Filed 5/16/17




                     CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                        F070609
        Plaintiff and Respondent,
                                                             (Super. Ct. No. VCF222534)
                v.

VICTOR ALEXANDER MARQUEZ,                                             OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Tulare County. Gary L.
Paden, Judge.

        Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant
and Appellant.
        Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney
General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, and Stephanie A.
Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
                                            -ooOoo-




        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction,
part 2 of the Discussion, and the Disposition are certified for publication.
                                    INTRODUCTION
       Defendant Victor Alexander Marquez was just four months shy of his 18th
birthday when he brutally murdered Maria Juarez by stabbing and slashing her 19 times
during an attempted robbery. Judge Gerald F. Sevier presided over defendant’s trial and
sentenced him to life without the possibility of parole (LWOP) for special circumstance
murder. While defendant’s original appeal was pending, the United States Supreme
Court decided Miller v. Alabama (2012) 567 U.S. 460 (Miller). Miller held that
mandatory LWOP sentences for juvenile homicide offenders violated the federal
Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. In
defendant’s first appeal, we recognized California does not provide for mandatory LWOP
sentences for minors convicted of murder, and the sentencing court understood this
aspect of its statutory sentencing discretion. Nevertheless, we reversed the judgment and
remanded the matter to the trial court to reconsider defendant’s LWOP sentence after
applying the individualized sentencing criteria set forth in Miller. (People v. Marquez
(June 25, 2013, F063837) [nonpub. opn.].)
       Judge Gary L. Paden conducted the resentencing hearing. After considering the
Miller criteria, Judge Paden again imposed an LWOP sentence. Defendant contends the
trial court misapplied the Miller criteria and argues his sentence constitutes cruel and
unusual punishment under the Eighth Amendment. In supplemental briefing, defendant
contends Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition
57) passed by the voters on November 8, 2016, applies retroactively to his case.
Defendant argues the initiative ended the practice employed here of allowing the
prosecutor to directly file a case involving a juvenile offender in adult criminal court
rather than first conducting a suitability hearing as now required by the amended
provisions of the Welfare and Institutions Code. As we explain in the unpublished
portion of this opinion, the trial court properly evaluated the Miller criteria. In the




                                              2.
published portion, we conclude the suitability hearing provisions of Proposition 57 are
not retroactive.
                                FACTS AND PROCEEDINGS*
Trial and First Sentencing Hearing1
       On September 9, 2009, three months after Maria Juarez was murdered, defendant
was charged in an information as an adult in criminal court pursuant to Welfare and
Institutions Code former section 707, subdivision (d)(1), with first degree murder (Pen.
Code, § 187, subd. (a)) committed during the commission of a robbery (id., § 190.2,
subd. (a)(17)), a special circumstance. The information alleged defendant personally
used a deadly weapon in the commission of his offense (id., § 12022, subd. (b)(1)). This
information was filed five weeks prior to defendant’s 18th birthday.
       On May 5, 2010, the trial court suspended proceedings pursuant to Penal Code
section 1368 to determine defendant’s competency to stand trial. On June 7, 2011, a jury
found defendant competent to stand trial, and the trial court reinstated criminal
proceedings.
       On September 14, 2011, a jury was impaneled. On September 20, 2011, the jury
found defendant guilty as charged. In the first appeal this court noted: “There is no
doubt [defendant] committed the murder. He confessed to the crime, his DNA was found
at the scene as the result of a wound he suffered during the murder, and Juarez’s and
[defendant]’s DNA was found on the murder weapon that was hidden in his bedroom.”
(People v. Marquez, supra, F063837.)
       Defendant then withdrew his previous plea of not guilty by reason of insanity. On
October 19, 2011, the trial court imposed a prison sentence of LWOP.

       *See footnote,   ante, page 1.
       1We have augmented       the record with selected portions of the record of defendant’s trial
and related proceedings from his first appeal, including our opinion in People v. Marquez, supra,
F063837. Both parties requested we take judicial notice of the entire record in the first appeal.
We grant the parties’ motion to take judicial notice of the trial proceedings to the extent they are
relevant to the issues raised in this appeal.

                                                 3.
       In the first appeal we held “[b]ecause Miller had not yet been decided, the trial
court sentenced [defendant] without fully considering the implications of the Eighth
Amendment. Undoubtedly, the trial court considered some of the Miller factors. It is
clear, however, other factors were not considered or were found to have little weight in
the sentencing decision, even though Miller suggests otherwise. For these reasons, we
feel compelled to reverse the judgment and remand the matter for resentencing to satisfy
the constitutional concerns raised by Miller.” (People v. Marquez, supra, F063837.)
       We further advised the trial court: “On remand, the trial court must give thorough
consideration to the Miller factors, many of which readily appear in this record.” (People
v. Marquez, supra, F063837.) These included: (1) the “virtual unanimous conclusion of
the five mental health professionals” that defendant suffered borderline intellectual
functioning, substance abuse, and psychiatric disorders, including posttraumatic stress
disorder, and schizoaffective disorder bipolar type, (2) a long history of psychiatric
treatment and prescribed medication, (3) physical and emotional abuse detailed in
psychiatric evaluations, (4) the motive for the crimes, (5) strong evidence of the
“‘incompetencies associated with youth’” that appear in the record, including (a)
defendant refusing to request the assistance of counsel, (b) defendant providing the only
evidence that allowed the jury to find the special circumstance of robbery to be true, (c)
defendant confronting and refusing to assist his attorney, thereby hampering his defense,
and (d) defendant refusing to attend most of the trial despite the encouragement of the
trial court and counsel to do so, and (6) the possibility of rehabilitation, including
defendant’s remorse, if any, and potential for growth and change. (People v. Marquez,
supra, F063837.)
Probation Officer’s Report from 2014
       Defendant was 22 years old when a new probation report was prepared.
Defendant admitted to the probation officer he was present when Juarez was murdered,
but others were present as well. Defendant declined to say whether he personally stabbed


                                              4.
Juarez. Defendant expressed to the probation officer some insight into the consequences
of his actions, admitting he “‘had it good’” before the crime and subsequent
incarceration. Defendant realized he lost the opportunity to go to college and have a
family life because of the decisions he made. In 2009, defendant had told officers he
confronted Juarez because she had disrespected him a few weeks earlier. Although
defendant regretted the crime, he did not directly admit his own culpability.
       Defendant had three juvenile delinquency adjudications. In 2006, when defendant
was 14 years old, he had a seven-year-old girl staying within the family home orally
copulate him (Pen. Code, § 288a, subd. (b)(1)). In 2008, defendant exposed his erect
penis to a female staff member of a group home (id., § 314, subd. 1). Also in 2008,
defendant was adjudicated for committing battery on a female staff member of a group
home (id., § 242). Defendant was on probation for these offenses when he murdered
Maria Juarez.
       On January 31, 2014, defendant and five other inmates allegedly attacked another
inmate in county jail. Defendant claimed the victim had raped his cousin. The jail victim
required two staples to close the wound on his head. Defendant was charged with felony
assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)),
felony battery with serious bodily injury (id., § 243, subd. (d)), and personal infliction of
great bodily injury (id., § 12022.7, subd. (a)). On March 29, 2014, defendant and another
inmate attacked a third inmate without provocation. Defendant inflicted minor facial
injuries and was charged with misdemeanor battery (id., § 242). A confidential informant
reported defendant was a bully who had stolen canteen items from the victim during a
fight a few months earlier.
       The probation officer’s report also included a discussion of defendant’s
dysfunctional and abusive home environment. Defendant never knew his father.
Defendant and his siblings raised themselves. Defendant’s stepfather molested him and
his older half sisters. Defendant described his home environment as angry, abusive, and


                                              5.
full of drugs and gangs. Juvenile probation reports, however, document that as a minor,
defendant received counseling to address his mental health, sexual abuse, and anger
management issues. Defendant reported he was diagnosed with paranoid schizophrenia,
bipolar disorder, and attention deficit hyperactivity disorder when he was very young.
Defendant was taking psychotropic medication until one month before murdering Juarez.
Defendant told the probation officer he stopped taking his medications against the advice
of medical staff two and one-half years ago.
       When defendant was first interviewed by probation in 2011, he chose not to
comment about his involvement in this offense. However, defendant asked the court for
leniency based on the fact he was only 17 years old when the crime was committed and
he had matured since then. When interviewed on July 1, 2014, defendant expressed
remorse for his decisions, said he was not the only person present during the homicide,
and declined to admit he personally stabbed the victim. Defendant said at age 17, he
could not fully appreciate the ramifications and consequences of his actions.
       In expressly evaluating the Miller criteria and applying them to defendant’s case,
the probation officer noted defendant had little support from his mother, who lacked basic
parenting skills. Defendant’s mother was involved with drugs and dysfunctional
relationships. Defendant quit school in the tenth grade. Defendant’s juvenile
adjudications began with a sex offense perpetrated on a girl only seven years old.
Defendant had other juvenile adjudications and a history of fights while detained as a
juvenile. The probation officer noted the abuse defendant suffered as a child, but
observed defendant still had not expressed remorse or accepted personal responsibility
for killing Juarez.
       The probation officer asked whether defendant “is that rare juvenile described by
the Miller court whose crime and background reflects his or her irreparable corruption.”
The probation officer concluded defendant’s crimes as a juvenile, including the instant
offense, involved a clear pattern of violence against women; his institutional conduct as a


