People v. Hargis

• Citation: 244 Cal.Rptr.3d 745,33 Cal.App.5th 199
• Decision Date: 20 March 2019
• Docket Number: F076087
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daryl HARGIS, Defendant and Appellant.

33 Cal.App.5th 199

244 Cal.Rptr.3d 745

The PEOPLE, Plaintiff and Respondent,

v.Daryl HARGIS, Defendant and Appellant.

F076087

Court of Appeal, Fifth District, California.

Filed March 20, 2019

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

In this case, we examine the interplay among remand orders, changes in the law, and finality of judgments in criminal cases. Two questions are presented, both arising from a case in which Daryl Hargis (defendant), then a minor, was directly charged and tried as an adult. His convictions and sentence were affirmed on appeal, and the matter was remanded to the trial court for the limited purpose of permitting him to make a record of information relevant to his eventual youth offender parole hearing.

First, after the appellate opinion was filed, but before remittitur issued, voters eliminated prosecutorial discretion to file charges against certain juvenile defendants directly in a court of criminal (adult) jurisdiction. Is defendant entitled to a juvenile fitness/transfer hearing under the new law, despite the limited remand order? We hold the answer is yes.

Second, after the remittitur issued and proceedings on remand took place, but while the appeal following those proceedings was pending, the Legislature gave trial courts discretion to strike firearm enhancements. Such discretion did not exist at the time defendant was sentenced. Is defendant entitled to a remand to have the trial court exercise its new discretion? We conclude the answer depends on the outcome of the juvenile fitness/transfer hearing.

FACTS AND PROCEDURAL HISTORY

On September 20, 2009, defendant and several cohorts approached a 7-Eleven store in Bakersfield, intending to rob it. As they neared the store, police arrived. One of defendant's companions shot and wounded an officer before being shot himself. Defendant was taken into custody while attempting to flee the vicinity of the store. Parts of a BB (replica) gun that was not operational were found near his location.

Defendant was convicted of attempted murder of a peace officer engaged in the lawful performance of his duties ( Pen. Code,¹ §§ 187, subd. (a), 664, subd. (e) ; count one), assault with a semiautomatic firearm on a peace officer (§ 245, subd. (d)(2); count two), attempted second degree robbery (§§ 212.5, subd. (c), 664; count three), conspiracy to commit second degree robbery (§ 182, subd. (a)(1); count four), and active participation in a criminal street gang (§ 186.22, subd. (a); count seven). As to counts one through four, the jury found the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)), and that a principal in the offense personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subds. (d), (e)(1)). Defendant was sentenced to a total unstayed term of 16 months plus 57 years to life in prison.

On defendant's first appeal, we affirmed the judgment in its entirety. The California Supreme Court granted review and remanded the case to us with directions to vacate our decision and to reconsider the cause in light of People v. Franklin (2016) 63 Cal.4th 261, 283-284, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ). We again affirmed the judgment — expressly including the sentence — but remanded the matter to the trial court for a determination whether defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing and, if not, to afford him that opportunity. The opinion was filed October 31, 2016.

On November 8, 2016, voters enacted Proposition 57, "The Public Safety and Rehabilitation Act of 2016" (Proposition 57). It went into effect the next day. ( Cal. Const., art. II, § 10, former subd. (a).) Insofar as is pertinent, Proposition 57 eliminated the People's ability to initiate criminal cases against juvenile offenders anywhere but in juvenile court. Instead, it requires prosecutors to commence such actions in juvenile court. If a prosecutor wishes to try a juvenile as an adult, the juvenile court must conduct a fitness or transfer hearing to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to criminal (adult) court can the juvenile be tried and sentenced as an adult. Proposition 57 also removed the presumption of unfitness that previously attached to the alleged commission of certain offenses. (See generally Welf. & Inst. Code, §§ 602, 707, subds. (a), (b) ; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).)

