People v. Lopez

Filed 10/29/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A158840
v.
STEPHEN MARTINEZ LOPEZ, (Contra Costa County
Super. Ct. No. 50506287)
Defendant and Appellant.

Stephen Martinez Lopez was convicted in criminal court in 2009 for
murder and related charges based on his actions as a minor.1 In 2019, the
trial court recalled defendant’s sentence and resentenced him under Penal
Code2 section 1170, subdivision (d)(1) to correct the original sentence in light
of an intervening 2015 California Supreme Court decision, People v. Le (2015)
61 Cal.4th 416. Prior to the resentencing, defendant moved to have a
juvenile court hold a transfer hearing based on Proposition 57 (Prop. 57, as
approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 57)), which was
enacted in 2016 and changed the law regarding prosecution of minors in
adult court. The trial court denied the motion concluding that Proposition 57

1“We will use the terms ‘adult court’ and ‘criminal court’
interchangeably to refer to the court system for adults and juveniles who are
tried as adults, and to distinguish that system from the juvenile court
system, where most juvenile matters are handled.” (People v. Superior Court
(Lara) (2018) 4 Cal.5th 299, 303, fn. 1 (Lara).)
2 All further undesignated statutory citations are to the Penal Code.

1
did not apply to defendant, despite the resentencing, because his original
sentence became final long before Proposition 57 took effect. We agree with
defendant that this was error, so we will conditionally reverse the trial
court’s judgment and remand for a juvenile court to conduct a transfer
hearing.
BACKGROUND3
In 2009, defendant was tried in adult court and, after a jury trial,
convicted of first degree murder (§ 187, subd. (a)), shooting at an inhabited
dwelling (§ 246), three counts of assault with a semiautomatic firearm (§ 245,
subd. (b)), and shooting from a motor vehicle (former § 12034, subd. (c),
repealed by Stats. 2010, ch. 711, §§ 4, 10; see § 26100, subd. (c)). All the
charges were accompanied by various enhancements. The charges arose from
actions defendant committed in October 2003, when he was 17 years old. The
trial court sentenced defendant to 60 years to life in prison on the murder
count and a concurrent determinate term of 45 years on the assault counts,
with sentences on the other counts stayed. Defendant appealed. A prior
panel of this court struck a gang-benefit enhancement connected to the
murder count, thereby removing 10 years from the indeterminate sentence,
but otherwise affirmed the judgment.
In 2016, the electorate approved Proposition 57 to change the law
regarding criminal prosecution of crimes committed by minors. (Lara, supra,
4 Cal.5th at p. 303.) Proposition 57 eliminated prosecutors’ ability to directly
file charges against minors in criminal court. (Ibid.) After Proposition 57, a
juvenile court must first conduct a “transfer hearing” to determine whether a

3 We recite only those facts necessary to resolve the procedural issue
raised in this appeal. A full description of the factual background of this case
can be found in our prior decision, People v. Lopez (Sept. 29, 2010, A115716)
(nonpub. opn.).

2
matter should remain in juvenile court or be transferred to adult court before
a prosecutor can try a minor in criminal court. (Ibid.) To make this
determination, the juvenile court must consider various factors, including
“ ‘the minor’s maturity, degree of criminal sophistication, prior delinquent
history, and whether the minor can be rehabilitated.’ ” (Id. at p. 305.)
In August 2018, the Secretary of the California Department of
Corrections and Rehabilitation recommended that the court reconsider
defendant’s sentence in light of People v. Le, supra, 61 Cal.4th 416. The
secretary’s letter stated that it was intended to give the trial court authority

3
to resentence defendant under section 1170, subdivision (d).4 The trial court
agreed that resentencing appeared to be appropriate and set the matter for a
hearing.
Before the hearing, defendant moved to remand the case to juvenile
court for a retroactive transfer hearing under Lara’s interpretation of
Proposition 57. (See Lara, supra, 4 Cal.5th at p. 310, 313.) The trial court
denied the motion, ruling that Proposition 57 was not intended to apply to a
defendant whose case was already final, even if the defendant was later