                                               6.
juvenile prior to his conviction also reflected a pattern of violence and open disobedience
of authority figures. Furthermore, defendant was on juvenile probation when he
committed the instant offense. Defendant received counseling to address his mental
health and sexual deviance issues. Despite rehabilitative efforts, defendant continued his
pattern of assaultive behavior and murdered Juarez. The probation officer concluded
defendant was not amenable to rehabilitative services offered to him as a juvenile and
met the threshold of a juvenile who could be given an LWOP sentence under Miller.
Expert Testimony Concerning Defendant’s Mental State
       Physicians and clinical psychologists testified at defendant’s competency trial in
February 2011. A psychiatrist and clinical psychologist testified at defendant’s trial.
Judge Paden read the transcripts of these proceedings in preparation for defendant’s
resentencing hearing. We summarize this testimony as follows.
       Dr. Michael Barnett, a psychiatrist, treated defendant in 1997 and 1998.
Defendant was taking Ritalin, but Dr. Barnett thought he needed a higher dosage.
Dr. Barnett did not initially observe defendant having psychotic or suicidal ideation, but
did find him talkative, hyperactive, and noisy. Two months after first seeing defendant,
Dr. Barnett prescribed the mood stabilizer Depakote to control defendant’s impulsive and
aggressive behavior. Defendant was acting wild and had angry outbursts. Defendant was
hitting his head and pulling out his hair, which could be signs of suicidal ideation.
Dr. Barnett added Imipramine as a medication for defendant’s attention deficit disorder
and increased his dosage of Ritalin.
       Between January 1998 and April 1998, defendant was fighting, manipulating his
parents, and had fears about going to school. Dr. Barnett prescribed Mellaril to decrease
defendant’s hyperactivity and aggressive behavior. Defendant was taken to the
emergency room because he was hurting himself. He was also running into the street
when cars were coming. Defendant was urinating and defecating in his pants. Defendant




                                             7.
reported psychotic symptoms, including hearing voices. Dr. Barnett began a course of
the antipsychotic medication Stelazine and increased the dosage.
       By June 1998, however, Dr. Bartlett was concerned defendant could be having a
severe anxiety problem rather than psychosis. Dr. Bartlett was also concerned
defendant’s mother was doing something to provoke the psychotic symptoms.
Dr. Barnett thought something may have been happening to cause defendant to regress.
In August 1998, Dr. Bartlett prescribed defendant Seroquel, another antipsychotic. In
November 1998, defendant again presented psychotic symptoms, such as hearing voices,
and he pulled a knife on his sister. Dr. Barnett prescribed Zyprexa for defendant. In
December 1998, Dr. Barnett found defendant was sleeping better and was going to school
two hours a day; he denied any psychotic symptoms. Dr. Barnett explained people with
psychosis can require medication their entire lives; without treatment, their symptoms
could recur.
       Dr. Ari Kalechstein, a licensed psychologist with specialized training in
neuropsychology and forensic psychology, testified as a defense expert. Dr. Kalechstein
met defendant twice and administered multiple tests to evaluate his competency to stand
trial. Dr. Kalechstein found defendant’s overall IQ was 70, which was in the
intellectually impaired range, and his verbal skills were 74, in the borderline impaired
range. Defendant had the English language skills of a fourth grader. Dr. Kalechstein
found impairment in defendant’s ability to understand and appreciate his circumstances
as related to his case. Defendant tested in the low range for ability to remember verbally
presented material and the low average range for long-term memory.
       Dr. Kalechstein disagreed with another doctor who had found defendant was
malingering. Dr. Kalechstein found defendant had a history of mental illness predating
the case. Dr. Kalechstein thought defendant suffered one or two traumatic brain injuries
as a little boy. Dr. Kalechstein concluded defendant was developmentally disabled and
unable to retain information in a mainstream learning environment. Dr. Kalechstein did


                                             8.
not believe use of drugs and alcohol contributed to defendant’s developmental disability
or his low IQ.
       Forensic and clinical psychologist Dr. Richard Kendall was appointed by the court
to evaluate defendant’s competency to stand trial. During his entire evaluation of
defendant, Dr. Kendall did not detect any evidence of disorganized thinking or gross
cognitive impairments. Dr. Kendall observed no delusions or hallucinations by
defendant. Defendant did not present himself as someone with a bona fide serious
psychotic illness. Dr. Kendall believed defendant was malingering and did not believe
defendant’s description of visual hallucinations was sincere. Furthermore, defendant had
a history of substance abuse, including use of alcohol, marijuana, methamphetamine,
cocaine, and Ecstasy. According to Dr. Kendall, it was not uncommon for individuals
using these drugs to have brief periods where they experience auditory and visual
hallucinations.
       Dr. Kendall reviewed Dr. Kalechstein’s report and noted that even with a low IQ,
defendant was not necessarily incompetent to stand trial. Defendant was twice admitted
to hospitals, once in 2001 and again in 2003, for mental health commitments.
Dr. Kendall agreed defendant had a significant history of being treated for mental illness
but still concluded defendant was “attempting to malinger psychiatric impairment”
because he displayed no psychiatric impairment during his evaluation.
       Dr. Richard Berkson, a staff psychiatrist at Corcoran State Prison, was also
appointed to evaluate defendant’s competency to stand trial and testified not at the sanity
hearing but at defendant’s trial. Dr. Berkson evaluated defendant in April 2011, when he
was 19 years old. Dr. Berkson acknowledged defendant had volunteered he was severely
abused as a child and had a history of psychiatric treatment that included hospitalization.
       During his evaluation of defendant, Dr. Berkson asked him if it would be more
advantageous for defendant to be found competent or incompetent. Rather than answer
the question, defendant walked out of the evaluation. Although Dr. Berkson did not


                                             9.
complete a full history and mental status examination, he evaluated defendant for 45
minutes and believed he had enough information to form an opinion of defendant’s
competency to stand trial. Dr. Berkson found defendant to be of average intelligence and
able to respond appropriately to his questions. Defendant understood the nature of the
proceedings against him, the consequences of a guilty verdict, and the roles of
participants in criminal proceedings. Defendant had the ability to cooperate with his
counsel in a rational manner. Dr. Berkson concluded defendant was competent to stand
trial.
         Dr. Berkson found defendant’s description of auditory hallucinations credible, but
not his description of visual hallucinations. Defendant’s description of a sudden onset
and then a cessation of hallucinations is not what happens to patients clinically.
Dr. Berkson believed defendant was exaggerating his hallucinations to the point of being
dishonest.
         Defendant told Dr. Berkson he was not responsible for the crime because he could
not remember anything. Although defendant did not know if he committed murder, if he
had done so, it was because his doctor had taken him off his medications. Defendant also
blamed his actions on his mental health disorder, his lack of medications, and his
molestation as a child. Defendant repeatedly wanted to talk about the crime. It appeared
to Dr. Berkson that defendant wanted to present himself as not guilty by reason of
insanity. Dr. Berkson could find no evidence defendant suffered from a psychosis.
         Dr. Berkson observed signs of a borderline personality disorder with antisocial
features. Dr. Berkson thought defendant had some delusional thinking. Dr. Berkson
found defendant had extremely limited insight and blamed others for his illness or his
own actions. Dr. Berkson found this history consistent with posttraumatic stress disorder,
which explained defendant’s emotional numbing, nightmares, disturbed sleep, and
hyperactivity. Dr. Berkson found no clear evidence defendant was developmentally




