Filed 3/28/18; Opinion following rehearing




                        CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                             DIVISION THREE

 THE PEOPLE,

      Plaintiff and Respondent,                          G052282

          v.                                             (Super. Ct. No. 10CF0100)

 ADRIAN RAPHAEL VELA,                                    OPINION

      Defendant and Appellant.


                 Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Judgment conditionally reversed; remanded with directions.
                 Sharon M. Jones and Patricia Ihara, under appointment by the Court of
Appeal, for Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal,
Collette Cavalier, Elizabeth M. Carino and Daniel J. Hilton, Deputy Attorneys General,
for Plaintiff and Respondent.
                                      *            *          *

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of all of part II and subparts A., B., and C. of
part III.
                                               I
                                     INTRODUCTION
              Sixteen-year-old defendant Adrian Raphael Vela and one of his fellow gang
members “hit up” (confronted) two suspected rival gang members. Vela’s accomplice
pulled out a gun and shot the two victims, killing one of them. The prosecutor directly
filed charges against Vela in “adult” criminal court. The jury found Vela guilty of
murder, attempted murder, and found true the related firearm and gang allegations.
              Vela makes several interrelated claims of instructional error concerning
accomplice liability. Vela also raises two constitutional challenges to his 72 years to life
sentence. In the unpublished parts of this opinion, we will find that the trial court
committed no instructional errors. Further, Vela’s sentence does not violate either the
equal protection clause or the Eighth Amendment.
              In the published portion of this opinion, we conditionally reverse the
judgment. Due to the electorate’s recent approval of Proposition 57, which emphasized
juvenile rehabilitation, prosecutors can no longer directly file charges against a minor in
an “adult” criminal court. Only a juvenile court judge can determine whether a minor can
be prosecuted and sentenced as an adult, after conducting a transfer hearing, taking into
account various factors such as the minor’s age, maturity, criminal sophistication, and his
or her likelihood of rehabilitation. We also address the retroactivity of Senate Bill No.
620 (2017-2018 Reg. Sess.) as enacted, which made changes to two firearm sentencing
enhancement statutes, Penal Code sections 12022.5, subdivision (c), and 12022.53,
subdivision (h). (Stats. 2017, ch. 682, §§ 1, 2, eff. Jan. 1, 2018.)
              We find that Vela is retroactively entitled to a transfer hearing because his
case is not yet final on appeal. If, after conducting the hearing, the juvenile court judge
determines that Vela’s case should be transferred to a court of criminal jurisdiction, then
his convictions will be reinstated. The court is then to resentence Vela within the bounds
of its discretion as discussed further within this opinion. But if the juvenile court

                                              2
determines that Vela is amenable to rehabilitation, and should remain within the juvenile
justice system, then his convictions will be deemed juvenile adjudications. The juvenile
court is then to impose an appropriate disposition within its discretion under juvenile
court law.


                                              II
                   FACTUAL AND PROCEDURAL BACKGROUND
              On January 23, 2009, Christopher Ochoa was at Vela’s apartment in
Anaheim. Ochoa and Vela are both members of 7th Street, a relatively small criminal
street gang located in Santa Ana. The gang claims the territory of 6th and 7th Streets and
marks that area with the gang’s graffiti. Seventh Street’s main rival is F-Troop, a gang
that claims the territory that surrounds 7th Street’s turf. Members of 7th Street felt it
important to let people know who was in charge of its neighborhood.
              At around noon, Hector Martinez drove to Vela’s apartment. Martinez was
a long-time associate of the 7th Street gang. Vela and Ochoa asked Martinez to take
them “cruising” to Santa Ana to look for members of F-Troop and to look for rival gang
tagging in 7th Street’s turf. Ochoa wore gloves and indicated he had a gun. Martinez
drove Vela and Ochoa to Santa Ana.
              When they arrived in Santa Ana, Martinez drove around 7th Street’s
territory. As they were cruising the area, they talked about Ochoa’s gun and were
looking for rival gang members and rival graffiti. Vela and Ochoa asked Martinez to stop
because they saw two males (later identified as Martin Herrera and David Frias) whom
they suspected to be rival gang members. Martinez made a U-turn and pulled into the
parking lot of an apartment complex. When Martinez stopped the car, Vela got out and
said that he was going to “hit these guys up.” As Vela walked towards Herrera and Frias,
Martinez backed his car into a parking space so that it was facing towards the street.



                                              3
After about four minutes, Ochoa loaded his gun, concealed it under his clothing, and got
out of the car to check on Vela.
              Martinez stayed in the car and could not clearly see what was going on
because there was a tree blocking his view. But Martinez was able to see some gesturing
as if words were being exchanged between Vela, Ochoa, Herrera, and Frias. During the
confrontation, Vela and Ochoa stood side-by-side, about three feet away from Herrera
and Frias. Ochoa then pulled out his gun and Herrera raised his hands in surrender.
Ochoa shot Herrera in the head, killing him. Ochoa shot Frias in the face.
              Vela and Ochoa immediately ran back to Martinez’s car and got in. Ochoa
was still holding the gun and placed it in his lap. Ochoa told Martinez to hurry up and
leave. In an excited voice, Vela said, “Did you see those fools crying for their life?”
Martinez got on the freeway and headed towards Anaheim. Once they were in Anaheim,
Ochoa leaned out the window and threw the bullets from the gun into a sewer drain on
the side of the street. Martinez drove to a friend of Vela’s house located somewhere in
Anaheim where Vela and Ochoa buried the gun in the backyard.
              Two days later, the police arrested Martinez. A witness had written down
the license plate number of his car and called 911. Initially, Martinez did not tell the
police who was involved in the shooting because he feared retaliation and being labeled a
“rat.” Vela and Ochoa had told him, “Don’t say nothing.” However, about nine months
later, Martinez agreed to testify in exchange for a 13-year sentence.
              The prosecution charged Vela in a three-count information with murder,
attempted murder, and being an active participant in a criminal street gang. (Pen. Code,
§§ 187, 664, subd. (a), 186.22, subd. (a).) The prosecution alleged that the murder and
the attempted murder were committed for the benefit of a criminal street gang, and that
during the commission of the gang-related murder and attempted murder, another
principal intentionally discharged a firearm causing death and great bodily injury. (Pen.
Code, §§ 186.22, subd. (b)(1), 12022.53, subds. (d) & (e)(1).)

                                              4
              A jury found Vela guilty of the charges and found true the allegations.
The trial court sentenced Vela to an aggregate prison term of 72 years to life. The court
imposed 15 years to life for the murder, 7 years for the attempted murder, and two 25-
year-to-life terms for the gang-related firearm enhancements. The court stayed the
sentence on the substantive gang offense. (Pen. Code, § 654.)


