P. v. Quiroz

Filed 7/16/20 P. v. Quiroz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ADOLFO QUIROZ,
Defendant and Appellant.
B296705
Los Angeles County
Super. Ct. No. MA038679
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa Mangay Chung, Judge. Conditionally
reversed, sentence vacated, and remanded with directions.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, Scott A. Taryle and Michael
Katz, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
In 2008, defendant Adolfo Quiroz was convicted of
attempted murder and criminal threats with gang and gun
enhancements, crimes he committed when he was 17 years old.
The judgment became final in 2010, but in 2018, in response to a
letter from the California Department of Corrections and
Rehabilitation (CDCR), the court resentenced defendant, adding
an additional five years to his sentence.
On appeal, defendant argues, and the People properly
concede, that we must remand for a new resentencing hearing
because the procedure used here violated defendant’s rights to be
present at sentencing, to be represented by counsel, and to retain
counsel. The People also concede that at the new resentencing
hearing, the court must reconsider every component of
defendant’s sentence; that defendant must be allowed to present
evidence of youth-related characteristics and the circumstances of
his crime; that the court must consider whether to strike the
firearm enhancement attached to count 1; and that the court
must either strike or stay the firearm enhancement attached to
count 2, because it is unauthorized. We accept the People’s
concessions, with which we agree.
Defendant also argues that he is entitled to a juvenile
transfer hearing under Proposition 57 and that his sentence of 40
years to life for a juvenile non-homicide offender is
unconstitutional. We agree with the former argument but do not
reach the latter because it is premature. We therefore vacate
defendant’s sentence, conditionally reverse his convictions, and
remand with directions.

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PROCEDURAL BACKGROUND1
By information dated June 28, 2007, defendant was directly
charged in adult court with one count of attempted first degree
murder (Pen. Code,2 § 664/187, subd. (a); count 1) and one count
of criminal threats (§ 422; count 2).3 As to count 1, the
information alleged defendant personally discharged a firearm,
causing great bodily injury (§ 12022.53, subds. (d), (e)(1)),
personally discharged a firearm (§ 12022.53, subds. (c), (e)(1)),
personally used a firearm (§ 12022.53, subds. (b), (e)), and
committed the crime for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(C)). As to count 2, the information alleged
defendant personally used a firearm (§ 12022.5, subd. (a)) and
committed the crime for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(B)).
After a jury trial, defendant was found guilty as charged.
At sentencing, the court imposed an indeterminate life term for
count 1, plus 25 years to life for the firearm enhancement and 10
years for the gang enhancement, to run consecutively. The court
struck the two lesser-included firearm enhancements. The court
imposed 11 years for count 2—the mid-term of two years plus
four years for the firearm enhancement and five years for the
gang enhancement—to run concurrently to count 1.
On appeal, a prior panel of this court ordered the trial court
to strike the 10-year gang enhancement to count 1 and to impose
a 15-year minimum parole eligibility term. (People v. Quiroz
1 The facts underlying the convictions are irrelevant to this appeal.
2 Undesignated statutory references are to the Penal Code.
3 Both crimes were committed when defendant was a juvenile.

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(Jan. 15, 2010, B208903) [nonpub. opn.].) The trial court complied
and issued an amended abstract of judgment.
On December 18, 2017, CDCR wrote the trial court a letter
noting two errors in defendant’s sentence. As relevant here, for
count 2, criminal threats (§ 422), the court had imposed a five-
year gang enhancement under section 186.22,
subdivision (b)(1)(A). But, because the section 12022.5,
subdivision (a) firearm enhancement made section 422 a violent
felony under section 667.5, subdivision (c)(8), CDCR noted that
the court should instead have imposed a 10-year gang
enhancement under section 186.22, subdivision (b)(1)(C). On
August 21, 2018, the court corrected the error ex parte, and
issued an amended minute order and amended abstract of
judgment.
This court granted defendant’s application for relief from
failure to file a timely notice of appeal.
On June 26, 2020, while this appeal was pending, Governor
Gavin Newsom commuted defendant’s sentence to 14 years to
life.4
DISCUSSION
1. The People concede resentencing is required.
The People concede the court violated defendant’s
constitutional rights to be present and to be represented by
counsel at sentencing and pronouncement of judgment, a critical
4 On June 29, 2020, defendant notified us that his sentence had been
commuted and asked us to take judicial notice of that fact and vacate
our submission. As the People have not objected, the request for
judicial notice is granted. (Evid. Code, §§ 459, subd. (a), 452, subd. (c).)
The request to vacate the submission is denied.

