People v. Rossier CA2/7 ( 2024 )

Filed 1/10/24 P. v. Rossier CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B323884
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA272661)
v.
JAZMIN ROSSIER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael E. Pastor, Judge. Reversed and
remanded with directions.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
In 2008 Jazmin Rossier was convicted of second degree
murder and attempted premeditated murder for crimes she
committed when she was 16 years old. In 2020 she filed a
petition for resentencing under Penal Code former
section 1172.95 (now section 1172.6),1 which provides a procedure
for an individual convicted of felony murder or murder under the
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if the individual could not have been
convicted of murder under changes to sections 188 and 189
pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.). The
trial court granted Rossier’s petition with respect to the
attempted murder count but denied it with respect to the murder
count. Rossier filed a motion to remand the case to the juvenile
court under Proposition 57, The Public Safety and Rehabilitation
Act of 2016 (Cal. Const., art. I, § 32) (Proposition 57), which
reformed the process by which criminal cases may be filed
against juveniles in adult criminal court. The court denied the
motion on the basis the court had not resentenced Rossier on the
murder count, keeping the sentence the same.
Rossier contends, the People concede, and we agree she was
entitled to a remand under Proposition 57 in light of the trial
court’s order granting her petition for resentencing on the
attempted murder count, even though the court denied her
petition on the murder count, and further, the new burden of
proof of clear and convincing evidence will apply to the hearing
1 Further undesignated statutory references are to the Penal
Code.
2
under Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Assembly
Bill 2361).
FACTUAL AND PROCEDURAL BACKGROUND
As we described in our opinion in People v. Flores (July 19,
2010, B211207) (nonpub. opn.), Rossier, her boyfriend Bryan
Sanchez, and Rafael Fuentes were members of the 18th Street
criminal street gang. On August 29, 2003 the group and other
18th Street gang members met to discuss tagging (spraying paint
or using a thick marker) in an area controlled by a rival gang.
After the meeting, Sanchez, who was carrying a handgun, drove a
stolen minivan with Rossier, Fuentes, and other 18th Street gang
members to the rival gang neighborhood. When they arrived,
Sanchez used spray paint to cross out the rival gang’s graffiti and
overwrite it with an identifier of the 18th Street gang. A
confrontation ensued between Sanchez and a rival gang member,
and Fuentes shot and killed the rival gang member.
The jury convicted Rossier of second degree murder (§ 187,
subd. (a); count 1) and attempted, willful, deliberate, and
premeditated murder (§§ 187, subd. (a), 664; count 2). The jury
also found true the gang allegation (§ 186.22, subd. (b)(1)) and
that the murder was committed by shooting a firearm from a
motor vehicle within the meaning of section 190, subdivision (d).
The trial court sentenced Rossier to an aggregate state prison
sentence of 20 years to life.
On December 2, 2020 Rossier filed a petition for
resentencing under former section 1170.95 stating Rossier was
entitled to resentencing because she was convicted under the
natural and probable consequences doctrine. The trial court
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appointed counsel, issued an order to show cause, and set an
evidentiary hearing. On June 2, 2022, after hearing argument of
counsel, the trial court found the People met their burden to
prove beyond a reasonable doubt that Rossier was guilty on count
1 of second degree murder under current law and denied the
petition as to that count. However, the court found with respect
to count 2 for premeditated attempted murder, the People had
not met their burden, and the court granted the petition on that
count. Rossier’s attorney argued Rossier should be resentenced
on the remaining murder count and the case should be remanded
to the juvenile court. The court denied Rossier’s motion for
resentencing on count 1 without prejudice to Rossier filing a
motion for resentencing and remand for a transfer hearing.
On June 23, 2022 Rossier filed a motion to remand the case
to juvenile court in light of Proposition 57. Rossier argued she
was entitled to a transfer hearing because she committed the
crimes when she was 16 years old and her convictions were not
yet final. On August 1, after hearing argument on the motion,
the court granted the People’s motion to dismiss count 2 for
attempted murder under section 1385 in the interest of justice
(over Rossier’s objection). The court denied Rossier’s motion to
transfer the case, explaining “the sentence [on count 1] would
have to be recalled and that would have to occur before any
resentencing. This court has not recalled the sentence as to count
number 1 and since the court has not recalled the sentence as to
count number 1, there is no jurisdiction.” Therefore, “the
judgment and sentence as to count number 1 remains.”
