Filed 6/30/22 P. v. R.E. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

R.E.,

Defendant and Appellant.

 B310841

 (Los Angeles County

 Super. Ct. No. PJ53438)

APPEAL from a judgment and order of the Superior Court 

of Los Angeles County, Morton Rochman, Judge. Affirmed as 

modified. 

Torres & Torres and Steven A. Torres, under appointment 

by the Court of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, Colleen M. Tiedemann, Deputy Attorney 

General, for Plaintiff and Respondent.
2

________________________

In a petition filed to declare juvenile R.E. a ward of the 

court under Welfare and Institutions Code section 602, it was 

alleged that R.E. committed two counts of rape of an intoxicated 

person. The juvenile court declared R.E. a ward of the court and 

found true the allegations. The court ordered commitment to the 

Department of Juvenile Justice (DJJ) for a term not to exceed 10 

years.

On appeal, R.E. contends: (1) there is insufficient evidence 

to support the juvenile court’s finding that he raped one of the 

two victims, (2) the court abused its discretion by committing him 

to the DJJ, and (3) R.E.’s term of commitment must be reduced to 

no greater than eight years pursuant to Senate Bill No. 823

(Stats. 2020, ch. 337, § 28) (Senate Bill 823), which applies to his 

case retroactively. R.E. requests that this court remand the 

matter for a new dispositional hearing to afford him the 

opportunity to present evidence of his behavior during 

commitment and to permit him to argue for a less serious 

allegation under Los Angeles District Attorney Special Directive 

20-09.

The People agree that Senate Bill 823 applies to R.E.’s 

case, and that his term of commitment must be reduced. The 

People argue that this court should reduce the commitment term 

to the maximum of eight years. Remand is not necessary, as the 

juvenile court imposed the maximum term of commitment. The 

People dispute R.E.’s other contentions.

We modify R.E.’s maximum term of commitment to eight 

years, but otherwise affirm the judgment and order. 
3

FACTS

Prosecution

The Incident

K.A. testified that, on October 7, 2019, she and her friend 

J.G. took a bus to Ralphs with J.C. and J.B. K.A. had ingested

two beers before she boarded the bus. The group met up with 

R.E. and went to the rooftop of a building in North Hollywood, 

where they drank alcohol together. They intended to get drunk 

and then go home. K.A. drank five mouthfuls of alcohol and felt 

“very tipsy.” She had never been so drunk. K.A. remembered 

talking, J.G. and J.C. dancing, and music playing on her phone. 

She remembered J.G., who was also intoxicated, kissing J.C. and 

J.B. K.A. passed out. When she regained consciousness, she was

lying on the ground and her whole body hurt. She thought she 

fell over. R.E. took a video of K.A. while she was on the ground. 

Someone shook her and tried to wake her up, but she

remembered nothing after that. K.A. did not consent to any 

sexual contact or kissing with R.E., J.C., or J.B. while they were 

on the roof. 

K.A. woke up in a hospital but she did not know how she 

got there. The police took her to the Center for Assault 

Treatment Services (CATS) where she spoke to a detective and 

was examined by a nurse. During the examination, the nurse 

photographed K.A.’s body and swabbed her vagina and mouth. 

The exam revealed facial injuries and an abrasion on her right 

breast. A vaginal exam revealed bruising around the urethra 

and petechia at the entrance of the vagina, which was indicative 
4

of penetration. At the hearing on the petition, K.A. denied 

having been sexually assaulted. 

J.G. testified that, on October 7, 2019, she went to a park 

with K.A., J.C., and J.B. She drank three beers and was feeling 

“tipsy.” They met up with R.E. and went to Ralph’s grocery store, 

where they purchased two bottles of alcohol. The group then 

went to the rooftop of an apartment building. J.G. drank two 

large gulps of alcohol and felt very drunk. She remembered 

music playing, talking, and dancing. J.C. came up behind her 

and grabbed her waist, but she blacked out after that. J.G. did 

not consent to having sex with anyone that night. 

J.G. woke up in the hospital. She had pain inside her

vagina and was bleeding. She was taken to CATS in a police car,

where she spoke to a detective and was examined by a nurse. 

The nurse photographed her entire body, including her vagina. 

The nurse swabbed her vagina, legs, mouth, and face. J.G.’s 

arms, chest, and back were bruised. She also had abrasions on 

her back. A vaginal exam revealed a hymenal transection, 

bruising, and a small oozing cut.

