People v. Garcia

Filed 1/10/19 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. B269836
(Super. Ct. No. SB210974)
Plaintiff and Respondent, (Santa Barbara County)

v. ORDER DENYING PETITION
FOR REHEARING AND
IZICK DAVID GARCIA, MODIFYING OPINION
(No Change in Judgment)
Defendant and Appellant.

THE COURT:
Respondent’s petition for rehearing is denied. It is ordered
that the opinion filed herein on December 17, 2018, be modified
as follows:
1. On page 6, add the following footnote (footnote 3) at the
end of the first full paragraph: “We decline to consider the
arguments regarding this concession raised for the first time in
respondent’s petition for rehearing. (Conservatorship of Susan T.
(1994) 8 Cal.4th 1005, 1013.)”
2. On page 8, footnote 3 should be footnote 4.
3. On page 17, footnote 4 should be footnote 5.
No change in judgment.
Filed 12/20/18 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. B269836
(Super. Ct. No. SB210974)
Plaintiff and Respondent, (Santa Barbara County)

v. ORDER MODIFYING
OPINION
IZICK DAVID GARCIA, (No Change in Judgment)

Defendant and Appellant.

THE COURT:
On the court’s own motion, it is ordered that the opinion
filed herein on December 17, 2018, be modified as follows:
On page 3, delete the date “1996” in the second sentence of
the second full paragraph and replace it with “1995,” so that the
sentence reads: “Briefly, on January 8 or 9, 1995, appellant, who
was 17 years old, approached Jill N., threw her to the ground and
choked her.”
No change in judgment.
Filed 12/17/18 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. B269836
(Super. Ct. No. SB210974)
Plaintiff and Respondent, (Santa Barbara County)

v.

IZICK DAVID GARCIA,

Defendant and Appellant.

In 1996, appellant Izick David Garcia was convicted of
multiple violent sex offenses and sentenced to a prison term of 94
years to life. Appellant was 17 at the time he committed the
crimes. We affirmed the judgment. (People v. Garcia (July 29,
1997, B104833) [nonpub. opn.] (Garcia I).)
In 2012, appellant filed a petition for writ of habeas corpus
challenging the constitutionality of his sentence. He claimed he
was entitled to resentencing under a new line of cases holding
that a juvenile’s sentence for a nonhomicide offense violates the
Eighth Amendment’s prohibition against cruel and unusual
punishment if it amounts to a de facto life without the possibility
of parole (LWOP) sentence. (See Miller v. Alabama (2012) 567
U.S. 460 [183 L.Ed.2d 407] (Miller); Graham v. Florida (2010)
560 U.S. 48 [176 L.Ed.2d 825] (Graham); People v. Caballero
(2012) 55 Cal.4th 262 (Caballero).) The trial court granted
appellant’s petition and resentenced him to 50 years to life in
state prison. It determined the revised sentence is constitutional
in that it affords appellant a meaningful opportunity for a parole
hearing within his natural life expectancy. (See Caballero, at pp.
268-269.)
Appellant contends, and the Attorney General concedes,
that Proposition 57 requires that we vacate the sentence,
conditionally reverse the convictions, and remand to the trial
court with directions to refer the case to the juvenile court for a
transfer hearing to determine the propriety of prosecution of the
case in adult criminal court. (See Welf. & Inst. Code, § 707, subd.
(a); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 310
(Lara).)
If the juvenile court determines it would not have
transferred appellant to criminal court under current law, the
juvenile court shall treat appellant’s convictions as juvenile
adjudications and impose an appropriate disposition. (Lara,
supra, 4 Cal.5th at p. 310.)
If the juvenile court decides it would have transferred
appellant to criminal court, the case shall be transferred to
criminal court, which shall reinstate appellant’s convictions but
conduct a resentencing hearing in accordance with People v.
Contreras (2018) 4 Cal.5th 349, 383 (Contreras). The Supreme
Court in that case held that a sentence of 50 years to life
constitutes a de facto LWOP sentence in violation of the Eighth
Amendment. (Id. at p. 379.)

