People v. Padilla

Filed 7/2/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B297213
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TA051184)

v. ORDER MODIFYING
OPINION
MARIO SALVADOR PADILLA, [NO CHANGE IN
JUDGMENT]
Defendant and Appellant.

THE COURT*
It is ordered that the opinion filed June 10, 2020 be modified as
follows:
On page 4, the following language is added after the last sentence
of footnote 1, ending with “additional contention.”: “If, on remand, the
juvenile court transfers the case to criminal court, appellant will be able
to reassert this contention on appeal from the reinstatement of his
sentence.”
The modification does not change the judgment.

_________________________________________________________
*MANELLA, P.J. WILLHITE, J. COLLINS, J.
Filed 6/10/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B297213
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TA051184)

v.

MARIO SALVADOR PADILLA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Conditionally
reversed and remanded with directions.
Jonathan E. Demson, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Acting Senior Assistant Attorney General, David E. Madeo
and Lindsay Boyd, Deputy Attorneys General, for Plaintiff
and Respondent.

______________________________________

INTRODUCTION
In 1999, appellant Mario Salvador Padilla was
convicted of a murder he committed when he was 16 years
old, and was sentenced to life without the possibility of
parole (LWOP). Appellant later successfully petitioned for a
writ of habeas corpus, challenging his sentence in light of an
intervening decision by the United States Supreme Court.
The trial court held a resentencing hearing and again
imposed the LWOP term. On appeal, we reversed the new
sentence and remanded for another resentencing in light of
yet another intervening decision by the Supreme Court. At
the second resentencing, the trial court again imposed the
LWOP sentence.
In the interim, the electorate passed Proposition 57,
the “Public Safety and Rehabilitation Act of 2016.” Among
other things, Proposition 57 prohibits prosecutors from
charging juveniles with crimes directly in adult court.
(People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303
(Lara).) “Instead, they must commence the action in
juvenile court. If the prosecution wishes to try the juvenile
as an adult, the juvenile court must conduct . . . a ‘transfer
hearing’ to determine whether the matter should remain in

2
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.” (Ibid.) The
California Supreme Court has held that Proposition 57
applies retroactively to cases not yet final at the time it was
enacted. (Lara, supra, at 304.)
In this appeal, appellant claims he is entitled to a
transfer hearing under Proposition 57 because his judgment
is not yet final. Respondent asserts that appellant is not
entitled to the benefit of the new law’s retroactive
application for two reasons. First, respondent argues that
appellant’s judgment of conviction became final long before
Proposition 57’s enactment, and his subsequent habeas and
resentencing proceedings did not reopen its finality for
purposes of that measure. Second, respondent contends that
our Supreme Court’s holding in Lara concerning Proposition
57’s retroactive application does not apply to appellant
because he is now too old to benefit from rehabilitation as a
juvenile.
Because appellant’s original sentence was vacated and
his sentence is no longer final, and because Proposition 57’s
primary ameliorative effect is on a juvenile offender’s
sentence, we conclude that the measure applies to preclude
imposition of sentence on appellant as an adult, absent a
transfer hearing. Regardless of his current age, appellant
fits within our Supreme Court’s holding that the voters
intended Proposition 57 to apply as broadly as possible.
Accordingly, we conditionally reverse appellant’s sentence

3
and remand for appellant to receive a transfer hearing in the
juvenile court.1

BACKGROUND
In 1998, appellant was charged with first degree
murder with special-circumstance allegations and conspiracy
to commit murder. He committed the offenses that same
year, when he was 16 years old. He was tried as an adult,
following a hearing at which he was determined not fit to be
dealt with under juvenile court law.
The following year, a jury found appellant guilty as
charged, and the court imposed the then-mandatory
sentence of LWOP. On appeal, this court reversed one of the
special-circumstance findings, but otherwise affirmed. The
California Supreme Court denied appellant’s petition for
review in 2001, and he did not petition for a writ of
certiorari.
In 2014, appellant filed a petition for a writ of habeas
corpus, seeking resentencing in light of Miller v. Alabama
(2012) 567 U.S. 460, 465, which held that mandatory LWOP
sentences for those under the age of 18 at the time of their
crimes violated the Eighth Amendment’s prohibition on cruel

1 Appellant also challenges his LWOP sentence as
unauthorized under Penal Code section 3051, subdivision (b)(4),
which affords juveniles sentenced to an LWOP term an
opportunity to parole after incarceration for 25 years. In light of
our conditional reversal of his sentence, we need not address this
additional contention.

