People v. Marsh CA3

Filed 3/3/23 P. v. Marsh CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent, C088553
v. (Super. Ct. No. CRF132418)
DANIEL WILLIAM MARSH, ON TRANSFER
Defendant and Appellant.
When he was 15 years old, defendant Daniel William Marsh murdered two
victims and mutilated the bodies. (People v. Marsh (2018) 20 Cal.App.5th 694, 696-697
(Marsh I).) Tried in adult criminal court, a jury convicted him on two counts of first
degree special circumstance murder and the trial court sentenced him to 52 years to life
in prison.
In defendant’s first appeal, this court conditionally reversed the judgment and
directed the juvenile court to conduct a transfer hearing to determine if defendant should
be transferred to adult criminal court or retained in juvenile court pursuant to Proposition
57, the Public Safety and Rehabilitation Act of 2016, which had become effective while
defendant’s appeal was pending. (Marsh I, supra, 20 Cal.App.5th 694.) On remand, the
juvenile court granted the People’s motion to transfer defendant to adult criminal court
1
and the judgment was reinstated in October 2018 without any change, as required by this
court’s disposition in Marsh I.
After the judgment was reinstated, Senate Bill No. 1391 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1012, § 1 (Senate Bill 1391)) became effective on January 1, 2019.
With exceptions not applicable here, it eliminated the authority of a prosecutor to seek
transfer to adult criminal court of a minor who was 14 or 15 years old at the time of an
offense. (Welf. & Inst. Code, § 707, subd. (a); Stats. 2018, ch. 1012, § 1.)
Defendant purported to appeal from the reinstated judgment, asserting that Senate
Bill 1391 applied to him because his case was not yet final. This court dismissed the
appeal, concluding defendant’s judgment was final before Senate Bill 1391 went into
effect. (People v. Marsh (Sept. 8, 2021, C088553) [nonpub. opn.] (Marsh II).)
The California Supreme Court subsequently granted review in Marsh II and
transferred the matter back to us with directions to vacate our opinion and reconsider the
cause in light of People v. Padilla (2022) 13 Cal.5th 152 (Padilla). We vacated our
decision.
In supplemental briefing after transfer, the parties disagree on whether the decision
in Padilla controls here. Padilla involved a juvenile offender who was originally
sentenced in criminal court before Proposition 57 was enacted, but whose judgment
became nonfinal when his sentence was vacated on habeas corpus and the case was
returned to the trial court for imposition of a new sentence. (Padilla, supra, 13 Cal.5th at
p. 158.) The California Supreme Court held that under those circumstances, Proposition
57 applied on resentencing. (Padilla, at p. 158.)
Defendant argues Padilla is on point, but the People claim Padilla is
distinguishable because here defendant’s sentence was never vacated and the trial court
never regained resentencing authority.
We conclude Padilla is inapposite. In Padilla, the defendant’s sentence was
vacated, the trial court regained the jurisdiction and duty to consider what punishment
2
was appropriate for him, and the defendant regained the right to appeal whatever new
sentence was imposed, thereby rendering his judgment nonfinal. (Padilla, supra, 13
Cal.5th at pp. 161-162.) Here, however, the court in Marsh I only conditionally reversed
the judgment, the trial court did not regain the jurisdiction or duty to resentence (because
the juvenile court determined that transfer to adult court was appropriate), the trial court
reinstated the judgment without change as this court’s disposition in Marsh I required it
to do under those circumstances, and defendant did not regain a right to appeal a new
sentence.
Because defendant’s judgment was final before Senate Bill 1391 went into effect,
we will dismiss this appeal.
BACKGROUND
In 2013, defendant was one month shy of his 16th birthday when he “stalked a
Davis neighborhood at night and randomly selected the home of the two victims to satisfy
a long-standing (and oft-expressed) desire to kill, after which he mutilated their bodies.”
(Marsh I, supra, 20 Cal.App.5th at pp. 696-697.)
