Andrew M. v. Superior Court, A158129

• Court: California Court of Appeals
• Writing for the Court: Jones, P. J.
• Citation: 257 Cal.Rptr.3d 257,43 Cal.App.5th 1116
• Parties: ANDREW M., Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; The People, Real Party in Interest.
• Docket Number: A158129
• Decision Date: 06 January 2020

43 Cal.App.5th 1116
257 Cal.Rptr.3d 257

ANDREW M., Petitioner,
v.
The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;

The People, Real Party in Interest.

A158129

Court of Appeal, First District, Division 5, California.

Filed January 6, 2020

Elizabeth K. Barker, Assistant Public Defender, Zachary Linowitz and Sarah Eisenhart, Deputy Public Defenders for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Deputy Attorney General, Diana Becton, District Attorney, Ryan Wagner, Deputy District Attorney for Real Party in Interest.

Jones, P. J.

43 Cal.App.5th 1120

Andrew M.’s petition for writ of mandate presents an issue of first impression: does a conditional reversal and limited remand to the juvenile court to conduct a transfer hearing pursuant to Proposition 57, the Public Safety and Rehabilitation Act of 2016 ( Cal. Const., art. I, § 32 ), constitute a "new trial" for purposes of exercising a

43 Cal.App.5th 1121

Code of Civil Procedure section 170.6¹ challenge? Guided by our high court’s decision in Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 135 Cal.Rptr.2d 639, 70 P.3d 1054 ( Peracchi ), we conclude the answer is no.

We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005—shortly before turning 18—Andrew M. committed an armed robbery, during which his accomplice shot and killed a police officer. A jury convicted Andrew M. of special circumstance first degree murder, three counts of second degree

257 Cal.Rptr.3d 260

robbery, and driving a stolen vehicle. The jury found true firearm use allegations. Judge Laurel Brady sentenced Andrew M. to life in prison without the possibility of parole (LWOP), plus 24 years on the remaining charges and enhancements. Andrew M. appealed. In 2010, this court reversed the peace officer special circumstance and remanded for resentencing. On remand, Judge Brady sentenced Andrew M. to LWOP plus 24 years.

Andrew M. appealed. In 2012, we remanded for resentencing pursuant to Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407. The California Supreme Court granted review and consolidated Andrew M.’s case with a companion case. In 2014, our high court remanded "for resentencing in light of the principles set forth in Miller and this opinion." ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1361, 171 Cal.Rptr.3d 421, 324 P.3d 245.) Judge Brady held a resentencing hearing and imposed LWOP plus 23 years. In a lengthy explanation of her reasoning for imposing the LWOP term, Judge Brady found Andrew M.’s actions "were not those of an irresponsible or impulsive child, nor were they the product of peer pressure or coercion by others or surprise. They were the very adult, very violent acts of a young man who showed no regard for the impact of his actions on the victims in this case." The court found Andrew M. was not "irrational, immature, or childlike" and that he was not a "juvenile offender whose crime reflects unfortunate yet transient immaturity. [Andrew M.’s] juvenile history coupled with his behavior and actions while in custody, before, during and after the trial, along with the facts and circumstances of the crimes themselves, cannot support a finding of immaturity. Quite the contrary. [¶] This Court does not find that there is a realistic chance of rehabilitation." ( People v. Moffett, supra , A143724.)

Andrew M. appealed. In 2016, we modified the sentencing minute order and abstract of judgment. In all other respects, we affirmed. After granting

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review pending disposition of a related issue in another case, the California Supreme Court transferred this case to this court with directions to consider whether legislation rendering juvenile LWOP defendants eligible for parole suitability hearings mooted Andrew M.’s challenge to his sentence.