Remittitur issued with respect to our second opinion on January 3, 2017. On March 2, 2017, the trial court set the matter for hearing in accordance with the remittitur. On March 13, 2017, defendant, acting in propria persona, filed a motion to have the case remanded to juvenile court pursuant to Proposition 57. The People responded that (1) the subject of defendant's motion fell outside the scope of the hearing permitted by this court's remand, and (2) Proposition 57 did not apply retroactively in any event.

On May 22, 2017, the trial court ruled it had no jurisdiction to entertain defendant's motion and denied the motion on that basis. The court remarked that the motion would be better heard by the court that had jurisdiction, namely the Court of Appeal. On June 21, 2017, the court afforded defendant the opportunity to present evidence and information the defense wished to memorialize for purposes of consideration by parole boards in the future. Defense counsel again raised the Proposition 57 issue; the court reiterated that it did not have jurisdiction over that subject and was "not the proper forum at this time to conduct any Proposition 57 hearings ...." Defendant filed a timely notice of appeal.

Effective January 1, 2018, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) were amended, pursuant to Senate Bill No. 620 (2017–2018 Reg. Sess.), to allow trial courts to strike or dismiss, in the interest of justice pursuant to section 1385, firearm enhancements otherwise required to be imposed by those sections. (Stats. 2017, ch. 682, §§ 1, 2.)

On February 1, 2018, the California Supreme Court held that "Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." ( Lara , supra , 4 Cal.5th at p. 304, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Defendant now contends the case must be remanded (1) for a fitness/transfer hearing in juvenile court and (2) so the court can exercise its discretion whether to strike the firearm enhancements. As to the first claim, the Attorney General says issues pertaining to Proposition 57 are barred by the limited nature of our remand in defendant's second appeal.² As to the second claim, the Attorney General says the amendments to the firearm enhancements are beyond the scope of the appeal following the limited remand. He further says that while the People concede the retroactivity of the amendments to cases not yet final upon appeal, defendant's judgment and sentence became final before the amendments went into effect and so the amendments do not apply to him.

DISCUSSION

A. Proposition 57

The legal principles regarding remittiturs have often been stated in terms that appear to support the Attorney General's position that the trial court lacked jurisdiction to entertain defendant's Proposition 57 motion. "After the certificate of the judgment has been remitted to the court below, ... all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted." (§ 1265, subd. (a).) Thus, once the remittitur issues, "the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court." ( People v. Dutra (2006) 145 Cal.App.4th 1359, 1366, 52 Cal.Rptr.3d 528 ( Dutra ), italics omitted.) Stated another way, "[u]pon issuance of the remittitur, the trial court's jurisdiction with regard to the ‘remitted action’ is limited solely to the making of orders necessary to carry the judgment into effect. [Citations.]" ( People v. Ainsworth (1990) 217 Cal.App.3d 247, 251-252, 266 Cal.Rptr. 175, fn. omitted; accord, People v. Maggio (1929) 96 Cal.App. 409, 411, 274 P. 611.) "[T]he terms of the remittitur define the trial court's jurisdiction to act. ‘The order of the appellate court as stated in the remittitur, "is decisive of the character of the judgment to which the appellant is entitled." ’ [Citations.]" ( Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5, 98 Cal.Rptr.2d 1, 3 P.3d 286.) "A trial court may not disobey a remittitur, as that would amount to overruling the appellate court's decision, thereby violating a basic legal principle: ‘Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.’ [Citation.]" ( Dutra , supra , 145 Cal.App.4th at p. 1362, 52 Cal.Rptr.3d 528.)

Nevertheless, it is indisputable that defendant, who was 16 years old at the time of the offenses of which he was convicted, is entitled to a juvenile fitness/transfer hearing pursuant to Proposition 57, as he was charged directly in adult court and his judgment was not final at the time the new law was enacted. ( Lara , supra , 4 Cal.5th at p. 304, 228 Cal.Rptr.3d 394, 410 P.3d 22.)³ Proposition 57 repealed former subdivision (d) of Welfare and Institutions Code section 707 (Prop. 57, § 4.2, as approved by voters, Gen. Elec. (Nov. 8, 2016), eff. ...