People v. Brewer

Filed 11/17/17

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F070564
Plaintiff and Respondent,
(Super. Ct. No. F12904169)
v.

JEREMIAH CHARLIE BREWER, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L.
Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the
Introduction, part 4 of the Discussion, the Disposition, and the Concurring and Dissenting
Opinion are certified for publication.
 INTRODUCTION
At the conclusion of a court trial, Jeremiah Charlie Brewer (defendant) was
convicted of sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A); count 1),
assault with intent to commit rape or forcible sexual penetration during the commission
of first degree burglary (id., § 220, subd. (b); count 2), and kidnapping to commit rape or
forcible sexual penetration (id., § 209, subd. (b)(1); count 3). The court found true
allegations in count 1 that defendant substantially increased the risk of harm to the victim
inherent in the offense by kidnapping her (id., § 667.61, subds. (a), (d)(2)), committed the
offense during the commission of first degree burglary with the intent of committing
sexual penetration by force (id., § 667.61, subds. (a), (d)(4)), and kidnapped the victim to
accomplish the offense (id., § 667.61, subds. (b), (e)(1)). Defendant was sentenced to an
unstayed term of 25 years to life in prison.
In our original unpublished opinion, we held: (1) There was sufficient evidence
defendant substantially increased the risk to the victim within the meaning of Penal Code
sections 209, subdivision (b)(1), and 667.61, subdivision (d)(2) by moving her within her
own apartment; (2) The fact the allegation under subdivision (d)(2) of section 667.61 of
the Penal Code was found true does not require reversal of the true finding under section
667.61, subdivision (e)(1) of that code; and (3) Defendant’s sentence does not constitute
cruel and/or unusual punishment under the federal and state Constitutions, and his trial
attorney was not ineffective for failing to object on that ground. Accordingly, we
affirmed.
Defendant petitioned for rehearing, arguing that Proposition 57, the Public Safety
and Rehabilitation Act of 2016 (Proposition 57 or the Act), enacted by the voters on
November 8, 2016, applies retroactively to his case and requires a remand to the juvenile
court system for further proceedings.1 We granted rehearing to determine whether

1 Unless otherwise specified, references to this enactment are to those portions of
the Act applicable only to juvenile offenders.

2.
defendant is entitled to relief under the Act. In the published portion of this opinion, we
conclude Proposition 57 does not apply retroactively to defendant’s case. In so holding,
we reject claims the Act reduces the range of punishment for all juvenile offenders by
giving the juvenile court exclusive jurisdiction over all juveniles, and creates a previously
unavailable affirmative defense. In the unpublished portion, we adhere to our original
analysis and again find no error. Accordingly, we again affirm.
FACTS*
On February 10, 2012, Elizabeth F., a college student, lived in a first-floor
apartment near California State University, Fresno. The kitchen of the apartment
adjoined the living room. There was a window behind the kitchen sink, as well as
windows near a sliding glass door in the living room. At the time of events, the blinds to
the window behind the sink were open, as were the blinds to the sliding door. There was
a public walkway outside the windows. A person could look through the windows into
the apartment from that walkway.
At 4:00 p.m., Elizabeth was alone in the apartment, washing dishes, when she
looked up through the window behind the sink and saw a male passing by outside. As the
male walked by, he took a couple of steps back, looked through the window blinds, and
kept going. Elizabeth saw him a couple of minutes later by the windows near the living
room.
The male, who had walked by twice, stopped the second time he passed by, looked
back and forth a couple of times, and knocked on Elizabeth’s door. At first, Elizabeth
thought it was the maintenance man, whom she had called about an hour earlier. When
she answered the door, however, defendant — the person who had walked by twice
earlier — was standing there.

* See footnote, ante, page 1.

3.
 Defendant asked Elizabeth if her husband was at home. She replied she was not
married and asked if he was lost. Defendant said he was looking for his cousin and asked
to use Elizabeth’s phone. Elizabeth let defendant use her cell phone. Defendant stayed
outside at first, but before he finished the call, he signaled that he wanted to enter.
Elizabeth stepped back and defendant entered her apartment.
Inside Elizabeth’s apartment, defendant handed back her cell phone. She asked
defendant to walk out. Defendant turned away as though he was leaving, but slammed
the apartment door shut. He immediately grabbed Elizabeth’s shoulders and pushed her
up against the wall, moving her 10 to 12 feet. Elizabeth asked defendant what he was
doing and why. Defendant did not answer.
Elizabeth tried to fight defendant off. Defendant looked toward the window, then
turned and saw Elizabeth’s bedroom.2 As Elizabeth struggled with him, defendant forced
her to her bedroom. Elizabeth tried to yell, but defendant covered her mouth. He pushed
Elizabeth onto the bed in her bedroom. Elizabeth kept telling defendant to stop and asked
him why he was doing this. She also yelled for help. The windows and blinds in
Elizabeth’s bedroom were closed. Although the sliding door and windows in the living
room area were open because Elizabeth had been mopping and wanted to air out her
apartment, Elizabeth was farther away from the walkway and apartment entrance when in
her bedroom than when in the living room.
Defendant pulled off Elizabeth’s basketball shorts and underwear. Elizabeth
became more frightened and tried yelling “Fire,” but “it didn’t come out” and so she
yelled for defendant to stop. Defendant kept Elizabeth in place on the bed with one hand,
while trying to remove his pants with the other. When he was unsuccessful, he

2 Photographs depicting Elizabeth’s bedroom, the hallway and bedroom, and the
living room and entry door were admitted into evidence.

4.
penetrated her vagina with his first two fingers past the second knuckle of the fingers for
15 to 20 seconds.
To get defendant to stop, Elizabeth told him a couple of times that her father was a
cop. Then Elizabeth noticed the sound of the dishwasher and running water. She told
defendant her boyfriend was in the shower. Elizabeth repeated this multiple times and
told defendant her boyfriend was going to kill him. Defendant stopped, got up, and left
through the front door. Elizabeth ran into her bathroom, locked the door, and called 911.
Fresno Police Officer Hansen was dispatched to Elizabeth’s apartment
immediately after the assault. Hansen took a statement from Elizabeth and described her
emotional state as being “extremely upset.” Elizabeth was crying the entire time. A
sexual assault examination subsequently was performed. Elizabeth suffered bruises from
the assault.
Hansen retrieved a phone number from Elizabeth’s phone with an area code of
405, the Oklahoma City area. Detective Gray, who was assigned to the sexual assault
unit, called the number and left a message. On March 6, 2012, Gray spoke to a woman
named Malasia G., who said she lived in Oklahoma City. Malasia said she knew
someone on Facebook who lived in Fresno named Jeremiah Brewer. Gray determined
defendant lived in an apartment complex not far from Elizabeth. Shown a photographic
lineup, Elizabeth identified defendant as her assailant.
Gray arrested defendant and brought him back to police headquarters for
interrogation. Defendant was advised of and waived his constitutional rights. After
initially denying he was involved in the assault, defendant admitted he came into
Elizabeth’s apartment and used her cell phone. Defendant said Elizabeth let him into the
apartment. Defendant denied touching Elizabeth first. Defendant said Elizabeth “came
on” to him and led him to the bedroom, and they lay on the bed together. Defendant
denied forcible conduct or rape and said he touched her leg “and stuff like that.” He also
denied grabbing Elizabeth and dragging her into the bedroom.

5.
 Defendant initially denied that things got out of hand, but admitted Elizabeth
apparently changed her mind and pushed him away. Defendant again denied raping
Elizabeth and said he did not remember putting his fingers into her vagina. When he was
asked if things changed after he placed his finger inside Elizabeth’s vagina, defendant
replied, “Yeah.” Defendant admitted things got out of hand but continued to deny he
raped Elizabeth and said he guessed she did not want him to place his fingers inside her
vagina. Defendant wrote a letter apologizing to Elizabeth.
DISCUSSION

1. SUFFICIENCY OF EVIDENCE OF KIDNAPPING TO COMMIT SEX OFFENSE*
Introduction
Defendant contends there was insufficient evidence to: (1) support his conviction
for kidnapping to commit forcible sexual penetration (Pen. Code, § 209, subd. (b)(1));
(2) support the trial court’s true findings in count 1 that in committing sexual penetration
by force he kidnapped the victim (id., §§ 289, subd. (a)(1)(A), 667.61, subd. (e)(1)); and
(3) establish he kidnapped the victim by employing movement that substantially
increased the risk of harm to the victim (id., § 667.61, subd. (d)(2)). Defendant argues
any movement was only incidental to the commission of the underlying sexual offense
and did not substantially increase the risk to the victim. We disagree.
Legal Principles
When a defendant challenges the sufficiency of the evidence, appellate courts
must review the entire record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. This standard of appellate review is the same whether the People
primarily rely on direct or on circumstantial evidence. Although a jury must acquit if it

* See footnote, ante, page 1.