2
 Finally, appellant argues that Penal Code section 30511
violates the equal protection clause and the Eighth Amendment
because it excludes him and other juveniles sentenced under the
One Strike law from a youth offender parole hearing after 25
years in prison. Contreras considered this argument but declined
to decide the issue, stating “[i]t suffices to note . . . that the
current penal scheme for juveniles may warrant additional
legislative action.” (Contreras, supra, 4 Cal.5th at p. 382.)
Because the matter must be remanded to the trial court for
further proceedings, we conclude the issue is not ripe for review.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying crimes are minimally relevant
to the issues raised on appeal. Briefly, on January 8 or 9, 1996,
appellant, who was 17 years old, approached Jill N., threw her to
the ground and choked her. Appellant forced Jill N. at knifepoint
to orally copulate him. He also raped her. Appellant choked her
into unconsciousness and when she awoke, appellant was gone,
along with her belongings. (Garcia I, supra, B104833.)
On January 28, 1995, appellant raped Jane Doe in her
hotel room. Appellant also hit her in the face and kicked her in
the stomach and chest area. She suffered a fractured eye socket,
ruptured eardrum, massive bruising and loosened teeth. After
appellant left, she discovered that her wallet and other property
were missing. (Garcia I, supra, B104833.)
On February 6, 1995, appellant attacked Hulda I. as she
was walking on the beach. He grabbed her by the neck, put a
gun to her side and said he would kill her if she called out.

1All further statutory references are to the Penal Code
unless otherwise specified.

3
Appellant then choked her and hit her repeatedly in the face.
After a passerby responded to her screams, appellant ran away.
(Garcia I, supra, B104833.)
A jury convicted appellant of crimes against the three
victims, including forcible oral copulation (count 1; § 288a, subd.
c)), forcible rape (counts 2 & 7; § 261, subd. (a)(2)), assault by
means of force likely to produce great bodily injury (counts 3 &
10; § 245, subd. (a)(1)), robbery (counts 4 & 8, § 211), kidnapping
for sexual purposes (counts 5 & 12; §§ 207, subd. (a), former 208,
subd. (d)), forcible penetration by a foreign object (count 6; § 289,
subd. (a)), first degree burglary (count 9; § 459), and assault with
intent to commit rape (count 11; § 220). The jury also found true
allegations that appellant personally used a deadly weapon and
inflicted great bodily injury on Jill N. (§§ 12022, subd. (b),
12022.3, 12022.7, 12022.8), and that he inflicted great bodily
injury on Jane Doe (§§ 12022.7, 12022.8). Further, the jury found
true the allegation that the crime of forcible penetration by a
foreign objection (§ 289, subd. (a)) against Jane Doe occurred
during the commission of a burglary pursuant to section 667.61,
subdivisions (a) and (d). The jury also found true the allegation
that appellant personally used a firearm during the commission
of the offenses against Hulda I. (§ 12022.5, subd. (a).) Appellant
was sentenced to an aggregate term of 94 years to life in prison.
(Garcia I, supra, B104833.)
Miller, Graham and Caballero were decided years after
appellant was sentenced. Based on these authorities, appellant
filed a habeas petition challenging the legality of his sentence.
The trial court issued an order to show cause, observing that
since appellant “can only earn credit at the rate of 15%, he will be
approximately 97 years old when he is first eligible for parole.

4
[Appellant] turned 30 in 2007. At that time, a 30 year old
African-American male was expected to live to the age of 72.7
years. [Citation.] Therefore, [appellant’s] parole eligibility date
. . . falls outside his natural life expectancy.”
At the show cause hearing, the prosecution requested a
sentence that would render appellant eligible for a parole hearing
date when he is approximately 77 years old. Defense counsel
asked for a determinate sentence of 45 years, emphasizing
certain mitigating factors, including appellant’s childhood history
of foster care and impoverishment and the improvements in his
attitude and behavior in prison. Appellant testified on his own
behalf.
Noting that Miller, Graham and Caballero require that
juvenile offenders be given “a meaningful opportunity to
rehabilitate and to demonstrate that [they] should be paroled
within their natural life expectancy,” the court imposed a
sentence of 50 years to life. The sentence was comprised of two
terms of 25 years to life, for counts 2 and 7, pursuant to section
667.61, known as the One Strike law.2 The court found that this
sentence would give appellant “an opportunity to prove that [he’s]
capable of living on the outside at the age of 59. That’s my
calculation. Maybe it’s 60, maybe it’s 58, but somewhere in that
ballpark. So, that’s not young, but it’s not 77 either.”
DISCUSSION

2The trial court dismissed the enhancements as to counts 2,
6 and 7 pursuant to section 1385 and stayed sentences as to
counts 3 through 5, and 8 through 11, pursuant to section 654.
The sentences in counts 6 and 12 were imposed concurrently to
the sentences in counts 2 and 7.

