People v. Brewer

• Decision Date: 17 November 2017
• Docket Number: F070564
• Citation: 225 Cal.Rptr.3d 623,17 Cal. App. 5th 471
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeremiah Charlie BREWER, Defendant and Appellant.

17 Cal.App.5th 471

225 Cal.Rptr.3d 623

The PEOPLE, Plaintiff and Respondent,

v.Jeremiah Charlie BREWER, Defendant and Appellant.

F070564

Court of Appeal, Fifth District, California.

Filed November 17, 2017

Certified for Partial Publication.^*

J. Peter Axelrod, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

DETJEN, J.

INTRODUCTION

At the conclusion of a court trial, Jeremiah Charlie Brewer(defendant) was convicted of sexual penetration by force ( Pen. Code, § 289, subd. (a)(1)(A); count 1), assault with intent to commit rape or forcible sexual penetration during the commission of first degree burglary (id ., § 220, subd. (b); count 2), and kidnapping to commit rape or forcible sexual penetration (id ., § 209, subd. (b)(1); count 3).The court found true allegations in count 1 that defendant substantially increased the risk of harm to the victim inherent in the offense by kidnapping her (id ., § 667.61, subds. (a), (d)(2)), committed the offense during the commission of first degree burglary with the intent of committing sexual penetration by force (id ., § 667.61, subds. (a), (d)(4)), and kidnapped the victim to accomplish the offense (id ., § 667.61, subds. (b), (e)(1)).Defendant was sentenced to an unstayed term of 25 years to life in prison.

In our original unpublished opinion, we held: (1) There was sufficient evidence defendant substantially increased the risk to the victim within the meaning of Penal Code sections 209, subdivision (b)(1), and667.61, subdivision (d)(2) by moving her within her own apartment; (2) The fact the allegation under subdivision (d)(2) of section 667.61 of the Penal Code was found true does not require reversal of the true finding under section 667.61, subdivision (e)(1) of that code; and (3)Defendant's sentence does not constitute cruel and/or unusual punishment under the federal and state Constitutions, and his trial attorney was not ineffective for failing to object on that ground.Accordingly, we affirmed.

Defendant petitioned for rehearing, arguing that Proposition 57, the Public Safety and Rehabilitation Act of 2016(Proposition 57 or the Act), enacted by the voters on November 8, 2016, applies retroactively to his case and requires a remand to the juvenile court system for further proceedings.¹We granted rehearing to determine whether defendant is entitled to relief under the Act.In the published portion of this opinion, we conclude Proposition 57 does not apply retroactively to defendant's case.In so holding, we reject claims the Act reduces the range of punishment for all juvenile offenders by giving the juvenile court exclusive jurisdiction over all juveniles, and creates a previously unavailable affirmative defense.In the unpublished portion, we adhere to our original analysis and again find no error.Accordingly, we again affirm.

FACTS^**

DISCUSSION

1.-3.^***

4.PROPOSITION 57

We granted rehearing and asked the parties to submit supplemental briefing regarding whether Proposition 57 applies retroactively to defendant's case.Defendant argues Proposition 57 applies retroactively to all cases not yet final, pursuant to In re Estrada(1965)63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948( Estrada ).He says: " Estrada 's retroactivity presumption applies ... for several reasons: reduction of punishment; creation of an affirmative defense[;] and retroactive application is consonant with [the Act's] stated purposes."

Procedural Background and Proposition 57

Historically, before a minor could be tried in criminal (adult)court, California required a finding the minor was unfit to be dealt with under the juvenile court law.(See, e.g., Juan G. v. Superior Court(2012)209 Cal.App.4th 1480, 1493, 147 Cal.Rptr.3d 816;People v. Cardona(2009)177 Cal.App.4th 516, 523-524, 99 Cal.Rptr.3d 313.)Although, prior to 1999, there were no provisions for the direct filing (mandatory or discretionary) of charges against juveniles in criminal court( Juan G. , supra , at p. 1493, 147 Cal.Rptr.3d 816 ), a presumption of unfitness for minors, aged 16 years old or older and charged with specified offenses, was added to the Welfare and Institutions Code⁵ in 1979, and extended, in 1994, to minors between the ages of 14 and 16 who were alleged to have committed certain forms of murder ( People v. Superior Court(Jones)(1998)18 Cal.4th 667, 680-681, fn. 1, 76 Cal.Rptr.2d 641, 958 P.2d 393 ).

