People v. Suarez, F070210

Citation226 Cal.Rptr.3d 448,17 Cal.App.5th 1272
Decision Date04 December 2017
Docket NumberF070210
CourtCalifornia Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Ryan Osmen SUAREZ, Defendant and Appellant.

Certified for Partial Publication.*

Danalynn Pritz, Westlake Village, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.



An information filed in the Merced County Superior Court charged Ryan Osmen Suarez with the murder of John Cordero. ( Pen. Code, § 187, subd. (a).) The information further alleged Suarez (1) personally and intentionally discharged a firearm causing great bodily injury or death (id ., § 12022.53, subd. (d)); (2) personally used a firearm (id ., § 12022.5) within the meaning of Welfare and Institutions Code 1 section 707, subdivision (d)(2)(B) ; and (3) committed the offense for the benefit of, or in association with, a criminal street gang ( Pen. Code, § 186.22, subd. (b) ). Although Suarez committed the offense when he was 15 years old, he was tried as an adult in criminal court. The victim was 15 years old as well.

A jury convicted Suarez of first degree murder and found the enhancement allegations true. The court sentenced Suarez to an aggregate, unstayed term of 50 years to life in state prison. Suarez now appeals his conviction and sentence, making a series of arguments.

Suarez claims the evidence was insufficient for a reasonable jury to find the elements of deliberation and premeditation, required for a conviction of first degree murder, were proven beyond a reasonable doubt, thereby necessitating modification of the judgment to reflect a conviction of second degree murder. He next contends the trial court was required, sua sponte, to instruct the jury on subjective provocation, and, in the alternative, that trial counsel was ineffective for failing to request such an instruction. He also argues that the standard instruction on heat of passion manslaughter given by the trial court was both erroneous and prejudicial to the extent it precluded the jury from considering Suarez's young age in evaluating the adequacy of any provocation; he further argues, in the alternative, that counsel was ineffective in failing to request a modification of the standard instruction to include consideration of his youth. Suarez next contends the court abused its discretion in admitting evidence of gang membership that was irrelevant, more prejudicial than probative, and cumulative under Evidence Code section 352, and that constituted impermissible propensity evidence under Evidence Code section 1101, subdivision (a). Suarez also makes a claim of cumulative error, which he argues requires reversal of his conviction. As to his sentence, Suarez contends it constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution, as interpreted by Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ).

In the unpublished portion of this opinion, we reject each of these contentions. We conclude, however, that in light of his Eighth Amendment argument, Suarez is entitled to a limited remand of the matter pursuant to People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ), to augment the sentencing record. In Franklin , our Supreme Court found the defendant's Eighth Amendment argument was moot in light of newly enacted Penal Code section 3051, which requires that defendants in Suarez's position receive a youth offender parole hearing before the Board of Parole Hearings during their 25th year of incarceration. Franklin provides for a limited remand to permit a defendant in this position to prepare an adequate record, under new procedures announced in Franklin , for the eventual youth offender parole hearing. ( Franklin, at pp. 269, 284, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ; People v. Perez (2016) 3 Cal.App.5th 612, 619, 208 Cal.Rptr.3d 34 ( Perez ).) We further conclude Suarez is entitled, upon remand, to have the trial court exercise its discretion whether to strike the firearm enhancements.

While this appeal was pending, the electorate passed Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57 or the Act), in the general election held on November 8, 2016.2 The parties filed supplemental briefs on the issue whether Proposition 57 is retroactively applicable to this case. As we explain in the published portion of this opinion, we conclude it is not. Accordingly, Suarez is not entitled to a conditional reversal and remand for a fitness/transfer hearing in juvenile court, and failure to afford him such a remand does not violate equal protection.



VIII. Proposition 57

Suarez contends the Act applies retroactively to cases, such as his, that were filed directly in criminal (adult) court but that are not yet final. His claim is based, in large part, on the California Supreme Court's holding in In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ) and its reasoning in Franklin , supra , 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053. He also says failure to remand his case for a fitness hearing conducted under the provisions of Proposition 57 would deprive him of equal protection and be prejudicial.

Procedural Background and Proposition 57

Historically, before a minor could be tried in criminal (adult) court, California required a finding the minor was unfit to be dealt with under the juvenile court law. (See, e.g., Juan G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1493, 147 Cal.Rptr.3d 816 ( Juan G. ); People v. Cardona (2009) 177 Cal.App.4th 516, 524, 99 Cal.Rptr.3d 313.) Although, prior to 1999, there was no provision for the direct filing (mandatory or discretionary) of charges against juveniles in criminal court ( Juan G. , at p. 1493, 147 Cal.Rptr.3d 816 ), a presumption of unfitness for minors, aged 16 years old or older and charged with specified offenses, was added to the Welfare and Institutions Code in 1979, and extended, in 1994, to minors between the ages of 14 and 16 who were alleged to have committed certain forms of murder ( People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 680–681, fn. 1, 76 Cal.Rptr.2d 641, 958 P.2d 393 ).