5
 Appellant is Entitled to a Juvenile Court Transfer Hearing
In supplemental briefing, appellant contends that, due to
the passage of Proposition 57, he is entitled to a hearing in
juvenile court regarding whether his case should be transferred
to adult criminal court. Appellant requests that the judgment be
conditionally reversed, so that the hearing may take place. The
Attorney General concedes appellant is entitled to a transfer
hearing.
Appellant was charged with the offenses in 1995. Under
the law at the time, appellant’s case had to be brought in juvenile
court. (See former Welf. and Inst. Code section 707; Juan G. v.
Superior Court (2012) 209 Cal.App.4th 1480, 1489 & fn. 4.) In
order to try appellant as an adult, the district attorney had to file
a motion pursuant to former Welfare and Institutions Code
section 707, subdivision (c) for a judicial determination that
appellant was not fit to be dealt with under juvenile court law.
For purposes of the motion, appellant was “presumed to be not a
fit and proper subject to be dealt with under the juvenile court
law unless the juvenile court concludes, based upon evidence, . . .
that the minor would be amenable to the care, treatment, and
training program available through the facilities of the juvenile
court,” based on five criteria: “(1) The degree of criminal
sophistication exhibited by the minor. [¶] (2) Whether the minor
can be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction. [¶] (3) The minor’s previous delinquent history. [¶]
(4) Success of previous attempts by the juvenile court to
rehabilitate the minor. [¶] (5) The circumstances and gravity of
the offenses alleged in the petition to have been committed by the
minor.” (Ibid.) In order to make a finding of fitness, the juvenile
court had to find “the minor [was] fit and proper under each and

6
every one of the above criteria.” (Ibid.) It is apparent that
appellant was found to be unfit under these criteria.
“Amendments to former [Welfare and Institutions Code]
sections 602 and 707 in 1999 and 2000, some by initiative
[Proposition 21], changed this historical rule. Under the changes,
in specified circumstances, prosecutors were permitted, and
sometimes required, to file charges against a juvenile directly in
criminal court, where the juvenile would be treated as an adult.
[Citations.] . . . [¶] Proposition 57 changed the procedure again,
and largely returned California to the historical rule. ‘Among
other provisions, Proposition 57 amended the Welfare and
Institutions Code so as to eliminate direct filing by prosecutors.
Certain categories of minors . . . can still be tried in criminal
court, but only after a juvenile court judge conducts a transfer
hearing to consider various factors such as the minor’s maturity,
degree of criminal sophistication, prior delinquent history, and
whether the minor can be rehabilitated. [Citation.]’ [Citations.]”
(Lara, supra, 4 Cal.5th at pp. 305-306.)
Proposition 57 requires, therefore, that prosecutors
commence the action against a minor in juvenile court. “If the
prosecution wishes to try the juvenile as an adult, the juvenile
court must conduct what [is called] a ‘transfer hearing’ to
determine whether the matter should remain in juvenile court or
be transferred to adult court. Only if the juvenile court transfers
the matter to adult court can the juvenile be tried and sentenced
as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)” (Lara,
supra, 4 Cal.5th at p. 303, fn. omitted.)
Our Supreme Court has held that Proposition 57 applies
retroactively to cases that are not yet final on appeal. (Lara,