That day J.G. viewed a video on R.E.’s Instagram page in 

which she was lying on the ground with J.C. on top of her. 

Melinda Gross testified that on the evening of October 7, 

2019, she went to the rooftop area of her building to smoke a 

cigarette. She saw three or four men and a woman who seemed 

very intoxicated and appeared to be passed out. The men were 

passing alcohol around. Gross was concerned about the woman 

and asked if everything was okay. One of the men responded 

that everything was fine. Gross went downstairs but soon 

returned because she was worried. The atmosphere seemed like 

a “ruckus party,” with a lot of cheering and jesting. Gross heard 
5

the woman making a “howling moan” and saying, “I don’t want 

to.” Gross went downstairs and called 911. Police responded

within five minutes. 

The Investigation

Los Angeles Police Department Officer Elizabeth Cairns 

and other officers responded to the call of a possible rape in 

progress. When Officer Cairns reached the rooftop of the 

building, J.G. was lying on the ground with her shirt and bra 

pulled up to her neck. Her pants were down by her ankles and 

her underwear was pulled to the side. J.G.’s pants were wet with 

what appeared to be urine. She was unconscious and 

unresponsive. R.E. was on top of her. Officer Cairns ordered 

R.E. to stand and put his hands in the air. R.E. initially tried to 

put his erect penis back inside his pants. J.C. and J.B. were near 

K.A. K.A.’s pants were also wet with urine. Her bra and shirt 

were pulled up above her breasts and her zipper was down. She 

had what appeared to be gravel on her clothing. Officers 

detained R.E., J.C., and J.B. K.A. and J.G. were transported to 

the hospital by ambulance. Officers recovered a condom, a bottle

of Jose Cuervo tequila, and a Bombay gin bottle cap from the 

rooftop. 

R.E.’s DNA was found on swabs of J.G.’s vagina, perianal 

area, external genital area, and perioral area, as well as on the 

inside and outside of the condom. J.G.’s DNA was also found on 

the outside of the condom. A combination of DNA from R.E., J.C., 

J.G. and K.A. was found on a swab of R.E.’s penile shaft. A 

combination of DNA from J.B., J.G. and K.A. was found on swabs 

of J.B.’s glans penis, penile shaft, and scrotum. A combination of 
6

DNA from J.C. and J.G. was found on swabs of J.C.’s glans penis 

and penile shaft. Male DNA was detected on K.A.’s neck. Male 

DNA was not detected on swabs of K.A.’s vaginal, cervical, 

perianal, and external genital areas. The use of a condom could 

prevent the transfer of DNA to those areas. With respect to J.C.’s 

DNA on R.E.’s penile shaft, it was possible that J.C. had sex with 

someone and left DNA, and then R.E. had sex with the same 

person and picked up J.C.’s DNA. 

Detective John Perez obtained a video from J.B.’s

Instagram account. The video was from R.E. and showed J.B. on 

top of J.G. They were both clothed and someone was making 

comments. The video was also recovered from R.E.’s phone, 

which indicated that it had been forwarded to others. Five 

additional videos were subsequently recovered from J.B.’s phone. 

J.G. was in some of the videos with her breasts and buttocks 

exposed. Another video showed K.A., who was unresponsive, 

with her breast exposed and a male hand digitally penetrating 

her vagina. 

Defense

R.E.’s mother Sonia Montiel testified that R.E. suffered

neurological damage and a seizure disorder following an

emergency c-section delivery. He was in special education classes

at school and participated in therapy. R.E. suffered from

cognitive disabilities, including: Tourette’s syndrome, anxiety 

attacks, anxiety, attention deficit disorder, attention deficit 

hyperactivity disorder, and post-traumatic stress disorder. R.E.

also had a heart condition. 
7

Dr. Mehul Anjaria, an expert in the field of forensic DNA

analysis, testified that the amount of K.A.’s DNA found on the 

swab of R.E.’s penile shaft was very small. The presence of K.A.’s 

DNA on R.E.’s penis did not mean there was sexual contact. 

Because K.A.’s DNA was found on both of R.E.’s hands, it was

possible that R.E. transferred the DNA to his penis by touching

it.

On cross-examination, Dr. Anjaria acknowledged that the 

presence of K.A.’s DNA on both R.E.’s and J.B.’s penile shafts 

could be indicative of sexual contact. He also acknowledged that 

the low level of K.A.’s DNA on R.E.’s penile shaft could be

explained by the use of a condom. 

DISCUSSION

Substantial Evidence Supports the Finding That R.E. 

