P. v. Wade

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Filed 6/21/17 P. v. Wade CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MAX WADE,
Defendant and Appellant.
A141133
(Marin County
Super. Ct. No. SC180336)
Max Wade appeals from a judgment sentencing him to prison after a jury
convicted him of attempted premeditated murder with an allegation that he had
personally discharged a firearm (Pen. Code, §§ 187/664, subd. (a), 12022.53, subd. (c)),
shooting at an occupied motor vehicle (Pen. Code, § 246), taking or driving a motor
vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)), and receiving a
stolen vehicle (Pen. Code, § 496d, subd. (a)). The first two counts arose from an incident
in which he pulled up to a truck while riding on a motorcycle and fired several shots
toward the two teenagers inside. The last two counts arose from his possession of a
Lamborghini that had been stolen from a car dealership about a year before the shooting.
Appellant contends: (1) the counts involving the stolen car should not have been
joined with the counts involving the shooting; (2) the trial court should have excluded
prejudicial evidence about his flight from police at the time of his arrest and his
possession of a handgun not involved in the shooting; (3) the evidence was insufficient to
support the attempted murder charge; (4) the court should have instructed the jury on

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attempted voluntary manslaughter as a lesser included offense; (5) the court erred by
giving a flight instruction; (6) the court inadvertently failed to give standard jury
instructions pertaining to the evaluation of evidence; (7) the court did not adequately
respond to a jury question regarding the nature of the direct but ineffectual step required
for a criminal attempt; (8) the cumulative effect of the trial errors requires reversal;
(9) the case must be remanded for a “fitness” hearing before a juvenile court judge
pursuant to The Public Safety and Rehabilitation Act of 2016 (Proposition 57), which
was enacted while this appeal was pending; and (10) his prison term of life plus 21 years
four months was cruel and unusual punishment because he was a juvenile when he
committed the offenses. We agree the case must be remanded for a fitness hearing under
Proposition 57, but reject appellant’s other claims of error.
BACKGROUND
A. The Theft of the Lamborghini
On the morning of March 8, 2011, employees of the British Motors car dealership
in San Francisco discovered that a 2008 yellow Lamborghini Spyder with the license
plate GUYTORO had been stolen from the service area. Police officers responding to the
reported theft noticed a rope dangling from the dealership’s roof that passed by an open
window. The lock on the rollup door on the ground floor had been cut, and by that door
was a bag containing bolt cutters and a pry bar. Investigators concluded a burglar had
rappelled down from the roof, entered through the window and stolen the Lamborghini.
The keys to the Lamborghini had been left inside the vehicle and would have defeated the
car’s antitheft device.
A surveillance video from the dealership’s security system showed that the rope
had been dropped from the roof at 4:04 a.m. Traffic cameras 12.3 miles away in Tiburon
captured images of the Lamborghini later than morning: at 4:40 a.m., the car drove into
town with the GUYTORO license plate still attached, and at 6:13 a.m., it drove out of
town bearing the license plate 6LGP223, which had been reported stolen the day before.

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B. The Mill Valley Shooting
On April 13, 2012, 18-year-old Landon Wahlstrom was dating 17-year-old Eva
Dedier. Between 11:00 a.m. and 11:30 a.m., the two left Wahlstrom’s house in Mill
Valley and got into his pickup truck parked outside. As Wahlstrom was pulling out with
Dedier in the passenger seat, he saw a motorcycle approaching from behind and stopped
to yield to it.
The motorcycle pulled up parallel with the truck on the driver’s side, only a few
feet away from Wahlstrom. The motorcycle was dark and the rider was wearing a helmet
with tint on the visor, black gloves, black pants, a black vest, a black sweatshirt and a
neck guard. Wahlstrom and Dedier could not see his face or skin color. The rider pulled
out a black .38 caliber revolver and fired it five times toward Wahlstrom and Dedier. The
two of them ducked, and the shots shattered the driver’s side window without hitting
them. Wahlstrom looked up and saw the rider with nothing in his hands, looking around
on the ground. He drove his truck away from his house and stopped when he saw police
cars.
C. The Investigation and Appellant’s Arrest
Investigators found several bullet impact sites and three bullets in the passenger
compartment of Wahlstrom’s truck, and an expert in crime scene reconstruction and
gunshot trajectory analysis opined that two of the bullets would have hit Wahlstrom had
he not ducked. Four bullet impact sites were found in a fence near the place where
Wahlstrom’s truck had been parked at the time of the shooting.
Witnesses had seen the motorcycle and rider parked in a Whole Foods parking lot
about 200 feet away from Wahlstrom’s house on the morning of the shooting.
Surveillance footage from the Golden Gate Bridge showed a motorcycle and rider
matching the shooter’s description going through the toll gates into San Francisco at
11:35 a.m., with license plate 18C2791 The plate was later reported stolen from an
unrelated motorcycle.
Surveillance footage from a Chevron gas station 2.9 miles from Wahlstrom’s
house showed the motorcycle rider entered the store of the station at 10:25 a.m. on the

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day of the shooting without removing his helmet or visor. An investigating deputy
recognized the helmet as a Bilt brand helmet, which was available only from the Cycle
Gear chain of stores. An employee of the nearest Cycle Gear shop found a receipt for a
transaction on April 12, 2012, the day before the shooting, for the sale of a helmet, a
mirrored face shield, gloves, a vest and a neck guard. The transaction was captured on a
security video and appellant was identified as the purchaser.
Investigators spoke to Dedier about appellant and learned she had been getting
fake ID’s from appellant and had never been asked to pay for them. Dedier had met with
appellant a total of five or six times to obtain the ID’s, but had never socialized with him
for any other purpose. She had seen him driving a yellow Lamborghini and he once
offered to let her drive it. During a series of text messages, appellant had asked Dedier
about her Valentine’s Day plans and Dedier mentioned she was expecting to get
something from Tiffany’s from her boyfriend Landon. Appellant, who knew Wahlstrom
from middle school, responded, “Ha, ha, ha. Landon from Del Mar Landon. You’ll get a
box of chocolates.” Appellant had called Dedier “gorgeous,” “babe,” and “princess,” and
she described his typical tone with her as friendly and sometimes flirty.
At the investigators’ request, Dedier set up a pretextual meeting with appellant on
April 26, 2012. She called him and asked for a new fake ID and specifically requested
that he meet her in his Lamborghini. Once surveillance units saw appellant driving a
yellow Lamborghini to the meeting spot, they had Dedier call to cancel the meeting.
Officers followed appellant to a self-storage facility in Richmond, where he parked the
Lamborghini in unit 152. Three of them approached appellant in a car and identified
themselves as law enforcement, at which time appellant reached near the front of his
waistband. The officers got out, identified themselves and repeatedly yelled for appellant
to raise his hands, but he ran away, grasping at his waistband. Another car full of officers
arrived and appellant was eventually subdued, though he continued to struggle and keep
his hand in his waistband. Upon his arrest, officers found an operable, loaded Glock
pistol in his waistband, four loaded magazines in his pocket, and the Lamborghini key.