7
supra, 4 Cal.5th at pp. 303, 314.) Here, the parties concede
appellant’s case is not yet final on appeal. (See ibid.)
In Lara, the court approved the remedy set forth in People
v. Vela (2017) 11 Cal.App.5th 68 (Vela),3 for juveniles that had
cases pending in criminal court prior to the passage of
Proposition 57. (Lara, supra, 4 Cal.5th at pp. 309-313.)
“Specifically, the Vela court ordered as follows: ‘Here, under
these circumstances, [the defendant]’s conviction and sentence
are conditionally reversed and we order the juvenile court to
conduct a juvenile transfer hearing. ([Welf. & Inst. Code,] § 707.)
When conducting the transfer hearing, the juvenile court shall, to
the extent possible, treat the matter as though the prosecutor
had originally filed a juvenile petition in juvenile court and had
then moved to transfer [the defendant]’s cause to a court of
criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).)
If, after conducting the juvenile transfer hearing, the court
determines that it would have transferred [the defendant] to a
court of criminal jurisdiction because he is “not a fit and proper
subject to be dealt with under the juvenile court law,” then [the
defendant]’s convictions and sentence are to be reinstated.
([Welf. & Inst. Code,] § 707.1, subd. (a).) On the other hand, if
the juvenile court finds that it would not have transferred [the
defendant] to a court of criminal jurisdiction, then it shall treat
[the defendant]’s convictions as juvenile adjudications and impose

3Lara cited the original decision issued in Vela, then on
review in the Supreme Court. (See Lara, supra, 4 Cal.5th at pp.
306, 310.) The Supreme Court subsequently vacated the original
opinion filed in Vela and the Court of Appeal refiled a
substantially similar decision in People v. Vela (2018) 21
Cal.App.5th 1099.

8
an appropriate “disposition” within its discretion.’ (Vela, supra,
11 Cal.App.5th at p. 82.)” (Lara, at p. 310, italics omitted.)
Although the defendant in Lara was charged directly in
adult criminal court, the court’s reasoning applies equally to
appellant, who received a fitness hearing under standards
different than those currently in effect. In other words, the fact
that appellant received a fitness hearing before his case was
transferred to adult court does not preclude him from receiving a
new transfer hearing in accordance with Lara and Vela.
Specifically, there are key differences between a
Proposition 57 transfer hearing and the analogous fitness
hearing under prior law. Most notably, Proposition 57 shifts the
burden of proof in the hearing. Under prior law, the juvenile
court was bound by a rebuttable presumption that the defendant
was not fit for the juvenile court system, whereas under current
law there is no such presumption. (Welf. & Inst. Code, § 707,
subd. (a).) In addition, the court at appellant’s fitness hearing
could not retain jurisdiction unless it found him fit for juvenile
court under all five criteria. (Former Welf. & Inst. Code, § 707,
subd. (c).) In a transfer hearing under current law, the court
must consider all five factors, but has broad discretion in how to
weigh them. (Welf. & Inst. Code, § 707, subd. (a)(2).)
In conformance with the Supreme Court’s directive in Lara,
we conclude appellant is entitled to a transfer hearing in juvenile
court. We therefore conditionally reverse the judgment to allow
for such a hearing.
If the Case is Transferred to Adult Criminal Court,
Appellant Must be Resentenced
In Graham, supra, 560 U.S. at pages 81-82, the United
States Supreme Court held that LWOP sentences for minors

9
convicted of nonhomicide offenses are unconstitutional. Two
years later, Miller, supra, 567 U.S. at page 479, determined that
sentencing schemes that make LWOP sentences mandatory for
juveniles who commit homicide offenses constitute cruel and
unusual punishment in violation of the Eighth Amendment.
In Caballero, supra, 55 Cal.4th at page 268, our
Supreme Court applied Graham to nonhomicide juvenile
offenders who receive a sentence that is so long it amounts to a
de facto LWOP sentence. The court held that the sentence must
provide a “meaningful opportunity [for the juvenile offender] to
demonstrate [his or her] rehabilitation and fitness to reenter
society in the future” and must take into consideration all
mitigating circumstances, including the juvenile’s age, role in the
crime, and physical and mental development. (Id. at pp. 268-
269.)
In response to Caballero, the Legislature enacted section
3051, which sets mandatory parole eligibility dates for most
persons convicted of crimes before they turned 25. Relevant here
is section 3051, subdivision (b)(3), which provides for a parole
eligibility hearing in the 25th year of incarceration if the
sentence is a term of 25 years to life. This provision, however,
does not apply to Three Strikes sentences and One Strike
sentences for certain felony sex offenses (§ 667.61). (§ 3051, subd.
(h).) The Legislature determined that juveniles convicted of
certain serious sex crimes under aggravated circumstances may
be kept in prison more than 25 years before being given an
opportunity for parole. Appellant’s sentence includes two terms
of 25 years to life because, among other things, he committed a
burglary in order to carry out a rape, thus falling within the One
Strike sentencing scheme. (§ 667.61, subds. (a), (d).)

