People v. Lizarraga

• Decision Date: 22 October 2020
• Docket Number: B299939
• Citation: 56 Cal.App.5th 201,270 Cal.Rptr.3d 273
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jesus LIZARRAGA, Defendant and Appellant.

56 Cal.App.5th 201

270 Cal.Rptr.3d 273

The PEOPLE, Plaintiff and Respondent,

v.Jesus LIZARRAGA, Defendant and Appellant.

B299939

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

Filed October 22, 2020

Julie Caleca, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

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

RUBIN, P. J.

Defendant Jesus Lizarraga was 17 years old when he shot a rival gang member; he was tried and sentenced as an adult. We affirmed his initial appeal. ( People v. Lizarraga (Dec. 7, 2015, B258261), 2015 WL 8025920 [nonpub. opn.].)

After the first appeal was final, defendant filed a petition for writ of habeas corpus under People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ) and requested an opportunity to make a record relevant to his eventual youth offender parole hearing. The trial court granted the petition and set a date for an evidentiary hearing. Lizarraga next proceeded to file a motion in the trial court for a transfer hearing in juvenile court pursuant to the newly-enacted Public Safety and Rehabilitation Act of 2016 (Proposition 57). The trial court denied the motion, finding Lizarraga's case was final and Proposition 57 was not retroactive.

On this second appeal, we conclude that Lizarraga's case was final when he requested the transfer hearing, and Proposition 57 does not apply to final judgments. We also find that Lizarraga's equal protection challenge is without merit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, a jury convicted Lizarraga of second degree murder and found that he personally used a firearm in connection with the shooting of a rival gang member. The trial court sentenced him to 40 years to life in state prison. We affirmed the judgment as modified.¹ The California Supreme Court denied review, and we issued the remittitur on March 9, 2016. On March 29, 2016, the trial court modified the judgment in keeping with the remittitur and terminated proceedings.

Eight months later, on November 8, 2016, California voters passed Proposition 57, prohibiting prosecutors from charging juveniles with crimes directly in adult criminal court. Approximately a year and a half after that, in July 2018, Lizarraga filed a petition for writ of habeas corpus seeking a Franklin hearing which the trial court granted.²

Prior to the scheduled hearing, Lizarraga filed a "Notice of Motion and Motion to Remand Case to Juvenile Court in light of Proposition 57. Proposition 57, "The Public Safety and Rehabilitation Act of 2016," among other things, repealed the statutory provision permitting the direct filing of juvenile cases in adult criminal court. Under Proposition 57, once the case is in juvenile court, "if the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct what we will call a ‘transfer hearing’ to determine whether the matter should remain in juvenile court or be transferred to adult court." ( People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara ).)

The People opposed the motion to transfer, arguing that Lizarraga's case was already final when Proposition 57 took effect, and he was not entitled to a transfer hearing under Lara . The trial court denied the motion, because it found that "the Franklin hearing is not a resentencing," and "this particular case has been final for quite some time." Lizarraga timely appealed.

DISCUSSION

Lizarraga makes three arguments on appeal: (1) he was entitled to a transfer hearing under Proposition 57 because his case was not final, (2) even if his case was final, Proposition 57 still applies; and (3) the denial of a Proposition 57 transfer hearing to youth offenders with final sentences is a violation of equal protection clauses of the state and federal constitutions.

1. Proposition 57

" ‘Historically, a child could be tried in criminal court only after a judicial determination, before jeopardy attached, that he or she was unfit to be dealt with under juvenile court law.’ " ( Lara, supra, 4 Cal.5th at p. 305, 228 Cal.Rptr.3d 394, 410 P.3d 22.) "Amendments to former sections 602 and 707 in 1999 and 2000, some by initiative, changed this historical rule. Under the changes, in specified circumstances, 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." ( Ibid. )

Proposition 57 largely returned California to its historical rule. ( Lara , supra , 4 Cal.5th at p. 305, 228 Cal.Rptr.3d 394, 410 P.3d 22.) "Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. Certain categories of minors ... can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as the minor's maturity, degree of criminal sophistication, prior delinquent history, and whether the minor can be rehabilitated." ( Id. at pp. 305–306, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

