P. v. Hwang

Filed 1/29/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B301972

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA048652)
v.

VINCENT HWANG,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Steven D. Blades, Judge. Reversed with
directions.
Juvenile Innocence and Fair Sentencing Clinic, Loyola Law
School and Christopher Hawthorne; Panahpour Law and Nilou
Panahpour; Andrues/Podberesky and Vicki I. Podberesky for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Nancy Lii
Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

Defendant Vincent Hwang appeals from the trial court’s
denial of his request to have his case transferred to juvenile court
pursuant to the Public Safety and Rehabilitation Act of 2016
(Proposition 57) and Senate Bill No. 1391. Defendant contends
the trial court erred in concluding that he was not entitled to a
transfer because his criminal judgment was final at the time of
the proposition’s and bill’s passage. We agree and therefore
reverse.

II. BACKGROUND

A. Conviction and Initial Appeal

In October 2001, a jury found defendant guilty of two
counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a));1
assault with a semiautomatic firearm (§ 245, subd. (b)); carrying
a loaded firearm (§ 12031, subd. (a)(1)); possession of an assault
weapon (§ 12280, subd. (b)); possession of a silencer (§ 12520);
possession for sale of a controlled substance (Health & Saf. Code,
§ 11378); possession of ingredients to make a destructive device
(§ 12312); and shooting at an occupied building (§ 246). The jury
also found numerous special allegations to be true, including
allegations that supported the imposition of firearm
enhancements. Defendant committed his crimes on
May 20, 2000, when he was 15 years old. He was arrested within

1 Further statutory references are to the Penal Code unless
otherwise indicated.

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five days of his crimes. (People v. Hwang (Jan. 23, 2003,
B156960) [nonpub. opn.].)
The trial court sentenced defendant to 74 years to life in
prison. On January 23, 2003, this court affirmed the judgment.
(People v. Hwang, supra, B156960.) Our Supreme Court denied
defendant’s petition for review on April 9, 2003.

B. Section 1170, Subdivision (d) Petition

On August 27, 2018, the trial court received a letter from
the Secretary of the California Department of Corrections and
Rehabilitation (Department) recommending that defendant’s
sentence be recalled and he be resentenced pursuant to section
1170, subdivision (d) because his sentence might be unlawful
under People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez).
On April 9, 2019, defendant filed a “MOTION TO MODIFY
SENTENCE/STRIKE ALLEGATION PURSUANT TO
[Rodriguez] and MOTION FOR RECONSIDERATION.”
Defendant contended that he was entitled to a resentencing
hearing and the benefit of Senate Bill No. 620, which gave the
sentencing court discretion to strike defendant’s firearm
enhancements. He also argued that he was entitled to a transfer
hearing in the juvenile court pursuant to Proposition 57 and
Senate Bill No. 1391.
On June 6, 2019, the Los Angeles County District Attorney
(District Attorney) filed an opposition. The District Attorney
conceded that it was likely defendant was entitled to the benefit
of Senate Bill No. 620, but recommended that the trial court
structure defendant’s sentence so he still received a term of 74
years to life. The District Attorney also argued that defendant

3
was not entitled to relief under Proposition 57 because his
conviction was final on April 9, 2003, long before Proposition 57
was enacted.
On September 25, 2019, the trial court conducted a hearing
pursuant to section 1170, subdivision (d).2 The court stayed the
firearm enhancement on count three, which resulted in a new
sentence of 64 years to life. The court rejected defendant’s other
arguments, stating: “You know, you’ve got a life sentence. I can’t
do anything about that . . . .” Defendant timely appealed.

III. DISCUSSION

A. Applicable Law

1. Proposition 57 and Senate Bill No. 1391

On November 8, 2016, the electorate passed Proposition 57,
which amended Welfare and Institutions Code section 707. Prior
to the passage of Proposition 57, “prosecutors were permitted,
and sometimes required, to file charges against a juvenile
directly in criminal court, where the juvenile would be treated as

2 Because the judge who presided over defendant’s trial had
retired, the matter was heard by a different judge.
On March 28, 2019, defendant filed a petition for writ of
habeas corpus. Defendant argued, among other things, that he
was entitled to a hearing pursuant to People v. Franklin (2016)
63 Cal.4th 261 (Franklin). The trial court granted the petition at
the September 25, 2019, hearing. The court had not yet
conducted the Franklin hearing by the time defendant filed his
notice of appeal. (See People v. Lizarraga (2020) 56 Cal.App.5th
201, 204 [Franklin hearing does not affect finality of judgment].)

