People v. Hwang

• Decision Date: 29 January 2021
• Docket Number: B301972
• Citation: 60 Cal.App.5th 358,274 Cal.Rptr.3d 536
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vincent HWANG, Defendant and Appellant.

60 Cal.App.5th 358

274 Cal.Rptr.3d 536

The PEOPLE, Plaintiff and Respondent,

v.Vincent HWANG, Defendant and Appellant.

B301972

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

Filed January 29, 2021

Juvenile Innocence and Fair Sentencing Clinic, Loyola Law School and Christopher Hawthorne ; Panahpour Law and Nilou Panahpour ; Andrues/Podberesky and Vicki I. Podberesky, Santa Monica, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

KIM, J.

I. INTRODUCTION

Defendant Vincent Hwang appeals from the trial court's denial of his request to have his case transferred to juvenile court pursuant to the Public Safety and Rehabilitation Act of 2016 (Proposition 57) and Senate Bill No. 1391. Defendant contends the trial court erred in concluding that he was not entitled to a transfer because his criminal judgment was final at the time of the proposition's and bill's passage. We agree and therefore reverse.

II. BACKGROUND

A. Conviction and Initial Appeal

In October 2001, a jury found defendant guilty of two counts of attempted murder ( Pen. Code, §§ 664, 187, subd. (a) );¹ assault with a semiautomatic firearm (§ 245, subd. (b)); carrying a loaded firearm (§ 12031, subd. (a)(1)); possession of an assault weapon (§ 12280, subd. (b)); possession of a silencer (§ 12520); possession for sale of a controlled substance ( Health & Saf. Code, § 11378 ); possession of ingredients to make a destructive device (§ 12312); and shooting at an occupied building (§ 246). The jury also found numerous special allegations to be true, including allegations that supported the imposition of firearm enhancements. Defendant committed his crimes on May 20, 2000, when he was 15 years old. He was arrested within five days of his crimes. ( People v. Hwang 2003 WL 157538 (Cal.App. 2 Dist. Jan. 23, 2003, B156960) [nonpub. opn.].)

The trial court sentenced defendant to 74 years to life in prison. On January 23, 2003, this court affirmed the judgment. ( People v. Hwang , supra , B156960.) Our Supreme Court denied defendant's petition for review on April 9, 2003.

B. Section 1170, Subdivision (d) Petition

On August 27, 2018, the trial court received a letter from the Secretary of the California Department of Corrections and Rehabilitation (Department) recommending that defendant's sentence be recalled and he be resentenced pursuant to section 1170, subdivision (d) because his sentence might be unlawful under People v. Rodriguez (2009) 47 Cal.4th 501, 98 Cal.Rptr.3d 108, 213 P.3d 647 ( Rodriguez ).

On April 9, 2019, defendant filed a "MOTION TO MODIFY SENTENCE/STRIKE ALLEGATION PURSUANT TO [ Rodriguez ] and MOTION FOR RECONSIDERATION." Defendant contended that he was entitled to a resentencing hearing and the benefit of Senate Bill No. 620, which gave the sentencing court discretion to strike defendant's firearm enhancements. He also argued that he was entitled to a transfer hearing in the juvenile court pursuant to Proposition 57 and Senate Bill No. 1391.

On June 6, 2019, the Los Angeles County District Attorney (District Attorney) filed an opposition. The District Attorney conceded that it was likely defendant was entitled to the benefit of Senate Bill No. 620, but recommended that the trial court structure defendant's sentence so he still received a term of 74 years to life. The District Attorney also argued that defendant was not entitled to relief under Proposition 57 because his conviction was final on April 9, 2003, long before Proposition 57 was enacted.

On September 25, 2019, the trial court conducted a hearing pursuant to section 1170, subdivision (d).² The court stayed the firearm enhancement on count three, which resulted in a new sentence of 64 years to life. The court rejected defendant's other arguments, stating: "You know, you've got a life sentence. I can't do anything about that ...." Defendant timely appealed.