                                             10.
disabled. During the evaluation process, Dr. Berkson found defendant’s thought process
to be logical and coherent.
       Dr. Yoseph Geshuri, a clinical psychologist, testified for the defense. Dr. Geshuri
was asked to assume a person had experienced physical or emotional abuse and had
developed anxiety or suicidal thoughts. Dr. Geshuri explained it would not be
inconsistent for a person like that who also abused drugs and alcohol to experience a
blackout in a stressful situation. Defendant’s description of the murder was the type of
stressful situation that might cause a blackout.
Resentencing Hearing
       At the beginning of the resentencing hearing on October 22, 2014, defendant told
Judge Paden he had asked his attorney not to present any further evidence because “you
really can’t defend undefendible [sic], … you can’t justif[y] unjustifiable.” Defendant
apologized for “everything” he had done. Defendant said he knew he hurt the family but
had been intent on holding onto his anger to protect himself. Defendant explained to the
court he intended to waive his right to appeal, accept responsibility for his actions, and
“accept the sentence as handed down as justifiable.” Defendant said he was “at peace”
with his decision, and Juarez’s “family need[ed] justice.” Defense counsel stated he
would “respect my client’s wishes, and I’m going to submit.”
       Prior to imposing its sentence, the court discussed the factors that informed its
decision to resentence defendant to LWOP, noting a “huge, huge factor” in its sentencing
decision was defendant’s prospect for rehabilitation. The court observed that since
defendant had been returned to county jail, he had three new assault cases at the jail, one
felony and two misdemeanors. The court found defendant was continuing a pattern of
violent, aggressive behavior, and it appeared defendant failed to show rehabilitation,
which was a major factor to the court. The court also discussed the testimony of the
mental health experts who testified at defendant’s competency trial and at trial. The court
recognized there was no question defendant “grew up in a … troubled and very difficult


                                             11.
childhood.” The court cited Dr. Barnett’s testimony as providing evidence defendant had
taken antipsychotic medications while growing up, and defendant had “anger issues,
antisocial behavior from a very early age.”
       The court found Dr. Kalechstein’s opinion helpful because it provided evidence
defendant had some impairments regarding intellectual capacity, which reduced his
reasoning and understanding. Dr. Kalechstein also testified defendant had a serious
mental illness and was developmentally disabled with a borderline impaired IQ.
Dr. Kalechstein, however, disagreed with other doctors who testified defendant was
malingering.
       The court found Dr. Kendall’s testimony informative based on defendant’s
description of his involvement in the crime. Defendant told Dr. Kendall he did not
commit the crime, he was innocent, somebody else did it, and defendant tried to stop the
crime. The court also noted Dr. Kendall testified defendant “could be malingering,” and
he did not believe defendant suffered from psychosis.
       The court contrasted what defendant told Dr. Kendall about his involvement in
Juarez’s murder with what he told Dr. Berkson about his involvement. Defendant told
Dr. Berkson he had no recollection of the attack, but if he did kill Juarez, it was because
he had been taken off his medication and Juarez had disrespected him. The court noted
defendant told three different stories about the murder: first, he did not murder Juarez;
second, he had no recollection of the murder; and third, if he did commit murder, it was
because the doctor had taken him off his medication. The court observed, “I don’t find
that the defendant—until today—has ever acknowledged his culpability or shown any
remorse.”
       The court also found Dr. Berkson’s testimony helpful because he explained
defendant had a ready excuse to blame others and wash his hands of responsibility. The
court explained Dr. Berkson’s testimony was also helpful in understanding defendant’s
past history in terms of his problems and the fact defendant was also a victim of an


                                              12.
assault as a child. The court considered this significant. The court noted both
Drs. Berkson and Kendall believed defendant was not honest in describing his psychiatric
symptoms.
       The court found Dr. Geshuri’s testimony concerning how stress can cause a
blackout to be of little help in his sentencing decision. The court discussed defendant’s
possible motive for the crime, noting, “The defendant was alone. There was no peer
pressure. There’s indications that the defendant felt that the woman had disrespected him
and, therefore, it was a retaliation type crime.” The court also found the facts indicated
planning. The court described the nature of the murder as “horrific.”
       The court noted prior attempts by the juvenile court system to rehabilitate
defendant had been unsuccessful, even with medication. The court found defendant had
been “aggressive against women on … prior occasions” based on his felony oral
copulation of a minor as well as his violations for indecent exposure and battery
involving female staff at a group home. The court recognized it had discretion under
Miller to sentence defendant to LWOP or 25 years to life.
       The court stated defendant was 17 years old when he committed this offense.
Considering his maturity or lack thereof, the court considered (1) defendant’s failure to
appreciate the risks and the consequences of his actions, (2) defendant’s family and home
environment, (3) defendant’s participation in the murder, and (4) defendant’s
rehabilitation. The court found the recent assaults in the jail to be significant in
demonstrating whether defendant had the capacity to change and to overcome peer
pressure. Taking all of these factors into account, the court considered whether the crime
reflected an unfortunate yet transient immaturity, or was defendant’s case “the type of
case that—because it’s rare that a juvenile offender would show traits in a crime that
reflects irreparable, I-R-R-E-P-A-R-A-B-L-E, corruption, is this one of those uncommon
cases where it’s appropriate to sentence a juvenile to the harshest possible penalty?” The




                                             13.
court concluded it was, and it imposed an LWOP sentence. The court dismissed the
pending new offenses committed in county jail in the interests of justice.
                                        DISCUSSION

1.     Application of Miller Criteria on Resentencing*
       Defendant contends the trial court, in imposing an LWOP sentence, failed to
properly apply the criteria set forth in Miller, our Supreme Court’s opinion in People v.
Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), and our opinion in his first appeal.
Defendant argues the presentation of mixed questions of law and fact require de novo
review of the trial court’s ruling by this court. The People argue defendant has forfeited
any review of the trial court’s sentence, including on the ground it was cruel and unusual
punishment, because he submitted the matter at sentencing and told the trial court he
waived his right to appeal. The People further contend the trial court properly considered
the criteria set forth in Miller and Gutierrez. We find the trial court applied the proper
criteria in imposing a sentence of LWOP.
Forfeiture
       The purpose of the forfeiture rule is to encourage parties to bring error to the
attention of the trial court to allow it to be corrected. Constitutional rights are among
those subject to forfeiture. (People v. McCullough (2013) 56 Cal.4th 589, 593.) A
defendant’s failure to object his or her sentence constitutes cruel and unusual punishment
forfeits the claim on appeal if it is not raised in the trial court because it often requires a
fact-bound inquiry. (People v. Speight (2014) 227 Cal.App.4th 1229, 1247.)
       We observe there is a unique procedural posture here, which was not present in the
above-cited cases. When there is a decision upon appeal, the trial court is reinvested with
jurisdiction, “but only such jurisdiction as is defined by the terms of the remittitur.”
(Hampton v. Superior Court (1952) 38 Cal.2d 652, 655; see People v. Lewis (2004) 33
Cal.4th 214, 228.) “When an appellate court’s reversal is accompanied by directions

       *See footnote,   ante, page 1.

                                               14.
requiring specific proceedings on remand, those directions are binding on the trial court
and must be followed.” Any material variance from the appellate court’s directions is
unauthorized and void. (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.)
       In making its ruling in the resentencing of defendant, the trial court was following
our remand order, which it had the jurisdiction and duty to implement. The trial court’s
sentence unquestionably affected the substantial rights of defendant. We therefore
review the trial court’s ruling for error and to determine whether it complied with the
requirements of Miller, Gutierrez, and our first opinion. This includes any Eighth
Amendment challenge by defendant on appeal.
       We further find, however, defendant must accept the record as it was before the
trial court. On remand, defendant did not challenge the probation officer’s reports or any
fact relied upon by the trial court. Defendant is estopped from asserting error concerning
the absence of potential additional evidence he failed to present to the trial court.
Although defendant can challenge the court’s application of Miller, Gutierrez, and our
opinion in the first appeal, he has forfeited his right to include any factual information
outside the record on appeal.
Miller and Gutierrez
       The United States Supreme Court has found a sentence of life in prison without
the possibility of parole for a nonhomicide offense violates the Eighth Amendment’s
prohibition against cruel and unusual punishment if the offender was under 18 when the
offense was committed. (Graham v. Florida (2010) 560 U.S. 48.)
       In Miller, supra, 567 U.S. 460, the Supreme Court further held that a mandatory
sentence of life in prison without the possibility of parole constituted cruel and unusual
punishment for homicide offenses if the offender was under 18 at the time the homicide
was committed. (Id. at p. 470.) Both Miller and Graham concluded that because
juveniles had a diminished culpability and greater prospects for reform, they were