An information filed directly in adult criminal court charged defendant with two
counts of murder (Pen. Code, § 187, subd. (a))1 and alleged various enhancements and
special circumstances. (Marsh I, supra, 20 Cal.App.5th at p. 696.) A jury found
defendant guilty of two counts of first degree murder committed while personally using
a deadly weapon, and sustained three special circumstance allegations: that defendant
committed multiple murder (§ 190.2, subd. (a)(3)), by means of torture (§ 190.2,
subd. (a)(18)), while lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced
defendant to 52 years to life in prison, consisting of 25 years to life for each murder plus
an additional year for each weapon enhancement.
1 Undesignated statutory references are to the Penal Code.
3
Defendant appealed his convictions and in 2018 this court rejected his argument
regarding the applicable insanity standard but conditionally reversed and remanded the
matter with directions to hold a transfer hearing in light of newly enacted Proposition 57.
The new law eliminated a prosecutor’s ability to file charges directly in adult court,
instead requiring the prosecutor to commence an action in juvenile court and then seek to
transfer the matter to adult criminal court if appropriate. (See Marsh I, supra,
20 Cal.App.5th 694; see also People v. Superior Court (Alexander C.) (2019)
34 Cal.App.5th 994, 997 (Alexander C.); People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 303 (Lara) [Proposition 57 applies retroactively to cases not yet final on
appeal]; Welf. & Inst. Code, § 707, subd. (a)(1).)2 The California Supreme Court denied
review (case No. S247864) and a remittitur issued on May 30, 2018.
The Yolo County District Attorney then filed a petition under Welfare and
Institutions Code section 602 and a motion to transfer the case to adult criminal court.
The juvenile court granted the transfer motion and the judgment was reinstated on
October 24, 2018. Defendant filed a writ petition in this court (case No. C088306)
challenging the juvenile court’s orders denying his motion to continue the transfer
hearing until after Senate Bill 1391 went into effect and transferring him to adult criminal
court. This court summarily denied the writ petition. Senate Bill 1391 became effective
on January 1, 2019. The California Supreme Court denied review on February 13, 2019.
When defendant purported to appeal from the reinstated judgment, this court
dismissed the appeal, concluding defendant’s judgment was final before Senate Bill 1391
went into effect. (Marsh II, supra, C088553.) The California Supreme Court granted
review and transferred the matter back to us with directions to vacate our opinion and
2 This court treated defendant’s request for judicial notice of the appellate record in his
first appeal, case No. C078999, as a request to incorporate the records of those
proceedings, and granted the motion.
4
reconsider the cause in light of Padilla, supra, 13 Cal.5th 152. We vacated our decision
and we have considered the supplemental briefing after transfer.
DISCUSSION
Defendant argues Senate Bill 1391 applies to him under In re Estrada (1965)
63 Cal.2d 740, 742-746 (Estrada) because his case is not yet final. We review this
question of law de novo. (See People v. Arroyo (2016) 62 Cal.4th 589, 593.)3
A
The decision whether to try a minor in juvenile court or adult criminal court can
have significant consequences. (Lara, supra, 4 Cal.5th at p. 306.) While persons
convicted of serious crimes in adult court can be punished with long prison sentences,
juveniles tried in juvenile court generally receive more lenient treatment, with shorter
periods of confinement and a focus on rehabilitation. (Id. at pp. 303, 306; see K.C. v.
Superior Court (2018) 24 Cal.App.5th 1001, 1011.)
Historically, only those minors at least 16 years of age at the time of the offense
could be tried in adult criminal court, and then only after a judicial determination that the
minor was unfit to be dealt with under juvenile court law. (K.L., supra, 36 Cal.App.5th at
p. 536-537.) The minimum transfer age remained at 16 for over three decades, until
1994, when the Legislature lowered it to 14 for certain enumerated serious or violent
felonies. (B.M. v. Superior Court (2019) 40 Cal.App.5th 742, 750-751.) Under the 1994
legislation, a minor as young as 14 years of age could be prosecuted in adult criminal
court after a judicial determination of unfitness for juvenile adjudication. (K.L., at
p. 537.)
