1

Filed 2/18/22 P. v. Abella CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK ABELLA,

Defendant and Appellant.

C093844

(Super. Ct. No. 08F04720)

When he was 17 years old, defendant Frank Abella killed a mentally and 

physically disabled man as the victim sat outside a store sipping coffee. (People v. 

Abella (Jan. 2, 2013, C066010) [nonpub. opn.) (Abella).)1 Defendant was tried as an 

adult; the jury found him guilty of murder, robbery, and torture. (Ibid.) The jury also 

found true that defendant had used a deadly weapon in connection with the murder and 

1 We treated defendant’s request for judicial notice of the record in this previous 

appeal as a motion to incorporate that record and granted it. 
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torture, and the murder occurred during the commission of the robbery. (Ibid.) The trial 

court sentenced defendant to life without the possibility of parole (LWOP) on the murder 

conviction and stayed the remaining sentences on the other offenses except for a one-year 

enhancement. (Ibid.)

We upheld defendant’s convictions on appeal (Abella, supra, C066010) and our

Supreme Court denied defendant’s petition for review by order, as follows: “The petition 

for review is denied without prejudice to any relief to which defendant might be entitled 

after this court decides People v. Gutierrez, S206365 and People v. Moffett, S206771.” 

This court issued a remittitur on April 15, 2013. 

In 2014, our Supreme Court issued People v. Gutierrez (2014) 58 Cal.4th 1354 

(Gutierrez), after consolidating the two cases under review (id. at p. 1361).

In 2015, defendant sought resentencing pursuant to Gutierrez. Following a series 

of continuances, defendant filed substantive briefing as to his Gutierrez request in 2020; 

he also simultaneously filed substantive briefing in support of a request to make a 

sufficient record of information relevant to a future youth offender parole hearing under 

People v. Franklin (2016) 63 Cal.4th 261 (Franklin) and a request for a juvenile transfer 

hearing under Proposition No. 57 (approved Nov. 8, 2016) (Proposition 57). The trial 

court accepted defendant’s Franklin evidence, but denied his remaining requests. 

Defendant appeals. He argues the trial court erred in: (1) finding he was not 

entitled to a juvenile transfer hearing under Proposition 57; and (2) refusing to resentence 

him to a lesser sentence of 25 years to life. We agree defendant is entitled to a juvenile 

transfer hearing under Proposition 57 because the proposition applies retroactively to 

him. We further conclude the trial court erred when it resentenced defendant to LWOP 

because the trial court misunderstood the scope of its discretion regarding the 

consideration of postconviction rehabilitative efforts. We accordingly vacate defendant’s 

LWOP sentence and reverse the trial court’s order denying defendant’s request for a 

juvenile transfer hearing under Proposition 57 with further directions.
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FACTUAL AND PROCEDURAL BACKGROUND

I

The Crime And Original Proceedings

We take this background from our nonpublished Abella opinion. 

“During the early morning hours of June 7, 2008, defendant and [James] 

Washington were hanging out together at an apartment complex in Rancho Cordova 

where defendant’s mother lived. At the time, Washington was dating defendant’s sister, 

E.G., who was also present. Defendant was several weeks shy of his 18th birthday. 

“At approximately 2:40 a.m., defendant and Washington walked to a nearby 7-

Eleven store. The events that occurred thereafter were captured in large part on 

surveillance cameras mounted at the 7-Eleven and at an adjacent check-cashing store. 

“At approximately 2:50 a.m., defendant and Washington left the 7-Eleven and 

approached 50-year-old William Deer, who was sitting on a curb outside the checkcashing store drinking coffee he had just purchased at the 7-Eleven. Deer was both 

mentally and physically [disabled] due to a motorcycle accident more than 20 years 

earlier. 

“Earlier that evening, Deer’s mother had dropped him off at a bus stop in 

Sacramento so he could visit friends in Rancho Cordova. At the time, Deer wore a fanny 

pack around his waist in which he carried various personal items, including a cell phone 

charger, a toothbrush, cigarettes, and money. He also carried with him a cell phone. 

