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Name: People v. Cervantes
Case #: A140464
Court: CA Court of Appeal
District 1 DCA
Division: 6
Opinion Date: 03/09/2017

Proposition 57 is not retroactive, but applied prospectively, it requires a fitness hearing before a juvenile felon is tried in adult court initially or on remand. Cervantes was sentenced to 66 years to life for a rape and attempted murder he committed when 14 years old. Provided the nature of the offenses, it was mandatory to try him as an adult. Cervantes appealed, raising a number of issues, including ineffective assistance of trial counsel. While his appeal was pending, the voters passed Proposition 57, which eliminated mandatory filing and also eliminated a prosecutor’s discretion to charge a juvenile offender as an adult. Instead, a petition must be filed the juvenile court, which can order the cause transferred for prosecution as an adult after a fitness hearing. Cervantes argued that his case should be remanded for a fitness hearing because his case was pending on appeal when the voters passed Proposition 57 (citing In re Estrada (1965) 63 Cal.2d 740). Held: Reversed and remanded for a fitness hearing. Generally, laws operate prospectively only. However, Estrada sets forth an exception to that rule. It provides that a law passed that lessens punishment should retroactively apply to cases pending on appeal. There is language in People v. Brown (2012) 54 Cal.4th 314, 325, stating that Estrada only applies to laws lessening punishment for a “particular crime.” Proposition 57 does not lessen punishment for “a particular crime.” It is unlike laws to which Estrada typically applies and analogous to those to which it does not. Accordingly, Proposition 57 does not apply retroactively. However, if the People refile charges on the eight specific intent counts that were reversed (in the unpublished portion of the opinion) on account of trial counsel’s ineffectiveness, Proposition 57 prospectively applies and a fitness hearing is required before those charges can be transferred for prosecution as an adult. If the People do not refile charges, Cervantes will need to be resentenced on the affirmed counts and Proposition 57 prospectively requires a fitness hearing before that can occur in adult court. Either way, Cervantes is entitled to a fitness hearing.

Sentence of 66 years to life is the functional equivalent to LWOP. Cervantes also argued that his 66 years to life sentence was unconstitutional under Graham v. Florida (2010) 560 U.S. 48, and People v. Caballero (2012) 55 Cal.4th 262, 268, which prohibit LWOP and sentences that are the functional equivalent to LWOP for juvenile nonhomicide offenders. The Court of Appeal agreed. As a threshold matter, Penal Code section 3051, which provides for parole eligibility for certain juvenile offenders, does not apply to Cervantes due to the nature of his offenses. The 66 year sentence exceeds Cervantes’ life expectancy and therefore is unconstitutional under Caballero because the “life expectancy for a Hispanic male born in California between 1995 and 1997 is 79 years” and Cervantes will not be eligible for parole until he turns 80. [Editor’s Note: The issue of whether a total sentence of 50 years to life or 58 years to life is the functional equivalent of LWOP is currently pending before the California Supreme Court in People v. Contreras (Jan. 14, 2015, D063428) [nonpub. opn.] (S224564).]

The full opinion is available on the court’s website here: