Filed 1/10/20 P. v. Merritt CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

LASHEA ETHEL MERRITT,

Defendant and Appellant.

C082832

(Super. Ct. No. 07F01299)

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID GRIFFIN,

Defendant and Appellant.

C082836

(Super. Ct. No. 07F01299)

In 2012, we remanded the cases against defendants Lashea Ethel Merritt and David Griffin for resentencing because their indeterminate life sentences, imposed for crimes they committed as minors, violated the Eight Amendment’s prohibition against cruel and unusual punishment. The defendants now challenge the sentences the trial court imposed upon them after remand and an evidentiary hearing. In C082836 (Griffin), we conditionally reverse and remand to the juvenile court for a transfer hearing, but otherwise affirm the judgment. In C082832 (Merritt), we vacate the sentence, deem the convictions and enhancement findings to be juvenile adjudications, and remand the matter to the juvenile court for disposition.

FACTS AND PROCEEDINGS

We incorporate by reference our statement of facts from our unpublished opinion in the prior appeal. (People v. Kidd (Feb. 24, 2012, C062075, C062512 [nonpub. opn].) In short, defendants participated with others in a home invasion in 2007 that escalated into a kidnapping, sexual assault, and attempted murder. At the time of the crimes, Griffin was 17 years old and Merritt was 15.

Griffin was convicted of attempted murder, robbery in concert, burglary, aggravated kidnapping, conspiracy to commit murder, and participation in a street gang. Enhancements on each offense for firearm use and committing the offenses for the benefit of a street gang were found true. The trial court sentenced Griffin to a prison term of 19 years eight months plus 65 years to life.

Merritt was convicted of robbery in concert, burglary, aggravated kidnapping, conspiracy to commit murder, oral copulation in concert, and participating in a criminal street gang. Enhancements on each offense for firearm use and committing the offenses for the benefit of a street gang were found true. She was acquitted of attempted murder. The trial court sentenced Merritt to a prison term of 30 years plus 65 years to life.

The defendants appealed. We held their prison sentences violated the Eighth Amendment’s prohibition of cruel and unusual punishment. We based our holding on Graham v. Florida (2010) 560 U.S. 48 [176 L.Ed.2d 825] (Graham), which categorically banned a state from sentencing juvenile offenders who commit nonhomicide offenses to prison for life without parole. (Id. at p. 82.) We also relied on People v. Mendez (2010) 188 Cal.App.4th 47 (Mendez), which struck down a minor’s indeterminate sentence under the principles of Graham where the minor’s sentence and a sentence of life without parole were “materially indistinguishable.” (Id. at p. 63.) According to Graham, “[a] State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” (Graham, at p. 82.) We reversed defendants’ sentences and remanded for the trial court to resentence defendants to overall terms of imprisonment that provided them a meaningful opportunity for parole during their lifetimes.

After we issued our opinion, the United States Supreme Court, the California Supreme Court, and the California Legislature expanded the scope of Graham and significantly altered juvenile sentencing. In Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407] (Miller), the United States Supreme Court extended Graham’s reasoning (but not its categorical ban) to juvenile offenders in homicide cases. The court held that the Eighth Amendment prohibited states from imposing a sentencing scheme that mandated life in prison without possibility of parole for juvenile offenders. (Id. at p. 479.) The court required the sentencing authority to have individualized discretion to impose a less severe sentence and, in exercising that discretion, to consider a wide range of youth-related mitigating factors. (Id. at pp. 477-478.) The juvenile sentencing authority in homicide cases must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” (Id. at p. 480, fn. omitted.)

In People v. Caballero (2012) 55 Cal.4th 262 (Caballero), the California Supreme Court agreed with Mendez and interpreted Graham and Miller to prohibit juvenile sentences in nonhomicide cases that are the functional equivalent of a life without parole sentence. (Id. at p. 268.) The court held “the state may not deprive [juvenile offenders] at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.” (Ibid.) It required the sentencing court to “consider all mitigating circumstances attendant in the juvenile’s crime and life . . . so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison ‘based on demonstrated maturity and rehabilitation.’ [Citation.]” (Id. at pp. 268-269.) The court also invited the Legislature to enact legislation establishing a parole eligibility mechanism for juvenile offenders who were serving the functional equivalent of life without parole. (Id. at p. 269, fn. 5.)

Before the trial court convened a hearing on resentencing Griffin and Merritt, the Legislature responded to the Caballero court’s request, and it enacted statutes to address the requirements imposed by Graham, Miller, and Caballero. It passed Senate Bill No. 260, which became effective on January 1, 2013. (Stats. 2013, ch. 312, § 4.) Senate Bill No. 260 added section 3051, which requires the Board of Parole Hearings to conduct a “youth offender parole hearing” during the 25th year of a person’s incarceration who, like defendants, was sentenced to an indeterminate life term of 25 years to life for a crime committed when under the age of 25. (§ 3051, subd. (b)(3).) At that hearing, the Board of Parole Hearings must “give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)

In June and August 2013, the trial court held resentencing hearings at which Griffin and Merritt introduced evidence addressing the Miller and Caballero factors. Following the close of evidence, the court continued the matter numerous times.

In 2016, the California Supreme Court further developed its juvenile sentencing doctrine in People v. Franklin (2016) 63 Cal.4th 261 (Franklin). The Franklin court noted that sentencing courts must apply the Miller factors when the law mandates they impose a sentence on a juvenile offender that is the functional equivalent of life without parole. The court stated: “[A] sentence that is the functional equivalent of LWOP under Caballero is subject to the strictures of Miller just as it is subject to the rule of Graham. In short, a juvenile may not be sentenced to the functional equivalent of LWOP for a homicide offense without the protections outlined in Miller.” (Id. at p. 276.)

Franklin held that section 3051 mooted an Eighth Amendment attack under Miller against a juvenile sentence. Section 3051’s requirement for a parole hearing no later than 25 years after incarceration superseded a statutorily mandated sentence requiring a juvenile to serve life without parole or its functional equivalent. (Franklin, supra, 63 Cal.4th at p. 278.) As a result, such a sentence was no longer life without parole or its functional equivalent, and the juvenile was thus not entitled to individualized sentencing under Miller. (Id. at pp. 279-280.)

Following this lengthy and substantive development in the law, the trial court announced its ruling on defendants’ sentences. The court reaffirmed Griffin’s sentence of 19 years eight months plus 65 years to life, and it resentenced Merritt to prison for five years plus 65 years to life. Relying on Franklin, the court reaffirmed defendants’ indeterminate sentences on the ground that section 3051 mooted their Eighth Amendment claims.

Both defendants appealed. We consolidated the appeals.

DISCUSSION

I

Griffin’s Appeal

In C083236, Griffin contends (1) the trial court erred when it concluded his Eighth Amendment challenge to his sentence was mooted by section 3051; and (2) his trial counsel rendered ineffective assistance by agreeing that section 3051 mooted his Eighth Amendment challenge and he did not have a right to have the Miller factors applied to him at sentencing.

In supplemental briefing, Griffin claims (3) under Proposition 57, the “Public Safety and Rehabilitation Act of 2016,” he is entitled to a conditional reversal to have the juvenile court convene a “transfer” or “fitness” hearing to determine whether it would have transferred Griffin to criminal court for prosecution; (4) we should reverse to allow the court to exercise its new statutory discretion to determine whether to strike the firearm enhancements; and (5) we should reverse pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1175 (Dueñas) for the court to hear whether Griffin has the financial ability to pay fines and fees it imposed on him. Griffin also argues his abstract of judgment needs correction.

We agree that Griffin is entitled to a transfer hearing and a corrected abstract of judgment, but we disagree with his other contentions. We address the request for a transfer hearing first.

A. Transfer hearing in juvenile court

Prior to the adoption of Proposition 57 in 2016, the Welfare and Institutions Code authorized prosecutors to file charges against a juvenile directly in criminal court, as was done here, where the juvenile would be treated as an adult. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305 (Lara).) “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 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. Vela (2018) 21 Cal.App.5th 1099, 1103, citing Welf. &. Inst. Code, § 707, subd. (a)(1).)

