People v. Barboza

Filed 3/14/18; Certified for Publication 4/9/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A150888 v. MARIO ARTURO BARBOZA, (San Francisco County Super. Ct. No. SCN216914) Defendant and Appellant.

INTRODUCTION Defendant Barboza argues his robbery conviction should be reversed and remanded to juvenile court pursuant to Proposition 57, which abolished the direct filing of criminal charges against juveniles in adult criminal court. Our Supreme Court’s recent decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) vindicates defendant’s position that Proposition 57 is retroactive. However, defendant does not benefit from Lara because the judgment in his case is final. STATEMENT OF THE CASE On November 29, 2011, the San Francisco District Attorney filed a multi-count information in superior court charging Barboza with various felonies and enhancement allegations. On July 1, 2016, pursuant to a negotiated disposition, Barboza pleaded guilty to one count of robbery (Pen. Code, § 211) and admitted an armed-with-a-firearm allegation (Pen. Code, § 12022, subd. (a)(1)). The remaining counts and enhancement allegations were dismissed by the court on the prosecution’s motion. The information,

filed directly in adult court, alleged that at the time of the commission of the offense, defendant was a minor 16 years of age or older within the meaning of Welfare and Institutions Code section 707, former subdivision (d)(1).) On July 25, 2016, the trial court imposed a six-year prison sentence, suspended execution of that sentence, and placed defendant on formal probation for five years on various terms and conditions. Defendant did not appeal. On November 8, 2016, the voters approved Proposition 57, which repealed section 707, former subdivision (d) (Prop. 57, § 4.2, as approved by voters, Gen. Elec. (Nov. 8, 2016), eff. Nov. 9, 2016) and now requires “a judge, not a prosecutor, to decide whether juveniles should be tried in adult court.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 2, p.141; § 707, subd. (a)(1).) On December 8, 2016, defendant filed a motion requesting his case be remanded to the juvenile court on the ground that Proposition 57’s repeal of section 707, subdivision (d) applies retroactively to minors whose nonfinal convictions rest on charges directly filed in adult court. The motion was denied. Defendant timely appeals. 1 DISCUSSION In Lara, supra, 4 Cal.5th 299, our Supreme Court held the rationale of In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66 applies to a statutory change that makes reduced punishment possible. (Lara, at p. 303.) “The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada’s inference of retroactivity applies. As nothing in Proposition 57’s text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly