In re Vinson CA2/7

Filed 2/10/22 In re Vinson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re B313583
TOM LOVE VINSON (Los Angeles County
Super. Ct. No. NA083837)
on Habeas Corpus.
ORIGINAL PROCEEDING on petition for a writ of habeas
corpus. Judith L. Meyer, Judge. Petition granted.
Fay Arfa, under appointment by the Court of Appeal, for
Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and David A. Voet, Deputy
Attorneys General, for Respondent.
_______________________
A jury convicted Tom Love Vinson of first degree murder,
attempted voluntary manslaughter, and two counts of attempted
willful, deliberate, and premeditated murder. The trial court
sentenced Vinson to 130 years to life plus a determinate term of
25 years six months.
In Vinson’s first appeal, we affirmed Vinson’s convictions
but remanded to the trial court for resentencing, directing the
court to consider the mitigating sentencing factors applicable to
juveniles enunciated in Miller v. Alabama (2012) 567 U.S. 460.
(People v. Vinson (March 13, 2013, B238043) [nonpub. opn.]
(Vinson I).) The California Supreme Court denied review.
On remand, the trial court imposed the same sentence, and
Vinson again appealed. On November 8, 2016, while Vinson’s
second appeal was pending, the voters passed Proposition 57, The
Public Safety and Rehabilitation Act of 2016 (Cal. Const., art. I,
§ 32), which reformed the process by which criminal cases may be
filed against juveniles in criminal courts. In supplemental
briefing, Vinson, who was 16 years old at the time of the offenses,
argued Proposition 57 applied retroactively to his case. We
rejected Vinson’s argument without resolving the retroactivity of
Proposition 57 generally, concluding Vinson’s judgment of
conviction was final prior to enactment of Proposition 57 because
the time to petition for a writ of certiorari in the United States
Supreme Court had passed with respect to Vinson’s judgment of
conviction, even though we had remanded for resentencing and
Proposition 57 had modified “state criminal procedures” with
respect to filing in juvenile court. (People v. Vinson (Feb. 8, 2017,
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B257225) [nonpub. opn.] (Vinson II).)1 The California Supreme
Court again denied review.
On February 1, 2018 the Supreme Court in People v.
Superior Court (Lara) (2018) 4 Cal.5th 299, 303-304 (Lara)
applied the “inference of retroactivity” under In re Estrada (1965)
63 Cal.2d 740 (Estrada) to Proposition 57, holding the law applies
to all juveniles charged directly in adult court whose judgments
were not final at the time Proposition 57 was enacted.
On July 14, 2021 Vinson filed a petition for writ of habeas
corpus in this court seeking relief under Lara. Although we
summarily denied the petition, the Supreme Court granted
Vinson’s petition for review, directing this court to vacate our
prior order denying the petition for writ of habeas corpus and to
“reconsider the cause in light of [Lara].” (In re Vinson (Sept. 15,
2021, S270010).) On September 22, 2021 we issued an order to
show cause why relief should not be granted. The People filed a
return, and Vinson filed a traverse.
Vinson contends, the People concede, and we agree Vinson
is entitled to a retroactive transfer hearing in the juvenile court
under Proposition 57. We now grant the petition.
1 We also concluded Vinson’s contention his sentence violated
the Eighth Amendment had been rendered moot by the
Legislature’s enactment of Penal Code section 3051, which
entitled Vinson to a youth offender parole hearing with a
meaningful opportunity for release after 25 years of
incarceration. However, we remanded to the trial court to afford
Vinson an opportunity pursuant to People v. Franklin (2016)
63 Cal.4th 261 to make a record of youth-related mitigating
circumstances for purposes of a future youth offender parole
hearing. (Vinson II, B257225.) Further undesignated statutory
references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial2
On the evening of October 30, 2009, at a homecoming
football game at Wilson High School in Long Beach, Vinson, a
member of the Baby Insane clique of the Insane Crips gang,
encountered members of a rival gang, the Rolling Twenties Crips,
including Marcus Moore and Brad Van. Students Melody Ross
and Tori R. were sitting on the curb nearby. As Vinson and
fellow gang member Nicholas Campbell approached their rivals,
both said “Babies.” Moore and someone else responded,
“Twenties.” Vinson then fired a handgun four times in Moore’s
direction, killing Ross and wounding Moore and Van.