Griffin contends Proposition 57 applies retroactively to his case and we should conditionally reverse his judgment and remand to the juvenile court to conduct a transfer hearing. We agree.

There is no longer any dispute that Proposition 57’s requirement to hold a transfer hearing in juvenile court before charging a juvenile in criminal court is retroactive. (Lara, supra, 4 Cal.4th at pp. 303-304.) It thus applies to Griffin, as his case was not final at the time the measure became effective in November 2016.

The appropriate remedy is for us to conditionally reverse the judgment and remand to juvenile court for a transfer hearing pursuant to Welfare and Institutions Code section 707, subdivision (a). (Lara, supra, 4 Cal.4th at pp. 309-310.) If, at the transfer hearing, the juvenile court determines it would have transferred Griffin to criminal court, the judgment of conviction and the sentence, subject to any modification we may order in this opinion, shall be reinstated as of that date. If the juvenile court determines it would not have transferred Griffin to criminal court, his conviction and enhancement findings shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing.

B. Eighth Amendment challenge to indeterminate sentence

Griffin challenges the constitutionality of the trial court’s re-imposing his sentence of 19 years eight months plus 65 years to life. He claims the sentence continues to violate the Eighth Amendment because he was sentenced as an adult to the functional equivalent of life without parole without the trial court applying the Miller factors to construct an individualized sentence. He asserts section 3051 could not moot his appeal because the Eighth and Fourteenth Amendments required his sentence to be based on the court considering the Miller factors at the time of sentencing. The court could not postpone that individualized review until he was eligible for parole. Griffin also claims section 3051 violates his Eighth Amendment rights because it based his eligibility for a parole hearing on the length of his sentence as determined by adult sentencing rules instead of on a sentence derived from applying the Miller factors.

Griffin has forfeited his constitutional claims. At sentencing, his trial counsel conceded Griffin’s mandatory minimum sentence was 50 years to life, and that under Franklin and section 3051, “any argument that a sentence of 60, 70, 80, 90 to life is cruel and unusual punishment [is] moot . . . .” “ ‘No procedural principle is more familiar to this Court than that a constitutional right’ or a right of any other sort, ‘may be forfeited in criminal [cases] as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ [Citation.]” (United States v. Olano (1993) 507 U.S. 725, 731 [123 L.Ed.2d 508].)

Griffin nonetheless argues that we may reach his constitutional claims and, if we do not, that he suffered ineffective assistance of counsel. Neither avenue helps him.

The California Supreme Court rejected his constitutional argument in Franklin. The defendant in that case was convicted of first-degree murder which he committed when he was 16 years old. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences, making defendant eligible for parole in 50 years. (Franklin, supra, 63 Cal.4th at p. 268.) The defendant contended his sentence was unconstitutional under Graham, Miller, and Caballero. As stated above, the high court held the functional equivalent of a life without parole sentence was subject to Miller, but it ruled that because of section 3051, the defendant was not serving the functional equivalent of life without parole, and thus Miller did not apply. Section 3051 mooted the defendant’s constitutional challenge. (Ibid.)

Like Griffin, the Franklin defendant argued that section 3051 did not satisfy the mandate of Miller because it permitted a court to abdicate its responsibility to ensure a juvenile offender’s sentence comports with the Eighth Amendment at the time of sentencing. The defendant relied on People v. Gutierrez (2014) 58 Cal.4th 1354, 1386-1387 (Gutierrez), where the California Supreme Court ruled that the procedure to recall a sentence under section 1170, subdivision (d)(2) after a juvenile offender has served 15 years in prison did not render a life without parole sentence compliant with the Eighth Amendment. “According to [the Franklin defendant], section 3051, like section 1170, subdivision (d)(2), does not satisfy the mandate of Miller because it permits a trial court to abdicate its responsibility to ensure that a juvenile offender’s sentence comports with the Eighth Amendment ‘ “at the outset.” ’ (Gutierrez, supra, 58 Cal.4th at p. 1386, quoting Graham, supra, 560 U.S. at p. 75.)” (Franklin, supra, 63 Cal.4th at pp. 280-281, original italics.)