6.
finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the
jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences,
and determines whether the People have met the burden of establishing guilt beyond a
reasonable doubt. If the trier of fact’s findings are reasonably justified under the
circumstances, the opinion of the reviewing court that the circumstances may also be
reconciled with a contrary finding does not warrant reversal of the judgment. (People v.
Casares (2016) 62 Cal.4th 808, 823-824.) After reviewing the evidence in the light most
favorable to the prosecution, we determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel
(2016) 62 Cal.4th 1192, 1212-1213.)
Unless the testimony of a single witness is physically impossible or inherently
improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005)
34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences that the jury
might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th
342, 396.) Before a reviewing court can set aside the judgment of the trial court for
insufficiency of the evidence, it must clearly appear that there was no hypothesis
whatever upon which there was substantial evidence to support the verdict. (People v.
Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573.)
Penal Code section 209, subdivision (b) does not require, for an aggravated
kidnapping, proof the movement of the victim substantially increased the risk of harm to
the victim. It does, however, require proof the movement was more than merely
incidental to the enumerated offense and increased the risk of harm above that inherent in
said offense. (People v. Robertson (2012) 208 Cal.App.4th 965, 978-982; see People v.
Vines (2011) 51 Cal.4th 830, 869-871.)3

3 Penal Code section 209, subdivision (b) provides: “(1) Any person who kidnaps
or carries away any individual to commit robbery, rape, spousal rape, oral copulation,

7.
 “The One Strike law, [Penal Code] section 667.61, requires a sentence of 25 years
to life in prison whenever a defendant (1) is convicted of a current offense specified in
subdivision (c), and (2) either ‘one or more of the circumstances specified in subdivision
(d)’ or ‘two or more of the circumstances specified in subdivision (e)’ are present. ([Pen.
Code,] § 667.61, subd. (a).)” (People v. Hammer (2003) 30 Cal.4th 756, 761, fns. &
italics omitted.) The law requires a sentence of 15 years to life in prison whenever a
defendant (1) is convicted of a current offense specified in subdivision (c), and (2) “one
of the circumstances specified in subdivision (e)” is present. (Pen. Code, § 667.61,
subd. (b).)
Sexual penetration, in violation of Penal Code section 289, subdivision (a),
constitutes an offense specified in subdivision (c)(5) of Penal Code section 667.61. Penal
Code section 667.61, subdivision (e)(1) incorporates by reference section 209 of the
Penal Code, as it sets out the following circumstance applicable to the offenses specified
in subdivision (c): “Except as provided in paragraph (2) of subdivision (d), the defendant
kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.”
Penal Code section 667.61, subdivision (d)(2) sets out the following circumstance
applicable to the offenses specified in subdivision (c): “The defendant kidnapped the
victim of the present offense and the movement of the victim substantially increased the
risk of harm to the victim over and above that level of risk necessarily inherent in the
underlying offense in subdivision (c).” Thus, subdivision (d)(2) of section 667.61 of the
Penal Code requires a substantial increase of risk of harm from the defendant’s
asportation of the victim beyond that necessarily present in the underlying sexual offense.

sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by
imprisonment in the state prison for life with the possibility of parole. [¶] (2) This
subdivision shall only apply if the movement of the victim is beyond that merely
incidental to the commission of, and increases the risk of harm to the victim over and
above that necessarily present in, the intended underlying offense.”

8.
Any substantial asportation involving forcible control of the victim satisfies the risk of
harm test. (People v. Jones (1997) 58 Cal.App.4th 693, 713.)
A seminal case from our Supreme Court relied on by defendant is People v.
Daniels (1969) 71 Cal.2d 1119 (Daniels).4 It held that aggravated kidnapping for
robbery requires a movement of the victim that (1) is not merely incidental to the
commission of robbery, and (2) substantially increases the risk of harm over and above
what is present in the crime of robbery itself. (Daniels, supra, at p. 1139.) In Daniels,
though there was a movement of some distance, it was inside a building and the court
found the movement incidental. (Id. at p. 1140.)
In People v. Rayford (1994) 9 Cal.4th 1 (Rayford), the high court observed that in
determining whether the movement was merely incidental to the crime—the first prong
of the Daniels analysis—the trier of fact must consider the scope and nature of the
movement. This includes the actual distance the victim is moved; however, there is no
minimum number of feet a defendant must move a victim to satisfy this requirement.
(Rayford, supra, at p. 12.) The court noted that in Daniels, the movement involved was
merely incidental where, in the course of robbing and raping three women in their own
homes, the defendants forced the victims to move about their rooms for distances of 18
feet, 5 or 6 feet, and 30 feet. (Rayford, supra, at p. 12; see Daniels, supra, 71 Cal.2d at
pp. 1126, 1140.)
Rayford explained that the second prong of Daniels refers to whether the
movement subjects the victim to a substantial increase in risk of harm above and beyond
that inherent in the underlying offense. (Rayford, supra, 9 Cal.4th at p. 13.) “This

4 Prior to the Legislature’s revision of Penal Code section 209, subdivision (b) in
1997, movement of the victim by the defendant had to be substantial. (See People v.
Vines, supra, 51 Cal.4th at p. 869, fn. 20.) Several of the authorities we review analyze
aggravated kidnapping pursuant to the statute as it existed prior to the 1997 revision. As
these authorities address what constitutes a substantial increase in risk of harm, we find
them persuasive in analyzing the One Strike law.

9.
includes . . . such factors as the decreased likelihood of detection, the danger inherent in a
victim’s foreseeable attempts to escape, and the attacker’s enhanced opportunity to
commit additional crimes. [Citations.]” (Id. at pp. 13-14.) It also includes both the
victim’s desperate attempts to extricate himself or herself as well as unforeseen
intervention by third parties. (Id. at p. 13.) That these dangers do not in fact materialize
does not mean the risk of harm was not increased. (Id. at p. 14.)
The sexual assault victim in Rayford was forcibly moved 105 feet at night from
the parking lot of a closed store to the other side of a wall located at the edge of the lot.
She was forced to sit against the wall beside a small tree, 34 feet from the street. The
wall, tree, and bushes at the end of the wall limited any chance the victim might be seen
by passersby. An area beyond the wall bordered a two-lane street, but was undeveloped.
Although there was some light, there was no evidence whether the victim and defendant
were detectable from the street. (Rayford, supra, 9 Cal.4th at p. 23.) The court held this
constituted sufficient evidence of asportation from which the jury could reasonably
conclude the victim’s forcible movement for this distance and under these circumstances
was not merely incidental to the commission of attempted rape and substantially
increased the victim’s risk of harm. (Ibid.)
Several cases decided after Rayford have found an increased risk of harm to the
victim of a sexual assault who was moved a short distance to a more secluded location
within a building or to a space farther from public view. In People v. Dominguez (2006)
39 Cal.4th 1141, 1153, the defendant moved the victim in the middle of the night from
the side of a road to a spot in an orchard 25 feet away and 10 to 12 feet down a steep hill.
In People v. Shadden (2001) 93 Cal.App.4th 164, 167-170, the defendant moved the
owner of a video store nine feet from a space behind the store counter to a back room
where the defendant was able to close the door and keep the victim out of public view. In
People v. Diaz (2000) 78 Cal.App.4th 243, 248-249, the defendant moved the victim
from a well-lighted area on the sidewalk to the back of a recreation center, a location still

10.
outdoors but more secluded from public view. In People v. Jones (1999) 75 Cal.App.4th
616, 628-630, the victim was moved by the defendant across a parking lot and pushed
into her car where, although the car alarm was sounding, the victim was no longer in
public view. In People v. Smith (1995) 33 Cal.App.4th 1586, 1594, the defendant moved
the victim 40 to 50 feet from a driveway open to a view from the street, into a camper. In
People v. Salazar (1995) 33 Cal.App.4th 341, 344, 348, the victim was moved 29 feet
from an outside walkway to the bathroom of a motel room, where the defendant closed
the door. In each of these cases, the defendant’s conduct was held to have caused
increased risk of harm to the victim because of how and where the defendant moved the
victim to commit a sexual assault.
“[E]ach case must be considered in the context of the totality of its
circumstances.” (People v. Dominguez, supra, 39 Cal.4th at p. 1152.) In the present
case, Elizabeth’s apartment was on the first floor of her apartment building. Elizabeth
testified she was cleaning the common areas of her apartment with the window blinds
open over the sink. The blinds for the sliding glass door were also open, as was the
sliding glass door itself. From these windows and the door, anyone walking by
Elizabeth’s apartment could look in and view the kitchen and living room area. After
entering the apartment, defendant slammed the apartment door shut, grabbed Elizabeth,
and forced her, against her struggles, about 10 feet to the wall. He then looked toward
the window because the blinds were open, turned and saw Elizabeth’s bedroom, and
forced Elizabeth to her bedroom. The windows and blinds in the bedroom were closed,
and the bedroom was farther away from the walkway and entrance into the apartment
than was the living room. Once in the bedroom, defendant began his sexual assault.
The facts in the instant action demonstrate defendant moved Elizabeth twice, the
second movement leading her into a secluded room not visible from outside the
apartment. This was more movement than necessary to effectuate the offense of digital
penetration. The movement also significantly increased the risk of harm to Elizabeth. It

11.
greatly reduced the possibility a passerby would see defendant’s assault or at least hear
Elizabeth’s cries for help. The facts of this case are as strong as, if not stronger than, the
facts found to show an increased risk of harm to the victims in Rayford, Dominguez,
Shadden, Diaz, Jones, Smith, and Salazar. We reject defendant’s contention his
movement of Elizabeth was only incidental to his sexual assault and did not pose a
significantly greater risk of harm to her.