Proposition 57 became effective while Andrew M.’s appeal was pending. Proposition 57 eliminated a prosecutor’s ability to "direct file" charges in criminal court against minors of a certain age when the crimes were committed. These minors may be tried in criminal court, but only after the juvenile court " ‘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. Superior Court (Lara) (2018) 4 Cal.5th 299, 305, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

In February 2019, we rejected Andrew M.’s LWOP challenge, but concluded he was entitled to a Proposition 57 transfer hearing, and to resentencing on the firearm enhancement allegations. Our disposition provided: " ‘The judgment is conditionally reversed. The cause is remanded with instructions that it be transferred to the juvenile court to conduct a transfer hearing no later than 90 days from the filing of the remittitur. [¶] If, at the transfer hearing, the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, then the matter shall be transferred to the criminal court and defendant’s conviction is to be reinstated. The court shall then resentence [Andrew M.] and must exercise its discretion under [ Penal Code section 12022.53, subdivision (h) ]. [¶] If, at the transfer

257 Cal.Rptr.3d 261

hearing, the juvenile court determines that it would not have transferred [Andrew M.] to a court of criminal jurisdiction, then [Andrew M.’s] criminal convictions and enhancements will be deemed juvenile adjudications as of the date of the verdict. The juvenile court shall exercise its discretion pursuant to [ Penal Code section 12022.53, subdivision (h) ] in deciding whether to strike the firearm enhancements. The juvenile court is then to conduct a dispositional hearing within its usual timeframe.’ " ( People v. Moffett, supra , A143724.)

When the case returned to the superior court, the prosecution moved to assign the transfer hearing to Judge Brady. Andrew M. objected, accusing the prosecution of forum shopping. The court granted the motion and assigned the matter to Judge Brady. Andrew M. immediately filed a section 170.6 challenge. After hearing extensive argument and written briefing, the court denied the challenge. It determined a "shift in the law" necessitated the remand, not a "reversal on appeal in the normal sense." The court also implicitly rejected Andrew M.’s argument that the transfer hearing was a "new trial" under section 170.6.

43 Cal.App.5th 1123

Andrew M. seeks writ relief in this court. He argues the transfer hearing is a "new trial" within the meaning of section 170.6, subdivision (a)(2) and, as a result, the court erred by denying the challenge. We issued an order to show cause why relief should not be granted, and requested briefing on several issues, including the application of Peracchi .

DISCUSSION

I.

General Principles

To place the issues in context, we briefly describe transfer hearings conducted pursuant to Proposition 57. Proposition 57 "largely returned California to the historical rule. ‘Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors.’ " ( Lara , supra, 4 Cal.5th at pp. 305–306, 228 Cal.Rptr.3d 394, 410 P.3d 22.) When a minor has been charged in the juvenile court with a felony allegedly committed when the minor was 16 years of age or older, the prosecution may move " ‘to transfer the minor from juvenile court to a court of criminal jurisdiction.’ " ( J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 711, 233 Cal.Rptr.3d 220.) The prosecution has the burden to establish "by a preponderance of the evidence the minor is not a suitable candidate for treatment under the juvenile court system." ( Id. at p. 715, 233 Cal.Rptr.3d 220.) At the transfer hearing, the court must consider five factors: "the minor’s degree of criminal sophistication, whether the minor can be rehabilitated in the time before the juvenile court would lose jurisdiction over the minor, the minor’s prior history of delinquency, the success of prior attempts by the juvenile court to rehabilitate the minor, and the circumstances and gravity of the charged offense." ( Id. at p. 711, 233 Cal.Rptr.3d 220.) The court has broad discretion in weighing the factors. ( People v. Garcia (2018) 30 Cal.App.5th 316, 325, 241 Cal.Rptr.3d 349.)

Proposition 57 applies retroactively to cases—like Andrew M.’s—that were pending when the legislation became effective. ( Lara, supra, 4 Cal.5th at p. 309, 228 Cal.Rptr.3d 394, 410 P.3d 22.) In Lara , our high court approved a procedure under which an appellate court conditionally reverses the judgment and remands for a transfer hearing in the juvenile court. ( Ibid. ) The " ‘jury’s convictions, as well as its true findings as to the sentencing enhancements, will remain in place.’ " (

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Id. at pp. 309–310, 228 Cal.Rptr.3d 394, 410 P.3d 22.) The hearing is to be conducted " ‘as though the...