People v. Cardona, F054344.

• Decision Date: 04 September 2009
• Docket Number: No. F054344.,F054344.
• Citation: 99 Cal. Rptr. 3d 313,177 Cal.App.4th 516
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JASON JACOB CARDONA, Defendant and Appellant.

177 Cal.App.4th 516

99 Cal. Rptr. 3d 313

THE PEOPLE, Plaintiff and Respondent, v. JASON JACOB CARDONA, Defendant and Appellant.

No. F054344.

Court of Appeals of California, Fifth District.

September 4, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, David Andrew Eldridge and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, P. J.

Appellant Jason Jacob Cardona stands convicted, following a jury trial, of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1 & 5), forcible lewd act on a child under age 14 (id., § 288, subd. (b)(1); counts 2 & 6), forcible oral copulation (id., § 288a, subd. (c)(2); counts 3 & 7), and sexual penetration by force (id., § 289, subd. (a)(1); count 4). Counts 1 through 4 involved crimes against S., while counts 5 through 7 involved crimes against A., and the jury further found, as to all but count 4, that the offenses were committed against multiple victims. (Id., § 667.61, subd. (e)(5).) Appellant was between 16 and 18 years of age during much of the period of time in which the crimes were alleged to have occurred.¹ Concluding that appellant was not a fit and proper subject to be dealt with under juvenile court law, the trial court sentenced appellant to a total unstayed term of 30 years to life in prison, and this appeal ensured. For the reasons that follow, we will affirm.

FACTS^*

DISCUSSION

I-III^*

IV FINDING OF JUVENILE COURT UNFITNESS

A. Background

The parties stipulated that appellant's date of birth was September 6, 1982. The original information alleged some counts occurring as early as November 1, 1997, while the first amended information alleged some counts occurring as early as May 30, 1992. As set out in the second amended information (upon which the jury returned its verdicts), the offenses charged with respect to S. were alleged to have occurred between September 6, 1998, and May 29, 2001, while the offenses charged concerning A. were alleged to have occurred between September 6, 1998, and November 1, 2002. Thus, appellant was between 16 and 18 years old (hence, a juvenile) during a portion of the periods in which the crimes were committed, having turned 18 on September 6, 2000. In filing the second amended information in the midst of trial, the prosecutor stated her belief that, given the amendment of dates so that appellant was 16 or older at the time of the alleged offenses, the People could "direct file" the charges under Welfare and Institutions Code section 707 and Proposition 21.⁸ Appellant did not object to the amendment of the information or to its being filed directly in adult court.

Prior to sentencing, the People filed a written motion for an adult sentencing. Although contending that provisions enacted in 2000 pursuant to Proposition 21 permitted the direct filing of appellant's offenses in adult court, they observed that the court might, out of an abundance of caution and because some of the offenses antedated enactment of the Proposition 21 statutory amendments, conduct a fitness hearing. The People argued that appellant's failure to object to the direct filing waived any objection to his status, and that he was unfit to be dealt with under the juvenile court law in any event.

The court opted to hold a fitness hearing prior to sentencing. Appellant did not object to this procedure, and did not present any evidence. Following argument concerning the probation officer's fitness report, the trial court found appellant was alleged to be a person described in section 602, and that he was 16 years of age or older at the time of the alleged offenses. Although finding appellant to be a fit and proper subject to be dealt with under the juvenile court law with regard to his prior delinquent history and the success of previous attempts by the juvenile court to rehabilitate him, inasmuch as he had no prior juvenile history or record, the court found him unfit with respect to the degree of criminal sophistication of the offense, whether he could be rehabilitated prior to expiration of the juvenile court's jurisdiction, and the circumstances and gravity of the offenses. Accordingly, the trial court ruled that appellant was not a fit and proper subject to be dealt with under the juvenile court law, and instead was to be sentenced under the general law of California.

Appellant now contends that under Apprendi, supra, 530 U.S. 466 and its progeny, "the facts of juvenile unfitness that increased the penalty for the crimes beyond a juvenile court disposition to a prescribed adult maximum sentence had to [be] submitted to a jury and proven beyond a reasonable doubt," instead of determined by the sentencing judge. To permit an increase in his authorized punishment contingent upon the finding of unfitness facts, he says, violated his Sixth Amendment right to jury trial. Appellant further contends, based on Kent v. United States (1966) 383 U.S. 541 [16 L.Ed.2d 84, 86 S.Ct. 1045] and its progeny, that he was entitled to a hearing before juvenile court jurisdiction was rejected and his case was transferred to the superior court criminal process, and that the procedures employed in this case violated his rights under the due process clause of the Fourteenth Amendment.