Raped K.A.

The standard for determining the sufficiency of the 

evidence supporting a juvenile wardship adjudication is the same 

as that for a criminal conviction. (In re Matthew A. (2008) 165

Cal.App.4th 537, 540.) When reviewing for sufficiency of the 

evidence, we consider “‘“‘the whole record in the light most 

favorable to the judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, 

credible, and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.’”’

[Citation.]” (People v. Casares (2016) 62 Cal.4th 808, 823 

(Casares), disapproved of on another ground in People v. Dalton

(2019) 7 Cal.5th 166, 214; People v. Clark (2011) 52 Cal.4th 856, 
8

942–943.) “‘The standard of appellate review is the same in cases 

in which the People rely primarily on circumstantial evidence.’ 

(People v. Bean (1988) 46 Cal.3d 919, 932.) ‘. . . [I]t is the [finder 

of fact] rather than the reviewing court that weighs the evidence, 

resolves conflicting inferences and determines whether the 

People have established guilt beyond a reasonable doubt.’ (People 

v. Yeoman (2003) 31 Cal.4th 93, 128.)” (Casares, supra, 62 

Cal.4th at p. 823.) “Thus, if the verdict is supported by 

substantial evidence, we must accord due deference to the trier of 

fact and not substitute our evaluation of a witness’s credibility for 

that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 

314.)

R.E. argues that this court should draw different inferences 

from the facts than the juvenile court did, and weigh the evidence 

in a contrary manner. We will not reverse the juvenile court’s 

true finding simply because there is more than one possible view 

of the facts. We give deference to the juvenile court’s findings of 

fact. Here, the evidence revealed that R.E. had K.A.’s DNA on 

his penile shaft. A nurse who examined K.A. concluded that K.A. 

sustained injuries consistent with penetration. R.E.’s own expert 

conceded that the amount of K.A.’s DNA on R.E.’s penile shaft 

could be consistent with the use of a condom. Substantial 

evidence supports the juvenile court’s finding. 

Commitment to DJJ Was Not an Abuse of Discretion

When exercising its discretion on the proper disposition of a 

minor adjudged to be a ward under section 602, the juvenile court 

considers a broad range of information. The record must be 

viewed in light of the purposes of juvenile law. (In re Carlos J. 
9

(2018) 22 Cal.App.5th 1, 5.) Those purposes include 

rehabilitation, treatment, guidance, punishment as a 

rehabilitative tool, and protection of the public. (In re Teofilio A. 

(1989) 210 Cal.App.3d 571, 576 (Teofilio A.).) The court considers 

the probation officer’s report and any other relevant and material 

evidence that may be offered, including statements by the victim 

and the victim’s parents. (Welf. & Inst. Code, § 706.) The court 

must take into account the circumstances and gravity of the 

offense committed by the minor, as well as the minor’s age and 

previous delinquency history. (Welf. & Inst. Code, § 725.5.) The 

court may also consider the need to hold the minor accountable 

for his or her actions. (Welf. & Inst. Code, § 202, subd. (b); In re 

N.C. (2019) 39 Cal.App.5th 81, 89 (N.C.) [court properly 

considered “the role punishment should have in minor’s 

rehabilitation given the seriousness of his offense and his 

tendency to succumb to the negative influence of his peers”].)

“One of the primary objectives of juvenile court law is 

rehabilitation, and the statutory scheme contemplates a 

progressively more restrictive and punitive series of dispositions 

starting with home placement . . . and progressing to . . . 

placement at the DJJ.” (In re M.S. (2009) 174 Cal.App.4th 1241, 

1250 (M.S.); see also N.C., supra, 39 Cal.App.5th at pp. 85–86.) 

“Although the DJJ is normally a placement of last resort, there is 

no absolute rule that a DJJ commitment cannot be ordered 

unless less restrictive placements have been attempted.” (M.S., 

supra, 174 Cal.App.4th at p. 1250.) Courts do not necessarily 

abuse their discretion in ordering a juvenile to the most 

restrictive placement before other options have been tried. (In re 

Eddie M. (2003) 31 Cal.4th 480, 507.) It is error, however, for the 

juvenile court to fail to consider less restrictive alternatives to a 
10

DJJ commitment. (Teofilio A., supra, 210 Cal.App.3d at p. 577.)

