People v. Marsh CA3 ( 2023 )


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  • Filed 3/3/23 P. v. Marsh CA3
    Opinion following transfer from Supreme Court
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (Yolo)
    ----
    THE PEOPLE,
    Plaintiff and Respondent,                                                  C088553
    v.                                                                    (Super. Ct. No. CRF132418)
    DANIEL WILLIAM MARSH,                                                                   ON TRANSFER
    Defendant and Appellant.
    When he was 15 years old, defendant Daniel William Marsh murdered two
    victims and mutilated the bodies. (People v. Marsh (2018) 
    20 Cal.App.5th 694
    , 696-697
    (Marsh I).) Tried in adult criminal court, a jury convicted him on two counts of first
    degree special circumstance murder and the trial court sentenced him to 52 years to life
    in prison.
    In defendant’s first appeal, this court conditionally reversed the judgment and
    directed the juvenile court to conduct a transfer hearing to determine if defendant should
    be transferred to adult criminal court or retained in juvenile court pursuant to Proposition
    57, the Public Safety and Rehabilitation Act of 2016, which had become effective while
    defendant’s appeal was pending. (Marsh I, supra, 
    20 Cal.App.5th 694
    .) On remand, the
    juvenile court granted the People’s motion to transfer defendant to adult criminal court
    1
    and the judgment was reinstated in October 2018 without any change, as required by this
    court’s disposition in Marsh I.
    After the judgment was reinstated, Senate Bill No. 1391 (2017-2018 Reg. Sess.)
    (Stats. 2018, ch. 1012, § 1 (Senate Bill 1391)) became effective on January 1, 2019.
    With exceptions not applicable here, it eliminated the authority of a prosecutor to seek
    transfer to adult criminal court of a minor who was 14 or 15 years old at the time of an
    offense. (Welf. & Inst. Code, § 707, subd. (a); Stats. 2018, ch. 1012, § 1.)
    Defendant purported to appeal from the reinstated judgment, asserting that Senate
    Bill 1391 applied to him because his case was not yet final. This court dismissed the
    appeal, concluding defendant’s judgment was final before Senate Bill 1391 went into
    effect. (People v. Marsh (Sept. 8, 2021, C088553) [nonpub. opn.] (Marsh II).)
    The California Supreme Court subsequently granted review in Marsh II and
    transferred the matter back to us with directions to vacate our opinion and reconsider the
    cause in light of People v. Padilla (2022) 
    13 Cal.5th 152
     (Padilla). We vacated our
    decision.
    In supplemental briefing after transfer, the parties disagree on whether the decision
    in Padilla controls here. Padilla involved a juvenile offender who was originally
    sentenced in criminal court before Proposition 57 was enacted, but whose judgment
    became nonfinal when his sentence was vacated on habeas corpus and the case was
    returned to the trial court for imposition of a new sentence. (Padilla, supra, 13 Cal.5th at
    p. 158.) The California Supreme Court held that under those circumstances, Proposition
    57 applied on resentencing. (Padilla, at p. 158.)
    Defendant argues Padilla is on point, but the People claim Padilla is
    distinguishable because here defendant’s sentence was never vacated and the trial court
    never regained resentencing authority.
    We conclude Padilla is inapposite. In Padilla, the defendant’s sentence was
    vacated, the trial court regained the jurisdiction and duty to consider what punishment
    2
    was appropriate for him, and the defendant regained the right to appeal whatever new
    sentence was imposed, thereby rendering his judgment nonfinal. (Padilla, supra, 13
    Cal.5th at pp. 161-162.) Here, however, the court in Marsh I only conditionally reversed
    the judgment, the trial court did not regain the jurisdiction or duty to resentence (because
    the juvenile court determined that transfer to adult court was appropriate), the trial court
    reinstated the judgment without change as this court’s disposition in Marsh I required it
    to do under those circumstances, and defendant did not regain a right to appeal a new
    sentence.
    Because defendant’s judgment was final before Senate Bill 1391 went into effect,
    we will dismiss this appeal.
    BACKGROUND
    In 2013, defendant was one month shy of his 16th birthday when he “stalked a
    Davis neighborhood at night and randomly selected the home of the two victims to satisfy
    a long-standing (and oft-expressed) desire to kill, after which he mutilated their bodies.”
    (Marsh I, supra, 20 Cal.App.5th at pp. 696-697.)
    An information filed directly in adult criminal court charged defendant with two
    counts of murder (Pen. Code, § 187, subd. (a))1 and alleged various enhancements and
    special circumstances. (Marsh I, supra, 20 Cal.App.5th at p. 696.) A jury found
    defendant guilty of two counts of first degree murder committed while personally using
    a deadly weapon, and sustained three special circumstance allegations: that defendant
    committed multiple murder (§ 190.2, subd. (a)(3)), by means of torture (§ 190.2,
    subd. (a)(18)), while lying in wait (§ 190.2, subd. (a)(15)). The trial court sentenced
    defendant to 52 years to life in prison, consisting of 25 years to life for each murder plus
    an additional year for each weapon enhancement.
    1 Undesignated statutory references are to the Penal Code.
    3
    Defendant appealed his convictions and in 2018 this court rejected his argument
    regarding the applicable insanity standard but conditionally reversed and remanded the
    matter with directions to hold a transfer hearing in light of newly enacted Proposition 57.
    The new law eliminated a prosecutor’s ability to file charges directly in adult court,
    instead requiring the prosecutor to commence an action in juvenile court and then seek to
    transfer the matter to adult criminal court if appropriate. (See Marsh I, supra,
    