The Franklin court rejected the analogy of section 3051 to section 1170 and, more significantly here, rejected the argument that a juvenile sentence modified by section 3051 remained subject to Miller. Unlike section 3051, section 1170 had no effect on the juvenile’s parole date and thus left intact a trial court’s determination at sentencing that the offender was already incorrigible and deserved a sentence of life without parole. (Franklin, supra, 63 Cal.4th at p. 281.) “Section 3051, by contrast, effectively reforms the parole eligibility date of a juvenile offender’s original sentence so that the longest possible term of incarceration before parole eligibility is 25 years. Section 1170, subdivision (d)(2) has no similar effect on a juvenile offender’s LWOP sentence; it provides that a juvenile offender may, after serving 15 years of an LWOP sentence, petition a court for recall of the original sentence. In Gutierrez, the trial court had imposed an LWOP sentence without considering youth-based mitigating factors in the manner required by Miller; Gutierrez was sentenced under a scheme that presumed his incorrigibility ‘ “at the outset,” ’ and the resulting sentence would remain in effect unless and until he filed a successful petition for recall. (Gutierrez, supra, 58 Cal.4th at pp. 1386-1387; see id. at p. 1386 [‘A sentence of life without parole under section 190.5(b) remains fully effective after the enactment of section 1170(d)(2).’].) [The Franklin defendant] is not subject to a sentence that presumes his incorrigibility; by operation of law, he is entitled to a parole hearing and possible release after 25 years of incarceration. Unlike Gutierrez, [the Franklin defendant] is not serving an LWOP sentence or its functional equivalent [because of section 3051], so the constitutional requirements for properly evaluating a juvenile offender’s incorrigibility ‘ “at the outset” ’ do not apply here. (Ibid.)” (Franklin, supra, 63 Cal.4th at pp. 281-281, first italics in original, second italics added.) The sentence was not subject to Miller because it was no longer a life without parole sentence or its functional equivalent.

The United States Supreme Court has declared that the constitutional concerns raised by Miller can be adequately addressed by granting the juvenile offender an earlier parole. In Montgomery v. Louisiana (2016) 577 U.S. __ [193 L.Ed.2d 599] (Montgomery), the high court ruled that Miller created a substantive constitutional right, and prisoners whose life without parole sentences for crimes committed as juveniles had long been final could seek collateral relief. Such relief, however, did not have to be a new sentence. Instead, “[a] State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than resentencing them. (See e.g., Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” (Montgomery, supra, 193 L.Ed.2d at p. 622.)

Although Montgomery arose from a collateral challenge, its reasoning applies equally to a direct attack on a sentence. Requiring juveniles such as Griffin, who otherwise would be sentenced to the functional equivalent of life without parole and be entitled to Miller review, to be considered for parole at an earlier date ensures they will not necessarily serve a sentence of life without parole, the very evil Miller addressed.

The California Supreme Court has read Montgomery similarly. In In re Kirchner (2017) 2 Cal.5th 1040, the court held that section 1170(d)(2)’s recall procedure did not constitute an adequate remedy for Miller error that would replace habeas corpus. The court stated section 1170(d)(2) was different from statutes such as section 3051 “that automatically provide a timely parole hearing to juvenile offenders sentenced to terms that otherwise might raise Eighth Amendment concerns. By simply transforming the affected sentences to life with parole terms, those laws avoid the Miller issues associated with the earlier sentences. (See Montgomery, supra, 577 U.S. at p. ___, [193 L.Ed.2d at p. 622] [identifying Wyo.Stat.Ann. § 6–10–301(c), which provides that juvenile offenders sentenced to life terms shall receive parole hearings after 25 years of incarceration, as an example of an adequate response to Miller]; People v. Franklin, supra, 63 Cal.4th at pp. 278-280 [finding Miller issues moot with regard to defendants subject to § 3051, subd. (b)(1)-(3), which provides for parole hearings for certain juvenile offenders no later than their 25th year of incarceration].)” (In re Kirchner, supra, 2 Cal.5th at p. 1054.)