4
and unusual punishments. The trial court agreed appellant
was entitled to resentencing, vacated appellant’s sentence,
and following a resentencing hearing, again imposed the
LWOP term.
While appellant’s appeal from his resentencing was
pending, the United States Supreme Court decided
Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct.
718], which among other things, clarified its holding in
Miller v. Alabama. Because the trial court had exercised its
resentencing discretion without the guidance of Montgomery,
we reversed and remanded the matter for a new
resentencing hearing. (See People v. Padilla (2016) 4
Cal.App.5th 656, 661, 674.)
In 2019, on remand from this court, the trial court held
a second resentencing hearing and once again sentenced
appellant to LWOP. Appellant timely appealed. He
contends that in light of Proposition 57, enacted after our
opinion on appeal from his first resentencing, he is entitled
to a transfer hearing in the juvenile court.

DISCUSSION
A. Governing Principles
1. Proposition 57
At the time appellant was charged in 1998, “‘a child
could be tried in criminal court only after a judicial
determination . . . that he or she was unfit to be dealt with
under juvenile court law.’” (Lara, supra, 4 Cal.5th at 305.)
Absent such a determination, “‘any individual less than 18

5
years of age who violate[d] the criminal law [came] within
the jurisdiction of the juvenile court . . . .’” (Ibid.)
“Amendments to [the Welfare and Institutions Code] in 1999
and 2000 . . . 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.” (Lara, supra, at 305.)
In November 2016, voters passed Proposition 57, again
changing the procedure for charging juveniles. (Lara, supra,
4 Cal.5th at 303, 305.) According to the text of this measure,
it was intended to “[s]top the revolving door of crime by
emphasizing rehabilitation, especially for juveniles” and to
“[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, (2016 Voter Guide).) The voters mandated that
Proposition 57’s provisions be “broadly construed to
accomplish its purposes.” (2016 Voter Guide, supra, at § 5,
p. 145.)
“‘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

6
rehabilitated.’”2 (Lara, supra, 4 Cal.5th at 305.) “Only if the
juvenile court transfers the matter to adult court can the
juvenile be tried and sentenced as an adult.” (Id. at 303.)
While Proposition 57’s transfer hearing is similar in
some respects to the fitness hearing conducted prior to the
1999 and 2000 amendments, there are key differences.
Notably, under prior law, juveniles age 16 or older who were
accused of certain offenses, including murder, were subject
to a rebuttable presumption that they were unfit for juvenile
court treatment. (Former Welf. & Inst. Code, § 707.) No
such presumption applies in transfer hearings under
Proposition 57, and the People have the burden to show that
the juvenile should be treated as an adult. (Welf. & Inst.
Code, § 707, subd. (a); Castillero, supra, 33 Cal.App.5th at
398; J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 715.)
In addition, in fitness hearings under prior law, a juvenile
court could retain jurisdiction over a juvenile age 16 or older
accused of certain offenses, including murder, only if it found
the individual suitable for juvenile court treatment under
each of five criteria. (Former Welf. & Inst. Code, § 707,
subd. (c) [court must find juvenile suitable “under each and
every one of the above criteria”].) In a transfer hearing
under current law, the court must consider those five

2 Effective January 1, 2019, Senate Bill No. 1391 (2017-2018
Reg. Sess.) further amended the applicable provisions of the
Welfare and Institutions Code (People v. Castillero (2019) 33
Cal.App.5th 393, 399 (Castillero)), but those changes are not
relevant to this appeal.

7
criteria, but has broad discretion in applying them, and need
not find that all five support juvenile court treatment. (See
Welf. & Inst. Code, § 707, subd. (a)(3) [“the court shall
consider the criteria specified”]; Castillero, supra, at 398
[court has broad discretion to apply these statutory
criteria].)3
One Court of Appeal to consider the effect of
Proposition 57 concluded that its primary benefit to juvenile
defendants is in potentially affording them the dispositions
rendered in juvenile court, rather than the generally much
more severe criminal sentences in adult court.4 (People v.