Commitment to the most restrictive placement, such as DJJ, is 

permissible so long as there is substantial evidence 

demonstrating “a probable benefit to the minor from a DJJ 

commitment and of the inappropriateness or ineffectiveness of 

the proposed less restrictive alternatives.” (N.C., supra, 39 

Cal.App.5th at p. 86 [affirming order committing first time 

offending minor to a maximum of nine years in DJJ after minor 

admitted one count of forcible oral copulation and one count of 

sexual battery of an intoxicated 17 year old high school student]; 

In re Angela M. (2003) 111 Cal.App.4th 1392, 1396–1397 (Angela 

M.).)

We review a commitment order for abuse of discretion, and 

find an abuse of discretion when necessary factual findings are 

not supported by substantial evidence. (In re Miguel C. (2021) 69 

Cal.App.5th 899, 908 (Miguel C.).) In our review of the appellate 

record, we draw all reasonable inferences in favor of the juvenile 

court’s order. (Angela M., supra, 111 Cal.App.4th at p. 1396.) 

“[W]e consider whether substantial evidence supports the 

juvenile court’s commitment order consistent with the purpose of 

the juvenile court law. [Citations.] Substantial evidence, in turn, 

‘must be reasonable in nature, credible, and of solid value; it 

must actually be “substantial” proof of the essentials which the 

law requires in a particular case.’ [Citation.]” (Miguel C., supra,

at p. 908.)

Proceedings

In a disposition hearing on November 20, 2020, R.E.’s 

counsel argued that R.E. should be placed in a live-in substance 
11

abuse program with 24-hour supervision. Counsel had registered 

R.E. for an appropriate program in the event that the court 

agreed. Counsel argued that R.E. was heavily intoxicated during 

the incident and made a huge mistake that he deeply regretted. 

R.E. had a severe substance abuse problem, as well as mental 

health issues, and special education needs. Counsel argued that 

R.E.’s friends asked him to join at the last minute to go drinking; 

he did not plan to commit rape. R.E. had already been at juvenile 

hall for 14 months at the time of the hearing. In juvenile hall, 

R.E. had exhibited exemplary behavior and taken classes to 

address his problems. Counsel explained that R.E. was 14 years 

old at the time of the prior robbery in his record. He was at a 

mall and some kids were pouring ice cream over a ledge. R.E. 

took out a pellet gun and demanded the ice cream to get the kids

to stop. 

R.E.’s mother made a statement on his behalf. She was a 

42-year-old single working mother who had watched her son 

struggle and fall into alcoholism after being abandoned by his 

father. R.E.’s mother came to the hearing alone. Her ex-husband 

refused to participate in the hearing and provide support. R.E.’s 

mother was a rape victim herself, and her mother was raped by 

14 men and left for dead. She understood the pain of the 

situation. R.E. had grown following the incident, understood the 

gravity of what occurred, and was taking responsibility. R.E.’s 

mother reported that K.A. had called R.E.’s sister. K.A. was 

crying and told R.E.’s sister that it was not fair that he was being 

charged with her rape as well as J.G.’s. 

R.E.’s grandmother also made a statement. She was 

unable to work and stayed at home all day. She helped raise R.E. 

He was in special education and had a psychologist. He had 
12

problems in school and suffered from anxiety. His teachers 

worked with him one-on-one, but he was behind in his lessons. 

The teachers had to put a blanket on his shoulders to calm him 

down and ease his anxiety. R.E. was not the kind of person who 

would be involved in this type of incident. He was 

compassionate. 

The court stated that that morning it had been informed of 

Senate Bill 823, which realigned responsibility for youthful 

offenders to counties, most significantly by closing DJJ and 

establishing the Office of Youth and Community Restoration. 

The court had been advised that DJJ would close intake on July

1, 2021. 

The prosecutor confirmed this information. She 

recommended commitment on the basis of the maximum 

confinement time. During the incident R.E. had shown no 

compassion for the victims. His behavior was despicable. He 

raped one of his best friends. He participated in the video 

recording. His demeanor in the recording showed that he viewed 

the incident as a “fun party. He was having a great time with his 

friends.” This was particularly disturbing given that his 

grandmother had been the victim of a horrific rape. The fact that 

his grandmother’s experience did not prevent him from 

participating in the rapes was especially concerning. R.E. had to 

make many choices for that day to culminate as it did. He had 

many opportunities to stop but chose not to. He took the time to 

use a condom. The evidence showed that he raped J.G. twice. 