10
Consequently, appellant is not subject to section 3051’s
mandatory minimum parole eligibility requirements. (See
Contreras, supra, 4 Cal.5th at pp. 381-382.)
Appellant contends his sentence of 50 years to life does not
pass constitutional muster, and that the matter must be
remanded for resentencing, assuming his case does not remain in
juvenile court. We agree.
In Contreras, two 16-year-old juveniles kidnapped two
victims and committed multiple acts of rape, sodomy and other
sex offenses against them. (Contreras, supra, 4 Cal.5th at pp.
356-357.) The trial court sentenced the defendants to prison
terms of 50 and 58 years to life. (Id. at p. 358.) The Court of
Appeal affirmed the convictions, but reversed the sentences
because they precluded any possibility of parole until near the
end of the defendants’ lifetimes. (Ibid.) The Supreme Court
granted review and, in a 4-3 decision, affirmed the judgment of
the Court of Appeal, holding that the sentences violated the
Eighth Amendment as interpreted in Graham, supra, 560 U.S. at
page 75. (Contreras, at pp. 379, 383.)
The Supreme Court declined to decide whether parole
eligibility at age 60 under the Elderly Parole Program or the
defendants’ ability to earn custody credits to reduce their parole
eligibility dates would satisfy the Eighth Amendment.
(Contreras, supra, 4 Cal.5th at p. 378-379.) The court concluded
it was for the lower courts to address these issues in the first
instance. (Ibid.) It further declined to provide guidance “on what
length of sentence below 50 years will satisfy Graham.” (Id. at
p. 381.)
The Supreme Court ordered the matter remanded to the
trial court for resentencing, directing that the court “consider, in

11
light of [the] opinion [in Contreras], any mitigating circumstances
of defendants’ crimes and lives, and the impact of any new
legislation and regulations on appropriate sentencing.”
(Contreras, supra, 4 Cal.5th at p. 383.) The court further directed
the sentencing court “to impose a time by which defendants may
seek parole, consistent with [the Contreras] opinion.” (Ibid.)
After Contreras was issued, we asked the parties to submit
supplemental briefing regarding its effect on this appeal. The
parties agree that Contreras controls and that the matter must
be remanded to the trial court for resentencing, assuming the
case is transferred to adult criminal court following the transfer
hearing. If the case is not transferred, appellant’s convictions
will be treated as juvenile adjudications and the juvenile court
will impose an appropriate disposition within its discretion.
(Lara, supra, 4 Cal.5th at p. 310.)
Appellant’s Section 3051 Argument is
Not Ripe for Review
The Fourteenth Amendment to the United States
Constitution provides that no state shall “deny to any person
within its jurisdiction the equal protection of the laws.” A similar
requirement appears in California Constitution, article 1, section
7. Appellant contends that section 3051 violates his equal
protection rights because there can be no rational basis for
treating him, as a One Strike sex offender, more severely than a
juvenile who commits the more serious crime of murder with
special circumstances. He claims it is irrational that someone
with a first-degree murder conviction would be eligible for parole
consideration after 25 years while appellant would not.
Although our Supreme Court has yet to decide this issue, it
did discuss the issue at some length in Contreras. It “note[d] . . .