2. TRUE FINDINGS OF MULTIPLE SUBDIVISIONS OF PENAL CODE SECTION 667.61*
Defendant contends the trial court’s true findings under subdivisions (d)(2) and
(e)(1) of Penal Code section 667.61 cannot both stand. According to defendant,
subdivision (e)(1) is expressly inapplicable where subdivision (d)(2) applies. The People
say the language of Penal Code section 667.61, subdivision (e)(1) is definitional and does
not preclude an additional finding under subdivision (d)(2) of the statute. We agree with
the People that defendant reads subdivision (e)(1) too narrowly.
Subdivision (e)(1) of Penal Code section 667.61 states: “Except as provided in
paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present
offense in violation of Section 207, 209, or 209.5.” Defendant argues the express
language of this subdivision “explicitly provides an exception where the kidnapping
circumstance does not apply, that is, where the circumstance of subdivision (d)(2)
applies.” According to defendant, the true finding under subdivision (d)(2) of Penal
Code section 667.61 precludes a true finding pursuant to section (e)(1) of the same
statute.
Penal Code section 667.61 is not a sentence enhancement; rather, it is an
alternative and harsher sentencing scheme for the underlying specified sex crimes
themselves. (People v. Acosta (2002) 29 Cal.4th 105, 118.) As we previously explained,
subdivision (a) of Penal Code section 667.61 provides that if a defendant is convicted of

* See footnote, ante, page 1.

12.
an offense enumerated in subdivision (c) of the statute under one or more of the
circumstances specified in subdivision (d) of the statute or two or more of the
circumstances specified in subdivision (e) of the statute, he or she is subject to a sentence
of 25 years to life. Subdivision (b) of Penal Code section 667.61 provides for a sentence
of 15 years to life if the defendant is convicted of an enumerated offense under one of the
circumstances specified in subdivision (e) of the statute.
The introductory phrase of subdivision (e)(1) of Penal Code section 667.61 —
“Except as provided in paragraph (2) of subdivision (d)” — is definitional language. As
the People contend, it specifies the situation under which the circumstance applies, i.e.,
where the defendant kidnaps the victim in violation of section 207, 209, or 209.5 of the
Penal Code, but does not substantially increase the risk of harm to the victim over and
above the level of risk inherent in the underlying offense. It does not mean a true finding
pursuant to Penal Code section 667.61, subdivision (d)(2) is precluded by subdivision
(e)(1) or that a subdivision (e)(1) finding must be stricken where there is also a true
finding under subdivision (d)(2). As the People accurately point out, subdivision (g) of
Penal Code section 667.61 states: “Notwithstanding Section 1385 or any other provision
of law, the court shall not strike any allegation, admission, or finding of any of the
circumstances specified in subdivision (d) or (e) for any person who is subject to
punishment under this section.”
Where allegations are found true under both subdivisions (d)(2) and (e)(1) of
section 667.61 of the Penal Code, subdivision (b) of the statute (which reads, in part,
“[e]xcept as provided in subdivision (a)”) precludes a sentence under that very same
provision, and the defendant is sentenced pursuant to subdivision (a) of the statute. Here,
the trial court sentenced defendant on count 1 pursuant to subdivision (a) of Penal Code
section 667.61. The court properly followed the statutory sentencing scheme of Penal
Code section 667.61, the sentence was authorized, and a true finding pursuant to
subdivision (e)(1) of the statute was not precluded as argued by defendant.

13.
3. CRUEL AND/OR UNUSUAL PUNISHMENT*
Defendant contends his sentence was cruel and/or unusual under the United States
and California Constitutions because he was only 16 years old when he committed the
offenses and he had no prior criminal record. Defendant further asserts his trial counsel
was ineffective for failing to challenge his sentence as cruel and/or unusual punishment.
We reject these arguments.
Defendant’s Eighth Amendment challenge does not fall within the narrow
proportionality principle in the Eighth Amendment reserved for extreme sentences that
are grossly disproportionate to the offenses committed by the defendant. (See Ewing v.
California (2003) 538 U.S. 11, 20-21 (lead opn. of O’Connor, J.).) Article 1, section 17
of the California Constitution sets forth three factors for courts to consider when
analyzing whether a sentence is cruel or unusual: (1) the degree of danger the offender
and the offense pose to society; (2) how the punishment compares with punishments for
more serious crimes; and (3) how the punishment compares for the same offense in other
jurisdictions. (People v. Dillon (1983) 34 Cal.3d 441, 479-482, disapproved on another
ground in People v. Chun (2009) 45 Cal.4th 1172, 1185-1186; In re Lynch (1972) 8
Cal.3d 410, 425-427 (Lynch).)
First, in People v. Andrade (2015) 238 Cal.App.4th 1274, 1309, 1310, the court
did not find a sentence of 195 years to life disproportionate, shocking, or inhumane for a
violent sex offender who lacked a criminal history but who committed his crimes against
young, vulnerable women; threatened his victims; and claimed an affiliation with law
enforcement to avoid detection. In People v. Hamlin (2009) 170 Cal.App.4th 1412,
1474-1476, the court found a life term constitutional for a defendant who lacked a prior
criminal record but who was convicted of torture and showed no remorse. While perhaps
not as serious as torture, residential burglary nevertheless is a serious offense that poses a

* See footnote, ante, page 1.

14.
risk to human life, especially when it is perpetrated with the goal of committing a sexual
assault. (People v. Estrada (1997) 57 Cal.App.4th 1270, 1281-1282 [concluding
sentence of 25 years to life for forcible rape in course of burglary committed with intent
to commit forcible rape is neither cruel nor unusual].)
Second, lengthy noncapital sentences have been upheld in a variety of sentencing
scenarios. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1230-1231
[upholding sentence of 135 years pursuant to One Strike law]; People v. Crooks (1997)
55 Cal.App.4th 797, 803-809 [mandatory minimum sentence of 25 years to life under
One Strike law not cruel and/or unusual]; People v. Cooper (1996) 43 Cal.App.4th 815,
820-828 [sentence of 25 years to life under Three Strikes law for being ex-felon in
possession of handgun not cruel and/or unusual]; People v. Wallace (1993) 14
Cal.App.4th 651, 666-667 [sentence of more than 283 years for multiple sex offenses
constitutional].)
Third, how the punishment compares for the same offense in other jurisdictions —
need not be reviewed under the facts of this case. (See People v. Dillon, supra, 34 Cal.3d
at p. 487, fn. 38; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 846.) We note,
however, that punishments for sex offenses in sister state jurisdictions include similar or
harsher sentences. (See People v. Estrada, supra, 57 Cal.App.4th at p. 1282 [comparing
sentences in Washington and Louisiana].)
In Miller v. Alabama (2012) 567 U.S. 460, 479-480 (Miller), the United States
Supreme Court found an Eighth Amendment violation where a juvenile was subject to a
mandatory sentence of life without the possibility of parole. The California Supreme
Court reached a similar conclusion where a juvenile received a sentence of over 100
years for a noncapital offense, a span beyond the natural life expectancy of the offender.
(People v. Caballero (2012) 55 Cal.4th 262, 266-269.) In People v. Palafox (2014) 231
Cal.App.4th 68, 73, 89-92 (Palafox), this court held a juvenile who committed homicide
could be sentenced to life without the possibility of parole where the term imposed was

15.
not mandatory and the sentencing court properly evaluated all relevant sentencing
criteria, including mitigating factors.
Defendant was 16 years old when he committed the instant offense. Unlike the
defendants in Miller and Palafox, he did not receive a sentence of life without the
possibility of parole. Rather, he received a sentence of 25 years to life and will be
eligible for parole well within his natural life expectancy. The trial court did not abuse its
sentencing discretion when it imposed an indeterminate sentence of 25 years to life on
count 1.
Because defendant’s sentence is not cruel and/or unusual, he cannot demonstrate
either deficient performance by trial counsel or prejudice therefrom. Accordingly, his
ineffective assistance of counsel claim fails. (See People v. Maury, supra, 30 Cal.4th at
p. 389.)
4. PROPOSITION 57
We granted rehearing and asked the parties to submit supplemental briefing
regarding whether Proposition 57 applies retroactively to defendant’s case. Defendant
argues Proposition 57 applies retroactively to all cases not yet final, pursuant to In re
Estrada (1965) 63 Cal.2d 740 (Estrada). He says: “Estrada’s retroactivity presumption
applies . . . for several reasons: reduction of punishment; creation of an affirmative
defense[;] and retroactive application is consonant with [the Act’s] stated purposes.”
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; People v. Cardona
(2009) 177 Cal.App.4th 516, 523-524.) Although, prior to 1999, there were no
provisions for the direct filing (mandatory or discretionary) of charges against juveniles
in criminal court (Juan G., supra, at p. 1493), a presumption of unfitness for minors, aged