4
an adult.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
304–305 (Lara).) Proposition 57, however, eliminated the ability
of prosecutors to file charges against juveniles directly in a court
of criminal jurisdiction (adult court). (Id. at p. 305.) Under
Proposition 57, “‘[c]ertain categories of minors . . . can still be
tried in [adult court], but only after a juvenile court judge
conducts a transfer hearing to consider various factors.’”3 (Id. at
p. 306.)
More recently, the Legislature amended Proposition 57
with Senate Bill No. 1391 (Stats. 2018, ch. 1012, § 1, eff.
Jan. 1, 2019),4 which “eliminated prosecutors’ ability to seek
transfer of 14[-] and 15[-]year[-]olds from juvenile court to
criminal court unless the minor is ‘not apprehended prior to the
end of juvenile court jurisdiction.’” (People v. Superior Court
(S.L.) (2019) 40 Cal.App.5th 114, 119.) Specifically, Welfare and
Institutions Code section 707, subdivision (a)(2) provides, “In any
case in which an individual is alleged to be a person described in
[Welfare and Institutions Code s]ection 602 by reason of the
violation, when he or she was 14 or 15 years of age, of any offense

3 The crimes for which a 14- or 15-year-old can be tried in
adult court include attempted murder and assault with a firearm.
(Welf. & Inst. Code, § 707, subd. (b)(12) & (13).)

4 There is a split of authority regarding the constitutionality
of this amendment. (Compare O.G. v. Superior Court (2019) 40
Cal.App.5th 626, 629, review granted Nov. 26, 2019, S259011
[finding Senate Bill No. 1391 unconstitutional] with People v.
Superior Court (T.D.) (2019) 38 Cal.App.5th 360, 364–365, review
granted Nov. 26, 2019, S257980 [finding Senate Bill No. 1391
constitutional].) For purposes of this appeal, the Attorney
General concedes that Senate Bill No. 1391 is constitutional.

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listed in subdivision (b), but was not apprehended prior to the
end of juvenile court jurisdiction, the district attorney or other
appropriate prosecuting officer may make a motion to transfer
the individual from juvenile court to a court of criminal
jurisdiction.”

2. Section 1170, subdivision (d)(1)

At the time the Department sent its August 27, 2018,
recommendation, section 1170, subdivision (d)(1)5 provided in
pertinent part: “When a defendant subject to this section or
subdivision (b) of [s]ection 1168 has been sentenced to be
imprisoned in the state prison . . . and has been committed to the
custody of the secretary . . . , the court may . . . at any time upon
the recommendation of the secretary or the Board of Parole
Hearings in the case of state prison inmates . . . , recall the
sentence and commitment previously ordered and resentence the
defendant in the same manner as if he or she had not previously
been sentenced, provided the new sentence, if any, is no greater
than the initial sentence.” (Stats. 2018, ch. 36, § 17.)

5 Section 1170, subdivision (d) was subsequently amended
twice. (Stats. 2018, ch. 1001, § 1; Stats. 2020, ch. 29, § 14.)
Those amendments do not affect our analysis.

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B. Analysis

1. Retroactivity of Proposition 57 and Senate Bill
No. 1391

“‘The Legislature ordinarily makes laws that will apply to
events that will occur in the future. Accordingly, there is a
presumption that laws apply prospectively rather than
retroactively. But this presumption against retroactivity is a
canon of statutory interpretation rather than a constitutional
mandate. [Citation.] Therefore, the Legislature can ordinarily
enact laws that apply retroactively, either explicitly or by
implication. [Citation.] In order to determine if a law is meant to
apply retroactively, the role of a court is to determine the intent
of the Legislature, or in the case of a ballot measure, the intent of
the electorate.’” (Lara, supra, 4 Cal.5th at p. 307; People v.
Padilla (2020) 50 Cal.App.5th 244, 250–251.) Our Supreme
Court applies the doctrine of In re Estrada (1965) 63 Cal.2d 740
(Estrada), to determine retroactivity in criminal law: “‘The
Estrada rule rests on an inference that, in the absence of
contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that
are final and sentences that are not.’” (Lara, supra, 4 Cal.5th at
p. 308.)
Applying Estrada, our Supreme Court has concluded that
Proposition 57 is retroactive: “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,

