Filed 12/19/19 P. v. Andrade CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Appellant,

v.

OSCAR DAVID ANDRADE,

Defendant and Respondent.

G056497

Consol. w/ G056498

(Super. Ct. Nos. 04HF0309 &

M-16100)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Motion to dismiss. Denied.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Respondent.

Todd Spitzer and Tony Rackauckas, Orange County District Attorneys , and Holly M. Woesner, Deputy District Attorney, for Plaintiff and Appellant.

* * *

The electorate passed Proposition 57 on November 8, 2016, and it took effect the following day. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304 (Lara)). Among other provisions, Proposition 57 eliminated direct filing of criminal charges against juveniles in adult court. Instead, before filing in adult court, the prosecution must file a motion in juvenile court asking the court to transfer the minor to adult court. “Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult.” (Id. at p. 303.) In Lara, supra, the California Supreme Court held the juvenile court transfer provisions of Proposition 57 apply retroactively to “all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Id. at p. 304.)

Oscar David Andrade was sentenced in 2007, and on October 16, 2007, Andrade’s time to petition the United States Supreme Court for a writ of certiorari expired. In January 2015, he filed a petition for a writ of habeas corpus in the superior court seeking resentencing, which was granted. In the order granting the writ, the superior court vacated Andrade’s sentence and set a new sentencing hearing. Before Andrade was resentenced, Proposition 57 became effective.

Thereafter, Andrade filed a motion requesting the superior court remand his case to the juvenile court per Proposition 57. Over the prosecution’s objection, the court granted the motion and ordered the matter transferred to the juvenile court. The district attorney sought review of the trial court’s transfer order via writ and direct appeal. On July 12, 2018, this court granted the district attorney’s request to stay the transfer hearing in the juvenile court. On July 27, 2018, we summarily denied the petition for a writ of mandate or prohibition, leaving only the instant appeal.

Andrade filed a motion to dismiss the instant appeal, contending the trial court’s transfer order is not appealable. We deny the motion to dismiss. As discussed further below, the transfer order is appealable under Penal Code section 1238, subdivision (a)(5), as an “order made after judgment, affecting the substantial rights of the people.” The order granting Andrade’s petition for a writ of habeas corpus is a judgment, and the transfer order affects the district attorney’s ability to enforce a judgment in adult court.

On the merits, we conclude Proposition 57 applies to Andrade because (1) his criminal judgment is not final, and (2) the juvenile court has jurisdiction to hold a transfer hearing. In light of Proposition 57 and Lara, the trial court properly transferred the matter to the juvenile court to hold a transfer hearing. Accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Andrade was 17 years old when he shot and killed a rival gang member. He was charged directly in adult court for his crimes. A jury convicted Andrade of first degree murder and street terrorism, and found true gang and firearm enhancements. He was sentenced to life without the possibility of parole plus 25 years. We affirmed the convictions and modified the judgment by striking the parole revocation fine. (See People v. Andrade (April 9, 2007, G035759) [nonpub. opn.].)

The California Supreme Court denied Andrade’s petition for review on July 28, 2007, and he did not file a petition for writ of certiorari in the United State Supreme Court. The time for petitioning the United States Supreme Court for a writ of certiorari expired October 16, 2007.

On January 6, 2015, Andrade filed a petition for writ of habeas corpus, seeking resentencing relief because the sentencing court failed to consider youth-related factors as required under Miller v. Alabama (2012) 567 U.S. 460. The district attorney conceded the sentencing error and recommended the superior court grant the petition and order resentencing. On April 24, 2015, the court granted the petition for a writ of habeas corpus. It vacated Andrade’s sentence, ordered the judgment of conviction to remain in full effect and scheduled a new sentencing hearing.

Andrade’s resentencing was continued several times. In the interim, Proposition 57 took effect. On September 1, 2017, Andrade filed a motion requesting the superior court transfer the matter to juvenile court for a transfer hearing pursuant to Proposition 57. The district attorney opposed the motion, arguing Proposition 57 did not apply retroactively to Andrade’s case. n May 4, 2018, following arguments, the trial court granted the motion to remand the case to juvenile court for a transfer hearing.