3 The five statutory criteria are: (1) “[t]he degree of criminal
sophistication exhibited by the minor” which may include
consideration of such factors as “the minor’s age, maturity,
intellectual capacity, and physical, mental, and emotional health
at the time of the alleged offense, the minor’s impetuosity or
failure to appreciate risks and consequences of criminal
behavior, . . . and the effect of the minor’s family and community
environment and childhood trauma on the minor’s criminal
sophistication”; (2) “[w]hether the minor can be rehabilitated
prior to the expiration of the juvenile court’s jurisdiction”; (3)
“[t]he minor’s previous delinquent history”; (4) “[s]uccess of
previous attempts by the juvenile court to rehabilitate the
minor”; and (5) “[t]he circumstances and gravity of the offense
alleged in the petition to have been committed by the minor.”
4 “‘There is no “sentence,” per se, in juvenile court. Rather, a
judge can impose a wide variety of rehabilitation alternatives
after conducting a “dispositional hearing,” which is equivalent to
a sentencing hearing in a criminal court. [Citations.] In the
more serious cases, a juvenile court can “commit” a minor to
juvenile hall or to the Division of Juvenile Justice (DJJ) . . . . DJJ
(Fn. continued on the next page.)

8
Cervantes (2017) 9 Cal.App.5th 569, 612, (Cervantes)
disapproved on another ground in Lara, supra, 4 Cal.5th at
314-315.) Indeed, the court noted that “adult criminal
sentencing is the biggest disadvantage to being ‘tried in
adult court.’” (Cervantes, supra, at 612.) Despite its
conclusion that Proposition 57 did not apply retroactively (a
holding disapproved by Lara, as discussed below), Cervantes
held that the purposes and features of Proposition 57
mandated that on remand for resentencing, a juvenile
offender could not be “‘sentenced in adult court’” without a
prior transfer hearing. (Cervantes, supra, at 612.)

2. Retroactive Application of Ameliorative
Statutes
Whether a statute operates retroactively or only
prospectively is a matter of legislative intent. (People v.
Brown (2012) 54 Cal.4th 314, 319.) In In re Estrada (1965)
63 Cal.2d 740 (Estrada), our Supreme Court concluded that
statutory amendments mitigating punishment for an offense
applied retroactively to a petitioner who at the time of
enactment, had committed the offense but had not yet been

commitments can range from one year or less for nonserious
offenses, and up to seven years for the most serious offenses,
including murder. [Citation.] A minor committed to DJJ must
generally be discharged no later than 23 years of age.
[Citation.]’” (Lara, supra, 4 Cal.5th at 306-307.) Under certain
circumstances, that discharge may be further delayed. (Welf. &
Inst. Code, §§ 1780, 1782.)

9
convicted and sentenced. (Id. at 742-743, 748.) The court
reasoned that when the Legislature makes an ameliorative
change to criminal law, it must have determined the former
law was too severe. (Id. at 744-745.) As a result, absent
indications of a contrary intent, “[i]t is an inevitable
inference that the Legislature must have intended that the
new statute . . . should apply to every case to which it
constitutionally could apply.” (Id. at 745.) According to the
court, an ameliorative criminal statute may be
constitutionally applied to acts committed before its passage,
“provided the judgment convicting the defendant of the act is
not final.” (Ibid.) Thus, under Estrada, absent indications
of the legislative body’s contrary intent, courts presume it
intended an ameliorative statute to apply retroactively to all
nonfinal judgments. (See ibid.)
Applying this rule in Lara, our Supreme Court
concluded that Proposition 57 constituted an ameliorative
change to the criminal law. (Lara, supra, 4 Cal.5th at 309.)
Finding no contrary indications, it further concluded the
voters intended Proposition 57 “‘to extend as broadly as
possible.’” (Lara, supra, at 309.) Accordingly, the court held
Proposition 57 applied retroactively to “all juveniles charged
directly in adult court whose judgment was not final at the
time it was enacted.”5 (Lara, at 304.) As discussed further

5 While Lara expressly addressed juveniles charged directly
in adult court, courts have held that its ruling extends equally to
individuals who, like appellant, received a fitness hearing under
the former law’s standards. (Castillero, supra, 33 Cal.App.5th at
(Fn. continued on the next page.)

10
below, if, at a retroactive transfer hearing, the juvenile court
finds a defendant would have been fit for juvenile court
treatment, the defendant’s sentence must be reversed, and
the juvenile court must then treat the convictions as juvenile
adjudications and impose an appropriate disposition. (Lara,
at 310, 313.)