                                              III
                                       DISCUSSION
A. Natural and Probable Consequences Jury Instruction Claim
               “We determine whether a jury instruction correctly states the law under the
independent or de novo standard of review. [Citation.] Review of the adequacy of
instructions is based on whether the trial court ‘fully and fairly instructed on the
applicable law.’ [Citation.] ‘“In determining whether error has been committed in giving
or not giving jury instructions, we must consider the instructions as a whole . . . [and]
assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.” [Citation.]’ [Citation.] ‘Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Ramos
(2008) 163 Cal.App.4th 1082, 1088.)
              In California, criminal liability extends not only to direct perpetrators of
crimes, but also to any accomplices. (Pen. Code, § 31.) When a defendant commits a
crime with an accomplice, he is not only directly liable for any crimes he intends to
commit (the target offenses), but he is also vicariously liable for any other crimes
(nontarget offenses) committed by his accomplice that were a natural and probable
consequence of the target offenses. (People v. Olguin (1994) 31 Cal.App.4th 1355.)
              An objective test is used in determining “whether a particular criminal act
was a natural and probable consequence of another criminal act.” (People v. Nguyen

                                              5
(1993) 21 Cal.App.4th 518, 531.) “Consequently, the issue does not turn on the
defendant’s subjective state of mind, but depends upon whether, under all of the
circumstances presented, a reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonably foreseeable consequence of
the act aided and abetted by the defendant.” (Ibid.)
              A trial court properly instructs the jury on the natural and probable
consequences doctrine when there is substantial evidence that a defendant and his
accomplice committed a target offense, and when a jury could reasonably find that the
nontarget offense committed by the defendant’s accomplice was a “‘natural and probable
consequence’” of the target offense. (People v. Prettyman (1996) 14 Cal.4th 248, 269.)
“Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is,
evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12
Cal.4th 186, 201, fn. 8.)
              Here, the trial court instructed the jury using the pattern instruction that
explains the “natural and probable” consequences doctrine. (CALCRIM No. 403.) In
relevant part, the instruction stated: “Before you may decide whether the defendant is
guilty of murder under the natural and probable consequences theory, you must decide
whether he is guilty of Disturbing the Peace by Fighting or Challenging Someone to
Fight. [¶] To prove that the defendant is guilty of murder, the People must prove that:
[¶] 1. The defendant is guilty of Disturbing the Peace; [¶] 2. During the commission of
that crime, a coparticipant in that crime committed the crime of murder; [¶] AND [¶]
3. Under all of the circumstances, a reasonable person in the defendant’s position would
have known that the commission of the Murder was a natural and probable consequence
of the commission of Disturbing the Peace.”
              The trial court also instructed the jury using the pattern instruction that
explained the elements of the target crime of disturbing the peace. (CALCRIM No.
2688.) The instruction stated: “Here is the legal definition of disturbing the peace in

                                              6
violation of Penal Code section 415 (1). [¶] To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully
(fought/ or challenged someone else to fight); [¶] AND [¶] The defendant and the other
person were (in a public place) when (the fight occurred/or the challenge was made).
[¶] Someone commits an act willfully when he does it willingly or on purpose.” The
court further instructed the jury on the elements of the nontarget offenses (second degree
murder and attempted murder). (CALCRIM Nos. 520, 600.)
              Vela contends that: “There was insufficient evidence here to support an
instruction suggesting it was reasonably probable that a hit-up would result in a murder.”
We disagree. Vela and Ochoa, both 7th Street gang members, asked Martinez to drive
them around their gang’s territory to look for rival gang members and rival graffiti.
There was a discussion in the car about Ochoa having a firearm. When two possible rival
gang members were spotted, Vela and Ochoa asked Martinez to stop and before getting
out of the car, Vela said: “I’ll be back, I’m going to go hit these guys up.”
              During the trial, a gang expert testified that: “A ‘hit up’ is when a member
or members of a gang will confront a person or persons and ask them about their gang
affiliation.” He also testified that: “The chances of the probability of a conflict or
violence is very, very high. Anything from being shot, to being beat up with a fist, or
kicked.” He further testified that within the gang subculture, fellow gang members are
expected to provide “back up” and if they have a firearm, they are expected to use it
during a “hit up” or a confrontation. Thus, there was evidence from which a jury could
reasonably find that a murder (the nontarget offense) was a natural probable consequence
of a “hit-up” under these circumstances.
              Vela makes three additional interrelated claims of instructional error based
on the “natural and probable” consequences doctrine. Vela contends that: 1) if the target
offense is a misdemeanor, a murder cannot be the nontarget offense; 2) in such a case, the
nontarget offense is limited to involuntary manslaughter; and 3) the trial court erred by

                                              7
not instructing on involuntary manslaughter. We disagree and shall address each
contention in turn.


              1. A murder can be a probable consequence of a misdemeanor.
              Under the natural and probable consequences doctrine, if the target offense
is a misdemeanor, a murder or an attempted murder may be a natural and probable
consequence based on the particular circumstances. (See, e.g., People v. Medina (2009)
46 Cal.4th 913, 920-921 [target offense was simple assault; nontarget offenses of murder
and attempted murder were natural and probable consequences]; People v. Gonzales
(2001) 87 Cal.App.4th 1, 10-11 (Gonzales) [target offense was simple assault; nontarget
offense of murder was a natural and probable consequence]; People v. Montes (1999) 74
Cal.App.4th 1050, 1055 [target offenses were simple assault and disturbing the peace;
nontarget offense of attempted murder was a natural and probable consequence].)
              Again, Vela contends that if the alleged target offense is a misdemeanor, a
nontarget offense of murder or attempted murder cannot be a natural and probable
consequence. But he cites no cases in support of that proposition. Vela’s argument
appears to be based on improperly conflating the natural and probable consequences
doctrine with the felony-murder rule. While the natural and probable consequences
doctrine concerns the vicarious liability of a defendant for the foreseeable crimes
committed by a coparticipant, the felony-murder rule is an entirely different concept
concerning the classification of crimes themselves (specifically homicide crimes).