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Inside storage unit 152 was the yellow Lamborghini that had been stolen from
British Motors the previous year, a climbing harness, a dark red Honda motorcycle with
the same stolen license plate as that captured on the surveillance camera from the Golden
Gate Bridge on the day of the shooting, motorcycle clothing and gear identified as that
worn by the motorcycle rider who had shot at Wahlstrom and Dedier, and paperwork in
the name of appellant and “Carmine Colombo,” a name used on a Texas ID that was
found bearing appellant’s photograph.
Also found in the storage unit was a .38 revolver that had been fired five times and
contained one unfired bullet. The revolver could only fire in single action mode,
meaning a shooter must manually cock the hammer for each shot. Testing showed that
bullet fragments recovered from the Mill Valley shooting had been fired by the revolver.
DNA recovered from the trigger was inconclusive but did not exclude appellant as a
contributor.
The storage unit had been rented in 2011 by someone named “Carmine Leone
Colombo” and had been paid for in cash. The facility’s records showed that on April 13,
2012, the day of the shooting, the renter of the unit left the facility at 10:01 a.m. and
returned at 12:27 p.m.
During a search of the home of appellant’s parents in San Rafael, investigators
seized a laptop and desktop computer and found indicia in the name “Carmine Colombo.”
They also found a New Jersey identification with Dedier’s photograph and a document
mentioning the radio system used by local law enforcement. The browser history on the
laptop computer showed Internet searches in November 2010 relating to the Tiburon
traffic cameras, “Lamborghini in San Francisco,” “car dealer security and camera,” and
rappelling. On the desktop, the browser history from March 26 to April 24, 2012,
contained dozens of views of Dedier’s Facebook page and several views of Wahlstrom’s
Facebook page, as well as searches related to the Mill Valley shooting using terms such
as “motorcycle assassin.”
On appellant’s cell phone, investigators found a communication from appellant on
November 5, 2011, that included a reference to “boostin a lambo and pickin up cute

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girls.” In a message on February 14, 2012, he asked someone whether he should “sext”
or “flirt” with “that girl Eva. I wanna fuck soo bad it ain’t even funny.” There were
communications with Dedier and Internet searches with terms such as “mill, valley,
patch, and gunshot” or “gunshots and mill and valley.” The phone had also been used to
search for terms relating to the stolen Lamborghini and to read news articles about the
Lamborghini theft and the Mill Valley shooting.
D. Procedural History
Appellant, who was then 17 years old,1 was directly charged as an adult with two
counts of attempted premeditated murder with allegations he had personally discharged a
firearm in the commission of those offenses (Pen. Code, §§ 187/664, subd. (a), 12022.53,
subd. (c) & (g), counts 1 and 2), shooting at an occupied motor vehicle (Pen. Code,
§ 246, count 3), commercial burglary (Pen. Code, § 459, count 4), taking or driving a
vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a), count 5), and
receiving a stolen vehicle (Pen. Code, § 496d, subd. (a), count 6). (See Welf. & Inst.,
§ 707, subds. (b)(12), (d)(1).) The jury acquitted him of the attempted murder count
naming Dedier as a victim and the commercial burglary count, but convicted him of the
remaining counts and found the firearm allegation true. The trial court sentenced
appellant to prison for a life term on the attempted murder count plus a 20-year firearm
enhancement under section 12022.53, subdivision (c), and a consecutive 16-month lower
term for driving or taking a vehicle. Sentence on the remaining counts was stayed under
section 654.
DISCUSSION
I.
Joinder of the San Francisco and Mill Valley Counts
Appellant filed a number of motions in the trial court seeking to sever the charges
arising from the San Francisco vehicle theft (counts 4-6) from the charges involving the
shooting in Mill Valley (counts 1-3). He contends the denial of these motions was an
1 Appellant was born in August 1994.

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abuse of discretion and deprived him of due process of law because the “largely
unconnected” vehicle theft case suggested a degree of planning and criminal
sophistication that “spilled over into improperly providing proof of premeditation related
to the Marin County shooting.” We disagree.
Penal Code section 954 provides in relevant part: “An accusatory pleading may
charge two or more different offenses connected together in their commission . . . under
separate counts . . . . provided, that the court in which a case is triable, in the interests of
justice and for good cause shown, may in its discretion order that the different offenses or
counts set forth in the accusatory pleading be tried separately . . . .” Offenses committed
at different times and against different victims may be connected together in their
commission if there exists “a ‘common element of substantial importance’ ” among them.
(Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1219 (Alcala); People v. Macklem
(2007) 149 Cal.App.4th 674, 697 (Macklem).) This common element may take the form
of evidence admissible as to both charges, or an intent or motivation tying all the charges
together. (Alcala, at pp. 1219–1220.)
The charges arising from the stolen Lamborghini were connected to the charges
arising from the shooting. The Lamborghini was discovered in the same self-storage unit
as the motorcycle, gear and gun that were used in the shooting. Eve Dedier, a named
victim of one of the attempted murder counts, had seen appellant driving the stolen
Lamborghini and presumably would have been called as a witness in a separate trial
relating to the vehicle theft. Dedier assisted police in apprehending appellant by asking
him to come to a pretextual meeting in the Lamborghini, and his flight from officers at
the time of his arrest was relevant to his consciousness of guilt as to all of the charges.
This overlapping evidence made it appropriate to join the San Francisco charges with the
Mill Valley charges.
When, as here, the statutory requirements for joinder have been met, a trial court’s
denial of a motion to sever is reviewed for abuse of discretion and will not be reversed
unless it fell “ ‘ “outside the bounds of reason.” ’ ” (Alcala, supra, 43 Cal.4th at p. 1220;
Macklem, supra, 149 Cal.App.4th at p. 698.) “ ‘The factors to be considered are these:

