People v. Marquez

• Decision Date: 16 May 2017
• Docket Number: F070609
• Citation: 11 Cal.App.5th 816,217 Cal.Rptr.3d 814
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Victor Alexander MARQUEZ, Defendant and Appellant.

11 Cal.App.5th 816

217 Cal.Rptr.3d 814

The PEOPLE, Plaintiff and Respondent,

v.Victor Alexander MARQUEZ, Defendant and Appellant.

F070609

Court of Appeal, Fifth District, California.

Filed May 16, 2017

Certified for Partial Publication.^*

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PEÑA, J.

INTRODUCTION

Defendant Victor Alexander Marquez was just four months shy of his 18th birthday when he brutally murdered Maria Juarez by stabbing and slashing her 19 times during an attempted robbery. Judge Gerald F. Sevier presided over defendant's trial and sentenced him to life without the possibility of parole (LWOP) for special circumstance murder. While defendant's original appeal was pending, the United States Supreme Court decided Miller v . Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller ). Miller held that mandatory LWOP sentences for juvenile homicide offenders violated the federal Constitution's Eighth Amendment prohibition against cruel and unusual punishment. In defendant's first appeal, we recognized California does not provide for mandatory LWOP sentences for minors convicted of murder, and the sentencing court understood this aspect of its statutory sentencing discretion. Nevertheless, we reversed the judgment and remanded the matter to the trial court to reconsider defendant's LWOP sentence after applying the individualized sentencing criteria set forth in Miller . (People v . Marquez (June 25, 2013, F063837, 2013 WL 3209482 ) [nonpub. opn.].)

Judge Gary L. Paden conducted the resentencing hearing. After considering the Miller criteria, Judge Paden again imposed an LWOP sentence. Defendant contends the trial court misapplied the Miller criteria and argues his sentence constitutes cruel and unusual punishment under the Eighth Amendment. In supplemental briefing, defendant contends Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57) passed by the voters on November 8, 2016, applies retroactively to his case. Defendant argues the initiative ended the practice employed here of allowing the prosecutor to directly file a case involving a juvenile offender in adult criminal court rather than first conducting a suitability hearing as now required by the amended provisions of the Welfare and Institutions Code. As we explain in the unpublished portion of this opinion, the trial court properly evaluated the Miller criteria. In the published portion, we conclude the suitability hearing provisions of Proposition 57 are not retroactive.

FACTS AND PROCEEDINGS^**

DISCUSSION

1. Application of Miller Criteria on Resentencing^***

2. Retroactivity of Proposition 57

Approximately three months after Maria Juarez was murdered, the district attorney's office directly charged defendant in criminal court with first degree murder, pursuant to Welfare and Institutions Code section 707, subdivision (b).² Proposition 57, passed by the voters on November 8, 2016, no longer permits a prosecutor to direct file serious felony cases involving juveniles in adult criminal court. The parties have filed supplemental briefing on the issue of whether Proposition 57 applies retroactively to compel a juvenile court to conduct a fitness hearing to determine if a juvenile can be tried in adult criminal court. Defendant argues the initiative effectively reduces his punishment and provides an affirmative defense to the direct filing procedure and should therefore be applied to him retroactively. The People contend the law is prospective, it changes only juvenile court procedure, and it does not affect the penalty imposed. We agree with the People and the recent decision from the First District Court of Appeal in People v . Cervantes (2017) 9 Cal.App.5th 569, 215 Cal.Rptr.3d 174 (Cervantes ) and the Sixth District Court of Appeal in People v. Mendoza (2017) 10 Cal.App.5th 327, 216 Cal.Rptr.3d 361 (Mendoza ).

Juvenile Provisions of Proposition 57

Before a minor could be tried in adult court, California historically required a finding of unfitness for juvenile court. (Cervantes , supra , 9 Cal.App.5th at p. 595, 215 Cal.Rptr.3d 174 ; JuanG. v . Superior Court (2012) 209 Cal.App.4th 1480, 1489, 147 Cal.Rptr.3d 816.) Beginning with the passage of Proposition 21 in March 2000, the district attorney was authorized as a matter of executive discretion to file an action against a juvenile directly in adult criminal court under certain defined circumstances. This practice is known as "direct filing" or "discretionary direct filing." (Cervantes , supra , at p. 596, 215 Cal.Rptr.3d 174.) The procedural change in how cases were formerly filed initially in juvenile court withstood constitutional challenges that it violated the separation of powers between the executive and judicial branches of government and due process of law under the federal and state constitutions. (Manduley v . Superior Court (2002) 27 Cal.4th 537, 551–573, 117 Cal.Rptr.2d 168, 41 P.3d 3 (Manduley ).) Our Supreme Court further rejected challenges to the statutory scheme as violating equal protection. (People v . Wilkinson (2004) 33 Cal.4th 821, 835–841, 16 Cal.Rptr.3d 420, 94 P.3d 551.)

