In re Moore

Filed 6/19/20 In re Moore CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re ROOSEVELT MOORE
on
Habeas Corpus.
B299307
(Los Angeles County
Super. Ct. No. NA007617)
ORIGINAL PROCEEDINGS in Habeas Corpus. Superior
Court of Los Angeles County, Richard R. Romero, Judge. Petition
granted.
Brad Kaiserman, under appointment by the Court of
Appeal, for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Acting
Senior Assistant Attorney General, David E. Madeo, Acting
Supervisory Deputy Attorney General, and Nancy Lii Ladner,
Deputy Attorney General, for Plaintiff and Respondent.

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The parties to this appeal agree petitioner Roosevelt Moore
(Moore) is entitled to a juvenile court transfer hearing under a
retroactive application of the Public Safety and Rehabilitation
Act of 2016 (Proposition 57) if his criminal judgment was not
final at the time of the proposition’s passage. Finality is
therefore the key issue we decide.
I. BACKGROUND
In 1992, a jury convicted Moore of nine counts of forcible
rape (Pen. Code, § 261, subd. (a)(2));1 seven counts of forcible oral
copulation (§ 288a, subd. (c)); two counts of attempted second
degree robbery (§§ 664, 211); two counts of second degree robbery
(§ 211); forcible sodomy (§ 286, subd. (c)); kidnapping with intent
to commit a felony sex offense (§§ 207, 667.8, subd. (a)); genital
penetration by a foreign object (§ 289); and unlawful driving or
taking of a vehicle (Veh. Code, § 10851, subd. (a)). He was 16
years old at the time he committed his crimes. (Moore v. Biter
(9th Cir. 2013) 725 F.3d 1184, 1186.) The trial court sentenced
Moore to 254 years and 4 months in prison. On direct appeal,
this court affirmed the judgment. (People v. Moore (May 27,
1993, B065363).)
Almost two decades later, the United States Supreme
Court filed its opinion in Graham v. Florida (2010) 560 U.S. 48
(Graham). Graham holds imposition of life without parole
(LWOP) sentences on juveniles who were not convicted of a
homicide violates the Eighth Amendment. (Graham, supra, 560
U.S. at 82.) In response to Graham, Moore filed habeas corpus
petitions in the trial court, this court, and our Supreme Court, all
1 Undesignated statutory references that follow are to the
Penal Code.

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arguing his sentence was tantamount to life in prison and
therefore unconstitutional. (Moore v. Biter, supra, 725 F.3d at
1187.) These petitions were denied, as was a habeas petition
filed in Federal district court. (Ibid.)
Then, in August 2013, the U.S. Court of Appeals for the
Ninth Circuit reversed the district court’s denial of Moore’s
habeas petition. (Moore v. Biter, supra, 725 F.3d at 1186.) Citing
Graham, the Ninth Circuit held Moore’s sentence was materially
indistinguishable from an LWOP sentence and therefore
unconstitutional because Moore did not commit a homicide. (Id.
at 1191-1192, 1194.) On remand, the district court issued a
conditional writ of habeas corpus giving the state 90 days in
which to either resentence Moore in a manner consistent with
Graham or release him.
In October 2014, the trial court reimposed the same 254
years and 4 month sentence but ordered the Department of
Corrections and Rehabilitation to provide Moore a parole hearing
on his 62nd birthday. The trial court stated that it considered all
the arguments at the original sentencing as well as the
mitigating circumstances at the time, including youth-related
factors.
This court initially affirmed the judgment following
resentencing. (People v. Moore (Dec. 8, 2015, B260667) [nonpub.
opn.].) The filed opinion did not, however, address the
application of section 3051—newly enacted legislation that in
some cases had the effect of shortening the time in which young
incarcerated felons must be given a youth offender parole
hearing. (§ 3051, subd. (b)(1) [“A person who was convicted of a
controlling offense that was committed when the person was 25
years of age or younger and for which the sentence is a