4 After the trial court’s ruling below, the Legislature amended section
1170, subdivision (d)(1) in certain minor respects not relevant here. (See
Stats. 2020, ch. 29, § 14.) For simplicity, we cite to the current version of
section 1170, subdivision (d)(1). That statute states in full: “When a
defendant subject to this section or subdivision (b) of Section 1168 has been
sentenced to be imprisoned in the state prison or a county jail pursuant to
subdivision (h) and has been committed to the custody of the secretary or the
county correctional administrator, the court may, within 120 days of the date
of commitment on its own motion, or at any time upon the recommendation of
the secretary or the Board of Parole Hearings in the case of state prison
inmates, the county correctional administrator in the case of county jail
inmates, or the district attorney of the county in which the defendant was
sentenced, recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously
been sentenced, provided the new sentence, if any, is no greater than the
initial sentence. The court resentencing under this subdivision shall apply
the sentencing rules of the Judicial Council so as to eliminate disparity of
sentences and to promote uniformity of sentencing. The court resentencing
under this paragraph may reduce a defendant’s term of imprisonment and
modify the judgment, including a judgment entered after a plea agreement, if
it is in the interest of justice. The court may consider postconviction factors,
including, but not limited to, the inmate’s disciplinary record and record of
rehabilitation while incarcerated, evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced the inmate’s
risk for future violence, and evidence that reflects that circumstances have
changed since the inmate’s original sentencing so that the inmate’s continued
incarceration is no longer in the interest of justice. Credit shall be given for
time served.”

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resentenced under section 1170, subdivision (d)(1). The trial court then
resentenced defendant to 50 years to life for the first degree murder
conviction and enhancement and a concurrent 30-year term for the
convictions for assault with a semi-automatic firearm and enhancements.
The sentences on the remaining counts were stayed.
Defendant timely appealed.
DISCUSSION
In Lara, the Supreme Court considered whether Proposition 57 applied
retroactively. (Lara, supra, 4 Cal.5th at p. 303.) The Court had previously
held in In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada) that when the
Legislature amends a criminal statute to lessen the punishment for a crime,
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.” Estrada found this inference
was “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.” (Id. at p. 745.) Lara
applied the Estrada rule to hold that Proposition 57’s transfer hearing
provision “applies to all juveniles charged directly in adult court whose
judgment was not final at the time it was enacted.” (Lara, at p. 304.) Even
though Proposition 57 did not ameliorate the possible punishment for any
particular crime, Lara concluded the Estrada inference of retroactivity was
applicable because Proposition 57 made minors eligible for disposition in

5
juvenile court, where the punishments for crimes are less severe and the goal
is rehabilitation instead of punishment. (Id. at pp. 308–309.)
Although the judgment in his criminal case became final in 2010 after
the decision by a prior panel of this court, defendant contends he is eligible
for the benefits of Proposition 57 under Lara’s holding that Proposition 57
applies to any case that is not yet final. He argues that the trial court’s
decision to resentence him under section 1170, subdivision (d)(1) showed the
original sentence was void and the trial court gave him a full resentencing or
sentenced him anew. The People disagree, arguing that the trial court
reopened defendant’s case only for limited resentencing under section 1170,
subdivision (d)(1), and Estrada retroactivity applies only to cases whose
judgments are still subject to direct review. We review de novo this statutory
interpretation issue regarding the intent behind Proposition 57. (People v.
Taylor (1992) 6 Cal.App.4th 1084, 1090–1091.)
Two courts before us have reached divergent outcomes on issues
similar to those defendant raises here, and the California Supreme Court has
granted review in both matters. People v. Padilla (2020) 50 Cal.App.5th 244,
247, review granted Aug. 26, 2020, S263375 (Padilla), held that a defendant
resentenced after a successful petition for a writ of habeas corpus after
Proposition 57 became effective was entitled to a retroactive transfer hearing
in juvenile court. One day later, People v. Federico (2020) 50 Cal.App.5th
318, 328, review granted Aug. 26, 2020, S263082 (Federico), held that a trial
court properly denied a defendant’s request for a retroactive juvenile transfer
hearing when the defendant was resentenced under section 1170, subdivision
(d)(1) after pleading guilty to charges based on conduct committed when he
was 15. We examine each decision in turn.