              2. The felony-murder rule has no application to this case.
              Generally, in order for a homicide crime to be classified as a murder, the
defendant must have committed the killing with malice. (Pen. Code, § 187.) But under
the felony-murder rule, if a killing occurs during the commission of a designated serious
felony, or during the commission of an inherently dangerous felony, the killing may be

                                             8
classified as either a first or second degree murder, even if the killing occurred
unintentionally without malice. (Pen. Code, § 189; 1 Witkin, Cal. Criminal Law (4th ed.
2012) Crimes Against The Person, § 151, pp. 954-955.) And as a limitation to the
felony-murder rule, if a killing occurs during the commission of an act not amounting to a
felony, the crime can only be designated as an involuntary manslaughter. (Pen. Code,
§ 192, subd. (b).)
              Vela claims that “an unlawful killing in the commission of a misdemeanor
is involuntary manslaughter.” While that is a correct statement of a limitation of the
felony-murder rule, it does not limit the scope of Vela’s accomplice liability under the
natural and probable consequences doctrine. (See People v. Culuko (2000) 78
Cal.App.4th 307, 322 [“The natural and probable consequences doctrine operates
independently of the . . . felony-murder rule”]; see also People v. Chiu (2014) 59 Cal.4th
155, 166 [“An aider and abettor’s liability for murder under the natural and probable
consequences doctrine operates independently of the felony-murder rule”].)
              Here, the trial court instructed the jury on second degree murder with
malice aforethought. Therefore, the jury necessarily found that Ochoa perpetrated the
crimes of murder and attempted murder intentionally with malice aforethought and that
Vela was vicariously liable as an accomplice. The felony-murder rule was simply not at
issue in this case. And, as we shall explain further, the court had no obligation to instruct
on the crime of involuntary manslaughter.


              3. The trial court had no duty to instruct on involuntary manslaughter.
              Generally, involuntary manslaughter is a lesser included offense of murder.
(People v. Thomas (2012) 53 Cal.4th 771, 813.) Unlike murder, which ordinarily
requires malice (Pen. Code, § 187, subd. (a)), involuntary manslaughter is an unlawful
killing without malice that occurs during “the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act which might produce death,

                                              9
in an unlawful manner, or without due caution and circumspection.” (Pen. Code, § 192,
subd. (b).)
              A trial court’s obligation in a criminal case is to “instruct on the general
principles of law relevant to the issues raised by the evidence.” (People v. Earp (1999)
20 Cal.4th 826, 885.) But a trial court has no sua sponte duty to instruct on a lesser
included offense when there is no substantial evidence warranting the instruction.
Substantial evidence in this context is evidence from which a reasonable jury could find
“that the lesser offense, but not the greater, was committed.” (People v. Breverman
(1998) 19 Cal.4th 142, 162.) “If a killing is intentional, no involuntary manslaughter
instructions may be given.” (People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.)
              Here, based on the evidence presented to the jury, Vela and Ochoa asked
Martinez to take them “cruising” to look for rival gang members in their gang’s territory.
During the confrontation, Vela and Ochoa stood side-by-side, about three feet away from
Herrera and Frias. Ochoa pulled out his gun and Herrera raised his hands in surrender.
Ochoa then shot Herrera in the head, killing him. Further, when Ochoa and Vela returned
to the car, Vela said, “Did you see those fools crying for their life?”
              In this case, there was no evidence from which a rational trier of fact could
have found that Ochoa killed Herrera other than intentionally. That is, there was no
evidence supporting an involuntary manslaughter instruction. In sum, the trial court
committed no instructional errors.


B. Equal Protection Claim
              When it has been pleaded and proved that a defendant in the commission of
a murder or an attempted murder personally discharged a firearm causing death or great
bodily injury, the trial court must impose an additional and consecutive sentence of 25
years to life. (Pen. Code, § 12022.53, subds. (a)(1) & (18), (d).) But in circumstances
where the offense was committed for the benefit of a criminal street gang, the court must

                                             10
impose the enhancement not only to those defendants who personally discharge the
firearm, but also as to any aiders and abettors. (Pen. Code, § 12022.53, subds. (d) &
(e)(1).)
              Here, the trial court imposed two consecutive 25-year-to-life sentences
under the gang-related firearm enhancements. (Pen. Code, § 12022.53, subds. (d) &
(e)(1).) Vela contends that the differential treatment of aiders and abettors in gang-
related crimes—as opposed to aiders and abettors in other types of crimes—violates
equal protection principles. We disagree.
              The Constitutions of both the United States and California guarantee equal
protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, Pen. Code, § 7,
subd. (a).) As a threshold matter, to establish an equal protection claim, a defendant must
show “that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530.)
Generally, criminal defendants who commit different crimes are not similarly situated for
equal protection purposes. (People v. Doyle (2013) 220 Cal.App.4th 1251, 1266.)
              Assuming that a defendant is similarly situated to other defendants, the
rational basis test is then applicable to an equal protection claim involving an alleged
sentencing disparity. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 882; see
People v. Vallejo (2013) 214 Cal.App.4th 1033, 1044 [rational basis for distinguishing
those defendants who have discharged a firearm from a vehicle from those who have
not]; People v. Taylor (2001) 93 Cal.App.4th 318, 322-323 [rational basis for
distinguishing those defendants who are armed during an attempted robbery from those
who are not].) The challenged sentencing law will not be declared unconstitutional if the
classification bears a rational relationship to a legitimate state purpose. (People v.
Descano (2016) 245 Cal.App.4th 175, 181-182.)
              As Vela acknowledges, two other appellate courts have rejected identical
equal protection challenges to the gang-related firearm enhancement in section 12022.53.

                                             11
(Gonzales, supra, 87 Cal.App.4th pp. 12-13; People v. Hernandez (2005) 134
Cal.App.4th 474, 480-483 (Hernandez ).) The court in Gonzales held that the additional
punishment of aiders and abettors in gang-related firearm cases did not result in
constitutionally infirm “disparate treatment.” (Gonzales, supra, 87 Cal.App.4th at p. 15.)
Similarly, the court in Hernandez concluded: “Clearly the Legislature had a rational
basis for imposing a 25-year-to-life enhancement on one who aids and abets a gang-
related murder in which the perpetrator uses a gun, regardless of the relationship between
the aider and abettor and the perpetrator. As we previously observed, the purpose of this
enhancement is to reduce through punishment and deterrence ‘the serious threats posed to
the citizens of California by gang members using firearms.’” (Hernandez, supra, 134
Cal.App.4th at p. 483, fn. omitted.)
              We agree with the reasoning of Gonzales and Hernandez and find no merit
to defendant’s equal protection claim.