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Proposition 57 reduces the possible punishment for a class of
persons, namely juveniles. For this reason, Estrada’s inference of
retroactivity applies. As nothing in Proposition 57’s text or ballot
materials rebuts this inference, we conclude this part of
Proposition 57 applies to all juveniles charged directly in adult
court whose judgment was not final at the time it was enacted.”
(Lara, supra, 4 Cal.5th at pp. 303–304.) Thus, if defendant’s
judgment was not final when Proposition 57 was enacted, he is
entitled to the retroactive application of that proposition.
Senate Bill No. 1391 effectively broadens the ameliorative
benefit of Proposition 57 to 14- and 15-year-olds by prohibiting
prosecuting attorneys from moving to transfer individuals who
commit certain offenses when they were 14 or 15 years old to
adult court, unless they were “not apprehended prior to the end
of juvenile court jurisdiction.” (Welf. & Inst. Code, § 707, subd.
(a)(2).) Such ameliorative changes to criminal law are entitled to
broad application. (Cf. Lara, supra, 4 Cal.5th at p. 309
[“Proposition 57 is an ‘ameliorative change[ ] to the criminal law’
that we infer the legislative body intended ‘to extend as broadly
as possible’”].) Accordingly, Senate Bill No. 1391 applies
retroactively to defendants whose judgments are not yet final.
That this defendant is now over 25 years old does not
change our conclusion that he is entitled to the retroactive benefit
of Welfare and Institutions section 707, subdivision (a)(2), if his
conviction was not final when Senate Bill No. 1391 was enacted.
(See Welf. & Inst. Code, § 607 [juvenile court jurisdiction
generally ends at age 25 at the latest]; K.C. v. Superior Court
(2018) 24 Cal.App.5th 1001, 1011.) We disagree with the
dissent’s view that Welfare and Institutions Code section 707,
subdivision (a)(2)’s language excluding those juveniles who were

8
“not apprehended prior to the end of juvenile court jurisdiction”
from Senate Bill No. 1391’s ameliorative benefit suggests a
legislative intent to allow prosecutors to make transfer motions
for defendants such as the instant defendant. Here, defendant
was apprehended when he was still 15 years old and therefore
Welfare and Institutions Code section 707, subdivision (a)(2)’s
exclusion, by its plain terms, does not apply to him. (See People
v. Maultsby (2012) 53 Cal.4th 296, 299 [“In interpreting a statute
to ascertain the Legislature’s intent, we give the words their
usual and ordinary meaning. The statute’s plain language
controls unless its words are ambiguous”].)
Further, in our view, the legislative history of Senate Bill
No. 1391 does not support the dissent’s conclusion that the
Legislature must have impliedly intended to exclude defendant
from the bill’s ameliorative benefit. Indeed, the legislative
history does not specify why the “not apprehended” clause was
included in Welfare and Institutions Code section 707,
subdivision (a)(2). Moreover, nothing in the legislative history of
Senate Bill No. 1391 rebuts the Estrada inference of
retroactivity. Although the dissent correctly notes that one
purpose of Senate Bill No. 1391 is to rehabilitate 14- and 15-year-
old offenders in the juvenile justice system, another purpose of
that bill is to acknowledge the lesser culpability of these youthful
offenders. According to the author of Senate Bill No. 1391:
“Currently, in California, youth ages 14 and 15 who commit
crimes can be tried as adults and sentenced to adult prison. This
practice was started in the 90’s, a time in California history
where the state was getting ‘tough on crime,’ but not smart on
crime. Back then, society believed that young people were fully
developed at around age 14. Now, research has debunked that