3 The Yolo County District Attorney filed an amicus brief agreeing with the People but
also urging us to conclude that Senate Bill 1391 is unconstitutional because it does not
further the intent and purpose of Proposition 57. Such a constitutional challenge was
recently rejected by the California Supreme Court in O.G. v. Superior Court (2021)
11 Cal.5th 82, 87.
5
In 2000, California voters passed Proposition 21, the Gang Violence and Juvenile
Crime Prevention Act, which broadened the circumstances in which minors 14 years of
age and older could be prosecuted in adult criminal court. (K.L., supra, 36 Cal.App.5th at
p. 537; B.M. v. Superior Court, supra, 40 Cal.App.5th at p. 751.) Proposition 21
permitted, and in some cases required, prosecutors to charge minors aged 14 or 15
directly in adult criminal court without a judicial determination of unfitness. (Alexander
C., supra, 34 Cal.App.5th at p. 997; see Lara, supra, 4 Cal.5th at p. 305.)
In 2016, voters eliminated some of the changes made by Proposition 21 through
the enactment of Proposition 57. (Alexander C., supra, 34 Cal.App.5th at p. 997.) With
respect to juveniles, Proposition 57 “ ‘largely returned California to the historical rule’ ”
by eliminating prosecutors’ ability to file charges against juveniles directly in criminal
court and limiting the circumstances under which a minor could be transferred to criminal
court by a judge. (Id. at p. 998.) Minors aged 14 or 15 could still be tried in criminal
court for specified serious or violent offenses, but only after a juvenile court judge
conducted a transfer hearing and decided the minor was unfit for juvenile court. (Lara,
supra, 4 Cal.5th at pp. 305, 308.)
Proposition 57 permits amendments without voter approval so long as the changes
are consistent with, and further, the intent of the act. (K.L., supra, 36 Cal.App.5th at
p. 535.) In 2018, the Legislature enacted Senate Bill 1391 (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).)” (Alexander C.,
supra, 34 Cal.App.5th at p. 998.)
B
We agree with the parties that Senate Bill 1391 applies retroactively to nonfinal
judgments under Estrada. (People v. Superior Court (I.R.) (2019) 38 Cal.App.5th 383,
6
386; C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1038; see Lara, supra, 4 Cal.5th
at pp. 303-304.) The question is whether defendant’s judgment was final prior to the
effective date of Senate Bill 1391. We consider Padilla in addressing this issue.
Defendant originally argued that because his appeal was still pending, his case was
not yet final. At the very least, he argued the judgment was not final until February 13,
2019, when the Supreme Court denied review of his writ challenging the transfer order
after remand. Under either scenario, he claimed Senate Bill 1391 requires reversal of the
criminal judgment and remand to the juvenile court for disposition. Defendant has now
reasserted certain arguments in his supplemental briefing. In addition, he references
Padilla and argues it does not matter whether the vehicle for suspension of judgment is
vacatur, conditional vacatur, reversal, or conditional reversal, suggesting this court’s
conditional reversal in Marsh I was effectively the same, for purposes of Estrada
retroactivity, as the vacated judgment in Padilla.
The People disagree. They argue defendant’s judgment became final 90 days after
the Supreme Court denied review in Marsh I; the conditional reversal was not the same
as the order involved in Padilla in which the judgment was vacated and the matter was
remanded for resentencing; the Marsh I disposition defined the entirety of the trial court’s
jurisdiction to act on remand and was, in effect, a conditional affirmance if the juvenile
court found transfer to adult court appropriate; once the juvenile court found transfer
appropriate, the trial court only had authority to reinstate the judgment without change;
and because the reinstated judgment had already been conditionally affirmed by this
court, there was no new judgment from which to appeal. According to the People,
Padilla is distinguishable.
The defendant in Padilla was 16 years old when he murdered his mother and
conspired to kill his stepfather. (Padilla, supra, 13 Cal.5th at p. 159.) He was tried as an
adult and sentenced to life without the possibility of parole (LWOP). (Ibid.) His
sentence was subsequently vacated twice based on intervening United States Supreme
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Court precedent regarding juvenile LWOP sentences. (Ibid.) About two weeks after his
sentence was vacated for the second time, the California electorate approved Proposition
57, which “amended the law governing the punishment of juvenile offenses in adult
criminal court by requiring hearings to determine whether the offenses should instead be
heard in juvenile court.” (Id. at p. 158.) Estrada’s inference of retroactivity applies to
the proposition’s juvenile provisions. (Padilla, at p. 158.)