6
 In Padilla, the defendant was charged with murder and related
charges stemming from a homicide he committed when he was 16 years old.
(Padilla, supra, 50 Cal.App.5th at p. 248.) A juvenile court transferred the
defendant’s case to criminal court, where he was convicted and sentenced to a
mandatory sentence of life without the possibility of parole. (Ibid.) In 2001,
the California Supreme Court denied the defendant’s petition for review, and
defendant did not petition the Supreme Court for a writ of certiorari. (Ibid.)
In 2014, the defendant filed a petition for writ of habeas corpus, asking the
trial court to resentence him based on Miller v. Alabama (2012) 567 U.S. 460,
465. (Ibid.) The trial court agreed, vacated the defendant’s sentence, and
resentenced him to life in prison without the possibility of parole. (Ibid.) The
defendant appealed and the Court of Appeal reversed the new sentence,
remanding the matter to the trial court to consider another new Supreme
Court decision, Montgomery v. Louisiana (2016) 577 U.S. __, 136 S.Ct. 718.
(Ibid.) While the matter was pending in the trial court, the voters approved
Proposition 57. (Ibid.) When the trial court again sentenced the defendant to
life without the possibility of parole, the defendant appealed once more.
(Ibid.)
Padilla first summarized Proposition 57 and noted that the transfer
hearings required by Proposition 57 were more favorable to minors in certain
ways than the transfer hearing originally held in the defendant’s case.
(Padilla, supra, 50 Cal.App.5th at pp. 248–250.) The court next discussed
Lara’s application of the Estrada rule to Proposition 57. (Id. at pp. 250–251.)
Padilla then reviewed the law regarding when a judgment is final for the
purposes of retroactivity. (Id. at pp. 251–253.) Generally, the rule is that
“ ‘ “a judgment is not final until the time for petitioning for a writ of certiorari
in the United States Supreme Court has passed.” ’ ” (Id. at p. 252.) In People

7
v. Jackson (1967) 67 Cal.2d 96, 98–99 (Jackson), the California Supreme
Court applied this principle to hold that a capital defendant who had
obtained a new penalty-phase trial via a writ of habeas corpus could not use
that retrial to challenge the finding of guilt based on Supreme Court
authority issued after his original conviction became final. However, Jackson
went on to hold that because the Supreme Court decisions were issued before
the defendant’s second penalty-phase trial, the defendant could use those
decisions to challenge the trial court’s re-imposition of the death penalty at
the penalty retrial. (Id. at p. 100.) Padilla therefore summarized Jackson as
establishing “that a collateral proceeding may reopen the finality of a
sentence for retroactivity purposes, even while the conviction remains final.”
(Padilla, at p. 253.)
Padilla then turned to apply these principles to the case before it. It
began by noting that the defendant’s sentence was not final because the trial
court had vacated the sentence imposed originally and the resentencing was
still at issue in the appeal before it. (Padilla, supra, 50 Cal.App.5th at
pp. 253–254.) It assumed the prosecution was correct that all matters not
encompassed by the resentencing were still final, as the finding of guilt was
in Jackson. (Id. at p. 254.) But Padilla concluded that the defendant’s claim
for a retroactive transfer hearing under Proposition 57 affected his
resentencing, because a disposition in juvenile court would be more
advantageous to the defendant than a criminal sentence for the same offense.
(Id. at p. 254.) The court reasoned: “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.” (Id. at p. 255.)
Padilla also observed that in a retroactive juvenile transfer hearing, the

8
juvenile court accepts the guilt finding from a defendant’s criminal trial as a
juvenile adjudication and only imposes an appropriate disposition. (Ibid.)
Padilla finally rejected the People’s argument that the voters who approved
Proposition 57 did not likely intend for it to apply retroactively to defendants
who were convicted as minors so long ago that retroactive application of
Proposition 57 would result in their release from custody. (Ibid.) Padilla
concluded this argument was contrary to Lara, which held based on Estrada
that the voters intended Proposition 57 to apply as broadly as possible to any
defendant whose judgment was not yet final. (Id. at pp. 255–256.)
Defendant urges us to follow Padilla, but the People would have us
instead follow Federico. The defendant in Federico pled guilty in 2008 to
assault with a firearm and enhancements and was sentenced to 20 years in
prison. (Federico, supra, 50 Cal.App.5th at p. 322.) In September 2018, the
secretary recommended under section 1170, subdivision (d)(1) that the trial
court resentence the defendant for reasons not relevant here. (Ibid.) The
defendant agreed to the resentencing and argued in addition that he was
entitled to a transfer hearing under Proposition 57.5 (Ibid.) The trial court
denied the defendant’s request, and the Court of Appeal affirmed. (Id. at
pp. 321, 323.)
Federico held that Lara did not apply to the defendant because his
conviction became final when the deadline to appeal the original sentencing

