P. v. HwangP. v. Hwang
Defendant Vincent Hwang appeals from the trial court‘s denial of his request to have his case transferred to juvenile court pursuant to the Public Safety and Rehabilitation Act of 2016 (Proposition 57) and Senate Bill No. 1391. Defendant contends the trial court erred in concluding that he was not entitled to a transfer because his criminal judgment was final at the time of the proposition‘s and bill‘s passage. We agree and therefore reverse.
II. BACKGROUND
A. Conviction and Initial Appeal
In October 2001, a jury found defendant guilty of two counts of attempted murder (
five days of his crimes. (People v. Hwang (Jan. 23, 2003, B156960)
The trial court sentenced defendant to 74 years to life in prison. On January 23, 2003, this court affirmed the judgment. (People v. Hwang, supra, B156960.) Our Supreme Court denied defendant‘s petition for review on April 9, 2003.
B. Section 1170, Subdivision (d) Petition
On August 27, 2018, the trial court received a letter from the Secretary of the California Department of Corrections and Rehabilitation (Department) recommending that defendant‘s sentence be recalled and he be resentenced pursuant to
On April 9, 2019, defendant filed a “MOTION TO MODIFY SENTENCE/STRIKE ALLEGATION PURSUANT TO [Rodriguez] and MOTION FOR RECONSIDERATION.” Defendant contended that he was entitled to a resentencing hearing and the benefit of Senate Bill No. 620, which gave the sentencing court discretion to strike defendant‘s firearm enhancements. He also argued that he was entitled to a transfer hearing in the juvenile court pursuant to Proposition 57 and Senate Bill No. 1391.
On June 6, 2019, the Los Angeles County District Attorney (District Attorney) filed an opposition. The District Attorney conceded that it was likely defendant was entitled to the benefit of Senate Bill No. 620, but recommended that the trial court structure defendant‘s sentence so he still received a term of 74 years to life. The District Attorney also argued that defendant
On September 25, 2019, the trial court conducted a hearing pursuant to
III. DISCUSSION
A. Applicable Law
1. Proposition 57 and Senate Bill No. 1391
On November 8, 2016, the electorate passed Proposition 57, which amended
More recently, the Legislature amended Proposition 57 with Senate Bill No. 1391 (Stats. 2018, ch. 1012, § 1, eff. Jan. 1, 2019),4 which “eliminated prosecutors’ ability to seek transfer of 14[-] and 15[-]year[-]olds from juvenile court to criminal court unless the minor is ‘not apprehended prior to the end of juvenile court jurisdiction.‘” (People v. Superior Court (S.L.) (2019) 40 Cal.App.5th 114, 119.) Specifically,
listed in subdivision (b), but was not apprehended prior to the
2. Section 1170, subdivision (d)(1)
At the time the Department sent its August 27, 2018, recommendation,
1. Retroactivity of Proposition 57 and Senate Bill No. 1391
“‘The Legislature ordinarily makes laws that will apply to events that will occur in the future. Accordingly, there is a presumption that laws apply prospectively rather than retroactively. But this presumption against retroactivity is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Therefore, the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication. [Citation.] 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; People v. Padilla (2020) 50 Cal.App.5th 244, 250–251.) Our Supreme Court applies the doctrine of In re Estrada (1965) 63 Cal.2d 740 (Estrada), to determine retroactivity in criminal law: “‘The Estrada rule rests on an inference that, 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, supra, 4 Cal.5th at p. 308.)
Applying Estrada, our Supreme Court has concluded that Proposition 57 is retroactive: “The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore,
Senate Bill No. 1391 effectively broadens the ameliorative benefit of Proposition 57 to 14- and 15-year-olds by prohibiting prosecuting attorneys from moving to transfer individuals who commit certain offenses when they were 14 or 15 years old to adult court, unless they were “not apprehended prior to the end of juvenile court jurisdiction.” (
That this defendant is now over 25 years old does not change our conclusion that he is entitled to the retroactive benefit of Welfare and Institutions section 707, subdivision (a)(2), if his conviction was not final when Senate Bill No. 1391 was enacted. (See
Further, in our view, the legislative history of Senate Bill No. 1391 does not support the dissent‘s conclusion that the Legislature must have impliedly intended to exclude defendant from the bill‘s ameliorative benefit. Indeed, the legislative history does not specify why the “not apprehended” clause was included in
2. Effect of Resentencing Under Section 1170, subdivision (d)(1)
As we discuss above, both Proposition 57 and Senate Bill No. 1391 apply to judgments that were not final at the time of their enactment. Here, defendant‘s judgment was final in 2003, when the California Supreme Court denied review of his initial appeal. We therefore next consider whether the court‘s resentencing of defendant pursuant to
The appropriate remedy is a remand to the trial court with directions for the matter to be transferred to the juvenile court for a juvenile adjudication. (See Lara, supra, 4 Cal.5th at p. 310
The postjudgment order is reversed. The matter is remanded to the trial court with directions to transfer the matter to the juvenile court for a juvenile adjudication consistent with this opinion.