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determinate sentence shall be eligible for release on parole at a
youth offender parole hearing during the person’s 15th year of
incarceration”].) Moore petitioned for review.
On August 17, 2016, our Supreme Court ordered the matter
transferred back to this court “with directions to vacate its
decision and reconsider the cause in light of People v. Franklin
(2016) 63 Cal.4th 261, 268-269, 283-284.”2 The following month,
this court issued an order vacating the December 8, 2015, opinion
and resetting the matter for oral argument.
In the meantime, California voters approved Proposition
57. Before its passage, “prosecutors were permitted, and
sometimes required, to file charges against a juvenile [defendant]
directly in criminal court, where the juvenile would be treated as
an adult.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
305 (Lara).) Proposition 57, however, “‘amended the Welfare and
Institutions Code so as to eliminate direct filing by prosecutors.
Certain categories of minors . . . c[ould] 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 criminal sophistication, prior delinquent history, and
whether the minor c[ould] be rehabilitated. [Citation.]’
[Citation.]” (Id. at 305-306.) Proposition 57 took effect on
November 9, 2016.
Months later, in January 2017, we held Moore’s appeal of
the reimposed 254-year sentence was mooted by enactment of
section 3051. (People v. Moore (Jan. 24, 2017, B260667) [nonpub.
2 Franklin held a remand was required so a defendant, who
was a minor at the time of his commitment offense, could develop
a record of youth-related factors to be used at a future youth
offender parole hearing. (Franklin, supra, 63 Cal.4th at 269.)

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opn.].) Our disposition in that opinion reads as follows: “The
appeal is moot. The sentence is affirmed and the case is
remanded to the trial court to determine whether
defendant . . . had sufficient opportunity to establish a record of
information relevant to a parole determination made pursuant to
. . . sections 3051 and 4801.” (Ibid.) Moore petitioned for review
of this decision too, but our Supreme Court denied review on May
10, 2017.
The following year, our Supreme Court decided Lara, which
held Proposition 57 applies retroactively to all juveniles charged
directly in adult court whose judgments were not final at the time
it was enacted. (Lara, supra, 4 Cal.5th at 309 [“Proposition 57 is
an ‘ameliorative change[ ] to the criminal law’ that we infer the
legislative body intended ‘to extend as broadly as possible’”]; see
also id. at 303-304 [Proposition 57’s changes to the law governing
juvenile court transfer hearings “appl[y] to all juveniles charged
directly in adult court whose judgment was not final at the time
it was enacted”].)
After Lara, and expressly invoking that case’s holding,
Moore filed a “Motion to Conditionally Reverse [his] convictions
and sentence pending transfer hearing in juvenile court . . . .”
The superior court denied the motion, believing Proposition 57
did not apply to Moore because his criminal judgment had
become final before the proposition became effective. Moore then
filed an uncounseled petition for writ of mandate in this court.
We construed Moore’s filing as a petition for writ of habeas
corpus and directed the Attorney General to file an informal
response addressing (1) whether Moore’s judgment was final at
the time Proposition 57 was enacted, and (2) if Moore’s judgment
was not final, whether he is entitled to a transfer hearing under

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Proposition 57 even though he had previously received a fitness
hearing under the provisions of Welfare and Institutions Code
section 707 before they were substantively amended by
Proposition 57.
The Attorney General’s informal response conceded Moore
is entitled to a new transfer hearing under current law if his
judgment was not final at the time Proposition 57 took effect.
But the Attorney General maintained Moore was not entitled to
relief because (and only because) his conviction was then already
final. We issued an order to show cause, appointed counsel for
Moore, permitted the filing of an amended petition, and
considered further briefing by the parties, including
supplemental briefing on the effect, if any, of a recent decision by
our Supreme Court in a different but arguably pertinent context.
(People v. McKenzie (2020) 9 Cal.5th 40, 46 (McKenzie).)
II. DISCUSSION
In California (and in the Federal system for that matter
(Berman v. United States (1937) 302 U.S. 211, 212)), the sentence
imposed on a defendant constitutes the criminal judgment.
(McKenzie, supra, 9 Cal.5th at 46; People v. Karaman (1992) 4
Cal.4th 335, 344, fn. 9 (Karaman); People v. Tokich (1954) 128
Cal.App.2d 515, 519.) And that is precisely how the Lara court
understood background legal principles when it set limits on the
retroactivity of Proposition 57. As the court explained, “‘[t]he
Estrada[3] rule rests on an inference that, in the absence of
contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that
3 In re Estrada (1965) 63 Cal.2d 740 (Estrada).

