P. v. Lemon

Filed 6/21/17 P. v. Lemon CA2/8
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES LEMON et al.,
Defendants and
Appellants.
B262406
(Los Angeles County
Super. Ct. No. NA096742)
APPEAL from the judgments of the Superior Court of Los
Angeles County, Tomson T. Ong, Judge. As to Lemon,
conditionally reversed and remanded; as to Johnson, modified,
conditionally reversed and remanded.
Randi Covin, under appointment by the Court of Appeal,
for Defendant and Appellant James Lemon.
Madeline McDowell, under appointment by the Court of
Appeal, for Defendant and Appellant Venda Johnson.
Kamala D. Harris and Xavier Becerra, Attorneys General,
Gerald A. Engler, Chief Assistant Attorney General, Lance E.

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Winters, Assistant Attorney General, Noah P. Hill, Victoria B.
Wilson and Carl N. Henry, Deputy Attorneys General, for
Plaintiff and Respondent.
* * * * * * * * * *
In 2014, a jury convicted defendants and appellants Venda
Johnson and James Lemon of the 1995 murder of an unarmed
pizza delivery driver during the course of an attempted robbery.
The jury also found true that a principal was armed with a
firearm in the commission of the offense. Johnson, the shooter,
was sentenced to life without the possibility of parole. Lemon
was sentenced to a term of 25 years to life.
Johnson and Lemon were juveniles when the murder was
committed in 1995, and were 35 and 36 years old, respectively,
when they were prosecuted in criminal court in 2014. They both
argued the prosecution’s direct filing of charges in criminal court
was a retroactive application of former Welfare and Institutions
Code section 707, subdivision (d) (hereafter former section 707(d))
that violated the ex post facto clause of both the federal and state
Constitutions. Former section 707(d), which was enacted in 2000
and repealed in November 2016, authorized prosecutors to file
criminal charges against a juvenile offender directly in the
criminal court, without a prior adjudication by the juvenile court
that the minor was unfit for a disposition under the juvenile
court law.
Lemon raised numerous additional contentions: (1) the
record lacked substantial evidence supporting first degree
murder and the robbery-murder special-circumstance finding;
(2) the court imposed unconstitutional restrictions on his cross-
examination of the main prosecution witness; (3) the court erred
in admitting an out-of-court statement made by Johnson that

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implicated Lemon; (4) the court erred in instructing the jury on
first degree felony murder and in failing to instruct on the lesser
included offenses of theft and involuntary manslaughter; (5) his
25-year-to-life sentence is unconstitutionally cruel and unusual;
(6) the court abused its discretion in denying his discovery motion
for peace officer personnel records without holding an in camera
hearing; and (7) cumulative error.
Johnson joined in Lemon’s contentions regarding the first
degree felony-murder instruction and the restriction on cross-
examination. Johnson further contended the court’s imposition of
a parole revocation fine was unauthorized.
In our original opinion, filed October 28, 2016, we affirmed
the judgment of conviction as to Lemon. As to Johnson, we
struck the parole revocation fine and affirmed his conviction in
all other respects.
On November 8, 2016, California voters passed the Public
Safety and Rehabilitation Act of 2016 (Proposition 57). As
relevant here, Proposition 57 repealed former section 707(d),
thereby eliminating the statutory authority for the direct filing of
charges against a juvenile offender in criminal court. As
amended by Proposition 57, Welfare and Institutions Code
section 707, subdivision (a)(1) now specifies that in order for a
juvenile offender to be prosecuted in criminal court, the
prosecutor must make a motion to transfer in juvenile court, and
the issue must be decided by a judge.
After granting both defendants’ petitions for review, the
Supreme Court transferred the matter to this court with
directions to vacate our decision, grant rehearing, and reconsider
the cause in light of the following issue: Does Proposition 57

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retroactively apply to cases in which the judgment is not yet
final?
In accordance with the Supreme Court’s directions, we
vacate our original opinion, and consider the question of the
retroactivity of Proposition 57 as applied to cases, like this one,
that are not yet final on appeal. Having done so, we now
conclude that both defendants’ convictions must be conditionally
reversed, and the case must be remanded for a transfer hearing.
If the juvenile court concludes that the case should be heard in
criminal court, the convictions must be reinstated with only a
minor modification to Johnson’s parole revocation fine. If not, the
juvenile court shall enter an appropriate disposition.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 1995, Renato Teniente, a 60-year-old
pizza delivery driver, was fatally shot at close range while sitting
in his car in front of an apartment complex in Long Beach. The
initial investigation of the crime led the homicide detectives to
suspects Lemon and Johnson, who lived in the area. At that
time, Lemon was 17 years old and Johnson was 16 years old.
In December 1995, a juvenile petition was filed alleging
that Lemon was responsible for the attempted robbery and
murder of Mr. Teniente. It appears Johnson could not be located,
and no juvenile petition was filed against him at that time. In
April 1996, while the prosecution’s motion to determine Lemon’s
fitness for adjudication in juvenile court was pending, the
petition was dismissed without prejudice for insufficient
evidence.
In 2012, the investigation of the murder was reopened by
the Long Beach Police Department. In March 2014, Johnson and
Lemon were charged by information with one count of first

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degree murder during the commission of an attempted robbery.
(Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17).) It was further
alleged that a principal was armed with a firearm during the
commission of the offense. (§ 12022, subd. (a)(1).) The
information also alleged that both defendants were juveniles who
were at least 16 years of age at the time the offense was
committed and had fled the jurisdiction after the murder. (Welf.
& Inst. Code, § 216, subd. (a), former § 707(d).)
Lemon moved to dismiss the information, arguing
primarily that the prosecutor’s direct filing of charges in criminal
court pursuant to former section 707(d), and the court’s denial of
his right to a fitness hearing under the law in effect in 1995,
constituted violations of the ex post facto clauses of the federal
and state Constitutions. Johnson joined the motion. The motion
was denied.
Lemon also made a pretrial motion to discover peace officer
personnel records pursuant to Pitchess v. Superior Court (1974)
11 Cal.3d 531 (Pitchess). Lemon sought records from the
personnel files of Long Beach Police Department Detectives Tim
Cable and William Collette, two of the detectives involved in the
initial investigation, reflecting any past incidents or complaints
involving the preparation of false reports, lying and
untruthfulness. The court denied the motion.
The joint jury trial proceeded in November 2014. The trial
testimony and evidence revealed the following material facts.
1. The Murder and Initial Investigation in 1995 and 1996
In 1995, Mr. Teniente worked two jobs to support his
family. One of those jobs was delivering pizzas for a Pizza Hut
restaurant in Long Beach. Just before 9:00 p.m. on November 22,
1995, Officer Aldo Decarvalho of the Long Beach Police

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Department responded to a report of shots being fired at an
apartment complex on East 55th Way. When Officer Decarvalho
arrived at the apartment building, he saw a car parked near the
curb. The engine was running, the driver’s side door was closed,
and the front passenger door was open. As Officer Decarvalho
approached the car, he found Mr. Teniente slumped over the
steering wheel from an apparent gunshot wound. After
emergency medical personnel arrived on the scene, Mr. Teniente
was pronounced dead. The cause of his death was later
determined to be a fatal gunshot wound to his chest, the bullet
having entered through his shoulder.
In November 1995, 12-year-old S.D.1 lived in the apartment
complex where the shooting occurred. When Long Beach police
officers first came to her family’s apartment on the night of the
shooting to ask if anyone had seen or heard anything, S.D. was
very scared so she told them she did not know anything about
what happened. Her 15-year-old sister, Y.W., also denied any
knowledge of the incident.
The detectives working the case learned that Mr. Teniente
was delivering pizza that night to S.D. and Y.W.’s apartment.
The call to Pizza Hut had come from their apartment. On
November 30, Sergeant William Blair and his partner, Detective
Paul Arcala, went back to the apartment complex to reinterview
S.D. and Y.W. Sergeant Blair spoke to Y.W., and Detective
Arcala spoke separately to S.D.
When Sergeant Blair asked Y.W. about the pizza order
being phoned in from their apartment, she initially said she had
1 We refer to the witnesses, many of whom were juveniles at
the time, only by their initials to protect their privacy.

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made the call. He told her the caller had been identified as a
male. Y.W.’s “demeanor changed quickly.” She teared up and
said that “James” (defendant Lemon)2 had made the call. She
said James was a friend of her boyfriend “Venda” (defendant
Johnson) who had also been over at the apartment that night.
She said that she and Venda had been upstairs kissing in her
mother’s bedroom. About 20 minutes after the pizza was ordered,
S.D. came upstairs and Venda gave her money to go pay the
delivery man. Shortly thereafter, Venda left Y.W. in the bedroom
and went downstairs. A few minutes after that, her sister and
brother came into the bedroom “hysterical” and told her that the
delivery man had been shot. Y.W. claimed to not know Venda’s
last name or to have any contact information for him or his friend
James.
While Sergeant Blair was talking with Y.W., Detective
Arcala talked with S.D. and asked her what really happened that
night. S.D. said that she and Y.W. had been home, and two male
friends had dropped by to visit. She said their names were James
and Venda and that Venda was Y.W.’s boyfriend. At some point,
James called Pizza Hut and ordered pizza. Before the pizza
delivery man arrived, James and Venda were talking
“secretively.” Y.W. and Venda then went upstairs to her mother’s
bedroom and S.D. and James stayed downstairs. After a short
while, S.D. went upstairs and Venda gave her money to go
outside to pay for the pizza when it arrived.
2 To be consistent with how the information developed
during the investigation, we occasionally refer to Lemon and
Johnson by their first names.

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S.D. went outside and paid the delivery man, who was
parked at the curb. While she was walking back towards the
apartment building with the pizzas, both James and Venda ran
past her towards the delivery man’s car. S.D. saw a gun in
Venda’s hand. Venda went to the driver’s side of the car and
James went to the passenger side. She heard Venda repeatedly
yelling at the delivery man to give him the money and to open the
door. She saw James open the passenger side door. She ran to
her apartment and, after she got inside, she heard a gunshot.
S.D. looked out a window that overlooked the courtyard and saw
James and Venda running together through the courtyard.
Shortly thereafter, “Tyrone” contacted her and told her to get rid
of the pizza boxes. S.D. initially placed the boxes under her bed,
but she became nervous when she saw all of the police officers
arriving at the building so she climbed out her bedroom window
and tossed the boxes onto the roof.
S.D. also told Detective Arcala that Venda called a couple of
days after the shooting. She asked Venda why he shot the
delivery man, and he told her that the man had not “braced”
himself quickly enough, which S.D. understood to mean he had
not given up his money quickly enough. Venda also told her that
the delivery man had a gun, and if he had not shot him first, then
“he and James would be dead.”
On concluding the interviews with the girls, which lasted
about 30 minutes, Sergeant Blair told Y.W. not to talk to anyone
involved in the case.
After returning to the station and attempting to determine
the identities of James and Venda, the detectives decided they
needed to speak with the girls again. This time, Detectives
Thrash and McGuire went to the girls’ apartment. Y.W. told

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Detective McGuire that she had spoken to Tyrone, who told her
that James and “Fatts” had walked by her apartment and saw
the police car there, and that James and Venda were “gone.”
Police discovered that Y.W. had paged Johnson, though he did
not respond, and that she had spoken to members of his family by
telephone. Y.W. was arrested as an accessory after the fact.
Detective Collette interviewed Tyrone H. in December 1995
and again in early 1996. Tyrone had lived in the apartment
complex but his family moved out a few days before the shooting.
Tyrone told Detective Collette that about a week after the
shooting, Y.W. called him and asked if he had seen Lemon or
Johnson. He told her he had not. She then said that the police
were looking for both of them because they had shot a pizza
delivery man. He asked her how she knew that, and she said she
had seen what happened. During that phone call, Tyrone’s call
waiting beeped and it was Lemon on the other line. He told
Lemon he was speaking to Y.W. on the other line and that she
said he and Johnson had shot the delivery man. Lemon
responded, “I was there, but I didn’t shoot.” Tyrone then called
Lemon and Y.W. back as a three-way call. Lemon asked Y.W.
how the police knew about him. She said she did not know but
that the police were looking for him and were going to go to his
house.
Tyrone denied telling S.D. to get rid of the pizza boxes. He
said that about a week before the shooting, he remembered
Johnson showing him a .38-caliber revolver. Tyrone also
reported that, after Y.W. was released from jail, he spoke with
her again, and she said that she no longer had anything to do
with Johnson because of “all the trouble” he caused.