In 1999, the Legislature added subdivision (b) to section 602, mandating the direct filing in adult court of criminal cases against minors 16 years of age or older under specified circumstances. ( Juan G. , supra , 209 Cal.App.4th at p. 1493, 147 Cal.Rptr.3d 816.) In 2000, voters approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. In pertinent part, it "confer[red] on prosecutors the discretion to bring specified charges against certain minors directly in criminal court, without a prior adjudication by the juvenile court that the minor [was] unfit for a disposition under the juvenile court law." ( Manduley v. Superior Court (2002) 27 Cal.4th 537, 545, 117 Cal.Rptr.2d 168, 41 P.3d 3 ( Manduley ); see generally id . at pp. 548–550, 117 Cal.Rptr.2d 168, 41 P.3d 3.) Proposition 21 also decreased, to 14, the minimum age for mandatory criminal prosecutions. ( Manduley , at p. 550, 117 Cal.Rptr.2d 168, 41 P.3d 3.)

John Cordero was killed on June 23, 2013. Suarez was born June 7, 1998, making him 15 years old at the time of the crime of which he was convicted. He was charged directly in criminal court, convicted on July 16, 2014, and sentenced on September 26, 2014. His notice of appeal was filed on or about September 30, 2014.

On November 8, 2016, while Suarez's appeal was pending, voters enacted Proposition 57. It went into effect the next day. ( Cal. Const., art. II, § 10, subd. (a).) Insofar as we are concerned, the Act eliminated the People's ability to initiate criminal cases against juvenile offenders anywhere but in juvenile court. It also removed the presumption of unfitness that attached to the alleged commission of certain offenses.14

The purpose of the portions of Proposition 57 that deal with juvenile offenders is to undo Proposition 21. (See generally People v. Marquez (2017) 11 Cal.App.5th 816, 821, 217 Cal.Rptr.3d 814, review granted July 26, 2017, S242660 ( Marquez ).) The Act's stated purposes, contained in uncodified section 2 thereof, are to "[p]rotect and enhance public safety"; "[s]ave money by reducing wasteful spending on prison"; "[p]revent federal courts from indiscriminately releasing prisoners"; "[s]top the revolving door of crime by emphasizing rehabilitation, especially for juveniles"; and [r]equire a judge, not a prosecutor, to decide whether juveniles should be tried in adult court." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 2, p. 141.)15


There can be no doubt that, had Suarez committed his offense after Proposition 57 went into effect, he would have been entitled to a fitness hearing—with no presumption of unfitness—before his case could be transferred to criminal (adult) court for prosecution. The question we confront is whether Proposition 57 applies to juvenile offenders who, like Suarez, were charged, tried, convicted, and sentenced before the Act's effective date, but whose cases are not yet final on appeal. (See People v. Covarrubias (2016) 1 Cal.5th 838, 935, 207 Cal.Rptr.3d 228, 378 P.3d 615 [for purpose of determining retroactive application of amendment to criminal statute, judgment is not final until time for petitioning for writ of certiorari in United States Supreme Court has passed].)16 This is a purely legal question we analyze de novo. (See People v. Arroyo (2016) 62 Cal.4th 589, 593, 197 Cal.Rptr.3d 122, 364 P.3d 168 ( Arroyo ).)17

Suarez says Proposition 57...

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5 cases
  • People v. Superior Court of Riverside Cnty.
    • United States
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    ...the theory that the defendant is entitled to a transfer hearing even applying Proposition 57 prospectively. ( People v. Suarez (2017) 17 Cal.App.5th 1272, 226 Cal.Rptr.3d 448 [holding, over a dissent, that Estrada does not apply, and the defendant is not entitled to a transfer hearing]; Peo......
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    ...applies retroactively. (In re Estrada, supra, 63 Cal.2d at p. 745; Francis, supra, 71 Cal.2d at pp. 75-76; see People v. Suarez (2017) 17 Cal.App.5th 1272, 1288-1289 [even though the appellate court did not publish that portion of its opinion regarding Sen. Bill No. 620, it remanded the mat......
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    ...applies retroactively. (In re Estrada, supra, 63 Cal.2d at p. 745; Francis, supra, 71 Cal.2d at pp. 75-76; see People v. Suarez (2017) 17 Cal.App.5th 1272, 1288-1289 [even though the appellate court did not publish that portion of its opinion regarding Sen. Bill No. 620, it remanded the mat......
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