5 The Federico defendant also sought to take advantage of a subsequent
legislative amendment to Proposition 57, Senate Bill No. 1391 (2017–2018
Reg. Sess.). (Federico, supra, 50 Cal.App.5th at p. 321.) Because Senate Bill
No. 1391 only benefits minors who were 14 or 15 years old at the time of their
offense (id. at pp. 324–325) and defendant was 17 years old when he
committed his offenses, Senate Bill No. 1391 it is not relevant here. For
simplicity, our discussion of Federico therefore omits further mention of
Senate Bill No. 1391.

9
passed. (Federico, supra, 50 Cal.App.5th at p. 325.) It rejected the
defendant’s argument that the resentencing hearing made the original
judgment non-final, declaring that the fact that the defendant could appeal
the resentencing decision did not render the original judgment not final. (Id.
at pp. 325–326.)
Federico also concluded that section 1170, subdivision (d)(1) did not
reopen the original judgment for the purposes of retroactively applying
Proposition 57 because “even if a trial court has authority to recall a sentence
under section 1170, subdivision (d), it does not follow that the sentence is not
a final judgment under Estrada.” (Federico, supra, 50 Cal.App.5th at p. 326.)
The court noted that section 1170, subdivision (d)(1) is an exception to the
common law rule that a trial court loses jurisdiction to resentence a criminal
defendant once execution of the sentence begins, and the statute says nothing
about reopening a judgment in order to retroactively apply recently enacted
laws. (Id. at pp. 326–327.) Federico reasoned that transferring a defendant
for a juvenile transfer hearing would be inconsistent with the text of section
1170, subdivision (d), which “specifically provides that the court may
‘resentence the defendant in the same manner as if he or she had not
previously been sentenced.’ ” (§ 1170, subd. (d)(1), italics added.)” (Id. at
p. 327.) The court concluded the statute merely allowed the trial court to
reconsider its sentencing choices in the original sentence. (Ibid.)
Federico finally rejected the defendant’s argument that the full
resentencing rule described in People v. Buycks (2018) 5 Cal.5th 857, 893–894
(Buycks), allowed the trial court to consider any relevant circumstances, such
as the enactment of Proposition 57, that had occurred after the defendant
was originally sentenced. (Federico, supra, 50 Cal.App.5th at p. 327.) The
full resentencing rule dictates that “when part of a sentence is stricken on

10
review, on remand for resentencing ‘a full resentencing as to all counts is
appropriate, so the trial court can exercise its sentencing discretion in light of
the changed circumstances.’ ” (Buycks, at p. 893.) Buycks analogized
Proposition 47 resentencing to section 1170, subdivision (d)(1) resentencing
and noted that the full resentencing rule has long been applied to the latter
kind of resentencing to permit consideration of “ ‘any pertinent circumstances
which have arisen since the prior sentence was imposed.’ ” (Ibid.) The
Federico court nonetheless found Buycks irrelevant because the case before it
did not involve resentencing under Proposition 47. (Federico, at p. 327.)
Federico recited the examples of the full resentencing rule’s application in
People v. Valenzuela (2019) 7 Cal.5th 415, 425, which included the selection
of a different principal term, reconsideration of whether to stay a sentence,
imposition of an upper instead of a middle term, and imposition of concurrent
or consecutive sentences. (Federico, at p. 328.) Federico found none of these
examples expanded the scope of a resentencing court’s discretion in the same
way as ordering a transfer hearing. (Ibid.)
We disagree with Federico and find Padilla persuasive, even though
the latter decision involved a resentencing following a successful petition for
writ of habeas corpus rather than resentencing under section 1170,
subdivision (d)(1). “In a criminal case, judgment is rendered when the trial
court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335,
344, fn. 9.) Section 1170, subdivision (d)(1) authorized the trial court, based
on the secretary’s recommendation, to recall defendant’s sentence and enter a
new sentence. Because a resentencing under section 1170, subdivision (d)(1)
replaces the original sentence, the original sentence is no longer operative,
and the finality of the original sentence is no longer material. The only
sentence that matters after resentencing under section 1170, subdivision