Respondent disagrees with both arguments, claiming California law does not make any facts "legally essential" to appellant's prosecution as an adult, and that the United States Supreme Court has made clear that the Sixth Amendment's jury trial rights are to be expanded only to those issues that historically have been the subject of a jury trial. Respondent further says appellant forfeited his due process claim by failing to raise it in the trial court; moreover, because the charges against appellant spanned a time period after the passage of Proposition 21, the prosecutor was required to file them in a court of criminal jurisdiction, and appellant received a fitness hearing in any event.

We conclude Apprendi and its progeny do not apply. We further conclude appellant forfeited any due process claim by failing either to raise it, or to object to the procedures used, in the trial court.

B. Analysis

1. The statutory framework

The prosecutor's apparent uncertainty over what procedure to follow is understandable: The relevant statutes underwent significant revisions over the course of the timeframe alleged in the second amended information.

(1) In 1998, former section 602 placed every juvenile alleged to have committed a crime under the jurisdiction of the juvenile court.⁹ Former section 707 allowed the district attorney to move to have a minor 16 years of age or older found unfit to be dealt with under the juvenile court law. If the minor was not alleged to have committed an offense listed in subdivision (b) of the statute, the juvenile court could find him or her unfit following investigation, consideration of the probation officer's report, and hearing (former § 707, subd. (a)); if the minor was one who, like appellant, was alleged to have committed an offense listed in subdivision (b) of the statute, the minor was presumed to be unfit (former § 707, subd. (c)).¹⁰ Effective March 8, 2000, the electorate enacted the initiative measure known as Proposition 21. As amended thereby, section 602 mandated the prosecution of specified minors in adult court.¹¹ Section 707 permitted the district attorney to directly file charges in adult court against other specified minors.¹²

In light of the foregoing, appellant was, at all times alleged in the second amended information that were prior to his 18th birthday, presumptively unfit to be dealt with under the juvenile court law. What is not clear is whether, because Proposition 21 went into effect partway through the timeframe in which the crimes were alleged to have been committed, appellant was per se unfit. (See In re Veronique P. (2004) 119 Cal.App.4th 195, 198 .) If appellant was per se unfit to be dealt with under the juvenile court law, then any errors with respect to his posttrial, presentence fitness hearing are immaterial, since the trial court could not have found him fit under any circumstances.

We need not decide whether Proposition 21's amendment to section 602 was intended to apply retroactively, contrary to the general rule that a new or amended statute applies prospectively only unless the Legislature or electorate expresses an intent otherwise (see In re N.D. (2008) 167 Cal.App.4th 885, 892 ), or whether applying it to appellant would run afoul of ex post facto principles (see Thompson v. Missouri (1898) 171 U.S. 380, 383 [43 L.Ed. 204, 18 S.Ct. 922]).¹³ We conclude that, even assuming appellant was not per se unfit to be dealt with under the juvenile court law, he has not shown grounds for reversal.

2. Due process

(2) "The possibility of transfer from juvenile court to a court of general criminal jurisdiction is a matter of great significance to the juvenile. [Citation.]" (Breed v. Jones (1975) 421 U.S. 519, 535 [44 L.Ed.2d 346, 95 S.Ct. 1779]; see Kent v. United States, supra, 383 U.S. at p. 556.) In order to afford a juvenile the constitutional protection against multiple trials, a transfer decision generally must be made prior to an adjudicatory hearing. (Breed, supra, at pp. 535-536.) Transfer hearings "must measure up to the essentials of due process and fair treatment. [Citation.]" (Kent, supra, at p. 562.)

At his fitness hearing, appellant was afforded such hallmarks of due process as the assistance of counsel, the right to review the probation officer's report, and the right to present evidence. (Contrast Kent v. United States, supra, 383 U.S. at p. 546.) Although the hearing was not held prior to the waiver of juvenile court jurisdiction, at no time, as ...