People v. Lizarraga

Filed 10/22/20
FOR PUBLICATION IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299939
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA130084)
v.
JESUS LIZARRAGA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Jesus Lizarraga was 17 years old when he shot
a rival gang member; he was tried and sentenced as an adult.
We affirmed his initial appeal. (People v. Lizarraga (Dec. 7, 2015,
B258261) [nonpub. opn.].) After the first appeal was final,
defendant filed a petition for writ of habeas corpus under People
v. Franklin (2016) 63 Cal. 4th 261 (Franklin) and requested an
opportunity to make a record relevant to his eventual youth
offender parole hearing. The trial court granted the petition and
set a date for an evidentiary hearing. Lizarraga next proceeded
to file a motion in the trial court for a transfer hearing in juvenile
court pursuant to the newly-enacted Public Safety and
Rehabilitation Act of 2016 (Proposition 57). The trial court
denied the motion, finding Lizarraga’s case was final and
Proposition 57 was not retroactive.
On this second appeal, we conclude that Lizarraga’s case
was final when he requested the transfer hearing, and
Proposition 57 does not apply to final judgments. We also find
that Lizarraga’s equal protection challenge is without merit. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, a jury convicted Lizarraga of second degree
murder and found that he personally used a firearm in
connection with the shooting of a rival gang member. The trial
court sentenced him to 40 years to life in state prison. We
affirmed the judgment as modified.1 The California Supreme
Court denied review, and we issued the remittitur on March 9,
1 We modified the judgment to impose and stay two lesser
firearm enhancements.
2
2016. On March 29, 2016, the trial court modified the judgment
in keeping with the remittitur and terminated proceedings.
Eight months later, on November 8, 2016, California voters
passed Proposition 57, prohibiting prosecutors from charging
juveniles with crimes directly in adult criminal court.
Approximately a year and a half after that, in July 2018,
Lizarraga filed a petition for writ of habeas corpus seeking a
Franklin hearing which the trial court granted.2
Prior to the scheduled hearing, Lizarraga filed a “Notice of
Motion and Motion to Remand Case to Juvenile Court in light of
Proposition 57. Proposition 57, “The Public Safety and
Rehabilitation Act of 2016,” among other things, repealed the
statutory provision permitting the direct filing of juvenile cases
in adult criminal court. Under Proposition 57, once the case is in
juvenile court, “if the prosecution wishes to try the juvenile as an
adult, the juvenile court must conduct what we will call a
‘transfer hearing’ to determine whether the matter should remain
in juvenile court or be transferred to adult court.” (People v.
Superior Court (Lara) (2018) 4 Cal. 5th 299, 303 (Lara).)
The People opposed the motion to transfer, arguing that
Lizarraga’s case was already final when Proposition 57 took
effect, and he was not entitled to a transfer hearing under Lara.
2 In Franklin, the court held that a juvenile offender must be
given the opportunity at a hearing to present evidence regarding
the juvenile’s personal characteristics and circumstances at the
time of the offense. This evidence becomes part of the record and
may be considered at a future youth offender parole hearing.
(Franklin, supra, 63 Cal.4th at p. 283.) As far as we can tell from
the record, the Franklin hearing went forward as scheduled. On
appeal, defendant does not assign error to the Franklin hearing
itself.
3
The trial court denied the motion, because it found that “the
Franklin hearing is not a resentencing,” and “this particular case
has been final for quite some time.” Lizarraga timely appealed.
DISCUSSION
Lizarraga makes three arguments on appeal: (1) he was
entitled to a transfer hearing under Proposition 57 because his
case was not final, (2) even if his case was final, Proposition 57
still applies; and (3) the denial of a Proposition 57 transfer
hearing to youth offenders with final sentences is a violation of
equal protection clauses of the state and federal constitutions.
1. Proposition 57
“ ‘Historically, a child could be tried in criminal court only
after a judicial determination, before jeopardy attached, that he
or she was unfit to be dealt with under juvenile court law.’ ”
(Lara, supra, 4 Cal.5th at p. 305.) “Amendments to former
sections 602 and 707 in 1999 and 2000, some by initiative,
changed this historical rule. Under the changes, in specified
circumstances, prosecutors were permitted, and sometimes
required, to file charges against a juvenile directly in criminal
court, where the juvenile would be treated as an adult.” (Ibid.)