C. Cruel and Unusual Punishment Claim
              In recent years, the interpretation of the Eighth Amendment’s prohibition
against cruel and unusual punishments, particularly as it relates to the sentencing of
juvenile offenders, has evolved. A juvenile cannot be sentenced to capital punishment
for any crime. (Roper v. Simmons (2005) 543 U.S. 551, 578-579.) A juvenile cannot be
sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense.
(Graham v. Florida (2010) 560 U.S. 48, 74-75.) A juvenile cannot be sentenced to a
term of years with a parole eligibility date that falls outside the juvenile’s natural life
expectancy (de facto life) for a nonhomicide offense. (People v. Caballero (2012) 55
Cal.4th 262, 268.) And a juvenile cannot be sentenced to mandatory LWOP even for a
homicide offense. (Miller v. Alabama (2012) 567 U.S. 460, 469-470.) An LWOP
sentence for a juvenile who commits a homicide offense is allowable only if the court
considers the “‘mitigating qualities of youth’” and limits “this harshest possible penalty”

                                              12
to those “‘rare juvenile offender[s] whose crime[s] reflect[] irreparable corruption.’” (Id.
at pp. 476, 489, 479-480.)
              In 2013, in response to these transformations in constitutional law, the
California Legislature passed Senate Bill No. 260, which changed parole eligibility and
parole considerations for youthful offenders. (Pen. Code, §§ 3051, 4801, subd. (c).) The
current version of Penal Code section 3051, subdivision (a)(1), provides that: “A youth
offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of
reviewing the parole suitability of any prisoner who was under 23 years of age at the time
of his or her controlling offense.” Juveniles sentenced to an indeterminate base term of
25 years to life will receive a hearing during their 25th year of incarceration. (Pen. Code,
§ 3051, subd. (b)(3).) The youth offender parole hearing “shall provide for a meaningful
opportunity to obtain release.” (Pen. Code, § 3051, subd. (e).) The Board of Parole
Hearings “shall take into consideration the diminished culpability of juveniles as
compared to that of adults, the hallmark features of youth, and any subsequent growth
and increased maturity of the individual.” (Pen. Code, § 3051, subd. (f)(1).)
              Following the initial briefing in this case, the California Supreme Court
clarified the impact of section 3051 on the sentencing of juvenile offenders to lengthy
prison sentences. (People v. Franklin (2016) 63 Cal.4th 261 (Franklin).) In Franklin,
the court explained: “[S]ection 3051 has superseded [the 16-year-old defendant’s]
sentence so that notwithstanding his original term of 50 years to life, he is eligible for a
‘youth offender parole hearing’ during the 25th year of his sentence. Crucially, the
Legislature’s recent enactment also requires the Board not just to consider but to ‘give
great weight to the diminished culpability of juveniles as compared to adults, the
hallmark features of youth, and any subsequent growth and increased maturity of the
prisoner in accordance with relevant case law.’ (Pen. Code, § 4801, subd. (c).)” (Id. at p.
277.)



                                              13
              In Franklin, the court determined that the Legislature did not intend “that
the original sentences of eligible youth offenders would be vacated.” (Franklin, supra,
63 Cal.4th at p. 278.) Rather, the court noted that: “The Legislature has effected this
change by operation of law, with no additional resentencing procedure required.” (Id. at
pp. 278-279.) The court thus concluded that defendant’s constitutional challenge to his
sentence was moot. (Id. at p. 280.) However, the court determined that it was “not clear
whether [the defendant] had sufficient opportunity to put on the record the kinds of
information that sections 3051 and 4801 deem relevant at a youth offender parole
hearing.” (Id. at p. 284.) As such, the court remanded the matter “for the limited purpose
of determining whether [the defendant] was afforded an adequate opportunity to make”
the appropriate record for use in a future youth offender parole hearing. (Id. at pp. 286-
287.)
              Here, we have circumstances very similar to those in Franklin, supra, 63
Cal.4th 261. Vela was 16 years old at the time of his offenses and the trial court imposed
a lengthy aggregate sentence (72 years to life). But in the parties’ supplemental briefs,
they both agree that the holding of Franklin essentially moots Vela’s challenge to his
sentence as a cruel and unusual de facto life sentence under the Eighth Amendment.
              However, even though Vela was sentenced after the effective date of
section 3051, we will remand the matter in light of the clarifications of the statute as
discussed in Franklin, supra, 63 Cal.4th 261. Similar to Franklin, the trial court is
directed to determine whether Vela had an adequate opportunity to make a complete
record of any relevant youth-related characteristics and circumstances at the time of his
offenses. If not, both parties may put on the record any relevant evidence that
demonstrates his “culpability or cognitive maturity, or otherwise bears on the influence of
youth-related factors.” (Id. at p. 284.)




                                             14
D. The Effect of Proposition 57
                Although Vela was 16 years old when he committed these offenses, the
Orange County District Attorney chose to file the charges directly in “adult” or criminal
court. At that time, the district attorney was permitted to do so.
                While this appeal was pending, Proposition 57, also known as “The Public
Safety and Rehabilitation Act of 2016,” became effective. Among other provisions,
Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing
by prosecutors. Certain categories of minors—which would include Vela—can still be
tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to
consider various factors such as the minor’s maturity, degree of criminal sophistication,
prior delinquent history, and whether the minor can be rehabilitated. (Welf. & Inst.
                              1
Code, § 707, subd. (a)(1).)
                After we filed an unpublished opinion affirming the judgment, Vela filed a
petition for rehearing contending that Proposition 57 applies retroactively to his case. (In
re Estrada (1965) 63 Cal.2d 740 (Estrada).) Ordinarily, this court will not address an
issue that has been raised for the first time in a petition for rehearing. (People v. Holford
(2012) 202 Cal.App.4th 758, 759.) However, for good cause we may do so. (Alameda
County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325,
338, fn. 10.) This court granted the petition.
                We hold that: 1) the amendments to the Welfare and Institutions Code that
require a juvenile transfer hearing before a minor may be prosecuted and sentenced in a
criminal court apply retroactively; and 2) the appropriate resolution is a conditional
reversal dependent on the outcome of a juvenile transfer hearing on remand.