In 2018, our Supreme Court decided Lara , which 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.) As to juveniles that had cases pending on appeal prior to the passage of Proposition 57, the defendant's conviction and sentence are to be conditionally reversed and the juvenile court is to conduct a transfer hearing. ( Id. at p. 310, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

2. Lizarraga's Judgment Was Final

Lizarraga argues that his case was not final because the trial court granted his habeas petition and scheduled a Franklin hearing. As Proposition 57 applies retroactively to cases that are not yet final, he contends he is entitled to a transfer hearing.

Our response is threefold: First, the Franklin hearing aside, Lizarraga's case was final in June 2016, upon expiration of the time to seek review in the United States Supreme Court. A "judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed." ( People v. Vieira (2005) 35 Cal.4th 264, 306, 25 Cal.Rptr.3d 337, 106 P.3d 990 ; see also In re Pine (1977) 66 Cal.App.3d 593, 595, 136 Cal.Rptr. 718, citing In re Dabney (1969) 71 Cal.2d 1, 11, 76 Cal.Rptr. 636, 452 P.2d 924 [a "conviction only [becomes] final for retroactivity purposes ... when the period during which [the defendant] might have applied for certiorari ended.") The United States Supreme Court, rule 13 provides that a petition for writ of certiorari is timely filed within 90 days after entry of judgment of a state court of last resort. The record does not show that Lizarraga filed a petition for writ of certiorari. His judgment was thus final on June 7, 2016—90 days after the California Supreme Court denied review. Lizarraga nearly concedes as much.

Second, we find inapt Lizarraga's reliance on People v. Hargis (2019) 33 Cal.App.5th 199, 244 Cal.Rptr.3d 745 ( Hargis ). Hargis held that a defendant was entitled to a transfer hearing after he appealed his conviction and his case was remanded for a Franklin hearing. Proposition 57 was enacted one week after the appellate opinion was filed affirming the judgment and remanding the matter. ( Id. at p. 202, 244 Cal.Rptr.3d 745.) The Hargis court found that the case was not yet final. In addressing the applicability of Proposition 57, the Court of Appeal concluded "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." ( Id. at pp. 204–205, 244 Cal.Rptr.3d 745.)

The present case is quite different. The Hargis court correctly observed that the case was not final. The Court of Appeal had remanded the matter for a Franklin hearing, i.e. further proceedings were to take place in the trial court in the very same case that had been appealed. Here, Lizarraga filed a petition for habeas corpus some four years after his direct appeal was final. He essentially argues that whenever a Franklin hearing is scheduled – even years after the case has become final – the finality is undone and all intervening changes in the law are in play. Hargis does not say that. To the extent Hargis could be read in such a manner, we respectfully disagree.

Third, we reject defendant's argument that the grant of a Franklin hearing essentially created a new sentencing hearing thus effectively vacating the earlier finality. We acknowledge that a grant of habeas corpus to resentence a defendant may change the finality date for purposes of retroactivity of later passed ameliorative laws. Lizarraga relies on this principle when he cites to People v. Garcia (2018) 30 Cal.App.5th 316, 241 Cal.Rptr.3d 349, where the defendant was ordered resentenced and then successfully applied for a transfer hearing. When a defendant is resentenced, there is no longer a final judgment of conviction because there is no existing sentence. (See People v. Buycks (2018) 5 Cal.5th 857, 893, 236 Cal.Rptr.3d 84, 422 P.3d 531 [where there is a full resentencing, the court may consider changes in the law providing for a reduced sentence].) Here, Lizarraga was not resentenced, instead, the court set only a limited hearing at which defendant was entitled to present evidence for use at a future parole hearing. Defendant was not exposed at the Franklin hearing to any increase in sentence—or any decrease for that matter.³

3. Proposition 57 Does Not Apply to Final Judgments

Lizarraga argues that even if his judgment is...