3. Final Judgments
Under Estrada, “[t]he key date [for retroactivity
purposes] is the date of final judgment.” (Estrada, supra, 63
Cal.2d at 744.) A retroactive ameliorative statute applies in
a given case if it “becomes effective prior to the date the
judgment of conviction becomes final . . . .” (Ibid.) The court
did not specify when a judgment becomes “final” for
retroactivity purposes.
Several months before Estrada, however, the
California Supreme Court discussed the finality of a
judgment in In re Spencer (1965) 63 Cal.2d 400 (Spencer). In
ruling on a habeas petition raising federal constitutional
challenges, the Spencer court noted the United States
Supreme Court had defined the point of finality as “‘where
the judgment of conviction was rendered, the availability of
appeal exhausted, and the time for petition for certiorari . . .
elapsed . . . .”’ (Id. at 405, quoting Linkletter v. Walker
(1965) 381 U.S. 618, 622, fn. 5.) Finality therefore denoted

399; People v. Garcia (2018) 30 Cal.App.5th 316, 324-325
(Garcia).)

11
“that point at which the courts can no longer provide a
remedy to a defendant on direct review.” (Spencer, supra, at
405.) Our Supreme Court has since applied this definition of
finality to the Estrada retroactivity rule, stating that an
amendatory statute applies in “‘any [criminal] proceeding
[that], at the time of the supervening legislation, has not yet
reached final disposition in the highest court authorized to
review it.’” (People v. Rossi (1976) 18 Cal.3d 295, 304 (Rossi),
quoting Bell v. Maryland (1964) 378 U.S. 226, 230; accord,
People v. Vieira (2005) 35 Cal.4th 264, 306 [for purposes of
Estrada rule, “‘a judgment is not final until the time for
petitioning for a writ of certiorari in the United States
Supreme Court has passed’” (quoting People v. Nasalga
(1996) 12 Cal.4th 784, 789, fn. 5)].)
This rule of finality is easy to apply in a typical case,
where a criminal defendant is convicted and sentenced, the
judgment is affirmed on appeal, a petition for review in the
California Supreme Court is either denied or never filed, and
a petition for certiorari in the United States Supreme Court
is likewise denied or never filed. But questions have arisen
as to how this rule applies in different procedural settings.
In People v. Jackson (1967) 67 Cal.2d 96 (Jackson), a
capital defendant’s judgment of death became final when he
failed to seek certiorari. (Id. at 97, 98.) In a subsequent
habeas corpus proceeding, the California Supreme Court
reversed his death sentence and remanded for a penalty
retrial. (Id. at 97.) The defendant was again sentenced to
death, and in the automatic appeal, sought to raise both

12
guilt-phase and penalty-phase claims based on Escobedo v.
State of Illinois (1964) 378 U.S. 478 (Escobedo), decided after
his original judgment became final but before his penalty
retrial. (Jackson, supra, at 98-99.) Because Escobedo
applied retroactively only to judgments not yet final at the
time it was decided (In re Lopez (1965) 62 Cal.2d 368, 372),
our Supreme Court rejected the defendant’s attempt to
challenge his convictions based on that decision, noting that
it had reversed only the defendant’s death sentence: “The
scope of this retrial is a matter of state procedure under
which the original judgment on the issue of guilt remains
final during the retrial of the penalty issue and during all
appellate proceedings reviewing the trial court’s decision on
that issue.” (Jackson, at 99; accord, People v. Kemp (1974)
10 Cal.3d 611, 614 (Kemp) [applying Jackson to preclude
capital defendant’s Escobedo-based challenge to his final
judgment on guilt following penalty retrial].)6 At the same

6 Our Supreme Court recently observed that “[i]n criminal
actions, the terms ‘judgment’ and ‘“sentence”’ are generally
considered ‘synonymous’ [citation], and there is no ‘judgment of
conviction’ without a sentence [citation].” (People v. McKenzie
(2020) 9 Cal.5th 40, 46 (McKenzie).) Jackson’s distinction
between the “judgment on the issue of guilt” and the “penalty” for
purposes of finality appears to depart from that rule. (Jackson,
supra, 67 Cal.2d at 99.) As we are aware of no non-capital case
applying Jackson’s rule, it is conceivable this distinction stems
from the unique nature of capital trials, which are subject to
bifurcated guilt and penalty phases. (See Phillips v. Vasquez (9th
Cir. 1995) 56 F.3d 1030, 1033, fn. 1 [describing Kemp and
Jackson as holding “that a conviction under California’s
(Fn. continued on the next page.)

