In re A.M. ( 2024 )

Filed 5/31/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re A.M., a Person Coming 2d Juv. No. B329999
Under the Juvenile Court Law. (Super. Ct. No. 2009024052)
(Ventura County)
THE PEOPLE,
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
When a court vacates a sentence, the judgment in that case
becomes nonfinal for purposes of retroactively applying
ameliorative laws. (People v. Padilla (2022) 13 Cal.5th 152,
161-162 (Padilla); see In re Estrada (1965) 63 Cal.2d 740(Estrada).) Applying that principle here, we conclude that a
judgment becomes nonfinal when a minor defendant sentenced as
an adult prior to the electorate’s passage of Proposition 57 (Prop.
57) subsequently has their sentence conditionally reversed on
habeas corpus. Such a defendant is entitled to the benefit of
ameliorative laws enacted since the imposition of their original
sentence. Here, that includes Senate Bill No. 1391 (2017-2018
Reg. Sess.) (Senate Bill 1391), which amended Prop. 57 to
prohibit the transfer of 14- and 15-year-olds to adult criminal
court, and Assembly Bill No. 333 (2021-2022 Reg. Sess.)
(Assembly Bill 333), which amended various provisions of Penal
Code1 section 186.22.
In 2013, A.M. was tried as an adult for murdering a rival
gang member when he was 14 years old. A jury convicted him of
first degree murder (§§ 187, subd. (a), 189, subd. (a)), and found
true allegations that he personally used a deadly weapon and
committed his crime for the benefit of a criminal street gang
(§§ 12022, subd. (b)(1), 186.22, subd. (b)(1)). It also found true a
gang-murder special circumstance allegation (§ 190.2, subd.
(a)(22)). The trial court sentenced him to 26 years to life in state
prison.
Eight years later, the superior court conditionally reversed
the judgment and ordered the juvenile court to conduct a transfer
hearing pursuant to Prop. 57. The juvenile court conducted the
hearing, granted the district attorney’s motion to transfer A.M.’s
case to criminal court, and reinstated the judgment.
In his opening brief, A.M. contended his case should not
have been transferred because he was 14 years old when he
committed his crime. After briefing was complete, we asked the
parties to discuss whether Assembly Bill 333 applies to this case.
In response to our request, A.M. contended Assembly Bill 333
1 Unlabeled statutory references are to the Penal Code.
2
requires striking the gang-murder special circumstance.2 We
agree with both of A.M.’s contentions.
FACTUAL AND PROCEDURAL HISTORY
The murder of S.S.
A.M. was born in 1994 to a single mother and absentee
father. His stepfather abused him emotionally and physically,
beginning when he was five or six years old. When A.M. was
eight, he began taking psychotropic medications to treat his
mental health disorders. Despite these challenges, A.M. was
regarded as a “sweet” and “loving” child.
That began to change when A.M. turned 10. He ran away
from home and was exposed to gang culture. When he was 12, he
joined a local gang. He eventually came to view the gang as his
surrogate family, and started to commit petty offenses for them.
In April 2009, A.M. (age 14) and two fellow gang members
went to a party. Sixteen-year-old S.S., a rival gang member, was
also at the party. As the youngest member of his gang, A.M.
believed he had a duty to confront S.S. But he left without doing
so.
A.M. then went to a second party. S.S. arrived a short time
later. The two began to exchange blows. The fight escalated, and
A.M. stabbed S.S. multiple times. A.M. then ran away and called
his mother to pick him up from the side of a road. S.S. died from
his wounds.
The district attorney charged A.M. as an adult with the
murder of S.S. At trial, a gang expert testified that younger gang
members like A.M. would do “all they can to bolster their
2 A.M. also contends Assembly Bill 333 requires striking
the gang enhancement, but the record reflects that the trial court
did so at sentencing.
3
reputation[s].” The expert further testified that a murder like
the one A.M. committed would “benefit the gang . . . because it’s
instilling that fear and intimidation” and earning him “status
and respect.” The prosecutor relied on this testimony in his
closing argument, suggesting that the “fear” created by A.M.’s
offense would “increase [his alleged gang’s] reputation” and “earn
[it] more respect.” The jury was not instructed that it needed to
find a benefit to A.M.’s alleged gang that was anything more than
reputational to render true findings on the gang allegation and
gang-murder special circumstance allegation. It was told that
the predicate offenses allegedly establishing the gang’s pattern of
criminal activity “need not be gang related.”