                                             15.
different from adults and less deserving of the most severe punishments. (Miller, supra,
at p. 471; Graham v. Florida, supra, 560 U.S. at p. 68.)
       The Miller court was persuaded the scientific evidence showed significant gaps in
development between children and adults. First, children lack maturity and have an
underdeveloped sense of responsibility, which leads to recklessness, impulsivity, and
heedless risk-taking. Second, children are more susceptible to negative influences and
outside pressure from family and peers; they have limited control over their own
environment and lack the ability to extricate themselves from horrific, crime-producing
settings. Third, children cannot easily be identified as irretrievably depraved because
their character is not as well formed as an adult’s, and their character is more malleable
than those of an adult’s. (Miller, supra, 567 U.S. at p. 471.)
       The physiology of juvenile and adult minds differs. The transient rashness,
proclivity for risk, and inability to assess consequences lessens a juvenile’s moral
culpability and enhances the prospect that with age, neurological development will
reform deficiencies. (Miller, supra, 567 U.S. at pp. 471-472.) Because a child is less
blameworthy, the strength of the retribution rationale is reduced, and because a child is
less likely to consider potential punishment when acting, the strength of the deterrence
justification is reduced. (Id. at p. 472.) Miller held mandatory LWOP sentences for
juvenile offenders were unconstitutional under the Eighth Amendment. Miller did not,
however, foreclose the possibility of an LWOP sentence in homicide cases. (Miller,
supra, at pp. 479-480.) As we noted in our first opinion, section 190.5, subdivision (b)
does not impose a mandatory LWOP sentence on juvenile offenders who have committed
homicide because it gives discretion to the trial court to sentence the juvenile to a term of
25 years to life. (People v. Marquez, supra, F063837.)
       Miller explained mandatory LWOP sentences preclude consideration of a
juvenile’s chronological age and its hallmark features: (1) immaturity, impetuosity,
failure to appreciate risks and consequences; (2) family and home environment


                                             16.
surrounding the juvenile, including the inability to extricate himself or herself from it no
matter how brutal or dysfunctional it may be; (3) the circumstances of the homicide,
including the extent of the juvenile’s participation in the conduct and the way familial
and peer pressures affected him or her; (4) the ability or inability of the juvenile to deal
with police officers and prosecutors, as well as his or her ability to assist counsel; and (5)
mandatory punishment disregards the possibility of rehabilitation even when
circumstances most suggest it. (Miller, supra, 567 U.S. at pp. 477-478.) These criteria
became the basis for our remand order for resentencing in defendant’s first appeal.
       Just before defendant was resentenced in this case, the California Supreme Court
decided Gutierrez, where it held a sentencing court has discretion to sentence a juvenile
convicted of first degree murder with special circumstances to LWOP or 25 years to life,
with no presumption in favor of life without parole. Gutierrez found Miller requires the
court, “in exercising its sentencing discretion, to consider the ‘distinctive attributes of
youth’ and how those attributes ‘diminish the penological justifications for imposing the
harshest sentences on juvenile offenders’ before imposing life without parole on a
juvenile offender. [Citation.]” (Gutierrez, supra, 58 Cal.4th at p. 1361.) Gutierrez
further held a sentencing court, in considering whether to impose an LWOP term, must
consider the five factors enumerated in Miller. (Gutierrez, supra, at pp. 1389–1390.)
       As for the standard of review, when a defendant makes a constitutional claim,
courts of review still defer to the trial court’s resolution of any disputed factual issues if
supported by substantial evidence. (See generally People v. Cromer (2001) 24 Cal.4th
889, 902.) The underlying disputed facts must be viewed in the light most favorable to
the judgment. The determination of whether a punishment is cruel or unusual is,
however, a question of law for the appellate court to determine. (People v. Em (2009)
171 Cal.App.4th 964, 971; People v. Martinez (1999) 76 Cal.App.4th 489, 496.) To the
extent our analysis is a determination of law, we review that question independently of
the trial court.


                                              17.
Immaturity and Impetuosity
       Defendant contends the trial court misapplied the criteria set forth in Miller and
Gutierrez. Beginning with a juvenile’s immaturity and impetuosity, defendant argues our
opinion in the first appeal noted defendant hampered his defense by refusing to assist his
own attorney. According to defendant, the trial court failed to address this point in its
sentencing analysis. Defendant further argues he demonstrated impetuosity in submitting
the matter at the resentencing hearing but later filing a notice of appeal from the trial
court’s sentence.
       The trial court noted defendant was 17 years old when he murdered Juarez.
Defendant was actually about four months shy of his 18th birthday when he committed
homicide. Defendant was nearly an adult when he offended, which stands in contrast to
the defendants in Miller who were 14 years old when they offended. (Miller, supra, 567
U.S. at p. 480, fn. 8.) The trial court extensively reviewed the testimony presented at
defendant’s competency trial, as well as two experts who testified at his criminal trial,
and concluded there was no question defendant grew up in a very difficult and troubled
childhood. The court found Dr. Berkson’s testimony helpful in understanding
defendant’s past history in terms of his problems and the fact defendant was also the
victim as a child of assault. The court found this fact to be significant. The court also
explained it considered defendant’s age as well as his maturity, or lack thereof, and his
failure to appreciate the risks and consequences of his actions.
       The court further found defendant had taken antipsychotic medications from an
early age. The court noted, however, defendant exhibited anger and antisocial behavior
during the same time frame. The court considered Dr. Kalechstein’s testimony defendant
had a serious mental illness and was developmentally disabled with a borderline impaired
IQ. The court contrasted Dr. Kalechstein’s testimony with testimony defendant was
malingering some or all of his psychotic symptoms, failed to take responsibility for his
crime, and told multiple stories of how Juarez was killed.


                                             18.
      Although defendant emphasizes his failure to help his counsel and his change of
mind about challenging his sentence as being immature and impetuous, these behaviors
are also consistent with malingering. Obstruction of legal proceedings by criminal
defendants is one hallmark of malingering. Defendant had prior adjudications as a
juvenile and was not new to judicial proceedings. There is evidence defendant chose not
to cooperate with counsel as an intentional strategy. Both Dr. Berkson and Dr. Kendall
described defendant’s conduct, even with regard to his psychotic symptoms, in the
context of malingering. Toward the end of the time Dr. Bartlett was treating defendant
for mental health disorders, he, too, began to question whether defendant’s conduct was
truly the product of psychotic symptoms or the product of defendant’s home life. The
trial court considered defendant’s psychological profile in the complete context in which
it was presented during the competency and criminal trials. The trial court had
substantial evidence to support its findings concerning defendant’s maturity and
impetuosity.
Defendant’s Home Life
      Defendant argues his home life was a situation from which he could not extricate
himself. The trial court, however, considered defendant’s home life. Judge Paden
incorporated Judge Sevier’s findings from the first sentencing hearing, which included
the finding defendant had a horrible home life. Judge Sevier described defendant as
having a relatively minimal criminal history and referred to defendant’s age. Judge
Paden also considered defendant’s age.
      The court did not dwell on defendant’s home life, which was unquestionably bad
throughout his childhood. The record of defendant’s experience with mental health
treatment, however, demonstrated defendant’s mother was involved in getting him
treatment when he was a minor and did not completely abandon him. Although
defendant’s mother was not a model caretaker, there was no evidence she was involved in
violent crime, which was true of one of the Miller defendants. (Miller, supra, 567 U.S. at


                                           19.
p. 478.) The trial court was allowed to accord this factor the weight the court believed it
deserved.
Circumstances of the Homicide and Potential Conviction for Lesser Offense
       Defendant argues there was little evidence of meaningful planning. Our first
opinion noted the only evidence of defendant committing the special circumstance came
from his confession. Defendant seizes on this to assert there is no evidence of the special
circumstance absent the competencies associated with youth. Defendant argues the trial
court failed to consider this factor.
       There was substantial evidence of meaningful planning presented at defendant’s
trial. Defendant stabbed and slashed the victim 19 times. Three wounds were deep
enough to puncture the left and right carotid artery as well as the right subclavian artery.
Defendant gave a statement to investigators that he killed the victim while trying to rob
her. There was further evidence defendant had a dispute with the victim because he
believed she disrespected him on a prior occasion. (People v. Marquez, supra, F063837.)
       Defendant’s conduct unquestionably showed an intent to kill. The victim was
apparently alone when defendant attacked her, and she was found dead in the early
morning. From these facts, we can reasonably infer defendant planned the crime, if only
for a short time. Defendant evidenced an intent to kill and harbored animus toward the
victim from a previous encounter. Together, these facts demonstrate intent to kill for
revenge or some other motive. They further demonstrate some degree of planning, even
if the planning was not sophisticated. From the DNA evidence found on the knife hidden
in defendant’s room, it is clear defendant was the perpetrator of the homicide, not a mere
aider and abettor as was the case with one of the Miller defendants. Also the Miller
defendants were high on drugs and alcohol they had consumed with the adult victim.
(Miller, supra, 567 U.S. at pp. 478-479.) There is no evidence defendant was intoxicated
during the commission of this murder.