11
(d)(1) is the new sentence, which is not final because a resentenced defendant
can still obtain review from the California Supreme Court or the United
States Supreme Court. This statutory framework is thus comparable to the
procedural posture in Padilla, where the trial court vacated the defendant’s
original sentence and entered a new sentence. (Padilla, supra,
50 Cal.App.5th at p. 253–254.) Contrary to Federico’s framing of the issue, it
is not a question of whether the appealability of the new sentence makes the
original judgment not final. (Federico, supra, 50 Cal.App.5th at p. 326.)
Rather, the mere existence of the resentence makes the original sentence
irrelevant for the purposes of Lara. Applying Lara’s conclusion that
Proposition 57 applies retroactively to any judgment that is not final to
defendant’s new sentence, we conclude the new sentence is not final and so
he is entitled to a retroactive transfer hearing in juvenile court.
The resentencing could alternatively be viewed as modifying the
original judgment, but this leads to the same conclusion. The original
sentence can no longer be considered final for Estrada purposes when it has
been recalled and modified by the new sentence. Federico is correct that
section 1170, subdivision (d)(1) does not describe this as “ “reopening’ ” the
judgment in so many words. (Federico, supra, 50 Cal.App.5th at p. 327.) But
in substance it accomplishes the same thing, because the statute states that
the “court resentencing under this paragraph may reduce a defendant’s term
of imprisonment and modify the judgment, including a judgment entered
after a plea agreement, if it is in the interest of justice.” (§ 1170(d)(1), italics
added.) The original judgment can no longer be considered final for the
purposes of section 1170, subdivision (d)(1) when the trial court has authority
to and does modify it.

12
 Unlike Federico, we do not view this conclusion as inconsistent with the
text of section 1170, subdivision (d)(1). (Federico, supra, 50 Cal.App.5th at
p. 327.) Besides allowing the resentencing court to “modify the judgment,”
section 1170, subdivision (d)(1) also instructs that the resentencing court
should “resentence the defendant in the same manner as if they had not
previously been sentenced.” (§ 1170(d)(1).) This instruction does not mean,
as Federico appears to have read it, that the resentencing court may only
“reconsider its sentencing choices in the original sentence” without regard to
any intervening changes in the law. (Federico, at p. 327.) Instead, the use of
the phrase “as if [the defendant] had not previously been sentenced” means
that the resentencing court should not consider itself bound by any aspect of
the previous sentence. This reading is consistent with the rest of section
1170, subdivision (d)(1), which tells the resentencing court that it may
consider events arising after the original conviction, such as the defendant’s
disciplinary history and record of rehabilitation in prison. (§ 1170(d)(1).) If
Federico were correct that the phrase “in the same manner” signifies that a
resentencing court should only reconsider its original sentencing choices
(Federico, supra, 50 Cal.App.5th at p. 327), the Legislature would not have
allowed the resentencing court to consider postconviction matters.6
This reading of section 1170, subdivision (d)(1) is also consistent with
the full resentencing rule applicable under section 1170, subdivision (d)(1).
As Buycks stated, this rule allows a court resentencing a defendant under
section 1170, subdivision (d)(1) to “consider ‘any pertinent circumstances
which have arisen since the prior sentence was imposed.’ ” (Buycks, supra,

6 The language authorizing a resentencing court to consider
postconviction factors was added to the statute effective June 27, 2018.
(Stats. 2018, ch. 36, § 17.)

