Opinion
F084408
02-28-2023
In re A.C., a Person Coming Under the Juvenile Court Law. v. A.C., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 21CEJ600219-1A. Ana I. de Alba, Judge.
William Safford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Minor A.C. appeals from a transfer order pursuant to subdivision (a)(1) of Welfare and Institutions Code section 707, transferring his case from juvenile delinquency court to adult criminal court. On appeal, minor argues that the transfer order must be reversed because (1) subsequent to the transfer order, Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Assembly Bill 2361) modified section 707 to change the standard for transfer of a juvenile delinquency matter from preponderance of the evidence to "clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court" and that amendment is retroactive to cases not yet final on appeal; and (2) the trial court erred in drawing adverse inferences from minor's assertion of his right to remain silent and therefore constituted Griffin error. The People agree as to the first issue and contend that we need not reach the second issue. We conditionally reverse the transfer order and remand with direction to reconsider the matter in light of Assembly Bill 2361.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Griffin v. California (1965) 380 U.S. 609.
PROCEDURAL SUMMARY
On August 26, 2021, the Fresno County District Attorney filed a juvenile wardship petition (§ 602, subd. (a)), alleging minor, at age 17, unlawfully possessed a firearm (Pen. Code, § 29610; count 1), and unlawfully manufactured, imported, sold, or received a high capacity magazine (Pen. Code, § 32310, subd. (a); count 2).
All further dates refer to the year 2021 unless otherwise stated.
On September 21, the Fresno County District Attorney filed a second juvenile wardship petition (§ 602, subd. (a)), alleging minor, at age 17, murdered Phillip Ray Frusetta (Pen. Code, § 187, subd. (a); count 1). The petition further alleged that minor personally and intentionally discharged a firearm resulting in death in the commission of the offense (Pen. Code, § 12022.53, subd. (d)).
On the same date, the People filed a motion to transfer jurisdiction over minor's second petition to adult criminal court pursuant to subdivision (a)(1) of section 707.
On October 12, on the People's motion, the juvenile court dismissed the first juvenile delinquency petition.
On May 20, 2022, the trial court determined by a preponderance of the evidence that minor's case should be transferred to adult criminal court.
On the same date, minor filed a notice of appeal pursuant to section 801, subdivision (a).
Because minor's arguments on his first issue involve purely legal issues, we omit any summary of the facts.
Minor contends that Assembly Bill 2361 applies retroactively to his case to require that the trial court's finding that transfer of his juvenile delinquency matter to adult criminal court be proved by "clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court" rather than the lesser standard of preponderance of the evidence. The People agree, as do we.
I. Additional Background
The juvenile court correctly explained that, at the time it made its transfer determination, the standard of proof was "preponderance of the evidence" that the minor was not suitable for rehabilitation under the juvenile court system. (Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186.) When it ruled, it therefore found only by a preponderance of the evidence that minor was not suitable for rehabilitation under the juvenile court system.
II. Assembly Bill 2361
Effective January 1, 2023, the standard of proof for whether a minor should be transferred to adult criminal court changed from "a preponderance of the evidence" to the greater standard of "clear and convincing evidence." (Compare Kevin P. v. Superior Court, supra, 57 Cal.App.5th at p. 186 with § 707, subd. (a)(3); Stats. 2022, ch. 330, § 1(a)(3).)
The parties agree, as do we, that Assembly Bill 2361 is retroactive to all cases not yet final on appeal pursuant to In re Estrada (1965) 63 Cal.2d 740. The Estrada rule provides that legislation that ameliorates possible punishment for an offense is retroactive to cases not yet final on appeal on the effective date of the legislation unless the Legislature expresses an intent to the contrary. (People v. Frahs (2020) 9 Cal.5th 618, 624.) Our Supreme Court has determined that similar procedural changes to juveniles being tried in adult criminal court are entitled to retroactive effect. In People v. Superior Court (Lara) (2018) 4 Cal.5th 299, at pages 305 to 312, our Supreme Court considered Proposition 57, which 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." (Lara, at p. 305.) The court explained that although "Proposition 57 did not ameliorate the punishment, or possible punishment, for a particular crime ..., it ameliorated the possible punishment for a class of persons, namely juveniles." (Lara, at p. 308.) Proposition 57 made it more difficult for minors to be prosecuted as adults in adult criminal courts. The practical effect of that change was to make it more likely for minors to not receive lengthy prison terms. The same is true of Assembly Bill 2361. Because Assembly Bill 2361 makes it less likely for a minor in a juvenile delinquency proceeding to have jurisdiction of the case transferred to adult criminal court, the reasoning of Lara applies in equal effect. Nothing in the language or legislative history of Assembly Bill 2361 belies that conclusion. Assembly Bill 2361 is retroactive to cases not yet final on appeal.
The juvenile court's decision to transfer minor's case to adult criminal court was made under the lesser finding by "preponderance of the evidence" that minor was not suitable for rehabilitation under the juvenile court system. That finding is insufficient to satisfy the standard of proof required by Assembly Bill 2361-by clear and convincing evidence that minor is not suitable for rehabilitation under the juvenile court system. We therefore conditionally reverse the juvenile court's transfer order and remand the matter for further proceedings. Any future motion to transfer the case pursuant to section 707 must be decided by the standard set out in Assembly Bill 2361.
Because we conditionally reverse the order transferring minor's case to adult criminal court, we need not resolve whether the juvenile court's consideration of purported inferences from minor's exercise of his right to remain silent constituted Griffin error. Minor may present any argument that the trial court should not consider such evidence in the first instance on remand if the People move the transfer jurisdiction over the case to adult criminal court.
DISPOSITION
The juvenile court's transfer order is conditionally reversed and the matter is remanded to the juvenile court for reconsideration under section 707 as amended by Assembly Bill 2361.
[*] Before Levy, Acting P. J., Franson, J. and Smith, J.