Filed 1/27/20 P. v. Martinez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR MARTINEZ,

Defendant and Appellant.

D074288

(Super. Ct. No. SCD224457)

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O’Neill, Judge. Conditionally reversed and remanded with directions.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland Assistant Attorneys General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

The question we are presented with is whether Proposition 57 applies to the defendant in this case—a juvenile at the time of his offense and convictions—so as to entitle him to a transfer hearing in the juvenile court before his resentencing in adult court. Under People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time of its enactment. (Lara, at pp. 303-304.) At the time Proposition 57 was enacted, this defendant’s case was pending review in the California Supreme Court, which thereafter pursuant to People v. Chiu (2014) 59 Cal.4th 155 (Chiu) directed that his first degree murder conviction be vacated and, if not retried by the People, reduced to second degree murder with attendant resentencing. This appeal follows the trial court’s order declining to grant Martinez a transfer hearing and its imposition of a new sentence on his second degree murder conviction.

We conclude that Martinez is entitled to the benefit of Proposition 57 before being resentenced in adult court. We reject the People’s arguments to the contrary. We further conclude the trial court misunderstood the scope of its discretion in resentencing Martinez in accordance with the California Supreme Court’s directions. Thus, we conditionally reverse Martinez’s convictions and remand the case to the juvenile court to conduct a juvenile transfer hearing under Lara, supra, 4 Cal.5th 299. If the juvenile court determines it would have transferred Martinez to adult court, the adult court must reinstate the convictions and resentence Martinez on all counts. If the juvenile court finds it would not have transferred the matter, the court will treat the convictions as juvenile adjudications and impose an appropriate disposition. (Id. at pp. 310, 313.)

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts have been summarized in our prior decisions as well as in In re Martinez (2017) 3 Cal.5th 1216, thus we need not repeat them here. They are not necessary to resolve this appeal.

In 2010, a jury convicted Hector Martinez of first degree murder (Pen. Code,

§ 187, subd. (a); count 1), assault with a semi-automatic firearm (§ 245, subd. (b); count 2), and assault with force likely to cause great bodily injury (§ 245, subd. (a)(1); count 3). It found true allegations that Martinez was a principal in the commission of murder

and that a principal used a firearm to cause great bodily injury or death (§ 12022.53, subd. (d)); that he was vicariously armed during the course of the murder (§ 12022, subd. (a)), and that he committed all three offenses for the benefit of a criminal street gang

(§ 186.22, subd. (b)). In January 2011, the trial court sentenced him to 50 years to life plus six years: 25 years to life for count 1 plus 25 years to life for the firearm use enhancement and six years for count 2. It stayed punishment on count 3 and the other enhancements under section 654.

We affirmed Martinez’s convictions in March 2013. (People v. Martinez (Mar. 5, 2013, D058929) [nonpub. opn.] (Martinez I).) In May 2013, the California Supreme Court denied Martinez’s petition for review “without prejudice to any relief to which . . . Martinez might be entitled after this court decides [Chiu, supra, 59 Cal.4th 155].” (See In re Martinez, supra, 3 Cal.5th at p. 1220.) This court issued the remittitur in Martinez’s case the next day, May 23, 2013. Martinez did not thereafter seek a writ of certiorari in the United States Supreme Court.
After the high court decided Chiu, supra, 59 Cal.4th 155, Martinez sought unsuccessfully to recall the remittitur in his appeal. He then petitioned for a writ of habeas corpus in this court, which we denied in an unpublished opinion (In re Martinez (May 15, 2015, D066705 [nonpub. opn.]) (Martinez II)) concluding sufficient evidence supported his conviction under a direct aiding and abetting theory. (See In re Martinez, supra, 3 Cal.5th at p. 1220.) In September 2015 the California Supreme Court granted Martinez’s petition for review.

The following year, while Martinez’s review petition was pending in the California Supreme Court, the voters passed Proposition 57, the “Public Safety and Rehabilitation Act of 2016.” (People v. Lara, supra, 4 Cal.5th at p. 304.)