II

DISCUSSION

A. Motion to Dismiss

Andrade contends the trial court’s transfer order is not appealable under Penal Code section 1238, subdivision (a)(5), as an “order made after judgment, affecting the substantial rights of the people.” (All further statutory references are to the Penal Code.) Andrade argues that because the superior court vacated his sentence, no sentence was imposed and no judgment exists. In addition, Andrade argues that no substantial right of the People was affected because the “People have no right to keep a juvenile in a court of criminal jurisdiction or to proceed with sentencing without the transfer hearing required under Proposition 57 and Lara.” We do not find Andrade’s contentions persuasive.

A proceeding on a petition for writ of habeas corpus “‘is finally and definitely ended by the judgment,’ whether it be a judgment denying or granting the writ.” (In re Shoemaker (1914) 25 Cal.App. 551, 570-571.) Thus, the California Supreme Court has described a final order granting a writ of habeas as “the superior court’s final judgment granting relief in habeas corpus.” (In re Crow (1971) 4 Cal.3d 613, 622.) Additionally, for res judicata purposes, the final order constitutes a final judgment on the merits. (Id. at p. 623 [“A final order or judgment granting relief to a petitioner on habeas corpus is a conclusive determination that he is illegally held in custody; it is res judicata of all issues of law and fact necessarily involved in that result.”].) For appellate review purposes, “an order granting a petition for writ of habeas corpus is an appealable order analogous to a final judgment,” (Jackson v. Superior Court (2010) 189 Cal.App.4th 1051, 1064), and the “‘“one final judgment”’ rule” applies to a final order granting a habeas petition (People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 330-331). The superior court’s order granting the writ of habeas corpus and ordering a new sentencing hearing constitutes a “judgment” and satisfies that aspect of Penal Code section 1238, subdivision (a)(5). The superior court’s juvenile transfer order sought to implement the resentencing relief granted in the judgment on the habeas petition. Accordingly, the juvenile transfer order is a postjudgment order.

Here, the juvenile transfer order affects the People’s substantial right to enforce a judgment in adult court. A finding that Proposition 57 applies “is not an idle exercise as far as the People are concerned; where, as here, the trial court determines the inmate is [entitled to a juvenile transfer hearing], the burden shifts to the prosecution to establish” in juvenile court that a transfer to adult court is warranted. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 987 (Martinez); see Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 805 [“burden of proving unfitness [for juvenile court treatment] is on the prosecution”].) The transfer order alters Andrade’s status and undermines the prosecution’s substantial interest in seeing Andrade resentenced in adult court. (Martinez, supra, 225 Cal.App.4th at p. 987 [concluding that a trial court’s order finding that a defendant was eligible for resentencing “affects enforcement of the judgment (in which the People clearly have a substantial interest), and it affects the inmate’s status with relation to the judgment already imposed”].) The juvenile transfer order therefore is appealable under Penal Code section 1238, subdivision (a)(5), as an “order made after judgment, affecting the substantial rights of the people.” (Cf. People v. Berg (2019) 34 Cal.App.5th 856, 867, fn. 12 [criminal defendant may appeal an order vacating a prior order granting a petition for writ of habeas corpus under section 1237, subdivision (b), as it was an “order made after judgment, affecting the substantial rights of the party.”].)

B. Proposition 57 Applies Retroactively to Andrade’s Case

As noted, in Lara, supra, the California Supreme Court held the juvenile court transfer provisions of Proposition 57 apply retroactively to all juveniles charged directly in adult court whose judgment is not final. (Lara, supra, 4 Cal.5th at p. 304.) The court reasoned the rationale behind the retroactivity rule set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applied to Proposition 57, explaining that “‘[t]he 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, quoting People v. Conley (2016) 63 Cal.4th 646, 657.)