16.
16 years old or older and charged with specified offenses, was added to the Welfare and
Institutions Code5 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).
In 1999, the Legislature added subdivision (b) to section 602, mandating the direct
filing in criminal (adult) court of criminal cases against minors 16 years of age or older
under specified circumstances. (Juan G. v. Superior Court, supra, 209 Cal.App.4th at
p. 1493.) In 2000, voters approved Proposition 21, the Gang Violence and Juvenile
Crime Prevention Act of 1998. In pertinent part, it “confer[red] upon 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 is unfit for a disposition
under the juvenile court law.” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 545;
see generally id., at pp. 548-550.) Proposition 21 also decreased, to 14, the minimum age
for mandatory criminal prosecutions. (Manduley, supra, at p. 550.)
Elizabeth F. was sexually assaulted by defendant on February 10, 2012.
Defendant was born October 13, 1995, making him 16 years old at the time of the crimes
of which he was convicted. For unknown reasons, despite the provisions of former
section 602, subdivision (b), mandating the direct filing of the accusatory pleading in
criminal court, defendant’s case proceeded by way of a juvenile wardship petition, filed
March 9, 2012, under former section 602, subdivision (a).6 The probation officer

5 Further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
6 At the time of defendant’s offenses, former subdivision (b)(2)(E) of section 602
mandated prosecution in criminal (adult) court of juveniles 14 years of age or older who
were alleged to have committed, inter alia, forcible sexual penetration (Pen. Code, § 289,
subd. (a)), where it was alleged the minor personally committed the offense and where
one of the circumstances enumerated in the One Strike law (Pen Code, § 667.61,
subds. (d), (e)) was also alleged.

17.
recommended that defendant be found not a fit and proper subject to be dealt with under
the juvenile court law. On June 6, 2012, following a contested hearing, the juvenile court
so found, and referred the matter to the district attorney for prosecution under the general
law.
On June 8, 2012, charges were filed against defendant in criminal court. He was
convicted on September 2, 2014, and sentenced on October 29, 2014. His notice of
appeal was filed on November 26, 2014. On November 8, 2016, while defendant’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. The Act also removed the presumption of unfitness that previously
attached to the alleged commission of certain offenses.7
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, review granted July 26, 2017, S242660.) Thus, two of the Act’s stated purposes,

7 Section 602 now states: “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 . . . , is within the
jurisdiction of the juvenile court, which may adjudge such person to be a ward of the
court.”
Section 707 now provides, in pertinent part: “(a)(1) In any case in which a minor
is alleged to be a person described in Section 602 by reason of the violation, when he or
she was 16 years of age or older, of any felony criminal statute . . . , the district attorney
. . . may make a motion to transfer the minor from juvenile court to a court of criminal
jurisdiction. The motion must be made prior to the attachment of jeopardy. Upon such
motion, the juvenile court shall order the probation officer to submit a report on the
behavioral patterns and social history of the minor. . . . [¶] (2) Following submission and
consideration of the report, and of any other relevant evidence that the petitioner or the
minor may wish to submit, the juvenile court shall decide whether the minor should be
transferred to a court of criminal jurisdiction. In making its decision, the court shall
consider [certain specified] criteria . . . .” Subdivision (b) of section 707 extends
subdivision (a) of the statute to any minor who allegedly committed a specified offense
when he or she was 14 or 15 years of age.

18.
contained in uncodified section 2 thereof, are to “[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 (Voter
Information Guide).)8
Analysis
There can be no doubt that, had defendant committed his offenses 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 court for
prosecution.9 The question we confront is whether Proposition 57 applies to juvenile
offenders who, like defendant, 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 [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].) This is a
purely legal question we analyze de novo. (See People v. Arroyo (2016) 62 Cal.4th 589,
593.)10

8 The voter information guide is available at (as of Nov. 17, 2017).
9 We are not here faced with, and express no opinion concerning, the situation of a
minor who was charged in adult court but not yet tried at the time the Act went into
effect. (See People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, 758, 773-778,
review granted May 17, 2017, S241231; see also Tapia v. Superior Court (1991) 53
Cal.3d 282, 288.)
10 This question is pending review before the state Supreme Court in numerous
cases, including People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687, review
granted September 13, 2017, S243072; People v. Marquez, supra, 11 Cal.App.5th 816,
rev.gr.; People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298;
People v. Mendoza (2017) 10 Cal.App.5th 327, review granted July 12, 2017, S241647;
and People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017,
S241323.

19.
 Defendant says the provisions of Proposition 57 requiring a juvenile
fitness/transfer hearing, and repealing the presumption of unfitness, apply to all cases not
yet final. We disagree.
In ascertaining whether a statute should be applied retroactively, the intent of the
electorate, or the Legislature, “is the ‘paramount’ consideration . . . .” (People v. Nasalga
(1996) 12 Cal.4th 784, 792 (plur. opn. of Werdegar, J.); see People v. Conley (2016) 63
Cal.4th 646, 656.) “ ‘ “In interpreting a voter initiative” ’ such as Proposition [57], ‘ “we
apply the same principles that govern statutory construction. [Citation.] Thus, . . . ‘we
turn first to the language of the statute, giving the words their ordinary meaning.’
[Citation.] . . . The statutory language must also be construed in the context of the statute
as a whole and the overall statutory scheme [in light of the electorate’s intent].
[Citation.] . . . When the language is ambiguous, ‘we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot
pamphlet.’ ” ’ [Citation.] ‘In other words, our “task is simply to interpret and apply the
initiative’s language so as to effectuate the electorate’s intent.” ’ [Citation.]” (People v.
Arroyo, supra, 62 Cal.4th at p. 593.)
“It is well settled that a new statute is presumed to operate prospectively absent an
express declaration of retrospectivity or a clear indication that the electorate, or the
Legislature, intended otherwise. [Citations.]” (Tapia v. Superior Court, supra, 53 Cal.3d
at p. 287.) While the Welfare and Institutions Code does not contain a statutory
codification of this principle (cf., e.g., Code Civ. Proc., § 3, Pen. Code, § 3), the
California Supreme Court has made clear such statutory language “ ‘does no more than
codify a general rule of construction, applicable as well to statutes containing no such
provision. [Citations.]’ [Citation.]” (Stenger v. Anderson (1967) 66 Cal.2d 970, 977,
fn. 13.)
The provisions of Proposition 57 affecting only juvenile offenders contain no
express statement regarding retroactivity. Defendant seeks support for his claim of

20.
retroactive application in the fact the Act contains no savings clause; the specified
purposes of the Act, quoted ante; uncodified section 5 of the Act, which says the Act
“shall be broadly construed to accomplish its purposes” (Voter Information Guide, supra,
text of Prop. 57, § 5, p. 145); and uncodified section 9 of the Act, which says the Act
“shall be liberally construed to effectuate its purposes” (Voter Information Guide, supra,
text of Prop. 57, § 9, p. 146). He says retroactivity furthers the goals of Proposition 57.
Our Supreme Court, however, has “been cautious not to infer the voters’ or the
Legislature’s intent on the subject of prospective versus retrospective operation from
‘vague phrases’ [citation] and ‘broad, general language’ [citation] in statutes, initiative
measures and ballot pamphlets.” (Californians for Disability Rights v. Mervyn’s, LLC
(2006) 39 Cal.4th 223, 229-230.) “Accordingly, we will not attempt to infer from the
ambiguous general language of Proposition [57] whether the voters intended the measure
to apply to . . . cases [that are not yet final]. Instead, we will employ the ordinary
presumptions and rules of statutory construction commonly used to decide such matters
when a statute is silent.” (Id. at p. 230.)
“ ‘[A] statute that is ambiguous with respect to retroactive application is construed
. . . to be unambiguously prospective.’ [Citations.]” (Myers v. Philip Morris Companies,
Inc. (2002) 28 Cal.4th 828, 841, quoting, inter alia, INS v. St. Cyr (2001) 533 U.S. 289,
320-321, fn. 45.) Defendant argues, however, that Proposition 57 falls within the
exception to this general principle carved out by Estrada, supra, 63 Cal.2d 740.
Estrada dealt with a situation in which, at the time of Estrada’s offense (escape
without force or violence), the applicable statutes mandated a sentence of at least one
year’s imprisonment, to commence from the time the prisoner would have been
discharged otherwise, with no grant of parole until service of at least two calendar years
from the date of the escapee’s return to prison after conviction. After Estrada committed
the crime, but before his conviction and sentence, the statutes were amended to provide
for a sentence of six months to five years in prison, with no minimum date for parole

21.
eligibility. (Estrada, supra, 63 Cal.2d at pp. 743-744.)11 The California Supreme Court
stated:

“The problem, of course, is one of trying to ascertain the legislative
intent — did the Legislature intend the old or new statute to apply? Had
the Legislature expressly stated which statute should apply, its
determination, either way, would have been legal and constitutional. It has
not done so. We must, therefore, attempt to determine the legislative intent
from other factors.