Deer was wearing the fanny pack in the 7-Eleven approximately 30 minutes before he 

was approached by defendant and Washington. 

“What transpired during defendant’s initial encounter with Deer is not altogether 

clear. However, what is clear is that, at some point, defendant and Washington beat, 

kicked and stomped on Deer and then ran from the scene. 

“Approximately 30 minutes later, Washington returned to the area with E.G. By 

that time, Washington had changed his shirt. They approached Deer, who was still lying 
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where defendant and Washington left him. E.G. could see that Deer was hurt but he was 

still alive. Washington and E.G. departed. 

“Seven minutes later, defendant and Washington returned to where they had left 

Deer. Less than a minute later, they again ran from the scene. 

“Defendant and Washington returned a third time approximately 30 minutes later,

this time with a BB gun. They shot Deer 19 times in the face and abdomen and then fled 

the scene. 

“Police were eventually dispatched to the 7-Eleven and found Deer still alive. 

They did not find a fanny pack or cell phone in the area; nor did they find any 

identification for the victim. Deer was taken to the hospital, where he later died. The 

cause of death was determined to be multiple blunt force head injuries plus multiple BB 

pellet injuries. 

“Five days later, defendant and Washington were arrested. They were charged 

with murder, robbery and torture and were tried separately. Defendant was ultimately 

convicted and sentenced as previously indicated.” (Abella, supra, C066010.) 

Following the imposition of defendant’s sentence, the United States Supreme 

Court issued Miller, in which it held a mandatory LWOP sentence for a minor who 

commits murder amounts to cruel and unusual punishment. (Miller v. Alabama (2012) 

567 U.S. 460 [183 L.Ed.2d 407] (Miller).) In his appeal from the judgment, defendant 

argued in pertinent part that “because he was less than 18 years old at the time of the 

offense, and LWOP was the presumptive sentence for 16 to 18-year-olds under California 

law, the punishment violate[d] Miller’s categorical prohibition against mandatory LWOP 

for minors.” (Abella, supra, C066010.) We concluded “the sentence imposed d[id] not 

violate Miller or otherwise amount to cruel and unusual punishment” because the trial 

court “exercised its discretion to consider defendant’s age and other characteristics, along 

with the circumstances of the crime, in deciding . . . to impose an LWOP sentence.” 
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(Ibid.) We explained: “Miller requires nothing more. Hence, to the extent the trial court 

erred in applying a presumption for LWOP, that error was harmless.” (Ibid.)

As explained ante, defendant appealed, and our Supreme Court denied his petition 

for review by order. 

II

Gutierrez

In 2014, our Supreme Court issued Gutierrez, in which it held Penal Code2

section 190.5, subdivision (b) “properly construed, confers discretion on a trial court to 

sentence a 16- or 17-year-old juvenile convicted of special[-]circumstance murder to life 

without parole or to 25 years to life, with no presumption in favor of life without parole.” 

(Gutierrez, supra, 58 Cal.4th at p. 1360.) The court further held that Miller “requires a 

trial court, in exercising its sentencing discretion, to consider the ‘distinctive attributes of 

youth’ and how those attributes ‘diminish the penological justifications for imposing the 

harshest sentences on juvenile offenders’ before imposing life without parole on a 

juvenile offender.” (Gutierrez, at p. 1361.) “Under Miller, a state may authorize its 

courts to impose life without parole on a juvenile homicide offender when the penalty is 

discretionary and when the sentencing court’s discretion is properly exercised in 

accordance with Miller.” (Id. at p. 1379.) As discussed post, one of the Miller factors is

“ ‘the possibility of rehabilitation.’ ” (Gutierrez, at p. 1389.)

III

The Current Proceedings And Intervening Law

In 2015, defendant filed a request for resentencing pursuant to Gutierrez. The 

matter was continued. 