In 1999, the Legislature added subdivision (b) to section 602, mandating the direct filing in criminal (adult)court of criminal cases against minors 16 years of age or older under specified circumstances.( Juan G. v. Superior Court , supra , 209 Cal.App.4th at p. 1493, 147 Cal.Rptr.3d 816.)In 2000, voters approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998.In pertinent part, it "confer[red] upon prosecutors the discretion to bring specified charges against certain minors directly in criminal court, without a prior adjudication by the juvenile court that the minor is unfit for a disposition under the juvenile court law."( Manduley v. Superior Court(2002)27 Cal.4th 537, 545, 117 Cal.Rptr.2d 168, 41 P.3d 3;see generallyid ., at pp. 548-550, 117 Cal.Rptr.2d 168, 41 P.3d 3.)Proposition 21 also decreased, to 14, the minimum age for mandatory criminal prosecutions.( Manduley , supra , at p. 550, 117 Cal.Rptr.2d 168, 41 P.3d 3.)

Elizabeth F. was sexually assaulted by defendant on February 10, 2012.Defendant was born October 13, 1995, making him 16 years old at the time of the crimes of which he was convicted.For unknown reasons, despite the provisions of former section 602, subdivision (b), mandating the direct filing of the accusatory pleading in criminal court, defendant's case proceeded by way of a juvenile wardship petition, filed March 9, 2012, under former section 602, subdivision (a).⁶The probation officer recommended that defendant be found not a fit and proper subject to be dealt with under the juvenile court law.On June 6, 2012, following a contested hearing, the juvenile court so found, and referred the matter to the district attorney for prosecution under the general law.

On June 8, 2012, charges were filed against defendant in criminal court.He was convicted on September 2, 2014, and sentenced on October 29, 2014.His notice of appeal was filed on November 26, 2014.On November 8, 2016, while defendant's appeal was pending, voters enacted Proposition 57.It went into effect the next day.( Cal. Const., art. II, § 10, subd. (a).)Insofar as we are concerned, the Act eliminated the People's ability to initiate criminal cases against juvenile offenders anywhere but in juvenile court.The Act also removed the presumption of unfitness that previously attached to the alleged commission of certain offenses.⁷

The purpose of the portions of Proposition 57 that deal with juvenile offenders is to undo Proposition 21.(See generallyPeople v. Marquez(2017)11 Cal.App.5th 816, 821, 217 Cal.Rptr.3d 814, review grantedJuly 26, 2017, S242660.)Thus, two of the Act's stated purposes, contained in uncodified section 2 thereof, are to "[s]top the revolving door of crime by emphasizing rehabilitation, especially for juveniles," and "[r]equire a judge, not a prosecutor, to decide whether juveniles should be tried in adult court."(Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141(Voter Information Guide).)⁸

Analysis

There can be no doubt that, had defendant committed his offenses after Proposition 57 went into effect, he would have been entitled to a fitness hearing—with no presumption of unfitness—before his case could be transferred to criminal court for prosecution.⁹The question we confront is whether Proposition 57 applies to juvenile offenders who, like defendant, were charged, tried, convicted, and sentenced before the Act's effective date, but whose cases are not yet final on appeal.(SeePeople v. Covarrubias(2016)1 Cal.5th 838, 935, 207 Cal.Rptr.3d 228, 378 P.3d 615[for purpose of determining retroactive application of amendment to criminal statute, judgment is not final until time for petitioning for writ of certiorari in United States Supreme Court has passed].)This is a purely legal question we analyze de novo.(SeePeople v. Arroyo(2016)62 Cal.4th 589, 593, 197 Cal.Rptr.3d 122, 364 P.3d 168.)¹⁰

Defendant says the provisions of Proposition 57 requiring a juvenile fitness/transfer hearing, and repealing the presumption of unfitness, apply to all cases not yet final.We disagree.

In ascertaining whether a statute should be applied retroactively, the intent of the electorate, or the Legislature, "is the ‘paramount’ consideration ...."( People v. Nasalga(1996)12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380(plur. opn. of Werdegar, J.);seePeople v. Conley(2016)63 Cal.4th 646, 656, 203 Cal.Rptr.3d 622, 373 P.3d 435.)" ‘ "In interpreting a voter initiative" ’ such as Proposition [57], ‘ "we apply the same principles that govern statutory construction.[Citation.]Thus, ... ‘we turn first to the language of the statute, giving the words their ordinary meaning.’[Citation.]... The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme[in light of the electorate's intent].[Citation.]... When the language is ambiguous, ‘we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.’ " '[Citation.]‘In other words, our "task is simply to interpret and apply the initiative's language so as to effectuate the electorate's intent." ’[Citation.]"( People v. Arroyo , supra , 62 Cal.4th at p. 593, 197...