    20 Cal.App.5th 694
    ; see also People v. Superior Court (Alexander C.) (2019)
    
    34 Cal.App.5th 994
    , 997 (Alexander C.); People v. Superior Court (Lara) (2018)
    
    4 Cal.5th 299
    , 303 (Lara) [Proposition 57 applies retroactively to cases not yet final on
    appeal]; Welf. & Inst. Code, § 707, subd. (a)(1).)2 The California Supreme Court denied
    review (case No. S247864) and a remittitur issued on May 30, 2018.
    The Yolo County District Attorney then filed a petition under Welfare and
    Institutions Code section 602 and a motion to transfer the case to adult criminal court.
    The juvenile court granted the transfer motion and the judgment was reinstated on
    October 24, 2018. Defendant filed a writ petition in this court (case No. C088306)
    challenging the juvenile court’s orders denying his motion to continue the transfer
    hearing until after Senate Bill 1391 went into effect and transferring him to adult criminal
    court. This court summarily denied the writ petition. Senate Bill 1391 became effective
    on January 1, 2019. The California Supreme Court denied review on February 13, 2019.
    When defendant purported to appeal from the reinstated judgment, this court
    dismissed the appeal, concluding defendant’s judgment was final before Senate Bill 1391
    went into effect. (Marsh II, supra, C088553.) The California Supreme Court granted
    review and transferred the matter back to us with directions to vacate our opinion and
    2 This court treated defendant’s request for judicial notice of the appellate record in his
    first appeal, case No. C078999, as a request to incorporate the records of those
    proceedings, and granted the motion.
    4
    reconsider the cause in light of Padilla, supra, 
    13 Cal.5th 152
    . We vacated our decision
    and we have considered the supplemental briefing after transfer.
    DISCUSSION
    Defendant argues Senate Bill 1391 applies to him under In re Estrada (1965)
    
    63 Cal.2d 740
    , 742-746 (Estrada) because his case is not yet final. We review this
    question of law de novo. (See People v. Arroyo (2016) 
    62 Cal.4th 589
    , 593.)3
    A
    The decision whether to try a minor in juvenile court or adult criminal court can
    have significant consequences. (Lara, 
    supra,
     4 Cal.5th at p. 306.) While persons
    convicted of serious crimes in adult court can be punished with long prison sentences,
    juveniles tried in juvenile court generally receive more lenient treatment, with shorter
    periods of confinement and a focus on rehabilitation. (Id. at pp. 303, 306; see K.C. v.
    Superior Court (2018) 
    24 Cal.App.5th 1001
    , 1011.)
    Historically, only those minors at least 16 years of age at the time of the offense
    could be tried in adult criminal court, and then only after a judicial determination that the
    minor was unfit to be dealt with under juvenile court law. (K.L., supra, 36 Cal.App.5th at
    p. 536-537.) The minimum transfer age remained at 16 for over three decades, until
    1994, when the Legislature lowered it to 14 for certain enumerated serious or violent
    felonies. (B.M. v. Superior Court (2019) 
    40 Cal.App.5th 742
    , 750-751.) Under the 1994
    legislation, a minor as young as 14 years of age could be prosecuted in adult criminal
    court after a judicial determination of unfitness for juvenile adjudication. (K.L., at
    p. 537.)
    3 The Yolo County District Attorney filed an amicus brief agreeing with the People but
    also urging us to conclude that Senate Bill 1391 is unconstitutional because it does not
    further the intent and purpose of Proposition 57. Such a constitutional challenge was
    recently rejected by the California Supreme Court in O.G. v. Superior Court (2021)
    