9
myth and cognitive science has proven that children and youth
who commit crimes are very capable of change.” (Sen. Com. on
Public Safety, 3d reading analysis of Sen. Bill No. 1391 (2017–
2018 Reg. Sess.) as amended Aug. 20, 2018, pp. 3–4.) Thus, in
addition to emphasizing rehabilitation, Senate Bill No. 1391
furthers the intent of Proposition 57 “by narrowing the class of
minors who would be subject to a lengthy prison sentence in an
adult institution.” (People v. Superior Court (Alexander C.)
(2019) 34 Cal.App.5th 994, 1002 (Alexander C.); see also People v.
Superior Court (K.L.) (2019) 36 Cal.App.5th 529, 541 [“[Senate
Bill No.] 1391 furthers the stated purpose and intent of
Proposition 57 to have fewer youths removed from the juvenile
justice system”].) Although defendant here may no longer receive
rehabilitation in the juvenile justice system, he could receive the
benefit of a lesser sentence based on his lesser culpability when
he committed his crimes as a 15-year-old.

2. Effect of Resentencing Under Section 1170,
subdivision (d)(1)

As we discuss above, both Proposition 57 and Senate Bill
No. 1391 apply to judgments that were not final at the time of
their enactment. Here, defendant’s judgment was final in 2003,
when the California Supreme Court denied review of his initial
appeal. We therefore next consider whether the court’s
resentencing of defendant pursuant to section 1170, subdivision
(d) reopened the finality of that judgment, which is an issue of
statutory interpretation that we review de novo. (People v. Smith
(2019) 35 Cal.App.5th 399, 403.)

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 We disagree with the Attorney General’s position that
finality, for purposes of retroactive application of ameliorative
changes to the law, is limited to cases that are “not yet final on a
first appeal.” “‘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 (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.” (People v. Lopez (2020) 56
Cal.App.5th 835, 845; contra, People v. Federico (2020) 50
Cal.App.5th 318, 328, review granted Aug. 26, 2020, S263082
[finding resentencing under § 1170, subd. (d)(1) does not reopen
finality of original sentence].) Accordingly, defendant is entitled
to the ameliorative benefits of Proposition 57 and Senate Bill No.
1391, as stated in Welfare and Institutions Code section 707,
subdivision (a). Because defendant’s judgment is no longer final
on appeal, he is also entitled to the ameliorative benefit of Senate
Bill No. 620, as stated in section 12022.53, subdivision (h).
(People v. Robbins (2018) 19 Cal.App.5th 660, 678–679; People v.
Woods (2018) 19 Cal.App.5th 1080, 1090–1091.)
The appropriate remedy is a remand to the trial court with
directions for the matter to be transferred to the juvenile court
for a juvenile adjudication. (See Lara, supra, 4 Cal.5th at p. 310

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[if juvenile court does not transfer the case to adult court, then
juvenile court “‘shall treat [the defendant’s] convictions as
juvenile adjudications and impose an appropriate “disposition”
within its discretion’”].)6

6 We observe that our opinion does not require defendant’s
automatic release from custody. Under Welfare and Institutions
Code section 607, subdivision (g)(2), “A person who, at the time of
adjudication of a crime or crimes, would, in criminal court, have
faced an aggregate sentence of seven years or more, shall be
discharged upon the expiration of a two-year period of control, or
when the person attains 25 years of age, whichever occurs later,
unless an order for further detention has been made by the
committing court pursuant to Article 6 (commencing with
[Welfare and Institutions Code s]ection 1800) of Chapter 1 of
Division 2.5.” Welfare and Institutions Code section 1800,
subdivision (a) permits the Director of the Division of Juvenile
Justice to ask a prosecuting attorney to file a petition for a person
who “would be physically dangerous to the public because of the
person’s mental or physical deficiency, disorder, or abnormality
that causes the person to have serious difficulty controlling his or
her dangerous behavior.” (See also Alexander C., supra, 34
Cal.App.5th at pp. 1001–1002 [“in signing [Senate Bill No.] 1391,
the Governor ‘considered the fact that young people adjudicated
in juvenile court can be held beyond their original sentence’
under [Welfare and Institutions Code] section 1800”].)