13
5 Cal.5th at p. 893.) Federico is correct that neither Buycks nor the examples
of this rule’s operation in People v. Valenzuela involved a transfer hearing
under Proposition 57. (Federico, supra, 50 Cal.App.5th at p. 328.) However,
People v. Ramirez (2019) 35 Cal.App.5th 55, decided a year before Federico,
applied the full resentencing rule in just this fashion. The Court of Appeal
there had reversed the judgment and remanded the defendant’s case to the
trial court for resentencing and either a reduction of one count of conviction
or a partial retrial. (Id. at p. 61 & fn. 1.) Proposition 57 was enacted
following that remand, and the defendant successfully moved for a transfer
hearing under Proposition 57 and Lara. (Id. at p. 59.) On appeal, the People
argued the trial court’s order for a transfer hearing exceeded the scope of its
jurisdiction under the remittitur from the first appeal. (Id. at p. 64.) The
Court of Appeal affirmed. It concluded that under the full resentencing rule,
the remittitur gave the trial court “jurisdiction to consider any and all factors
that would affect sentencing.” (Ibid.) Because Proposition 57 entitled the
defendant to a transfer hearing, “the trial court was required to consider the
effect of Proposition 57 and issue any related orders.” (Ibid.) Although
Ramirez involved resentencing following an appeal, when a judgment is not
final, its application of the full resentencing rule applies equally here because
the same rule governs resentencing under section 1170, subdivision (d)(1).
(Buycks, supra, 5 Cal.5th at p. 893.) The full resentencing rule therefore
obligated the trial court here to give defendant a transfer hearing upon his
resentencing.
Our conclusion is consistent with the California Supreme Court’s
decision in People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie). The defendant
there appealed from an order revoking probation and imposing a previously-
suspended imprisonment sentence. (Id. at pp. 43–44.) The court held the

14
defendant could take advantage of an ameliorative change in the law that
occurred several years after his original conviction and grant of probation but
while the order revoking probation was not yet final. (Id. at pp. 43, 45–46.)
As relevant here, McKenzie found it irrelevant that the prior grant of
probation was final in the sense that the defendant could have appealed from
it, describing the order as having only “ ‘limited finality’ ”and “ ‘ “not hav[ing]
the effect of a judgment for other purposes.” ’ ” (Id. at p. 47.) The court was
also unpersuaded by the prosecution’s reliance on the rule that defendants in
probation revocation proceedings generally cannot raise errors committed
earlier in the proceeding, because the defendant there could not have raised
the change in the law any earlier in the process. (Id. at p. 50.)
McKenzie indicates that finality is not a binary concept and judgments
can be final for some purposes but not others. We recognize that the law
regarding probation is different from section 1170, subdivision (d)(1), but we
view the section 1170, subdivision (d)(1) resentencing as having an analogous
effect on defendant’s sentence to the revocation of probation in McKenzie.
Although not squarely on point, McKenzie shows the California Supreme
Court’s willingness to allow defendants to take advantage of ameliorative
legislation that occurs after their first opportunity for post-conviction review.
This demonstrates the continuing vitality of Estrada’s inference that
ameliorative legislation is intended to lighten the punishment for as many
defendants as possible rather than holding defendants to existing sentences
out of vengeance. (Estrada, supra, 63 Cal.2d at p. 745.)
In addition to relying on Federico, the People raise various arguments
in support of the trial court’s ruling, none of which is persuasive. The People
argue the California Supreme Court has considered the retroactivity of
statutes only in cases where the defendants were pending trial or on their

15
first appeal, not when a defendant’s judgment was final. The absence of a
definitive precedent on point is of course no reason to deny defendant’s
request for a transfer hearing.7 Moreover, the People define too narrowly the
universe of relevant precedent. As Padilla pointed out, Jackson
demonstrates that when a defendant’s sentence is re-opened via a collateral
attack, the defendant can take advantage of new decisions from the Supreme
Court that are relevant to the collateral attack and were issued before the
new sentence became final. (Padilla, supra, 50 Cal.App.5th at pp. 252–253.)
The People provide no reason why we should not apply the same rule in the
context of new statutory changes and a resentencing under section 1170,
subdivision (d)(1).
The People further argue that if resentencing makes an entire
judgment non-final for Estrada purposes, then a defendant who is
resentenced after a change in the law creates a new affirmative defense to
one of his or her charges would be entitled to a new trial on guilt at which he
or she could raise the defense. The People contend this would stretch the
Estrada rule to the breaking point. We need not address such hypothetical
scenarios because they are not before us. However, we note that the
reasoning in Jackson suggests that the People’s premise is incorrect.
Resentencing need not make an entire judgment non-final, because the guilt
portion of a judgment may be treated as final even if the penalty or sentence
is later re-opened. (Jackson, supra, 67 Cal.2d at p. 100.) That is the case
here because, as Padilla concluded in similar circumstances, Proposition 57
implicates the sentencing phase of defendant’s trial more than the guilt

7In any event, the People’s desire for a definitive ruling on this
question will likely be satisfied soon enough, because the California Supreme
Court granted review in both Padilla and Federico to consider these issues.