    11 Cal.5th 82
    , 87.
    5
    In 2000, California voters passed Proposition 21, the Gang Violence and Juvenile
    Crime Prevention Act, which broadened the circumstances in which minors 14 years of
    age and older could be prosecuted in adult criminal court. (K.L., supra, 36 Cal.App.5th at
    p. 537; B.M. v. Superior Court, supra, 40 Cal.App.5th at p. 751.) Proposition 21
    permitted, and in some cases required, prosecutors to charge minors aged 14 or 15
    directly in adult criminal court without a judicial determination of unfitness. (Alexander
    C., 
    supra,
     34 Cal.App.5th at p. 997; see Lara, 
    supra,
     4 Cal.5th at p. 305.)
    In 2016, voters eliminated some of the changes made by Proposition 21 through
    the enactment of Proposition 57. (Alexander C., 
    supra,
     34 Cal.App.5th at p. 997.) With
    respect to juveniles, Proposition 57 “ ‘largely returned California to the historical rule’ ”
    by eliminating prosecutors’ ability to file charges against juveniles directly in criminal
    court and limiting the circumstances under which a minor could be transferred to criminal
    court by a judge. (Id. at p. 998.) Minors aged 14 or 15 could still be tried in criminal
    court for specified serious or violent offenses, but only after a juvenile court judge
    conducted a transfer hearing and decided the minor was unfit for juvenile court. (Lara,
    supra, 4 Cal.5th at pp. 305, 308.)
    Proposition 57 permits amendments without voter approval so long as the changes
    are consistent with, and further, the intent of the act. (K.L., supra, 36 Cal.App.5th at
    p. 535.) In 2018, the Legislature enacted Senate Bill 1391 (Stats. 2018, ch. 1012, § 1),
    which amended Proposition 57 by eliminating the authority of prosecutors to seek
    transfer to criminal court of a minor who was 14 or 15 years old at the time of the
    offense, “save for a narrow exception if the minor is ‘not apprehended prior to the end of
    juvenile court jurisdiction.’ (Welf. & Inst. Code, § 707, subd. (a)(2).)” (Alexander C.,
    