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In March 1996, Detective Collette interviewed V.B.,
another resident of the apartment complex. V.B. said that on the
night of the shooting he had gone outside to take out some trash,
when he saw three young African-American males go into the
laundry room. One of them was carrying a trash bag and another
one was holding a revolver. After the three men left, V.B. looked
inside the trash bag, which had been left in the laundry room. It
contained a shirt and a pair of pants that appeared to have blood
on them. He went back to his apartment and told his mother
what he had seen. When he went back to the laundry room, the
trash bag was gone.
When shown six-pack photographic lineups, V.B. was
unable to positively identify either Lemon or Johnson as one of
the three individuals he saw go into the laundry room that night.
However, he did point to Lemon’s photograph and said he looked
like one of the three individuals, but he could not be sure. He
thought the individual’s hair had been longer. When Detective
Collette pointed to Johnson’s photograph in another group of
photographs and asked if he could eliminate him as one of the
individuals he saw, V.B. said he could not do so. He told
Detective Collette that one of the individuals that night may have
been someone from the neighborhood he knew as Fatts.
After Lemon was detained, a live lineup was arranged.
Detective Cable picked up V.B. and brought him to the juvenile
detention facility to view the lineup. V.B. said the individuals
standing in position Nos. 3 and 6 looked like possibilities, but he
was unable to positively identify anyone. However, after the
lineup procedure was concluded, Detective Cable overheard V.B.
tell the deputy district attorney that he thought the person in
position No. 3 was one of the individuals he saw go into the

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laundry room that night. Lemon had been standing in position
No. 3. However, V.B. did not sign any form formally making an
identification.
2. The Reopening of the Investigation in 2012
In 2012, Detective Todd Johnson of the Long Beach Police
Department was assigned to review the 1995 murder of
Mr. Teniente as a “cold case.”
On March 9, 2012, Detectives Johnson and Evans
reinterviewed S.D. He did not show her any old police reports,
but simply asked her what she recalled of the events in
November 1995. He did not ask her specific questions because he
wanted her to just make a statement about what she
remembered without influencing her. S.D. was “very emotional”
and cried during the interview. She said the shooting had been a
traumatic experience for her as a young girl, and it had been
“weighing” on her for a long time. S.D. said she had been at
home with her sister and brother when Lemon and Johnson came
over to visit. She recalled Johnson ordering pizza and defendants
giving her money to go downstairs to meet the pizza delivery man
and pay for the pizzas. She said her little brother went with her,
and when the two of them were walking back to the apartment
with the pizzas, Johnson and Lemon ran past them. S.D. said
she saw a gun in Johnson’s hand as he went by. She remembered
something like “brace yourself, give me the money” being yelled
at the delivery man. Johnson was on the driver’s side of the car,
and Lemon was on the passenger side. She then heard a gunshot
and saw the delivery man slump forward. She ran upstairs with
her brother and told Y.W. that Johnson had just shot the delivery
man. S.D. was scared about having the pizzas in the apartment,
so she first put the boxes under her bed, then climbed out her

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window and threw them outside. S.D. identified Lemon and
Johnson in six-pack photographic lineups. She also identified a
photograph of someone from the neighborhood she knew as Fatts.
Some of the details S.D. provided were slightly different,
but Detective Johnson thought “the gist of who was there and
how the facts lined up” was the same as what she told the police
in 1995. The main differences in 2012 were that she admitted to
actually seeing the shooting, and not just hearing the gunshot,
and did not mention speaking with Johnson after the shooting.
Toward the end of the interview, Detective Johnson said
S.D. appeared to be weak and very tired, so he and his partner
drove her to the emergency room where she received treatment
related to her diabetes. Because they had been unable to record
her statement before the episode occurred, they arranged to meet
with her again about 12 days later. S.D. was in custody at the
time on an unrelated drug possession charge. S.D. agreed to
have her statement recorded.
Detective Johnson saw S.D. again about two years later
when she was in custody on another unrelated charge. He asked
her if she remembered him and the “pizza man case” and she
“blurted out” that “Venda killed the pizza man; James wasn’t
there; I’m not testifying; they are going to kill me if I testify.”
About six months after the initial interview of S.D. in 2012,
Detective Johnson and his partner interviewed Tyrone while he
was in custody on an unrelated charge in Colorado. Tyrone
identified both defendants in photographic lineups and confirmed
his prior statements to police that, after the shooting, he had a
three-way conversation with Lemon and Y.W. in which Lemon
admitted “they” had robbed the pizza delivery man but he had
not done the shooting.

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Detective Johnson said it was common for witnesses in a
homicide case to express concern about testifying, particularly if
there are any gang ties to the people involved. Tyrone expressed
concern for his safety. Detective Johnson explained that Los
Angeles County had a program to assist witnesses with relocation
expenses if they had safety concerns related to testifying. He
offered relocation assistance to Tyrone, Y.W., S.D. and V.B.; the
only one who accepted the offer was Tyrone. Detective Johnson
applied for him to receive several months of relocation assistance.
Detective Johnson interviewed V.B. in November 2012. His
memory of the incident was “fuzzy,” but he did recall going to a
live lineup procedure at the juvenile detention facility in 1996.
Detective Johnson showed V.B. six-pack photographs, and V.B.
acknowledged knowing Lemon. Detective Johnson asked him
why he did not identify Lemon in 1996, and V.B. said he had been
scared. He did not want his family to get hurt. V.B. told him
several times that he did not want to be a snitch and that he was
very concerned for his safety, particularly after seeing all of
Lemon’s family at the courthouse.
3. S.D.’s Trial Testimony
S.D. admitted she first told police officers in 1995 that she
did not know anything about the shooting. She had denied any
knowledge because she was scared. About a week later, the
police officers returned to interview her and her sister again. She
and Y.W. were interviewed separately in different rooms of the
apartment. The police told S.D. they were going to take Y.W. to
jail, so she started to answer their questions. S.D. explained her
memory of the incident was better in 1995 and she had tried to be
honest with the police officers in answering their questions.

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S.D. testified that around 8:00 p.m. on November 22, 1995,
she was at home with her sister, Y.W., and their 10-year-old
brother. Neither her mother nor grandmother were home at the
time. Y.W. was dating Johnson. He came over that evening with
his friend, Lemon, to hang out at their apartment. They decided
to order pizza. She could not remember who called Pizza Hut,
but acknowledged she told the officers in 1995 that it was Lemon
who phoned in the order. Lemon had been downstairs with her
while Y.W. was upstairs in a bedroom with Johnson. S.D. did not
recall telling the police she saw Johnson and Lemon talking
“secretly” in the apartment.
S.D. recalled getting money from Lemon to go outside and
pay for the pizza when it arrived, but acknowledged telling the
police in 1995 that Johnson had given her the money. She went
downstairs and paid the pizza delivery man who was parked at
the curb. As she started to walk back toward the apartment,
Johnson and Lemon ran past her. Johnson went to the driver’s
side door of the delivery man’s car, and Lemon went to the
passenger side. S.D. heard Johnson yell at the man to give him
his money. The driver said he did not have any more money.
S.D. did not hear Lemon make any demands of the driver, and
she did not recall telling the police she saw Lemon open the
passenger side door. She recalled that Johnson shot the driver
after demanding his money and the driver then slumped forward
toward the steering wheel.
S.D. said she told the police in 1995 that she saw the gun in
Johnson’s hand, but she did not actually see it because it was
dark outside and she has suffered from diabetes since childhood
which affects her vision. She admitted she only saw the fire or
flash from the gunshot.

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After the shooting, Johnson and Lemon ran towards the
back of the apartment complex, and S.D. ran upstairs to her
apartment. She told her sister Johnson had shot the pizza
delivery man. S.D. was scared and in a state of panic. She
acknowledged telling the police in 1995 that Tyrone told her to
get rid of the pizza, so she climbed out her bedroom window and
tossed the pizza boxes up onto the roof.
S.D. recalled that a couple of days after the shooting, Y.W.
spoke to Johnson on the phone. During that conversation,
Johnson told Y.W. he shot the pizza delivery man because he
thought he was reaching for a gun and would shoot him and
Lemon. He also said the driver was not “bracing” quickly enough,
which S.D. understood to mean he was not giving up his money
quickly enough. S.D. said she also may have spoken to Johnson
on the phone.
S.D. said the police interviewed her again in 2012, and she
once again had tried her best to tell them the truth. Towards the
end of the interview, she started to feel ill and was taken to the
hospital to be treated for diabetic issues, mental health issues
and anxiety. About two weeks later, she spoke with the police
again and they recorded her statement. The recording of the
2012 interview was played for the jury. A transcript was
admitted as People’s exhibit 5. S.D. confirmed it was her voice on
the recording.
During cross-examination, S.D. denied that she was unsure
whether it was in fact defendants who ran past her toward the
delivery man, reiterating that “it was Venda and James.” Her
preliminary hearing testimony in which she had testified she was
unsure who it was and that she believed Lemon had left by the
time she heard the gunshot were read into the record. S.D.

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admitted on both direct and cross-examination that in addition to
poor vision from diabetes, she also has had substance abuse
problems over the years. She admitted she had been charged
with possession of methamphetamine, and the case was resolved
with a drug diversion program. She said she often felt pressured
by the police officers to respond to their questions, including
when they went to her son’s school to attempt to question her.
S.D. also felt the police had sometimes tried to put words in her
mouth.
4. Y.W.’s Trial Testimony
Y.W. testified that the shooting in 1995 had been a “terrible
event.” She had been at home with S.D. and their younger
brother. Johnson was her boyfriend at the time and he had come
over with his friend, Lemon. Her mother and grandmother were
not at home. They decided to order pizza but she could not recall
who called in the order. She had been “making out” with
Johnson, so she knew it was not him. She acknowledged she may
have agreed with the police that it was Lemon because he was
the only other male in the apartment. Her brother was too little
at the time to have called in the order. The police told her the
call had been made by a male so she assumed it was Lemon, but
he was downstairs and she had no idea what he was doing. At
some point, Johnson left the bedroom and did not come back. She
then heard a gunshot and believed her sister started screaming
about the pizza delivery man having been shot. Y.W. denied that
her sister ever told her that she saw Johnson shoot the delivery
man or that Lemon and Johnson had robbed him.
Y.W. denied ever having a phone conversation with Tyrone
or with Lemon, and definitely could not recall a three-way phone
call. She said they were not good enough friends for her to do

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that. She said she did not know Lemon that well, but
remembered he was a “good kid.” She said she did not recall ever
telling Tyrone that the police were looking for Lemon and
Johnson. She denied ever telling Tyrone in person or over the
phone that Lemon and Johnson had robbed the pizza delivery
man or that Johnson had shot him.
Y.W. admitted that she had paged Johnson after the police
told her not to have contact with him, but he had not returned
the page. She said she was arrested after that. She was detained
in the same juvenile facility as Lemon and would see him at
church services. The accessory charge against her was
eventually dismissed. When asked if she knew how Tyrone
would have known information like she had no further
relationship with Johnson or that she saw Lemon at church while
at the juvenile facility if she had not had telephone conversations
or other contact with Tyrone, Y.W. said she did not know. She
said she did not recall any telephone conversations with Tyrone.
Y.W. was reinterviewed by the police in 2009. She believed
her memory of what happened was probably better when she was
interviewed in 1995 and 2009 than in 2014. The recording of her
2009 interview was played for the jury. A transcript was
admitted as People’s exhibit 7.
5. Tyrone’s Trial Testimony
Tyrone testified that he used to live in the apartment
complex where the shooting occurred, but his family had moved
out either the day of, or the day before, it occurred. A few days
after the shooting, he received a phone call from Y.W. She told
him the police were looking for Venda and James. During the
call, his call waiting beeped and when he switched over to see
who was on the other line, it was Lemon. He told both of them he

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would call back, and he called them back so they could talk
together on a three-way call. Lemon told Tyrone and Y.W. that
“they” had robbed the pizza delivery man, but he had not done
the shooting.
Tyrone also said he had seen Johnson with a .38-caliber
revolver. He was not certain of how long before the shooting
Johnson had shown the gun to him, but it may have been a
couple of weeks before. He also recalled speaking to Y.W. after
the charges were dropped against her for being an accessory, and
she told him that she had seen Lemon during church services on
Sundays at the juvenile detention center. She also told him that
she did not want to have anything further to do with Johnson
because of all the trouble he had gotten her into.
Tyrone’s 2012 interview with Detectives Johnson and
Evans was played for the jury. A transcript was admitted as
People’s exhibit 9. He acknowledged his voice on the recording
and confirmed that the statements he made to the detectives
were truthful. He also recalled speaking to detectives in 1995 but
could not recall the details of what he said. He said, however,
that whatever statements he made, he assumed he had been
trying to be truthful at the time.
Tyrone could not recall the names of the detectives he
spoke with in December 1995 and early 1996, or some of the
specifics of what he said. But, he recalled telling them that when
he spoke with Lemon on the phone after the shooting, Lemon
admitted to robbing the pizza delivery man, but that he did not
shoot him. The recording of the interview in 1996 was played for
the jury. A transcript was admitted as People’s exhibit 11.
Tyrone acknowledged it was his voice on the recording. He said

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he thought his memory of the events was probably better at the
time he gave the statement.
On cross-examination, Tyrone acknowledged that what he
told the police was that Lemon admitted being present when the
pizza delivery man was shot, but that he did not shoot him, and
not that Lemon ever admitted to robbing the man.
Tyrone also admitted when he was initially questioned
about the incident in 1995, he had been arrested as a suspect in
the shooting. He told the officers that he knew Johnson better
than Lemon but they had all hung out together. He had known
them for a few years before the incident. Lemon was always
doing his homework and Tyrone told the police he thought it was
surprising for Lemon to be involved in any shooting. He said
another friend from the neighborhood was known as Fatts. He
did not recall telling the detectives that Johnson had been calling
him from Texas to find out if it was safe for him to come home.
He admitted that while he was not at the apartment complex on
the night of the shooting, he had called S.D. and Y.W.’s
apartment and told S.D. to get rid of the pizza boxes. He did not
remember previously telling the detectives that he had not done
so.
Tyrone admitted he had prior convictions for grand theft,
drug distribution, and felony menacing. He also confirmed that
he had been given money by the prosecution for relocation
expenses. He said he showed the money to Y.W. because she told
him she was scared to testify, and he told her that the
prosecution had helped him relocate and they could probably help
her too.

