People v. Castillero

• Court: California Court of Appeals
• Writing for the Court: DANNER, J.
• Citation: People v. Castillero, 33 Cal.App.5th 393, 245 Cal.Rptr.3d 90 (Cal. App. 2019)
• Decision Date: 25 March 2019
• Docket Number: H044944
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donovan CASTILLERO, Defendant and Appellant.

33 Cal.App.5th 393

245 Cal.Rptr.3d 90

The PEOPLE, Plaintiff and Respondent,

v.Donovan CASTILLERO, Defendant and Appellant.

H044944

Court of Appeal, Sixth District, California.

Filed March 25, 2019

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Basil R. Williams, Deputy Attorney General, for Plaintiff/Respondent.

Under appointment by the Court of Appeal, Michael Sampson, for Defendant/Appellant

DANNER, J.

The district attorney charged appellant Donovan Castillero in juvenile court with a number of serious sexual offenses. The juvenile court found him unfit for juvenile adjudication and transferred the matter to a court of criminal jurisdiction.¹ In adult/criminal court, Castillero pleaded guilty to four crimes and agreed to serve 40 years in prison. Prior to sentencing, the trial court denied Castillero’s request that his case be transferred back to juvenile court for a transfer hearing pursuant to the procedures set out in Proposition 57, which the electorate passed after Castillero’s original hearing in juvenile court.

We conclude that the adult/criminal court erred in not transferring the case back to juvenile court for a post-Proposition 57 transfer hearing, and we vacate the judgment and order all counts of conviction transferred to juvenile court. For the benefit of the juvenile court after transfer, we detail how the court should proceed upon each count of conviction.

I. FACTS AND PROCEDURAL BACKGROUND

The facts of Castillero’s crimes are largely not relevant to this appeal. In a juvenile wardship petition filed in May 2015 under Welfare and Institutions Code section 602, subdivision (a)² (the petition), the district attorney charged Castillero with two counts of continuous sexual abuse of a child under 14 years ( Pen. Code, § 288.5, subd. (a), counts 1 & 4); sexual penetration of a child under 14 years by force ( Pen. Code, § 289, subd. (a)(1)(B), count 2); committing a lewd or lascivious act on a child under 14 years ( Pen. Code, § 288, subd. (a), count 3); and performing a lewd or lascivious act on a child by force ( Pen. Code, § 288, subd. (b)(1), count 5). On November 13, 2015, the juvenile court found Castillero unfit for prosecution as a juvenile and ordered Castillero transferred to adult/criminal court.³

In November 2015, Castillero was charged by complaint in adult/criminal court with 10 counts of committing a lewd or lascivious act on a child by force ( Pen. Code, § 288, subd. (b)(1), counts 1–10). On November 8, 2016, the electorate passed the Public Safety and Rehabilitation Act of 2016 (Proposition 57). ( People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 303–304, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).) The legislation took effect on November 9, 2016. ( Id . at p. 304, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

On March 27, 2017, Castillero pleaded guilty to four counts of Penal Code section 288, subdivision (b)(1) pursuant to a plea agreement that stipulated that his sentence would be 40 years in prison. Specifically, Castillero pleaded guilty to count 1, which alleged an offense date of "[o]n or about and between April 1, 2014 and June 30, 2014"; count 2, which alleged an offense date of "[o]n or about and between July 1, 2014 and September 30, 2014"; count 5, which alleged an offense date of "[o]n or about and between January 1, 2015 and April 3, 2015"; and count 6, which alleged an offense date of "[o]n or about and between August 25, 2012 and January 31, 2013." Castillero’s date of birth is August 25, 1998. Therefore, Castillero pleaded guilty to crimes committed when he was 15 years old (count 1), 15 or 16 years old (count 2), 16 years old (count 5), and 14 years old (count 6). Castillero’s plea agreement did not mention any waiver of rights under Proposition 57, and Proposition 57 was not discussed on the record during his change-of-plea hearing.

Prior to his sentencing hearing, Castillero filed a "motion for judicial transfer hearing," requesting that the judge in adult/criminal court transfer Castillero’s case back to juvenile court so that a transfer hearing could be conducted pursuant to the procedures set out in Proposition 57. The district attorney opposed the motion, arguing that Proposition 57 was not retroactive. At Castillero’s sentencing hearing on June 27, 2017, the judge in adult/criminal court denied the motion to transfer without explanation, sentenced Castillero to a term of 40 years in prison on counts 1, 2, 5, and 6, and dismissed the remaining counts. Castillero timely appealed.⁴

II. DISCUSSION

Castillero’s major contention on appeal is that the judge in adult/criminal court erred when he refused to transfer Castillero’s case back to juvenile court for a transfer hearing consistent with the legal standards enacted by Proposition 57. The Attorney General agrees that the trial court so erred. Castillero and the Attorney General also agree that, as to those counts for which it is clear Castillero was under 16 years old at the time of their commission (counts 1 & 6), Senate Bill No. 1391, which went into effect on January 1, 2019, prohibits further transfer of these counts back to adult/criminal court. The parties on appeal also agree that, for the count for which Castillero was over 16 years old at the time of its commission (count 5), Castillero should be afforded a transfer hearing under the standards set out in Proposition 57.