2 All further section references are to the Penal Code unless otherwise specified.
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In 2016, our Supreme Court issued Franklin, supra, 63 Cal.4th at page 261 and the 

electorate passed Proposition 57 (see People v. Superior Court (Lara) (2018) 4 Cal.5th 

299, 304 (Lara)). In Franklin, a juvenile offender challenged the constitutionality of his 

50-year-to-life sentences. (Franklin, at p. 268.) Our Supreme Court concluded his 

constitutional claim was mooted by sections 3051 and 4801, because “those statutes 

provide Franklin with the possibility of release after 25 years of imprisonment [citation] 

and require the Board of Parole Hearings (Board) to ‘give great weight to the diminished 

culpability of juveniles as compared to adults, the hallmark features of youth, and any 

subsequent growth and increased maturity’ [citation].” (Franklin, at p. 268.) The court, 

however, remanded the case “so that the trial court may determine whether Franklin was 

afforded sufficient opportunity to make [a record of mitigating evidence tied to his youth] 

at sentencing” for his eventual parole hearing. (Id. at p. 269.)

In Proposition 57, the electorate “ ‘amended the Welfare and Institutions Code so 

as to eliminate direct filing by prosecutors [for juvenile offenders]. Certain categories of 

minors . . . can still be tried in criminal court, but only after a juvenile court judge 

conducts a transfer hearing to consider various factors such as the minor’s maturity, 

degree of criminal sophistication, prior delinquent history, and whether the minor can be 

rehabilitated.’ ” (Lara, supra, 4 Cal.5th at p. 305.) “Only if the juvenile court transfers 

the matter to adult court can the juvenile be tried and sentenced as an adult.” (Id. at 

p. 303.)

In 2020, defendant filed substantive briefing in support of three requests for relief. 

He requested: (1) to be resentenced to 25 years to life under Gutierrez; (2) a hearing to 

establish a record for a future youthful parole hearing under Franklin; and (3) a juvenile 

transfer hearing under Proposition 57. The trial court accepted defendant’s Franklin

evidence, but denied his remaining requests. Defendant appeals. 
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We recount the specifics as to the Gutierrez and Proposition 57 requests in the 

pertinent portions of the Discussion post. We do not recount the specifics as to the

Franklin request because it is not at issue in this appeal.

DISCUSSION

I

The Trial Court Abused Its Discretion During Resentencing

Defendant asserts: (1) the trial court’s order denying his request for resentencing 

was arbitrary and unreasonable because the court failed to consider his postincarceration 

rehabilitation before reimposing LWOP; and (2) the proper consideration of the 

remaining Gutierrez factors in conjunction with the evidence of his rehabilitation 

weighed in favor of imposing the lesser sentence. He further asserts that, if the matter is 

remanded for resentencing, this court can exercise its discretion to disqualify the 

sentencing judge. 

The People assert the trial court did not err in reimposing the LWOP sentence 

because: (1) it did not apply a presumption in favor of LWOP; (2) to the extent 

defendant seeks to revive his Eighth Amendment claim to the original LWOP sentence, it 

is moot; and (3) the trial court did not abuse its discretion. 

We conclude defendant was entitled to a resentencing hearing and the trial court

misunderstood the scope of its discretion when it ruled on defendant’s resentencing 

request. We thus reverse. We do not address the People’s mootness argument because 

defendant is not asserting an Eighth Amendment claim. (See People v. Ochoa (2020) 53 

Cal.App.5th 841, 850-851 [claim of error in imposing LWOP under section 190.5, 

subdivision (b), based on misapplication of youth-related mitigation factors not moot

based on eligibility for a youth offender parole hearing during the 25th year of 

incarceration].) Finally, we decline defendant’s request to disqualify the trial judge on 

remand under Code of Civil Procedure section 170.1, subdivision (c) given our 

disposition that the matter be transferred to the juvenile court to conduct a juvenile 
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transfer hearing in the first instance, as explained post. Defendant has an adequate 

remedy to seek disqualification of the trial judge under Code of Civil Procedure section 

170.6, subdivision (a)(2) following reversal on appeal, should the juvenile court 

determine defendant is not a fit and proper subject to be dealt with under the juvenile 

court law and the matter is thereafter reassigned to the trial judge.