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6. V.B.’s Trial Testimony
V.B. testified he lived in the apartment complex at the time
of the 1995 shooting. He could not recall much about it since it
happened so many years before. He did not remember his
interview with the detectives. V.B. repeatedly expressed his
desire not to be involved and that he did not want to be testifying.
He said snitches do not last that long on the street. However, he
also said he does not lie and if he made statements to the
detectives earlier, he would not disavow them. He recognized a
photograph of Lemon in court and said he had known a lot of the
boys from the neighborhood since they were very young. He
denied being scared of Lemon or telling the detectives that
Lemon’s father and uncle were Southside Crips. The recording of
his 2012 interview was played for the jury. A transcript was
admitted as People’s exhibit 13. He acknowledged it was his
voice on the recording.
7. The Prosecution’s Other Witnesses
Deputy Araceli Hernandez testified to being a deputy
providing security at a hospital facility while S.D. was there in
2014. At one point during her shift, S.D. was crying and told
Deputy Hernandez she was frightened about testifying because if
she told the truth about what she saw “they were going to kill
her.” She told Deputy Hernandez that when she was a little girl,
her sister’s boyfriend and friend ordered pizzas, robbed the
delivery man and then shot him.
Johnson’s father, Venda Johnson, Sr. (Mr. Johnson),
testified that he spoke with homicide detectives in 1999 about his
limited contact with his son while he was growing up. He denied
ever telling them anything about the shooting in Long Beach
because he said he did not know anything about it.

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Officer Dana Hatfield testified that she was a police officer
for the City of Aurora in Colorado. In 1999, she was
investigating a crime that had occurred in Aurora, and, as part of
her investigation, she came to Los Angeles to interview
Mr. Johnson. She interviewed him while he was in custody on an
unrelated charge in Men’s Central Jail. Mr. Johnson told her
that he had been in prison for a part of his son’s childhood, but
had tried to see him when he could after he was released.
Mr. Johnson asked Officer Hatfield if she knew anything about
“what happened” in Long Beach. She asked him to explain and
he said that his son had called him and told him that he had shot
a pizza delivery man. He had been with his girlfriend and friend,
and they decided to order pizza and rob the pizza man.
Mr. Johnson said his son only shot the delivery man because he
thought the man was reaching for a gun to shoot him.
8. The Defense Case
Defendants exercised their right not to testify. Johnson did
not call any witnesses. Lemon offered the testimony of several
witnesses.
Katherine Chavers-Yanes, a private investigator, testified
to interviewing S.D. in early 2014. Defense counsel accompanied
her. S.D. told her that she only had a vague recollection of the
1995 shooting and that she was pressured by the detectives who
had gone to her son’s school to find her and question her. S.D.
told Ms. Yanes that she told the detectives what they wanted to
hear. S.D. said she had only been clean and sober for about a
year, following completion of a drug diversion program. She told
Ms. Yanes that Lemon had not robbed or shot the delivery man.
She admitted she did know Lemon and that he had been at the
apartment that night.

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Robin Sawyer, another defense investigator, also attested
to interviewing S.D., Y.W. and V.B. He said that Tyrone was the
only witness who would not agree to speak with him. He said
Y.W. acknowledged that she, S.D., possibly her brother, Johnson
and Lemon were all at the apartment that night, but that she
had no information whatsoever about Lemon being involved in
any robbery or the shooting. She was not sure but she thought
Johnson might have called in the pizza order. She said S.D.
never told her that Johnson and Lemon were involved. She
denied having any three-way phone conversation with Tyrone
and Lemon. When Mr. Sawyer interviewed S.D., also in 2014,
she said she has very poor vision and was supposed to wear
glasses, but was not wearing any glasses on the night of the
shooting. She said she had no knowledge of Lemon being
involved in taking anything from the delivery man or shooting
him. When he interviewed V.B., he denied ever making any
identification of Lemon. Mr. Sawyer noted that V.B. seemed
genuinely concerned about testifying, and expressed a strong
desire not to be labeled a snitch.
Lemon’s wife and one of his daughters attested to his
nonviolent nature. His wife said they had known each other for
18 years and had four children together. Lemon went to school to
become an electrician and they moved to Las Vegas, Nevada after
he completed his education. He has worked as an electrician ever
since. She said he never argues and always tries to diffuse a
difficult situation peacefully. His daughter said he was very
involved with his children, helped with coaching and their other
activities, and was always trying to teach them right from wrong.

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9. The Verdict and Sentencing
The jury found defendants guilty of first degree felony
murder and found true the special circumstance allegation that
the murder was committed during the attempted robbery of the
victim within the meaning of Penal Code section 190.2,
subdivision (a)(17)(A). The jury also found true the allegation
that a principal was armed with a firearm.
Lemon filed a motion to arrest the judgment or
alternatively for a new trial, raising numerous issues, including
that the denial of a fitness hearing constituted an ex post facto
application of former section 707(d). The motion was denied.
Johnson was sentenced to a life term without the
possibility of parole. Lemon was sentenced to a term of 25 years
to life. The court imposed and stayed sentences on the firearm
enhancement as to both defendants. The court also imposed
various fines and fees. The fines imposed on Johnson included a
$10,000 parole revocation fine pursuant to Penal Code section
1202.45.
Both defendants filed timely appeals. We affirmed their
convictions in our original unpublished decision filed October 28,
2016. After the Supreme Court granted defendants’ petitions for
review and transferred the cause to this court for further
consideration, all parties filed supplemental briefs addressing the
question of the retroactivity of Proposition 57.
DISCUSSION
1. Defendants Are Entitled to a Transfer Hearing
The Gang Violence and Juvenile Crime Prevention Act of
1998 (Proposition 21) was passed by the voters March 7, 2000,
and became effective the next day. (John L. v. Superior Court
(2004) 33 Cal.4th 158, 165.) Proposition 21 made numerous

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changes to certain laws applicable to juveniles accused of
committing criminal offenses. (Manduley v. Superior Court
(2002) 27 Cal.4th 537, 545.) As relevant here, Proposition 21
amended former section 707(d) to confer “upon prosecutors the
discretion to bring specified charges against certain minors
directly in criminal court, without a prior adjudication by the
juvenile court that the minor is unfit for a disposition under the
juvenile court law.” (Manduley, at p. 545.)
As amended by Proposition 21, former section 707(d)
provided that “[e]xcept as provided in subdivision (b) of Section
602, the district attorney or other appropriate prosecuting officer
may file an accusatory pleading in a court of criminal jurisdiction
against any minor 16 years of age or older who is accused of
committing an offense enumerated in subdivision (b).” Murder is
an enumerated offense in subdivision (b) of Welfare and
Institutions Code section 707.
After the filing of our original opinion affirming defendants’
convictions, the voters passed Proposition 57. It became effective
the next day, November 9, 2016. (Cal. Const., art. II, § 10, subd.
(a).) As relevant here, Proposition 57 repealed former section
707(d). As amended by Proposition 57, Welfare and Institutions
Code section 707 now requires a prosecutor to make a motion for
transfer in the juvenile court in order to prosecute a juvenile
offender in criminal court. In relevant part, the statute now
specifies: “In any case in which a minor is alleged to be a person
described in Section 602 by reason of the violation, when he or
she was 16 years of age or older, of any felony criminal statute, or
of an offense listed in subdivision (b) when he or she was 14 or 15
years of age, the district attorney or other appropriate
prosecuting officer may make a motion to transfer the minor from

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juvenile court to a court of criminal jurisdiction.” (§ 707, subd.
(a)(1).) After consideration of certain specified criteria, “the
juvenile court shall decide whether the minor should be
transferred to a court of criminal jurisdiction.” (Id., subd. (a)(2).)
In other words, currently, a prosecutor must move to
transfer a case from juvenile court to criminal court rather than
directly filing any case against a minor in criminal court. The
juvenile court—not the prosecutor—must decide whether the case
should be transferred. The choice of courts has “immense”
consequences because the purpose of the juvenile court is
rehabilitation, and the purpose of an adult court is punishment.3
(People v. Smith, supra, 110 Cal.App.4th at p. 1080.) The
electorate was aware of the important distinction between
rehabilitation and punishment, as the Voter Information Guide
describing Proposition 57 explained: “Juvenile court proceedings
are different than adult court proceedings. For example, juvenile
court judges do not sentence a youth to a set term in prison or
jail. Instead, the judge determines the appropriate placement
and rehabilitative treatment (such as drug treatment) for the
youth, based on factors such as the youth’s offense and criminal
3 “ ‘An adult court may sentence a defendant to life
imprisonment; a juvenile court cannot impose confinement
beyond the age of 25. [Citations.] Adult convictions are public
but juvenile commitments are sealed [citations], a difference that
affects future employability and many other matters. Adult
convictions are criminal in character, and may deprive the person
convicted of the right to vote [citation], to serve on a jury
[citation], to carry firearms [citation] and to enter certain
professions [citation]; juvenile convictions carry no such collateral
consequences.’ ” (People v. Smith (2003) 110 Cal.App.4th 1072,
1080.)

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history.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016)
analysis of Prop. 57 by the Legislative Analyst, p. 55.)
The issue here is whether Proposition 57 applies
retroactively to Lemon and Johnson, whose convictions were not
final at the time the new law became effective. For reasons we
shall explain, we conclude that although there is a general
presumption that new laws apply prospectively (Tapia v.
Superior Court (1991) 53 Cal.3d 282, 287), an exception to that
presumption articulated in In re Estrada (1965) 63 Cal.2d 740
(Estrada) applies to this case.
As subsequently explained in People v. Brown (2012) 54
Cal.4th 314 (Brown), Estrada held: “When the Legislature has
amended a statute to reduce the punishment for a particular
criminal offense, we will assume, absent evidence to the contrary,
that the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s
operative date.” (Brown, supra, at p. 323.) Estrada
“articulate[ed] the reasonable presumption that a legislative act
mitigating the punishment for a particular criminal offense is
intended to apply to all nonfinal judgments.” (Brown, supra, at
p. 324.)
The rationale for Estrada’s holding was clear: “When 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 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. . . . [T]o hold otherwise would be to conclude that

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the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.”
(Estrada, supra, 63 Cal.2d at p. 745.) “. . . Estrada stands for the
proposition that, ‘when the amendatory statute mitigates
punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter
punishment is imposed.’ ” (People v. Nasalga (1996) 12 Cal.4th
784, 792.)
As the Attorney General emphasizes, Estrada generally
applies only to the reduction of penalty “ ‘ “for a particular
crime.” ’ ” (Brown, supra, 54 Cal.4th at p. 325.) Nevertheless, we
conclude that the rationale applies here because our Supreme
Court held that “the certification of a juvenile offender to an
adult court has been accurately characterized as ‘the worst
punishment the juvenile system is empowered to inflict.’ ”
(Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 810, italics
added; see People v. Macias (1997) 16 Cal.4th 739, 750;
Marcus W. v. Superior Court (2002) 98 Cal.App.4th 36, 41.)
Although in contrast to Estrada, this “worst punishment” applies
to several crimes—not just one—Proposition 57 mitigates the
punishment for those crimes. To hold that Proposition 57 does
not mitigate punishment because it applies broadly to more than
one crime would undermine Estrada and is not required by
Brown.4
4 In Brown, the Supreme Court considered whether former
Penal Code section 4019 should be retroactively applied. The
high court held that “a statute increasing the rate at which
prisoners may earn credits for good behavior does not represent a
judgment about the needs of the criminal law with respect to a
particular criminal offense . . . . Former section 4019 does not

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People v. Benefield (1977) 67 Cal.App.3d 51 supports
application of Estrada to this case. In Benefield, a juvenile was
sentenced to state prison before a new statute was enacted
stating that “a minor under the age of 18 years when he
committed his offense might not be directly sentenced by the
superior court to state prison” but must first be remanded for
evaluation. (Benefield, at pp. 56-57.) The court held that
Estrada applied and required retroactive application of the new
law. (Benefield, at pp. 57-58.) The modification requiring an
evaluation prior to a state prison sentence “operate[d] to benefit,
and in effect impose a lighter punishment” on, the defendant.
(Id. at p. 57.) Just as the requirement for an evaluation
mitigated punishment in Benefield, here the requirement in
Proposition 57 for a transfer hearing mitigated punishment and
is retroactive. Moreover, Estrada applies even though the
reduction in penalty is potential (not certain) and is based on
judicial discretion. (People v. Francis (1969) 71 Cal.2d 66, 77-78.)
The purposes of Proposition 57 further support the
conclusion that it was intended to apply retroactively. The
initiative was intended to “ ‘ “[s]top the revolving door of crime by
emphasizing rehabilitation, especially for juveniles”; and
“[r]equire a judge, not a prosecutor, to decide whether juveniles
alter the penalty for any crime; a prisoner who earns no conduct
credits serves the full sentence originally imposed. Instead of
addressing punishment for past criminal conduct, the statute
addresses future conduct in a custodial setting by providing
increased incentives for good behavior.” (Brown, supra, 54
Cal.4th at p. 325.) Brown is distinguishable from this case
because it did not concern punishment for a crime but credits
earned after punishment was imposed. Our case more closely
resembles Estrada than Brown.