Although R.E.’s psychologist’s report stated that he was 

uninterested in sex, he had brought a condom with him. R.E. had 

attempted rehabilitation previously without success. The case 

was sealed three or four months prior to the current incident. 
13

R.E. had just completed probation. The prior probation reports 

showed that R.E.’s mother worked hard to obtain the services he 

needed, but as soon as his probationary period ended, R.E. 

resumed drinking and committed rape. Rehabilitation did not 

work for him. His pattern of behavior displayed “unrelenting, 

violent criminal conduct.” In his letter to the court, R.E.

continued to deny any memory of the rapes, despite being awake, 

alert, and coherent when the police interviewed him just after his 

arrest. In his letter to the court, he blamed his conduct on 

alcohol and continued to take no responsibility. He did not 

acknowledge the horror of his crimes or the victims’ suffering. 

The victims could not consent; he took advantage of them. He 

enjoyed himself despite knowing the damage that he would cause 

the victims. 

The prosecutor requested that R.E. be committed to DJJ. 

Because R.E. was over the age of 18, he was no longer eligible for 

suitable placements or camp. The court’s only options were to 

send him home on probation or commit him to DJJ. Home on 

probation was not sufficient to deter him and not proportional to 

the criminal conduct involved. The only way R.E. could be 

sufficiently rehabilitated was by entering a long-term treatment 

facility where he could receive substance abuse and sex offender 

counseling and have regular access to medical staff who could 

address his mental health issues. 

R.E.’s counsel reiterated that R.E., J.G., and K.A. were all 

very intoxicated, so it was not surprising that none of them 

remembered the details of the incident. R.E. had already 

experienced the significant consequence of confinement to

juvenile hall for 14 months, and had displayed exemplary 

behavior. Counsel was concerned regarding the status of DJJ. 
14

Counsel argued that J.B. was in suitable placement, although he 

was more culpable.1 R.E.’s mother had been proactive about 

getting him into the programs he needed. R.E. was now on 

medication and had been sober for 14 months. Counsel again

advocated for a live-in closed program where R.E. could be 

supervised and participate in the programming that he needed. 

The court observed that the probation officer’s report 

recommended against returning to the community due to R.E.’s 

demonstrated pattern of victimizing innocent people. R.E. 

showed no restraint while intoxicated and victimized people who 

were intoxicated and unconscious, which was very dangerous. 

R.E. was age-appropriate for DJJ and would benefit from its sex 

offender program. Although less restrictive dispositional options

were considered, the probation officer’s report concluded that

continuance in the home would be contrary to R.E.’s welfare. 

Community safety, victim safety, and the safety of R.E. while he 

worked toward positive behavioral changes favored removal from 

the home and extensive treatment. The court stated that it 

agreed with the prosecution and the probation department. 

The prosecutor stated that maximum confinement was 10 

years, but she did not know how many custody credits R.E. had 

earned. The court continued the hearing so that the appropriate 

paperwork could be completed and credits could be calculated. 

1 The court asked the prosecutor how J.B.’s case had been 

resolved. The prosecutor explained that J.B. admitted his role 

before DNA evidence had been analyzed, and before all of the 

information about the incident had been discovered. J.B. got 

suitable placement. Afterwards, the investigating officer received 

a report that the video of the incident was in J.B.’s cell phone. 

J.B. was charged with child pornography, and the charges were 

still pending. 
15

At the continued hearing on January 7, 2021, the court 

ordered R.E. committed to DJJ. In light of R.E.’s physical and 

mental conditions, the court found it was probable that R.E. 

would benefit from DJJ commitment. R.E. had been declared a 

ward of the court under Welfare and Institutions section 707, 

subdivision (b) for violation of Penal Code section 261, 

subdivision (a)(3), a felony. The court ordered the maximum 

commitment of 10 years. 

Analysis

The juvenile court did not abuse its discretion by 

committing R.E. to DJJ. The court considered less restrictive 

alternatives. R.E. had attempted rehabilitation in home 

placement in the past, but had returned to substance abuse and 

violent criminal behavior only months after completing 

probation. R.E. had strong parental support, but had still not 

reformed despite his mother’s efforts. DJJ had age-appropriate 

programming responsive to R.E.’s needs that he was already 

participating in with success. The court’s concern for the safety 

of the victims and society in general was supported by 

substantial evidence. The crimes R.E. committed were horrific 

and callous. R.E. understood the impact of rape, which both his 

mother and grandmother had suffered, yet he committed the 

crimes without concern. R.E. had betrayed his friends and 

victimized them when they were unconscious and unable to 

consent. He recorded the crimes, distributed the recordings to 

the other perpetrators, and published at least one video on social 

media. His demeanor demonstrated that it was all fun for him. 