1
    Further undesignated statutory references will be to the Welfare and Institutions Code.

                                              15
              1. Proposition 57 applies retroactively.
              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. (Evangelatos v. Superior
Court (1988) 44 Cal.3d 1188, 1224.) Therefore, the Legislature can ordinarily enact laws
that apply retroactively, either explicitly or by implication. (Tapia v. Superior Court
(1991) 53 Cal.3d 282, 311 (dis. opn. of Mosk, J.).) 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. (People v.
Conley (2016) 63 Cal.4th 646, 659.)


              a. The purpose of the juvenile justice system is to rehabilitate minors.
              Before we consider the intent of Proposition 57, a brief discussion of some
of the distinctions between the juvenile justice system and the criminal justice system is
in order. Generally, all of the laws regarding juvenile delinquency proceedings are
included within the Welfare and Institutions Code, while other code sections—primarily
                                       2
the Penal Code—define the offenses. “Significant differences between the juvenile and
adult offender laws underscore their different goals: The former seeks to rehabilitate,
while the latter seeks to punish.” (In re Julian R. (2009) 47 Cal.4th 487, 496.)
              Generally, any person under the age of 18 who is charged with violating a
law is considered a “minor.” (§ 602.) A “juvenile court” is a separate, civil division of
the superior court. (§ 246.) A prosecutor charges a minor with an offense by filing a
juvenile petition, rather than a criminal complaint. (See §§ 653.7, 655.) Minors “admit”

2
 Notably, the presumption against retroactivity is incorporated within the preliminary
provisions of the Penal Code and other code sections, but not within the Welfare and
Institutions Code. (See Pen. Code, § 3; Civil Code, § 3; Code Civ. Proc. § 3.)

                                             16
or “deny” an offense, rather than plead “guilty” or “not guilty.” (§ 702.3.) There are no
“trials,” per se, in juvenile court, rather there is a “jurisdictional hearing” presided over
by a juvenile court judge. (§ 602.) The jurisdictional hearing is equivalent to a “bench
trial” in a criminal court. (See Cal. Rules of Court, rule 5.780.) Although a juvenile
court judge adjudicates alleged law violations, there are no “convictions” in juvenile
court. (§ 203.) Rather, the juvenile court determines—under the familiar beyond the
reasonable doubt standard and under the ordinary rules of evidence—whether the
allegations are “true” and if the minor comes within its jurisdiction. (See § 602 et seq.)
              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. (§ 725.5; In re
Devin J. (1984) 155 Cal.App.3d 1096, 1100.) In the more serious cases, a juvenile court
can “commit” a minor to juvenile hall or to the Division of Juvenile Justice (DJJ),
formerly known as the California Youth Authority (CYA). In order to commit a minor to
the DJJ, the record must show that less restrictive alternatives would be ineffective or
inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) The DJJ, rather than
the court, sets a parole consideration date. DJJ commitments can range from one year or
less for nonserious offenses, and up to seven years for the most serious offenses,
including murder. (See Cal. Code Regs, tit. 15, §4951-4957.) A minor committed to DJJ
must generally be discharged no later than 23 years of age. (§ 607, subd. (f).)


              b. Discretionary direct filing by prosecutors began with Proposition 21.
              Prior to Proposition 57, rather than filing a juvenile petition, a prosecutor
could, for certain offenses, choose to directly file a criminal complaint against a minor 14
years of age or older in criminal court. (Former § 707, subd. (d), repealed by Initiative
Measure (Prop 57, § 4.2, approved Nov. 8, 2016, eff. Nov. 9, 2016.) Discretionary direct
filing was the result of a previous ballot measure, Proposition 21, the Gang Violence and

                                              17
Juvenile Crime Prevention Act of 1998. (Manduley v. Superior Court (2002) 27 Cal.4th
537, 549, 574 (Manduley).) Among other provisions, “Proposition 21 revised the
juvenile court law to broaden the circumstances in which minors 14 years of age and
older can be prosecuted in the criminal division of the superior court, rather than in
juvenile court. [The initiative], authorize[d] specified charges against certain minors to
be filed directly in a court of criminal jurisdiction, without a judicial determination of
unfitness under the juvenile court law.” (Ibid., italics added.) In Manduley, the Supreme
Court upheld Proposition 21 against a variety of challenges to the prosecutor’s
discretionary authority to directly file charges: “The decision to file charges in criminal
court [against a minor] is analogous to a prosecutor’s decision to pursue capital charges
against a defendant.” (Id. at p. 570.)
              Proposition 21 included various findings and declarations, among them:
“While overall crime is declining, juvenile crime has become a larger and more ominous
threat”; “The rehabilitative/treatment juvenile court philosophy was adopted at a time
when most juvenile crime consisted of petty offenses. The juvenile justice system is not
well-equipped to adequately protect the public from violent and repeat serious juvenile
offenders”; “Juvenile court resources are spent disproportionately on violent offenders
with little chance to be rehabilitated”; “Dramatic changes are needed in the way we treat
juvenile criminals . . . if we are to avoid the predicted, unprecedented surge in juvenile
and gang violence.” (Text of Proposition 21
<http://vigarchive.sos.ca.gov/2000/primary/propositions/21text.htm>.)


              c. The express intent of Proposition 57 was to emphasize juvenile
rehabilitation.
              Sixteen years after Proposition 21, the electorate approved Proposition 57,
which repealed both discretionary and mandatory direct filing by prosecutors and
emphasized juvenile rehabilitation. During that time there had been a sea change in

                                              18
penology regarding the relative culpability and rehabilitation possibilities for juvenile
offenders, as reflected in several judicial opinions. (See, e.g., Graham v. Florida (2010)
560 U.S. 48, 67 [a juvenile cannot be sentenced to life without the possibility of parole
(LWOP) for a nonhomicide offense ]; see also Miller v. Alabama (2012) 567 U.S. 460,
469-470 [no more mandatory LWOP sentences for juveniles even for a homicide offense;
there must be a consideration of youth-related factors in sentencing].) In Miller, the
United States Supreme Court took note of the practice of prosecutors directly filing
charges against minors: “The States next argue that courts and prosecutors sufficiently
consider a juvenile defendant’s age, as well as his background and the circumstances of
his crime, when deciding whether to try him as an adult. But this argument ignores that
many States use mandatory transfer systems. In addition, some lodge the decision in the
hands of the prosecutors, rather than courts.” (Id. at p. 463.)
              In order to determine the intent of Proposition 57, we look not only to its
provisions, but we may also look to the ballot materials in support of its passage. (See,
e.g., Robert L. v. Superior Court (2003) 30 Cal.4th 894, 901 [official ballot pamphlet
useful in interpreting voter initiatives].) Here, the ballot pamphlet “supporting
Proposition 57 contains two express purposes related to juvenile offenders: ‘Stop the
revolving door of crime by emphasizing rehabilitation, especially for juveniles’; and
‘Require 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, Public
Safety and Rehabilitation Act of 2016, § 2, p. 141.) In addition, the legislative analysis
supporting Proposition 57 went so far as to state: ‘the only way a youth could be tried in
adult court is if the juvenile court judge in the hearing [under Welfare and Institutions
Code section 707, subdivision (a)] decides to transfer the youth to adult court.’” (People
v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, 776-777, quoting Ballot Pamp., Gen.
Elec. (Nov. 8, 2016) analysis of Prop. 57 by Legis. Analyst, p. 56, disapproved of on
another point of law in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 314.)