13
time, however, the court agreed that the defendant could
rely on Escobedo to challenge his new sentence,
notwithstanding that his “conviction was final” before that
case was decided. (Jackson, supra, at 100.)
Jackson therefore established that a collateral
proceeding may reopen the finality of a sentence for
retroactivity purposes, even while the conviction remains
final. While Jackson involved the retroactivity of
constitutional law, rather than an ameliorative statute, it
applied the same definition of finality later applied in Rossi.
(See Jackson, supra, 67 Cal.2d at 98 [“A judgment becomes
final when all avenues of direct review are exhausted”],
citing, inter alia, Spencer, supra, 63 Cal.2d at 405.)

B. Analysis
Appellant claims he is entitled to a transfer hearing
under Proposition 57, asserting its provisions apply
retroactively to him. He maintains we should therefore
conditionally reverse his judgment and refer the matter to
the juvenile court. Appellant argues his judgment is not yet
final because we reversed his sentence and remanded the
case for resentencing in 2016, and he is now appealing from

bifurcated process for adjudicating death penalty cases is a final
judgment”].) Yet the interest in retaining the finality of
convictions despite ongoing sentencing proceedings applies in
other contexts as well. Because we conclude that Proposition 57
applies retroactively to appellant’s resentencing, we need not
decide whether Jackson applies to non-capital cases.

14
that resentencing. Respondent counters that appellant’s
judgment became final in 2001, when he originally
exhausted direct appeal procedures. Respondent contends
the reopening of appellant’s sentencing following his
successful habeas petition had no effect on the finality of his
“judgment of conviction,” and therefore does not entitle him
to the benefit of Proposition 57’s retroactive application.
We begin with the simple observation that appellant’s
sentence is not final: the superior court vacated his original
sentence and resentenced him, we then reversed his new
sentence and remanded for another resentencing, and
appellant has taken this direct appeal from his second
resentencing. Because appellant’s sentence is still pending
on direct appeal, his judgment is not final under our
Supreme Court’s definition of finality for retroactivity
purposes. (See Jackson, supra, 67 Cal.2d at 100; McKenzie,
supra, 9 Cal.5th at 46; Rossi, supra, 18 Cal.3d at 304.)
Respondent does not suggest that appellant’s sentence
is entirely immune to challenges based on retroactive
changes to the law. Instead, citing the Jackson/Kemp rule,
respondent contends that appellant’s judgment remains final
as to his conviction and all other matters not encompassed
by his resentencing, including “pretrial proceedings under
Proposition 57,” such that he may not benefit from that
measure’s retroactive operation. We disagree.
Assuming the rule established in these capital cases
applies in other contexts, it would not preclude appellant’s
claim based on Proposition 57 because that measure affects

15
his sentencing, independent of its potential effect on his
convictions. As the Cervantes court observed, a juvenile
disposition is far more advantageous to the defendant than a
criminal sentence for the same offense: indeed, “adult
criminal sentencing is the biggest disadvantage to being
‘tried in adult court . . . .’” (Cervantes, supra, 9 Cal.App.5th
at 612.)
Based on the purposes underlying Proposition 57 and
the substantially more severe consequences of sentencing in
adult court for many juvenile felons, the court in Cervantes
concluded that a juvenile felon may not be “‘sentenced in
adult court’” without a prior transfer hearing. (Cervantes,
supra, 9 Cal.App.5th at 612.) Thus, even before its ruling
that Proposition 57 was not retroactive was disapproved in
Lara, the Cervantes court recognized that a defendant may
not be resentenced on remand without a prior transfer
hearing. (Cervantes, supra, at 612.) Lara left undisturbed
Cervantes’s conclusion about Proposition 57’s application to
sentencing.
In Lara itself, the court stated that “[o]nly if the
juvenile court transfers the matter to adult court can the
juvenile be tried and sentenced as an adult.” (Lara, supra, 4
Cal.5th at 303.) Relying on this language, the court in
People v. Ramirez (2019) 35 Cal.App.5th 55, 64 (Ramirez)
held that on a limited remand for resentencing, “the trial
court was required to consider the effect of Proposition 57
and issue any related orders,” thereby rejecting the People’s
contention that the defendant’s request for a transfer