The parties dispute what should happen to the one count for which Castillero was either 15 or 16 at the time of the commission of the crime (count 2). The Attorney General argues that this court should remand to the juvenile court "for a factual determination to be made as to [Castillero’s] age at the relevant time." Castillero contends that no further factfinding is possible or appropriate, and this court should therefore reverse and dismiss Castillero’s conviction.

A. Statutory Background

The law governing the treatment of juveniles accused of serious crimes has changed significantly since the district attorney filed the petition against Castillero in juvenile court. In November 2015, at the time of Castillero’s original fitness hearing, a minor (that is, any person under the age of 18) accused of a crime was generally subject to the jurisdiction of the juvenile court, unless the trial court determined the minor unfit for treatment under the juvenile court law. ( Manduley v. Superior Court (2002) 27 Cal.4th 537, 548, 117 Cal.Rptr.2d 168, 41 P.3d 3 ( Manduley ); Lara , supra , 4 Cal.5th at p. 306, 228 Cal.Rptr.3d 394, 410 P.3d 22 ; former §§ 602, 707.) A minor 14 years of age or older accused of a serious crime set out in former section 707, subdivision (b), such as some of the crimes of which Castillero stood accused in his petition, was presumed to be unfit for treatment under the juvenile court law. ( Manduley, at p. 548, 117 Cal.Rptr.2d 168, 41 P.3d 3 ; former § 707, subd. (b)(6) & (b)(8).)

The law in effect at the time of Castillero’s fitness hearing set out the following procedure: "At the juvenile court hearing to determine the question of fitness for treatment, a minor accused of such a crime has the burden of rebutting this presumption of unfitness by a preponderance of the evidence. (Cal. Rules of Court, rule 1483(a).)⁵ If a minor is declared not to be a fit and proper subject for treatment under the juvenile court law in accordance with the foregoing statutes, the district attorney may file an accusatory pleading against the minor in a court of criminal jurisdiction, and the case then proceeds according to the laws applicable to a criminal proceeding. (§ 707.1, subd (a).)" ( Manduley , supra , 27 Cal.4th at pp. 548–549, 117 Cal.Rptr.2d 168, 41 P.3d 3.)

Proposition 57, which took effect on November 9, 2016, significantly amended sections 602 and 707. These statutes no longer contain the presumption, described above, that a juvenile accused of certain serious crimes is unfit for juvenile court. (See former and current §§ 602, 707.) Now, if a prosecuting attorney wishes to try an accused minor as an adult, the prosecutor must file a motion in the juvenile court requesting that the juvenile court transfer the minor to adult/criminal court. (See § 707, subds. (a)(1) & (b) ; rule 5.766(a).) The juvenile court must then conduct a "transfer hearing" to determine if the matter should remain in juvenile court or be transferred to adult/criminal court. ( Lara , supra , 4 Cal.5th at p. 303, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

"[T]here are key differences between a Proposition 57 transfer hearing and the analogous fitness hearing under prior law. Most notably, Proposition 57 shifts the burden of proof in the hearing. Under prior law, the juvenile court was bound by a rebuttable presumption that the defendant was not fit for the juvenile court system, whereas under current law there is no such presumption. ( Welf. & Inst. Code, § 707, subd. (a).) In addition, the court at appellant’s fitness hearing could not retain jurisdiction unless it found him fit for juvenile court under all five criteria. (Former Welf. & Inst. Code, § 707, subd. (c).) In a transfer hearing under current law, the court must consider all five factors, but has broad discretion in how to weigh them. ( Welf. & Inst. Code, § 707, subd. (a)(2).)" ( People v. Garcia (2018) 30 Cal.App.5th 316, 324–325, 241 Cal.Rptr.3d 349 ( Garcia ).) The California Supreme Court has concluded that Proposition 57 effected "an ‘ameliorative change[ ] to the criminal law’ " that must be applied to cases whose sentences were not yet final at the time it was enacted. ( Lara , supra , 4 Cal.5th. at p. 309, 228 Cal.Rptr.3d 394, 410 P.3d 22 ; see also People v. Vieira (2005) 35 Cal.4th 264, 306, 25 Cal.Rptr.3d 337, 106 P.3d 990 ["[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until...