“There is one consideration of paramount importance. It leads
inevitably to the conclusion that the Legislature must have intended, and by
necessary implication provided, that the amendatory statute should prevail.
When the Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe and
that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have
intended that the new statute imposing the new lighter penalty now deemed
to be sufficient should apply to every case to which it constitutionally could
apply. The amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final. This intent seems obvious,
because to hold otherwise would be to conclude that the Legislature was
motivated by a desire for vengeance, a conclusion not permitted in view of
modern theories of penology.” (Estrada, supra, 63 Cal.2d at pp. 744-745.)
With respect to Penal Code section 3, the court stated: “That section simply
embodies the general rule of construction, coming to us from the common law, that when
there is nothing to indicate a contrary intent in a statute it will be presumed that the
Legislature intended the statute to operate prospectively and not retroactively. That rule
of construction, however, is not a straitjacket. Where the Legislature has not set forth in
so many words what it intended, the rule of construction should not be followed blindly
in complete disregard of factors that may give a clue to the legislative intent. It is to be
applied only after, considering all pertinent factors, it is determined that it is impossible

11 “Although parole constitutes a distinct phase from the underlying prison sentence,
a period of parole following a prison term has generally been acknowledged as a form of
punishment.” (People v. Nuckles (2013) 56 Cal.4th 601, 609.)

22.
to ascertain the legislative intent. In the instant case there are . . . other factors that
indicate the Legislature must have intended that the amendatory statute should operate in
all cases not reduced to final judgment at the time of its passage.” (Estrada, supra, 63
Cal.2d at p. 746.)
We conclude Estrada does not require that the provisions of Proposition 57 be
applied retroactively to defendant’s case. Although Estrada has been broadly applied in
the past (see, e.g., People v. Francis (1969) 71 Cal.2d 66, 75-76 [applying Estrada to
statutory amendment vesting in trial court discretion to impose either same penalty as
under former law or lesser penalty]), the California Supreme Court has since made it
clear Estrada “supports an important, contextually specific qualification to the ordinary
presumption that statutes operate prospectively: When the Legislature has amended a
statute to reduce the punishment for a particular criminal offense, we will assume, absent
evidence to the contrary, that the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative date. [Citation.]”
(People v. Brown (2012) 54 Cal.4th 314, 323, italics added, fn. omitted (Brown).)
The state high court noted the “limited role Estrada properly plays in our
jurisprudence of prospective versus retrospective operation” (Brown, supra, 54 Cal.4th at
p. 324), and found Estrada’s statement about the rule of construction codified in Penal
Code section 3 not being a “straitjacket” (Estrada, supra, 63 Cal.2d at p. 746), if applied
broadly and literally, would “endanger the default rule of prospective operation” (Brown,
supra, at p. 324). The court concluded: “Estrada is today properly understood, not as
weakening or modifying the default rule of prospective operation codified in [Penal
Code] section 3, but rather as informing the rule’s application in a specific context by
articulating the reasonable presumption that a legislative act mitigating the punishment
for a particular criminal offense is intended to apply to all nonfinal judgments.
[Citation.]” (Ibid., italics added.) The court rejected the argument Estrada should be
understood to apply to any statute that reduced punishment in any manner, noting “the

23.
rule and logic of Estrada is specifically directed to a statute that represents ‘ “a legislative
mitigation of the penalty for a particular crime” ’ [citation] . . . .” (Brown, supra, at
p. 325, original italics.)
Brown concerned the application of a change in the rate at which prisoners in local
custody could earn conduct credits (Brown, supra, 54 Cal.4th at pp. 317-318), a very
different situation than we confront here. Nevertheless, we cannot just blithely write off,
on that ground, a pronouncement by our state’s highest court that limits the holding in
one of that court’s prior cases. That the state Supreme Court did not intend this limitation
to apply only in the circumstances presented in Brown is clearly demonstrated by the fact
it cited to a discussion of the default rule of prospective application, and rejection of a
broad interpretation of Estrada, contained in Evangelatos v. Superior Court (1988) 44
Cal.3d 1188, 1208-1209, a civil case. (Brown, supra, at pp. 324-325.) The Supreme
Court’s application of the limitation on Estrada in two such disparate scenarios strongly
signals its intent that said limitation should be broadly applied. This is especially so
when we take into account that court’s more recent reference to Brown as
“acknowledging the continuing viability of the Estrada rule, [but] emphasiz[ing] its
narrowness . . . .” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1196, disapproved
on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
We recognize significant differences exist between juvenile and adult offender
laws, and that “[t]he former seeks to rehabilitate, while the latter seeks to punish.” (In re
Julian R. (2009) 47 Cal.4th 487, 496.) We also recognize “the certification of a juvenile
offender to an adult court has been . . . characterized as ‘the worst punishment the
juvenile system is empowered to inflict.’ [Citation.]” (Ramona R. v. Superior Court
(1985) 37 Cal.3d 802, 810.) Proposition 57 has the potential to reduce the range of
permissible punishment — including that applicable to the offenses of which defendant
was convicted — for a class of offenders. Nevertheless, no provision of Proposition 57

24.
mitigates the penalty for a particular criminal offense. Accordingly, Estrada does not
overcome the strong presumption of prospective-only application.
Defendant argues the Act reduces the range of punishment for juvenile offenses
that previously were subject to direct filing in criminal court by giving juvenile courts
“exclusive” jurisdiction over all juveniles. To the contrary, “[t]he juvenile court and the
criminal court are divisions of the superior court, which has subject matter jurisdiction
over criminal matters and civil matters, including juvenile proceedings. (See Cal. Const.,
art. VI, § 10.) When exercising the jurisdiction conferred by the juvenile court law, the
superior court is designated as the juvenile court. (. . . § 245.) Accordingly, when we
refer . . . to the jurisdiction of the juvenile court or the jurisdiction of the criminal court,
we do not refer to subject matter jurisdiction, but rather to the statutory authority of the
particular division of the superior court, in a given case, to proceed under the juvenile
court law or the law generally applicable in criminal actions. [Citation.]” (Manduley v.
Superior Court, supra, 27 Cal.4th at p. 548, fn. 3; see People v. Cardona, supra, 177
Cal.App.4th at p. 527.) As to crimes that qualify a juvenile offender for transfer to adult
court, such as those committed by defendant (§ 707, subd. (a)(1)), subject matter
jurisdiction is concurrent between the criminal division and the juvenile division. (See
Manduley, supra, at p. 562.)
As previously noted, the portions of Proposition 57 applicable only to juvenile
offenders contain no express retroactivity provision. By contrast, the Act expressly
renders the provisions relating to eligibility for parole consideration retroactive by
making them applicable to “[a]ny person convicted . . . and sentenced . . . .” (Cal. Const.,
art. I, § 32, subd. (a)(1); see People v. Franklin (2016) 63 Cal.4th 261, 278 [discussing
retroactivity of youth offender parole hearings under Pen. Code, § 3051].) Moreover,
section 707, subdivision (a)(1), as amended by the Act, mandates that any motion to
transfer the minor from juvenile court to criminal court “must be made prior to the
attachment of jeopardy.” (Italics added.)

25.
 “The voters are presumed to have been aware of existing law at the time an
initiative was enacted. [Citations.]” (Juan G. v. Superior Court, supra, 209 Cal.App.4th
at p. 1494.) In addition, we generally assume voters considered the entire text of a
proposal submitted to them for enactment. (See People v. Valencia (2017) 3 Cal.5th 347,
369.) This being the case, logic dictates that had voters intended the juvenile offender
provisions of Proposition 57 to apply to such offenders who were already tried,
convicted, and sentenced, the enactment would have included an express provision to that
effect, as did the parole eligibility portions of the Act.
When interpreting a legislative enactment, “ ‘[w]e must . . . avoid a construction
that would produce absurd consequences, which we presume the Legislature [or voters]
did not intend. [Citations.]’ [Citation.]” (In re Greg F. (2012) 55 Cal.4th 393, 406; see
People v. Union Pacific Railroad Co. (2006) 141 Cal.App.4th 1228, 1257 & fn. 5.) To
hold Proposition 57 applies retroactively to defendants who have been convicted and
sentenced, but whose judgments are not yet final, would mean an offender who was tried
and convicted by a jury of special circumstance murder upon proof beyond a reasonable
doubt, and sentenced to life in prison without the possibility of parole by a court that
carefully considered whether to impose a lesser term of 25 years to life as permitted by
Penal Code section 190.5, subdivision (b), would be given the opportunity of being
released within a matter of a few years (see, e.g., §§ 607, 1769, 1771). This is so even
though the life-without-parole sentence comported with the Eighth Amendment to the
United States Constitution, as construed in Miller v. Alabama (2012) 567 U.S. 460 and
Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718]. It is difficult to imagine
a more absurd result, or that voters intended for such an offender to be returned to society
within such a short time.
Defendant asserts, however, that Proposition 57 applies retroactively because it
“creates an affirmative defense that was unavailable at the time of the denial of
[defendant’s] petition to be adjudged in juvenile court and at the time of his criminal