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are final and sentences that are not.’” (Lara, supra, 4 Cal.5th at
308, italics added.) The proper result here, as we shall explain, is
therefore straightforward: Moore is entitled to the retroactive
benefit of Proposition 57’s changes to the Welfare and
Institutions Code because his judgment—his sentence—was not
final when Proposition 57 took effect in November 2016. The
points the Attorney General offers to argue the contrary are all
meritless.
Proposition 57 amended Welfare and Institutions Code
section 707, the statute that governs when a juvenile can be tried
in a court of criminal jurisdiction rather than in juvenile court.
The proposition’s amendments eliminated the presumption that
minors accused of certain serious crimes were unfit for juvenile
court proceedings and must be tried in a court of criminal
jurisdiction (i.e., “adult court”). Proposition 57 also eliminated
the requirement that minors charged with serious offenses must
satisfy “each and every” one of five “fitness” criteria4 before being
found fit to be dealt with in juvenile court. These changes make
it relatively easier for a juvenile to be found fit for juvenile court
proceedings, and as Lara explains, such a determination often
carries with it quite significant sentencing benefits. (Lara, supra,
4 Cal.5th at 306 [“We must decide whether this requirement of a
transfer hearing before a juvenile can be tried as an adult applies
4 The five criteria are: (1) the degree of criminal
sophistication exhibited by the minor, (2) whether the minor can
be rehabilitated prior to the expiration of the juvenile court’s
jurisdiction, (3) the minor’s previous delinquent history, (4) the
success of previous attempts by the juvenile court to rehabilitate
the minor, and (5) the circumstances and gravity of the offense(s)
the minor was alleged to have committed. (Welf. & Inst. Code,
§ 707, subd. (a)(3).)

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to defendant even though he had already been charged in adult
court before Proposition 57 took effect. The question has
potentially major consequences for juveniles like defendant.
While a person convicted of serious crimes in adult court can be
punished by a long prison sentence, juveniles are generally
treated quite differently, with rehabilitation as the goal”].)
Lara holds the changes worked by Proposition 57 apply to
all juveniles whose judgment was not final at the time the
proposition was enacted. (Lara, supra, 4 Cal.5th at 304; see also
id. at 307 [quoting Estrada’s holding that an “‘amendatory act
imposing . . . lighter punishment can be applied constitutionally
to acts committed before its passage provided the judgment
convicting the defendant of the act is not final’”].) Importantly,
Lara also observes finality for retroactivity purposes is calculated
from the time at which a defendant’s sentence becomes final, and
that is consistent with well-established law. (Lara, supra, at 308
[“‘[A] legislative body ordinarily intends for ameliorative changes
to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final
and sentences that are not’”]; see also § 1237, subd. (a)
[authorizing appeals from a final judgment of conviction, defined
as a sentence, an order granting probation, a commitment of a
defendant for insanity, an indeterminate commitment of a
defendant as a mentally disordered sex offender, or a
commitment of a defendant for controlled substance addiction];
McKenzie, supra, 9 Cal.5th at 46 [“[T]he 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

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“‘sentence’” are generally considered ‘synonymous’ (People v.
Spencer (1969) 71 Cal.2d 933, 935, fn. 1[ ]), and there is no
‘judgment of conviction’ without a sentence [citation]”]; Karaman,
supra, 4 Cal.4th at 344, fn. 9 [“In a criminal case, judgment is
rendered when the trial court orally pronounces sentence”].)
Here, Moore’s sentence was invalidated in 2013 by the
Ninth Circuit, requiring that he either be resentenced in
accordance with constitutional standards or released from
custody. At that moment, there was no final judgment of
conviction because there was no existing sentence. The trial
court reimposed sentence in October 2014, but that sentence, and
thus the judgment, was not final for retroactivity purposes until
disposition in the highest court authorized to review it.
(McKenzie, supra, 9 Cal.5th at 45.) That did not occur until 90
days after May 10, 2017, when our Supreme Court finally denied
review of this court’s January 24, 2017, opinion. (People v. Vieira
(2005) 35 Cal.4th 264, 306; 28 U.S.C. § 2101(d); U.S. Supreme Ct.
Rules, rule 13(1).) By then, Proposition 57 had been in effect for
months. Because Proposition 57’s effective date preceded the
date on which Moore’s judgment was final, he is entitled to
retroactive application of Proposition 57. And as the Attorney
General has conceded, that means a new juvenile court fitness
hearing is required. (People v. Garcia (2018) 30 Cal.App.5th 316,
324-325 (Garcia).)
Our conclusion is consistent with the result reached in
Garcia. In that case, the defendant was convicted in 1996 of
multiple violent sex offenses and sentenced to 94 years to life in
prison. (Garcia, supra, 30 Cal.App.5th at 319.) Over a decade
later, long after the time for direct appeal expired, defendant
filed a habeas petition challenging his sentence as