Griffin argues the Franklin court erred by presuming the Eighth Amendment gives a juvenile nothing more than a parole date. He claims Miller requires a court to give a juvenile an individualized sentence in the first instance. But Griffin fails to recognize that Miller applies only to sentences of life without parole or their functional equivalent. Section 3051 transforms Griffin’s sentence to 25 years to life, which in Griffin’s case is not the functional equivalent of life without parole.

Griffin’s insistence that he has been sentenced to the functional equivalent of life without parole is not true. Because of section 3051, he is no longer subject to such a sentence. While there remains the possibility Griffin may never be paroled, as a matter of law he has effectively been sentenced to an indeterminate term of 25 years to life, no matter what indeterminate sentence the court imposed. Because of section 3051, Miller and its progeny do not apply to him. That is the California Supreme Court’s holding in Franklin and In re Kirchner and we are bound to follow it. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.)

Moreover, no matter the holding in Franklin, Griffin has not proved error. When the trial court resentenced defendants, it went into individual facts and stated on the record that “in fact” it was individually expressing its evaluation of some of the factors. The trial court did not violate Griffin’s Eighth Amendment rights when it reaffirmed his sentence.

Our discussion also resolves Griffin’s claim of ineffective assistance. Because any objection on Miller grounds would have been overruled, Griffin’s counsel did not render ineffective assistance when he conceded the point. “[T]he failure to take a futile action can never be deficient performance . . . .” (Rupe v. Wood (9th Cir. 1996) 93 F.3d 1434, 1445.)

C. Striking the firearm enhancements

Griffin’s sentence includes a firearm enhancement of 25-years-to-life that was imposed under section 12022.53 on his conviction of conspiracy to commit murder. A similar enhancement for his conviction of attempted murder was stayed under section 654, as was the sentence on that conviction. He asks us to remand so the court can consider striking the enhancements.

Prior to 2018, the superior court was barred from striking those enhancements. On January 1, 2018, Senate Bill No. 620 became effective. (Stats. 2017, ch. 682, §§ 1-2.) That measure removed the bar and vested the court with discretion to strike firearm enhancements imposed under sections 12022.5 and 12022.53. (§§ 12022.5, subd. (c); 12022.53, subd. (h).) Senate Bill No. 620 applies retroactively to Griffin’s case, as it became effective before the case was final. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)

Remand, however, is not automatic. We need not remand if the “record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken a firearm enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) We review the trial court’s statements and sentencing decisions to see if the court clearly indicated its intent not to strike the enhancement if it had the discretion to do so.

We agree with the People that the trial court at resentencing indicated by its statements and sentencing decisions that it would not have stricken the firearm enhancements against Griffin if it had the opportunity to do so. The court stated the conduct of Griffin, Merritt, and their co-defendants “presented one of the more serious and violent crimes committed over a course of time that did not result in death that in the 22 years as a judge I have had an occasion to preside over. That says a lot; I’ve seen a lot of horrific things, many of them unfortunately as a product or as a part of the gang lifestyle, the adoption of a gang mind-set, and all of the corrupt and twisted moral values that the gangs have adopted as a way of life.” The court imposed the identical sentence it had earlier imposed, including sentencing Griffin to the upper term on his burglary conviction. It also refused to strike Griffin’s gang enhancements.

Griffin does not dispute these facts. Rather, he argues the matter should be remanded considering recent public policy, expressed by the passage of Proposition 57 and similar legislation, favoring shorter sentences that lighten the burden on taxpayers. This is not the test we apply to determine whether the trial court in the first instance would have stricken the firearm enhancements if it had the discretion to do so. We will not remand for resentencing on the firearm enhancements.

D. Ability to pay fines and fees

The trial court imposed restitution and parole revocation fines and various fees against Griffin. He contends in his latest supplemental brief that the court erred in doing so without first determining his ability to pay, a requirement announced in Dueñas, supra, 30 Cal.App.5th 1157. There, the court held that it was a violation of the defendant’s right to due process to impose a restitution fine and court operations and facilities assessments without first determining the convicted defendant’s ability to pay. (Id. at p. 1168.)