Aside from quoting the relevant language in Estrada, the Lara court did not address when a judgment is final for retroactivity purposes. Likewise, the Estrada court did not explain what it meant when it referred to a judgment that was not yet final. (Lara, supra, 63 Cal.2d at p. 745 [concluding that an “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.”].)

Several months before Estrada, however, the California Supreme Court discussed the finality of a judgment in In re Spencer (1965) 63 Cal.2d 400 (Spencer). There, in ruling on a habeas corpus petition, the Spencer court explained the U.S. Supreme Court had held federal habeas relief was available for any judgment not final before the Supreme Court issued its decision finding a constitutional right. (Id. at p. 405.) The Spencer court noted the United States Supreme Court “has in substance defined finality as denoting that point at which the courts can no longer provide a remedy to a defendant on direct review. If defendant does petition for certiorari within the requisite time period the avenue of direct review remains open until the denial of that petition; at that time the judgment becomes final.” (Ibid.)

The California Supreme Court expressly adopted the U.S. Supreme Court’s definition of finality of a judgment in In re Dabney (1969) 71 Cal.2d 1 (Dabney). There, in ruling on a habeas petition, the court addressed the retroactive application of several decisions prohibiting the introduction of unconstitutionally obtained prior convictions. (Id. at pp. 3-4.) It concluded the rule promulgated in those decisions (the Woods-Coffey rule) applies retroactively “only to decisions which became final after January 26, 1966, the date on which we filed our decision in Woods.” (Dabney, 71 Cal.2d at pp. 8-9.) The court found that “[p]etitioner’s conviction only became final for retroactivity purposes on October 10, 1967, when the period during which he might have applied for certiorari ended. [Citation.] For this reason his case is governed by Woods and Coffey.” (Dabney, 71 Cal.2d at p. 11.)

Our Supreme Court has applied the Dabney rule on finality of a judgment to the Estrada rule on retroactivity. (See, e.g., People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5; In re Pedro T. (1994) 8 Cal.4th 1041, 1046.) The court consistently has held that, “‘for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.’ [Citation].” (People v. Vieira, supra, 35 Cal.4th at p. 306.)

Here, Andrade’s original sentence was modified and the judgment affirmed in April 2007. The time for petitioning the United States Supreme Court for a writ of certiorari expired October 16, 2007. Thus, the district attorney argues that for Estrada retroactivity purposes, the 2007 judgment was final well before Proposition 57 took effect. Andrade, however, argues the judgment in his case is not yet final within the meaning of Lara and Estrada because in criminal cases, a sentence is synonymous with the judgment and the order granting his habeas petition vacated his sentence. Andrade has the better argument.

Andrade’s criminal judgment is not yet final because his original sentence was vacated. (See People v. Spencer (1969) 71 Cal.2d 933, 934, fn. 1 [“The appeal from the ‘sentence’ is the same as the appeal from the judgment since in a criminal action the terms are synonymous.”]; People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213 [the sentence is the judgment in a criminal case].) As noted, the California Supreme Court has defined the finality of a judgment for Estrada retroactivity purposes as “that point at which the courts can no longer provide a remedy to a defendant on direct review.” (Spencer, supra, 63 Cal.2d at p. 405.) Here, following the order granting the habeas petition, if an error had occurred during the resentencing, Andrade could directly appeal the sentencing error and this court could correct that error. Thus, the courts can provide Andrade with a remedy on direct review.

Citing People v. Murtishaw (1989) 48 Cal.3d 1001 (Murtishaw), the district attorney argues that because the “judgment of conviction” remains in full effect, the finality of the judgment of conviction precludes retroactive application of Proposition 57. We disagree for several reasons. First, Murtishaw does not assist the district attorney because it did not address the Estrada rule, which permits retroactive application of certain amendatory criminal statutes.