                                             20.
       During the sentencing hearing, the trial court further noted defendant had three
conflicting explanations for the crime: (1) he did not do it and was innocent, (2) he had
no recollection of doing the crime because he blacked out, and (3) it was his doctor’s
fault for taking defendant off his medication. Defendant gave a fourth explanation when
interviewed by the probation officer on July 1, 2014, expressing remorse for his decisions
but adding he was not the only person present during the homicide. Defendant declined
to admit he personally stabbed the victim. Except for this last and belated explanation of
events, none of defendant’s other stories involved action due to peer pressure. Instead,
defendant acted alone.
       Defendant’s inconsistent explanations for his own conduct show not the
incompetencies associated with youth, but a strong desire to deny culpability and
responsibility for his conduct. We noted in the first appeal it was defendant’s own
admission supporting the special circumstance allegation. Many adults, however, also
confess to serious crimes, admitting culpability for aggravating factors and special
circumstances. We observe again defendant was not a newcomer to the criminal justice
system and unacquainted with its procedures. Defendant had been adjudicated a juvenile
delinquent three times in the past, once for a felony. Defendant had prior arrests, spent
time in a juvenile detention facility, and committed two of his offenses while he was a
resident in a group home.
Defendant’s Mental Health Status
       Defendant argues our prior opinion described the “virtual unanimous” conclusion
of five mental health professionals that defendant suffered from borderline intellectual
functioning, mental health infirmities, psychiatric disorders, and substance abuse.
Defendant portrays the trial court as only touching on these issues during the sentencing
hearing. We disagree with defendant’s characterization of the trial court’s findings. We
further note our remand order was not a conclusive set of factual findings, but a broad
outline of the evidence to be evaluated by the trial court at the resentencing hearing.


                                             21.
       In addressing defendant’s ability to reform, which we review in more detail post,
the court also addressed defendant’s complicated mental health history and the
evaluations by the five doctors who testified during the competency and criminal trials.
Dr. Kalechstein testified defendant had a serious mental illness, was developmentally
disabled with a borderline impaired IQ, and suffered at least one traumatic brain injury as
a young child. Dr. Geshuri explained it would not be inconsistent for a person who
experienced physical and emotional abuse, like defendant, and who also abused drugs
and alcohol, to experience a blackout in a stressful situation. Defendant’s description of
the murder was the type of stressful situation capable of causing a blackout.
       Defendant’s childhood psychiatrist, Dr. Barnett, testified he treated defendant for
nearly two years for mental illness involving delusional thinking and auditory
hallucinations. Dr. Barnett also treated defendant for psychosis. Later in his treatment of
defendant, however, Dr. Barnett began to suspect defendant’s symptoms were not derived
from a psychosis but from great anxiety, possibly caused by something provoking the
psychotic symptoms, perhaps by defendant’s mother. Dr. Barnett thought something
external may have caused defendant to regress. Dr. Barnett acknowledged that if a
patient is psychotic, he or she may have to take medications an entire lifetime.
       Dr. Kendall did not detect any evidence of disorganized thinking or gross
cognitive impairments and did not observe any delusions or hallucinations by defendant.
Defendant did not present himself as someone with a bona fide serious psychotic illness.
Dr. Kendall believed defendant was malingering, and he did not believe defendant’s
description of visual hallucinations was sincere. Furthermore, Dr. Kendall noted
defendant had a history of substance abuse, including use of alcohol, marijuana,
methamphetamine, cocaine, and Ecstasy. According to Dr. Kendall, it was not
uncommon for individuals using these drugs to have brief periods where they experience
auditory and visual hallucinations. Dr. Kendall agreed defendant had a significant history
for being treated for mental illness but still concluded defendant was “attempting to


                                            22.
malinger psychiatric impairment” because he displayed no psychiatric impairment during
his evaluation.
       Dr. Berkson acknowledged defendant had been severely abused as a child and had
a history of psychiatric treatment, including hospitalization. During his evaluation of
defendant, Dr. Berkson asked if it would be more advantageous to defendant to be found
competent or incompetent. Rather than answering the question, defendant walked out of
the evaluation. Dr. Berkson found defendant to be of average intelligence and able to
respond appropriately to Dr. Berkson’s questions. Defendant understood the nature of
the proceedings against him, the consequences of a guilty verdict, and he understood the
roles of participants in criminal proceedings. Defendant had the ability to cooperate with
his counsel in a rational manner.
       Dr. Berkson found defendant’s description of auditory hallucinations credible, but
not his description of visual hallucinations; defendant’s description was not how these
types of hallucinations present. Dr. Berkson believed defendant was exaggerating his
hallucinations to the point of being dishonest. Defendant told Dr. Berkson he was not
responsible for the crime because he could not remember anything. Although defendant
did not know if he had committed murder, if he had done so, it was because his doctor
had taken him off his medications. Defendant blamed his actions on his mental health
disorder, lack of medications, and molestation as a child. Defendant repeatedly wanted to
talk about the crime. It appeared defendant wanted to present himself as not guilty by
reason of insanity, but Dr. Berkson could not find any evidence defendant suffered from
psychosis.
       Dr. Berkson observed signs of a borderline personality disorder with antisocial
features, and he believed defendant had some delusional thinking. Dr. Berkson found
defendant had extremely limited insight and blamed others for his illness or his actions.
Dr. Berkson found this history consistent with posttraumatic stress disorder, which
explained defendant’s emotional numbing, nightmares, disturbed sleep, and


                                            23.
hyperactivity. Dr. Berkson found no clear evidence defendant was developmentally
disabled. During the evaluation process, Dr. Berkson found defendant’s thought
processes to be logical and coherent.
       The trial court reviewed all of this evidence and referred to it in making its
findings. Although defendant suffered from some mental illness, it is not clear to what
degree, if any, he was psychotic. Two medical experts were sure defendant was either
partially or completely malingering his psychotic symptoms. Defendant’s borderline
intelligence, however, was not enough to impair his ability to understand the nature of the
proceedings or to assist his counsel. Dr. Berkson found no developmental disability and
noted defendant’s thought processes were logical and coherent.
       Dr. Berkson also believed defendant was attempting to manufacture a defense of
guilt by reason of insanity. Defendant’s conduct in walking out of his evaluation with
Dr. Berkson after being asked whether it would be more or less advantageous for him to
be found incompetent further indicates a cool calculation by defendant. Although such
behavior can be indicative of mental illness, immaturity, or impetuous behavior, it can
also demonstrate a shrewd calculation by defendant not to be further interviewed by a
doctor detecting defendant’s manipulation of the process.
       The trial court had to weigh and evaluate all the evidence of defendant’s
psychological and psychiatric history. There was substantial evidence defendant suffered
from mental illness, either due to some form of psychosis or from posttraumatic stress.
There was further evidence, however, that defendant was a manipulative and calculating
malingerer who exaggerated his symptoms in an attempt to minimize his culpability for
committing a heinous murder. We do not find error in how the trial court evaluated the
testimony and evidence presented by the mental health experts.
Evidence of Rehabilitation
       Defendant argues the trial court misevaluated evidence of his remorse and
rehabilitation. Defendant argues the trial court referred to three pending charges when


                                             24.
there were apparently only two. Defendant takes issue with the trial court’s reference to
offenses he committed in jail because the court got the number of offenses wrong and
defendant was not convicted of those offenses.
       Although defendant had pending charges for a felony assault and a misdemeanor
battery, a confidential informant told investigators defendant acted as a bully and stole
canteen items from an inmate during a fight that occurred months earlier. The court’s
reference to three assaults in jail was not technically accurate because there were only
two alleged assaults. There were, however, three incidents including the theft that
involved bullying conduct by defendant. We also find defendant’s argument of not
having been convicted of the pending assault allegations to be unpersuasive. Defendant’s
conduct in jail prior to resentencing was relevant to the trial court’s determination of
defendant’s ability to mature, to comport with jail rules, to be civil, and whether he could
be rehabilitated. Defendant appeared to be acting in concert with others in the felony
assault in jail in an act of revenge for a perceived crime against a member of his family
when he assaulted a fellow inmate. The trial court did not rely on this factor alone in
imposing an LWOP sentence.
       As noted ante, the trial court carefully evaluated many other factors in imposing
sentence, including defendant’s mental health history, his troubled family life as a child,
and his status as a minor. Judge Paden also considered defendant’s prior adjudications as
a minor for a felony sex offense on a victim only seven years old, for exposing himself,
and for assaulting female staff of a group home. We disagree with Judge Sevier’s
observation in the first sentencing hearing that this was a minor juvenile record. Judge
Paden found defendant’s criminal history as a juvenile were all offenses directed toward
women, as was the instant offense, which the court described as horrific. Defendant’s
increasing violence leading to murder and his crimes against women present a disturbing
pattern of criminality. There is substantial evidence in the record to support each of