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(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the
charges are likely to unusually inflame the jury against the defendant; (3) whether a weak
case has been joined with a strong case or another weak case so that the total evidence
may alter the outcome of some or all of the charges; and (4) whether one of the charges is
a capital offense, or the joinder of the charges converts the matter into a capital case.’ ”
(Alcala, at pp. 1220–1221.)
None of these factors establish an abuse of discretion in trying the counts relating
to the stolen Lamborghini with the counts relating to the shooting. As noted, much of the
evidence was cross-admissible. The counts relating to the stolen Lamborghini were not
inflammatory when compared to the facts of the shooting, in which two teenagers were
almost killed by ambush. The evidence linking appellant to each event was strong, with
evidence tied to each crime being found in a storage unit he had rented. Finally, capital
charges were not at issue in the case.
“Even if a trial court’s severance or joinder ruling [was] correct at the time it was
made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder
actually resulted in “gross unfairness” amounting to a denial of due process.’ ” (People
v. Mendoza (2000) 24 Cal.4th 130, 162 (Mendoza).) Appellant argues the joinder of
the San Francisco charges rendered his trial unfair because the theft of the Lamborghini
was a sophisticated and well-planned offense and the owner of the stolen car was a
famous celebrity.2 He claims the high profile nature of the theft charges overwhelmed
the more serious attempted murder charges and allowed the prosecutor to argue he was a
“media hungry, sophisticated criminal.” Appellant also contends that evidence of the
planning and preparation involved in the theft of the Lamborghini made it more likely the
jury would conclude the shooting was also planned and premeditated.
We are not persuaded. To begin with, appellant was acquitted of commercial
burglary, showing the jury was not convinced he had actually stolen the Lamborghini.
This makes it unlikely the jury attributed to appellant the degree of criminal
2 The Lamborghini was owned by celebrity chef Guy Fieri.

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sophistication he now claims is so prejudicial. Moreover, the shooting itself was
obviously the product of considerable planning: switching the license plate of the
motorcycle he rode to make it less likely to be traced; purchasing motorcycle clothing
that would conceal his identity; watching and waiting for the victim a short distance from
his home; and hiding the motorcycle in a storage unit after the shooting. Evidence that
appellant had driven and hidden a stolen Lamborghini on other occasions, even if it
suggested a degree of criminal sophistication, did not render the trial on the attempted
murder charges fundamentally unfair.
II.
Flight and Handgun Possession at Time of Arrest
Appellant argues the judgment must be reversed because the court improperly
admitted evidence he was carrying a loaded Glock semiautomatic handgun at the time of
his arrest and attempted to flee from the arresting officers. We reject the claim.
Before trial, appellant moved to exclude the evidence of his gun possession as
irrelevant and the evidence of his attempted flight as more prejudicial than probative
under Evidence Code section 352. The trial court denied the motion, concluding the
evidence was relevant and admissible to prove consciousness of guilt. We review the
ruling for abuse of discretion. (People v. Covarrubias (2015) 236 Cal.App.4th 942, 947.)
Evidence is relevant if it has “any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code,
§ 210.) Under Evidence Code section 352, relevant evidence may be excluded “if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” Evidence is substantially
more prejudicial than probative “ ‘if, broadly stated, it poses an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome” [citation].’ ” (People v.
Clark (2011) 52 Cal.4th 856, 893.)
Appellant’s resistance to and attempted flight from the arresting officers was
relevant to show his consciousness of guilt. (People v. Garcia (2008) 168 Cal.App.4th

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261, 283–284.) Evidence he was armed with a handgun—and was apparently trying to
reach for it during the struggle—supported the inference that this consciousness of guilt
extended to the more serious charges arising from the shooting, as opposed to simply the
possession of a stolen vehicle. “It is permissible, in proof of the fact of flight, to show all
of the facts and circumstances attending the flight either to increase or decrease, as the
case may be, the probative force of the fact of flight. In other words, when testimony as
to flight is resorted to, it is proper to show the extent of the flight and the circumstances
thereof, including the acts and doings of the defendant, which tend to characterize and
increase its significance. It was, therefore, proper for the prosecution to show, as bearing
upon this question, that the defendant had ammunition and firearms in his possession
which were adapted to further his flight and thereby accentuate the fact of flight. For this
purpose the articles in question were admissible into evidence.” (People v. Hall (1926)
199 Cal. 451, 460, footnote ommitted.)3
The trial court did not abuse its discretion in concluding the probative value of
appellant’s attempted flight and armed resistance was great and was not outweighed by
the risk of undue prejudice. “ ‘The “prejudice” referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. In applying
section 352, “prejudicial” is not synonymous with “damaging. ’ ” (People v. Doolin
(2009) 45 Cal.4th 390, 439.) While evidence of appellant’s armed resistance to the
police was no doubt damaging to his case, it was also highly relevant and was unlikely to
evoke an emotional bias against him.
3 Because the evidence supported an inference that appellant was reaching for his
gun during his struggle with the arresting officers, his situation is distinguishable from
cases in which the defendant’s mere possession of a weapon not used in a crime was
determined to be irrelevant to the charged offense. (See People v. Riser (1956) 47 Cal.2d
566, 576–577, disapproved on other grounds in People v. Chapman (1959) 52 Cal.2d 95,
98 and People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2; People v. Archer (2000) 82
Cal.App.4th 1380, 1392; People v. Henderson (1976) 58 Cal.App.3d 349, 360; People v.
Witt (1958) 159 Cal.App.2d 492, 497.)

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Even if we assume the court should have excluded evidence that appellant was
carrying a loaded gun when he was arrested, we would not reverse the judgment. The .38
caliber revolver used in the shooting was found inside appellant’s storage unit, and that
evidence was far more incriminating than appellant’s possession of a weapon not used in
the charged offenses. It is not reasonably probable the jury would have reached a verdict
more favorable to appellant if it had not heard the evidence regarding the Glock handgun.
(People v. Nelson (1964) 224 Cal.App.2d 238, 256, citing People v. Watson (1956) 46
Cal.2d 818, 836 (Watson).)
III.
Sufficiency of the Evidence—Attempted Murder
Appellant argues the attempted murder conviction must be reversed because the
evidence was insufficient to show he specifically intended to kill Landon Wahlstrom. He
asserts he would not have missed his target at such a close range if he had possessed
lethal intent, and notes the absence of any statements to the effect that he wished to kill
Wahlstrom. We are not persuaded.
When reviewing the sufficiency of the evidence on appeal, we apply the well-
established and “highly deferential” substantial evidence standard. (People v. Lochtefeld
(2000) 77 Cal.App.4th 533, 538.) “The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the entire record, a rational
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On
appeal, we must view the evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
We do not reweigh the credibility of witnesses or substitute our own view of the evidence
for that of the jury. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347.) That the
evidence might be reasonably reconciled with a contrary result does not warrant a
reversal of the judgment. (Ibid.) “The test is whether substantial evidence supports the
decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v.
Mincey (1992) 2 Cal.4th 408, 432.)