In December 2017, the California Supreme Court issued its opinion in Martinez’s case, holding that a defendant attacking his conviction for Chiu error through a habeas petition as Martinez did was in the same position as a defendant raising the error on direct appeal, and that Martinez’s ” ‘first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.’ ” (In re Martinez, supra, 3 Cal.5th at p. 1225.) It reversed and remanded the matter with directions that this court grant Martinez habeas corpus relief and vacate his first degree murder conviction. (Id. at p. 1227.) It ordered the trial court, if the prosecution elected not to retry Martinez, to enter a judgment reflecting a second degree murder conviction and to sentence Martinez accordingly. (Ibid.)

In March 2018, Martinez moved to remand his case to juvenile court for a fitness hearing in light of Proposition 57, arguing he was entitled to its application in his case because it was before the trial court on remand. The People responded that Proposition 57 did not apply to Martinez because his judgment was final. Pointing out that a writ of habeas corpus is a collateral attack on a final judgment (see In re Reno (2012) 55 Cal.4th 428, 452), the People argued Martinez had exhausted his direct appeal and “[a]llowing defendants pending a writ of habeas corpus to demand retroactive applications would have the absurd effect of encouraging defendants to make unmeritorious claims to take advantage of the beneficial change in the law and would fundamentally undermine the finality of a majority of serious criminal matters in California.”

At the ensuing hearing on Martinez’s motion, the People announced they would not be retrying Martinez on the first degree murder count. Martinez counsel argued in part that the court was to broadly construe Proposition 57, and because Martinez’s first degree murder conviction was vacated and he had not yet been resentenced on the second degree murder conviction, he was entitled to a fitness hearing under its provisions. Ruling the “decision is final at this point in time,” the trial court denied Martinez’s motion for a fitness hearing.

In June 2018, the court sentenced Martinez to 40 years to life plus six years. Martinez timely appeals from the judgment and order denying his motion to transfer his case to juvenile court.

DISCUSSION

I. Proposition 57 and Finality of Judgments

Effective November 9, 2016, Proposition 57 eliminated prosecutors’ ability to file charges against juveniles directly in criminal court. “Certain categories of minors—16-and 17-year-olds who violated any felony criminal statute, and 14-and 15-year-olds who committed enumerated serious offenses, including murder—could still be tried in criminal court, ‘ “but only after a juvenile court judge conduct[ed] 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.” ‘ ” (People v. Superior Court (T.D.) (2019) 38 Cal.App.5th 360, 368, review granted Nov. 26, 2019, S257980, quoting Lara, supra, 4 Cal.5th at pp. 305-306.) The “most obvious goal” of the electorate was to broaden the number of minors who could potentially stay within the juvenile justice system where the emphasis is on rehabilitation, rather than punishment, for such offenders. (B.M. v. Superior Court of Riverside County (2019) 40 Cal.App.5th 742, 754; review granted Jan. 2, 2020, S259030, see Lara, at p. 309; People v. Vela (2018) 21 Cal.App.5th 1099, 1107.) The text of Proposition 57 provides in part that it “shall be broadly construed to accomplish its purposes.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, §§ 4.1, 5, pp. 141, 145; see also T.D., at p. 370.) The intent behind the act was in part to protect and enhance public safety and save money by reducing wasteful spending on prisons.

In Lara, supra, 4 Cal.5th 299, the California Supreme Court observed: “Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct . . . a ‘transfer hearing’ to determine whether the matter should remain in juvenile court or be transferred 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, citing Welf. & Inst. Code,

§ 707, subd. (a).) Lara held that Proposition 57 applied retroactively “to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Lara, at p. 304.) It reasoned that while Proposition 57 did not ameliorate punishment for a particular crime, it did so for a class of persons (juveniles), allowing it to apply the inference of retroactivity set out in People v. Francis (1969) 71 Cal.2d 66 and In re Estrada (1965) 63 Cal.2d 740. (Lara, at pp. 303-304, 308; see People v. Barboza (2018) 21 Cal.App.5th 1315, 1318.) In reaching its conclusion, Lara stated: ” ‘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.” (Lara, at p. 303.) Lara emphasized that “Proposition 57 is an ‘ameliorative change[] to the criminal law’ that we infer the legislative body intended ‘to extend as broadly as possible.’ ” (Lara, at p. 309.)