Proposition 57 largely returned California to its historical
rule. (Lara, supra, 4 Cal.5th at p. 305.) “Proposition 57 amended
the Welfare and Institutions Code so as to eliminate direct filing
by prosecutors. Certain categories of minors . . . can still be tried
in criminal court, but only after a juvenile court judge conducts a
transfer hearing to consider various factors such as the minor’s
maturity, degree of criminal sophistication, prior delinquent
history, and whether the minor can be rehabilitated.” (Id. at
pp. 305–306.)
4
In 2018, our Supreme Court decided Lara, which held that
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 p. 304.) As to juveniles that had cases
pending on appeal prior to the passage of Proposition 57, the
defendant’s conviction and sentence are to be conditionally
reversed and the juvenile court is to conduct a transfer hearing.
(Id. at p. 310.)
2. Lizarraga’s Judgment Was Final
Lizarraga argues that his case was not final because the
trial court granted his habeas petition and scheduled a Franklin
hearing. As Proposition 57 applies retroactively to cases that are
not yet final, he contends he is entitled to a transfer hearing.
Our response is threefold: First, the Franklin hearing
aside, Lizarraga’s case was final in June 2016, upon expiration of
the time to seek review in the United States Supreme Court. A
“judgment is not final until the time for petitioning for a writ of
certiorari in the United States Supreme Court has passed.”
(People v. Vieira (2005) 35 Cal. 4th 264, 306; see also In re Pine
(1977) 66 Cal. App. 3d 593, 595, citing In re Dabney (1969)
71 Cal. 2d 1, 11 [a “conviction only [becomes] final for retroactivity
purposes . . . when the period during which [the defendant] might
have applied for certiorari ended.”) The United States Supreme
Court, rule 13 provides that a petition for writ of certiorari is
timely filed within 90 days after entry of judgment of a state
court of last resort. The record does not show that Lizarraga filed
a petition for writ of certiorari. His judgment was thus final on
June 7, 2016—90 days after the California Supreme Court denied
review. Lizarraga nearly concedes as much.
5
Second, we find inapt Lizarraga’s reliance on People v.
Hargis (2019) 33 Cal. App. 5th 199 (Hargis). Hargis held that a
defendant was entitled to a transfer hearing after he appealed his
conviction and his case was remanded for a Franklin hearing.
Proposition 57 was enacted one week after the appellate opinion
was filed affirming the judgment and remanding the matter. (Id.
at p. 202.) The Hargis court found that the case was not yet
final. In addressing the applicability of Proposition 57, the Court
of Appeal concluded “it is indisputable that defendant, who was
16 years old at the time of the offenses of which he was convicted,
is entitled to a juvenile fitness/transfer hearing pursuant to
Proposition 57, as he was charged directly in adult court and his
judgment was not final at the time the new law was enacted.”
(Id. at pp. 204–205.)
The present case is quite different. The Hargis court
correctly observed that the case was not final. The Court of
Appeal had remanded the matter for a Franklin hearing, i.e.
further proceedings were to take place in the trial court in the
very same case that had been appealed. Here, Lizarraga filed a
petition for habeas corpus some four years after his direct appeal
was final. He essentially argues that whenever a Franklin
hearing is scheduled – even years after the case has become final
– the finality is undone and all intervening changes in the law
are in play. Hargis does not say that. To the extent Hargis could
be read in such a manner, we respectfully disagree.