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 IV. DISPOSITION

The postjudgment order is reversed. The matter is
remanded to the trial court with directions to transfer the matter
to the juvenile court for a juvenile adjudication consistent with
this opinion.

KIM, J.

I concur:

RUBIN, P. J.

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The People v. Vincent Hwang
B301972

BAKER, J., Concurring in Part and Dissenting in Part

Defendant Vincent Hwang (defendant) committed many
serious crimes: two attempted murders, possession of ingredients
to make a destructive device, possession of an assault weapon—
and that isn’t even the half of it. (The majority catalogs all nine
convictions.) He was 15 years old at the time, but he was tried
and convicted in a court of criminal jurisdiction, often described
colloquially as “adult court.” He was ordered to serve 64 years to
life in prison after correction of an initial sentencing error.
Almost two decades after defendant committed his offenses,
he filed a motion to capitalize on recent changes in juvenile
criminal law implemented by the Public Safety and
Rehabilitation Act of 2016 (Proposition 57) and Senate Bill No.
1391 (2017-2018 Reg. Sess.). Defendant—34 years old by that
time—argued these recent constitutional and statutory changes
applied retroactively to him and required automatic reversal of
all of his criminal convictions merely because they were rendered
in adult court.
The majority embraces this argument in full. That is a
mistake. Defendant is entitled to retroactive Proposition 57
relief, but Senate Bill 1391, by its own terms, is not meant to
apply to someone like defendant who is made the subject of
juvenile court proceedings well past the time at which he would
come under the age threshold for juvenile court jurisdiction. In

1
other words, defendant is entitled to a conditional reversal to
permit a juvenile court judge to decide whether prosecution as an
adult is appropriate, but the Legislature did not intend to
immediately throw open the prison doors for someone his age
without any further process.

I
“‘Historically, a child could be tried in criminal court only
after a judicial determination, before jeopardy attached, that he
or she was unfit to be dealt with under juvenile court law. Since
1975 the procedural requirements for fitness hearings have been
established by [Welfare and Institutions Code] section 707.’
[Citation.] The general rule used to be that ‘any individual less
than 18 years of age who violates the criminal law comes within
the jurisdiction of the juvenile court, which may adjudge such an
individual a ward of the court.’ [Citation.]
“Amendments to former [Welfare and Institutions Code]
sections 602 and 707 in 1999 and 2000, some by initiative,
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.] These provisions were in effect when the prosecution
filed the charges against defendant directly in criminal court.
“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

2
consider various factors such as the minor’s maturity, degree of
criminal sophistication, prior delinquent history, and whether the
minor can be rehabilitated. (Welf. & Inst. Code, § 707, subd.
(a)(1).)’ [Citation.]” (People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 305-306 (Lara).)
I agree Proposition 57’s elimination of prosecutors’ direct
file authority is an ameliorative change that retroactively
benefits defendant because his conviction was not final at the
time of Proposition 57’s enactment. (People v. Lopez (2020) 56
Cal.App.5th 835, 845 [“Because a resentencing under [Penal
Code] 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 [Penal Code]
section 1170, subdivision (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”]; Lara, supra, 4 Cal.5th at 304, 312-313 [Proposition 57’s
elimination of direct file authority “applies to all juveniles
charged directly in adult court whose judgment was not final at
the time it was enacted” and requires a remand for a transfer
hearing].) That means defendant is entitled to a hearing where a
judge would decide whether his prosecution in adult court is
appropriate considering (1) the degree of criminal sophistication
he exhibited, (2) whether he can be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction, (3) his previous
delinquent history, (4) the success of any previous attempts by
the juvenile court to rehabilitate him, and (5) the circumstances
and gravity of the offenses he was found to have committed.
(Welf. & Inst. Code, § 707, subd. (a)(3).)