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should be tried in adult court.” ’ ” (People v. Vela (2017) 11
Cal.App.5th 68, 75.) Requiring judicial resolution of a
defendant’s fitness for adult court was a method to mitigate
punishment directed at juveniles. Whereas prior law sought to
“expand the authority of courts of criminal jurisdiction over
juveniles who commit criminal offenses” (People v. Arroyo (2016)
62 Cal.4th 589, 596), Proposition 57 expands the authority of the
juvenile courts and thereby emphasize rehabilitation.5 Nothing
in the Voter Information Guide suggests the electorate was under
the impression that the proposition would be given prospective
effect only. (See People v. Nasalga, supra, 12 Cal.4th at p. 796.)
We recognize that only one of several cases considering the
retroactivity of Proposition 57 has concluded that the proposition
is retroactive. (People v. Vela, supra, 11 Cal.App.5th 68.) In our
view, those cases that conclude Proposition 57 is not retroactive
incorrectly determined that the rationale of Estrada does not
apply to Proposition 57. (People v. Marquez (2017) 11
Cal.App.5th 816, 820-824; People v. Mendoza (2017) 10
5 The Voter Information Guide describing Proposition 57
explained: “Youths accused of committing certain severe crimes
would no longer automatically be tried in adult court and no
youth could be tried in adult court based only on the decision of a
prosecutor. In addition, the measure specifies that prosecutors
can only seek transfer hearings for youths accused of (1)
committing certain significant crimes listed in state law (such as
murder, robbery, and certain sex offenses) when they were age 14
or 15 or (2) committing a felony when they were 16 or 17. As a
result of these provisions, there would be fewer youths tried in
adult court.” (Voter Information Guide, Gen. Elec., supra,
analysis of Prop. 57 by the Legislative Analyst, p. 56.)

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Cal.App.5th 327, 347; People v. Superior Court (Walker) (June 8,
2017, D071461) 2017 WL 2472601.)6
Because Proposition 57 should be applied retroactively,
Lemon and Johnson are entitled to a transfer hearing.7 Their
convictions therefore must be conditionally reversed. If the
juvenile court judge determines their case should be heard in
criminal court, their convictions and sentence must be reinstated.
If the juvenile court determines that they should remain under
the jurisdiction of the juvenile court, then it should impose an
appropriate disposition. (People v. Vela, supra, 11 Cal.App.5th at
pp. 82-83.) This postjudgment hearing with a concomitant
procedure has been sanctioned in other contexts (Pen. Code,
§ 1170.17, subd. (b)(2)), and a similar procedure is necessary in
this case.8 (See People v. Cervantes, supra, 9 Cal.App.5th at
p. 614 [Pen. Code, § 1170.17 “allows for transfer from criminal
court to juvenile court before sentencing for the express purpose
of a fitness hearing”].)
6 The California Supreme Court has granted review in People
v. Cervantes (2017) 9 Cal.App.5th 569 (May 17, 2017, S241323)
and People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753
(Apr. 19, 2017, S241231).
7 Although defendants’ current ages are relevant to the
juvenile court’s determination on remand, they are not relevant
to the retroactivity of Proposition 57. Our task on remand was to
consider whether Proposition 57 applies retroactively.
8 Because we conclude defendants are entitled to a transfer
hearing, we need not consider their argument that the former
statute violated the ex post facto law by allowing direct filing in
criminal court.

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2. Lemon’s Insufficient Evidence Claims
Lemon contends the record lacks substantial evidence
supporting his conviction for first degree felony murder and the
jury’s true finding on the robbery-murder special-circumstance
allegation. We disagree.
Our task is to review “ ‘the entire record in the light most
favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that
a reasonable jury could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Johnson (2015) 60 Cal.4th 966,
988.) “Reversal on this ground is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ ” (People v. Bolin (1998) 18
Cal.4th 297, 331; accord, People v. Manriquez (2005) 37 Cal.4th
547, 577.) “These same standards apply to challenges to the
evidence underlying a true finding on a special circumstance.”
(People v. Banks (2015) 61 Cal.4th 788, 804 (Banks).)
a. First Degree Felony Murder
“One who unlawfully kills a human being during the
commission of a robbery or an attempted robbery is guilty of first
degree murder under the felony-murder rule. [Citations.]
‘Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence,
and against his will, accomplished by means of force or fear.’
(§ 211.)” (People v. Thompson (2010) 49 Cal.4th 79, 115
(Thompson).) “All persons concerned in the commission of a
crime . . . whether they directly commit the act constituting the
offense, or aid and abet in its commission . . . are principals in
any crime so committed.” (Pen. Code, § 31.)

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Lemon was convicted as an aider and abettor of Johnson in
the attempted robbery and resulting murder of Mr. Teniente.
Lemon argues there is insufficient evidence he had an intent to
aid and abet a robbery. He contends the evidence does not
demonstrate any knowledge on his part that Johnson had a gun
or intended to use force against the delivery man. At best, he
argues, there is evidence from which it could be inferred he
entertained the intent to aid and abet a theft, but not a taking
“accomplished by means of force of fear.” (Pen. Code, § 211.) We
disagree.
“ ‘Aider and abettor liability is premised on the combined
acts of all the principals, but on the aider and abettor’s own mens
rea.’ ” (Thompson, supra, 49 Cal.4th at p. 116.) “Under the
felony-murder rule, an accomplice is liable for killings occurring
while the killer was acting in furtherance of a criminal purpose
common to himself and the accomplice, or while the killer and the
accomplice were jointly engaged in the felonious enterprise.” (Id.
at p. 117.) “The mental state required is simply the specific
intent to commit the underlying felony; neither intent to kill,
deliberation, premeditation, nor malice aforethought is needed.”
(People v. Berryman (1993) 6 Cal.4th 1048, 1085, overruled on
another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
The evidence, judged in its totality and under the
appropriate standard, demonstrates that Lemon and Johnson
planned to rob the pizza delivery man. Lemon ordered the pizza
from S.D. and Y.W.’s apartment while Johnson was upstairs with
Y.W. The defendants gave S.D. money to go pay for the pizzas,
and then immediately after she had paid for them, they ran past
her and confronted the delivery man. A reasonable inference
from such conduct is that they used S.D. as a diversion, letting

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Mr. Teniente believe this was just an ordinary delivery and
would likely be taken off guard by their abrupt appearance and
demands for money. Johnson and Lemon positioned themselves
on either side of the car, preventing any means of escape and
reasonably raising Mr. Teniente’s feelings of fear and
vulnerability. Johnson yelled at Mr. Teniente to give him the
money, while Lemon opened the passenger side door, an act
which also could be reasonably viewed as a further physical
threat to Mr. Teniente. When Mr. Teniente apparently did not
turn over the money quickly enough, Johnson fatally shot him at
close range. Johnson and Lemon then fled the scene together.
Such evidence amply supported the conclusion that
Johnson and Lemon were engaged in a “felonious enterprise” to
rob Mr. Teniente, during the commission of which Mr. Teniente
was fatally shot. (Thompson, supra, 49 Cal.4th at p. 117; see
People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743
[“The ‘act’ required for aiding and abetting liability need not be a
substantial factor in the offense.”]; People v. Campbell (1994) 25
Cal.App.4th 402, 409 [“ ‘factors which may be considered in
making the determination of aiding and abetting are: presence
at the scene of the crime, companionship, and conduct before and
after the offense’ ”]; People v. Nguyen (1993) 21 Cal.App.4th 518,
531-532 [perpetrator need not expressly communicate criminal
purpose that is apparent from the circumstances as “[a]iding and
abetting may be committed ‘on the spur of the moment,’ . . . as
instantaneously as the criminal act itself”].) The record contains
solid evidence supporting the jury’s determination that Lemon
was guilty, as an aider and abettor, of first degree felony murder
arising from the attempted robbery of Mr. Teniente.

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Lemon argues there were inconsistencies in the witness
statements from the initial investigation and the witnesses’ trial
testimony, particularly as to the main prosecution witness, S.D.
Given the 19-year lapse between the murder and the trial, it is
not surprising there would be some inconsistencies as to certain
details. In our view, to the extent there are inconsistencies, they
are largely as to minor or collateral matters. S.D.’s core
description of the events of November 22, 1995, remained
remarkably consistent.
Moreover, in many instances, other testimony corroborated
and bolstered her original account. For instance, S.D. could not
recall at trial that she told detectives in 1995 that she saw Lemon
open the passenger side door of the car when he and Johnson
confronted the delivery man. But, Officer Decarvalho, the first
officer to arrive on the scene, testified that the front passenger
door was open. Further, Lemon argues S.D. first described
seeing the shooting in her 2012 reinterview, but had previously
said she had run upstairs after seeing the confrontation and only
heard the gunshot. Again, Officer Decarvalho testified that
Mr. Teniente was slumped over the steering wheel. That is
precisely how, in her 2012 interview, S.D. described seeing
Mr. Teniente after the gunshot. The reasonable inference is that
she did witness the shooting, irrespective of her inability to
articulate that as a 12-year-old in 1995.
Alternatively, Lemon contends there was no evidence he
acted with actual malice to support first degree murder (Pen.
Code, § 187). He contends the felony-murder rule, which relieves
the prosecution of proving actual malice, rests on an
unconstitutional mandatory presumption of malice. Lemon
concedes People v. Dillon (1983) 34 Cal.3d 441 held to the

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contrary and that we are constrained to follow it. Nevertheless,
he argues the felony-murder rule “is a disfavored doctrine” that
should be narrowly construed and not applied to juvenile
offenders. The felony-murder rule applies in cases involving
juvenile offenders accused of murder. Indeed, Dillon involved a
17-year-old defendant. We are bound by Supreme Court
precedent and there is no basis for deviating from its dictates
here.
b. The Special Circumstance Finding
Penal Code section 190.2 specifies the penalty to be
imposed on a defendant convicted of first degree murder when a
special circumstance allegation is found to be true. As relevant
here, subdivision (d) provides that “every person, not the actual
killer, who, with reckless indifference to human life and as a
major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a [robbery]
which results in the death of some person or persons, and who is
found guilty of murder in the first degree therefore, shall be
punished by death or imprisonment in the state prison for life
without the possibility of parole . . . .”
Where, as here, the defendant is over the age of 16 and
under the age of 18 at the time of the murder, Penal Code section
190.5 specifies the penalty as life without the possibility of
parole, but vests the trial court with discretion to impose a
sentence of 25 years to life. Here, the court exercised its
discretion to sentence Lemon to the minimum sentence of 25
years to life under section 190.5. Thus, the special circumstance
allegation in this case is mere surplusage. We need not consider
Lemon’s substantial evidence argument since there is no

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prejudice to him resulting from the jury’s true finding on the
special circumstance.
In any event, substantial evidence supported the true
finding. Lemon and Johnson together planned to rob the pizza
delivery man. Lemon ordered the pizza from S.D. and Y.W.’s
apartment while Johnson was upstairs with Y.W. The
defendants gave S.D. money to go pay for the pizzas, and then
immediately after she had paid for them, they ran out together
and confronted the delivery man. Johnson and Lemon positioned
themselves on either side of the car, preventing any means of
escape. Lemon opened the passenger door, thereby adding an
element of intimidation and fear. He maintained his position and
did not withdraw, even after Johnson escalated the encounter
with his gun. After Johnson shot the victim, Lemon fled the
scene with him. Lemon never did anything to aid the victim. We
do not agree that Lemon has minimal culpability like the aider
and abettor who acted only as a getaway driver in Banks, supra,
61 Cal.4th 788.
3. Cross-examination of Prosecution Witness S.D.
Lemon next contends the court prejudicially erred in
denying his constitutional right to confront and cross-examine
S.D., the main prosecution witness, about her alleged mental
illness. Lemon argues the restriction on cross-examination also
violated his constitutional rights to due process and to present a
defense, and amounted to an abuse of the court’s discretion under
Evidence Code sections 352 and 780. Johnson joins in Lemon’s
arguments.
“Under Evidence Code section 352, the trial court enjoys
broad discretion in assessing whether the probative value of
particular evidence is outweighed by concerns of undue prejudice,