Citing Dueñas, Griffin contends that the matter must be returned to the trial court for a hearing on his ability to pay the fines and fees ordered by the trial court and that his argument has not been forfeited on appeal. The People, on the other hand, argue, among other things, that Griffin forfeited this assertion of error.

We need not decide the forfeiture issue because we hold that Dueñas was wrongly decided regarding the issue of hearings on the ability to pay fines and fees before they are ordered by the trial court.

Dueñas held “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes court facilities and court operations assessments under []section 1465.8 and Government Code section 70373.” (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held “that although []section 1202.4 bars consideration of a defendant’s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.)

The Dueñas opinion relies on a line of authorities beginning with Griffin v. Illinois (1956) 351 U.S. 12 (Griffin), which itself rested on the “ ‘constitutional guaranties of due process and equal protection’ ” and struck down a state practice of granting appellate review only to individuals who could afford a trial transcript. (Griffin v. Illinois, supra, 351 U.S. at pp. 13, 17; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1169.) As recent appellate court cases have illustrated, the authorities Dueñas cites involving the right of access to courts are inapplicable because the imposition of the fine and assessments at issue in Dueñas and in this proceeding do not deny defendants access to the courts. (People v. Hicks (2019) 40 Cal.App.5th 320, 326; People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 927; see also People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1039 (conc. opn. of Benke, J.).)

Griffin also stated broadly, “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Griffin, supra, 351 U.S. at p. 19.) Another line of cases relied upon by Dueñas is related by this “principle of ‘equal justice’ ” and prohibits imprisonment based on the failure to pay criminal penalties where the nonpayment was due to indigence. (Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 664; accord In re Antazo (1970) 3 Cal.3d 100, 103-106, 109-110; see Dueñas, supra, 30 Cal.App.5th at pp. 1166-1168.)

These authorities prohibiting incarceration for indigence alone are also inapplicable because the fine and assessments at issue in Dueñas and this appeal subject an indigent defendant “only to a civil judgment that she [or he] cannot satisfy.” (Dueñas, supra, at p. 1167; People v. Hicks, supra, 40 Cal.App.5th at p. 326; People v. Caceres, supra, 39 Cal.App.5th at p. 927.) Indeed, in In re Antazo, supra, 3 Cal.3d 100, our Supreme Court granted a petition for writ of habeas corpus only to discharge the petitioner from his imprisonment resulting from his inability to pay the fine and penalty assessment imposed as a condition of probation, but did not relieve him from any obligations in his probation order. (Id. at p. 117.) The court explained, “[W]e do not hold that the imposition upon an indigent offender of a fine and penalty assessment, either as a sentence or as a condition of probation, constitutes of necessity in all instances a violation of the equal protection clause.” (Id. at p. 116, italics added.) In other words, “Dueñas does more than go beyond its foundations; it announces a principle inconsistent with them.” (People v. Hicks, supra, 40 Cal.App.5th at p. 327.)

Further, “the fundamental policy question presented in Dueñas is a nettlesome one—namely, under what circumstance is it appropriate to require criminal defendants, many of whom are people of little or no means, to pay assessments that help defray the costs of operating the court system and restitution fines that pour into a statewide fund that helps crime victims?” (People v. Hicks, supra, 40 Cal.App.5th at p. 328.) This “is a question to which . . . the federal and California Constitutions do not speak and thus have left to our Legislature.” (Id. at p. 329.)

We join those authorities that have concluded that the principles of due process do not supply a procedure for objecting to the fines and assessments at issue in Dueñas and in this proceeding based on the present ability to pay. (People v. Hicks, supra, 40 Cal.App.5th at p. 329; People v. Aviles, supra, 39 Cal.App.5th at p. 1069; People v. Caceres, supra, 39 Cal.App.5th at p. 928.) To the extent it announced this broad rule, Dueñas was wrongly decided, and Griffin’s claim pursuant thereto is without merit.