The purpose of Proposition 57 with regard to juvenile offenders is to undo Proposition 21. The charging instrument for all juveniles must now be filed in juvenile court. Prosecutors may still move the court to transfer certain categories of cases to criminal court, but the juvenile court is vested with the sole authority to determine whether a juvenile should be transferred. Juveniles accused of felonies are guaranteed a right to a fitness hearing before being sent to the criminal division of superior court to be tried as an adult. (Cervantes , supra , 9 Cal.App.5th at pp. 596–597, 215 Cal.Rptr.3d 174.)

Proposition 57's Silence on Retroactivity

Defendant contends section 602 was amended to provide exclusive jurisdiction in juvenile court, and section 707 was amended to require a fitness hearing in juvenile court as a prerequisite to transferring a case to adult court.

The People point out that in contrast to the amendments to sections 602 and 707, which are silent on the issue of retroactive application, the constitutional amendment to article I, section 32 of the California Constitution, set forth in section 3 of Proposition 57, expressly changes adult sentencing to make nonviolent adult offenders eligible for parole consideration after completing the term of his or her primary offense. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) p. 141.) The People analyze various statements in the voter guide to show the juvenile provisions are meant to be prospective. The voter pamphlet refers to transfers from juvenile court to adult court that "should" occur. (Id ., at pp. 54, 56, 58, 141–146.) This ballot pamphlet may indicate intent for prospective application of juvenile transfer procedures but, at best, it is ambiguous. The statutory changes to sections 602 and 707 and the sections implementing them are silent on the issue of retroactivity.

We therefore begin our analysis with Penal Code section 3, which provides that "[n]o part of it is retroactive, unless expressly so declared." "Whether a statute operates prospectively or retroactively is, at least in the first instance, a matter of legislative intent. When the Legislature has not made its intent on the matter clear," this section provides the default rule. (People v. Brown (2012) 54 Cal.4th 314, 319, 142 Cal.Rptr.3d 824, 278 P.3d 1182 (Brown ).) Defendant concedes Proposition 57 is silent on the question of whether it applies retroactively to proceedings under the act. The analysis of Proposition 57 by the legislative analyst and the arguments for and against Proposition 57 are also silent on this question. (Voter Information Guide, supra , at pp. 54–57, 141–146; see People v . Buford (2016) 4 Cal.App.5th 886, 918–920, 209 Cal.Rptr.3d 593 (conc. opn. of Peña, J.) [analyzing silence of Prop. 47 on question of retroactivity], review granted Jan. 11, 2017, S238790.) Because the statute contains no express declaration that sections 602 and 707 apply retroactively to proceedings under the act, and there is no clearly implied intent of retroactivity in the legislative history, the default rule under Penal Code section 3 applies.

Procedural Function of Superior Court Under Proposition 57

Section 602 now reads: "Except as provided in Section 707, any person who is under 18 years of age when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court."

As noted in Cervantes , revised section 602 does not use the term "exclusive" and assigns jurisdiction over all juvenile criminal matters to the juvenile court, explicitly subject to the exceptions in section 707. Subdivision (b) of section 707 lists 30 serious crimes that subject even the youngest juveniles for criminal prosecution under section 707, ages 14 and 15, to adult prosecution. The court in Cervantes concluded for crimes that qualify a juvenile offender for transfer to adult court, "subject matter jurisdiction is concurrent between the criminal division and the juvenile division." (Cervantes , supra , 9 Cal.App.5th at p. 598, 215 Cal.Rptr.3d 174.) Cervantes explained under the California Constitution the juvenile and criminal court are divisions of the superior court, which has subject matter jurisdiction over all criminal, civil, and juvenile matters. (Cervantes , at p. 598, ...