                                             25.
Judge Paden’s findings, and defendant was not sentenced with the presumption his
sentence would be LWOP.
       Judge Paden pointed out a further troubling aspect of defendant’s conduct.
Defendant has failed to demonstrate genuine remorse. Defendant told investigators,
medical examiners, and the probation officers four different accounts of what happened.
Most recently, defendant expressed to the probation officer remorse for his decisions, but
he asserted he was not the only person present during the homicide. Defendant declined
to admit he personally stabbed the victim. At the sentencing hearing, defendant finally
appeared to accept responsibility for his actions but he did so without acknowledging
personal culpability for killing Juarez. Defendant has never consistently accepted
responsibility or remorse for his conduct, even as an adult.
       As long as the trial court gives due consideration to an offender’s youth and
attendant characteristics as required by Miller, “it may, in exercising its discretion under
Penal Code section 190.5, subdivision (b), give such weight to the relevant factors as it
reasonably determines is appropriate under all the circumstances of the case.” (People v.
Palafox (2014) 231 Cal.App.4th 68, 73.) After the trial court considers the transient
immaturity of youth, and thoughtfully weighs other sentencing factors, the court can
impose an LWOP sentence. The possibility of rehabilitation is not dispositive or even the
preeminent factor to be weighed by the trial court. (Id. at pp. 90-91.) The trial court here
thoughtfully weighed the appropriate criteria, including defendant’s youth and its
attendant circumstances, and found in defendant irreparable corruption. The court
implicitly found defendant was unfit to reenter society.
       We cannot say the trial court exceeded the bounds of reason, all circumstances
considered. (People v. Palafox, supra, 231 Cal.App.4th at p. 91.) As required by Miller,
the trial court here “consider[ed] all relevant evidence bearing on the ‘distinctive
attributes of youth’… and how those attributes ‘diminish the penological justifications for
imposing the harshest sentences on juvenile offenders.’ [Citation.]” (Gutierrez, supra,


                                             26.
58 Cal.4th at p. 1390.) The court “‘[took] into account how children are different, and
how those differences counsel against irrevocably sentencing them to a lifetime in
prison.’ [Citation.]” (Ibid.) We conclude the sentence imposed by the trial court did not
violate the federal or state Constitution. (People v. Palafox, supra, at pp. 91-92.) We
note under recently enacted legislation, however, defendant will be entitled to petition for
the recall of his sentence in the future and, if not resentenced, he may file additional
petitions for recall of his sentence. (See Pen. Code, § 1170, subd. (d)(2), (d)(2)(H).)
2.     Retroactivity of Proposition 57
       Approximately three months after Maria Juarez was murdered, the district
attorney’s office directly charged defendant in criminal court with first degree murder,
pursuant to Welfare and Institutions Code section 707, subdivision (b).2 Proposition 57,
passed by the voters on November 8, 2016, no longer permits a prosecutor to direct file
serious felony cases involving juveniles in adult criminal court. The parties have filed
supplemental briefing on the issue of whether Proposition 57 applies retroactively to
compel a juvenile court to conduct a fitness hearing to determine if a juvenile can be tried
in adult criminal court. Defendant argues the initiative effectively reduces his
punishment and provides an affirmative defense to the direct filing procedure and should
therefore be applied to him retroactively. The People contend the law is prospective, it
changes only juvenile court procedure, and it does not affect the penalty imposed. We
agree with the People and the recent decision from the First District Court of Appeal in
People v. Cervantes (2017) 9 Cal.App.5th 569 (Cervantes) and the Sixth District Court of
Appeal in People v. Mendoza (2017) 10 Cal.App.5th 327 (Mendoza).
Juvenile Provisions of Proposition 57
       Before a minor could be tried in adult court, California historically required a
finding of unfitness for juvenile court. (Cervantes, supra, 9 Cal.App.5th at p. 595; Juan


       2Further statutory references   are to the Welfare and Institutions Code unless otherwise
indicated.

                                                 27.
G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1489.) Beginning with the passage of
Proposition 21 in March 2000, the district attorney was authorized as a matter of
executive discretion to file an action against a juvenile directly in adult criminal court
under certain defined circumstances. This practice is known as “direct filing” or
“discretionary direct filing.” (Cervantes, supra, at p. 596.) The procedural change in
how cases were formerly filed initially in juvenile court withstood constitutional
challenges that it violated the separation of powers between the executive and judicial
branches of government and due process of law under the federal and state constitutions.
(Manduley v. Superior Court (2002) 27 Cal.4th 537, 551-573 (Manduley).) Our Supreme
Court further rejected challenges to the statutory scheme as violating equal protection.
(People v. Wilkinson (2004) 33 Cal.4th 821, 835-841.)
       The purpose of Proposition 57 with regard to juvenile offenders is to undo
Proposition 21. The charging instrument for all juveniles must now be filed in juvenile
court. Prosecutors may still move the court to transfer certain categories of cases to
criminal court, but the juvenile court is vested with the sole authority to determine
whether a juvenile should be transferred. Juveniles accused of felonies are guaranteed a
right to a fitness hearing before being sent to the criminal division of superior court to be
tried as an adult. (Cervantes, supra, 9 Cal.App.5th at pp. 596-597.)
Proposition 57’s Silence on Retroactivity
       Defendant contends section 602 was amended to provide exclusive jurisdiction in
juvenile court, and section 707 was amended to require a fitness hearing in juvenile court
as a prerequisite to transferring a case to adult court.
       The People point out that in contrast to the amendments to sections 602 and 707,
which are silent on the issue of retroactive application, the constitutional amendment to
article I, section 32 of the California Constitution, set forth in section 3 of Proposition 57,
expressly changes adult sentencing to make nonviolent adult offenders eligible for parole
consideration after completing the term of his or her primary offense. (Voter Information


                                              28.
Guide, Gen. Elec. (Nov. 8, 2016) p. 141.) The People analyze various statements in the
voter guide to show the juvenile provisions are meant to be prospective. The voter
pamphlet refers to transfers from juvenile court to adult court that “should” occur. (Id., at
pp. 54, 56, 58, 141-146.) This ballot pamphlet may indicate intent for prospective
application of juvenile transfer procedures but, at best, it is ambiguous. The statutory
changes to sections 602 and 707 and the sections implementing them are silent on the
issue of retroactivity.
       We therefore begin our analysis with Penal Code section 3, which provides that
“[n]o part of it is retroactive, unless expressly so declared.” “Whether a statute operates
prospectively or retroactively is, at least in the first instance, a matter of legislative intent.
When the Legislature has not made its intent on the matter clear,” this section provides
the default rule. (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).) Defendant
concedes Proposition 57 is silent on the question of whether it applies retroactively to
proceedings under the act. The analysis of Proposition 57 by the legislative analyst and
the arguments for and against Proposition 57 are also silent on this question. (Voter
Information Guide, supra, at pp. 54-57, 141-146; see People v. Buford (2016) 4
Cal.App.5th 886, 918-920 (conc. opn. of Peña, J.) [analyzing silence of Prop. 47 on
question of retroactivity], review granted Jan. 11, 2017, S238790.) Because the statute
contains no express declaration that sections 602 and 707 apply retroactively to
proceedings under the act, and there is no clearly implied intent of retroactivity in the
legislative history, the default rule under Penal Code section 3 applies.
Procedural Function of Superior Court Under Proposition 57
       Section 602 now reads: “Except as provided in Section 707, any person who is
under 18 years of age when he or she violates any law of this state or of the United States
or any ordinance of any city or county of this state defining crime other than an ordinance
establishing a curfew based solely on age, is within the jurisdiction of the juvenile court,
which may adjudge such person to be a ward of the court.”