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confusion or consumption of time. [Citation.] Where, as here, a
discretionary power is statutorily vested in the trial court, its
exercise of that discretion ‘must not be disturbed on appeal except
on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124.)
Lemon sought and obtained pretrial access to S.D.’s
medical records. Those records were transmitted under seal to
this court for consideration on appeal. During the preliminary
hearing, S.D. admitted on cross-examination that she had, at
some unspecified time, been committed to hospitals on “a couple
of holds” for mental health reasons. But she denied ever being
diagnosed with schizophrenia or any kind of paranoid or
delusional disorder. She denied ever being suicidal and said she
just suffered from anxiety and had at some point been diagnosed
as bipolar.
At trial, Lemon renewed his request to cross-examine S.D.
about her mental health issues. Defense counsel conceded S.D.
had the capacity to testify, but he wanted the ability to cross-
examine her about any mental health issues as it pertained to
her credibility. During proceedings outside the presence of the
jury, defense counsel elaborated that there were records showing
that on the same day she was released from the hospital with a
diagnosis of manic depressive psychosis in March 2012, she was
then interviewed by Detective Johnson and her statement was
recorded.
Citing Evidence Code section 352, the court denied Lemon’s
request finding such evidence was not substantially probative of
S.D.’s ability to have perceived the events she attested to in 1995,

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and it would be confusing to the jury and constitute an undue
consumption of time.
“[T]he confrontation clause guarantees only an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
wishes. [Citation.] Judges retain wide latitude to impose
reasonable limits on cross-examination.” (People v. Szadziewicz
(2008) 161 Cal.App.4th 823, 841-842; see Pen. Code, § 1044 [“It
shall be the duty of the judge to control all proceedings during the
trial, and to limit the introduction of evidence and the argument
of counsel to relevant and material matters, with a view to the
expeditious and effective ascertainment of the truth regarding
the matters involved.”].)
Moreover, “[a] witness may be cross-examined about his
mental condition or emotional stability to the extent it may affect
his powers of perception, memory (recollection), or communication.
[Citations.] Also, expert psychiatric testimony may be admissible
to impeach the credibility of a prosecution witness where the
witness’ mental or emotional condition may affect the ability of
the witness to tell the truth. The admissibility of such testimony
rests within the discretion of the trial court. Generally, however,
attempts to impeach a prosecution witness by expert psychiatric
testimony have been rejected.” (People v. Cooks (1983) 141
Cal.App.3d 224, 302, italics added.)
Here, there was no evidence S.D. suffered from any mental
health issues in 1995 when she perceived the events to which she
attested, nor any evidence that during the trial in November
2014 she suffered from any condition that impacted her ability to
testify. As the trial court noted in its ruling, her testimony and
statements over the 19 years showed a high degree of

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consistency. Lemon noted that a doctor had been hired but did
not say that the individual had examined S.D., had prepared a
report or opinion as to her mental health status, or had any
foundation for testifying.
We have reviewed the sealed medical records and are
satisfied the court did not abuse its discretion under Evidence
Code section 352 in excluding further cross-examination as
requested by Lemon. In addition, there was extensive cross-
examination of S.D. on a wide range of issues, including the
inconsistent portions of her statements regarding the shooting,
the level of her vision problems that may have impacted her
ability to perceive the shooting, and her substance abuse
problem, including that she had been arrested for possession of
methamphetamine.
Nor do we find any constitutional error. “ ‘ “[A] criminal
defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby, ‘to expose to
the jury the facts from which jurors . . . could appropriately draw
inferences relating to the reliability of the witness.’ ” [Citation.]
However, not every restriction on a defendant’s desired method of
cross-examination is a constitutional violation. Within the
confines of the confrontation clause, the trial court retains wide
latitude in restricting cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance.
[Citations.] California law is in accord. [Citation.] Thus, unless
the defendant can show that the prohibited cross-examination
would have produced “a significantly different impression of [the
witnesses’] credibility” [citation], the trial court’s exercise of its

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discretion in this regard does not violate the Sixth Amendment.’ ”
(People v. Linton (2013) 56 Cal.4th 1146, 1188, italics added;
accord, Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.)
Lemon has not demonstrated that cross-examination
regarding any mental health treatment S.D. may have received
in 2012 would have produced a significantly different impression
of her credibility as a witness. He has also not demonstrated that
he was denied a fair trial or the ability to present a defense. “ ‘As
a general matter, the “[a]pplication of the ordinary rules of
evidence . . . does not impermissibly infringe on a defendant’s
right to present a defense.” ’ ” (People v. Boyette (2002) 29 Cal.4th
381, 427-428.) Assuming for the sake of argument the court’s
ruling was error, it was harmless by any standard.
4. Admission of Johnson’s Out-of-court Statement
Lemon contends the court erred in admitting the out-of-
court statement by Johnson that implicated Lemon as an
accomplice. Lemon argues the hearsay statement was not
admissible under Evidence Code section 1230 as a statement
against interest, and the court’s error was not only an abuse of
discretion, but deprived him of his due process right to a fair
trial. The Attorney General contends the due process objection
was forfeited, and that in any event, the statement was properly
admitted under section 1230.
First, we reject the Attorney General’s claim of forfeiture.
Lemon moved pretrial to exclude evidence of any hearsay
statements that inculpated him, including the 1995 statement by
Johnson to S.D. to the effect that he had shot the delivery man
because if he had not done so then “he and James would be dead.”
The motion was denied.

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“[A] trial objection must fairly state the specific reason or
reasons the defendant believes the evidence should be excluded.
If the trial court overrules the objection, the defendant may argue
on appeal that the court should have excluded the evidence for a
reason asserted at trial. A defendant may not argue on appeal
that the court should have excluded the evidence for a reason not
asserted at trial. A defendant may, however, argue that the
asserted error in overruling the trial objection had the legal
consequence of violating due process.” (People v. Partida (2005)
37 Cal.4th 428, 431 (Partida), first & third italics added.) “To the
extent, if any, [the defendant] argues that due process required
the court to exclude the evidence for a reason not included in the
trial objection, that argument is forfeited . . . .” (Ibid.)
Lemon’s objections below fairly informed the court and
counsel of his grounds for seeking to exclude the hearsay
statements of Johnson and have been preserved for appeal. We
review the court’s ruling to admit such statements for abuse of
discretion. (People v. Cortez (2016) 63 Cal.4th 101, 125, fn. 5
(Cortez).)
“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected him to the risk of . . .
criminal liability . . . that a reasonable man in his position would
not have made the statement unless he believed it to be true.”
(Evid. Code, § 1230.) “The proponent of such evidence must show
that the declarant is unavailable, that the declaration was
against the declarant’s penal interest when made and that the
declaration was sufficiently reliable to warrant admission despite

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its hearsay character.” (People v. Duarte (2000) 24 Cal.4th 603,
610-611 (Duarte).)
Declarations against penal interest, however, may also
contain self-serving and unreliable information, and “ ‘ “a self-
serving statement lacks trustworthiness whether it accompanies
a disserving statement or not.” ’ ” (Duarte, supra, 24 Cal.4th at
p. 611.) “Even a hearsay statement that is facially inculpatory of
the declarant may, when considered in context, also be
exculpatory or have a net exculpatory effect.” (Id. at p. 612.)
Because of such concerns, Evidence Code “section 1230’s
exception to the hearsay rule [is] ‘inapplicable to evidence of any
statement or portion of a statement not itself specifically
disserving to the interests of the declarant.’ ” (Duarte, at p. 612.)
Thus, a hearsay statement “ ‘which is in part inculpatory and in
part exculpatory (e.g., one which admits some complicity but
places the major responsibility on others) does not meet the test
of trustworthiness and is thus inadmissible.’ ” (Ibid.)
Lemon argues the portion of Johnson’s statement
implicating Lemon as being at the scene was “entirely collateral”
and not self-inculpatory under Duarte and therefore should have
been excluded. But, Duarte explained that “ ‘whether a
statement is self-inculpatory or not can only be determined by
viewing it in context.’ ” (Duarte, supra, 24 Cal.4th at p. 612.) No
part of Johnson’s statement was exculpatory. No part of it was
“self-serving.” (Id. at p. 611.) The statement did not attempt to
shift blame to Lemon or otherwise try to place the “the major
responsibility” for the shooting on Lemon. (Id. at p. 612; see
Cortez, supra, 63 Cal.4th at p. 128.)
In short, Johnson’s reference to Lemon was an integral part
of the statement in which he implicated himself in the robbery

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and shooting. The context in which the statement was made was
plainly self-inculpatory as Johnson admitted his responsibility for
the murder. The reference to Lemon was part of his explanation
for his motive in shooting the victim and did not implicate Lemon
in any conduct other than his presence at the scene. The fact
that Lemon was present was largely uncontradicted in the
evidence. Moreover, the attendant circumstances under which
Johnson made the statement provided further indicia of
reliability. The statement was made in a private setting, on the
telephone, to someone deemed to be a friend, and thus without
coercion or reason to fabricate. Under such facts, there was no
error in the trial court’s admission of Johnson’s statements to
S.D. implicating Lemon. (Cortez, supra, 63 Cal.4th at p. 128.)
Lemon argues the admission of the hearsay statement was
an error of such magnitude that it amounted to a violation of his
due process right to a fair trial. “[T]he admission of evidence,
even if erroneous under state law, results in a due process
violation only if it makes the trial fundamentally unfair.”
(Partida, supra, 37 Cal.4th at p. 439.) Lemon argues only that
the prosecution’s case was weak, and the hearsay statement of
Johnson was improperly admitted to bolster the otherwise weak
and conflicting statements of the witnesses. As we explained, the
statement was not improperly admitted, but even assuming it
was, Lemon has not articulated an argument that the admission
resulted in a trial that was fundamentally unfair.
Finally, we note that Lemon concedes the challenged
statement was nontestimonial and that the Sixth Amendment
has no application to nontestimonal hearsay statements. (See
Whorton v. Bockting (2007) 549 U.S. 406, 420; People v. Arceo

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(2011) 195 Cal.App.4th 556, 571-574.) Lemon therefore did not
raise any confrontation clause argument.
5. Lemon’s Claims of Instructional Error
Lemon argues the court erred by instructing the jury on
first degree felony murder and in failing to instruct on lesser
included offenses. We review claims of instructional error de
novo. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) We find no
such error.
a. First Degree Felony Murder
Lemon’s arguments are threefold: First, he restates his
substantial evidence argument that proof of malice is required for
first degree murder but the record lacked any evidence of malice
aforethought, and therefore the instruction should not have been
given. Next, Lemon argues the felony-murder rule should not
apply to juveniles. And finally, he argues that under the merger
doctrine, robbery, which has an assaultive aspect, merges with
homicide and instruction on felony murder was therefore
improper. Johnson joined in Lemon’s first two arguments. All
three arguments are without merit.
As we already explained above, the felony-murder rule
applies to juveniles and does not require proof of malice. We
need not address those points further.
In People v. Gonzales (2011) 51 Cal.4th 894 (Gonzales), the
Supreme Court rejected an argument analogous to Lemon’s
argument regarding the merger doctrine and felony murder. In
Gonzales, the defendant argued that a conviction of mayhem
felony murder violated the merger doctrine as “articulated in
People v. Ireland (1969) 70 Cal.2d 522, a second degree murder
case, and extended to first degree felony murder in People v.
Wilson (1969) 1 Cal.3d 431, 441-442 (Wilson).” (Gonzales, at

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p. 942.) The defendant admitted that Wilson had recently been
overruled in People v. Farley (2009) 46 Cal.4th 1053 (Farley),
which “held, prospectively, that the merger doctrine has no
application to first degree felony murder.” (Gonzales, at p. 942,
italics added.) But, the defendant argued her charged offense
predated Farley and therefore the rule of Wilson still applied to
her case. The Gonzales court disagreed, explaining that the
court’s pre-Farley jurisprudence “had limited Wilson to cases of
burglary felony murder where the defendant’s only felonious
purpose was to assault or kill the victim.” (Gonzales, at p. 942.)
Defendants here were charged and convicted of first degree
felony murder with attempted robbery, not burglary, as the
underlying felony. Thus, under Gonzales, instruction on first
degree felony murder was proper irrespective of the prospective
application of Farley. Lemon’s reliance on People v. Chun (2009)
45 Cal.4th 1172 (Chun) is unavailing. Chun concerned second
degree felony murder and concluded that where the elements of
the underlying felony “have an assaultive aspect, the crime
merges with the underlying homicide even if the elements also
include conduct that is not assaultive.” (Chun, at p. 1200.)
Lemon, failing to address Gonzales at all, argues that under
Chun robbery has “an assaultive aspect” and therefore merges
with homicide. Not so. It is well established that robbery, while
it may include assaultive behavior, nonetheless has an
independent felonious purpose, namely to “acquire money or
property belonging to another.” (People v. Burton (1971) 6 Cal.3d
375, 387, overruled in part on other grounds in People v. Lessie
(2010) 47 Cal.4th 1152, 1157-1158.) Robbery therefore does not
merge with homicide. (Burton, at pp. 387-388.) Chun, while it