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stage of the criminal prosecution, and that as such, resentencing
is required. (People v. Rodriguez (1998) 17 Cal.4th 253, 257, 260;
§ 1193.) And, they agree that defendant has the right to retain
private counsel to represent him at that hearing, should he wish
to do so. (People v. O’Malley (2016) 62 Cal.4th 944, 1004.)5
The People also concede that upon remand, defendant is
entitled to a full resentencing. The “full resentencing rule allows
a court to revisit all prior sentencing decisions when resentencing
a defendant. [Citations.] For example, when a felony conviction
supplying a principal sentence term is reversed on appeal and the
case returns to the trial court for resentencing, that court must
select another conviction, if it exists, to supply the new principal
term. [Citation.] A court conducting a full resentencing also may,
as appropriate, revisit sentencing choices such as a decision to
stay a sentence [citation], to impose an upper term instead of a
middle term [citation], or to impose concurrent instead of
consecutive sentences [citation].” (People v. Valenzuela (2019)
7 Cal.5th 415, 424–425; see People v. Buycks (2018) 5 Cal.5th
857, 893 (Buycks); see People v. Navarro (2007) 40 Cal.4th 668,
681, [noting the rule allows the trial court to “exercise its
sentencing discretion in light of ... changed circumstances”].)
In fully resentencing defendant, the court must proceed
under the laws now in effect. Thus, the People concede:
◦ the court must take into account defendant’s
youth, characteristics, and the circumstances of
his crime (§ 1203.01; In re Cook (2019) 7 Cal.5th
439, 447, 451–453);
5 Defendant was represented by retained counsel at his initial
sentencing hearing in 2008.

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◦ it must decide whether to exercise its discretion
to strike the firearm enhancements under Senate
Bill No. 620 (2017–2018 Reg. Sess.);
◦ if the court opts not to strike the firearm
enhancement attached to count 2 (§ 12022.5), that
enhancement must be stayed because it may not
be imposed alongside the 10-year violent-felony
gang enhancement (§ 186.22, subd. (b)(1)(C)).
(People v. Rodriguez (2009) 47 Cal.4th 501, 508–
509 [under § 1170.1, subd. (f), when a crime
qualifies as a violent felony solely because the
defendant personally used a firearm in the
commission of that felony, the personal-use can
support either a firearm enhancement or a
violent-felony gang enhancement, but not both];
see also People v. Francis (2017) 16 Cal.App.5th
876, 879–880, 883–884 [court may not save gun
enhancement by imposing “lesser” gang
enhancement].)
We accept the People’s concessions, with which we agree.
2. Defendant is entitled to a juvenile transfer hearing.
On November 8, 2016, California voters enacted
Proposition 57. (People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 304 (Lara).) It took effect the following day. (Ibid.) Among
other things, Proposition 57 eliminated direct filing of criminal
charges against juveniles in adult court. Now, “ ‘[c]ertain
categories of minors ... can still be tried in criminal court, but
only after a juvenile court judge conducts a transfer hearing to
consider various factors such as the minor’s maturity, degree of