The jury convicted A.M. of first degree murder, found true
allegations that he used a deadly weapon and committed the
murder for the benefit of a criminal street gang, and found true
the gang-murder special circumstance allegation. The trial court
struck the gang enhancement and sentenced A.M. to 25 years to
life on the murder3 plus one year for the use of a deadly weapon.
It also ordered him to register as a gang offender. (See § 186.30.)
We affirmed the judgment on appeal. Our Supreme Court
denied review on October 12, 2016. A.M. did not file a petition for
writ of certiorari with the U.S. Supreme Court, and the matter
became final on January 10, 2017. (See People v. Vieira (2005) 35
Cal.4th 264, 306 [judgment becomes final when time to file
petition for writ of certiorari has elapsed]; U.S. Supreme Ct.
3 The court stated its belief that, despite the jury’s true
finding on the gang-murder special circumstance, sentencing
A.M. to life in state prison without the possibility of parole was
not permitted given his age when he committed murder. (Citing
People v. Demirdjian (2006) 144 Cal.App.4th 10, 17.)
4
Rules, rule 13 [petition for writ of certiorari must be filed within
90 days of entry of judgment in state court of last resort].)
Prop. 57 and its amendments
On November 8, 2016, the electorate passed Prop. 57,
which took effect the next day. (People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 304 (Lara).) As adopted, Prop. 57
prohibited trying a minor as an adult without “ ‘a judicial
determination . . . that [they were] unfit to be dealt with under
juvenile court law.’ ” (Lara, at p. 305.) It allowed prosecutors to
request the transfer of only two categories of minors to criminal
court: 16- and 17-year-olds alleged to have committed felonies,
and 14- and 15-year-olds alleged to have committed specified
serious or violent felonies. (Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) text of Prop. 57, § 4.2.) Transfer requests would be
granted “ ‘only after a juvenile court judge conduct[ed] a transfer
hearing to consider . . . factors such as the minor’s maturity,
degree of criminal sophistication, [and] prior delinquent history,
and whether the minor [could] be rehabilitated.’ ” (Lara, at p.
305; see also Welf. & Inst. Code, § 707, subd. (a)(3) [listing
transfer factors].)
The Legislature later enacted several statutes to amend
and implement Prop. 57’s provisions. For example, effective
January 1, 2019, Senate Bill 1391 bars a juvenile court from
transferring a 14- or 15-year-old to adult criminal court,
regardless of the crime they allegedly committed.4 (Stats. 2018,
4 Senate Bill 1391 includes an exception for a 14- or 15-
year-old not apprehended before the termination of the juvenile
court’s jurisdiction. (See Welf. & Inst. Code, § 707, subd. (a)(2).)
That exception is not relevant here because A.M. has been in
custody since he was 14 years old.
5
ch. 1012, § 1; see Welf. & Inst. Code, § 707, subd. (a)(1); see also
O.G. v. Superior Court (2021) 11 Cal.5th 82, 87 (O.G.) [Sen. Bill
1391 was a permissible amendment to Prop. 57].) Effective
January 1, 2022, Assembly Bill No. 624 (2021-2022 Reg. Sess.)
(Assembly Bill 624) permits a minor to challenge a transfer
decision on direct appeal. (Stats. 2021, ch. 195, § 1; see Welf. &
Inst. Code, § 801.) And effective January 1, 2023, Assembly Bill
No. 2361 (2021-2022 Reg. Sess.) (Assembly Bill 2361) requires
that transfer decisions be supported by clear and convincing
evidence. (Stats. 2022, ch. 330, § 1; see Welf. & Inst. Code, § 707,
subd. (a)(3).)
Proceedings below
In 2021, A.M. moved this court to recall the remittitur in
his underlying case, contending he was entitled to relief under
Prop. 57 and its amendments, including Senate Bill 1391. The
Attorney General conceded that Prop. 57 applied to A.M.’s case.