For purposes 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.” ‘ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 935; see also People v. Buycks (2018) 5 Cal.5th 857, 876, fn. 5; People v. Vieira (2005) 35 Cal.4th 264, 306; In re Pedro T. (1994) 8 Cal.4th 1041, 1046; see discussion generally in People v. Lara (2019) 6 Cal.5th 1128, 1134 [under In re Estrada, supra, 63 Cal.2d 740, an amendatory statute lessening punishment is presumed to apply in all cases ” ‘ “not yet reduced to final judgment” ‘ ” unless there is clear intent to make the amendment prospective].) The California Supreme Court has also cited with approval authority explaining that a judgment is not final so long as the courts may provide a remedy on direct review. (Pedro T., at p. 1046, citing In re Pine (1977) 66 Cal.App.3d 593, 594; see also Vieira, at p. 306 [rule that repeal of underlying offense requires dismissal of pending charges “applies to any such [criminal] proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it”], citing Bell v. Maryland (1964) 378 U.S. 226, 230; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5; People v. Jackson (1967) 67 Cal.2d 96, 98 [“A judgment becomes final when all avenues of direct review are exhausted,” including the availability of appeal], italics added; People v. Ketchel (1966) 63 Cal.2d 859, 864; People v. Barboza, supra, 21 Cal.App.5th at p. 1319; People v. Yearwood (2013) 213 Cal.App.4th 161, 171-172.)

The rule of finality will prevent a defendant from obtaining the benefits of Proposition 57 in a straightforward case where before its enactment, a court imposes a prison sentence, suspends its execution and places the defendant on probation, and the defendant does not appeal. (See People v. Barboza, supra, 21 Cal.App.5th at pp. 1318-1319.) But the rule can differ in circumstances where a defendant’s matter is sent back for a penalty retrial, because the defendant retains a remedy by way of certiorari. (See People v. Ketchel, supra, 63 Cal.2d 859.) In Ketchel, defendants were convicted of murder and sentenced to death. (Id. at p. 861.) On appeal, the court affirmed the judgments of conviction but reversed as to the death penalty. (Ibid.) The defendants did not seek certiorari. (Id. at p. 864.) Following retrial, the jury again gave defendants the death penalty. (Id. at p. 861.) In a second appeal, defendants challenged not only the death sentence but sought to recall the remittitur and vacate their judgments of guilt on grounds their confessions were inadmissible under the then-recent decisions in Escobedo v. Illinois (1964) 378 U.S. 478 and People v. Dorado (1965) 62 Cal.2d 338, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, footnote 17. (Ketchel, at pp. 861-862.) The California Supreme Court had earlier held those cases did not apply ” ‘to cases which have become final prior to the date that the United States Supreme Court rendered the Escobedo decision.’ ” (Ketchel, at p. 863.) Ketchel invoked the above-summarized finality rules: a case becomes final ” ‘ “where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . . [Citation.] Thus 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.’ ” (Ketchel, 63 Cal.2d at p. 864.)

Applying that finality test, “the judgments as to [the Ketchel defendants’] guilt were not final unless ‘the time for petition for certiorari had elapsed’ before [the court decided] Escobedo.” (People v. Ketchel, supra, 63 Cal.2d at p. 864.) The court observed that following its original affirmance of the judgments of conviction, the defendants could have petitioned the United States Supreme Court for a writ of certiorari, and had 90 days thereafter within which to file a petition. (Ibid.) But the Ketchel court found no authority “establishing that [the defendants] could not await affirmance of the judgments as to penalty before filing a petition for certiorari in which they raise federal questions relating to their trial on guilt.” (Ibid.) “To the contrary, language in several cases gives support to the view that certiorari may still be available here with respect to matters relating to the trial on guilt.” (Ibid.)