Rossier timely appealed the order denying Rossier’s motion
to remand.
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DISCUSSION
Rossier contends, the People concede, and we agree Rossier
was entitled to a remand of the case to the juvenile court for a
retroactive transfer hearing at which the clear and convincing
standard of proof would apply.
Under Proposition 57, prosecutors must “commence all
cases involving a minor in juvenile court.” (O.G. v. Superior
Court (2021) 11 Cal.5th 82, 87; accord, People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 305-306 (Lara).) Further, under
Proposition 57, as amended by Senate Bill No. 1391 (2017-2018
Reg. Sess.), prosecutors may move to transfer a minor from
juvenile court to adult criminal court, provided the minor was not
under the age of 16 at the time of the offense. (O.G., at p. 87;
People v. Ramirez (2021) 71 Cal.App.5th 970, 971-972.)
In Lara, supra, 4 Cal.5th at page 304, the Supreme Court
held Proposition 57 applies retroactively to “all juveniles charged
directly in adult court whose judgment was not final at the time
it was enacted.” The Lara court remanded for the juvenile court
to hold a retroactive transfer hearing to determine whether the
defendant would have been fit for treatment under juvenile law,
and if so, for the juvenile court to treat the convictions as juvenile
adjudications and impose an appropriate disposition. (Id. at
pp. 310, 313.)
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Section 1172.6, subdivision (d)(3), provides that “[i]f the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” Therefore, upon finding
the prosecution had not met its burden with respect to the
attempted murder count, the trial court was required to vacate
Rossier’s conviction for attempted murder and resentence Rossier
on count 1 for murder. That the sentence on count 1 remained
the same does not change the fact that Rossier was resentenced,
which rendered her conviction for murder nonfinal for purposes of
retroactive application of Proposition 57. (See People v. Padilla
(2022) 13 Cal.5th 152, 161-162 [defendant’s sentence became
nonfinal after initial sentence of life without parole was vacated
and superior court resentenced him (again) to life without
possibility of parole]; People v. Ramirez, supra, 71 Cal.App.5th at
p. 996 [where sentence is vacated under former section 1170.95,
defendant must be resentenced, which renders his sentence
nonfinal for purposes of Proposition 57 and Senate Bill
No. 1391].) Therefore, as in Lara, the trial court erred in failing
to remand the case to the juvenile court for a retroactive transfer
hearing to determine whether Rossier would have been fit for
treatment under juvenile law, and if so, for the juvenile court to
treat the remaining conviction as a juvenile adjudication and
impose an appropriate disposition.
Moreover, effective January 1, 2023, Assembly Bill 2361
amended Welfare and Institutions Code section 707 to provide
that the juvenile court must apply a clear and convincing
standard of proof in deciding whether the minor is suitable for
treatment. Section 707, subdivision (a)(3), now provides, “In
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order to find that the minor should be transferred to a court of
criminal jurisdiction, the court shall find by clear and convincing
evidence that the minor is not amenable to rehabilitation while
under the jurisdiction of the juvenile court.” The amendment
“changed the finding a juvenile court must make before ordering
a transfer in two ways: (1) raising the standard of proof and (2)
requiring a new specific finding regarding amenability to
rehabilitation.” (In re S.S. (2023) 89 Cal.App.5th 1277, 1284.)
We agree with Rossier and the People that Assembly Bill
2361 applies retroactively to Rossier’s case. As the Court of
Appeal explained in In re S.S., supra, 89 Cal.App.5th at
pages 1288 to 1289, the amendments to Welfare and Institutions
Code section 707 “have similar ameliorative effects to
amendments made to section 707 by Proposition 57.” Further,
the amendments “make it more difficult to transfer juveniles
from juvenile court, which similarly reduces the possible
punishment for juveniles.” (In re S.S., at p. 1289.) Therefore,
because Rossier’s sentence on count 1 is no longer final, the
amendments to section 707, including the clear and convincing
burden of proof, will apply to the transfer hearing in the juvenile
court.
DISPOSITION
The order is reversed. The matter is remanded to the trial
court with directions to enter a new order vacating Rossier’s
attempted murder conviction and to transfer the matter to the
juvenile court for a retroactive transfer hearing at which the
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juvenile court must apply amended Welfare and Institutions
Code section 707, including the clear and convincing burden of
proof.
FEUER, J.
We concur:
SEGAL, Acting P. J.
MARTINEZ, J.
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