A

Additional Factual Background

Defendant argued he should be resentenced to 25 years to life because his social 

history and postconviction rehabilitative progress demonstrated he was not “ ‘the rare 

juvenile offender whose crime reflects irreparable corruption.’ ” (Bolding omitted.) 

Specifically, defendant relied on exhibits separately filed in support of his Franklin

motion to illustrate his individual circumstances and postconviction rehabilitation. 

The exhibits included evidence: (1) defendant was diagnosed with both physical 

and intellectual disabilities, including cerebral palsy and an extremely low IQ 

classification of 62; (2) during his 12 years in prison, defendant received his G.E.D. 

certificate, occupational training certificates, and completed multiple college courses, 

including political science, public speaking, and world religions; (3) defendant 

participated in various self-help programs addressing life skills, self-development, and 

addiction recovery, and twice completed 22 weeks of self-reconstruction therapy training 

and served as a mentor to other inmates in the program; (4) defendant completed a 

criminal and gang members anonymous workshop and wrote letters to at risk youths as 

part of the “Prison Letters 4 Our Struggling Youth” program; (5) defendant is committed 

to various philanthropic causes, bringing awareness to challenges facing at risk youths

and men’s health issues and had made donations to a Special Olympics team and 

fundraised for the Court Appointed Special Advocates of Tulare County. 

In prison defendant was employed as a teacher’s aide, barber, porter, and sewing 

machine operator. In January 2020, he was named “employee of the month” and was
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recognized for his exemplary work ethic. Defendant also participated in the prisoners 

uniting people with puppies program as a K-9 handler, successfully training four rescue 

dogs. He received various commendations from his supervisors and correctional officers 

for his positive attitude and professionalism. Indeed, multiple correctional officers 

characterized defendant as a role model to other inmates because he follows all rules and 

procedures. 

The People argued this court had already determined that the trial court had 

considered defendant’s distinctive attributes of youth when originally sentencing him as 

required by Miller, and thus, the trial court had already done everything required by 

Miller and Gutierrez. The People urged the trial court to find the LWOP sentence was 

correctly imposed at the original sentencing hearing. 

At the hearing, the trial court said any presumption of LWOP during the original 

sentencing was “harmless error on my part. That was actually an issue that was litigated 

in front of the Third District Court of Appeal in this remittitur, and the court found that 

notwithstanding my indication that there was a presumption that it was clear that this 

Court would not have sentenced Mr. Abella to 25 years to life, and in fact that is the case, 

I would not.” “Let’s assume for sake of argument we can go back in time and there is no 

presumption. So I have a choice. And I had a choice back then. I had a choice to 

sentence him to 25 years to life or LWOP. Even with the presumption, I had a choice. 

And I will just tell you that the presumption of LWOP in Mr. Abella’s case did not affect 

this Court whatsoever because I do not think the facts and circumstances of Mr. Abella’s 

case warranted 25 years to life. I think that life without the possibility of parole, based on 

everything I indicated at the time, is the appropriate sentence. But if you’d like to make 

an additional record, [defense counsel], I’ll go ahead and allow you to do that.” 

Defense counsel argued that, while defendant’s crime was heinous and certain 

information concerning his background had been considered at the original sentencing 

hearing, an extensive investigation had not been made into defendant’s social history, and 
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successive investigation authorized by the court on remand reflected defendant was not 

irreparably corrupt. Defense counsel asserted the extensive information gathered 

concerning defendant’s reformation demonstrated he had a capacity for change and had 

indeed changed for the better. Defense counsel asked the trial court to sentence 

defendant to 25 years to life and asserted the request for resentencing was not moot given 

defendant would be eligible for parole in his 25th year of incarceration because defendant 

was still subject to disadvantages associated with an LWOP sentence. 

The People argued the evidence of defendant’s postconviction rehabilitative 

efforts was irrelevant to the court’s determination on the resentencing request, and, even 

considering an evaluation of the new sociological information from the period prior to the 

original sentencing, LWOP remained the appropriate sentence in the case given the 

aggravating circumstances. 