In Padilla the California Supreme Court considered whether Proposition 57
applied retroactively to defendant on resentencing after his original sentence -- which had
become final -- was vacated in a habeas proceeding. (Padilla, supra, 13 Cal.5th at pp.
158, 163.) The Supreme Court held that Proposition 57 applied (id. at p. 158), reasoning:
“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.) The judgment in his
case “thus became nonfinal,” and there was “no ‘constitutional obstacle’ to applying the
Estrada presumption to his case. [Citation.]” (Padilla, at p. 162.)
The procedural posture in the instant case is different from Padilla. In Marsh I,
this court issued the following disposition: “The judgment of the criminal court is
conditionally reversed and the matter remanded to the juvenile court with directions to
hold a juvenile transfer hearing to determine defendant’s suitability for treatment in
juvenile or criminal court within 90 days of the issuance of our remittitur. If the juvenile
court determines that defendant is the proper subject of criminal proceedings, it shall
reinstate the criminal judgment. If the juvenile court finds that it would not have
transferred defendant to a court of criminal jurisdiction, then it shall deem defendant’s
convictions to be juvenile adjudications and conduct a dispositional hearing within its
usual time frame.” This court’s conditional reversal in Marsh I and remand for a transfer
hearing did not disturb defendant’s murder convictions or vacate his sentence. (Andrew
M. v. Superior Court (2020) 43 Cal.App.5th 1116, 1126.) The trial court did not regain
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the jurisdiction or duty to resentence, because the juvenile court determined on remand
that transfer to adult court was appropriate. The judgment was reinstated without change
as required by this court’s disposition in Marsh I, and defendant did not regain a right to
appeal a new sentence. Defendant was returned to the custody of the Department of
Corrections and Rehabilitation to serve the remainder of his originally imposed sentence.
“[T]he terms of the remittitur define the trial court’s jurisdiction to act. ‘The order
of the appellate court as stated in the remittitur, “is decisive of the character of the
judgment to which the appellant is entitled.” ’ ” (Snukal v. Flightways Manufacturing,
Inc. (2000) 23 Cal.4th 754, 774, fn. 5.) Here, the legal effect of the disposition, as
defendant concedes, was a conditional affirmance of the judgment should the juvenile
court find transfer appropriate. After holding the transfer hearing, the juvenile court
found that transferring defendant to adult criminal court was proper, and, as directed by
our disposition, the judgment was reinstated. (§ 1265, subd. (a) [“After the certificate of
the judgment has been remitted to the court below, . . . all orders necessary to carry the
judgment into effect shall be made by the court to which the certificate is remitted”];
People v. Dutra (2006) 145 Cal.App.4th 1359, 1366 [upon issuance of remittitur, “the
trial court is revested with jurisdiction of the case, but only to carry out the judgment as
ordered by the appellate court,” italics omitted].)
At the time the juvenile court granted the transfer order,4 the order was only
reviewable by a petition for extraordinary writ. (Cal. Rules of Court., rule 5.770(g).)5
Defendant filed a writ petition challenging the juvenile court’s transfer order, this court
4 Effective January 1, 2022, a change in the law (Stats. 2021, ch. 195, § 1) authorizes an
appeal of an order granting transfer from juvenile to criminal court. Defendant concedes
the new law is not applicable here.
5 Undesignated rules references are to the California Rules of Court.
9
summarily denied the petition, and the California Supreme Court denied review.
Defendant’s challenge to the transfer order is not before this court on direct appeal.
Defendant cited People v. Wycoff (2008) 164 Cal.App.4th 410, but that case is
inapposite. The court in Wycoff held that when a matter is remanded for the trial court to
conduct a proper Pitchess hearing, the defendant may appeal from the reinstated
judgment for the limited purpose of challenging the Pitchess findings, although the
defendant cannot relitigate issues that were or could have been decided in the first appeal.
(Id. at p. 415.) Unlike the Pitchess context in Wycoff, here defendant could not challenge
the transfer order by direct appeal. (Rule 5.770(g).)