Second, the juvenile court transfer provisions of Proposition 57 neither constitute a new rule of procedure for criminal cases nor undermine the jury’s finding of guilt. In Murtishaw, the California Supreme Court determined that retroactive application of a new rule of criminal procedure based on the federal constitution would not “undermine defendant’s convictions,” and declined to apply retroactively new “rules of criminal procedure derived solely from state law.” (Murtishaw, supra, 48 Cal.3d at p. 1013.) Here, the transfer provisions do not create a new procedural rule for criminal courts, but rather create a new procedure for prosecuting charges involving juveniles. They provide that all charges against a juvenile must be brought in juvenile court unless the juvenile court decides to transfer the matter to criminal court. Additionally, the juvenile courttransfer provisions do not undermine Andrade’s convictions. As this court noted in People v. Vela (2018) 21 Cal.App.5th 1099, even if Andrade is entitled to a juvenile transfer hearing, “[t]he jury’s convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a ‘dispositional hearing,’ or effectively a second trial, in the juvenile court.” (Id., 21 Cal.App.5th at p. 1112.)

Finally, the district attorney’s proposed distinction between a final “judgment of conviction” and a final “sentence” for Estrada retroactivity is not legally sound. As noted, the Supreme Court has defined finality for Estrada retroactivity based on federal habeas jurisprudence. Under federal law, a state prisoner must file a habeas petition within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” (28 U.S.C. § 2244(d)(1)(A).) The U.S. Supreme Court has concluded that the petitioner’s “limitations period did not begin until both his conviction and sentence ‘became final by the conclusion of direct review or the expiration of the time for seeking such review.’” (Burton v. Stewart (2007) 549 U.S. 147, 156-157.) The reason is “‘[f]inal judgment in a criminal case means sentence. The sentence is the judgment.’” (Id. at p. 156, quoting Berman v. United States (1937) 302 U.S. 211, 212.) Accordingly, in a criminal case where the conviction is affirmed but the sentence is reversed, the judgment becomes final for habeas review purposes after conclusion of direct review of the new sentence imposed at resentencing, not after conclusion of direct review of the conviction. As a federal appellate court has explained, a petitioner’s “judgment did not become final after his first round of direct review because he no longer was subject to a sentence. The judgment became final upon the conclusion of direct review of the new sentence he received at resentencing.” (Rashad v. Lafler (6th. Cir. 2012) 675 F.3d 564, 569.) Likewise, in California, the sentence is the judgment in a criminal case. (See, e.g., People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 [“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.”].) Thus, for Estrada retroactivity, a judgment is final after conclusion of direct review of both the conviction and the sentence. Because Andrade’s new sentence has not yet been imposed, his judgment is not yet final, and therefore he is entitled to the benefits of Proposition 57.

The district attorney also argues the trial court’s transfer order is a nullity because the juvenile court no longer has jurisdiction over Andrade, who has aged out of the juvenile system. We recently rejected this argument in People v. Ramirez (2019) 35 Cal.App.5th 55 (Ramirez), concluding the juvenile court has jurisdiction to hold a juvenile court transfer hearing under Welfare and Institutions Code section 602 where the defendant committed his crime as a juvenile. (Id. at pp. 67-68.) Because Andrade committed his crime when he was 17 years old, the juvenile court had jurisdiction to hold a transfer hearing.

Finally, the trial court’s transfer order did not exceed the scope of the relief granted on Andrade’s habeas petition. In Ramirez, we rejected the claim that the trial court’s order transferring the matter to the juvenile court exceeded the scope of the remittitur ordering resentencing. (See Ramirez, supra, 35 Cal.App.5th at p. 64.) We reasoned that because a juvenile defendant entitled to the benefits of Proposition 57 cannot be sentenced as an adult if the juvenile court has not transferred the juvenile to adult court, the trial court must consider the effect of Proposition 57 to comply with the remittitur. (Ibid.) Likewise, to implement habeas relief here, the trial court also must consider the effect of Proposition 57 and issue any related orders, including transferring the matter to juvenile court. In sum, the court properly ordered the matter transferred to the juvenile court to conduct a transfer hearing.

III

DISPOSITION

The order transferring the matter to juvenile court is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.