Third, we reject defendant’s argument that the grant of a
Franklin hearing essentially created a new sentencing hearing
thus effectively vacating the earlier finality. We acknowledge
that a grant of habeas corpus to resentence a defendant may
change the finality date for purposes of retroactivity of later
6
passed ameliorative laws. Lizarraga relies on this principle when
he cites to People v. Garcia (2018) 30 Cal. App. 5th 316, where the
defendant was ordered resentenced and then successfully applied
for a transfer hearing. When a defendant is resentenced, there is
no longer a final judgment of conviction because there is no
existing sentence. (See People v. Buycks (2018) 5 Cal. 5th 857,
893 [where there is a full resentencing, the court may consider
changes in the law providing for a reduced sentence].) Here,
Lizarraga was not resentenced, instead, the court set only a
limited hearing at which defendant was entitled to present
evidence for use at a future parole hearing. Defendant was not
exposed at the Franklin hearing to any increase in sentence—or
any decrease for that matter.3
3 In his reply brief, Lizarraga acknowledges that Hargis does
not compel reversal: “Appellant fully acknowledges that the
difference between Hargis and the instant case is that, in Hargis,
the direct appeal was still pending when Proposition 57 took
effect.” The procedural posture of the case as described by the
Court of Appeal was: “On defendant’s first appeal, we affirmed
the judgment in its entirety. The California Supreme Court
granted review and remanded the case to us with directions to
vacate our decision and to reconsider the cause in light of People
v. Franklin (2016) 63 Cal. 4th 261, 283–284 (Franklin). We again
affirmed the judgment—expressly including the sentence—but
remanded the matter to the trial court for a determination
whether defendant was afforded sufficient opportunity to make a
record of information relevant to his eventual youth offender
parole hearing and, if not, to afford him that opportunity.”
(Hargis, supra, 33 Cal.App.5th at p. 202.) The focus of the court’s
opinion was whether the trial court was precluded from
conducting a Proposition 57 hearing because it was not
mentioned in the remittitur. There was no discussion that a
7
3. Proposition 57 Does Not Apply to Final Judgments
Lizarraga argues that even if his judgment is final, he is
still entitled to a transfer hearing because Proposition 57 applies
retroactively to all juvenile offenders. He contends that Lara did
not consider this issue but only addressed the retroactivity of
Proposition 57 in relation to cases that were not final. We do not
read Lara so narrowly—the Supreme Court’s opinion established
that Proposition 57 is not fully retroactive.
In Lara, the Court applied an “inference of retroactivity”
pursuant to In re Estrada (1963) 63 Cal. 2d 740 (Estrada) and
held that Proposition 57 applied to defendants whose judgments
were not final. (Lara, supra, 4 Cal.5th at p. 309.) Estrada stands
for the proposition that, “when the Legislature amends a statute
for the purpose of lessening the punishment, in the absence of
clear legislative intent to the contrary, a criminal defendant
should be accorded the benefit of a mitigation of punishment
adopted before his criminal conviction became final.” (In re
Chavez (2004) 114 Cal. App. 4th 989, 999 (Chavez).) In arguing
that we should extend Proposition 57’s application to defendants
whose judgments are final, Lizarraga relies on the following
statement from Chavez: “There is nothing in Estrada that
prohibits the application of revised sentencing provisions to
persons whose sentences have become final if that is what the
Legislature intended or what the Constitution requires.” (Id. at
p. 1000.) Chavez does not assist defendant. There, the appellate
court concluded that the Legislature intended that a new statute
reducing the sentence for filing false tax returns be applied to two
transfer hearing was proper because the Franklin hearing was
the equivalent to resentencing. (Id. at pp. 207–208.)
8
current inmates whose cases were final. (Id. at pp. 991–992.)
The court reviewed the amendment’s extensive legislature
history and held that the conclusion was “unavoidable” that the
Legislature “intended the amendment to apply to persons
sentenced under the anomalous statute.” (Id. at p. 999.)
At most Chavez stands for the proposition that if the
Legislature so intends, an amendment to a criminal statute may
apply to those defendants whose cases are already final, and that
Estrada does not mandate otherwise. Chavez, of course, has
nothing to do with Proposition 57, and preceded Lara by 14 years.
Our Supreme Court has now held that Proposition 57 applies to
those whose convictions are not yet final. Even if the literal
words do not necessarily foreclose a finding that the proposition
applies to those defendants whose cases are final, the fair reading
of the Supreme Court’s holding is that it does not. Finally, if the
Supreme Court left the issue open, Chavez teaches that before a
court can apply a statute retroactively to final judgments, it must
discern a legislative purpose to do so. Lizarraga points to nothing
in the legislative history (the ballot pamphlet) that suggests the
electorate intended to order new transfer hearings for every
juvenile offender convicted in adult court since 1999 (when the
transfer statutes were first changed).