Ketchel explained that the defendants’ judgments of conviction were not final even though the time to petition for certiorari from their convictions had expired. (People v. Ketchel, supra, 63 Cal.2d at p. 865.) The court further observed: “It would be an unnecessary expenditure of time and money were we to reverse solely as to penalty and federal habeas corpus relief were later granted on the ground that at the guilt trial evidence was admitted that was inadmissible under Escobedo.” (Id. at pp. 865-866.) Under the circumstances, the court held the defendants were entitled to invoke the Escobedo and Dorado decisions to challenge their underlying convictions. (See also People v. Quicke (1969) 71 Cal.2d 502, 510 [under Ketchel, a judgment as to guilt is not yet final for Escobedo-Dorado purposes until a determination of penalty becomes final within the meaning of California appellate rules]; In re Morse (1969) 70 Cal.2d 702, 704 [characterizing Ketchel as permitting consideration of Escobedo-Dorado errors in a guilt trial on appeal following a penalty retrial].)

II. Martinez Is Entitled to the Benefits of Proposition 57 Before He May Be Resentenced in Adult Court

Martinez contends the trial court erred when it denied his request for a fitness hearing under Proposition 57 before sentencing him on his second degree murder conviction. He argues his conviction was not final at the time of Proposition 57’s enactment because the California Supreme Court had denied his review petition without prejudice to him obtaining Chiu relief. Martinez argues that had he then filed a petition for writ of certiorari it would have been premature: “[T]he Supreme Court itself contemplated that in the event Chiu[, supra, 50 Cal.4th 155] was decided favorably to Martinez (as it ultimately was), Martinez’s claim would be preserved for further proceedings which could later be (and actually were) reviewed by the California Supreme Court.” Martinez maintains that because the court expressly contemplated further review, his case had “not yet reached final disposition in the highest court authorized to review

it . . . .”

The People respond that Martinez’s conviction became final on August 20, 2013, three years before Proposition 57’s enactment, when the time to file a petition for writ of certiorari expired after he lost his direct appeal, and after that time, Martinez could no longer receive relief on direct appeal. The People compare the circumstances to those in People v. Kemp (1974) 10 Cal.3d 611, which held that a defendant cannot raise guilt issues in an appeal following retrial on a penalty phase after a successful habeas corpus challenge overturning his death sentence. (Id. at pp. 613-614.) They also argue Martinez cannot raise issues outside the scope of the limited remand, including whether the court had jurisdiction at the inception of his case.

We reject the People’s latter claim pertaining to the scope of the remand. Following the high court’s decision in In re Martinez, supra, 3 Cal.5th 1216, we ordered Martinez’s first degree murder conviction and sentence vacated, and directed the trial court—if the People elected not to retry him—to enter judgment reflecting a second degree murder conviction and “sentence [Martinez] accordingly.” It is true that on remand, a lower court may act only within its express jurisdictional limits. (People v. Lewis (2004) 33 Cal.4th 214, 228.) But where, as here, ” ‘a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme.’ ” (People v. Ramirez (2019) 35 Cal.App.5th 55, 64, citing in part People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [“upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term”]; see People v. Buycks, supra, 5 Cal.5th at p. 893; People v. Navarro (2007) 40 Cal.4th 668, 681.) Under this

” ‘full resentencing rule’ ” (Buycks, at p. 893), a resentencing court can modify every aspect of the sentence, and may consider ” ‘any pertinent circumstances which have arisen since the prior sentence was imposed.’ ” (Ibid.) Because a juvenile defendant entitled to the benefit of Proposition 57 cannot be “sentenced as an adult” if the juvenile court has not transferred defendant to adult court (Ramirez, at p. 64, citing Lara, supra, 4 Cal.5th at p. 303), the trial court on remand has jurisdiction to consider any and all factors that would affect sentencing, including the effect of Proposition 57. (Ramirez, at p. 64.) Under these circumstances, the trial court’s consideration of Proposition 57 would not be outside the scope of this court’s remand order.
We further conclude Martinez was entitled to the benefit of Proposition 57 before his resentencing in adult court. The effect of the California Supreme Court’s order denying review “without prejudice to any relief” (italics added) to which Martinez may be entitled after it decided Chiu, supra, 50 Cal.4th 155, broadly left the matter open for Martinez to seek a juvenile court transfer hearing notwithstanding our remittitur. Further, this court on directions from the California Supreme Court vacated Martinez’s murder conviction and the People elected not to retry him, thus we remanded his case for resentencing in full, as explained above. The conviction’s reversal placed the status