R.E. did not take responsibility for his actions. Commitment to 
16

DJJ was not an abuse of discretion in light of the severity of the 

crimes, R.E.’s prior unsuccessful attempt at rehabilitation in 

home placement, and the availability of DJJ programming that 

addressed R.E. problems in an age-appropriate setting.

Senate Bill No. 823

R.E. contends that under recently enacted Senate Bill No. 

823, which he argues should be applied retroactively to his case, 

the maximum period of confinement should be reduced to eight 

years. The Attorney General concedes that retroactive 

application of the law is appropriate and a reduction in R.E.’s 

commitment is warranted. The parties disagree regarding 

whether this court should modify the order of confinement or 

remand to the juvenile court for a new dispositional hearing. We 

modify the period of commitment to eight years.

On September 30, 2020, the Governor approved Senate Bill 

No. 823 and its provisions went into effect. Senate Bill No. 823 

amended Welfare and Institutions Code, section 731, former 

subdivision (c). (See Welf. & Inst. Code, former § 731, subd. (c).) 

The amended section limited the maximum term of confinement 

of a minor to the Department of Corrections, Division of Juvenile 

Justice to “the middle term of imprisonment that could be 

imposed upon an adult convicted of the same offense.” (Stats. 

2020, ch. 337, § 28, eff. Sept. 30, 2020.) Senate Bill No. 823 

became operative on September 30, 2020, and inoperative on July 

1, 2021. (See former Welf. & Inst. Code, § 731, subd. (d) [“This 

section shall become inoperative on July 1, 2021, and, as of 

January 1, 2022, is repealed”].) Senate Bill No. 823 now applies 

the same limitation on the maximum confinement period to all 
17

juvenile commitments as of July 1, 2021, by amending Welfare 

and Institutions Code section 730, subdivision (a)(2), to provide: 

“A court shall not commit a juvenile to any juvenile facility for a 

period that exceeds the middle term of imprisonment that could 

be imposed upon an adult convicted of the same offense.” (Stats. 

2020, ch. 337, § 27.)

We agree with the parties that Senate Bill No. 823 applies 

to R.E.’s case. Under In re Estrada (1965) 63 Cal.2d 740 

(Estrada), “we presume that newly enacted legislation mitigating 

criminal punishment reflects a determination that the ‘former 

penalty was too severe’ and that the ameliorative changes are 

intended to ‘apply to every case to which it constitutionally could 

apply,’ which would include those ‘acts committed before its 

passage[,] provided the judgment convicting the defendant of the 

act is not final.’ (Estrada, supra, 63 Cal.2d at p. 745.) The 

Estrada rule rests on the presumption that, in the absence of a 

savings clause providing only prospective relief or other clear 

intention concerning any retroactive effect, ‘a legislative body 

ordinarily intends for ameliorative changes to the criminal law to 

extend as broadly as possible, distinguishing only as necessary 

between sentences that are final and sentences that are not.’ 

[Citation.] ‘The rule in Estrada has been applied to statutes 

governing penalty enhancements, as well as to statutes governing 

substantive offenses.’ [Citations.]” (People v. Buycks (2018) 5 

Cal.5th 857, 881–882.)

Here, the statutory amendment at issue is an ameliorative 

change in the law, which reduces the maximum term of 

confinement for minors. The Legislature did not express any 

intent to limit retroactive application of Senate Bill No. 823.

(Stats. 2020, ch. 337, § 28.) Thus, under Estrada, the definition 
18

of maximum term of confinement now found in Welfare and 

Institutions Code section 730, subdivision (a)(2), should be 

applied to all cases not yet final.

In this case, the middle term for rape is six years. (Pen. 

Code, § 264, subd. (a).) Accordingly, R.E.’s maximum term of 

confinement under the amended statute is eight years (six years 

in one count plus two years for the second count [one-third of the 

middle term]). Remand is not required to correct the error 

because the juvenile court imposed the longest possible maximum 

term of confinement. (See People v. Buycks, supra, 5 Cal.5th at p.

896, fn. 15 [remand is not required for resentencing where the 

trial court imposes the maximum possible sentence].) 
19

DISPOSITION

The juvenile court’s order is modified to reflect a maximum 

term of confinement of eight years, and the judgment is affirmed 

as modified. The juvenile court is directed to prepare an 

amended disposition order consistent with our modification and 

forward the amended order to the appropriate authorities.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.