26.
adult trial. Specifically, had Proposition 57 been in effect, the judge would have acted in
excess of its jurisdiction by denying [defendant’s] petition and referring him to adult
criminal court because Proposition 57 changed the rules of the game in [defendant’s]
favor. And those rules would likely have tipped the scales in favor of [defendant]
remaining in the juvenile court system where he would not have been a criminal sent to
prison but subject to rehabilitation measures by the juvenile court if found to have
committed the charged offenses.” Defendant points to the increase, under the Act, in
prosecutorial discretion whether to seek to try a juvenile as an adult, as well as the factors
to be weighed by a juvenile court in evaluating whether transfer from a juvenile court to
an adult court is appropriate.
It is true that new defenses generally are given retroactive application. (See, e.g.,
People v. Wright (2006) 40 Cal.4th 81, 95-96; People v. Urziceanu (2005) 132
Cal.App.4th 747, 785-786; People v. Trippet (1997) 56 Cal.App.4th 1532, 1544-1545.)
In our view, defendant does not establish the Act created a true defense. Rather, he
argues, based on his own personal circumstances, that “Proposition 57 significantly
increased the likelihood [defendant’s] case would be handled in juvenile court and he
would thereby receive a less severe sentence and no criminal record or status.” We reject
defendant’s reasoning. “Whether or not the [electorate] intended the [enactment] to be
retroactive to cases not final before the effective date [thereof] obviously cannot be
decided on the basis of the particular facts of this or any other individual case.” (People
v. Francis, supra, 71 Cal.2d at pp. 76-77.)
Defendant also argues that if his fitness hearing had been conducted pursuant to
the Act, the juvenile court’s ruling would have been in excess of its jurisdiction, because
defendant was not afforded the right to have (1) the prosecutor exercise discretion in
determining whether defendant’s was a case that merited a petition for transfer to adult
court, (2) a hearing without a presumption of unfitness, and (3) a hearing in which the
prosecution, not defendant, bore the burden of proof on the question of fitness. This

27.
argument is valid only if Proposition 57 applies retroactively. We have held it does not.
Nor, in our view, do the changes in the law occasioned by the Act require a finding of
retroactivity when, as we have concluded, voters did not intend retroactive application.
“[T]here is no express constitutional guarantee giving a minor the right to trial in
juvenile court, let alone affording him a presumption of fitness for trial in juvenile court.
Nor is there authority establishing the rebuttable presumption [of unfitness] impacts a
fundamental right implicitly guaranteed by the Constitution. [Citation.]” (Hicks v.
Superior Court (1995) 36 Cal.App.4th 1649, 1658, fn. omitted; see Manduley v. Superior
Court, supra, 27 Cal.4th at pp. 564-565; see generally In re Gault (1967) 387 U.S. 1, 14-
17 [describing genesis and development of juvenile court system].) “The sole purpose of
the fitness hearing is to determine whether the best interest of the minor and of society
will be served by retention in the juvenile court or whether the minor should be tried as
an adult. [Citation.]” (People v. Superior Court (Ronald H.) (1990) 219 Cal.App.3d
1475, 1479.) The type of penalty that may be imposed upon conviction as an adult is
irrelevant to the determination of a minor’s amenability to treatment within the juvenile
system (ibid.), as is guilt or innocence (Rene C. v. Superior Court (2006) 138
Cal.App.4th 1, 10).
This being the case, neither removal of the presumption of unfitness nor alteration
of the burden of proof as to fitness implicates the federal Constitution. Neither change
alters the elements of the crime(s) charged nor the requirement that the prosecution prove
guilt beyond a reasonable doubt. Neither denies a juvenile offender his or her rights to
notice of charges, to counsel, to confront and cross-examine witnesses, nor to the
privilege against self-incrimination. (See Marcus W. v. Superior Court (2002) 98
Cal.App.4th 36, 41.)
Defendant insists that, because the juvenile court’s actions would have been in
excess of its jurisdiction had the fitness hearing proceeded under Proposition 57, failing
to apply the Act retroactively would deny defendant his right to the affirmative defense of

28.
the lower court acting in excess of its jurisdiction, which in turn would deny him due
process under the federal Constitution. As support, defendant cites Kent v. United States
(1966) 383 U.S. 541 (Kent).
Kent concerned a District of Columbia law that permitted the juvenile court to
waive its jurisdiction “ ‘after full investigation’ ” and order certain specified juvenile
offenders held for trial in regular criminal court, but which did not state standards to
govern the juvenile court’s waiver decision. (Kent, supra, 383 U.S. at pp. 547-548.)
Kent’s attorney requested a hearing on the question of waiver, offered to prove Kent was
a suitable subject for rehabilitation in the juvenile court system, and asked for access to
the social service file compiled by juvenile court staff during Kent’s prior probation
period that would be available to the juvenile court judge for consideration on the waiver
question. The juvenile court judge did not rule on any of the motions, hold a hearing, or
confer with Kent, Kent’s parents, or Kent’s counsel. He simply entered an order reciting
that after “ ‘full investigation,’ ” he waived jurisdiction. He made no findings and recited
no reasons for the waiver, although the high court assumed that, prior to entry of the
order, the judge received and considered recommendations of the juvenile court staff, the
social service file relating to Kent, and a juvenile probation report. (Id. at pp. 545-547.)
Kent ultimately was convicted of multiple felonies in criminal court and sentenced to a
lengthy prison term, some of which was to be spent in a psychiatric facility in light of the
jury’s finding of insanity on one of the charges. (Id. at p. 550.)
The United States Supreme Court held the order of the juvenile court, waiving its
jurisdiction and transferring Kent for trial in adult court, was invalid. (Kent, supra, 383
U.S. at p. 552.) The court stated: “[T]he statute contemplates that the Juvenile Court
should have considerable latitude within which to determine whether it should retain
jurisdiction over a child or — subject to the statutory delimitation — should waive
jurisdiction. But this latitude is not complete. At the outset, it assumes procedural
regularity sufficient in the particular circumstances to satisfy the basic requirements of

29.
due process and fairness, as well as compliance with the statutory requirement of a ‘full
investigation.’ [Citation.] The statute gives the Juvenile Court a substantial degree of
discretion as to the factual considerations to be evaluated, the weight to be given them
and the conclusion to be reached. It does not confer upon the Juvenile Court a license for
arbitrary procedure. The statute does not permit the Juvenile Court to determine in
isolation and without the participation or any representation of the child the ‘critically
important’ question whether a child will be deprived of the special protections and
provisions of the Juvenile Court Act.” (Id. at pp. 552-553, fns. omitted.)
The high court found it “clear beyond dispute” that the waiver of the juvenile
court’s jurisdiction was “a ‘critically important’ action determining vitally important
statutory rights of the juvenile,” as the statutory scheme vested the juvenile court “with
‘original and exclusive jurisdiction’ of the child.” (Kent, supra, 383 U.S. at p. 556.) The
court stated: “The net, therefore, is that [Kent] — then a boy of 16 — was by statute
entitled to certain procedures and benefits as a consequence of his statutory right to the
‘exclusive’ jurisdiction of the Juvenile Court. In these circumstances, considering
particularly that decision as to waiver of jurisdiction and transfer of the matter to the
[adult] [c]ourt was potentially as important to [Kent] as the difference between five
years’ confinement and a death sentence, we conclude that, as a condition to a valid
waiver order, [Kent] was entitled to a hearing, including access by his counsel to the
social records and probation or similar reports which presumably are considered by the
court, and to a statement of reasons for the Juvenile Court’s decision. We believe that
this result is required by the statute read in the context of constitutional principles relating
to due process and the assistance of counsel.” (Id. at p. 557.)
As we have explained, California’s juvenile court law, unlike the statutory scheme
at issue in Kent, does not confer exclusive jurisdiction on the juvenile court. More
importantly, defendant received that which due process required at the time of his fitness
hearing. (See Manduley v. Superior Court, supra, 27 Cal.4th at p. 562.) “Kent . . . held

30.
only that where a statute confers a right to a judicial determination of fitness for a
juvenile court disposition, the due process clause requires that the determination be made
in compliance with the basic procedural protections afforded to similar judicial
determinations.” (Manduley, supra, at p. 566.) That the procedure for determining
where a juvenile offender should be tried has been changed by Proposition 57 to require a
judicial determination of unfitness in all circumstances does not mean the new procedure
applies retroactively to cases in which the offender has already been convicted, or that
failure to so apply it denies the offender an affirmative defense, impinges on a liberty
interest, or violates due process. Kent does not hold to the contrary.12
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN, J.
I CONCUR:

_____________________
HILL, P.J.

12 In Tapia v. Superior Court, supra, 53 Cal.3d 282, the California Supreme Court
addressed application of the provisions of Proposition 115. In pertinent part, it held that
provisions adding intent requirements to certain special circumstances permissibly could
be applied to trials of crimes committed before the proposition’s operative date, because,
although they changed the legal consequences of a defendant’s criminal conduct, they did
so in a way that benefited defendants. (Tapia, supra, at pp. 300-301.) The Tapia opinion
says nothing about application of the new provisions to cases in which trial was already
held.