                                             19
Proposition 57 also provided that: “This act shall be liberally construed to effectuate its
purposes.” (Ballot Pamp., Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and
Rehabilitation Act of 2016, § 9, p. 146.)
              Thus, while the intent of the electorate in approving Proposition 21 was to
broaden the number of minors subject to adult criminal prosecution, the intent of the
electorate in approving Proposition 57 was precisely the opposite. That is, the intent of
the electorate in approving Proposition 57 was to broaden the number of minors who
could potentially stay within the juvenile justice system, with its primary emphasis on
rehabilitation rather than punishment.


              d. The implied intent of Proposition 57 was to retroactively extend its
emphasis on juvenile rehabilitation to every minor to whom it could constitutionally
apply.
              Although Proposition 57 plainly applies to minors whose charges are filed
after its effective date, we must now determine whether it also applies retroactively. That
is, does the electorate’s express intent to emphasize juvenile rehabilitation extend to
minors—such as Vela—who have been directly filed upon in criminal court by a
prosecutor, but who were not given the benefit of a juvenile transfer hearing, and whose
cases are not yet final on appeal?
              When analyzing questions regarding retroactivity, we look primarily to our
Supreme Court’s opinion in Estrada, supra, 63 Cal.2d 740, for guidance. In Estrada, the
defendant was initially convicted of a drug offense and was committed to a rehabilitation
center. (Id. at pp. 742-743.) Estrada left the center at some point and was later captured
and pleaded guilty to escape without force or violence. (Id. at p. 744.) At the time of his
escape, the punishment for an escape was at least one consecutive year in prison.
Further, there was also a statutory delay in an inmate’s parole eligibility. But in Estrada’s
case, after his escape, but before his conviction, the Legislature amended the applicable

                                             20
statutes. An escape without force or violence was now punishable by imprisonment in
the state prison for a term of not less than six months, nor more than five years, with no
delay in parole eligibility. (Id. at pp. 743-744.)
               The Supreme Court reasoned that Estrada was “entitled to the ameliorating
benefits of the statutes” as they had been amended. (Estrada, supra, 63 Cal.2d at p. 744.)
The Supreme Court recognized “the general rule of construction, coming to us from the
common law, that when there is nothing to indicate a contrary intent in a statute it will be
presumed that the Legislature intended the statute to operate prospectively and not
retroactively. That rule of construction, however, is not a straitjacket. Where the
Legislature has not set forth in so many words what it intended, the rule of construction
should not be followed blindly in complete disregard of factors that may give a clue to
the legislative intent.” (Id. at p. 746.)
               In determining the lawmakers’ intent, the Supreme Court found “one
consideration of paramount importance. It leads inevitably to the conclusion that the
Legislature must have intended, and by necessary implication provided, that the
amendatory statute should prevail. When the Legislature amends a statute so as to lessen
the punishment it has obviously expressly determined that its former penalty was too
severe and that a lighter punishment is proper as punishment for the commission of the
prohibited act. It is an inevitable inference that the Legislature must have intended that
the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply. The amendatory act
imposing the lighter punishment can be applied constitutionally to acts committed before
its passage provided the judgment convicting the defendant of the act is not final. This
intent seems obvious, because to hold otherwise would be to conclude that the
Legislature was motivated by a desire for vengeance, a conclusion not permitted in view
of modern theories of penology.” (Estrada, supra, 63 Cal.2d at pp. 744-745.)



                                              21
                The Supreme Court further explained that: “‘A legislative mitigation of the
penalty for a particular crime represents a legislative judgment that the lesser penalty or
the different treatment is sufficient to meet the legitimate ends of the criminal law.
Nothing is to be gained by imposing the more severe penalty after such a pronouncement;
the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a
desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the
modern rule does, that it was the legislative design that the lighter penalty should be
imposed in all cases that subsequently reach the courts.’” (Estrada, supra, 63 Cal.2d at
pp. 745-746.)
                Here, for a minor accused of a crime, it is a potential “ameliorating benefit”
to have a neutral judge, rather than a district attorney, determine that he or she is unfit for
rehabilitation within the juvenile justice system. While a district attorney has an
obligation to be objective and impartial, the duty of that position is also to act as a
zealous advocate. (People v. Eubanks (1996) 14 Cal.4th 580, 590.) And the impact of
the decision to prosecute a minor in criminal court rather than juvenile court can spell the
difference between a 16-year-old minor such as Vela being sentenced to prison for 72
years to life, or a discharge from the DJJ’s custody at a maximum of 23 years of age.
After the passage of Proposition 57, a juvenile court judge can only make that irrevocable
decision after receiving a probation report and after conducting a full hearing considering
the minor’s prior history, the circumstances of the offense, and several other factors
relating to his or her youth and immaturity. (§ 707, subd. (a).)
                Applying the reasoning of Estrada, we find that by its approval of
Proposition 57, and its rejection of Proposition 21, the electorate has “expressly
determined” that the former system of direct filing was “too severe.” Further, we find an
“inevitable inference” that the electorate “must have intended” that the potential
“ameliorating benefits” of rehabilitation (rather than punishment), which now extend to
every eligible minor, must now also “apply to every case to which it constitutionally

                                              22
could apply.” (Estrada, supra, 63 Cal.2d at pp. 744-746.) As in Estrada, “to hold
otherwise” we would have to conclude that the electorate was motivated “by a desire for
vengeance” against Vela and similarly situated minors. That conclusion would be
directly at odds with the intent of the electorate in its approval of Proposition 57.