III. DISCUSSION

A. Applicable Law

1. Proposition 57 and Senate Bill No. 1391

On November 8, 2016, the electorate passed Proposition 57, which amended Welfare and Institutions Code section 707. Prior to the passage of Proposition 57, "prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile would be treated as an adult." ( People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 304–305, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).) Proposition 57, however, eliminated the ability of prosecutors to file charges against juveniles directly in a court of criminal jurisdiction (adult court). ( Id. at p. 305, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Under Proposition 57, " ‘[c]ertain categories of minors ... can still be tried in [adult court], but only after a juvenile court judge conducts a transfer hearing to consider various factors.’ "³ ( Id. at p. 306, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

More recently, the Legislature amended Proposition 57 with Senate Bill No. 1391 (Stats. 2018, ch. 1012, § 1, eff. Jan. 1, 2019),⁴ which "eliminated prosecutors’ ability to seek transfer of 14[-] and 15[-]year[-]olds from juvenile court to criminal court unless the minor is ‘not apprehended prior to the end of juvenile court jurisdiction.’ " ( People v. Superior Court (S.L. ) (2019) 40 Cal.App.5th 114, 119, 253 Cal.Rptr.3d 39.) Specifically, Welfare and Institutions Code section 707, subdivision (a)(2) provides, "In any case in which an individual is alleged to be a person described in [Welfare and Institutions Code s]ection 602 by reason of the violation, when he or she was 14 or 15 years of age, of any offense listed in subdivision (b), but was not apprehended prior to the end of juvenile court jurisdiction, the district attorney or other appropriate prosecuting officer may make a motion to transfer the individual from juvenile court to a court of criminal jurisdiction."

2. Section 1170, subdivision (d)(1)

At the time the Department sent its August 27, 2018, recommendation, section 1170, subdivision (d)(1)⁵ provided in pertinent part: "When a defendant subject to this section or subdivision (b) of [s]ection 1168 has been sentenced to be imprisoned in the state prison ... and has been committed to the custody of the secretary ..., the court may ... at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates ..., recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Stats. 2018, ch. 36, § 17.)

B. Analysis

1. Retroactivity of Proposition 57 and Senate Bill No. 1391

" ‘The Legislature ordinarily makes laws that will apply to events that will occur in the future. Accordingly, there is a presumption that laws apply prospectively rather than retroactively. But this presumption against retroactivity is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Therefore, the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication. [Citation.] In order to determine if a law is meant to apply retroactively, the role of a court is to determine the intent of the Legislature, or in the case of a ballot measure, the intent of the electorate.’ " ( Lara , supra , 4 Cal.5th at p. 307, 228 Cal.Rptr.3d 394, 410 P.3d 22 ; People v. Padilla (2020) 50 Cal.App.5th 244, 250–251, 263 Cal.Rptr.3d 784.) Our Supreme Court applies the doctrine of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), to determine retroactivity in criminal law: " ‘The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ " ( Lara, supra , 4 Cal.5th at p. 308, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Applying Estrada , our Supreme Court has concluded that Proposition 57 is retroactive: "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada ’s inference of retroactivity applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of 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 pp. 303–304, 228 Cal.Rptr.3d 394, 410 P.3d 22.) Thus, if defendant's judgment was not final when Proposition 57 was enacted, he is entitled to the retroactive application of that proposition.

Senate Bill No. 1391 effectively broadens the ameliorative benefit of Proposition 57 to 14- and 15-year-olds by prohibiting prosecuting attorneys from moving to transfer individuals who commit certain offenses when they were 14 or 15 years old to adult court, unless they were "not apprehended prior to the end of juvenile court jurisdiction." ( Welf. & Inst. Code, § 707, subd. (a)(2).) Such ameliorative changes to criminal law are entitled to broad application. (Cf. Lara , supra , 4 Cal.5th at p. 309, 228 Cal.Rptr.3d 394, 410 P.3d 22 ["Proposition 57 is an ‘ameliorative change[ ] to the criminal law’ that we infer the legislative body intended ‘to extend as broadly as possible’ "].) Accordingly, Senate Bill No. 1391 applies retroactively to defendants whose judgments are not yet final.

That this defendant is now over 25 years old does not change our conclusion that he...