16
phase. (Padilla, supra, 50 Cal.App.5th at p. 254 [Proposition 57 “affects
[defendant’s] sentencing, independent of its potential effect on his
convictions”; noting that a juvenile disposition is more advantageous to a
defendant than an adult criminal sentence for the same offense].) Although
there are certainly procedural differences between juvenile and criminal
court, the most salient difference is the different range of punishments
available, as Lara concluded. (Lara, supra, 4 Cal.5th at p. 303 [“The
possibility of being treated as a juvenile in juvenile court—where
rehabilitation is the goal—rather than being tried and sentenced as an adult
can result in dramatically different and more lenient treatment. Therefore,
Proposition 57 reduces the possible punishment for . . . juveniles”].)
Accordingly, extending the benefits of Proposition 57 to defendant here need
not lead to the absurd results the People envision.
The People further contend Padilla was wrongly decided because the
voters could have provided transfer hearings for defendants whose
convictions were final, but there is no indication that they did so. The People
contrast Proposition 57 in this regard with other statutory amendments that
explicitly applied to defendants whose judgments were final or to those who
have obtained collateral relief. The People contend this demonstrates the
voters’ intent to limit retroactive transfer hearings to defendants whose
judgments were final. However, given that the voters did not address
retroactivity at all in the text of Proposition 57 or its ballot materials (Lara,
supra, 4 Cal.5th at p. 309), we decline to construe the voters’ silence as
indicating an intent to limit the reach of the act’s reforms. Like Lara, we will
instead heed the voters’ intent that Proposition 57 be liberally construed to
accomplish its purpose of emphasizing rehabilitation, especially for juveniles
(ibid.), and apply it to those in defendant’s position here.

17
 The People finally argue on policy grounds that granting transfer
hearings to individuals in defendant’s position will create windfalls for those
defendants who, due to fortuitous circumstances, are resentenced under
section 1170, subdivision (d)(1), while others languish in prison without
Proposition 57’s benefit because there was no error in their original sentence
that required resentencing. This argument could be restated as saying that
because not every defendant will benefit from retroactive application of
Proposition 57, no defendant should receive the benefit. On its face, this
argument runs contrary to the electorate’s stated intent that Proposition 57
“ ‘shall be liberally construed to effectuate its purposes,’ ” one of which is to
“ ‘[s]top the revolving door of crime by emphasizing rehabilitation, especially
for juveniles.’ ” (Lara, supra, 4 Cal.5th at p. 309.) Moreover, our Supreme
Court has repeatedly rejected similar arguments made against the Estrada
rule itself. (McKenzie, supra, 9 Cal.5th at p. 49.) It is true that defendants
who plead guilty and whose judgments become immediately final do not get
the benefit of subsequent changes in the law, while defendants who go to trial
and appeal have the chance of such benefits. (Ibid.) Nonetheless, the
Supreme Court has determined that the Estrada rule gives the retroactive
benefit of ameliorative changes in the law to any defendant who is
procedurally able to seek it. (Ibid.) We shall follow the Supreme Court’s lead
and do the same here.
DISPOSITION
The judgment of the criminal court is conditionally reversed. The cause
is remanded to the juvenile court with directions to conduct, no later than 90
days from the filing of the remittitur, a hearing to determine if it would have
transferred the cause to adult criminal court had it originally been filed in
juvenile court in accordance with current law. If the juvenile court

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determines it would not have transferred the cause to criminal court under
current law, it shall treat defendant’s convictions as juvenile adjudications as
of the date defendant was convicted and impose an appropriate disposition
within its usual timeframe. 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 new sentence.

_________________________
BROWN, J.

WE CONCUR:

_________________________
POLLAK, P. J.

_________________________
STREETER, J.

People v. Lopez (A158840)

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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. John W. Kennedy

Counsel:

Waldemar Halka, under appointment by the Court of Appeal, for Defendant
and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Seth K. Schalt, Bridget Billeter, Deputy Attorneys General for Plaintiff and
Respondent.

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