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calculate the appropriate credits”], review granted March 22,
2023, S278309.) An incorrect award of custody credits is an
unauthorized sentence that we may correct on appeal. (People v.
Taylor (2004) 119 Cal.App.4th 628, 647 [sentence failing “to
award legally mandated custody credits is unauthorized and may
be corrected whenever discovered”].) Accordingly, when a trial
court regains jurisdiction to implement a judgment from the
Court of Appeal, any errors in carrying forward that judgment
are reviewable on appeal.
The Attorney General relies on People v. Lopez (2019)
42 Cal.App.5th 337 (Lopez) for the misplaced proposition that a
court of appeal’s modification becomes final on appeal because
the trial court cannot exercise full discretion in resentencing.
But Lopez does not hold that a sentence is final when the court of
appeal orders a modification to a sentence. (See id. at p. 342.) In
fact, the Court of Appeal in Lopez directed the trial court to
prepare an abstract of judgment reflecting the modifications and
his resulting total prison sentence of 10 years 8 months. (Id. at
pp. 342–43.) As set forth above, the trial court’s implementation
of that order is plainly reviewable on appeal. Otherwise,
a defendant would have no remedy for the trial court’s errors
when modifying a sentence. Thus, the fact that a lower court
does not always regain full sentencing discretion does not bar our
ability to correct the trial court’s errors in carrying the judgment
into effect.
While not the subject of this appeal, we note that the trial
court did commit errors when it modified Propker’s sentence.
First, Propker’s amended abstract of judgment incorrectly reflects
807 total credits for time served. This number is the same in the
abstract of judgment from his initial sentencing hearing on
12
March 22, 2012. As such, the lower court failed to calculate and
update Propker’s time served. (See Sek, supra, 74 Cal.App.5th at
p. 673.) Second, we also noted above that the Attorney General
concedes that the superior court committed error by imposing the
section 654 stay on count 4 instead of count 5, in direct
contravention of the Court of Appeal’s modification order. (See
People v. Hester (2000) 22 Cal.4th 290, 295 [“a court acts in excess
of its jurisdiction . . . when it fails to stay execution of a sentence
under [Pen. Code] section 654”].) Accepting the Attorney
General’s argument that a modified sentence is final would
therefore mean a defendant would have no remedy for these
types of errors.
Even after the superior court resentenced Propker, he is
entitled to the ameliorative benefits of Proposition 57 and Senate
Bill No. 1391. Because we can provide a remedy on direct review
for any purported errors to a modified sentence, Propker’s
sentence is still nonfinal after the June 14, 2022 resentencing
hearing. (See Lara, supra, 4 Cal.5th at p. 303; Padilla, supra,
13 Cal.5th at p. 161; In re Pine (1977) 66 Cal.App.3d 593, 595
[“The finality of a judgment [occurs at the] point at which the
courts can no longer provide a remedy on direct review”].) Thus,
Propker is entitled to have his case transferred to juvenile court.
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DISPOSITION
We remand to the lower court with directions to transfer
this matter to the juvenile court for juvenile adjudication
consistent with this opinion.
VIRAMONTES, J.
We Concur:
GRIMES, Acting P. J.
WILEY, J.
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