The trial court noted that, prior to imposing defendant’s original LWOP sentence, 

it was aware of defendant’s “dreadful and horrible childhood” and defendant had 

presented and the court had considered information concerning his drug use, the poor 

parenting he received, and his problems in the foster care system. The court further noted 

defendant had inaccurately minimized his involvement in the crime and the court 

believed defendant’s identified IQ of 62 was inconsistent with the court’s observations of 

him during trial and at sentencing. In the trial court’s mind, defendant had already had 

the equivalent of a Miller hearing. 

Turning to the evidence of defendant’s postconviction rehabilitation, the court 

commented: “Let’s be honest, we expect people [who] are sent to prison to follow the 

rules. They are now in an environment where rules are the touchstone of morning, noon 

and night. We don’t expect people [who] we sentence to prison to misbehave and cause 

problems. Are we surprised when they do? No. But I am also equally not surprised 

when somebody like Mr. Abella who has committed a heinous horrible crime that he 

would once incarcerated where there are rules that he must follow, I am not surprised that 
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he follows those rules. I’m actually not. So to me, it’s not really a mitigating or 

aggravating factor as to what occurs once somebody is incarcerated. You are expected to 

follow the rules. [¶] . . . [¶] So the fact that Mr. Abella has taken every opportunity that 

he’s had to better himself, he should do that. We expect him to do that. We hope he does 

that. So to me, that’s not really a factor that changes what the crime was on the day it 

was committed and what he did and how he minimized it in front of the jury so that he 

wasn’t completely truthful.” The trial court stood by its original sentence of LWOP, 

recognizing defendant would be eligible for a parole hearing during his 25th year of 

incarceration. 

B

Defendant Was Entitled To Resentencing

We initially address whether defendant was entitled to a full resentencing hearing

because it appears the trial court believed our previous appellate decision rendered 

resentencing unnecessary. As explained ante, Gutierrezinterpreted section 190.5 as 

authorizing imposition of either LWOP or 25 years to life without any preference and

affirmed the Miller factors had to be considered prior to imposing an LWOP sentence on 

a juvenile offender. (Gutierrez, supra, 58 Cal.4th at pp. 1388-1390.) Our Supreme Court 

remanded the matters even though the appellate courts had previously found the Miller 

error harmless (as here), explaining: “To be clear, we do not fault the trial courts in these 

cases; they dutifully applied the law as it stood at the time. But we conclude that neither 

court made its sentencing decision with awareness of the full scope of discretion 

conferred by section 190.5(b) or with the guidance set forth in Miller and this opinion for 

the proper exercise of its discretion.” (Gutierrez, at pp. 1390-1391.)

In this case, our Supreme Court denied defendant’s prior petition for review 

“without prejudice to any relief to which defendant might be entitled” under Gutierrez.

Inasmuch as the parties do not dispute the procedural propriety of defendant’s 
12

resentencing request, the trial court had to conduct a resentencing hearing with the 

awareness of the full scope of its discretion, as explained in Gutierrez. 

C

The Trial Court Misunderstood The Scope Of Its Discretion

As explained in Gutierrez, the factors articulated by the United States Supreme 

Court in Miller must be considered prior to imposing an LWOP sentence on a juvenile 

offender. (Gutierrez, supra, 58 Cal.4th at pp. 1388-1390.) One of the Miller factors is 

the possibility of rehabilitation. (Gutierrez, at p. 1389.) The United States Supreme 

Court has stated that postconviction rehabilitative conduct is relevant “as an example of 

one kind of evidence that prisoners might use to demonstrate rehabilitation” under Miller. 

(Montgomery v. Louisiana (2016) 577 U.S. 190, 212-213 [193 L.Ed.2d 599, 622].) 

The trial court’s statements during the resentencing hearing surrounding 

defendant’s postconviction rehabilitative efforts demonstrate the trial court 

misunderstood the scope of its discretion in that postconviction rehabilitative conduct is 

relevant to the Miller analysis. The trial court characterized defendant’s postconviction 

rehabilitation efforts as merely following the rules, which is “not really a mitigating or 

aggravating factor.” To the contrary, however, postconviction rehabilitative efforts are 

relevant to determining whether the juvenile offender has the possibility of rehabilitation. 