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Attempted murder requires a direct but ineffectual act toward killing a person,
accompanied by the mental state of express malice aforethought, i.e., a specific intent to
unlawfully kill. (People v. Houston (2012) 54 Cal.4th 1186, 1217 (Houston); People v.
Perez (2010) 50 Cal.4th 222, 229.) “ ‘The act of firing toward a victim at a close, but not
point blank, range “in a manner that could have inflicted a mortal wound had the bullet
been on target is sufficient to support an inference of intent to kill. . . .” [Citations.]’ ”
(People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) Here, the evidence showed
appellant fired four or five rounds toward Wahlstrom at a distance of a few feet, from
which the jury could readily infer an intent to kill. An expert testified that Waholstrom
would have been struck by the bullets if he had not ducked.
Appellant’s reliance on People v. Belton (1980) 105 Cal.App.3d 376, 380 (Belton),
is misplaced. The defendant in that case was convicted of arson and attempted murder
after setting fire to the porch of his ex-wife’s apartment following a visit with her earlier
in the day. The Belton court reversed the attempted murder conviction because apart
from a quarrel three months earlier, there was no evidence of any threats, continued bad
blood, or earlier attempts to harm the ex-wife, making an inference of intent to kill
entirely speculative. (Id. at pp. 380–381.) Belton is distinguishable on its facts and has
no application to a case such as this, where the defendant fired several shots toward his
victim at close range.
Appellant cites dicta in Belton that the specific intent required for attempted
murder “cannot be inferred merely from the commission of another dangerous crime . . .
[such as] . . . assault-with-a-deadly-weapon.” (Belton, supra, 105 Cal.App.3d at p. 380.)
This proposition is questionable, because the decisions on which Belton relied on to
support it involved instructional error allowing a jury to presume an intent to kill merely
from evidence of an assault with a deadly weapon. (People v. Snyder (1940) 15 Cal.2d
706; People v. Miller (1935) 2 Cal.2d 527; People v. Maciel (1925) 71 Cal.App. 213.)
These cases have no bearing on whether it is reasonable to infer the intent to kill from
firing a loaded gun at someone. Additionally, the language in Belton appears contrary to

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Smith, supra, 37 Cal.4th at page 741. Appellant’s attempted murder conviction was
supported by substantial evidence.
IV.
Failure to Instruct on Attempted Voluntary Manslaughter
Appellant argues the trial court erred in denying his request for jury instructions
on attempted voluntary manslaughter as a lesser included offense of attempted murder,
based on a heat of passion theory. (See People v. Millbrook (2014) 222 Cal.App.4th
1122, 1136–1137.) We disagree.
A trial court has a duty to instruct on a lesser included offense when there is
substantial evidence, viewed in the light most favorable to the defendant, from which a
rational jury could conclude the defendant committed the lesser offense and is not guilty
of the greater crime. (People v. Moye (2009) 47 Cal.4th 537, 553 (Moye); People v.
Breverman (1998) 19 Cal.4th 142, 162.) Although the duty to instruct on a lesser
included offense implicates the defendant's constitutional right to have the jury determine
every material issue in the case (People v. Cook (2006) 39 Cal.4th 566, 596), the
standard for requiring such instruction is not “ ‘ “any evidence, no matter how weak,” ’ ”
but evidence “ ‘ “substantial enough to merit consideration” by the jury.’ ” (Moye, at p.
553.)
Attempted murder requires a direct but ineffectual act toward killing a person,
accompanied by the mental state of express malice aforethought. (Houston, supra, 54
Cal.4th at p. 1217.) Attempted voluntary manslaughter is the unlawful killing of a person
without malice, and is a lesser included offense of attempted murder. (People v. Speight
(2014) 227 Cal.App.4th 1229, 1241.) A defendant who acts in a sudden quarrel or heat
of passion lacks the malice necessary for attempted murder. (Ibid.)
The heat of passion variant of voluntary and attempted voluntary manslaughter has
both a subjective and an objective component: “The defendant must actually,
subjectively, kill [or attempt to kill] under the heat of passion. [Citation.] . . . [But the]
‘passion must be such a passion as would naturally be aroused in the mind of an
ordinarily reasonable person under the given facts and circumstances.’ ” (People v.

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Steele (2002) 27 Cal.4th 1230, 1252–1253.) “ ‘The provocative conduct by the victim
may be physical or verbal, but the conduct must be sufficiently provocative that it would
cause an ordinary person of average disposition to act rashly or without due deliberation
and reflection.’ ” (Moye, supra, 47 Cal.4th at p. 550.) The provocation must come from
the actual victim or be conduct the defendant reasonably believed to have been
committed by the actual victim. (People v. Verdugo (2010) 50 Cal.4th 263, 294; People
v. Avila (2009) 46 Cal.4th 680, 705.)
Applying these principles, we conclude there was no substantial evidence to
support an instruction on attempted voluntary manslaughter based on provocation and
heat of passion. The subjective component was not satisfied because nothing in the record
suggests appellant was acting under the influence of a strong emotion. The objective
component is not satisfied because Wahlstrom did nothing that could be considered
provocative, much less provocative enough to “render an ordinary person of average
disposition ‘liable to act rashly or without due deliberation and reflection, and from this
passion rather than from judgment.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 957.)
At most, the evidence showed Wahlstrom was dating a young woman to whom appellant
was attracted but with whom he had never been romantically involved with.
Rather than being a crime of passion, the shooting involved a considerable amount
of cold-blooded planning: from purchasing the protective clothing and gear that would
conceal appellant’s appearance, to procuring the license plate that would be attached to
the motorcycle used in the crime, to waiting and watching for Wahlstrom to appear on the
morning of the shooting. The evidence did not support an instruction on attempted
voluntary manslaughter, but even if it had, the jury found the attempted murder to be
premeditated. Any error in failing to give the instruction was harmless. (People v. Peau
(2015) 236 Cal.App.4th 823, 831–832 [failure to give heat-of-passion instruction was
harmless beyond a reasonable doubt when the jury found murder was premeditated].)
V.
Flight Instruction—CALCRIM No. 372