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 When applied retroactively, the second of the factors just
recited (whether a defendant can be rehabilitated prior to the
expiration of juvenile court jurisdiction) will many times point in
the direction of finding the defendant suitable for prosecution in
adult court. That is because juvenile court jurisdiction expires
when an offender reaches age 25 at the latest (Welf. & Inst. Code,
§ 607; K.C. v. Superior Court (2018) 24 Cal.App.5th 1001, 1011),
and defendants seeking retroactive Proposition 57 relief can be
(as defendant is here) too old to be rehabilitated in the juvenile
court system. But this second factor is not by itself dispositive; a
juvenile court must make a transfer determination considering
all five of the Welfare and Institutions Code section 707,
subdivision (a)(3) criteria. And a defendant may seek review in
this court of any adverse determination the juvenile court might
make.

II
Following the procedure just described is what should
happen in this case. But the majority authorizes defendant’s
immediate release from prison because it believes Senate Bill
1391’s amendments to the Welfare and Institutions Code apply
retroactively to him, just as Proposition 57 does.1 I agree Senate

1 I have some doubt about the majority’s decision to frame
the question as one of retroactivity. Even if we treat the
amendments Senate Bill 1391 made to the Welfare and
Institutions Code (that post-date defendant’s convictions) as
operative when deciding this appeal, there still remains the
question of whether the Welfare and Institutions Code as so
amended benefits defendant. On the other hand, and in fairness,
the question of whether the statutory amendments are
ameliorative as applied to defendant does sound like a

4
Bill 1391 will apply retroactively in many cases and foreclose any
possibility of holding a transfer hearing. But not this case. A key
proviso in the amendments Senate Bill 1391 made to the Welfare
and Institutions Code indicates the Legislature did not intend to
preclude the People from filing a transfer motion for an offender
who was 14 or 15 years old at the time of the offense but has aged
beyond the limits of juvenile court jurisdiction by the time a court
is called to consider whether adult court prosecution is
warranted.
Under current law, Welfare and Institutions Code section
707, subdivision (a)(1) generally permits the People to move to
transfer a minor offender to adult court only when the minor is at
least 16 years old. The statute’s next subdivision, however, was
added to the code by Senate Bill 1391 and functions as an
exception to this general rule. (Welf. & Inst. Code, § 707, subd.
(a)(2) (Subdivision (a)(2)).) Subdivision (a)(2) states, in relevant
part: “In any case in which an individual is alleged to be a person
described in Section 602 by reason of the violation, when he or
she was 14 or 15 years of age, of any offense listed in subdivision
(b), but was not apprehended prior to the end of juvenile court
jurisdiction, the district attorney or other appropriate
prosecuting officer may make a motion to transfer the individual

retroactivity question. (See, e.g., People v. Conley (2016) 63
Cal.4th 646, 657 [“The Estrada rule rests on an inference that, in
the absence of contrary indications, a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as
broadly as possible . . .”] (Conley).) Ultimately, for purposes of
this opinion, I accept the majority’s framing to better highlight
our contrasting views.

5
from juvenile court to a court of criminal jurisdiction. The motion
shall be made prior to the attachment of jeopardy.” (Emphasis
mine.) In other words, even though motions to transfer an
offender to adult court are usually permitted only for offenders
who are at least 16 years old, a transfer motion can still be made
for an offender who was 15 years old at the time of his crime(s) if
the offender is apprehended after he has reached an age that
puts him beyond the reach of juvenile rehabilitation.
As recent retroactivity decisions by our Supreme Court
explain, the presumption that the Legislature intends an
ameliorative penal statute to apply retroactively does not obtain
when there are reliable indications the Legislature has intended
to modify or limit retroactive application. (Conley, supra, 63
Cal.4th at 656-657 [“Our cases do not ‘dictate to legislative
drafters the forms in which laws must be written’ to express an
intent to modify or limit the retroactive effect of an ameliorative
change; rather, they require ‘that the Legislature demonstrate its
intention with sufficient clarity that a reviewing court can
discern and effectuate it’”]; see also People v. Frahs (2020) 9
Cal.5th 618, 628.) The “but was not apprehended prior to the end
of juvenile court jurisdiction” language in Subdivision (a)(2) is
just such a discernable demonstration of intent. This language
indicates the Legislature understood there may be cases where
an offender commits a crime at age 15 but years go by before he
or she can be dealt with by the juvenile justice system. For those
offenders, like defendant, the Legislature determined the People