The trial court’s adamant refusal to consider the evidence of defendant’s postconviction 

rehabilitative conduct was accordingly an abuse of discretion.

II

The Trial Court Erred In Finding Proposition 57 Does Not Apply Retroactively

A

Additional Factual Background

Defendant argued he was entitled to relief under Proposition 57 because his 

resentencing request was pending before the trial court when Proposition 57 passed. The 

People argued defendant was not entitled to a juvenile transfer hearing because his 
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judgment was final in 2013, thereby precluding the retroactive application of Proposition 

57 to his case. 

The trial court ruled defendant’s judgment was final on January 23, 2013. The 

trial court further noted that, even if the Legislature later amended Proposition 57 to 

make it fully retroactive, remand would still not be appropriate due to the aggravating 

factors found at defendant’s original sentencing, including the horrific nature of the 

crime, the details of which the court recounted. The court added: “And so should a court 

in the future question this Court’s judgment in why I would not have remanded this for a 

limited hearing as to this defendant’s reason for being tried in adult court, I want to clear 

that the remittitur and the court’s language therein is what I considered would have 

considered in denying Mr. Abella’s limited remand.” The court continued, that defendant 

had been weeks away from his 18th birthday when he committed the crime, the court 

stood by its original LWOP sentence, and given legislative changes, defendant would 

have a parole hearing in his 25th year of incarceration. 

B

A Juvenile Transfer Hearing Is Appropriate

Proposition 57 provides a juvenile may be tried and sentenced as an adult only if a 

juvenile court judge transfers the matter to adult court following a transfer hearing at 

which it considered various factors. (Lara, supra, 4 Cal.5th at pp. 303, 305.) Under the 

rule of In re Estrada (1965) 63 Cal.2d 740, Proposition 57 applies retroactively, but only 

to those cases that are not yet final. (Lara, supra, Cal.5th at pp. 303-304.) Whether 

Proposition 57 applies to a juvenile convicted in adult court who later collaterally attacks 

a final conviction following resentencing is currently pending before the California 

Supreme Court following disagreement among and between the Courts of Appeal. (See 

People v. Federico (2020) 50 Cal.App.5th 318, review granted Aug. 26, 2020, S263082; 

People v. Padilla (2020) 50 Cal.App.5th 244 (Padilla), review granted Aug. 26, 2020, 

S263375.)
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Defendant, relying on Padilla, reasons that because his resentencing request was 

pending when Proposition 57 passed, he is entitled to a transfer hearing. The People, 

while disagreeing with the framing of the issue in Federico urges, consistent with 

Federico, that we find defendant’s sentence was final in 2013 for purposes of Estrada

retroactivity. 

Padilla involved a habeas petitioner who was convicted of a murder committed 

when he was 16 years old and sentenced to LWOP in 1999. (Padilla, supra, 

50 Cal.App.5th at pp. 246-247.) After his conviction was final, Padilla filed a habeas 

petition asking to be resentenced under Miller. (Padilla, at p. 248.) The trial court 

granted the petition and resentenced him to LWOP. (Ibid.) The Court of Appeal 

reversed the trial court’s decision and remanded for reconsideration in light of 

Montgomery. (Padilla, at p. 248.) Proposition 57 took effect while the matter was 

pending in the trial court on remand. (Padilla, at p. 248.) After the trial court reimposed 

LWOP, Padilla sought transfer to the juvenile court under Proposition 57. (Padilla, at 

p. 248.) 