    supra,
     34 Cal.App.5th at p. 998.)
    B
    We agree with the parties that Senate Bill 1391 applies retroactively to nonfinal
    judgments under Estrada. (People v. Superior Court (I.R.) (2019) 
    38 Cal.App.5th 383
    ,
    6
    386; C.S. v. Superior Court (2018) 
    29 Cal.App.5th 1009
    , 1038; see Lara, 
    supra,
     4 Cal.5th
    at pp. 303-304.) The question is whether defendant’s judgment was final prior to the
    effective date of Senate Bill 1391. We consider Padilla in addressing this issue.
    Defendant originally argued that because his appeal was still pending, his case was
    not yet final. At the very least, he argued the judgment was not final until February 13,
    2019, when the Supreme Court denied review of his writ challenging the transfer order
    after remand. Under either scenario, he claimed Senate Bill 1391 requires reversal of the
    criminal judgment and remand to the juvenile court for disposition. Defendant has now
    reasserted certain arguments in his supplemental briefing. In addition, he references
    Padilla and argues it does not matter whether the vehicle for suspension of judgment is
    vacatur, conditional vacatur, reversal, or conditional reversal, suggesting this court’s
    conditional reversal in Marsh I was effectively the same, for purposes of Estrada
    retroactivity, as the vacated judgment in Padilla.
    The People disagree. They argue defendant’s judgment became final 90 days after
    the Supreme Court denied review in Marsh I; the conditional reversal was not the same
    as the order involved in Padilla in which the judgment was vacated and the matter was
    remanded for resentencing; the Marsh I disposition defined the entirety of the trial court’s
    jurisdiction to act on remand and was, in effect, a conditional affirmance if the juvenile
    court found transfer to adult court appropriate; once the juvenile court found transfer
    appropriate, the trial court only had authority to reinstate the judgment without change;
    and because the reinstated judgment had already been conditionally affirmed by this
    court, there was no new judgment from which to appeal. According to the People,
    Padilla is distinguishable.
    The defendant in Padilla was 16 years old when he murdered his mother and
    conspired to kill his stepfather. (Padilla, supra, 13 Cal.5th at p. 159.) He was tried as an
    adult and sentenced to life without the possibility of parole (LWOP). (Ibid.) His
    sentence was subsequently vacated twice based on intervening United States Supreme
    7
    Court precedent regarding juvenile LWOP sentences. (Ibid.) About two weeks after his
    sentence was vacated for the second time, the California electorate approved Proposition
    57, which “amended the law governing the punishment of juvenile offenses in adult
    criminal court by requiring hearings to determine whether the offenses should instead be
    heard in juvenile court.” (Id. at p. 158.) Estrada’s inference of retroactivity applies to
    the proposition’s juvenile provisions. (Padilla, at p. 158.)
    In Padilla the California Supreme Court considered whether Proposition 57
    applied retroactively to defendant on resentencing after his original sentence -- which had
    become final -- was vacated in a habeas proceeding. (Padilla, supra, 13 Cal.5th at pp.
    158, 163.) The Supreme Court held that Proposition 57 applied (id. at p. 158), reasoning:
    “When Padilla’s sentence was vacated, the trial court regained the jurisdiction and duty to
    consider what punishment was appropriate for him, and Padilla regained the right to
    appeal whatever new sentence was imposed.” (Id. at pp. 161-162.) The judgment in his
    case “thus became nonfinal,” and there was “no ‘constitutional obstacle’ to applying the
    Estrada presumption to his case. [Citation.]” (Padilla, at p. 162.)
    The procedural posture in the instant case is different from Padilla. In Marsh I,
    this court issued the following disposition: “The judgment of the criminal court is
    conditionally reversed and the matter remanded to the juvenile court with directions to
    hold a juvenile transfer hearing to determine defendant’s suitability for treatment in
    juvenile or criminal court within 90 days of the issuance of our remittitur. If the juvenile
    court determines that defendant is the proper subject of criminal proceedings, it shall
    reinstate the criminal judgment. If the juvenile court finds that it would not have
    transferred defendant to a court of criminal jurisdiction, then it shall deem defendant’s
    convictions to be juvenile adjudications and conduct a dispositional hearing within its
    usual time frame.” This court’s conditional reversal in Marsh I and remand for a transfer
    hearing did not disturb defendant’s murder convictions or vacate his sentence. (Andrew
    M. v. Superior Court (2020) 
    43 Cal.App.5th 1116
    , 1126.) The trial court did not regain
    8
    the jurisdiction or duty to resentence, because the juvenile court determined on remand
    that transfer to adult court was appropriate. The judgment was reinstated without change
    as required by this court’s disposition in Marsh I, and defendant did not regain a right to
    appeal a new sentence. Defendant was returned to the custody of the Department of
    Corrections and Rehabilitation to serve the remainder of his originally imposed sentence.
    “[T]he terms of the remittitur define the trial court’s jurisdiction to act. ‘The order
    of the appellate court as stated in the remittitur, “is decisive of the character of the
    judgment to which the appellant is entitled.” ’ ” (Snukal v. Flightways Manufacturing,
    Inc. (2000) 
    23 Cal.4th 754
    , 774, fn. 5.) Here, the legal effect of the disposition, as
    defendant concedes, was a conditional affirmance of the judgment should the juvenile
    court find transfer appropriate. After holding the transfer hearing, the juvenile court
    found that transferring defendant to adult criminal court was proper, and, as directed by
    our disposition, the judgment was reinstated. (§ 1265, subd. (a) [“After the certificate of
    the judgment has been remitted to the court below, . . . all orders necessary to carry the
    judgment into effect shall be made by the court to which the certificate is remitted”];
    People v. Dutra (2006) 
    145 Cal.App.4th 1359
    , 1366 [upon issuance of remittitur, “the
    trial court is revested with jurisdiction of the case, but only to carry out the judgment as