We declined to recall the remittitur, however, and instead elected
to treat A.M.’s motion as a petition for writ of habeas corpus. We
issued an order to show cause, returnable in the superior court,
for the Department of Corrections and Rehabilitation (CDCR) to
demonstrate “why relief should not be granted on the ground that
[A.M.] is entitled to a [transfer] hearing under Welfare and
Institutions Code section 707, subdivision (a).”
After a hearing on the order to show cause, the superior
court conditionally reversed A.M.’s conviction and sentence and
referred the matter to the juvenile court for a transfer hearing.
A.M. argued that Senate Bill 1391 deprived the juvenile court of
“any residual authority” to transfer his case to criminal court
because he was 14 when he murdered S.S. The juvenile court
declined to apply Senate Bill 1391, stating that doing so would be
6
“contrary to what was specifically ordered” in the order to show
cause. It also believed A.M.’s case was “final” and “should be
treated as a continuing writ of habeas corpus for the sole purpose
of conducting a transfer hearing.”
A.M. petitioned this court for a writ of mandate, requesting
that we direct the juvenile court to apply Senate Bill 1391 and
deny the district attorney’s motion to transfer his case to criminal
court. We denied the petition “without prejudice to [A.M.’s] right
to seek relief following the transfer hearing” under Welfare and
Institutions Code section 801. The district attorney conceded
that this provision would provide A.M. with an “adequate
appellate remedy” after his transfer hearing.
At the transfer hearing, the district attorney argued the
juvenile court should apply the law in effect on January 10, 2017,
the date A.M.’s case became final on direct appeal. The court
accepted the district attorney’s argument in part, concluding that
Senate Bill 1391 did not apply: “[O]bviously we’re going forward
with the transfer hearing.” But it rejected the district attorney’s
argument regarding Assembly Bill 2361, ruling that the standard
of proof at the transfer hearing would be clear and convincing
evidence. It held the hearing, applied that standard, and granted
the district attorney’s motion to transfer A.M.’s case to criminal
court.
DISCUSSION
Senate Bill 1391
A.M. contends the juvenile court erred when it declined to
apply the provisions of Senate Bill 1391 and granted the district
attorney’s motion to transfer his case to criminal court. We
agree.
7
Effective January 1, 2019, Senate Bill 1391 bars
prosecutors from requesting the “transfer of 14- and 15-year-olds
from juvenile court to criminal court.” (People v. Superior Court
(Alexander C.) (2019) 34 Cal.App.5th 994, 998.) The provisions of
Senate Bill 1391 apply regardless of whether the minor’s case is
before the juvenile court after the statute’s effective date (see,
e.g., B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 746-747)
or the case was not yet final on appeal when Senate Bill 1391
took effect (see, e.g., People v. Superior Court (I.R.) (2019) 38
Cal.App.5th 383, 392-393 (I.R.)). The Attorney General concedes
as much. And as we explain below, we conclude that Senate Bill
1391 also applies where, as here, a case is before the juvenile
court because the minor is granted relief on collateral review.
We review questions of retroactivity de novo. (In re David
C. (2020) 53 Cal.App.5th 514, 519.) Our Supreme Court recently
explained the relevant principles: Under Estrada, supra, 63
Cal.2d 740, “new laws that mitigate punishment . . . are
presumed to apply to cases charged before the law’s enactment
but not yet final.” (Padilla, supra, 13 Cal.5th at p. 160.) “[T]he
range of judgments affected by Estrada is delimited by
constitutional constraints; as [the court] said in Estrada itself, a
law lessening punishment is understood to apply ‘to every case to
which it constitutionally could apply.’ ” (Id. at pp. 160-161.)
Thus “any restrictions on [the Legislature’s] power [to intervene
in judicial decisionmaking] would attach at ‘the conclusion of a
criminal proceeding as a whole’—i.e., when ‘ “the last word of the
judicial department with regard to a particular case or
controversy” ’ has issued.” (Id. at p. 161.)
“Consistent with this view, [the Supreme Court has]
approved laws that alter indisputably final cases when they
8
create new rules or procedures by which a defendant may seek
relief.” (Padilla, supra, 13 Cal.5th at p. 161.) The Padilla
defendant, for example, “was sentenced to life imprisonment
without the possibility of parole before the United States
Supreme Court held . . . that such a sentence is unconstitutional
when imposed on a juvenile unless the court has considered
whether the sentence is appropriate in light of the minor’s age
and potential for rehabilitation.” (Ibid.) But “[a]fter petitioning
for habeas corpus relief on that basis, his sentence was vacated, a
new term was imposed, and then that sentence was vacated too.”