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overruled a number of earlier precedents, did not, as Lemon
concedes, overrule Burton. (See Chun, at p. 1201.)
b. Lesser Included Offenses
Lemon claims the court erred in failing to instruct on theft
and involuntary manslaughter as lesser included offenses. “Theft
is a necessarily included offense of robbery.” (People v. Ledesma
(2006) 39 Cal.4th 641, 715.) “Involuntary manslaughter is
ordinarily a lesser offense of murder.” (People v. Abilez (2007) 41
Cal.4th 472, 515.) Lemon argues there was substantial evidence
upon which the jury could have found that he only aided and
abetted an attempted theft, not robbery, and therefore any
resulting death could be no more than involuntary manslaughter.
We are not persuaded.
The court’s obligation to instruct on all principles of law
relevant to the issues raised by the evidence at trial includes the
obligation to instruct “ ‘on any lesser offense “necessarily
included” in the charged offense, if there is substantial evidence
that only the lesser crime was committed.’ ” (People v. Smith
(2013) 57 Cal.4th 232, 239; accord, People v. Bradford (1997) 15
Cal.4th 1229, 1344-1345.) “An instruction on a lesser included
offense must be given only when the evidence warrants such an
instruction. [Citation.] To warrant such an instruction, there
must be substantial evidence of the lesser included offense, that
is, ‘evidence from which a rational trier of fact could find beyond
a reasonable doubt’ that the defendant committed the lesser
offense. [Citation.] Speculation is insufficient to require the
giving of an instruction on a lesser included offense.” (People v.
Mendoza (2000) 24 Cal.4th 130, 174, italics added.)
As we explained above, there was substantial evidence that
Lemon aided and abetted an attempted robbery that resulted in a

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murder. Under no reasonable interpretation of the evidence was
there only a theft and not a robbery.
6. Lemon’s Eighth Amendment Claim
Lemon argues his sentence of 25 years to life is “effectively”
a life sentence given his age at the time of sentencing and his life
expectancy, and thus violates both the federal and state
constitutional proscriptions against cruel and unusual
punishment. Lemon also argues the record demonstrates he was
not only under the age of 18 at the time of the crime but less
culpable than Johnson and not deserving of a sentence in which
he has no meaningful opportunity to obtain parole. “Whether a
punishment is cruel or unusual is a question of law for the
appellate court, but the underlying disputed facts must be viewed
in the light most favorable to the judgment.” (People v. Martinez
(1999) 76 Cal.App.4th 489, 496.)
“A sentence violates the state prohibition against cruel and
unusual punishment (Cal. Const., art. I, §§ 6, 17) if ‘ “it is so
disproportionate to the crime for which it is inflicted that it
shocks the conscience.” ’ [Citations.] [¶] A sentence violates the
federal Constitution [(U.S. Const., 8th & 14th Amends.)] if it is
‘grossly disproportionate’ to the severity of the crime.” (People v.
Russell (2010) 187 Cal.App.4th 981, 993.) Outside the context of
a capital sentence, “ ‘successful challenges to the proportionality
of particular sentences have been exceedingly rare.’ ” (Ewing v.
California (2003) 538 U.S. 11, 21 [affirming sentence of 25 years
to life imposed on a third strike offender convicted of felony grand
theft for the theft of $1,200 worth of merchandise].)
Where, as here, the defendant was a juvenile at the time
the offense was committed, the sentencing court must take into
consideration the juvenile offender’s “ ‘chronological age and its

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hallmark features—among them, immaturity, impetuosity, and
failure to appreciate risks and consequences.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1388 (Gutierrez), quoting Miller
v. Alabama (2012) 567 U.S. 460, 477 (Miller).) Miller reasoned
that “children are constitutionally different from adults for
purposes of sentencing. Because juveniles have diminished
culpability and greater prospects for reform, . . . ‘they are less
deserving of the most severe punishments.’ ” (Miller, at p. 471.)
Lemon was convicted of first degree felony murder. Penal
Code section 190.5, subdivision (b) provides, in relevant part, that
“[t]he penalty for a defendant found guilty of murder in the first
degree, in any case in which one or more special
circumstances . . . has been found to be true . . . , who was 16
years of age or older and under the age of 18 years at the time of
the commission of the crime, shall be confinement in the state
prison for life without the possibility of parole or, at the
discretion of the court, 25 years to life.” Gutierrez concluded that
the sentencing scheme created by section 190.5 does not offend
the Constitution as it “authorizes and indeed requires
consideration of the distinctive attributes of youth highlighted in
Miller.” (Gutierrez, supra, 58 Cal.4th at p. 1361.)
The record demonstrates the trial court gave serious
consideration to the parties’ sentencing memoranda and allowed
for significant argument regarding the appropriate sentence.
Indeed, Lemon makes no claim that the trial court failed to take
into consideration the Miller factors in imposing sentence.
Rather, Lemon focuses almost exclusively on the fact that he was
in his 30’s at the time of sentencing and therefore a 25-year-to-
life sentence operates as a de facto life sentence, delaying any
chance at parole until he is 61.

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Lemon actively participated with Johnson in the attempted
robbery and murder of an unarmed pizza delivery man. He left
the state following the crime and was free for some 19 years
without having to face the consequences of his conduct. He has
an opportunity to be paroled at the age of 61. We do not agree
that Lemon’s sentence is grossly disproportionate to the crime,
that it shocks the conscience, or that Lemon does not have a
meaningful chance at parole.
7. The Denial of Lemon’s Pitchess Motion
Lemon contends the court erred in denying his motion for
discovery pursuant to Pitchess without reviewing any personnel
records in camera. Lemon’s motion sought personnel records of
Detectives Cable and Collette related to false reports, lying, and
untruthfulness. On appeal, Lemon argues only that he
established good cause for production of records related to
Detective Cable. “A trial court’s ruling on a motion for access to
law enforcement personnel records is subject to review for abuse
of discretion.” (People v. Hughes (2002) 27 Cal.4th 287, 330.)
“To show good cause as required by [Evidence Code] section
1043, defense counsel’s declaration in support of a Pitchess
motion must propose a defense or defenses to the pending
charges. The declaration must articulate how the discovery
sought may lead to relevant evidence or may itself be admissible
direct or impeachment evidence [citation] that would support
those proposed defenses.” (Warrick v. Superior Court (2005) 35
Cal.4th 1011, 1024 (Warrick).) “Counsel’s affidavit must also
describe a factual scenario supporting the claimed officer
misconduct.” (Ibid.)
The Pitchess motion in this case did not propose a defense
to the charge of murder nor articulate how the requested

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discovery would support any proposed defense. Neither did the
motion describe a factual scenario supporting the claimed officer
misconduct and explaining Lemon’s own actions in a manner that
would have established some type of defense. The motion
asserted that Lemon was looking for witnesses to testify that the
officer had character traits and habits of providing false reports,
lying and untruthfulness. In other words, Lemon sought
evidence of the officer’s character or a trait of his character,
evidence made inadmissible by Evidence Code section 1101.
Counsel added in his points and authorities that “it would not
hurt for the court to examine” the personnel records in camera
(italics added). Such argument ignores the duty of the trial court
to carefully balance the peace officer’s just claim to
confidentiality against Lemon’s right to a fair trial. (People v.
Mooc (2001) 26 Cal.4th 1216, 1227 [Pitchess and Evid. Code,
§§ 1043-1047 recognize that the officer in question has a strong
privacy interest in his or her personnel records and that such
records should not be disclosed unnecessarily].)
Counsel’s declaration fell far short of demonstrating good
cause for an in camera hearing as explained fully by our Supreme
Court in Warrick. In Warrick, the police report stated that three
police officers on patrol noticed the defendant standing next to a
wall holding a baggie containing off-white solids; the officers
approached; the defendant fled, discarding off-white lumps
resembling rock cocaine; one of the officers retrieved 42 lumps
from the ground; and when the two other officers arrested the
defendant after a short pursuit, he held an empty baggie in his
hand and had $2.75 cash in his pockets. (Warrick, supra, 35
Cal.4th at p. 1016.) Defense counsel’s declaration described an
alternate version of the events, explaining that the defendant fled

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when the officers got out of the patrol car because he feared an
arrest on an outstanding parole warrant, and when the officers
caught up with him “ ‘people [were] pushing and kicking and
fighting with each other’ ” as they collected rock cocaine from the
ground; two officers retrieved some of the rocks; when one of
them told the defendant he must have thrown it, the defendant
denied possessing or discarding any rock cocaine, and explained
he was in the area to buy cocaine from a seller there. (Id. at
p. 1017.) Defense counsel linked this version to the potential
defense by suggesting “that the officers, not knowing who had
discarded the cocaine, falsely claimed to have seen defendant,
who was running away, do so.” (Ibid.)
In contrast to the declaration of defense counsel in Warrick,
the declaration here did not describe an alternate version of
events in contrast to the police reports. It summarily described
two facts and one omission in two police reports, which counsel
asserted might lead to the discovery of evidence of a character for
dishonesty. It also stated that Detective Cable was fired from the
Long Beach Police Department. The declaration says nothing
about when Detective Cable was fired, or why he was fired, or
even the basis for counsel’s statement that he had been fired.
The declaration offers no facts based on which one might infer
that Detective Cable was fired for false reports, lying or
dishonesty or for anything at all having to do with the
investigation of the murder of Mr. Teniente.
The declaration stated Detective Cable and another
detective wrote a report that included Tyrone’s statement that
Lemon told Tyrone he was there when Johnson shot the delivery
man but he (Lemon) did not do the shooting. A copy of this report
was attached as an exhibit to counsel’s declaration. The

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declaration states that Lemon denied making that statement.
The declaration did not say that Tyrone denied repeating
Lemon’s out-of-court statement to Detective Cable, or that
Detective Cable did not accurately report what Tyrone told him.
Counsel also declared this report omitted to mention that at one
stage of the investigation, Tyrone had been arrested as a suspect
involved in the murder. The declaration did not state that fact
was withheld from the defense; only that it was not mentioned in
this particular report. Indeed, defense counsel attached as an
exhibit to his declaration a portion of Tyrone’s preliminary
hearing testimony in which the defense cross-examined him
about his arrest. Tyrone testified at the preliminary hearing
three months before Lemon filed his Pitchess motion, so there is
no doubt that Tyrone’s arrest was disclosed to the defense well
before Lemon was held to answer in this case.
The only other fact cited in counsel’s declaration is that
Detective Cable wrote in another report that he was present at
the live lineup in which Lemon was in position No. 3. Counsel’s
declaration states that, “At the line-up, [V.B.] twice failed to
identify anyone. [¶] . . . Nonetheless, Detective Cable claims
that outside the line-up he heard [V.B.] later tell the Deputy
District Attorney that he could identify Mr. Lemon.” Defense
counsel declared, “Our investigation reveals that [V.B.] never
made such a statement.” Counsel attached a copy of this report
as an exhibit to his declaration. In relevant part, the report
summarized the conversation between V.B. and the deputy
district attorney as follows: “I heard [the deputy district
attorney] say to [V.B.] something along the lines of, ‘So now
you’re telling me it’s number three?’ I also heard her ask the
witness if he was positive and I heard his response to be that he

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was. The witness was then asked by the District Attorney why
he filled out the form the way he did, which caused the witness to
respond in an aggravated manner. [¶] The witness told the
District Attorney that he did not want to be stressed, that he was
sick and this was not doing him any good. [¶] I suggested to the
District Attorney that we not talk with the witness any further
regarding his statement and I suggested to her that, maybe after
thinking about the line-up by himself, he was now able to make
an identification.”
Warrick explained how to assess the evidence in support of
a Pitchess motion to determine whether the defendant has
established good cause for in-chambers review of an officer’s
personnel records. “[T]he trial court looks to whether the
defendant has established the materiality of the requested
information to the pending litigation. The court does that
through the following inquiry: Has the defense shown a logical
connection between the charges and the proposed defense? Is the
defense request for Pitchess discovery factually specific and
tailored to support its claim of officer misconduct? Will the
requested Pitchess discovery support the proposed defense, or is it
likely to lead to information that would support the proposed
defense? Under what theory would the requested information be
admissible at trial?” (Warrick, supra, 35 Cal.4th at pp. 1026-
1027.)
Defense counsel’s declaration here did not show a logical
connection between any statements or omission in the police
reports and any defense. Nothing is offered to explain how
Lemon’s denial that he told Tyrone he was there when Johnson
shot the delivery man supports any proposed defense. Lemon’s
denial that he made the out-of-court statement to Tyrone in no

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way implicated the accuracy of Detective Cable’s report of what
Tyrone told him. Defense counsel did not state the defense
believed Detective Cable lied about what Tyrone told him.
Likewise, nothing is offered to explain how V.B.’s statement to
the deputy district attorney might be admissible at trial or might
support any defense. The report of V.B.’s conversation with the
deputy district attorney accurately states that V.B. did not
identify Lemon in the lineup, although he admitted afterward
and “off the record” that he could have. Counsel’s declaration
that some undisclosed investigation revealed V.B. never made
such a statement is insufficient without more to demonstrate
police misconduct, and it does not show a logical connection to
any proposed defense.
In People v. Thompson (2006) 141 Cal.App.4th 1312, which
was decided after Warrick, the court affirmed the denial of the
Pitchess motion because the declaration merely denied the
elements of the offense, without presenting a factual account of
the scope of the alleged police misconduct, explaining the
defendant’s own actions in a manner that supported his defense,
suggesting a nonculpable reason for his presence in an area
where drugs were being sold or for being singled out by the
police, or asserting “any ‘mishandling of the situation’ prior to his
detention and arrest.” (Thompson, at p. 1317.)
Similarly, here there is no factual account of police
misconduct nor any facts offered to explain Lemon’s own actions
in a manner that suggested a nonculpable reason for his presence
in the apartment of S.D. and Y.W. on the night of the murder of
the pizza delivery man. Lemon has not demonstrated the trial
court abused its discretion.