of Martinez’s case—at least as to the murder conviction—on remand as if no trial had occurred. (See People v. Clark (1965) 62 Cal.2d 870, 886.) Likewise, the effect of our remand for resentencing was to “restore [Martinez] to his original position as if he had never been sentenced . . . . Thus, upon resentencing, [Martinez was] entitled to all the normal procedures and rights available at the time judgment is pronounced.” (Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744.) Once the matter was remanded for resentencing, Martinez had an avenue for review by direct appeal and petition for writ of certiorari following imposition of the new sentence on his second degree murder conviction, akin to the defendant in People v. Ketchel, supra, 63 Cal.2d 859. It is the sentence that constitutes the judgment. (Burton v. Stewart (2007) 549 U.S. 147, 156

[” ‘Final judgment in a criminal case means sentence. The sentence is the judgment’ ”

and thus limitations period in that case “did not begin until both [defendant’s] conviction and sentence ‘became final by the conclusion of direct review or the expiration of the time for seeking such review’ “]; People v. Valladoli (1996) 13 Cal.4th 590, 597 [oral pronouncement of sentence, not the verdict, is the final judgment that may be appealed]; 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. Wilcox (2013) 217 Cal.App.4th 618, 625 [” ‘A “sentence” is

the judgment in a criminal action [citations]; it is the declaration to the defendant of his disposition or punishment once his criminal guilt has been ascertained’ “]; In re Gray (2009) 179 Cal.App.4th 1189, 1196 [“Only after a sentence is imposed following the return of a verdict is there a ‘final judgment that may be appealed’ “].) Under these circumstances, Martinez’s judgment was not final for purposes of applying Proposition 57 before his resentencing hearing in adult court.

This result is consistent with Proposition 57’s intent with regard to punishment. As Lara pointed out, Proposition 57 ameliorated the possible punishment for juveniles (Lara, supra, 4 Cal.5th at p. 303); the electorate indicated its strong support for giving juveniles an opportunity for rehabilitation rather than a criminal sentence in adult court and we are to construe it as broadly as possible to effectuate its purposes. (Lara, at p. 309.) Under these circumstances, we conclude the voters would endorse a fitness hearing for a juvenile offender like Martinez before he is resentenced in adult court.

We have found one published case so holding as a prospective application of Proposition 57. (People v. Cervantes (2017) 9 Cal.App.5th 569, 602, 612 [holding Proposition 57, applied prospectively, requires a fitness hearing before a juvenile felon is tried in adult court initially or on remand, including for partial retrial or resentencing only], disapproved on other grounds in Lara, supra, 4 Cal.4th at pp. 314-315.) Cervantes held in the event a defendant’s case is remanded for resentencing that “beginning with the effective date of Proposition 57, a juvenile felon may not be ‘sentenced in adult court’ without a prior transfer hearing under Welfare and Institutions Code section 707, subdivision (a), if he or she so requests.” (Ibid.) Pointing out the word “trial” has different meanings in different criminal contexts and can encompass sentencing (id. at pp. 609-610), the court reasoned based on the materials in Proposition 57’s ballot pamphlet, the voters “most likely understood being ‘tried in adult court’ to encompass all the proceedings in a criminal trial court, including sentencing.” (Id. at pp. 610-611.) Cervantes directed that “upon remand, even if the district attorney elects not to retry Cervantes on the reversed counts, Cervantes must nevertheless be granted a fitness hearing upon request before he may be resentenced on the affirmed counts.” (Id. at p. 613.) Though Lara disapproved Cervantes to the extent it rejected In re Estrada, supra, 63 Cal.2d 740 retroactivity (Lara, supra, 4 Cal.5th at pp. 314-315), Lara left undisturbed Cervantes’s conclusion as to Proposition 57’s prospective application.