It is true that when the California Supreme Court denied review of this court’s
summary denial of the writ petition on February 13, 2019, it indicated the denial was
without prejudice to any relief under Senate Bill 1391 to which defendant might be
entitled on direct appeal after Senate Bill 1391’s effective date. (See D.M. v. Superior
Court (2019) Cal. LEXIS 1031, S253054.) But we have concluded defendant is not
entitled to such relief on direct appeal due to the finality of his judgment which, as we
have explained, is procedurally separate and apart from the denial of writ relief.
Defendant’s continued reliance on People v. McKenzie (2020) 9 Cal.5th 40 is also
misplaced. In that case the trial court suspended imposition of sentence and placed the
defendant on probation, and the defendant did not appeal from the order granting
probation. Nevertheless, the California Supreme Court held that the defendant could seek
the benefit of ameliorative statutory amendments during a later appeal from a judgment
revoking probation and imposing sentence. (Id. at p. 43.) The Court held that in such a
context defendant could seek the benefit of the change in the law that took effect while
his appeal was pending. But the procedural circumstances of McKenzie were different
than those here, and cases are not authority for propositions not considered. (Loeffler v.
Target Corp. (2014) 58 Cal.4th 1081, 1134.)
10
People v. Esquivel (2021) 11 Cal.5th 671, cited by defendant, is also
distinguishable. In that case the trial court imposed sentence but suspended its execution
and placed the defendant on probation. (Id. at p. 673.) The California Supreme Court
held that “a case in which a defendant is placed on probation with execution of an
imposed state prison sentence suspended is not yet final for [Estrada] purpose[s] if the
defendant may still timely obtain direct review of an order revoking probation and
causing the state prison sentence to take effect.” (Ibid.) The court reasoned that the
defendant’s case “was not final, for purposes of the Estrada presumption, because the
‘criminal prosecution or proceeding’ brought against him was not complete when the
ameliorative legislation at issue took effect.” (Id. at p. 678.) The court emphasized that
the defendant in Esquivel “had not exhausted direct review of the order causing his
carceral punishment to take effect. The time for him to seek that review had not
expired.” (Ibid.)
Unlike the circumstances in Esquivel, here the execution of defendant’s sentence
was never stayed, he was never placed on probation, and he did exhaust review of the
reinstated judgment. Defendant never filed a petition for writ of certiorari after the
California Supreme Court denied review.6
There is no indication the Legislature intended Senate Bill 1391 to apply to a final
judgment. “While we recognize that the Legislature may expressly avail defendants
whose judgments are final of the benefits of newly enacted laws” (People v. Chamizo
(2019) 32 Cal.App.5th 696, 700-701 [finding Senate Bill No. 180 did not apply
6 Defendant argues he may still seek review in the United States Supreme Court because
he raised a federal issue in Marsh I. But it appears the time to file a petition for certiorari
has passed. (See U.S. Supreme Ct. Rules, rule 13.1 [“A petition for a writ of certiorari
seeking review of a judgment of a lower state court that is subject to discretionary review
by the state court of last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review”].)
11
retroactively to final judgments]), defendant points to nothing indicating that the
Legislature intended such a result. (Compare Proposition 36 & Proposition 47; People v.
Rascon (2017) 10 Cal.App.5th 388, 394-395 [Proposition 64 provides mechanism for
resentencing or dismissing all judgments, including those that are final].)
Because the trial court’s reinstatement of the final judgment did not affect
defendant’s substantial rights and is not appealable, the appeal must be dismissed.
(§ 1237; People v. Fuimaono (2019) 32 Cal.App.5th 132, 135 [appeal from
nonappealable postjudgment order must be dismissed; trial court lacked jurisdiction to
grant defendant’s sentencing request where conviction was final, and denial of motion
could not have affected defendant’s substantial rights and was therefore not appealable];
People v. Chlad (1992) 6 Cal.App.4th 1719, 1726 [dismissing appeal after ruling the trial
court lacked jurisdiction to modify the restitution fines].)
DISPOSITION
The appeal is dismissed.
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
RENNER, J.
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