6
should retain the ability to file a transfer motion because the
offender in question cannot benefit from juvenile rehabilitation.2

2 Legislative committee reports for Senate Bill 1391 are
replete with references to the desire to keep young offenders in
the juvenile justice system so they get the treatment, counseling,
and education to develop into law-abiding adults. (See, e.g., Off.
of Assem. Floor Analyses, 3d reading analyses of Sen. Bill No.
1391 (2017-2018 Reg. Sess.) as amended Aug. 20, 2018, p. 4
[quoting Senate Bill 1391’s author: “The youngest teens in our
justice system need to be held accountable for their actions, but
they also require age-appropriate services and programs to
rehabilitate and grow into healthy, mature adults. Keeping
youth in the juvenile system does not mean they get off with a
slap on the wrist. This bill still maintains that youth who
commit serious crimes deserve punishment. Keeping youth in
the juvenile justice system means they will be punished, but they
will also be required to be in treatment, counseling, and
rehabilitative programming and education”]; see also Sen. Rules
Com., Off. of Sen. Floor Analyses, Sen. Bill No. 1391 (2017-2018
Reg. Sess.), as amended Aug. 20, 2018, p. 2 [noting Assembly
amendments permit a prosecutor to make a motion to transfer a
14 or 15-year-old offender if the individual was not apprehended
prior to the end of juvenile court jurisdiction].) This focus on
treatment and rehabilitation for “youth” well explains why the
language of significance here was included.
The majority nonetheless asserts the legislative history
materials do “not specify why the ‘not apprehended’ clause was
included in Welfare and Institutions Code section 707,
subdivision (a)(2).” (Emphasis in original.) With respect, the
majority does not look hard enough. The “not apprehended”
language is obviously a temporal limitation, and the majority
offers no plausible reason—indeed, no reason at all—why the
Legislature would have been concerned with an offender’s
apprehension date that is different from the conclusion I draw,
namely, the intention not to entirely foreclose adult prosecution

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 I do acknowledge the Legislature, with its use of the word
“apprehended” in Subdivision (a)(2), does not appear to have
foreseen the precise scenario that retroactive application of
Senate Bill 1391 presents in this case. That is understandable;
the most common scenario for application of Subdivision (a)(2)
that would arise in future years is the one the Legislature did
consider: an offender who is arrested years after a crime
committed at a younger age. But the Legislature’s intent in that
scenario and in this one is still the same: an offender who was 14
or 15 at the time of the crime but who cannot benefit from
juvenile justice system treatment by the time he or she is brought
before the juvenile courts can still be an appropriate subject of
adult court prosecution—if the People seek it and a judge
approves.
So it is not enough to hang one’s hat, as the majority does,
on the assertion that the statute says “apprehended” and
someone like defendant is not “apprehended” when his
convictions are reversed retroactively and he is returned to
juvenile court. A legislative body cannot reasonably be expected
to anticipate all possible scenarios that might arise when the law
changes. That is why our Supreme Court has held the
Legislature need only “‘demonstrate its intention with sufficient
clarity that a reviewing court can discern and effectuate it.’”
(Conley, supra, 63 Cal.4th at 657.) The Legislature’s intent to
limit automatic relief for a now 35-year-old felon who cannot

for someone who would have aged beyond the point at which he
or she could benefit from juvenile justice rehabilitative services.

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benefit from juvenile justice system rehabilitation is sufficiently
clear.3
I would accordingly reverse the trial court’s order and
remand for a transfer hearing, if the People so request (and, if
transfer is found appropriate, to give the trial court an
opportunity to consider whether defendant’s firearm
enhancements should be stricken).

BAKER, J.

3 The majority opines a juvenile court could still order
defendant’s continued detention (see generally Welf. & Inst.
Code, § 1800 et seq.). That is a question I need not and do not
decide, but it is clear the majority’s resolution of this appeal
irretrievably wipes out defendant’s prison sentence. That is
automatic relief and, I submit, relief the Legislature did not
intend.

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