              e. The possibility for a minor’s rehabilitation within the juvenile justice
system is analogous to the possible reduction of a criminal defendant’s sentence.
              The Attorney General argues that “Estrada’s retroactivity rule only applies
in the specific situation where the law unambiguously reduces a sentence or liability for a
particular crime.” The Attorney General contends that since Proposition 57 does not
“unambiguously” reduce a sentence for a particular crime, the reasoning of Estrada does
not apply. We disagree.
              We recognize, of course, that we are bound by the opinions of the
California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) However, we do not interpret the holding, or ratio decidendi, of Estrada to be
limited to its particular facts. “The fundamental rule for determining the precedential
force and applicability of a case is to ascertain its true holding or ratio decidendi. The
rule has been summarized as follows: ‘The ratio decidendi is the principle or rule which
constitutes the ground of the decision, and it is this principle or rule which has the effect
of a precedent.’” (Santa Monica Hospital Medical Center v. Superior Court (1988) 203
Cal.App.3d 1026, 1033.) But a close reading of Estrada reveals that the Legislature did
not unambiguously reduce the sentence for Estrada’s particular crime: an escape without
force or violence. (Estrada, supra, 63 Cal.2d at p. 743.)
              Again, in Estrada, the defendant had been convicted of an escape without
force or violence under the then existing version of the escape statute. (Estrada, supra,
63 Cal.2d at p. 743.) On the day of Estrada’s escape, the statute made no distinction
between escapes with force or violence and escapes without force or violence. Every

                                              23
defendant was required to be sentenced to a term of not less than one year in state prison
consecutive to his or her commitment offense and a two-year minimum period for parole
consideration after being returned to custody following an escape. (Ibid.) But prior to
Estrada’s case becoming final, the Legislature amended the escape and parole statutes.
The sentence for an escape with force or violence remained the same. But a sentence for
an escape without force or violence was now “‘imprisonment in the state prison for a
term of not less than six months nor more than five years.’” (Ibid., italics added.) The
Legislature also amended the parole statute to no longer require a minimum period before
parole consideration following an escape. In Estrada’s case, he was being held in custody
because his parole eligibility had been delayed. (Ibid.)
              However, the sentence for Estrada’s particular crime—an escape without
force or violence—was not “unambiguously reduced” by the amendment. That is, after
the Legislature amended the escape statute, a court could still sentence a particular
defendant to a one-year or greater consecutive sentence for a nonviolent escape and still
have remained within the five-year sentencing range. Thus, the actual effect of the
amendment was to create the possibility for a reduction in a defendant’s sentence based
on the discretion of the court and a defendant’s particular circumstances.
              When a change in the law allows a court to exercise its sentencing
discretion more favorably for a particular defendant, the reasoning of Estrada applies.
(People v. Francis (1969) 71 Cal.2d 66, 75-76 (Francis).) In Francis, the defendant had
no prior record of narcotic offenses, but was convicted of possessing “four ‘sandwich bag
packages’” of marijuana. (Id. at pp. 70-71.) The court denied probation and sentenced
the defendant to state prison for one to 10 years. (Id. at p. 75.) “While the instant case
was pending on appeal, [the Health and Safety Code section] was amended to provide for
alternative sentences of imprisonment in the county jail for not more than one year or in
the state prison for one to ten years where no prior narcotics offenses are shown
[citation].” (Ibid.) The Supreme Court applied the reasoning of Estrada, supra, 63

                                             24
Cal.2d 740, and remanded the defendant’s case “to the trial court to reconsider the matter
of probation and sentence.” (Francis, supra, 71 Cal.2d at p. 75.)
              In Francis, the Attorney General argued that Estrada was distinguishable
because the Legislature had not unambiguously reduced the defendant’s sentence; rather,
it had changed the crime from a straight felony to a “wobbler.” (Francis, supra, 71
Cal.2d at p. 76.) The Supreme Court disagreed. “Here, unlike Estrada, the amendment
does not revoke one penalty and provide for a lesser one but rather vests in the trial court
discretion to impose either the same penalty as under the former law or a lesser penalty.”
(Ibid., italics added.) The Supreme Court was persuaded that “the mere fact that the
Legislature changed the offense from a felony to a felony-misdemeanor conceivably
might cause a trial court to impose a county jail term or grant probation in a case where
before the amendment the court denied probation . . . and sentenced the defendant to
prison.” (Id. at p. 77.) Thus, just as it had reasoned four years earlier in Estrada, the
Supreme Court found that there was an “inference” that the Legislature intended the
amendment to “apply to every case” to which it might constitutionally apply “because the
Legislature has determined that the former penalty provisions may have been too severe
in some cases and that the sentencing judge should be given wider latitude in tailoring the
sentence to fit the particular circumstances.” (Id. at p. 76, italics added.)
              Here, the electorate has taken away from prosecutors the discretion to
directly file cases against minors in criminal courts. As a result—similar to the discretion
of a judge to reduce a crime from a felony to a misdemeanor in some cases—a juvenile
court judge can now exercise his or her discretion in some cases and determine that a
minor should remain in the juvenile justice system rather than face prosecution and
sentencing in the criminal courts. For those minors who remain in the juvenile court,
with its primary emphasis on rehabilitation rather than punishment, the potential effect of
that “ameliorating benefit” is analogous to the potential reduction in a criminal
defendant’s sentence as in Estrada and Francis.

                                              25
              Our colleagues in the First District Court of Appeal, Division Four,
addressed Proposition 57 under similar circumstances. (People v. Cervantes (2017) 9
Cal.App.5th 569 (Cervantes), disapproved of in People v. Superior Court (Lara), supra,
                    3
4 Cal.5th 299, 315.) In Cervantes, a 14-year-old defendant had been tried and convicted
in an “adult” criminal court, prior to the passage of Proposition 57, without a “transfer”
or “fitness” hearing. The court reversed eight of the defendant’s 15 convictions.
(Cervantes, supra, 9 Cal.App.5th at p. 570.) The court held that Proposition 57 affords
the defendant an opportunity for a fitness hearing on remand as to any counts to be
retried, but Cervantes did not find that Proposition 57 applies retroactively under
Estrada, supra, 63 Cal.2d 740. Cervantes held that “the Supreme Court has limited
Estrada to statutory changes that mitigate the penalty for a particular offense.”
(Cervantes, supra, 9 Cal.App.5th at p. 600, original capitalization omitted.) We
respectfully disagree. Again, in Francis, supra, 71 Cal.2d at page 76, the Supreme Court
applied the reasoning of Estrada in a situation where a statutory change converted a
crime from a straight felony into a wobbler. That is, in Francis, the Supreme Court
applied the statutory change retroactively, even though did not necessarily mitigate the
penalty for that particular crime for that particular defendant.
              In Cervantes, the court also relied on People v. Brown (2012) 54 Cal.4th
314 (Brown), for the proposition that the reasoning of Estrada, supra, 63 Cal.2d 740,
cannot be extended to any situation other than the reduction of a defendant’s sentence for
a particular offense. (Cervantes, supra, 9 Cal.App.5th at pp. 601-602.) In Brown, the
court held that a statutory change that temporarily increased conduct credits for prisoners
did not apply retroactively. (Brown, supra, 54 Cal.4th at pp. 323-324.) In Brown, the
Supreme Court distinguished Estrada and held that the conduct credits law did “not alter

3
  In People v. Superior Court (Lara), supra, 4 Cal.5th 299, the California Supreme Court
disapproved of People v. Cervantes, supra, 9 Cal.App.5th 569, and held that the juvenile
transfer provisions of Proposition 57 are retroactive to cases not yet final on appeal.