We disagree with the People that our order vacating Martinez’s first degree murder conviction left the murder conviction in place and merely reduced the degree from first to second. The People cite no authority convincing us to so interpret our order, which vacated Martinez’s murder conviction and gave the People the opportunity to retry him on that charge. It did not merely change the degree of the offense.

We further see no reason why our conclusion should change because Martinez’s successful outcome came after his filing of a petition for writ of habeas corpus in this court. The People argue his collateral challenge did not undo the finality of the direct appeal. But the California Supreme Court in Martinez’s case treated Martinez in the same position as if he had brought a direct appeal, and it thereafter ordered his first degree murder conviction vacated under Chiu, supra, 59 Cal.4th 155. (In re Martinez, supra, 3 Cal.5th at pp. 1225, 1227.) The nature of Martinez’s challenge does not compel a different outcome, particularly where it remains that this court vacated Martinez’s conviction and remanded it for resentencing, giving Martinez another opportunity for direct appeal.

III. If Martinez’s Convictions Are Not Treated As Juvenile Adjudications the Trial Court Must Exercise Its Discretion to Resentence Martinez on All Counts

As we have stated above, when an appellate court remands a case for resentencing in the trial court, the trial court is entitled to consider the entire sentencing scheme and reconsider all of its sentencing choices. (People v. Buycks, supra, 5 Cal.5th at p. 893.) During Martinez’s resentencing hearing, after observing this court’s directions, the trial court indicated it did not understand the scope of its discretion when it resentenced Martinez on the second degree murder charge: “So the only issue I’m confronted with today deals specifically with what’s the appropriate sentence for the second degree murder conviction. [¶] It’s the only issue I have in front of me. Count 2 and Count 3 are not before me. [Martinez has] already been sentenced on those counts.” It clarified later that the sentences on counts 2 and 3 “remain[ed]” because “[t]he six years and all that, that was not changed by the Court of Appeal[ ] . . . .”

We generally presume the trial court understands and follows applicable law (Evid. Code, § 664; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398) including with regard to sentencing issues. (People v. Mosley (1997) 53 Cal.App.4th 489.) But we cannot do so when the record affirmatively shows the court misunderstood the scope of its discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 944 [“[W]here

the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to impose sentence with full awareness of its discretion”]; People v. Lee (2017) 16 Cal.App.5th 861, 875.) “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)

The People argue the trial court’s remarks show it believed it had no reason to alter the sentences on counts 2 and 3 as opposed to having no authority to do so. They maintain the court had no reason to revisit its prior decisions because there were no new factual or legal determinations as to those counts. We cannot agree the record is ambiguous on this point. It is plain the trial court believed, erroneously, the only matter presented to it for resentencing was the second degree murder conviction. Moreover, we decline to say there is no basis for the trial court to reach some other sentencing decision given the reduction of Martinez’s murder conviction to second degree, particularly where his counsel presented a statement of mitigation including a June 2018 psychological report relating Martinez’s personal history of psychological trauma. Accordingly, if at the ensuing transfer hearing the juvenile court determines it would have transferred Martinez to adult court, the trial court must reinstate Martinez’s convictions and impose a new sentence with “full awareness of its discretion.” (People v. Fuhrman, supra, 16 Cal.4th at p. 944.) We offer no opinion on how the trial court should exercise that discretion.

DISPOSITION

Martinez’s convictions and sentence are conditionally reversed and the matter is remanded for the juvenile court to conduct a juvenile court transfer hearing under Lara, supra, 4 Cal.5th 299. If the juvenile court determines it would have transferred Martinez to a court of criminal (adult) jurisdiction, his convictions shall be reinstated and the court shall exercise its discretion to resentence him on all counts. If the juvenile court finds that it would not have transferred Martinez to a court of criminal jurisdiction, it shall treat his convictions as juvenile adjudications and impose an appropriate disposition within its discretion. (Lara, at p. 310.)

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.