12
that the current treatment of juvenile One Strike offenders is
anomalous given that juveniles convicted of special circumstance
murder and sentenced to LWOP are now eligible for parole
during their 25th year in prison. This scheme appears at odds
with the high court’s observation that ‘defendants who do not kill,
intend to kill, or foresee that life will be taken are categorically
less deserving of the most serious forms of punishment than are
murderers. . . . Although an offense like robbery or rape is “a
serious crime deserving serious punishment,” those crimes differ
from homicide crimes in a moral sense.’” (Contreras, supra, 4
Cal.5th at p. 382, quoting Graham, supra, 560 U.S. at p. 69,
citations omitted.) Contreras further explained that “[i]n the
death penalty context, the high court has said ‘there is a
distinction between intentional first-degree murder on the one
hand and nonhomicide crimes against individual persons, even
including child rape, on the other. The latter crimes may be
devastating in their harm, as here, but “in terms of moral
depravity and of the injury to the person and to the public,” they
cannot be compared to murder in their “severity and
irrevocability.”’” (Ibid., quoting Kennedy v. Louisiana (2008)
554 U.S. 407, 438, citation omitted.)
The Supreme Court also observed that it was not aware of
any other provision in the Penal Code “that treats a nonhomicide
offense more harshly than special circumstance murder.
(Compare § 190.2 [prescribing penalty of death or LWOP for
special circumstance murder] with § 667.61 [prescribing
maximum penalty of 25 years to life or, when the victim is under
age 14, LWOP for aggravated rape offenses].)” (Contreras, supra,
4 Cal.5th at p. 382.) The court was unable to identify “any other
jurisdiction that punishes juveniles for aggravated rape offenses

13
more severely than for the most aggravated forms of murder.”
(Ibid.) Indeed, it noted the anomaly “that if defendants had
killed their victims after the sexual assaults and had been
sentenced to LWOP, they would have been eligible for a youth
offender parole hearing after 25 years of incarceration.” (Ibid.)
Not only did Contreras conclude that the treatment of
juvenile One Strike offenders appears to raise equal protection
and Eighth Amendment issues, but it also noted “[t]here is also a
colorable claim that [the treatment] constitutes ‘unusual
punishment’ within the meaning of article I, section 17 of the
California Constitution.” (Contreras, supra, 4 Cal.5th at p. 382.)
The court declined, however, to reach these issues, stating “[i]t
suffices to note . . . that the current penal scheme for juveniles
may warrant additional legislative action.” (Ibid.)
In contrast, Justice Kriegler observed in his dissenting
opinion that “[t]he Legislature has repeatedly determined that
one strike juvenile offenders are not entitled to a youth offender
parole hearing under section 3051. An early version of section
3051 did not exclude juvenile one strike offenders from a youth
offender parole hearing (Legis. Counsel’s Dig., Sen. Bill No. 260
(2013-2014 Reg. Sess.) as amended June 27, 2013, p. 5), but the
legislation was amended several months later to specifically
exclude this class of offenders (Legis. Counsel’s Dig., Sen. Bill No.
260 (2013-2014 Reg. Sess.) as amended Sept. 3, 2013, p. 9).
Subsequent amendments to the statute have maintained the
exclusion of one strike juvenile offenders from section 3051
hearings. Instead, the Legislature has provided for a parole
hearing for one strike juvenile offenders at age 60 under section
3055. Establishing a longer period of incarceration before parole
suitability hearings for juvenile one strike offenders is consistent

14
with the state’s long-standing policy recognizing the unique
danger of recidivism posed by violent sexual offenders. (See
§§ 290 [registration requirement for sex offenders], 6600 et seq.
[civil commitment for sexually violent predators]; Evid. Code,
§ 1108 [in a prosecution for a sexual offense evidence of
defendant’s commission of another sexual offense is not
inadmissible to prove a disposition to commit the charged crime].)
Case law from this court is replete with examples of recidivism by
sex offenders.” (Contreras, supra, 4 Cal.5th at p. 419, (dis. opn. of
Kriegler, J.), citing People v. Davis (2009) 46 Cal.4th 539, 602-
603; People v. Falsetta (1999) 21 Cal.4th 903, 909-910; People v.
Frank (1990) 51 Cal.3d 718, 724-725.)
Appellant maintains that even though he is entitled to a
transfer hearing and to resentencing, assuming his case is
transferred to adult criminal court, we must decide in this appeal
whether section 3051 violates the equal protection clause and the
Eighth Amendment’s prohibition against cruel and unusual
punishment. The ripeness requirement, however, “prevents
courts from issuing purely advisory opinions, or considering a
hypothetical state of facts to give general guidance rather than to
resolve a specific legal dispute.” (Hunt v. Superior Court (1999)
21 Cal.4th 984, 998.) In other words, a controversy is not ripe
until “‘. . . the facts have sufficiently congealed to permit an
intelligent and useful decision to be made.’ [Citation.]” (Pacific
Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d
158, 171.)
Here, the juvenile court has yet to decide whether
appellant’s case should be transferred to adult criminal court for
disposition. If the case is not transferred, the constitutionality of
section 3051 will be irrelevant. And even assuming the case is