Vinson was 16 years old at the time of the shooting. He
testified he had been a member of the Rolling Twenties Crips
street gang before switching to the Baby Insane Crips. A person
can be killed for switching gangs. Vinson carried a gun because
he was always in fear for his life and he had been shot at 20
times and beaten up for switching gangs. Vinson testified he shot
his gun only after seeing Van point a gun in his direction. Vinson
did not aim at Ross or intend to kill her. Moore admitted he had
made threatening gang gestures at Vinson in the past and
brought a concealed and loaded handgun to the game.
B. The Verdict and Sentencing
The jury convicted Vinson of the first degree murder of
Ross (Pen. Code, § 187, subd. (a); count 1), the attempted willful,
deliberate, and premeditated murders of Moore and Van (§§ 187,
2 We take the discussion of the evidence at trial from Vinson
I, supra, B238043 and Vinson II, supra, B257225.
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subd. (a), 664; counts 2 and 3), and the attempted voluntary
manslaughter of Tori R. (§ 192, subd. (a), 664; count 4). The jury
also found true the allegations Vinson personally and
intentionally discharged a firearm causing great bodily injury as
to counts 1, 2, and 3 (§ 12022.53, subds. (b), (c), & (d)), Vinson
personally used a firearm in the commission of count 4
(§ 12022.5, subd. (a)), and each crime was committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
The trial court sentenced Vinson to 130 years to life plus a
determinate term of 25 years six months.
DISCUSSION
A. Proposition 57
“Proposition 57, passed in the November 2016 general
election . . . , requires prosecutors to commence all cases involving
a minor in juvenile court.” (O.G. v. Superior Court of Ventura
County (2021) 11 Cal.5th 82, 87 (O.G.); accord, Lara, supra,
4 Cal.5th at pp. 305-306 [“‘Among other provisions, Proposition
57 amended the Welfare and Institutions Code so as to eliminate
direct filing by prosecutors.’”]; J.N. v. Superior Court (2018)
23 Cal.App.5th 706, 711 [“Proposition 57 terminated the
prosecutor’s ability to file a criminal complaint against a juvenile
in the criminal court without first obtaining authority from a
juvenile court judge to treat the juvenile as an adult.”].)
Proposition 57 became effective November 9, 2016. (People v.
Lizarraga (2020) 56 Cal.App.5th 201, 208.) Under Proposition
57, as amended by Senate Bill No. 1391 (2017-2018 Reg. Sess.),
prosecutors may move to transfer the 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.)
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B. Retroactivity
“In order to determine if a law is meant to apply
retroactively, the role of a court is to determine the intent of the
Legislature, or in the case of a ballot measure, the intent of the
electorate.” (Lara, supra, 4 Cal.5th at p. 307; accord, People v.
Conley (2016) 63 Cal.4th 646, 656.) In Estrada, supra, 63 Cal.2d
740 at pages 742 to 744, the Supreme Court held that statutory
amendments that mitigate punishment for an offense apply
retroactively to a petitioner who at the time of enactment had
committed the offense but had not yet been sentenced. The court
reasoned, “When the Legislature amends a statute so as to lessen
the punishment it has obviously expressly determined that its
former penalty was too severe and that a lighter punishment is
proper as punishment for the commission of the prohibited act. It
is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty
now deemed to be sufficient should apply to every case to which it
constitutionally could apply. The amendatory act imposing the
lighter punishment can be applied constitutionally to acts
committed before its passage provided the judgment convicting
the defendant of the act is not final.” (Id. at p. 745.) Thus, under
Estrada, “‘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, at p. 308; accord, People v. Ramirez, supra,
71 Cal.App.5th at p. 994.)
Applying this rule in Lara, the Supreme Court concluded
Proposition 57 constituted an ameliorative change to the criminal
law, which the voters intended “‘to extend as broadly as
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possible.’” (Lara, supra, 4 Cal.5th at p. 309.) Accordingly,
Proposition 57 applies retroactively to “all juveniles charged
directly in adult court whose judgment was not final at the time
it was enacted.” (Lara, at p. 304.) 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.)