31.
 SMITH, J., Concurring and Dissenting – Published
I concur with the majority in sections 1, 2, and 3, which comprise the unpublished
portion of this opinion. I dissent from section 4 of the majority opinion, which addresses
the question of whether Proposition 57 applies prospectively only or also retroactively to
cases such as this one, which were pending final judgment on its effective date. The
majority has determined that Proposition 57 applies prospectively only. I believe the
better argument is that the electorate intended the amendments effected by Proposition 57
also to apply retroactively, to cases that were not final at the time of the proposition’s
enactment. Accordingly, I would apply Proposition 57 retroactively here. In turn, I
would conditionally reverse the judgment and remand the matter for the juvenile court to
conduct a new fitness hearing, pursuant to Welfare and Institutions Code sections 602
and 707, as amended by Proposition 57.1
Although there is a general presumption that new laws apply prospectively,
Tapia v. Superior Court (1991) 53 Cal.3d 282, 287, I conclude that Proposition 57 is
subject to the exception to that presumption articulated in In re Estrada (1965) 63 Cal.2d
740 (Estrada). In Estrada, our Supreme Court held: “When the Legislature has amended
a statute to reduce the punishment for a particular criminal offense, we will assume,
absent evidence to the contrary, that the Legislature intended the amended statute to
apply to all defendants whose judgments are not yet final on the statute’s operative date.”
(People v. Brown (2012) 54 Cal.4th 314, 323, fn. omitted (Brown).) Brown explained
that Estrada “articulate[d] the reasonable presumption that a legislative act mitigating the
punishment for a particular criminal offense is intended to apply to all nonfinal
judgments.” (Brown, supra, at p. 324; People v. Conley (2016) 63 Cal.4th 646, 656

1 Subsequent statutory references are to the Welfare and Institutions Code unless
otherwise specified.
(Conley) [Estrada “held that new laws that reduce the punishment for a crime are
presumptively to be applied to defendants whose judgments are not yet final”].)
Estrada’s rationale is based on the principle that, “‘[o]rdinarily,’ … ‘when an
amendment lessens the punishment for a crime one may reasonably infer the Legislature
has determined imposition of a lesser punishment on offenders thereafter will sufficiently
serve the public interest.’” (People v. Nasalga (1996) 12 Cal.4th 784, 791 (Nasalga).)
Estrada explained: “When the Legislature amends a statute so as to lessen the
punishment it has obviously expressly determined that its former penalty was too severe
and that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply.… [T]o hold otherwise
would be to conclude that the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.” (Estrada, supra,
63 Cal.2d at p. 745; see Conley, supra, 63 Cal.4th at p. 656 [“when the Legislature
determines that a lesser punishment suffices for a criminal act, there is ordinarily no
reason to continue imposing the more severe penalty beyond simply “‘satisfy[ing] a
desire for vengeance”’”].) In short, “Estrada stands for the proposition that, ‘where the
amendatory statute mitigates punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter punishment is imposed.’”
(Nasalga, supra, 12 Cal.4th at p. 792.)
The majority contends that any finding that Proposition 57 has retroactive
application is foreclosed by Brown, notwithstanding the fact that Brown addressed a very
different type of statute. Brown appeared to emphasize that the Estrada rule applies only
when an amendatory statute reduces the penalty for a particular crime. (Brown, supra,
54 Cal.4th at p. 324.) The majority reasons that because Proposition 57 does not directly
reduce the penalty for any particular crime, it is not retroactive under Estrada and Brown.

2.
Brown, however, considered the question whether a statute temporarily (i.e., for just an
eight-month period) increasing good behavior credits for prisoners after sentencing,
amounted to a reduction in punishment under Estrada. (Brown, supra, 54 Cal.4th at
pp. 317, 323-324.) The statute at issue in Brown had nothing to do with the punishment
or actual sentence facing a defendant for committing a crime. (Id. at p. 325, italics added
[“Instead of addressing punishment for past criminal conduct, the statute addresses future
conduct in a custodial setting by providing increased incentives for good behavior.”].)
Indeed, the statute was enacted as a temporary response to a state “fiscal crisis,” and in no
way reflected a legislative judgment that certain offenses were erstwhile punished too
severely. (Ibid. [a statute increasing conduct credits for good behavior after imposition of
sentence “does not represent a judgment about the needs of the criminal law with respect
to a particular criminal offense, and thus does not support an analogous inference of
retroactive intent”].)
Proposition 57, on the contrary, expressly aims to facilitate rehabilitative
dispositions for minors, based on past criminal conduct, with respect to a limited subset
of the most serious crimes (i.e., the crimes for which minors are subject to prosecution in
adult criminal court). (See Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of
Prop. 57, § 2, p. 1412 [Proposition 57 was intended to “[s]top the revolving door of crime
by emphasizing rehabilitation, especially for juveniles” by “[r]equir[ing] a judge, not a
prosecutor, to decide whether juveniles should be tried in adult court.”]; see id., argument
in favor of Prop. 57, p. 58 [“Prop. 57 focuses on evidence-based rehabilitation” by
allowing “a judge to decide whether or not a minor should be prosecuted as an adult.”].)
In order to achieve its stated goal of facilitating rehabilitation, Proposition 57, abolishes
the prosecution’s ability directly to file criminal charges against minors in adult court,

2 The Voter Information Guide is available at
[as of
Nov. 17, 2017].

3.
and erases any presumption of unfitness of a minor for purposes of juvenile court
jurisdiction over his or her matter. (See, e.g., People v. Superior Court (Walker) (2017)
12 Cal.App.5th 687, 696, review granted Sept. 13, 2017, S243072.) All cases against
minors are now required to be filed in juvenile court and, in order to move the case to
adult court, the prosecution must bring a transfer motion, whereby it, as the proponent of
the motion, shoulders the burden of showing the minor is unfit for the jurisdiction of the
juvenile court. (§ 707, subd. (a)(1) & (2); Evid. Code, §§ 500, 550.)
Under Proposition 57, it undeniably is harder to prosecute minors in adult court. It
follows that Proposition 57 militates against imposition of the maximum punishment for
the underlying subset of crimes for which minors can be prosecuted in adult court. (See
People v. Pineda (2017) 14 Cal.App.5th 469, 482, fn. 9 (Pineda) [Proposition 57
provides for “reductions in punishment for a host of penal statues without need of going
to the trouble of enumerating them all.”].) Our Supreme Court has recognized,
“[transferring] a juvenile offender to an adult court has been accurately characterized as
‘the worst punishment the juvenile system is empowered to inflict.’” (Ramona R. v.
Superior Court (1985) 37 Cal.3d 802, 810, italics added.)3 The fact that Proposition 57
makes it more difficult to prosecute minors for specific crimes in adult court, reflects a
determination by the voters that minors committing these crimes were, in some instances,
punished too severely. (See Pineda, supra, at p. 483, italics added [“the voters …
determined criminal punishment for juvenile offenders may be too severe in some cases,
namely, those where a judge declines to order the transfer of an offender to a court of
criminal jurisdiction—an adjudicatory forum in which there is a greater focus on
punishment instead of rehabilitation and greater latitude to impose substantially longer
custodial sentences”].) The voters’ underlying determination that some minors were

3 See People v. Macias (1997) 16 Cal.4th 739, 750; Marcus W. v. Superior Court
(2002) 98 Cal.App.4th 36, 41.

4.
erstwhile punished too severely, leads to the “inevitable inference” that the voters
intended to extend the opportunity to obtain a rehabilitative disposition under Proposition
57 as broadly as possible. (Estrada, supra, 63 Cal.2d at p. 745; see Conley, supra, 63
Cal.4th at p. 656 [the Estrada rule creates a “presumption about legislative intent” with
regard to the retroactivity of the amendment at issue].)
Furthermore, the voters approved Proposition 57 in the midst of a “sea change” in
“penology regarding the relative culpability and rehabilitation possibilities for juvenile
offenders.” (People v. Vela (2017) 11 Cal.App.5th 68, 75, review granted Jul. 12, 2017,
S242298 (Vela).) Courts and legislatures have acted decisively, in recent years, to limit
application of the harshest punishments to minors. (See, e.g., Graham v. Florida (2010)
560 U.S. 48, 67 [barring LWOP sentences for minors convicted of nonhomicide
offenses]; Miller v. Alabama (2012) 567 U.S. 460 [barring mandatory LWOP sentences
for minors convicted of homicide offenses and requiring consideration of youth-related
factors as mitigation at sentencing]; Sen. Bill No. 260 (2013-2014 Reg. Sess.) adding
§ 3051 to the Penal Code [§ 3051 recognizes the “diminished culpability of juveniles”
and provides for mandatory “youth offender parole hearings” for eligible juvenile
defendants].) The fact that Proposition 57 was enacted at a time of increased recognition
of the “[diminished] culpability and [unique] rehabilitation possibilities” of minors,
supports the inference that the voters had determined that the specific crimes at issue
were sometimes punished too severely in the case of minors. (Vela, supra, at p. 75.)
In light of Proposition 57’s emphasis on rehabilitative dispositions for minors and
its potential ameliorative effects on punishment for past criminal conduct, it warrants
application of the Estrada exception, whereas the statute at issue in Brown, correctly, did
not.4 (See People v. Francis (1969) 71 Cal.2d 66, 79 [a potentially favorable