(Ibid.) That rendered his case nonfinal: “When Padilla’s sentence
was vacated, the trial court regained the jurisdiction and duty to
consider what punishment was appropriate for him, and Padilla
regained the right to appeal whatever new sentence was
imposed.” (Id. at pp. 161-162, italics added.) That appeal must
be deemed “part of direct review of a nonfinal judgment, not
collateral review of a final judgment.” (Id. at p. 163.)
Applying those principles here entitles A.M. to the
ameliorative benefit of Senate Bill 1391’s provisions. Because
A.M.’s judgment was not final on November 9, 2016, Prop. 57
retroactively applies to his case. (See Lara, supra, 4 Cal.5th at p.
309.) The superior court was therefore required to conditionally
reverse his conviction and sentence on habeas corpus. (See id. at
pp. 310, 313.) It did so and referred his case to the juvenile court
for a transfer hearing. Once that occurred, A.M.’s case became
nonfinal (Padilla, supra, 13 Cal.5th at pp. 161-162; see also
People v. Lopez (2023) 93 Cal.App.5th 1110, 1119-1120 [case
becomes nonfinal following conditional reversal], review granted
Nov. 15, 2023, S281488 (Lopez)), and Senate Bill 1391 applied
(I.R., supra, 38 Cal.App.5th at pp. 392-393).
9
As he did in Padilla, “the Attorney General . . . asks us to
distinguish . . . between cases that are nonfinal because the
defendant is undergoing retrial or resentencing and those in a
newly coined procedural stance—cases ‘not yet final on initial
review.’ ” (Padilla, supra, 13 Cal.5th at p. 162.) We cannot do so.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) As the Supreme Court explained when it rejected the
Attorney General’s request in Padilla, “Estrada made no such
distinction.” (Padilla, at p. 162.) “The Estrada presumption
stems from [the] understanding that when the Legislature
determines a lesser punishment is appropriate for a particular
offense or class of people, it generally does not wish the previous,
greater punishment—which it now deems ‘too severe’—to apply
going forward.” (Ibid.) “We presume the Legislature intends the
reduced penalty to be used instead in all cases in which there is
no judgment or a nonfinal one, and in which it is constitutionally
permissible for the new law to control.” (Ibid.) That includes a
case that “is nonfinal because the defendant’s sentence has been
vacated rather than because the initial review of the sentence has
not yet concluded.” (Ibid.)
Our sister courts have applied these principles in analogous
scenarios involving previously final judgments. For example, in
People v. Hwang (2021) 60 Cal.App.5th 358, our colleagues in
Division 5 of this district held that Prop. 57 and Senate Bill 1391
retroactively applied in a case rendered nonfinal because the
defendant’s sentence was recalled pursuant to a recommendation
from CDCR. (Hwang, at pp. 364-366.) Relying on Hwang, a
panel of Division 7 held that Prop. 57 and Senate Bill 1391
applied in a case rendered nonfinal upon the granting of a
resentencing petition. (People v. Ramirez (2021) 71 Cal.App.5th
10970, 996-1000.) The Fourth District also reached the same
conclusion, holding that the granting of a resentencing petition
renders a case nonfinal, requiring the application of Prop. 57 and
Senate Bill 1391. (People v. Keel (2022) 84 Cal.App.5th 546, 563-
565.)
The Attorney General’s attempts to distinguish Padilla are
not persuasive. He claims that unlike Padilla, no court has
vacated A.M.’s pre-Prop. 57 conviction or sentence. The Attorney
General is mistaken: In response to our order to show cause, the
superior court conditionally reversed A.M.’s conviction and
sentence.
The Attorney General also argues that unlike the vacatur
in Padilla, the conditional reversal here did not disturb A.M.’s
conviction or sentence so as to render his case nonfinal. But
Padilla itself involved a conditional reversal. (See People v.