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Over defense objection, the trial court gave a modified version of CALCRIM No.
372, regarding the permissible inferences to be drawn from appellant’s flight at the time
of his arrest: “If the defendant fled or tried to flee during his apprehension, that conduct
might show that he was aware of his guilt. If you conclude that the defendant fled or
tried to flee, it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
Appellant argues the instruction should not have been given because “the arrest was
remote in time and occurred at a location different from that in which the crimes
occurred.” Again we disagree.
We have already concluded that appellant’s flight at the time of his arrest was
admissible to show his consciousness of guilt. When such evidence is admitted, it is
proper for the court to give a flight instruction. (Pen. Code, § 1127c; People v. Mason
(1991) 52 Cal.3d 909, 943.) CALCRIM No. 372 is a correct statement of the law
pertaining to flight and consciousness of guilt. (Mendoza, supra, 24 Cal.4th at pp. 179–
181; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157–1159.)
Appellant cites People v. Watson (1977) 75 Cal.App.3d 384, 403, for the
proposition that a jury may not infer a consciousness of guilt merely because the
defendant left the crime scene or was arrested at a later date and at a location different
than that of the crime itself. In Watson, however, the defendant did not struggle or
attempt to flee at the time of his arrest. (Ibid.) Here, the evidence showed appellant ran
away from officers at the time of his arrest, a circumstance from which the jury could
readily infer a consciousness of guilt. The court did not err by instructing on flight.
VI.
Failure to Give Instructions Requested by Defense
Appellant contends the trial court erred by inadvertently failing to give three
standard jury instructions it had previously agreed to give at the request of the defense:
CALCRIM Nos. 303, 318 and 333. The People argue the omission of the instructions
was harmless. We agree with the People.

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CALCRIM No. 303 would have advised the jury: “During the trial, certain
evidence was admitted for a limited purpose. You may consider that evidence only for
that purpose and for no other.” Appellant argues that without this instruction, the jury
could have considered his flight and his possession of the unrelated handgun at the time
of his flight as evidence of his guilt. But the flight evidence was admissible to prove
consciousness of guilt, and CALCRIM No. 372 advised the jury that such evidence was
not sufficient by itself to prove guilt. On appeal, appellant has identified no other
“limited purpose” evidence to which CALCRIM No. 303 might have applied, and it is
not reasonably probable the jury would have reached a different result if that instruction
had been given. (People v. Larsen (2012) 205 Cal.App.4th 810, 830; Watson, supra, 46
Cal.2d at p. 836.)4
CALCRIM No. 318 reads: “You have heard evidence of statements that a witness
made before the trial. If you decide that the witness made those statements, you may use
those statements in two ways: (1) To evaluate whether the witness’s testimony in court is
believable; ¶ AND ¶ (2) As evidence that the information in those earlier statements is
true.” Appellant has identified no evidence to which this instruction would have applied
and it is not reasonably probable he was prejudiced by its omission.
Finally, CALCRIM No. 333 would have explained how the jury was to evaluate
lay opinion testimony: “(A Witness or Witnesses) not testifying as [an] expert[s],] gave
(his/her/their) opinion[s] during the trial. You may but are not required to accept
(that/those) opinion[s] as true or correct. You may give the opinion[s] whatever weight
you think appropriate. Consider the extent of the witness’s opportunity to perceive the
4 In the trial court, defense counsel argued the instruction was applicable to
evidence admitted over a hearsay objection to explain the witness’s future conduct.
Appellant does not make the same point on appeal, but we note the defense had objected
on hearsay grounds to an officer’s testimony that she had reviewed surveillance videos of
the Golden Gate Bridge after being told she was looking for a black motorcycle with a
rider wearing black clothing and a black helmet. Given that eyewitness testimony
established the description of the shooter on the motorcycle, appellant could not have
been prejudiced by this testimony if it was considered for its truth.

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matters on which his or her opinion is based, the reasons the witness gave for any
opinion, and the facts or information on which the witness relied in forming that opinion.
You must decide whether information on which the witness relied was true and accurate.
You may disregard all or any part of an opinion that you find unbelievable, unreasonable,
or unsupported by the evidence.” The jury was instructed on the same factors with
respect to expert testimony in CALCRIM No. 332, and the court also gave CALCRIM
No. 226 regarding the general assessment of witness credibility. Appellant does not
explain how he was prejudiced by the omission of CALCRIM No. 333 and has not
established a reasonable probability he would have obtained a more favorable result had
it been given.
VII.
Failure to Give Supplemental Instruction on Attempted Murder
Appellant argues his attempted murder conviction must be reversed because the
trial court did not adequately respond to a jury request for clarification of the elements of
that crime. We reject the claim.
The trial court instructed the jury with CALCRIM No. 600, which set forth the
elements of attempted murder: “The defendant is charged [in Counts 1 and 2] with
attempted murder. [] Count 1 relates to Mr. Wahlstrom. Count 2 relates to Ms. Dedier.
[¶] To prove that the defendant is guilty of attempted murder, the People must prove that:
[¶] 1. The defendant took at least one direct but ineffective step toward killing (another
person [)] [¶] AND [¶] 2. The defendant had the specific intent to kill (that) (person).
[¶] A direct step requires more than merely planning or preparing to commit murder or
obtaining or arranging for something needed to commit murder. A direct step is one that
goes beyond planning or preparation and shows that a person is putting his or her plan
into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct
movement toward the commission of the crime after preparations are made. It is an
immediate step that puts the plan in motion so that the plan would have been completed if
some circumstance outside the plan had not interrupted the attempt.” The parties agreed
to the version of CALCRIM No. 600 given by the court.

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During deliberations, the jury sent the following note to the court: “Regarding
CALCRIM 600 — Att. Murder. [¶] ‘It is an immediate step that puts the plan in motion
so that the plan would have been completed if some circumstance had not interrupted that
attempt.’ [¶] If the defendant had a plan and put it in motion but at the last instant
changed his mind based on the immediate circumstances, does that constitute attempted
murder?” The court responded in writing on the same note, “I cannot answer this
question. It is up to you to decide, based upon all of the evidence.” Both attorneys
agreed to the court’s answer and initialed the document.
Appellant argues the court’s response violated his right to due process and
amounted to a derogation of its duty to fully instruct on general principles of law relevant
to the case. (See Breverman, supra, 19 Cal.4th at p. 154.) We do not agree. CALCRIM
No. 600 correctly defines attempted murder. (People v. Lawrence (2009) 177
CalApp.4th 547, 556.) Appellant has forfeited any argument that the court should have
provided a supplemental instruction by failing to object to the trial court’s response to the
jury’s question and by failing to propose an alternative answer. (People v. Davis (2009)
46 Cal.4th 539, 616–617; People v. Rodrigues (1994) 8 Cal.4th 1060, 1193; People v.
Bohana (2000) 84 Cal.App.4th 360, 372–373.) Indeed, appellant does not propose an
appropriate answer to the question in his appellate briefs, and offers no clue as to what he
believes the trial court should have said in response.
Even if the claim had been preserved on appeal, we would find no error. Penal
Code section 1138 provides that when the jurors “desire to be informed on any point of
law arising in the case . . . the information required must be given.” But, “[t]his does not
mean the court must always elaborate on the standard instructions. Where the original
instructions are themselves full and complete, the court has discretion under section 1138
to determine what additional explanations are sufficient to satisfy the jury’s request for
information. [Citation.] Indeed, comments diverging from the standard are often risky.
[Citation.] . . . [The court] should decide as to each jury question whether further
explanation is desirable, or whether it should merely reiterate the instructions already
given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