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unconstitutional under the Graham line of cases. (Id. at 320.)
The trial court agreed and resentenced defendant, and defendant
then argued Proposition 57 (which had taken effect) required the
Court of Appeal to vacate the sentence, conditionally reverse the
defendant’s convictions, and remand to the trial court with
directions to refer the case to the juvenile court for a transfer
hearing to determine the propriety of prosecution of the case in
adult criminal court. (Ibid.) The Court of Appeal agreed with
Garcia and conditionally reversed for further proceedings
pursuant to Proposition 57 without any opposition from the
Attorney General. (Id. at 320, 324, 330.)
The Attorney General argues Garcia should be ignored for
two reasons, both unpersuasive. The Attorney General states,
correctly, that the issue of finality was conceded in Garcia but
contested here. The Garcia court, however, was not required to
accept the concession (but did), and the Attorney General
provides no explanation of why his position on the issue of
finality has changed. The Attorney General also argues Garcia is
wrongly decided and its outcome should not be duplicated, but
the Attorney General is hard pressed to criticize a result in which
he acquiesced and, again, Garcia’s outcome is consistent with our
own independent analysis.
The Attorney General additionally relies on People v. Kemp
(1974) 10 Cal.3d 611 (Kemp) but that case is an unreliable guide
here. In Kemp, the defendant was sentenced to death for murder
but “the judgment was [later] vacated [on habeas corpus] insofar
as it imposed the death penalty and was affirmed in all other
respects.” (Id. at 613-614.) On retrial of the penalty phase, a
judgment of death was again imposed. (Ibid.) On appeal, and
“[i]n response to [the Supreme Court’s] invitation to state a claim

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under any applicable retroactive constitutional decision of the
United States Supreme Court or of this court filed after
affirmance of this judgment on the issue of guilt,” the defendant
sought to raise an evidentiary challenge to his convictions. (Id. at
613.) The Kemp court held such a challenge was beyond the
scope of the appeal because the judgment had been vacated only
insofar as it related to the death penalty and the original
judgment on the issue of guilt remained final during the retrial of
the penalty issue and all subsequent appellate proceedings. (Id.
at 614.) Here, because the issue of juvenile court fitness has “has
potentially major consequences” for Moore’s sentencing exposure
(Lara, supra, 4 Cal.5th at 306), and because the validity of
Moore’s sentence was very much still at issue in his direct
appeals following the resentencing ordered by the Ninth Circuit,
Kemp’s penalty-based holding is inapposite.
In the end, the Attorney General’s position in this appeal is
perhaps best captured by his observation that “it simply cannot
be the case that the voters intended the provisions of Proposition
57 to apply to a person such as [Moore], who committed heinous
crimes, is now in his 40s, and could not even receive the benefits
of rehabilitation from being treated as a juvenile . . . .” These
assertions are appropriately among the considerations the trial
court will assess when deciding whether Moore is fit for juvenile
court proceedings, but they are no valid reason to forestall the
court from undertaking such consideration at all.

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DISPOSITION
The petition for writ of habeas corpus is granted and the
judgment is vacated. The cause is remanded to the juvenile court
with directions to hold a transfer hearing under Welfare and
Institutions Code section 707, assuming the prosecution moves
for such a hearing, no later than 90 days from the date the
remittitur issues. If, after the hearing, the juvenile court
determines it would transfer Moore to a court of criminal
jurisdiction under current law, the judgment of conviction shall
be reinstated as of the date of that determination.
If no motion for a transfer hearing is filed, or if a transfer
hearing is held and the juvenile court determines it would not
transfer Moore to a court of criminal jurisdiction, Moore’s
criminal convictions will be deemed to be juvenile adjudications
as of the date of the juvenile court’s determination. In the event
the convictions are deemed juvenile adjudications, the juvenile
court shall hold a disposition hearing and craft an appropriate
disposition within the court’s discretion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J. KIM, J.

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