People v. Allen CA2/2 ( 2021 )


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  • Filed 4/21/21 P. v. Allen CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
    not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                                B305715
    Plaintiff and Respondent,                         (Los Angeles County
    Super. Ct. No. BA356413)
    v.
    ERIC GERARE ALLEN,
    Defendant and Appellant.
    THE COURT:
    Defendant and appellant Eric Gerare Allen (defendant)
    appeals from the trial court’s denial of his Proposition 57 motion
    to transfer his case to the juvenile court. His appointed counsel
    filed a brief raising no issues and asked this court to treat this
    appeal as it would when such a brief is filed pursuant to People v.
    Wende (1979) 
    25 Cal.3d 436
    , by conducting an independent
    review for arguable issues. Where appointed counsel finds no
    arguable issues in an appeal seeking postjudgment relief, the
    appellate court is not required to conduct such an independent
    review of the record. (People v. Cole (2020) 
    52 Cal.App.5th 1023
    ,
    1039-1040, review granted Oct. 14, 2020, S264278; see People v.
    Serrano (2012) 
    211 Cal.App.4th 496
    , 503.) However, we do
    review a defendant’s contentions or arguments if he files his own
    supplemental brief or letter. (People v. Cole, supra, at p. 1039.)
    Appointed counsel notified defendant of the court’s policy, and
    defendant has filed a supplemental brief. We thus review the
    contentions and arguments contained in defendant’s
    supplemental brief.
    In 2012, defendant was convicted of one count of first
    degree murder; two counts of attempted murder committed
    willfully, deliberately, and with premeditation; and one count of
    making criminal threats. Defendant, who was 15 years old at the
    time of the crime, was initially sentenced to a total term of 107
    years to life in prison. On appeal, the sentence was found to be
    the equivalent of life without parole and prohibited under the
    Eighth Amendment to the United States Constitution. We
    reduced the sentence to 50 years to life, but otherwise affirmed
    the judgment. (See People v. Childress (Sept. 4, 2013, B238241)
    [nonpub. opn.].)
    On July 16, 2018 defendant filed a petition for writ of
    habeas corpus in superior court, seeking a “Franklin hearing”1
    and resentencing to 15 years to life due to Proposition 57.
    On December 7, 2018 defendant’s petition was denied as to
    resentencing but granted as to a Franklin hearing, and the
    matter was returned to the original trial court for such hearing.
    During the course of the hearing defense counsel sought to have
    1     People v. Franklin (2016) 
    63 Cal.4th 261
     (Franklin).
    2
    defendant’s case transferred to juvenile court for further
    proceedings, pursuant to Proposition 57. Finding that
    Proposition 57 was not retroactive as to final judgments, the
    court denied the motion.
    Defendant filed a timely notice of appeal from the order
    denying his motion.
    In his supplemental brief, defendant contends that during
    his 2012 sentencing hearing, the trial court violated his
    constitutional right to speak prior to sentencing and that his case
    had been arbitrarily transferred to adult court.2 Defendant now
    argues that the spirit of Proposition 57 requires retroactive
    application by extending its provisions to the inception of the
    case.
    Enacted by the electorate November 9, 2016, Proposition 57
    amended Welfare and Institutions Code section 707 and reduced
    the possible punishment for juveniles. It applies to all juveniles
    charged directly in adult court whose judgments were not final at
    the time Proposition 57 was enacted. (People v. Superior Court
    (Lara) (2018) 
    4 Cal.5th 299
    , 304.)3 “‘[F]or the purpose of
    2    Defendant’s murder case was filed in adult court, which
    was permitted under Welfare and Institutions Code section 707,
    former subdivision (d). (See Stats. 2010, ch. 178, § 97.)
    3     It follows from the reasoning of People v. Superior Court
    (Lara), supra, 4 Cal.5th at pages 303 to 304, that Senate Bill No.
    1391 (2017-2018 Reg. Sess.), which further amended the statute,
    also applies to nonfinal convictions under the rule of In re
    Estrada (1965) 
    63 Cal.2d 740
    , 742-746. (People v. Federico (2020)
    
    50 Cal.App.5th 318
    , 324, review granted Aug. 26, 2020, S263082;
    People v. Superior Court (I.R.) (2019) 
    38 Cal.App.5th 383
    , 386,
    review granted Nov. 26, 2019, S257773.)
    3
    determining retroactive application of an amendment to a
    criminal statute, a judgment is not final until the time for
    petitioning for a writ of certiorari in the United States Supreme
    Court has passed.’” (People v. Vieira (2005) 
    35 Cal.4th 264
    , 306.)
    The grant of a Franklin hearing does not reopen a final
    judgment. (People v. Lizarraga (2020) 
    56 Cal.App.5th 201
    , 207-
    208.)
    The United States Supreme Court denied certiorari in
    defendant’s appeal from the judgment on May 27, 2014. (Allen v.
    California (2014) 
    572 U.S. 1142
    .) Defendant’s judgment thus
    became final in 2014 and is not subject to retroactive application
    of Proposition 57. The trial court therefore did not err in denying
    the motion.
    DISPOSITION
    The order denying defendant’s motion to transfer his case
    to juvenile court is affirmed.
    ____________________________________________________________
    ASHMANN-GERST, Acting P. J.          CHAVEZ, J.   HOFFSTADT, J.
    4
    

Document Info

Docket Number: B305715

Filed Date: 4/21/2021

Precedential Status: Non-Precedential

Modified Date: 4/21/2021