E. Correcting the abstract of judgment

In our earlier opinion, we directed the trial court to prepare a corrected abstract of judgment to note that the section 12022.53 firearm enhancement on count seven, conspiracy to commit murder, is based on subdivisions (d) and (e)(1) of that statute. This was not done on Griffin’s abstract. We again direct the trial court to make the correction.

II

Merritt’s Appeal

In C082832, Merritt contends the trial court erred in resentencing her. While she raised numerous grounds in her opening brief, the argument in her most recent supplemental brief, that Senate Bill No. 1391 prohibited her from being sentenced in criminal court, convinces us her sentence must be vacated and the matter remanded to juvenile court for disposition.

Merritt also contends we should remand to allow the court to exercise its discretion under Senate Bill No. 620 to strike her firearm enhancements. Because Senate Bill No. 620 applies to her and we remand the matter to the juvenile court, this request is moot.

A. Senate Bill No. 1391

While this appeal was pending, the Governor signed into law Senate Bill No. 1391. Senate Bill No. 1391, effective January 1, 2019, amends Proposition 57 by prohibiting the People from transferring a minor from juvenile court to criminal court if the minor committed certain serious offenses while she was 14 or 15 years of age, with exceptions not relevant here. (Welf. & Inst. Code, § 707, subds. (a)(1), (b); Stats. 2018, ch. 1012, § 1.) Merritt was 15 years old when she committed her crimes. She was convicted of robbery, burglary, kidnapping to commit robbery or a sex offense, and forcible oral copulation in concert, all felonies subject to Senate Bill No. 1391. (Welf. & Inst. Code, § 707, subd. (b).) If Senate Bill No. 1391 applies retroactively to Merritt, the criminal court had no jurisdiction to resentence her.

Merritt argues, and the People agree, that Senate Bill No. 1391 applies retroactively to Merritt’s sentence. We also agree. Under the ruling of In re Estrada (1965) 63 Cal.2d 740, absent evidence to the contrary, courts assume the Legislature intended amendments to statutes that reduce punishment for a crime to apply to all defendants whose judgments are not yet final on the amendments’ operative date. (People v. Brown (2012) 54 Cal.4th 314, 323 [discussing Estrada].) In Lara, the California Supreme Court held this rationale applied to Proposition 57 because “[t]he 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, supra, 4 Cal.5th at p. 303.) By the same logic, Merritt is retroactively entitled to the benefit of Senate Bill No. 1391, particularly since that provision provides more that the “possibility” of juvenile treatment; it requires it for 15 year olds like Merritt. We will vacate her sentence and remand to the juvenile court for disposition.

B. Senate Bill No. 620

Merritt asks us to remand so the trial court may consider striking her firearm enhancements pursuant to Senate Bill No. 620. We have already stated that Senate Bill No. 620 is retroactive. It thus applies to Merritt. Because we are remanding the entire matter to the juvenile court for disposition, that court will have the discretion to consider striking the enhancements. Merritt’s request for a remand on this basis is moot.

DISPOSITION

In C082836 (Griffin), the judgment is conditionally reversed and the matter is remanded to juvenile court for a transfer hearing pursuant to Welfare and Institutions Code section 707, subdivision (a). If, at the transfer hearing, the juvenile court determines it would have transferred Griffin to criminal court, the judgment of conviction and the sentence shall be reinstated as of that date. If the juvenile court determines it would not have transferred Griffin to criminal court, his conviction and enhancement findings shall be deemed to be juvenile adjudications as of that date, and the juvenile court shall conduct a dispositional hearing. We also direct the court to prepare a corrected abstract of judgment to note that the section 12022.53 firearm enhancement on count seven against Griffin, conspiracy to commit murder, is based on subdivisions (d) and (e)(1) of that statute. In all other respects, the judgment is affirmed.

In C082832 (Merritt), the sentence is vacated. The convictions and enhancement findings are hereby deemed to be juvenile adjudications, and the matter is remanded to the juvenile court for disposition.

HULL, J.

We concur:

BLEASE, Acting P. J.

MURRAY, J.