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8. Cumulative Error
Lemon urges us to find that even if none of his claims of
error individually warrants reversal, their cumulative effect
nonetheless requires reversal. We are not persuaded. “The
‘litmus test’ for cumulative error ‘is whether defendant received
due process and a fair trial.’ ” (People v. Cuccia (2002) 97
Cal.App.4th 785, 795.) Whether viewing his claimed errors
individually or cumulatively, Lemon has failed to show he was
deprived of a fair trial. At most, Lemon has shown his trial was
“ ‘ “ ‘not perfect—few are.’ ” ’ ” (Farley, supra, 46 Cal.4th at
p. 1124.)
9. Johnson’s Parole Revocation Fine
Johnson contends the court erred in imposing a parole
revocation fine because he was sentenced to a term of life without
the possibility of parole. The Attorney General concedes the fine
is improper. The imposition of a parole revocation fine pursuant
to Penal Code section 1202.45 is unauthorized where the
defendant’s sentence contains no period of parole. (See People v.
Jenkins (2006) 140 Cal.App.4th 805, 819; accord, People v.
Oganesyan (1999) 70 Cal.App.4th 1178, 1185-1186.) Johnson’s
$10,000 parole revocation fine must be stricken.
DISPOSITION
Johnson’s judgment of conviction is modified in the
following respects: the parole revocation fine of $10,000 is
stricken. Johnson’s judgment is conditionally reversed, and the
case is remanded for the juvenile court to hold a transfer hearing
within 90 days from the filing of the remittitur. If, following that
hearing, Johnson is found suitable for criminal court, the
judgment shall be reinstated. If not, the juvenile court shall
enter an appropriate disposition. If the judgment is reinstated,

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the superior court is directed to prepare and transmit an abstract
of judgment to the Department of Corrections and Rehabilitation
reflecting the modification to the parole revocation fine.
Lemon’s judgment is conditionally reversed, and the case is
remanded for the juvenile court to hold a transfer hearing within
90 days from the filing of the remittitur. If, following that
hearing, Lemon is found suitable for criminal court, the judgment
shall be reinstated. If not, the juvenile court shall enter an
appropriate disposition.
FLIER, J.
I CONCUR:
RUBIN, Acting P. J.

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1
People v. Lemon et al.
B262406
GRIMES, J., Concurring and Dissenting.
I concur with parts 2 through 9 of the majority opinion’s
discussion, which remain unchanged from our original
unpublished opinion filed October 28, 2016. However, because
I conclude that Proposition 571 does not apply retroactively and
that both judgments of conviction should again be affirmed,
I respectively dissent from part 1 of the majority opinion’s
discussion and the disposition.
Further, the majority concludes defendants and appellants
Venda Johnson and James Lemon are entitled to a remand for a
juvenile fitness hearing. The majority therefore found it
unnecessary to resolve defendants’ contention from the original
briefing that former Welfare and Institutions Code section 707,
subdivision (d) (hereafter former section 707(d)) was improperly
applied retroactively in violation of the ex post facto clauses of
both the state and federal Constitutions. (Maj. opn. ante, at
p. 30, fn. 8.) Because I would affirm and disagree any remand is
appropriate, I explain, consistently with our original opinion, why
defendants’ ex post facto argument is without merit.
1 The Public Safety and Rehabilitation Act of 2016.

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2
1. Defendants Contend Former Section 707(d) Was
Applied Retroactively in Violation of the Ex Post
Facto Clauses of Both the State and Federal
Constitutions.
Defendants contend the prosecutor’s direct filing of charges
in criminal court in 2014 pursuant to former section 707(d)2 was
an unconstitutional retroactive application of the statute.
I disagree.
The Gang Violence and Juvenile Crime Prevention
Initiative of 1998 (Proposition 21) was passed by the voters
March 7, 2000, and became effective the next day. (John L. v.
Superior Court (2004) 33 Cal.4th 158, 165 (John L.).)
Proposition 21 made numerous changes to certain laws applicable
to juveniles accused of committing criminal offenses. (Manduley
v. Superior Court (2002) 27 Cal.4th 537, 545 (Manduley).) As
relevant here, Proposition 21 amended former section 707(d) to
confer “upon prosecutors the discretion to bring specified charges
against certain minors directly in criminal court, without a prior
adjudication by the juvenile court that the minor is unfit for a
disposition under the juvenile court law.” (Manduley, at p. 545.)
As amended by Proposition 21, former section 707(d)
provided, in relevant part, that for certain enumerated offenses
such as murder “the district attorney or other appropriate
prosecuting officer may file an accusatory pleading in a court of
criminal jurisdiction against any minor 16 years of age or
older[.]”
2 I discuss the repeal of former section 707(d) by
Proposition 57, during the pendency of this appeal, in part 2,
post.

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3
In November 1995 when the murder was committed,
Johnson was 16 and Lemon was 17. Defendants argue that
because they were juveniles at the time the offense was
committed, they were statutorily entitled in 2014 at the ages of
35 and 36 to a fitness hearing to determine whether they would
have been able to establish their fitness to be tried in juvenile
court in 1995. They argue that the direct filing of charges in
criminal court in 2014 when they were middle-aged adults
deprived them of a juvenile adjudication fitness hearing and was
a retroactive application of Proposition 21 that violated the ex
post facto clause of both the federal and state Constitutions.
(U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.)
“In general, the high court has established that no statute
falls within the ex post facto prohibition unless ‘two critical
elements’ exist. [Citations.] First, the law must be retroactive.
Such a law ‘ “change[s] the legal consequences of an act
completed before [the law’s] effective date,” namely the
defendant’s criminal behavior.’ [Citation.]” (John L., supra,
33 Cal.4th at p. 172.) “Second, only certain changes in the
statutory effect of past criminal conduct implicate ex post facto
concerns. Since its decision in Collins v. Youngblood (1990)
497 U.S. 37, 41-42 (Collins), the United States Supreme Court
has followed the original intent of the Constitution, and
reaffirmed the principles first announced in Calder v. Bull (1798)
3 U.S. (3 Dall.) 386, 390 (opn. of Chase, J.) (Calder). [Citations.]
Specifically, retroactive amendments to penal statutes do not
violate ex post facto principles unless they implicate at least one
of four categories described in Calder[.]” (Ibid.)
The four Calder categories may be summarized as follows:
(1) any law that criminalizes conduct that was innocent went

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4
done; (2) any law that aggravates a crime or makes it greater
than when it was committed; (3) any law that inflicts greater
punishment on conduct than that which was affixed to the crime
at the time it was committed; and (4) any law that lessens the
burden of proof or the quantum of evidence necessary to convict
the offender. (John L., supra, 33 Cal.4th at p. 172, fn. 3.)
In Collins, the Supreme Court “criticized some of its own
decisions for disallowing any ‘procedural change’ that withdraws
‘ “substantial protections” ’ or ‘ “substantial personal rights” ’
existing at the time of the crime. [Citation.] Collins explained
that regardless of its label or form [citation], a law does not raise
ex post facto concerns unless it works in the manner [proscribed
by Calder]. [¶] Collins also overruled two high court cases
invalidating statutes merely because they ‘ “ ‘alter[ed] the
situation of a party to his disadvantage’ ” ’ after the crime
occurred.” (John L., supra, 33 Cal.4th at p. 173.)
Of particular significance here, the Supreme Court has also
explained “that adjustments in ‘the procedures by which a
criminal case is adjudicated’ rarely implicate ex post facto
concerns. [Citation.] Such laws do not typically enhance
punishment under the third Calder category.” (John L., supra,
33 Cal.4th at p. 173; accord, People v. Williams (1987) 196
Cal.App.3d 1157, 1160.) “[A] substantial and disadvantageous
change is prohibited only if it ‘inflicts a greater punishment, than
the law annexed to the crime, when committed.’ [Citation.]
Unless the consequences are penal in nature, defendants cannot
rely on statutes in existence at the time of the crime, or otherwise
complain of oppressive retroactive treatment.” (People v. Ansell
(2001) 25 Cal.4th 868, 884.)

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5
Former section 707(d), which authorized the filing of
criminal charges against a juvenile offender directly in the
criminal court, did not change the legal consequences of
defendants’ behavior or otherwise enhance the punishment for
that behavior. In 1995 when the offense was committed, a
juvenile over the age of 16 charged with murder was statutorily
presumed unfit for juvenile court administration. (People v.
Superior Court of San Francisco (1981) 119 Cal.App.3d 162, 174;
see also Welf. & Inst. Code, former § 707, subds. (b)(1) & (c) (1994
Stats., ch. 448).) As defendants concede, in 1995 they could have
been punished with a sentence of life without parole for first
degree murder in criminal court. Proposition 21 did not increase
the penalty for first degree murder.
Former section 707(d) also did not fall into any of the four
Calder categories. Instead, it was a change in procedure that
could lawfully be applied to crimes committed before its
enactment. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288
(Tapia) [concluding that provisions of Proposition 115 affecting
the conduct of criminal trials can constitutionally be applied to
trial of a crime committed before its enactment]; see also People
v. Williams, supra, 196 Cal.App.3d at p. 1160 [“procedural
changes generally are considered outside the reach of the ex post
facto clause”].)
Defendants, who were 35 and 36 years old when tried for
murder, had no statutory or constitutional right to have their
case heard in the juvenile division of the superior court as
opposed to the criminal division. (Manduley, supra, 27 Cal.4th at
p. 570 [a juvenile offender alleged to have violated one of the
enumerated felonies possesses “no right to be subject to the
juvenile court law”].) That is a matter for the Legislature or the

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6
electorate to decide. (Id. at pp. 564-565; accord, Hicks v. Superior
Court (1995) 36 Cal.App.4th 1649, 1658.)
At the time of the filing of charges and defendants’ trial in
2014, former section 707(d) was the law. The prosecutor followed
the law that had been in effect since 2000. Former section 707(d)
was not applied retroactively to defendants, and there was no ex
post facto violation. It was a lawful prospective application of the
statute. I see no purpose that might have been served if the trial
court, in 2014, had engaged in a speculative and utterly
theoretical inquiry into whether either of them might have been
fit for juvenile adjudication in 1995. As even more mature adults
today, they are clearly now unfit for juvenile adjudication, and I
see no purpose in remanding for a purely hypothetical
determination by the juvenile court whether either might have
been fit for juvenile adjudication more than 20 years ago.
2. Defendants Contend Proposition 57 Must Be Applied
Retroactively.
After the filing of our original opinion affirming defendants’
convictions, the voters passed Proposition 57. It became effective
the next day, November 9, 2016. (Cal. Const., art. II, § 10,
subd. (a).) As relevant here, Proposition 57 repealed former
section 707(d). As amended by Proposition 57, Welfare and
Institutions Code section 707 now requires a prosecutor to make
a motion for transfer in the juvenile court in order to prosecute a
juvenile offender in criminal court. In relevant part, the statute
now specifies that, for certain enumerated felonies, “the district
attorney or other appropriate prosecuting officer may make a
motion to transfer the minor from juvenile court to a court of
criminal jurisdiction.” (§ 707, subd. (a)(1).) After consideration of
certain specified criteria, “the juvenile court shall decide whether

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7
the minor should be transferred to a court of criminal
jurisdiction.” (Id., subd. (a)(2).)
“It is well settled that a new statute is presumed to operate
prospectively absent an express declaration of retrospectivity or a
clear indication that the electorate, or the Legislature, intended
otherwise.” (Tapia, supra, 53 Cal.3d at p. 287, italics added; see
also Pen. Code, § 3.) With respect to the provisions at issue here,
Proposition 57 does not contain an express statement of intent
regarding retroactive application. Nor do the initiative’s stated
purposes provide a basis upon which retroactive intent can be
reasonably inferred. Indeed, as our colleagues in the Sixth
District aptly observed, “there is arguably textual support for an
inference of prospective intent. One stated purpose is to require
judges rather than prosecutors to decide ‘whether juveniles
should be tried in adult court.’ [Citation.]” (People v. Mendoza
(2017) 10 Cal.App.5th 327, 344-345 (Mendoza).) The language
suggests the new provision is meant to apply only to cases that
have not yet been tried.
Moreover, as explained above with respect to
Proposition 21, whether a prosecutor is allowed to file charges
directly in criminal court or is required to file a motion for
transfer in juvenile court is a procedural matter pertaining to the
conduct of future trials. Such procedural rules are applied
prospectively. (See, e.g., Tapia, supra, 53 Cal.3d at p. 288 [“a law
addressing the conduct of trials still addresses conduct in the
future” and is applied prospectively]; see also People v. Superior
Court (Lara) (2017) 9 Cal.App.5th 753, 775-776 (Lara), review
granted May 17, 2017, S241231 [“[r]equiring a juvenile judge to
assess whether [a juvenile offender] is tried in adult court strikes
us as a ‘law governing the conduct of trials.’ ”].) Lara concluded