Padilla (2020) 50 Cal.App.5th 244, 256, review granted Aug. 26,
2020, S263375, aff’d. (2022) 13 Cal.5th 152.) So have cases
retroactively applying Senate Bill 1391. (See, e.g., People v.
Superior Court (T.D.) (2019) 38 Cal.App.5th 360, 365, 378.) It is
with a conditional affirmance, not a conditional reversal, that a
judgment remains in place pending further proceedings.5 (In re
J.K. (2022) 83 Cal.App.5th 498, 508.)
People v. Hargis (2019) 33 Cal.App.5th 199, on which the
Attorney General relies, does not demand a contrary conclusion.
The Hargis court did not consider whether a conditional reversal
operates as a reversal that renders a case nonfinal, the issue
5 We respectfully disagree with the dicta in Andrew M. v.
Superior Court (2020) 43 Cal.App.5th 1116 suggesting otherwise.
(See id. at p. 1126 [conditional reversal for transfer hearing does
not “disturb the verdict or vacate the sentence”].)
11
relevant to this appeal. “ ‘ “[C]ases are not authority for
propositions not considered.” ’ ” (People v. Gray (2023) 15 Cal.5th
152, 169, fn. 5.) Moreover, the Hargis court presumed that a
defendant’s case that was final before an ameliorative statute
took effect would remain final thereafter. (Hargis, at p. 209.)
That presumption has been undermined by Padilla. (See
Padilla, supra, 13 Cal.5th at pp. 163-166 [rejecting bright-line
rule that “ ‘a case has either become final on direct appeal or it
has not’ ”].)
Alternatively, the Attorney General argues that applying
Senate Bill 1391 during the proceedings below would have been
beyond the scope of our order to show cause. The juvenile court
also relied on this argument when it declined to apply Senate Bill
1391. But we ordered CDCR to show cause as to why A.M. was
not entitled to a transfer hearing pursuant to Welfare and
Institutions Code section 707, subdivision (a). That subdivision
incorporates the provisions of Senate Bill 1391 specifying that
transfer hearings may be held only for minors who commit their
crimes when age 16 or older. (Welf. & Inst. Code, § 707, subd.
(a)(1).) And while our order to show cause did not refer to Senate
Bill 1391’s age limitations, applying it here is consistent with the
purpose of those hearings: to determine whether juvenile
defendants like A.M. may be transferred to criminal court. (O.G.,
supra, 11 Cal.5th at pp. 96-97, 100-102.) It is also consistent
with Padilla, which noted that applying Prop. 57 to nonfinal
cases permits relitigating punishment without relitigating guilt.
(Padilla, supra, 13 Cal.5th at pp. 169-170.)
The Attorney General’s position that Senate Bill 1391 does
not apply here is also rife with inconsistencies. For example, he
concedes the order transferring A.M.’s case to criminal court is
12
appealable pursuant to Welfare and Institutions Code section
801. He also states that the juvenile court “prudently applied”
the standard of clear and convincing evidence when it conducted
the transfer hearing. But Assembly Bill 624, which added section
801 to the Welfare and Institutions Code, and Assembly Bill
2361, which set the evidentiary standard to apply at transfer
hearings, both took effect after Senate Bill 1391. The Attorney
General does not explain why these statutes should apply here
but Senate Bill 1391 should not.
Consistent with Padilla, we conclude that A.M.’s case will
become final only “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.’ ” (Padilla, supra, 13 Cal.5th at
p. 161.) Here, when the judgment was conditionally reversed,
A.M.’s case became nonfinal. Prop. 57, as amended by Senate
Bill 1391, therefore applies.6
Assembly Bill 333
A.M. contends Assembly Bill 333 requires us to strike the
true finding on the gang-murder special circumstance tied to his
murder conviction. The Attorney General counters that
Assembly Bill 333 does not apply here, either because A.M.’s case
was already final when the bill took effect or because A.M. was
not sentenced pursuant to section 190.2. In our view, A.M. has
the better argument.
Effective January 1, 2022, Assembly Bill 333 amended
several of section 186.22’s provisions. These amendments, as
incorporated into the gang-murder special circumstance,
6 Given our conclusion, we do not resolve whether clear and
convincing evidence supported the juvenile court’s decision to
transfer the case to criminal court.
13
retroactively apply to cases that are not yet final. (People v.