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criminal sophistication, prior delinquent history, and whether the
minor can be rehabilitated. [Citation.]’ [Citation.]” (Id. at p. 305.)
“Only if the juvenile court transfers the matter to adult court can
the juvenile be tried and sentenced as an adult.” (Id. at p. 303.)
The Lara court reasoned that although Proposition 57 did
not ameliorate punishment for a particular crime, it did so for a
class of people (juveniles), allowing it to apply the inference of
retroactivity set out in In re Estrada (1965) 63 Cal.2d 740
(Estrada). (Lara, supra, 4 Cal.5th at pp. 303–304, 308; see id. 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, Lara held that
Proposition 57’s juvenile transfer rules apply retroactively to “all
juveniles charged directly in adult court whose judgment was not
final at the time it was enacted.” (Id. at p. 304.)
“[F]or the purpose of 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. [Citations.]” (People v.
Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) A petition for writ of
certiorari is timely if filed within 90 days after the entry of
judgment of a state court of last resort. (U.S. Supreme Ct. Rules,
rule 13.)
Here, defendant committed the charged crimes in 2004,
when he was 17 years old. The law then in effect allowed the
prosecutor to charge him directly in adult court. Defendant was
convicted and sentenced in 2008. In 2010, the judgment was
modified on appeal. Defendant’s time to petition the United
States Supreme Court for a writ of certiorari expired later that

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year. On August 21, 2018, in response to a letter from CDCR, the
trial court resentenced him, increasing the term for count 2 by
five years. Before defendant was resentenced, however,
Proposition 57 went into effect. We must decide whether
Proposition 57’s juvenile transfer rules apply retroactively to
benefit defendant.
2.1. Proposition 57 applies retroactively to
defendant’s case.
As discussed, the People concede defendant was
resentenced in 2018. And, they concede he must be resentenced
again. Defendant contends that before that resentencing can
happen, he must be afforded a juvenile transfer hearing under
Proposition 57 and Lara, supra, 4 Cal.5th 299. The People argue
“defendant’s new sentence was not ‘final’ because it was subject to
direct review. However the conviction—in adult court—was long
final.” That is, the People argue that for purposes of retroactivity
under Estrada, supra, 63 Cal.2d 740, defendant’s convictions are
final even though his sentence is not, and, therefore, he is not
entitled to the benefit of Proposition 57’s juvenile transfer
procedure.6 We agree with defendant.7
6 The People invite us to adopt the following rule: “Estrada
retroactivity applies only to pending cases in which ameliorative
legislation becomes operative while the conviction is not final and is
subject to challenge on the initial direct review.” (Emphasis added.) We
are aware of no published authority supporting the latter premise, and
the People provide none. We therefore decline their invitation.
7 After briefing in this case was complete, our colleagues in Division
Four concluded that Proposition 57 applied retroactively to cases like
this one, in which a judgment becomes final but that final judgment is
subsequently vacated and a new judgment imposed. (People v. Padilla

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In California, it has long been the rule that in criminal
cases, the sentence is the judgment. The Supreme Court recently
reiterated this principle in People v. McKenzie (2020) 9 Cal.5th
40, in which the court explained: The “People err by assuming
that when we used the phrase ‘judgment of conviction’ in
Estrada, supra, 63 Cal.2d at page 744, we were referring only to
‘underlying’ convictions and enhancement findings, exclusive of
sentence. In criminal actions, the terms ‘judgment’ and
‘ “sentence” ’ are generally considered ‘synonymous’ [citation],
and there is no ‘judgment of conviction’ without a sentence
[citation].” (McKenzie, at p. 46.)8
Certainly, the judgment in defendant’s case initially
became final in 2010. But, when the trial court resentenced him
in 2018, it vacated that judgment and imposed a new one. And
that new judgment, the People concede, is not yet final. Because
Proposition 57 was enacted in the period between the two
judgments, defendant is entitled to its benefits. (See People v.
Garcia (2018) 30 Cal.App.5th 316, 324 [Proposition 57 applies
retroactively to cases that are not yet final].)
2.2. Defendant is entitled to a transfer hearing under
the full resentencing rule.
The People also appear to contend that affording defendant
a juvenile transfer hearing would exceed the scope of the limited
(2020) 50 Cal.App.5th 244.) The next day, Division Two of the Fourth
Appellate District came to the opposite conclusion. (People v. Federico
(2020) 50 Cal.App.5th 318.) We agree with Padilla.
8 Although McKenzie was decided after the People filed their
respondent’s brief, they acknowledged that McKenzie would decide the
“related issue” of the finality of a criminal judgment.