C. Vinson Is Entitled to a Retroactive Transfer Hearing under
Proposition 57
Vinson contends, the People concede, and we agree Vinson’s
judgment was not final at the time Proposition 57 took effect on
November 9, 2016 because Vinson’s appeal from the sentence
imposed after our remand in Vinson I was still pending. Because
Vinson had not exhausted direct review of his sentence when
Proposition 57 was enacted, his case was not yet final for
purposes of retroactive application of the law.
In Vinson II we rejected Vinson’s Proposition 57 argument
on the basis Vinson’s “judgment of conviction was ‘final’ for
purposes of retrospective application of the changes in state
criminal procedures embodied in Proposition 57 when the time
for petition for certiorari expired as to his original appeal
challenging his conviction,” although the appeal of his sentence
was still pending. (Vinson II, supra, B257225.) However, as
subsequent Supreme Court case law has made clear, for purposes
of application of the Estrada rule of retroactivity to a “‘judgment
of conviction,’” “the terms ‘judgment’ and ‘“sentence”’ are
generally considered ‘synonymous’ [citation], and there is no
‘judgment of conviction’ without a sentence.” (People v.
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McKenzie (2020) 9 Cal.5th 40, 46 [defendant was entitled to
benefit of ameliorative statute that took effect during the
pendency of his appeal from revocation of probation and
imposition of a state prison sentence previously suspended
because his criminal proceeding was not final under Estrada at
the time new statute took effect]; accord, People v. Esquivel,
(2021) 11 Cal.5th 671, 678 [applying McKenzie in holding
defendant was entitled to benefit of ameliorative statute where
he was placed on probation with execution of an imposed state
prison sentence suspended because he could still obtain direct
review of the order revoking probation and imposing the state
prison sentence].)
Thus, the proper question at the time of Vinson II was
whether Vinson’s “criminal prosecution or proceeding concluded
before the ameliorative legislation took effect.” (People v.
McKenzie, supra, 9 Cal.5th at p. 46; accord, People v. Esquivel,
supra, 11 Cal.5th at p. 678.) It did not. Because Vinson’s appeal
challenging his resentencing was pending when Proposition 57
became effective, the criminal proceeding against him had not
concluded. Accordingly, his judgment was not final for purposes
of retroactivity under Estrada when Proposition 57 took effect,
and he is entitled to a retroactive transfer hearing in the juvenile
court.
Further, the Lara court has clarified that the proper
approach toward retroactive application of Proposition 57 is for
the juvenile court to hold a juvenile transfer hearing, and if the
proceeding is not transferred to adult court, the juvenile court
should treat the convictions as juvenile adjudications and impose
an appropriate disposition. (Lara, supra, 4 Cal.5th at pp. 310-
311.) The court observed, “‘Nothing is to be gained by having a
“jurisdictional hearing,” or effectively a second trial, in the
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juvenile court,’” but rather, “‘the potential benefit of a juvenile
transfer hearing is that it may, in fact, dramatically alter a
minor’s effective sentence or “juvenile disposition” for past
criminal conduct.’” (Ibid.) We grant Vinson’s petition for habeas
corpus, conditionally reverse his sentence, and direct the superior
court to refer the case to the juvenile court to apply Proposition
57 to Vinson’s case consistent with this approach.
DISPOSITION
Vinson’s petition for a writ of habeas corpus is granted, and
his sentence is conditionally reversed. The case is remanded to
the superior court with directions to refer the case to the juvenile
court to conduct a juvenile transfer hearing to determine whether
it would have transferred the case to adult criminal court had it
originally been filed in juvenile court in accordance with current
law. If the juvenile court determines it would not have
transferred the case to criminal court under current law, it shall
treat Vinson’s convictions as juvenile adjudications as of the date
Vinson was convicted and impose an appropriate disposition. If
the juvenile court determines it would have transferred the case
to adult criminal court, it shall transfer the case back to the
superior court, which shall then reinstate Vinson’s sentence.
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
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