Rojas (2023) 15 Cal.5th 561, 580 (Rojas).) As set forth above,
once the superior court conditionally reversed the judgment in
A.M.’s case, his case was nonfinal. Assembly Bill 333’s
amendments to the special circumstance therefore applied.
(Lopez, supra, 93 Cal.App.5th at p. 1120, review granted; see also
People v. Trent (2023) 96 Cal.App.5th 33, 44 [Assem. Bill 333
applies during § 1172.6 resentencing], review granted Dec. 20,
2023, S282644 (Trent); People v. Salgado (2022) 82 Cal.App.5th
376, 380-381 [Assem. Bill 333 applies during § 1172.1
resentencing].)
This conclusion does not conflict with Padilla’s statement
that applying Prop. 57 to nonfinal cases does not permit
relitigating guilt. As the Trent court explained, the statement in
Padilla was “intended to allay concerns that the defendant in
that case would request a new adjudication of his guilt in the
juvenile court itself.” (Trent, supra, 96 Cal.App.5th at p. 43,
review granted.) It was not, as the Attorney General argued,
“intended to divorce the court’s retroactivity analysis from
instances in which the retroactive relief would result in a more
favorable sentence because the underlying change required
reversal of a count of conviction for possible retrial.” (Ibid.) Such
an approach would not be “consistent with the ‘full resentencing
rule,’ ” which “ ‘allows a court to revisit all prior sentencing
decisions when resentencing a defendant.’ ” (Id. at p. 44.) A
judgment “cannot be partially final and partially nonfinal.”
(Lopez, supra, 93 Cal.App.5th at p. 1117, review granted [citing
Padilla, supra, 13 Cal.5th at pp. 160-161]; accord People v.
Mitchell (2023) 97 Cal.App.5th 1127, 1140-1141, review granted
Feb. 21, 2024, S283474.)
14
We further disagree with the Attorney General’s argument
that A.M. is not entitled to relief because the trial court did not
sentence him pursuant to section 190.2. Even though the trial
court did not sentence A.M. pursuant to this section, A.M. would
still have the stigma of committing a gang-related murder on his
record—despite prosecutors’ failure to meet Assembly Bill 333’s
stricter requirements. It would also require him to register as a
gang offender—again, despite the lack of Assembly Bill 333’s
required findings. (§ 186.30, subd. (b)(3); see also § 190.2, subd.
(a)(22) [borrowing definitions from § 186.22]; In re J.V. (2010) 181
Cal.App.4th 909, 912 [§ 186.30 borrows definitions from
§ 186.22].) Legislative enactments can retroactively negate such
collateral consequences. (See, e.g., People v. Buycks (2018) 5
Cal.5th 857, 878-879.) And the Legislature clearly indicated its
desire to do so here. (See Stats. 2021, ch. 699, § 2, subd. (b)
[noting negative impacts of being designated a gang member].)
Where, as here, Assembly Bill 333 applies retroactively to a
jury’s gang-murder special circumstance finding, we review for
harmless error pursuant to Chapman v. California (1967) 386
U.S. 18. (People v. Sek (2022) 74 Cal.App.5th 657, 668.) Under
Chapman, vacating the jury’s finding is “required unless ‘it
appears beyond a reasonable doubt’ that the [finding] would have
been the same” under current law. (People v. Tran (2022) 13
Cal.5th 1169, 1207.) If “there is any reasonable possibility that
the error might have contributed to the” finding, vacatur is
required. (People v. Lewis (2006) 139 Cal.App.4th 874, 887.)
Vacatur is required here. The gang-murder special
circumstance applies if a juvenile “intentionally killed the victim
while [they were] an active participant in a criminal street gang,
as defined in subdivision (f) of [s]ection 186.22, and the murder
15
was carried out to further the activities of the criminal street
gang.” (§ 190.2, subd. (a)(22).) Subdivision (f) of section 186.22
defines a “criminal street gang” as a group that engages in a
“pattern of criminal gang activity.” Since 2022, subdivision (e) of
that section has defined “pattern of criminal gang activity” as
committing offenses that benefit a gang in a way that is “more
than reputational.” (Italics added.)