KIM, J.
I concur:
RUBIN, P. J.
Defendant Vincent Hwang (defendant) committed many serious crimes: two attempted murders, possession of ingredients to make a destructive device, possession of an assault weapon—and that isn‘t even the half of it. (The majority catalogs all nine convictions.) He was 15 years old at the time, but he was tried and convicted in a court of criminal jurisdiction, often described colloquially as “adult court.” He was ordered to serve 64 years to life in prison after correction of an initial sentencing error.
Almost two decades after defendant committed his offenses, he filed a motion to capitalize on recent changes in juvenile criminal law implemented by the Public Safety and Rehabilitation Act of 2016 (Proposition 57) and Senate Bill No. 1391 (2017-2018 Reg. Sess.). Defendant—34 years old by that time—argued these recent constitutional and statutory changes applied retroactively to him and required automatic reversal of all of his criminal convictions merely because they were rendered in adult court.
The majority embraces this argument in full. That is a mistake. Defendant is entitled to retroactive Proposition 57 relief, but Senate Bill 1391, by its own terms, is not meant to apply to someone like defendant who is made the subject of juvenile court proceedings well past the time at which he would come under the age threshold for juvenile court jurisdiction. In
I
“‘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. Since 1975 the procedural requirements for fitness hearings have been established by [Welfare and Institutions Code] section 707.’ [Citation.] The general rule used to be that ‘any individual less than 18 years of age who violates the criminal law comes within the jurisdiction of the juvenile court, which may adjudge such an individual a ward of the court.’ [Citation.]
“Amendments to former [Welfare and Institutions Code] 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. [Citations.] These provisions were in effect when the prosecution filed the charges against defendant directly in criminal court.
“Proposition 57 changed the procedure again, and largely returned California to the historical rule. ‘Among other provisions, 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
I agree Proposition 57‘s elimination of prosecutors’ direct file authority is an ameliorative change that retroactively benefits defendant because his conviction was not final at the time of Proposition 57‘s enactment. (People v. Lopez (2020) 56 Cal.App.5th 835, 845 [“Because a resentencing under [Penal Code] section 1170, subdivision (d)(1) replaces the original sentence, the original sentence is no longer operative, and the finality of the original sentence is no longer material. The only sentence that matters after resentencing under [Penal Code] section 1170, subdivision (d)(1) is the new sentence, which is not final because a resentenced defendant can still obtain review from the California Supreme Court or the United States Supreme Court“]; Lara, supra, 4 Cal.5th at 304, 312-313 [Proposition 57‘s elimination of direct file authority “applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted” and requires a remand for a transfer hearing].) That means defendant is entitled to a hearing where a judge would decide whether his prosecution in adult court is appropriate considering (1) the degree of criminal sophistication he exhibited, (2) whether he can be rehabilitated prior to the expiration of the juvenile court‘s jurisdiction, (3) his previous delinquent history, (4) the success of any previous attempts by the juvenile court to rehabilitate him, and (5) the circumstances and gravity of the offenses he was found to have committed. (
II
Following the procedure just described is what should happen in this case. But the majority authorizes defendant‘s immediate release from prison because it believes Senate Bill 1391‘s amendments to the Welfare and Institutions Code apply retroactively to him, just as Proposition 57 does.1 I agree Senate1
Bill 1391 will apply retroactively in many cases and foreclose any possibility of holding a transfer hearing. But not this case. A key proviso in the amendments Senate Bill 1391 made to the Welfare and Institutions Code indicates the Legislature did not intend to preclude the People from filing a transfer motion for an offender who was 14 or 15 years old at the time of the offense but has aged beyond the limits of juvenile court jurisdiction by the time a court is called to consider whether adult court prosecution is warranted.
