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Name: People v. Thomas
Case #: F037501
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 11/08/2002
Subsequent History: 1/29/03: Rev. granted, transferred back to 5DCA with directions to vacate opn. & reconsider in light of WIC 1723.6

The Court of Appeal remanded the matter for consideration of whether a juvenile tried as an adult under the “discretionary filing” provision of Proposition 21 (Welf. & Inst. Code, sec. 707, subd. (d)), should be remanded for treatment within the juvenile court. The trial court had stated that the superior court could not remand the 15-year-old minor found guilty of robbery because an enhancement for discharge of a fireman within the meaning of section 12022.53 had been found true, and that enhancement could not be stricken. The Court of Appeal held that Penal Code section 1170.19, subdivision (a)(4) expressly provides for the remand. To the extent that it requires the trial court to first secure the prosecutor’s consent before remanding for a juvenile disposition, the statute is unconstitutional. Although Mandeley v. Superior Court (2002) 27 Cal.4th 537, upholds the constitutionality of allocating choice-of-court decisions to the prosecution, the plain meaning of section 1170.19, subdivision (a) gives the superior court post-trial power to remand in the situation a minor tried as an adult under the discretionary filing provisions. The remedy where, as here, the trial court erroneously believes that there is no power to exercise discretion is to remand the matter for exercise of the court’s “informed discretion.”