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The jury’s question regarding the effect of a last minute change of mind was
inherently fact specific and did not lend itself to a simple yes or no answer. A direct and
complete answer to the question would have required some comment on the evidence
under various factual scenarios (how far had the defendant progressed in his plan? what
were the immediate circumstances that caused him to change his mind?) and would have
run the risk of being unduly argumentative, that is, of inviting the jury to “ ‘ “draw
inferences favorable to one of the parties from specified items of evidence.” ’ ” (People
v. Battle (2011) 198 Cal.App.4th 50, 85.) The trial court did not abuse its discretion by
declining to expand on the language of CALCRIM No. 600.
We note that unused bracketed language in CALCRIM No. 600 was potentially
responsive to the jury’s question: “[A person who attempts to commit murder is guilty of
attempted murder even if, after taking a direct step toward killing, he or she abandons
further efforts to complete the crime, or his or her attempt fails or is interrupted by
someone or something beyond his or her control. On the other hand, if a person freely
and voluntarily abandons his or her plans before taking a direct step toward committing
the murder, then that person is not guilty of attempted murder.]” The court did not
include this portion of the instruction because both counsel agreed it did not apply, but if
the language had been included, it would not have been beneficial to the defendant. To
the contrary, firing five shots was certainly a direct step toward committing a murder, and
the bracketed portion of the instruction would have effectively advised the jury that a
change of heart was of no effect once this step was taken.
VIII.
Cumulative Error
Appellant argues the asserted trial errors he has identified are cumulatively
prejudicial even if they do not require reversal when considered individually. We
disagree. None of the assumed errors significantly influenced the fairness of the trial,
whether considered individually or cumulatively. (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 128.)

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IX.
Proposition 57
As previously noted, appellant was 17 years old at the time of the shooting in
April 2012. The prosecutor directly filed the charges against him in adult court, as was
permitted under former Welfare and Institutions Code section 707, subdivisions (b)(12)
and (d)(1) and (2), rather than filing a wardship petition in juvenile court. On
November 8, 2016, while this appeal was pending, California voters enacted Proposition
57, which amended Welfare and Institutions Code sections 602 and 707 to eliminate
direct filing by prosecutors. (Prop. 57, § 4.2.) Under Proposition 57, all charges against
juveniles must now be initially filed in juvenile court. (Welf. & Inst. Code, §§ 602, 707,
subd. (a).) Though a district attorney may make a motion to transfer certain cases to adult
court, the juvenile court is charged with making the decision and may do so only after it
holds a hearing to consider such factors as the minor’s maturity, degree of criminal
sophistication, prior delinquent history, and potential for rehabilitation. (Welf. & Inst.
Code, § 707, subd. (a).)
Appellant argues that Proposition 57’s elimination of direct filing is an
ameliorative provision that must be retroactively applied to defendants like him, whose
cases are not yet final on appeal. He argues that although Proposition 57 is silent on the
issue of retroactivity, the voters clearly intended to broaden the number of minors who
could stay within the juvenile justice system with its emphasis on rehabilitation over
punishment. Appellant also asks us to apply the rule of In re Estrada (1965) 63 Cal.2d
740, 744–745 (Estrada), under which a statute reducing the penalty for an offense is
presumed to apply to cases not yet final. The Attorney General responds that Proposition
57 does not effect a reduction in punishment, and is presumed to apply prospectively
only, at least as to cases that have not yet gone to trial. (See Pen. Code, § 3.)
These arguments have been thoroughly analyzed in a series of recent court of
appeal decisions, and the issue of Proposition 57’s retroactivity is currently pending
before our Supreme Court. (See People v. Cervantes (2017) 9 Cal.App.5th 569, review
granted May 17, 2017, A140464 [Proposition 57 is not retroactive, though as to counts

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reversed for a retrial, Proposition 57 does apply and requires a fitness hearing to
determine where that retrial will be held]; People v. Mendoza (2017) 10 Cal.App.5th 327,
pet. rev. filed May 2, 2017, May 5, 2017 and May 8, 2017 [Proposition 57 is not
retroactive]; People v. Vela (2017), 11 Cal.App.5th 68 (Vela), pet. rev. filed June 2, 2017
and June 5, 2017 [Proposition 57 is retroactive; convictions conditionally reversed and
remanded to juvenile court for a fitness hearing]; People v. Superior Court (Lara) (2017)
9 Cal.App.5th 753, review granted May 17, 2017 [where crime was committed before
effective date of Proposition 57 but case had not yet been tried, defendant was entitled to
fitness hearing to determine whether case could proceed in adult court; although
Proposition 57 is not retroactive, requiring a fitness hearing under these circumstances
does not amount to retroactive application of the law because the trial has not yet been
held]; People v. Marquez (May 16, 2017) 11 Cal.App.5th 816 [Proposition 57 not
retroactive].)
Though the majority of appellate courts to consider the issue so far have reached a
different result, we adopt the reasoning of Vela, supra, 11 Cal.App.5th 68 and conclude
that Proposition 57 applies retroactively to cases pending on appeal. Given that the issue
will be resolved by our Supreme Court, we need not elaborate on the reasoning of our
colleagues to the south. We note, however, that a retroactive application of Proposition
57 is fully consistent with the relatively recent “sea change in penology regarding the
relative culpability and rehabilitation possibilities for juvenile offenders” (Vela, at p. 75),
as well as with one of the stated purposes of Proposition 57 itself, namely, to “[r]equire 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 (5), p. 141.) We are also persuaded that the potential for
a juvenile disposition in lieu of a prison sentence, which would almost certainly result in
significantly less time in custody for a defendant found to have committed a crime for
which direct filing was formerly available, effects a reduction in punishment within the
spirit of Estrada, supra, 63 Cal.2d at p. 744, even if it does not lower the penalty for a
particular offense. The case must be conditionally remanded for a fitness hearing before

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the juvenile court, at which that court should, “to the extent possible, treat the matter as
though the prosecutor had originally filed a juvenile petition in juvenile court and had
then moved to transfer [the] cause to a court of criminal jurisdiction.” (Vela, supra, 11
Cal.App.5th at p. 82.)
The Attorney General argues that even if Proposition 57 applies retroactively,
remand is not required because it is not reasonably probable a juvenile court would retain
appellant’s case rather than transferring it to adult court. In support of this argument, the
Attorney General cites People v. Villa (2009) 178 Cal.App.4th 443, 452–453 (Villa), in
which the trial court erroneously denied the defendant’s request for a post-trial fitness
hearing under Penal Code § 1170.17, subdivision (c), after a juvenile defendant who was
directly charged as an adult was convicted of a lesser included offense for which direct
filing was not permitted. The court of appeal found the error to be harmless under the
standard for state constitutional error articulated in Watson, supra, 46 Cal.2d at page 818.
(Villa, at p. 453.)
Villa is distinguishable. There, the trial court relied on the probation report to
conclude it was appropriate to treat the defendant as an adult. (Villa, supra, 178
Cal.App.4th at pp. 452–453.) The problem was not that the court failed to consider and
make a determination of the defendant’s fitness, but that it did so absent a hearing that
was required by statute. Here, although extensive evidence about appellant’s background
was presented for sentencing purposes, the court did not consider the issue of fitness,
namely, whether the minor is or is not “a fit and proper subject to be dealt with under the
juvenile court law” in the first place. (Welf. & Inst. Code, § 707.1, subd. (a).) The court
in the case before us did not commit an “error” that can be deemed “harmless;” rather,
appellant’s fitness was not, at the time of appellant’s trial, an issue for the trial court to
determine. We will not presume to analyze for the first time on appeal the factors
relevant to a fitness determination.

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X.
Cruel and Unusual Punishment
Appellant was sentenced to a term of life imprisonment for his attempted murder
conviction, under which he will be eligible for parole after seven calendar years (Penal
Code § 3046, subd. (a)(1)), plus a consecutive determinate term of 21 years four months
for the firearm enhancement attached to the attempted murder count and the conviction of
driving or taking a vehicle. He contends the sentence amounts to cruel and unusual
punishment because he was 17 years old when he committed those offenses. In the event
the judgment is reinstated after a fitness hearing under Proposition 57, we conclude the
sentence imposed is not cruel and/or unusual.
Punishment that is grossly disproportionate to the offender’s culpability violates
the “cruel and unusual” punishment clause of the United States Constitution (U.S. Const.,
8th Amend.) and the “cruel or unusual” punishment clause of the California Constitution
(Cal. Const., art. I, § 17). In the juvenile context, several categorical rules have emerged
to mitigate the risk of disproportionate punishment, in recognition that children possess
“diminished culpability and heightened capacity for change.” (Miller v. Alabama (2012)
567 U.S. 460, 479, (Miller); see People v. Gutierrez (2014) 58 Cal.4th 1354, 1375.)
In Roper v. Simmons (2005) 543 U.S. 551 (Roper), the United States Supreme
Court held the death penalty could not be imposed on a defendant who was a juvenile at
the time of the offense. In Graham v. Florida (2010) 560 U.S. 48 (Graham), the court
held the Eighth Amendment prohibits the imposition of a sentence of life without the
possibility of parole (LWOP) on a juvenile convicted of a non-homicide offense. In
Miller, supra, 567 U.S. at p. 479, 132 S.Ct. at p. 2469, it held the Eighth Amendment
prohibits mandatory LWOP sentences in a homicide case. In People v. Caballero (2012)
55 Cal.4th 262, 268–269 (Caballero), our state Supreme Court extended the rules of
Graham to non-homicide cases in which the juvenile offender received a sentence that is
the functional equivalent of LWOP. And, in People v. Franklin (2016) 63 Cal.4th 261,
276 (Franklin), the court extended the Miller rule to homicide cases in which the
sentence was the functional equivalent of LWOP.

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Attempted murder is classified as a non-homicide offense for purposes of
assessing the constitutionality of the sentence. (Caballero, supra, 55 Cal.4th at pp. 265–
268 & 271 (con. opn. by Werdegar, J.) Under Graham and Caballero, we must therefore
consider whether the sentence imposed is unconstitutional because it is the functional
equivalent of LWOP. It is not.
Assuming appellant earns in-prison work credits at 15 percent (§§ 2933.1,
subd. (a), 667.5, subd. (c)(12)), he would serve approximately 18 years on the
determinate portion of his sentence, followed by seven calendar years on the
indeterminate life term, before being eligible for parole. (See § 669; People v. Garza
(2003) 107 Cal.App.4th 1081, 1085 [when sentence on determinate term is ordered to run
consecutive to indeterminate term, determinate term shall be served first]; In re Monigold
(1983) 139 Cal.App.3d 485, 491 [in-prison conduct credits may not be used to reduce
seven-year minimum eligible parole date under § 3046].) When the 731 days of
presentence credits are subtracted from this 25 year total, this leaves less than 23 years
from the date of sentencing. Appellant was 19 years old at the time of his sentencing
hearing, meaning he will be eligible for parole when he is approximately 42 years old.
In People v. Perez (2013) 214 Cal.App.4th 49, 55–58 (Perez), the court considered
the constitutionality of a 30-year-to-life sentence imposed on a juvenile offender
convicted of a forcible lewd act and sexual penetration of a child. It upheld the sentence
after a thorough review of the published California cases addressing cruel and unusual
punishment claims by juvenile offenders: “There is a bright line between LWOP’s and
long sentences with eligibility for parole if there is some meaningful life expectancy left
when the offender becomes eligible for parole. We are aware of—and have been cited
to—no case which has used the Roper-Graham–Miller–Caballero line of jurisprudence
to strike down as cruel and unusual any sentence against anyone under the age of 18
where the perpetrator still has substantial life expectancy left at the time of eligibility for
parole. [¶] How much life expectancy must remain at the time of eligibility for parole of
course remains a matter for future judicial development, but we can safely say that in the
case before us there is plenty of time left for Perez to demonstrate, as the Graham court

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put it, ‘some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.’ (Graham, supra, 130 S.Ct. at p. 2030 [‘A State is not required to
guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.’].)
There is no dispute that, given all the credits already served by Perez, he will be eligible
for parole when he reaches age 47. That is, by no stretch of the imagination can this case
be called a ‘functional’ or ‘de facto’ LWOP, and therefore neither Miller, Graham, nor
Caballero apply. [Fn. omitted.]”
Like the defendant in Perez, appellant is not serving a sentence that is the
functional equivalent of LWOP. The jurisprudence of Graham-Miller-Caballero does
not apply to his claim that his sentence was categorically barred due to his age at the time
of the offenses. He makes no argument on appeal that his sentence is disproportionate to
his individual culpability and amounts to cruel and/or unusual punishment in his
particular case. (See Graham, supra, 560 U.S. at p. 59; In re Lynch (1972) 8 Cal.3d 410,
424; People v. Haller (2009) 174 Cal.App.4th 1080, 1092.)
Additionally, appellant’s cruel and unusual punishment claim is effectively moot.
Recently-enacted Penal Code section 3051 makes youthful offenders such as appellant
eligible for release on parole during the 25th year of their incarceration when they stand
convicted of an offense carrying a life sentence. In Franklin, supra, 63 Cal.4th at pages
268, 277, our Supreme Court held that this provision effectively supersedes any sentence
that is the functional equivalent of LWOP and renders moot a challenge under the
Graham-Miller line of cases.
The court in Franklin did remand that case for a new hearing because the
defendant had not been provided with the opportunity to make a record of the factors that
impacted him as a youthful offender, such information being more likely to be available
at the initial sentencing rather than at a parole hearing 25 years later. (Franklin, supra,
63 Cal.4th at pp. 283–284.) Here, however, appellant has already had that opportunity
and provided the trial court with a wealth of information regarding his upbringing and
other factors relevant to sentencing. Remand is not required for this purpose.

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DISPOSITION
The judgment is conditionally reversed. The case is remanded to the juvenile
court with directions to conduct a fitness hearing under Welfare and Institutions Code
section 707, subdivision (a), no later than 90 days from the filing of the remittitur. If, at
the fitness hearing, the court determines it would have transferred appellant to a court of
criminal jurisdiction because he is “not a fit and proper subject to be dealt with under the
juvenile court law” (Welf. & Inst. Code, 707.1, subd. (a)), then the judgment shall be
reinstated. If, at the fitness hearing, the court finds it would not have transferred the case
to a court of criminal jurisdiction, it shall treat appellant’s convictions as juvenile
adjudications and shall impose an appropriate disposition under juvenile law.

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NEEDHAM, J.
I concur.
SIMONS, ACTING P.J.
(A141133)

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1
BRUINIERS, J., Concurring and dissenting.
I agree with my colleagues in all respects save one. I disagree that the Public
Safety and Rehabilitation Act of 2016 (Proposition 57) is to be given retroactive effect in
these circumstances, and I would affirm the judgment unconditionally.
Proposition 57, which became effective November 9, 2016, eliminated the
People’s ability to directly file criminal charges against a minor in an adult court. The
majority acknowledges that Proposition 57 is silent as to the initiative’s retroactive
application. The presumption, therefore, is that it is not retroactive. (Pen. Code, § 3 [no
part of the Penal Code is retroactive “unless expressly so declared”]; People v. Brown
(2012) 54 Cal.4th 314, 319 [the default rule of Pen. Code, § 3 codifies “ ‘the time-
honored principle . . . that in the absence of an express retroactivity provision, a statute
will not be applied retroactively unless it is very clear from extrinsic sources that the
Legislature . . . must have intended a retroactive application’ ”]; (In re Estrada (1965)
63 Cal.2d 740, 746 (Estrada) [“when there is nothing to indicate a contrary intent in a
statute it will be presumed that the Legislature intended the statute to operate
prospectively and not retroactively”].) “ ‘ “[A] statute that is ambiguous with respect to
retroactive application is construed . . . to be unambiguously prospective.” ’ ” (Brown, at
p. 320.)1
The majority would apply, however, the ameliorative rule of Estrada, providing
for retroactive application of a statutory amendment reducing punishment for an act
committed before the amendment, but for which a defendant was sentenced after the
amendment. In Estrada, the Supreme Court held that, notwithstanding Penal Code
section 3, “[w]hen the Legislature amends a statute so as to lessen the punishment it has
obviously expressly determined that its former penalty was too severe and that a lighter
1 In interpreting a voter initiative, we apply the same principles that govern statutory
construction. (People v. Arroyo (2016) 62 Cal.4th 589, 593.)

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2
punishment is proper as punishment for the commission of the prohibited act. It is an
inevitable inference that the Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply to every case to which
it constitutionally could apply. The amendatory act imposing the lighter punishment can
be applied constitutionally to acts committed before its passage provided the judgment
convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.)
“Estrada, which creates a presumption of retroactivity in apparent contradiction to the
default rule [of Penal Code section 3], has been confined by subsequent decisions to its
‘ “specific context.” ’ ” (People v. Davis (2016) 246 Cal.App.4th 127, 135, citing People
v. Hajek and Vo (2014) 58 Cal.4th 1144, 1196, disapproved on other grounds in People v.
Rangel (2016) 62 Cal.4th 1192, 1216.)
Only one other appellate court has applied Proposition 57 retroactively, relying
upon the rationale of Estrada. In People v. Vela (2017) 11 Cal.App.5th 68, Division
Three of the Fourth District held that the electorate intended the benefits of
Proposition 57 to apply to every minor to whom it may constitutionally apply, including
the defendant whose conviction was on appeal. (Id. at p. 81; see id. at p. 71.) The Vela
court conditionally reversed and ordered a remand for the juvenile court to conduct a
juvenile transfer hearing under Welfare and Institutions Code section 707, the remedy the
majority proposes here. (Vela, at pp. 82–83.) My colleagues in the majority find the
reasoning of Vela persuasive. I do not.
As the majority acknowledges, every other court to examine the issue so far in a
published opinion has reached a contrary conclusion. (People v. Superior Court (Walker)
(June 8, 2017) ___ Cal.App.5th ___ [2017 Cal.App.Lexis 532]; People v. Marquez
(2017) 11 Cal.App.5th 816; People v. Mendoza (2017) 10 Cal.App.5th 327; People v.
Superior Court (Lara) (2017) 9 Cal.App.5th 753, review granted May 17, 2017,
S241231; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017,
S241323.)

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3
As is also true, our Supreme Court has granted review in Cervantes and Lara, and
will ultimately provide a definitive answer to the question. Therefore, like my colleagues
in the majority, I see no need to expand on the reasoning of my colleagues in Walker,
Marquez, Mendoza, Lara, and Cervantes. I join those courts in concluding that
Proposition 57 has no retroactive application postconviction, at least in the absence of a
reversal and retrial. I therefore disagree that the trial court is required to conduct a
historical analysis to determine if this now nearly 23-year-old defendant would have been
suitable for juvenile court treatment.
I concur in part and dissent in part.
BRUINIERS, J.
A141133

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