    ordered by the appellate court,” italics omitted].)
    At the time the juvenile court granted the transfer order,4 the order was only
    reviewable by a petition for extraordinary writ. (Cal. Rules of Court., rule 5.770(g).)5
    Defendant filed a writ petition challenging the juvenile court’s transfer order, this court
    4 Effective January 1, 2022, a change in the law (Stats. 2021, ch. 195, § 1) authorizes an
    appeal of an order granting transfer from juvenile to criminal court. Defendant concedes
    the new law is not applicable here.
    5 Undesignated rules references are to the California Rules of Court.
    9
    summarily denied the petition, and the California Supreme Court denied review.
    Defendant’s challenge to the transfer order is not before this court on direct appeal.
    Defendant cited People v. Wycoff (2008) 
    164 Cal.App.4th 410
    , but that case is
    inapposite. The court in Wycoff held that when a matter is remanded for the trial court to
    conduct a proper Pitchess hearing, the defendant may appeal from the reinstated
    judgment for the limited purpose of challenging the Pitchess findings, although the
    defendant cannot relitigate issues that were or could have been decided in the first appeal.
    (Id. at p. 415.) Unlike the Pitchess context in Wycoff, here defendant could not challenge
    the transfer order by direct appeal. (Rule 5.770(g).)
    It is true that when the California Supreme Court denied review of this court’s
    summary denial of the writ petition on February 13, 2019, it indicated the denial was
    without prejudice to any relief under Senate Bill 1391 to which defendant might be
    entitled on direct appeal after Senate Bill 1391’s effective date. (See D.M. v. Superior
    Court (2019) Cal. LEXIS 1031, S253054.) But we have concluded defendant is not
    entitled to such relief on direct appeal due to the finality of his judgment which, as we
    have explained, is procedurally separate and apart from the denial of writ relief.
    Defendant’s continued reliance on People v. McKenzie (2020) 
    9 Cal.5th 40
     is also
    misplaced. In that case the trial court suspended imposition of sentence and placed the
    defendant on probation, and the defendant did not appeal from the order granting
    probation. Nevertheless, the California Supreme Court held that the defendant could seek
    the benefit of ameliorative statutory amendments during a later appeal from a judgment
    revoking probation and imposing sentence. (Id. at p. 43.) The Court held that in such a
    context defendant could seek the benefit of the change in the law that took effect while
    his appeal was pending. But the procedural circumstances of McKenzie were different
    than those here, and cases are not authority for propositions not considered. (Loeffler v.
    Target Corp. (2014) 
    58 Cal.4th 1081
    , 1134.)
    10
    People v. Esquivel (2021) 
    11 Cal.5th 671
    , cited by defendant, is also
    distinguishable. In that case the trial court imposed sentence but suspended its execution
    and placed the defendant on probation. (Id. at p. 673.) The California Supreme Court
    held that “a case in which a defendant is placed on probation with execution of an
    imposed state prison sentence suspended is not yet final for [Estrada] purpose[s] if the
    defendant may still timely obtain direct review of an order revoking probation and
    causing the state prison sentence to take effect.” (Ibid.) The court reasoned that the
    defendant’s case “was not final, for purposes of the Estrada presumption, because the
    ‘criminal prosecution or proceeding’ brought against him was not complete when the
    ameliorative legislation at issue took effect.” (Id. at p. 678.) The court emphasized that
    the defendant in Esquivel “had not exhausted direct review of the order causing his
    carceral punishment to take effect. The time for him to seek that review had not
    expired.” (Ibid.)
    Unlike the circumstances in Esquivel, here the execution of defendant’s sentence
    was never stayed, he was never placed on probation, and he did exhaust review of the
    reinstated judgment. Defendant never filed a petition for writ of certiorari after the
    California Supreme Court denied review.6
    There is no indication the Legislature intended Senate Bill 1391 to apply to a final
    judgment. “While we recognize that the Legislature may expressly avail defendants
    whose judgments are final of the benefits of newly enacted laws” (People v. Chamizo
    (2019) 
    32 Cal.App.5th 696
    , 700-701 [finding Senate Bill No. 180 did not apply
    6 Defendant argues he may still seek review in the United States Supreme Court because
    he raised a federal issue in Marsh I. But it appears the time to file a petition for certiorari
    has passed. (See U.S. Supreme Ct. Rules, rule 13.1 [“A petition for a writ of certiorari
    seeking review of a judgment of a lower state court that is subject to discretionary review
    by the state court of last resort is timely when it is filed with the Clerk within 90 days
    after entry of the order denying discretionary review”].)
    11
    retroactively to final judgments]), defendant points to nothing indicating that the
    Legislature intended such a result. (Compare Proposition 36 & Proposition 47; People v.
    Rascon (2017) 
    10 Cal.App.5th 388
    , 394-395 [Proposition 64 provides mechanism for
    resentencing or dismissing all judgments, including those that are final].)
    Because the trial court’s reinstatement of the final judgment did not affect
    defendant’s substantial rights and is not appealable, the appeal must be dismissed.
    (§ 1237; People v. Fuimaono (2019) 
    32 Cal.App.5th 132
    , 135 [appeal from
    nonappealable postjudgment order must be dismissed; trial court lacked jurisdiction to
    grant defendant’s sentencing request where conviction was final, and denial of motion
    could not have affected defendant’s substantial rights and was therefore not appealable];
    People v. Chlad (1992) 
    6 Cal.App.4th 1719
    , 1726 [dismissing appeal after ruling the trial
    court lacked jurisdiction to modify the restitution fines].)
    DISPOSITION
    The appeal is dismissed.
    /S/
    MAURO, Acting P. J.
    We concur:
    /S/
    DUARTE, J.
    /S/
    RENNER, J.
    12
    

Document Info

Docket Number: C088553A

Filed Date: 3/3/2023

Precedential Status: Non-Precedential

Modified Date: 3/3/2023