                                               29.
       As noted in Cervantes, revised section 602 does not use the term “exclusive” and
assigns jurisdiction over all juvenile criminal matters to the juvenile court, explicitly
subject to the exceptions in section 707. Subdivision (b) of section 707 lists 30 serious
crimes that subject even the youngest juveniles for criminal prosecution under section
707, ages 14 and 15, to adult prosecution. The court in Cervantes concluded for crimes
that qualify a juvenile offender for transfer to adult court, “subject matter jurisdiction is
concurrent between the criminal division and the juvenile division.” (Cervantes, supra, 9
Cal.App.5th at p. 598.) Cervantes explained under the California Constitution the
juvenile and criminal court are divisions of the superior court, which has subject matter
jurisdiction over all criminal, civil, and juvenile matters. (Cervantes, at p. 598, citing
Cal. Const., art. VI, § 10.)
       Thus, when reference is made to the jurisdiction of the juvenile or criminal court,
the reference does not refer to subject matter jurisdiction, but to the statutory authority of
the particular division of the superior court in a given case to proceed under juvenile
court law or generally applicable criminal law. (Cervantes, supra, 9 Cal.App.5th at p.
598.) Prior to the passage of Proposition 21 in March 2000, a procedure similar to the
one enacted by Proposition 57 was used to transfer juveniles from juvenile to criminal
court. In Manduley, our Supreme Court held this procedural change did not violate any
constitutional principle. The transfer procedure changed with the passage of Proposition
21 and again with the passage of Proposition 57. The superior court retained
fundamental subject matter jurisdiction under either procedure.
Punishment and the Estrada Rule
       Defendant cites In re Estrada (1965) 63 Cal.2d 740 to argue retroactive
application.
       In Estrada, the court stated:

       “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

                                              30.
          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.” (In re
          Estrada, supra, 63 Cal.2d at p. 745.)
          Cervantes analyzed Estrada and noted Estrada had escaped from the California
Rehabilitation Center without force or violence when the offense required a minimum
one-year additional sentence and a two-year minimum after being returned to custody
before parole consideration. (In re Estrada, supra, 63 Cal.2d at p. 743; Cervantes, supra,
9 Cal.App.5th at p. 599.) Between the time of the escape and the time Estrada was
convicted, however, the governing statutes were amended to reduce the minimum term to
six months for nonviolent escape and to require no minimum period before parole
consideration. (Estrada, supra, at pp. 743–744; Cervantes, supra, at p. 600.) Estrada
was being held in custody solely because of the minimum terms required by the former
version of the statute and would have been entitled to release under the new version.
(Ibid.)
          Finding the reduction in penalty amounted to a legislative decision the prior law
had been too harsh, the court held the amended statutes applied to the petitioner.
“‘[L]egislative mitigation of the penalty for a particular crime’ called for the retroactive
application of the reduced penalty, effectively establishing a rule that any law reducing
the penalty for a crime was intended to apply to all nonfinal judgments. ([In re Estrada,
supra, 63 Cal.2d] at p. 745; see also People v. Conley (2016) 63 Cal.4th 646, 656
[Estrada’s holding ‘reflects a presumption about legislative intent, rather than a
constitutional command’].)” (Cervantes, supra, 9 Cal.App.5th at p. 600.)
          Defendant argues Proposition 57 amounts to a reduction in punishment, requiring
us to find the law retroactive pursuant to Estrada. As Cervantes explained, however, the

                                                31.
change in the law is procedural in nature and does not affect punishment. As noted in
Cervantes, the passage of Proposition 115 in 1991 gave judges in criminal trials the
power to conduct voir dire instead of attorneys. (Cervantes, supra, 9 Cal.App.5th at p.
600.) In People v. Tapia (1991) 53 Cal.3d 282, 287, 288-289, the Supreme Court held
most of the new procedures, including those relating to voir dire and reciprocal
discovery, were not retroactive under In re Estrada. (Cervantes, supra, at pp. 600-601.)
Tapia noted Proposition 115 changed the law, and these changes fell into four categories:
(1) provisions changing the legal consequences of criminal behavior to the detriment of
defendants; (2) provisions addressing the conduct of trials; (3) provisions clearly
benefiting defendants; and (4) a single provision codifying existing law. (People v.
Tapia, supra, at p. 297.) Tapia found categories 1 and 3 were subject to retroactivity
analysis, but the procedural change to the law affecting the conduct of trials in category 2
was not retroactively applicable but prospective in nature. (Id. at pp. 297-301.)
       Cervantes analyzed Tapia as follows:

       “Tapia emphasized that the retroactivity exception turns on the type of
       legal change effectuated by the new or amended statute: changes in direct
       penal consequences like the one under consideration in Estrada, would call
       for retroactive application, while those like the one involved in Tapia that
       ‘address the conduct of trials which have yet to take place, rather than
       criminal behavior which has already taken place’ are to be applied
       prospectively. (Tapia, supra, at pp. 288–289.) Under that rubric, the
       transfer procedure dictated by Proposition 57 is not one that addressed
       ‘criminal behavior which has already taken place,’ but is more correctly
       identified as one ‘address[ing] the conduct of trials which have yet to take
       place.’ (Tapia, at p. 288.) This suggests its application should be
       prospective only.” (Cervantes, supra, 9 Cal.App.5th at pp. 600-601, fn.
       omitted.)
       The Estrada case was recently revisited by our Supreme Court in Brown, supra,
54 Cal.4th 314. Cervantes analyzed the holding in Brown and found the legislative
change in Brown strongly supported prospective application. The legislative change
addressed presentence conduct credits, a situation more closely linked to the length of
punishment for an offense than Proposition 57. In Brown, the Supreme Court

                                            32.
unanimously determined a jail inmate awaiting trial and sentencing should earn credits at
the rate in effect when sentenced. (Brown, supra, 54 Cal.4th at pp. 317–330; Cervantes,
supra, 9 Cal.App.5th at p. 601.) Cervantes noted Brown recognized a change in credit-
earning ability would affect the length of a prisoner’s time in custody and, in that sense,
would have a direct effect on punishment, but nevertheless found Estrada was
inapplicable. (Brown, supra, at pp. 323, 325; Cervantes, supra, at p. 601.)
       Brown held: “Estrada is today properly understood, not as weakening or
modifying the default rule of prospective operation codified in [Penal Code] section 3,
but rather as informing the rule’s application in a specific context by articulating the
reasonable presumption that a legislative act mitigating the punishment for a particular
criminal offense is intended to apply to all nonfinal judgments.” (Brown, supra, 54
Cal.4th at p. 324.) “The holding in Estrada was founded on the premise 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.”’” (Id. at p. 325.) In Brown, the court did not apply
the Estrada rule because “a statute increasing the rate at which prisoners may earn credits
for good behavior does not represent a judgment about the needs of the criminal law with
respect to a particular criminal offense, and thus does not support an analogous inference
of retroactive intent.” (Brown, supra, at p. 325; see Cervantes, supra, 9 Cal.App.5th at
pp. 601-602.)
       Similarly here, Estrada does not control because Proposition 57’s transfer of the
fitness hearing procedure to juvenile court does not reduce punishment for a particular
crime. Cervantes recognized that while Proposition 57 may have a substantive impact on
time in custody in some cases, and sometimes a big impact, the transfer procedure
required under the Welfare and Institutions Code “does not resemble the clear-cut
reduction involved in Estrada.” (Cervantes, supra, 9 Cal.App.5th at p. 601.) Cervantes
found that although the juvenile court rather than the district attorney makes the decision


                                             33.
to try a juvenile offender as an adult, we may presume many cases filed in juvenile court
will still end up in adult court with adult penalties under Proposition 57 after the fitness
hearing is held. Cervantes further found that Proposition 57 “mitigates the penalty for a
particular crime even less directly than the jail credits at issue in Brown” and found the
change in the law to be more analogous to the voir dire procedure in Tapia, “which
affected who performed a particular function in the judicial process.” (Cervantes, supra,
at pp. 601-602.) Cervantes concluded Proposition 57 “may or may not in some
attenuated way affect punishment, but it is not a direct reduction in penalty as required
for retroactivity under Estrada.” (Cervantes, at p. 602, citing Brown, supra, 54 Cal.4th at
p. 325.)
       Cervantes was followed by Mendoza, supra, 10 Cal.App.5th 327, which also held
the Estrada rule does not apply to make Proposition 57 retroactive. Like Cervantes,
Mendoza found Proposition 57 is distinguishable from the laws at issue applying the
Estrada rule first because “Proposition 57 does not expressly mitigate the penalty for any
particular crime.” (Mendoza, supra, at p. 348.) Instead, it changes the procedural
mechanism for transferring juvenile offenders to adult court. Citing to Brown, Mendoza
reasoned the Estrada retroactivity rule is not applicable to any amendment that may
reduce a punishment, but is directed to statutes representing legislative mitigation of the
penalty for a specific crime. (Mendoza, at p. 348; Brown, supra, 54 Cal.4th at p. 325.)
       Mendoza also found that “Proposition 57 provides no certainty that a minor will
actually receive a mitigated penalty because juvenile courts have discretion under
Proposition 57 to transfer juvenile cases to adult court.” The penalty for all cases
transferred to adult court “will be the same as they were before Proposition 57.”
(Mendoza, supra, 10 Cal.App.5th at p. 348.)
       Mendoza analyzed the Supreme Court’s decision in People v. Francis (1969) 71
Cal.2d 66 where the defendant committed a drug offense that was later amended by the
Legislature from being punished only as a felony to being punished as a wobbler.