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issue before us: defendant’s resentencing. The People are
mistaken.
As discussed, where, as here, “ ‘a case is remanded for
resentencing by an appellate court, the trial court is entitled to
consider the entire sentencing scheme.’ ” (People v. Ramirez
(2019) 35 Cal.App.5th 55, 64.) Under this “ ‘full resentencing
rule,’ ” a resentencing court can modify every aspect of the
sentence, and may consider “ ‘any pertinent circumstances which
have arisen since the prior sentence was imposed.’ ” (Buycks,
supra, 5 Cal.5th at p. 893.) Because a juvenile defendant entitled
to the benefit of Proposition 57 cannot be “sentenced as an adult”
if the juvenile court has not transferred him to adult court, the
trial court on remand must comply with Proposition 57’s juvenile
transfer procedure before it can resentence him. (Ramirez, at
p. 64; accord, People v. Cervantes (2017) 9 Cal.App.5th 569, 612
[“a juvenile felon may not be ‘sentenced in adult court’ without a
prior transfer hearing under Welfare and Institutions Code
section 707, subdivision (a), if he or she so requests”],
disapproved on other grounds by Lara, supra, 4 Cal.5th at
pp. 314–315.)
Moreover, Proposition 57’s juvenile court transfer
provisions neither constitute a new rule of procedure for criminal
cases nor undermine the jury’s finding of guilt. To be sure,
Proposition 57 provides that all charges against a juvenile must
be brought in juvenile court unless the juvenile court decides to
transfer the matter to criminal court—but that transfer
procedure does not undermine defendant’s convictions. Even if
defendant is found unfit for adult court, the “jury’s convictions, as
well as its true findings as to the sentencing enhancements, will
remain in place. Nothing is to be gained by having a

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‘dispositional hearing,’ or effectively a second trial, in the juvenile
court.” (People v. Vela (2018) 21 Cal.App.5th 1099, 1112; accord,
Lara, supra, 4 Cal.5th at pp. 310, 313; People v. Hargis (2019) 33
Cal.App.5th 199, 210.)
3. Because the court may sentence defendant to a shorter
term on remand, we do not address the
constitutionality of his current sentence.
Citing People v. Contreras (2018) 4 Cal.5th 349 and
Graham v. Florida (2010) 560 U.S. 48, defendant contends the
sentence of 40 years to life imposed for his juvenile, non-homicide
convictions violates the Eighth Amendment. His argument is
premature, and we decline to reach this issue.
It is possible that upon remand, counts 1 and 2 may not be
transferred to adult court, in which case, the constitutionality of
defendant’s current sentence will become irrelevant. “And even
assuming the case is transferred, the trial court has yet to
determine [defendant’s] sentence and his earliest parole
eligibility date. Until a new sentence is imposed, it is uncertain
whether the same constitutional concerns will arise. Accordingly,
we decline to issue an advisory opinion addressing those
concerns.” (People v. Garcia, supra, 30 Cal.App.5th at p. 328; see
People v. Bennett (1998) 17 Cal.4th 373, 393 (conc. opn. of
Werdegar, J.) [“Principles of judicial restraint counsel that we not
reach out to decide gratuitously constitutional questions of first
impression. Sound jurisprudence dictates that such issues be
decided only in the context of cases and controversies actually
raising the issue.”].)

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DISPOSITION
The convictions are conditionally reversed, the sentence is
vacated, and the matter is remanded with directions to conduct a
juvenile transfer hearing under Lara, supra, 4 Cal.5th 299. If the
juvenile court determines it would have transferred defendant to
a court of criminal (adult) jurisdiction, defendant’s convictions
shall be reinstated and the court shall exercise its discretion to
resentence him in a manner consistent with the views expressed
in section 1 of the discussion. If the juvenile court finds that it
would not have transferred defendant to a court of criminal
jurisdiction, it shall treat his convictions as juvenile adjudications
and impose an appropriate disposition within its discretion. (Id.
at p. 310.)
NOT TO BE PUBLISHED IN THE OFFICAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
DHANIDINA, J.

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