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8
that Proposition 57 “can only be applied prospectively.” (Lara, at
p. 775.)
Defendants’ argument that Proposition 57 must be applied
retroactively directly contradicts their argument that
Proposition 21 was applied retroactively to them in violation of
the ex post facto laws. Defendants ignore the logical
inconsistency of their contentions and make no attempt to
reconcile what is manifestly irreconcilable. I believe
Propositions 21 and 57 both implemented procedural changes
and both apply prospectively.
Defendants invoke the rule of In re Estrada (1965)
63 Cal.2d 740 (Estrada), which established the exception to the
default rule of prospective application of new statutes. “When
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 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.” (Id. at p. 745.)
Defendants contend Proposition 57’s repeal of the direct
filing system operates as a mitigation of punishment, and
Estrada therefore compels retroactive application. Defendants
also contend a failure to apply Proposition 57 retroactively would
violate their constitutional rights to equal protection and due
process of law. Defendant Lemon further argues that the
changes effected by Proposition 57 are substantive in nature (a
“sea change” in the prosecution of juveniles), not merely a change
in procedure, thus mandating retroactive application under

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9
Montgomery v. Louisiana (2016) 577 U.S. __ [136 S.Ct. 718]
(Montgomery).
Several courts have recently addressed the retroactivity of
Proposition 57: People v. Cervantes (2017) 9 Cal.App.5th 569
(Cervantes), review granted May 17, 2017, S241323; Lara, supra,
9 Cal.App.5th 753; Mendoza, supra, 10 Cal.App.5th 327; People v.
Vela (2017) 11 Cal.App.5th 68 (Vela); People v. Marquez (2017)
11 Cal.App.5th 816 (Marquez); and People v. Superior Court
(Walker) (June 8, 2017; D071461) __Cal.App.5th __ [2017
Cal.App.Lexis 532] (Walker). All six cases involve the direct
filing of charges against juveniles in criminal court. None
involves the circumstances at issue here, namely, the direct filing
of charges against mature adults following a cold case
investigation.
In Cervantes, Mendoza and Vela, trial, conviction and
sentencing occurred in criminal court while the defendants were
still minors. In Marquez and Walker, the defendants were
charged in criminal court at the age of 17 and were convicted and
sentenced within a year or two of attaining majority. Cervantes,
Mendoza, Vela, and Marquez were all pending in the Court of
Appeal when Proposition 57 was passed. The Mendoza and Vela
courts had issued decisions affirming the defendants’ convictions,
but granted rehearing to consider the impact of Proposition 57.
Cervantes had not yet resulted in a decision, and the parties were
granted leave to file supplemental briefs addressing
Proposition 57. The Marquez court was considering the
defendant’s appeal following a resentencing hearing and granted
him leave to file supplemental briefs.
Lara and Walker both involved writ petitions filed by the
People. Lara involved consolidated writ petitions filed in five

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10
cases in which charges had been direct-filed against juvenile
offenders but none of the cases had proceeded to trial when
Proposition 57 was passed. In Walker, the defendant had
obtained a reversal of his conviction on direct appeal and was
awaiting retrial when Proposition 57 passed. The trial court
granted Walker’s motion to transfer to juvenile court for a fitness
hearing in light of the repeal of former section 707(d). The
Walker court granted the People’s petition to vacate that order
and maintain the retrial in criminal court where charges had
originally been filed.
Cervantes rejected the defendant’s retroactivity argument
on the following grounds: “(1) the juvenile division and criminal
division of superior court both have subject matter jurisdiction
over statutorily specified crimes committed by minors; (2) the
statutory amendments under Proposition 57 do not amount to a
reduction of a penalty and are not subject to retroactive
application under Estrada; and (3) failing to extend the new
hearing procedure to [defendant] does not deprive him of equal
protection because a prospective procedural change in the law
that treats offenders differently depending upon when their
crimes were committed does not violate equal protection.”
(Cervantes, supra, 9 Cal.App.5th at p. 595.)
Mendoza similarly concluded Proposition 57 was not
intended to apply retroactively. Mendoza relied extensively on
our Supreme Court’s decision in People v. Brown (2012)
54 Cal.4th 314 (Brown).) Brown considered the question of the
retroactivity of a statute increasing the rate at which prisoners
could earn credit for good behavior. In rejecting the defendant’s
argument for retroactive application of the new statute, Brown
explained: “Defendant contends the rule of Estrada, supra,

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11
63 Cal.2d 740, should be understood to apply more broadly to any
statute that reduces punishment in any manner, and that to
increase credits is to reduce punishment. Defendant’s argument
fails for two reasons: First, the argument would expand the
Estrada rule’s scope of operation in precisely the manner we
forbade in [People v. Evangelatos (1988) 44 Cal.3d 1188, 1209].
Second, the argument does not in any event represent a logical
extension of Estrada’s reasoning. We do not take issue with the
proposition that a convicted prisoner who is released a day early
is punished a day less. But, as we have explained, the rule and
logic of Estrada is specifically directed to a statute that
represents ‘ “a legislative mitigation of the penalty for a
particular crime” ’ [citation] because such a law supports the
inference that the Legislature would prefer to impose the new,
shorter penalty rather than to ‘ “satisfy a desire for vengeance” ’
[citation]. The same logic does not inform our understanding of a
law that rewards good behavior in prison.” (Brown, at p. 325.)
Marquez agreed with and followed Cervantes and Mendoza.
(Marquez, supra, 11 Cal.App.5th at p. 821.) Walker similarly
concluded that Proposition 57 should not be applied retroactively.
(Walker, supra, 2017 Cal.App.Lexis 532, pp. **14-27.)
Cervantes, Mendoza, Marquez, and Walker correctly
determined that the amendments implemented by Proposition 57
did “not expressly mitigate the penalty for any particular crime.”
(Mendoza, supra, 10 Cal.App.5th at p. 348; accord, Cervantes,
supra, 9 Cal.App.5th at p. 601 [the procedural changes
implemented by Proposition 57 do “not resemble the clear-cut
reduction in penalty involved in Estrada”]; Marquez, supra,
11 Cal.App.5th at p. 826 [“Proposition 57’s transfer of the fitness
hearing procedure to juvenile court does not reduce punishment

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12
for a particular crime.”]; Walker, supra, 2017 Cal.App.Lexis 532,
p. *27 [“Estrada and its progeny do not support the conclusion
that Proposition 57 should be applied retroactively”].)
I agree with the well-reasoned analyses of Mendoza,
Cervantes, Marquez, and Walker rejecting the retroactive
application of Proposition 57. Vela is the only published case
thus far that has determined Proposition 57 should be given
retroactive effect.
Despite finding Proposition 57 should apply retroactively,
Vela did not reverse defendant’s convictions for a retrial, finding,
“[n]othing is to be gained by having a ‘dispositional hearing,’ or
effectively a second trial, in the juvenile court.” (Vela, supra,
11 Cal.App.5th at p. 81.) Instead, the court in Vela conditionally
reversed the conviction and sentence and ordered the juvenile
court to conduct a juvenile transfer hearing. “If, after conducting
the juvenile transfer hearing, the court determines that it would
have transferred Vela to a court of criminal jurisdiction because
he is ‘not a fit and proper subject to be dealt with under the
juvenile court law,’ then Vela’s convictions and sentence are to be
reinstated. (§ 707.1, subd. (a).) On the other hand, if the juvenile
court finds that it would not have transferred Vela to a court of
criminal jurisdiction, then it shall treat Vela’s convictions as
juvenile adjudications and impose an appropriate ‘disposition’
within its discretion.” (Vela, at p. 82.)
The defendant in Vela was 16 years old when he committed
the murder and attempted murder for which he was sentenced to
prison for 72 years to life. The opinion does not specify
defendant’s age at the time of the disposition on appeal, but the
opinion is replete with references to the defendant as a minor.
(“The implied intent of Proposition 57 was to retroactively extend

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13
its emphasis on juvenile rehabilitation to every minor to whom it
could constitutionally apply;” “a juvenile court judge can now
exercise his or her discretion in some cases and determine that a
minor should remain in the juvenile justice system;” “we infer
that the electorate intended the possible ameliorating benefits of
Proposition 57 to apply to every minor to whom it may
constitutionally apply, including Vela.”) (Vela, supra,
11 Cal.App.5th at pp. 76, 80, 81.)
The Vela opinion also emphasizes that, “[t]he purpose of
the juvenile justice system is to rehabilitate minors” and, “[t]he
express intent of Proposition 57 was to emphasize juvenile
rehabilitation.” (Vela, supra, 11 Cal.App.5th at pp. 73, 75, italics
omitted.) I find the analysis and holding of Vela to be of no
assistance in resolving the contentions of Lemon and Johnson in
this case, as it seems incontrovertible that neither of them was
“a fit and proper subject to be dealt with under the juvenile court
law” in 2014 when they were charged, tried and sentenced, and
much less so now.3
I turn now to defendants’ claims that retroactive
application of Proposition 57 is constitutionally required. I agree
with the analyses in Mendoza, Walker and Cervantes rejecting
the argument that failure to apply Proposition 57 retroactively to
all cases not yet final on appeal will deny defendants their
constitutional rights to equal protection. (See, e.g., Mendoza,
supra, 10 Cal.App.5th at pp. 349-352.) Our Supreme Court
concluded in Manduley that implementation of the direct filing
3 Marquez expressly disagreed with Vela’s analysis and its
conclusion that Proposition 57’s amendments to the Welfare and
Institutions Code should be applied retroactively. (Marquez,
supra, 11 Cal.App.5th at p. 827.)

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14
system under Proposition 21 did not violate the equal protection
clause. (Manduley, supra, 27 Cal.4th at pp. 567-573.) I agree
that “if there was no equal protection problem in adopting the
direct file procedure, there can be no equal protection problem in
abandoning it. Both systems are merely different approaches or
experiments in how best to deal with juvenile delinquents, and a
state may change course without creating equal protection
problems.” (Cervantes, supra, 9 Cal.App.5th at p. 598, fn. 38; see
also People v. Floyd (2003) 31 Cal.4th 179, 191 [“ ‘[T]he
14th Amendment does not forbid statutes and statutory changes
to have a beginning, and thus to discriminate between the rights
of an earlier and later time.’ ”].)
I further agree with Mendoza and Marquez that the
procedural changes effected by Proposition 57 do not violate
defendants’ rights to due process of law. (Mendoza, supra,
10 Cal.App.5th at pp. 353-354; Marquez, supra, 11 Cal.App.5th at
pp. 829-830.) I see no basis to further expound on these points.
Defendant Lemon contends Proposition 57 must be given
retroactive effect because the changes it brought to juvenile law
were so significant as to amount to a substantive change of law.
Lemon relies largely on Montgomery, supra, 136 S.Ct. 718.
There, the United States Supreme Court explained that “the
nature of substantive rules, their differences from procedural
rules, and their history of retroactive application establish that
the Constitution requires substantive rules to have retroactive
effect regardless of when a conviction became final.”
(Montgomery, at p. 729.)
In Montgomery, the court was faced with resolving whether
the new rule it announced in Miller v. Alabama (2012) 567 U.S.
460 (mandatory life sentences without parole for juvenile

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15
homicide offenders violate the Eighth Amendment) had to be
given retroactive effect. Montgomery concluded Miller did
announce a new substantive rule of constitutional law that had to
be applied retroactively, including in state courts considering
collateral review. (Montgomery, supra, 136 S.Ct. at pp. 732-733.)
The court explained that substantive rules “set forth categorical
constitutional guarantees that place certain criminal laws and
punishments altogether beyond the State’s power to impose. It
follows that when a State enforces a proscription or penalty
barred by the Constitution, the resulting conviction or sentence
is, by definition, unlawful. Procedural rules, in contrast, are
designed to enhance the accuracy of a conviction or sentence by
regulating ‘the manner of determining the defendant’s
culpability.’ [Citations.]” (Id. at pp. 729-730.)
The repeal of former section 707(d) and the amendment of
Welfare and Institutions Code section 707 requiring a motion to
transfer to criminal court did not amount to a new substantive
rule of law. Proposition 57 effected only a new procedural rule
related to the “manner of determining” a juvenile offender’s
culpability. Montgomery does not dictate a finding of
retroactivity here.
I cannot ignore the elephant in the room to which
defendants invite us to turn a blind eye, namely, that defendants
were middle-aged adults when they were charged, tried and
sentenced. I find it impossible to believe the voters intended
Proposition 57, the focus of which is juvenile rehabilitation, to
apply to murder charges against mature adults, mandating a
reversal of their convictions, and remand to juvenile court to
consider whether they are suitable to be treated like children.

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Accordingly, I would affirm the judgment of conviction as to
defendant Lemon and affirm the judgment of conviction as to
defendant Johnson, as modified (striking the parole revocation
fine as discussed in pt. 9 of the maj. opn.’s discussion and the
disposition, ante).
GRIMES, J.

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