15
transferred, the trial court has yet to determine appellant’s
sentence and his earliest parole eligibility date. Until a new
sentence is imposed, it is uncertain whether the same
constitutional concerns will arise. Accordingly, we decline to
issue an advisory opinion addressing those concerns.
It also is well established that constitutional issues are to
be avoided when an appeal can be resolved on other grounds.
(Reed v. City and County of San Francisco (1992) 10 Cal.App.4th
572, 575; see Loeffler v. Target Corp. (2014) 58 Cal.4th 1081,
1102.) Lara requires that we remand the case to the juvenile
court for a transfer hearing. Assuming the case is transferred to
adult criminal court, Contreras requires that appellant be
resentenced. The Supreme Court expressly declined to decide
whether section 3051 is constitutional. (Contreras, supra,
4 Cal.5th at p. 382.) Instead, the court suggested that the
Legislature consider amending the current penal scheme for
juveniles. (Ibid.) It is possible that such amendments will occur
before any resentencing or before any subsequent appeal is
heard.
Finally, appellant is not precluded from raising his section
3051 argument at the time of resentencing should that occur.
Although the argument was mentioned at appellant’s last
sentencing hearing, the trial court did not reach the issue. It
stated: “There’s no doubt in the Court’s mind unless the
legislature responds that at some point in time [appellant] would
be able to make a successful equal protection challenge. Because
it’s irrational that someone with multiple first-degree murder
convictions and facing potential sentences of 150 years to life and
more would be eligible for parole consideration after 25 years but
somebody in [appellant’s] position would not be.” Appellant cites

16
no authority suggesting that we must decide the issue for the
first time on appeal when the matter has to be returned to the
trial court for further proceedings.
Errors in Amended Abstracts of Judgment
The parties’ briefs identify several errors in the amended
abstracts of judgment.4 Specifically, the amended abstracts do
not reflect the proper participants at the resentencing hearing,
the correct date of the hearing, appellant’s correct date of birth,
and the actual days appellant spent in custody on his original
sentence prior to modification.
Given that the matter is being remanded for a transfer
hearing and possible resentencing, it is not necessary to correct
these amended abstracts of judgment. But the trial court and the
parties should ensure that any new amended abstracts of
judgment contain the correct information.
DISPOSITION
The sentence is vacated and the convictions are
conditionally reversed. The matter is remanded to the trial court
with directions to refer the case to the juvenile court for a
transfer hearing to determine if the case would have been
transferred to adult criminal court had the case originally been
filed in juvenile court in accordance with current law.
If the juvenile court determines it would not have
transferred appellant to criminal court under current law, the
juvenile court shall treat appellant’s convictions as juvenile
adjudications and impose an appropriate disposition within its
usual time frame.

One amended abstract of judgment is for appellant’s
4

determinate sentence, and the other is for his indeterminate
sentence.

17
 If the juvenile court decides it would have transferred
appellant to adult criminal court, the case shall be transferred to
criminal court, which shall reinstate appellant’s convictions but
conduct a resentencing hearing on the vacated sentence. The
criminal court shall consider, in light of the opinion in Contreras,
any mitigating circumstances of appellant’s crimes and life, and
the impact of any new legislation and regulations on appropriate
sentencing. The court is further directed to impose a time by
which appellant may seek parole, consistent with Contreras. The
court shall also prepare new amended abstracts of judgment
reflecting the revised sentence and forward copies of the amended
abstracts to the Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.

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 Brian E. Hill, Judge
Superior Court County of Santa Barbara
______________________________

Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Susan S. Pithy,
Shawn M. Webb, Supervising Deputy Attorneys General, Alene
M. Games, and Mary Sanchez, Deputy Attorneys General, for
Plaintiff and Respondent.

19