At trial, the gang expert did not testify that the murder
A.M. committed benefited his gang in any way that was more
than reputational. The jury similarly was not instructed that it
needed to conclude that the murder benefited A.M.’s gang in a
way that was more than reputational to render a true finding on
the gang-murder special circumstance. To the contrary, the jury
was instructed that any predicate offenses “need not be gang
related”—something the prosecutor reiterated in his closing
argument. We thus conclude the evidence was insufficient to
sustain the special circumstance. (People v. Vasquez (2022) 74
Cal.App.5th 1021, 1032-1033.) It must be vacated, and the
accompanying gang registration requirement must be stricken.
(Rojas, supra, 15 Cal.5th at p. 580.)
DISPOSITION
The order granting the district attorney’s motion to
transfer A.M.’s case to criminal court, entered June 6, 2023, is
reversed, and the matter is remanded to the juvenile court with
directions to enter a new order denying the district attorney’s
motion.
The true finding on the gang-murder special circumstance
is vacated, and the requirement for A.M. to register as a gang
offender is stricken. Prosecutors have the option of retrying the
special circumstance and meeting the new burden of proof under
16
Assembly Bill 333.
After the hearing on the gang-murder special circumstance,
if any, the juvenile court shall hold a dispositional hearing. It
shall treat A.M.’s murder conviction as a juvenile adjudication
and impose an appropriate disposition.
CERTIFIED FOR PUBLICATION.
BALTODANO, J.
I concur:
GILBERT, P. J.
17
YEGAN, J., Dissenting:
I respectfully dissent. The result reached by the majority
opinion stretches the concept of “true reversal” to “conditional
reversal.” I have two observations before a legal analysis. First,
this is a serious gang related stabbing where the victim is dead
because of appellant’s decision and his physical assault upon the
victim. Even though appellant was fourteen years old, it is
presumed that he knew what he was doing. Most, if not all
fourteen-year-olds, should know that it is unlawful and wrong to
repeatedly stab a person to death with a knife. The jury found
appellant guilty of this serious offense and the sentencing judge
appreciated the gravity of the situation. Second, appellant has
been in prison for fifteen years and is eligible for release on
parole. He will be released on a parole if and when the Board
thinks he is ready for release. This should be his only potential
remedy.
The majority equate the “conditional reversal” with a “true
reversal.” This results in a potential “get-out-of-jail-free” card.
Sentencing is serious and solemn business. It is not a game and
the courts should, at least, attempt to, honor the sanctity of a
final judgement. To now undo the verdict and sentence may be
truly unproductive. Appellant is 29 years old now and the time
is long passed when he can be “treated” as a juvenile. This is the
real problem created by the four-to-three opinion in People v.
Padilla (2022) 15 Cal.5th 152. If the majority opinion is correct,
the only theoretical remedy for the People is Welfare &
Institutions Code section 1800. (In re Gary W. (1971) 5 Cal.3d.
296.)
A “conditional reversal” is, obviously, not a reversal else the
word, “conditional” would not be included in the superior court’s
order. Let us use a modicum of common sense: The superior
court, by ordering a transfer hearing, was only looking for a way
to allow the juvenile court to consider the merits of keeping
appellant in the juvenile system. It did not reverse the
conviction. It did not vacate the sentence. And it did not believe
that it was rendering the earlier judgment “not final.” We
should not stretch the Padilla holding beyond its express limits.
But, the majority opinion, essentially, erases the word,
“conditional” and thus, appellant gets the benefit of the
ameliorative law which, in reality, vacates the jury verdict and
the judgment of 15 years ago because even though it was final
for fifteen years, it is not now “final.” I see no principled way to
agree with this analysis. The majority opinion result seems
forced so that this appellant may be treated with leniency. The
record does not allow me to conclude that appellant is entitled to
leniency.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
2
Ferdinand Inumerable, Judge
Superior Court County of Ventura
______________________________
Latham & Watkins, Nima H. Mohebbi, Sebastien Wadier,
Max A. Shapiro, Erica Peña, Tatum P. Rosenfeld, Mikaela W.
Gilbert-Lurie and Melissa Arbus Sherry for Defendant and
Appellant.
Jonathan Grossman, Steven Torres and Mi Kim for Pacific
Juvenile Defender Center as Amicus Curiae on behalf of
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.