4 It bears mention that when our Supreme Court recently considered the question of
retroactivity of Proposition 36 in Conley, it did not hold that application of the Estrada
rule was strictly limited to situations where an amendatory statute reduces the penalty for

5.
amendment, in terms of the discretionary punishment faced by a defendant, is subject to
the Estrada rule]; People v. Figueroa (1993) 20 Cal.App.4th 65, 69-70 [accord].) I
therefore disagree with the majority’s view that Proposition 57 is inapplicable to cases
that were pending final judgment on its effective date.
The majority posits that applying Proposition 57 retroactively would lead to
“absurd results,” in that even a hypothetical minor convicted of, and sentenced for,
“special circumstance murder” in adult court, would thereby be entitled to a conditional
remand for a fitness hearing and the opportunity for a rehabilitative disposition if the
judgment in his case were not yet final. (Maj. opn., ante, at p. 26.) The majority’s
concern about “absurd results” is belied by Proposition 57’s stated goal: to facilitate the
rehabilitation of minors who have committed the most serious crimes. In light of
Proposition 57’s emphasis on rehabilitation, extending the opportunity to obtain a
rehabilitative outcome as broadly as possible is far from an “absurd result.” On the
contrary, it gives effect to the voters’ determination that specific crimes, in some
instances, previously were punished too severely in the case of minors.
In support of its holding that Proposition 57 is not retroactive, the majority next
contrasts Proposition 57’s amendments relating to juveniles with a separate provision
relating to parole eligibility. (Maj. opn., ante, at p. 25.) Specifically, the majority states
that the “portions of Proposition 57 applicable only to juvenile offenders contain no
express retroactivity provision” but “the provisions relating to eligibility for parole
consideration” are made “expressly” retroactive “by making them applicable to ‘[a]ny
person convicted … and sentenced.’” (Maj. opn., ante, at p. 25.) The majority’s
assertion is puzzling because the provision concerning parole eligibility does not contain
any “express” indication of retroactivity. The provision states: “Any person convicted of

a particular crime, but rather analyzed the application of the Estrada rule to Proposition
36 on other grounds. (See Conley, supra, 63 Cal.4th 646.)

6.
a nonviolent felony offense and sentenced to state prison shall be eligible for parole
consideration after completing the full term for his or her primary offense.” (Voter
Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 32, p. 141.) This
language simply reflects the nature of parole, specifically the fact that, in order to be
eligible for parole consideration, a person must first be “convicted … and sentenced.”
The majority’s suggestion that this language “expressly” renders the provision retroactive
is misleading.
Finally, the majority believes that the fact that Proposition 57 “mandates that any
motion to transfer the minor from juvenile court to criminal court ‘must be made prior to
the attachment of jeopardy,’” suggests an intent for Proposition 57 to apply prospectively
only. (Maj. opn., ante, at p. 26, italics omitted.) However, a conditional reversal and
remand of a pending case for a fitness hearing under Proposition 57—as the Vela court
ordered in that matter—obviates any concerns about the attachment of jeopardy.
Assuming it is a foregone conclusion that the prosecution would file a motion for a
fitness hearing on remand, “[r]eversal of the judgment effectively operates to vitiate the
prior attachment of jeopardy.” (Pineda, supra, 14 Cal.App.5th at p. 483, fn. 10; see Juan
G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1494 [“voters are presumed to have
been aware of existing law at the time an initiative was enacted”].) Accordingly, I see no
impediment to applying Proposition 57 retroactively to this case.
Pivoting to the specific facts at issue here, it appears that retroactive application of
Proposition 57 may well result in a rehabilitative disposition for Brewer. As the majority
notes, this matter was initiated in juvenile court and the juvenile court subsequently
conducted a fitness hearing under the prior law. Applying a presumption of unfitness
against Brewer, pursuant to former section 707, subdivision (c), the juvenile court
concluded that Brewer was unfit for treatment under the juvenile court law and referred
the case for prosecution in adult court. (See Rene C. v. Superior Court (2006) 138
Cal.App.4th 1, 10 (Rene C.) [Under former § 707, subd. (c), “the minor who is presumed

7.
to be unfit has the burden of rebutting the presumption by a preponderance of the
evidence.”].)
More specifically, at Brewer’s initial fitness hearing, the court evaluated his
fitness under the five factors specified in former section 707, subdivision (c).5 It was
undisputed that Brewer had limited or no prior delinquency history, had not been subject
to prior attempts at rehabilitation under the jurisdiction of the juvenile court, and could be
rehabilitated within the timeframe applicable to a juvenile disposition. The court
accordingly found Brewer fit under these three factors. In relation to the remaining two
factors, namely, the minor’s degree of criminal sophistication, and the circumstances and
gravity of the alleged offenses, the court narrowly found Brewer to be unfit, after
applying a presumption of unfitness in making its determination. The court observed, as
to both the latter factors, that making the requisite determination was “difficult,” in light
of “evidence of mitigation” pertaining to Brewer’s “lack of impulse control or lack of
judgment.”6 (See former § 707, subd. (c)(1)(b) & (5)(B); Rene C., supra, 138
Cal.App.4th at p. 12.) Further, with regard to the factor of criminal sophistication, the
court noted that while the offense reflected “a degree of criminal sophistication,” it was

5 The five factors were: the minor’s prior delinquent history; the success of prior
attempts to rehabilitate the minor; the minor’s ability to be rehabilitated before the
juvenile court’s jurisdiction expires; the minor’s degree of criminal sophistication; and
the circumstances and gravity of the crimes alleged against the minor. (See Rene C.,
supra, 138 Cal.App.4th at p. 10.) Further, under former section 707, subdivision (c), in
order to qualify for juvenile court treatment, the court had to find that the minor was “fit”
under each of the five factors. (Rene C., supra, at p. 10.) The court was also permitted to
consider “extenuating or mitigating circumstances in evaluating each of the [five]
criteria.” (Former § 707, subd. (c).)
6 As the court acknowledged, the defense had presented relatively strong mitigating
evidence related to Brewer’s mental health at the time. Brewer was tentatively diagnosed
with bipolar disorder and, for reasons outside his control, had been off his antipsychotic
medication (Risperdal) for quite some time. Brewer’s expert witness, a psychologist,
opined that, “had [Brewer] been on the medication, [it] is doubtful [the crime] would ever
have occurred.”

8.
“clearly not one of great criminal sophistication.” The court ultimately concluded, based
on its findings under two of the five applicable factors, that Brewer had not overcome the
presumption of unfitness under section 707, subdivision (c), and referred the matter for
prosecution in adult court.
With the repeal of former section 707, subdivision (c) by Proposition 57, any
presumption of unfitness is erased, the burden of proving unfitness rests with the
prosecution, and the court has more flexibility in making the ultimate determination of
fitness or unfitness.7 As discussed above, in comparison with the prior law, these
changes militate in the affected minor’s favor. In Brewer’s case, the question of fitness
or unfitness was a close one even under the less-favorable prior law, making it distinctly
possible that, at any new fitness hearing under the amended law, the juvenile court would
reverse its earlier determination.
In sum, I disagree with the majority’s view that Proposition 57 is inapplicable to
cases that were pending final judgment on its effective date. As in Vela, I would
conditionally reverse the instant judgment in order to permit the juvenile court to conduct
a new fitness hearing pursuant to sections 602 and 707, as amended by Proposition 57.
Were the trial court to find that Brewer is unfit for a juvenile adjudication, the judgment
would be reinstated. If, on the other hand, the juvenile court were to find that it would
not have transferred Brewer to adult court in the first instance, his conviction and
enhancements would be deemed juvenile adjudications and the juvenile court would
impose an appropriate disposition under juvenile law. (See Vela, 11 Cal.App.5th at pp.
81-82.)
_______________________
Smith, J.

7 Former section 707, subdivision (c) specified that, with respect to certain offenses,
in order to find a minor fit for juvenile court jurisdiction, the court had to find him fit
under each of the five applicable factors.

9.