Relying on People v. Jackson (1967) 67 Cal.2d 96, the Court of Appeal held that 

“a collateral proceeding may reopen the finality of a sentence for retroactivity purposes, 

even while the conviction remains final.” (Padilla, supra, 50 Cal.App.5th at p. 253.) It 

found the petitioner’s sentence was no longer final as it had been vacated by the habeas 

court, and, even if all matters not encompassed by resentencing were still final like the 

finding of guilt in Jackson, Proposition 57 nonetheless applied to his resentencing 

because a juvenile court disposition would be more advantageous to the petitioner than 

sentencing him as an adult for the criminal offense. (Padilla, at pp. 253-254.) “Because 

Proposition 57’s primary ameliorative effect is on a juvenile offender’s sentence, 

independent of the convictions, we conclude it applies retroactively to appellant’s 

nonfinal sentence and requires that he receive a transfer hearing.” (Id. at p. 255, fn. 

omitted.) The Court of Appeal found this was “consistent with our Supreme Court’s 
15

determination in Lara that the voters intended Proposition 57 ‘ “to extend as broadly as 

possible” ’ (Lara, supra, 4 Cal.5th at p. 309), i.e., ‘to every case to which it 

constitutionally could apply’ (Estrada, supra, 63 Cal.2d at p. 745).” (Padilla, at p. 256.)

The defendant in Federico was convicted in 2008 of assault with a firearm with 

various enhancements and sentenced to a 20-year state prison term. (People v. Federico, 

supra, 50 Cal.App.5th at p. 322.) In September 2018, the Secretary of the Department of 

Corrections and Rehabilitation sent a letter to the trial court providing it with the 

authority to recall the sentence pursuant to section 1170, subdivision (d)(1) based on 

authority subsequent to his conviction that rendered the sentence unauthorized. 

(Federico, at p. 322.) The defendant responded with a motion agreeing his sentence was 

unauthorized and asking the trial court to remand the case to the juvenile court for 

proceedings under Proposition 57. (Federico, at p. 322.) The trial court found 

Proposition 57 inapplicable and resentenced defendant to a 17-year term. (Federico, at 

p. 323.) The decision was affirmed, with the appellate court finding Lara inapplicable 

because the defendant’s conviction became final when the time to appeal from his 

original conviction and sentence had passed, long before Proposition 57 went into effect.

(Federico, at pp. 321, 325.) The appellate court explained, “even if a trial court has 

authority to recall a sentence under section 1170, subdivision (d), it does not follow that 

the sentence is not a final judgment under Estrada.” (Federico, at p. 326.) While, as it 

noted, section 1170, subdivision (d)(1) was an exception to the general rule that a court 

loses jurisdiction to resentence the defendant once the sentence begins, the appellate 

court concluded resentencing does not address reopening a judgment to apply recently 

enacted changes in the law. (Federico, at pp. 326-327.)

Published decisions following Federico and Padilla have found Padilla to be the 

better reasoned of the two decisions. (See, e.g., People v. Hwang (2021) 60 Cal.App.5th 

358, 366-367, review granted Apr. 14, 2021, S267274; People v. Lopez (2020) 

56 Cal.App.5th 835, 845, review granted Jan. 27, 2021, S265936.) We agree.
16

“In a criminal case, judgment is rendered when the trial court orally pronounces 

sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Here, our Supreme 

Court’s order expressly reserved defendant’s right to seek resentencing under Gutierrez.

Defendant sought resentencing and the trial court reimposed LWOP after Proposition 57 

had passed. Proposition 57 thus applies retroactively to defendant’s case. We 

accordingly reverse the trial court’s order and remand with directions to transfer 

defendant’s case to the juvenile court for a juvenile transfer hearing.

DISPOSITION

We vacate defendant’s LWOP sentence and reverse the trial court’s order denying 

defendant’s request for a juvenile transfer hearing under Proposition 57. The trial court is 

directed in the first instance to transfer this matter to the juvenile court to conduct a 

juvenile transfer hearing. If the juvenile court finds it would not have transferred 

defendant to be tried as an adult, the juvenile courtshall treat his convictions as juvenile 

adjudications and impose an appropriate disposition within its discretion. If, on the other 

hand, the juvenile court determines defendant is not a fit and proper subject to be dealt 

with under the juvenile court law, then defendant’s convictions are to be reinstated and 

the matter returned to the trial court to conduct a new resentencing hearing in accordance 

with Gutierrez and the guidance provided by this opinion.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Mauro, J.

/s/ 

Duarte, J.