Under current law,
As recent retroactivity decisions by our Supreme Court explain, the presumption that the Legislature intends an ameliorative penal statute to apply retroactively does not obtain when there are reliable indications the Legislature has intended to modify or limit retroactive application. (Conley, supra, 63 Cal.4th at 656-657 [“Our cases do not ‘dictate to legislative drafters the forms in which laws must be written’ to express an intent to modify or limit the retroactive effect of an ameliorative change; rather, they require ‘that the Legislature demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it‘“]; see also People v. Frahs (2020) 9 Cal.5th 618, 628.) The “but was not apprehended prior to the end of juvenile court jurisdiction” language in Subdivision (a)(2) is just such a discernable demonstration of intent. This language indicates the Legislature understood there may be cases where an offender commits a crime at age 15 but years go by before he or she can be dealt with by the juvenile justice system. For those offenders, like defendant, the Legislature determined the People
I do acknowledge the Legislature, with its use of the word “apprehended” in Subdivision (a)(2), does not appear to have foreseen the precise scenario that retroactive application of Senate Bill 1391 presents in this case. That is understandable; the most common scenario for application of Subdivision (a)(2) that would arise in future years is the one the Legislature did consider: an offender who is arrested years after a crime committed at a younger age. But the Legislature‘s intent in that scenario and in this one is still the same: an offender who was 14 or 15 at the time of the crime but who cannot benefit from juvenile justice system treatment by the time he or she is brought before the juvenile courts can still be an appropriate subject of adult court prosecution—if the People seek it and a judge approves.
So it is not enough to hang one‘s hat, as the majority does, on the assertion that the statute says “apprehended” and someone like defendant is not “apprehended” when his convictions are reversed retroactively and he is returned to juvenile court. A legislative body cannot reasonably be expected to anticipate all possible scenarios that might arise when the law changes. That is why our Supreme Court has held the Legislature need only “‘demonstrate its intention with sufficient clarity that a reviewing court can discern and effectuate it.‘” (Conley, supra, 63 Cal.4th at 657.) The Legislature‘s intent to limit automatic relief for a now 35-year-old felon who cannot
I would accordingly reverse the trial court‘s order and remand for a transfer hearing, if the People so request (and, if transfer is found appropriate, to give the trial court an opportunity to consider whether defendant‘s firearm enhancements should be stricken).
BAKER, J.
Notes
On March 28, 2019, defendant filed a petition for writ of habeas corpus. Defendant argued, among other things, that he was entitled to a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). The trial court granted the petition at the September 25, 2019, hearing. The court had not yet conducted the Franklin hearing by the time defendant filed his notice of appeal. (See People v. Lizarraga (2020) 56 Cal.App.5th 201, 204 [Franklin hearing does not affect finality of judgment].) Legislative committee reports for Senate Bill 1391 are replete with references to the desire to keep young offenders in the juvenile justice system so they get the treatment, counseling, and education to develop into law-abiding adults. (See, e.g., Off. of Assem. Floor Analyses, 3d reading analyses of Sen. Bill No. 1391 (2017-2018 Reg. Sess.) as amended Aug. 20, 2018, p. 4 [quoting Senate Bill 1391‘s author: “The youngest teens in our justice system need to be held accountable for their actions, but they also require age-appropriate services and programs to rehabilitate and grow into healthy, mature adults. Keeping youth in the juvenile system does not mean they get off with a slap on the wrist. This bill still maintains that youth who commit serious crimes deserve punishment. Keeping youth in the juvenile justice system means they will be punished, but they will also be required to be in treatment, counseling, and rehabilitative programming and education“]; see also Sen. Rules Com., Off. of Sen. Floor Analyses, Sen. Bill No. 1391 (2017-2018 Reg. Sess.), as amended Aug. 20, 2018, p. 2 [noting Assembly amendments permit a prosecutor to make a motion to transfer a 14 or 15-year-old offender if the individual was not apprehended prior to the end of juvenile court jurisdiction].) This focus on treatment and rehabilitation for “youth” well explains why the language of significance here was included.
The majority nonetheless asserts the legislative history materials do “not specify why the ‘not apprehended’ clause was included in