                                             26
the penalty for any crime; a prisoner who earns no conduct credits serves the full
sentence originally imposed. Instead of addressing punishment for past criminal conduct,
the statute addresses future conduct in a custodial setting by providing increased
incentives for good behavior.” (Id. at p. 325.)
              But under Proposition 57, a transfer hearing conducted by a juvenile court
judge does not address future conduct or provide incentives for good behavior as in
Brown. Rather, the potential benefit of a juvenile transfer hearing is that it may, in fact,
dramatically alter a minor’s effective sentence or “juvenile disposition” for past criminal
conduct. Thus, just as the Supreme Court reasoned in Estrada and Francis, we infer that
the electorate intended the possible ameliorating benefits of Proposition 57 to apply to
every minor to whom it may constitutionally apply, including Vela.


              2. Vela is entitled to a juvenile transfer hearing.
              Having found that the statutory amendments under Proposition 57 apply
retroactively, we must now address what should happen with Vela’s judgment. Not
surprisingly, Vela urges that his convictions should be reversed. We disagree. The jury’s
convictions, as well as its true findings as to the sentencing enhancements, will remain in
place. Nothing is to be gained by having a “dispositional hearing,” or effectively a
second trial, in the juvenile court. Vela has already had a jury trial with all the rights
afforded to him in that proceeding; 12 jurors found him guilty beyond a reasonable doubt.
              On the other hand, the Attorney General argues that the failure to provide
Vela with a juvenile transfer hearing constitutes only “harmless error” given the nature of
the charges and the underlying facts of this case. We disagree. This court is not in a
position to evaluate the various factors to be considered at a juvenile transfer hearing
such as Vela’s “physical, mental, and emotional health at the time of the alleged
offenses.” (§ 707, subd. (a)(1)(A)(ii).)



                                              27
              We will seek to strike a middle ground. An appellate court “may, if proper,
remand the cause to the trial court for such further proceedings as may be just under the
circumstances.” (Pen. Code, § 1260.) “A limited remand is appropriate under section
1260 to allow the trial court to resolve one or more factual issues affecting the validity of
the judgment but distinct from the issues submitted to the jury . . . .” (People v. Braxton
(2004) 34 Cal.4th 798, 818-819.) Indeed, a remand with instructions for the lower court
to conduct a limited hearing is not a particularly unusual disposition. (See, e.g., People
v. Lightsey (2012) 54 Cal.4th 668, 674 [remand for hearing concerning defendant’s
competency]; People v. Johnson (2006) 38 Cal.4th 1096, 1097 [remand for hearing
regarding prosecutor’s use of peremptory challenges]; People v. Wycoff (2008) 164
Cal.App.4th 410, 412 [conditional reversal and remand for review of police personnel
records].)
              Here, under these circumstances, Vela’s conviction and sentence are
conditionally reversed and we order the juvenile court to conduct a juvenile transfer
hearing. (§ 707.) When conducting the transfer hearing, the juvenile court shall, to the
extent possible, treat the matter as though the prosecutor had originally filed a juvenile
petition in juvenile court and had then moved to transfer Vela’s cause to a court of
criminal jurisdiction. (§ 707, subd. (a)(1).) If, after conducting the juvenile transfer
hearing, the court determines that it would have transferred Vela to a court of criminal
jurisdiction because he is “not a fit and proper subject to be dealt with under the juvenile
court law,” then Vela’s convictions are to be reinstated. (§ 707.1, subd. (a).) The court is
to resentence Vela consistent within the bounds of its discretion as discussed within the
following section of this opinion. On the other hand, if the juvenile court finds that it
would not have transferred Vela to a court of criminal jurisdiction, then it shall treat
Vela’s convictions as juvenile adjudications and impose an appropriate “disposition”
within its discretion.



                                             28
E. Retroactivity of Senate Bill No. 620
              Prior to January 1, 2018, trial courts did not have authority to dismiss or
strike a firearm sentencing allegation under sections 12022.5 or 12022.53. (Former
§ 12022.5, added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 1,
eff. Jan. 1, 2018; former § 12022.53, added by Stats. 2010, ch. 711, § 5 and amended by
Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.)
              Effective January 1, 2018, the Legislature amended sections 12022.5 and
12022.53 to add the following language: “The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law.”
(§§ 12022.5, subd. (c); 12022.53, subd. (h).)
              Vela contends that the recent amendments to sections 12022.5 and
12022.53 apply retroactively to cases not yet final on appeal. (Estrada, supra, 63 Cal.2d
at pp. 742-748; Francis, supra, 71 Cal.2d. at pp. 75-76.) The Attorney General concedes
the argument and we agree. In short, Senate Bill No. 620 provides an opportunity for
Vela to receive a more lenient sentence; because the judgment is not yet final on appeal,
the same rationale regarding retroactivity applies as in our previous discussion regarding
Proposition 57.
              Here, the jury found true the allegation that during the commission of the
gang-related murder and attempted murder, another principal intentionally discharged a
firearm causing death and great bodily injury. (Pen. Code, §§ 186.22, subd. (b)(1),
12022.53, subds. (d) & (e)(1).) The trial court imposed a mandatory sentence of 25 years
to life. If, on remand, the juvenile court transfers the matter to the criminal court, that
court has the discretion to strike or dismiss the firearm allegation.




                                                 29
                                              IV
                                       DISPOSITION
              The judgment of the criminal court is conditionally reversed. The cause is
remanded to the juvenile court with directions to conduct a transfer hearing as discussed
within this opinion, no later than 90 days from the filing of the remittitur. If, at the
transfer hearing, the juvenile court determines that it would have transferred Vela to a
court of criminal jurisdiction, then the convictions shall be reinstated as of that date. The
criminal court is then directed to conduct a resentencing hearing and a “Franklin hearing”
within 30 days as discussed within the unpublished portion of this opinion.
              If, at the transfer hearing, the juvenile court determines that it would not
have transferred Vela to a court of criminal jurisdiction, then Vela’s criminal convictions
and enhancements will be deemed to be juvenile adjudications as of that date. The
juvenile court is then to conduct a dispositional hearing within its usual time frame.




                                                   MOORE, J.


WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




                                              30