                                             34.
Francis applied the Estrada rule, reasoning that although the amendment did not
guarantee Francis a lower sentence, making the specific crime a misdemeanor
demonstrated a legislative intent that punishing the offense as a felony might be too
severe in certain cases. (People v. Francis, supra, at p. 76; Mendoza, supra, 10
Cal.App.5th at p. 348.) Mendoza found the legislative change in Francis distinguishable
from Proposition 57, “because it involved a legislative mitigation of the potential
punishment for a specific crime. Where, as under Proposition 57, the potential benefit
inures to a class of offenders based on their age rather than on the offenses they commit,
the inference that voters deemed the entire Penal Code unduly severe when applied to
minors is too attenuated to support application of the Estrada rule.” (Mendoza, supra, 10
Cal.App.5th at pp. 348-349.)
         Contrary to Cervantes and Mendoza, People v. Vela (Apr. 24, 2017, G052282) __
Cal.App.5th __ (Vela) [2017 Cal.App.LEXIS 379] held that Proposition 57 has
retroactive application because the intent of the voters was to broaden the number of
minors who could potentially stay in the juvenile justice system where the primary
emphasis is on rehabilitation rather than punishment. (Vela, supra, at p. __ [2017
Cal.App.LEXIS 379 at pp. *9–*11].) Vela found the potential for reduction in
punishment of a crime in Francis was analogous to the potential ameliorating benefit to
minors after amendments to the Welfare and Institutions Code, and it held the Estrada
rule applied to Proposition 57. (Vela, at p. __ [2017 Cal.App.LEXIS 379 at pp. *22–
*23].)
         We disagree with the Vela court’s analysis of Francis, Estrada, and the
retroactivity of Proposition 57. Vela expands the Estrada rule by finding a potential
benefit inuring to a class of offender based on age rather than the offenses commited. We
find persuasive the reasoning in Mendoza that “applying the Estrada rule to Proposition
57 would expand that rule in such a manner as to risk swallowing the general [Penal
Code] section 3 presumption that legislation is intended to apply prospectively.”


                                             35.
(Mendoza, supra, 10 Cal.App.5th at p. 348, citing Brown, supra, 54 Cal.4th at pp. 324-
325.)
         We agree with the findings in Cervantes and Mendoza that no provision in the
Welfare and Institutions Code enacted by Proposition 57 reduces any form of punishment
under the Penal Code. The expressly retroactive constitutional revision in Proposition 57
applies only to adult offenders. The absence of express language making application of
the Welfare and Institutions Code retroactive where the constitutional amendment is
expressly retroactive demonstrates an intent by the voters to direct “the scope and manner
of the Act’s retroactive application.” (See People v. Conley, supra, 63 Cal.4th at p. 658.)
The Welfare and Institutions Code changes in the proposition effect a procedural change
similar to procedures—such as voir dire being conducted by the trial court—noted in
Tapia.
         Defendant further argues Proposition 57 creates an affirmative defense that was
unavailable during his trial, and the criminal division of superior court acted in excess of
its jurisdiction because it did not afford him a proper transfer hearing upon a motion by
the prosecutor as now required by amendments to the Welfare and Institutions Code.
This argument assumes Proposition 57 is retroactive. We have determined it is not.
Defendant’s affirmative defense argument further inaccurately assumes the criminal court
lacks subject matter jurisdiction over juvenile cases. As Cervantes explained, the
juvenile and criminal courts are both divisions within the same superior court, which
maintains fundamental subject matter jurisdiction over juvenile cases. Proposition 57
does not create an affirmative defense for juveniles who have already been tried in
criminal court; it prospectively changes the procedural process for transferring a case to
criminal court.
         Due to numerous errors in Cervantes’s trial, eight of 15 counts were reversed on
appeal, including all counts with specific intent as an element of the offense. This
included Cervantes’s convictions for attempted murder, torture, aggravated mayhem, and


                                             36.
two sex offenses. (Cervantes, supra, 9 Cal.App.5th at p. 579.) Because the court held
the People could retry Cervantes on the reversed counts, placing him again in jeopardy,
and given that Cervantes had to be resentenced even if the People elected not to retry
him, the court found Cervantes was entitled on remand to a fitness hearing in juvenile
court should he elect to have one. (Id. at p. 609.)
       The court’s remand of Cervantes for further proceedings, thereby entitling him to
a fitness hearing, turned the revised procedure into the prospective application of
Proposition 57 for that defendant. This case is procedurally distinguishable from
Cervantes. Defendant’s convictions were affirmed in his first appeal to this court. After
remand for resentencing in light of Miller, defendant has appealed the trial court’s
reimposition of an LWOP sentence. We have found no error in defendant’s resentencing
hearing and, thus, no basis for a remand. We conclude that application of Proposition 57
to defendant is not retroactive, and he is not entitled to remand solely for a fitness hearing
before the juvenile court.
Constitutional Contentions
       Defendant contends he is entitled to remand for a transfer hearing under federal
due process and the Sixth Amendment. Our Supreme Court rejected these contentions in
Manduley. (Manduley, supra, 27 Cal.4th at pp. 551-573.)
       In Kent v. United States (1966) 383 U.S. 541, 556 (Kent), the high court
considered a statutory scheme conferring original and exclusive jurisdiction on a juvenile
court over minors accused of various crimes. The law authorized the juvenile court to
waive its jurisdiction and transfer the matter to criminal court after conducting an
investigation, but no statutory criteria or procedures governed the juvenile court’s
determination to waive jurisdiction. (Id. at p. 547; Manduley, supra, 27 Cal.4th at p.
565.) Manduley found the decision in Kent held that a juvenile court violated the minor’s
due process of law in transferring the matter to criminal court without conducting a
hearing or providing a statement of reasons for doing so. In conducting such a hearing,


                                             37.
the minor possessed the right to effective assistance of counsel, access to the records
considered by the juvenile court, and a statement of reasons for the juvenile court’s
decision. (Kent, supra, at pp. 553-563; Manduley, supra, 27 Cal.4th at p. 565.)
       In distinguishing the statute at issue in Kent, our Supreme Court in Manduley
explained that California’s juvenile law does not confer upon the juvenile court original
and exclusive jurisdiction over minors accused of crimes under the circumstances set
forth in section 707. Under this statute, “neither the juvenile court nor the criminal court
renders a decision whether the minor is fit for a juvenile court disposition.” (Manduley,
supra, 27 Cal.4th at p. 565.) “Rather, as we have explained, the prosecutor’s charging
decision determines which court shall hear the matter.” (Ibid.) Manduley rejected the
petitioners’ argument the procedural protections applicable to juvenile fitness hearings
are mandated by Kent to apply also to the prosecutor’s exercise of discretion to directly
file charges in criminal court. Manduley distinguished prosecutorial discretion from
judicial determinations. (Manduley, supra, 27 Cal.4th at pp. 565-566.)

       “Kent, supra, 383 U.S. 541, held only that where a statute confers a right to
       a judicial determination of fitness for a juvenile court disposition, the due
       process clause requires that the determination be made in compliance with
       the basic procedural protections afforded to similar judicial determinations.
       A statute that authorizes discretionary direct filing in criminal court by the
       prosecutor, on the other hand, does not require similar procedural
       protections, because it does not involve a judicial determination but rather
       constitutes an executive charging function, which does not implicate the
       right to procedural due process and a hearing.” (Manduley, supra, 27
       Cal.4th at p. 566.)
       Manduley concluded the petitioners did not possess any right to be subject to the
jurisdiction of the juvenile court, and the legislative branch could properly delegate to the
prosecutor the discretion to determine where to filed charges against a minor, including
directly with the criminal court.3 (Manduley, supra, 27 Cal.4th at p. 567.) The decisions


       3Manduley furtherrejected the petitioners’ challenge to direct filing on equal protection
grounds. (Manduley, supra, 27 Cal.4th at pp. 567-572.)

                                               38.
of our Supreme Court are binding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) We therefore reject defendant’s constitutional arguments.
                                    DISPOSITION
      The judgment is affirmed.

                                                       ___________________________
                                                                           PEÑA, J.
WE CONCUR:


 __________________________
GOMES, Acting P.J.


 __________________________
POOCHIGIAN, J.




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