4. There is No Equal Protection Violation
Lizarraga argues that denying him Proposition 57 relief
violates his right to equal protection under the state and federal
constitutions. He contends that giving Proposition 57 only
partial retroactive effect creates two classes of similarly situated
youth offenders: those whose sentences were not yet final on
November 9, 2016 when Proposition 57 went into effect, and
those whose sentences were final on that date. One group of
9
defendants will serve their sentences in state prison; the other
group will have the opportunity to obtain rehabilitative services
in the juvenile system. (See People v. Vela (2018) 21 Cal. App. 5th
1099, 1105 [“There is no ‘sentence,’ per se, in juvenile court.
Rather, a judge can impose a wide variety of rehabilitation
alternatives . . . .”].) In Lizarraga’s view, no compelling state
interest or even a rational basis justifies this unequal treatment.
We reject this claim because our Supreme Court has held
that no “equal protection violation aris[es] from the timing of the
effective date of a statute lessening the punishment for a
particular offense.” (People v. Floyd (2003) 31 Cal. 4th 179, 188
(Floyd).) Floyd considered the retroactivity of Proposition 36,
which “amended state law to require that certain adult drug
offenders receive probation, conditioned on participation in and
completion of an appropriate drug treatment program, instead of
receiving a prison term or probation without drug treatment.”
(Id. at p. 183.)
In Floyd, the defendant was sentenced shortly after
Proposition 36 was passed into law, so his conviction was not yet
final at the time of passage. (Floyd, supra, 31 Cal.4th at p. 183.)
The defendant argued that the ameliorative law was retroactive
to him because his conviction was not final. (Id. at pp. 183–184.)
Alternatively, he argued that to deny application of Proposition
36 to him violated the equal protection of the laws. (Id. at
p. 184.) The Supreme Court disagreed on both counts.
Unlike Lara, where the court would conclude that
Proposition 57 applies to all judgments not yet final, the Supreme
Court in Floyd did not go even that far; instead, it held that the
proposition was prospective only. (Floyd, supra, 31 Cal.4th at
p. 182.) For reasons that are not particularly germane to the
10
present appeal, the court concluded that the proposition itself
stated the voters’ intent to give only a prospective application to
the law.4 (Ibid.) Defendant’s crime had been committed many
years before the passage of Proposition 36.
In Floyd, the defendant’s alternative argument was that to
not apply the proposition to him when his judgment was not final
at the time of passage would violate his equal protection rights.
The Supreme Court was not persuaded. “ ‘The Legislature
properly may specify that such statutes are prospective only, to
assure that penal laws will maintain their desired deterrent
effect by carrying out the original prescribed punishment as
written.’ [Citations.] The voters have the same prerogative.
[Citation.]” (Floyd, supra, 31 Cal.4th at p. 188.)
Finally, the Court pointed out that the defendant in Floyd
offered no authority for his equal protection argument. In an
observation tellingly applicable to the present appeal, the court
stated, “Defendant has not cited a single case, in this state or any
other, that recognizes an equal protection violation arising from
the timing of the effective date of a statute lessening the
punishment for a particular offense. Numerous courts, however,
have rejected such a claim—including this court.” (Floyd, supra,
31 Cal.4th at p. 188.)
Lizarraga argues that Floyd’s holding is limited to statutes
that apply prospectively, not those that are partially retroactive.
That principal emerges nowhere in Floyd. We find incongruous
4 The Supreme Court relied on an uncodified portion of
Proposition 36: “Except as otherwise provided, the provisions of
this act shall become effective July 1, 2001, and its provisions
shall be applied prospectively.” (Floyd, supra, 31 Cal.4th at
p. 182.)
11
the argument that prospective laws do not constitutionally
discriminate against those defendants whose convictions are not
final at the time of passage but do violate the rights of those
defendants whose convictions have long been final. More to the
point, the Supreme Court has foreclosed that argument: The
“‘14th Amendment does not forbid statutes and statutory changes
to have a beginning, and thus to discriminate between the rights
of an earlier and later time.’ ” (Floyd, supra, 31 Cal.4th at p. 191,
citing.) “Retroactive application of a punishment-mitigating
statute is not a question of constitutional right but of legislative
intent.” (People v. Henderson (1980) 107 Cal. App. 3d 475, 488,
fn. 5.) Lizarraga’s equal protection rights were not violated.
DISPOSITION
The order denying Lizarraga’s motion to remand under
Proposition 57 is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
12