16
hearing exceeded the scope of a limited remand. The
Ramirez court explained that although it had remanded the
defendants’ case for resentencing in light of intervening
precedent, “the trial court had jurisdiction to consider any
and all factors that would affect sentencing,” including
Proposition 57. (Ramirez, supra, at 64.)
Because Proposition 57’s primary ameliorative effect is
on a juvenile offender’s sentence, independent of the
convictions, we conclude it applies retroactively to
appellant’s nonfinal sentence and requires that he receive a
transfer hearing.7 (See Lara, supra, 4 Cal.5th at 303;
Ramirez, supra, 35 Cal.App.5th at 64; Cervantes, supra, 9
Cal.App.5th at 612.) Any resulting effect on appellant’s
convictions would be a mere byproduct of his required
treatment as a juvenile, should the juvenile court decide that
he would have been fit for such treatment. (See Lara, supra,
at 306 [“‘there are no “conviction[s]” in juvenile court’”]; Welf.
& Inst. Code, § 203 [“An order adjudging a minor to be a
ward of the juvenile court shall not be deemed a conviction of
a crime for any purpose”].) A juvenile court’s decision in a
retroactive transfer hearing to treat the defendant as a
juvenile does not disturb the jury’s findings; rather, the court
must treat the defendant’s convictions as juvenile

7 For similar reasons, we reject respondent’s contention that
appellant’s claim should be denied because it falls outside the
scope of our prior limited remand for resentencing. (See Ramirez,
supra, 35 Cal.App.5th at 64.)

17
adjudications and impose an appropriate disposition. (See
Lara, supra, at 309-310, 313; see also id. at 309-310
[“‘Nothing is to be gained by having a “jurisdictional
hearing,” or effectively a second trial, in the juvenile
court’”].) And we see no reason why juvenile court treatment
should open the jury’s adjudications to challenge under new
rules to which they would not otherwise be subject.
Respondent argues that Lara’s conclusion about
Proposition 57’s retroactivity nevertheless does not apply to
appellant because “Lara considered the specific circumstance
of a defendant who had been charged but not sentenced.”
Respondent maintains it is unlikely the voters intended the
provisions of Proposition 57 to apply to those, like appellant,
far removed from their teenage years and for whom
treatment as a juvenile would likely result in release from
custody. These assertions, however, are at odds with our
Supreme Court’s determination of the electorate’s intent --
that Proposition 57 should apply retroactively to “all
juveniles charged directly in adult court whose judgment
was not yet final at the time it was enacted.” (Lara, supra, 4
Cal.5th at 304.) It is not for us to say, at this time, whether
appellant should be treated as a juvenile offender -- only that
our Supreme Court’s pronouncement that Proposition 57
should apply “as broadly as possible” encompasses appellant,
regardless of his current age. (Lara, supra, at 308; see
Ramirez, supra, 35 Cal.App.5th at 60-61 [affirming referral
for transfer hearing for defendant who was 28 years old];
Garcia, supra, 30 Cal.App.5th at 321, 330 [ordering transfer

18
hearing for defendant who was over 40 years old].)
Moreover, we see no reason why the juvenile court cannot
adapt Proposition 57’s criteria to assess whether a person
like appellant, who committed a crime as a minor but is now
an adult, should or should not have been tried as an adult.
(See Lara, supra, at 313 [courts can implement retroactive
transfer hearings “without undue difficulty,” and the
potential complexity in providing such hearings “is no reason
to deny [them]”].)
Our conclusion that Proposition 57 applies
retroactively to appellant’s sentence is consistent with our
Supreme Court’s determination in Lara that the voters
intended Proposition 57 “‘to extend as broadly as possible’”
(Lara, supra, 4 Cal.5th at 309), i.e., “to every case to which it
constitutionally could apply” (Estrada, supra, 63 Cal.2d at
745). Respondent offers no basis for concluding that this
ameliorative amendment may not be applied constitutionally
to appellant’s sentence. Accordingly, we conclude appellant
is entitled to a retroactive transfer hearing under
Proposition 57.

19
 DISPOSITION
In Lara, the court approved the remedy one Court of
Appeal had ordered for a juvenile defendant who had been
convicted and sentenced without having received a transfer
hearing. (See Lara, supra, 4 Cal. 5th at 310, 313.) We afford
appellant a similar remedy.
Appellant’s sentence is 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 it would have transferred the case to adult
criminal court had it 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, it
shall treat appellant’s convictions as juvenile adjudications
and impose an appropriate disposition. If the juvenile court
determines it would have transferred appellant to adult
criminal court, it shall transfer the case to criminal court,
which shall then reinstate appellant’s sentence.
CERTIFIED FOR PUBLICATION

MANELLA, P. J.

We concur:

WILLHITE, J. COLLINS, J.

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