Filed 9/23/21 P. v. See CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. CHAWA SEE, Defendant and Appellant. F079261 (Super. Ct. No. VCF171678D)



### OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Al l dredge, Judge.
Sandra Gillies , under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters , Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-2

. INTRODUCTION This is defendant Chawa See’s third appeal relating to his conviction for a 2006 murder he committed when he was 16 years old. 1 Defendant was sentenced to life without the possibility of parole (LWOP) for murder and 25 years to life for personal use
of a firearm. In 2016, long after judgment wa s final, defendant filed a successful petition for writ of habeas corpus and was resentenc ed in accordance with the United States Supreme Court’s decisions in Miller v. Alabama (2012) 567 U.S. 460 ( Miller ) and Montgomery v. Louisiana (2016) 577 U.S. 190 [1 36 S.Ct. 718] ( Montgomery ). Voters passed Proposition 57 between the grant of defendant’s habeas petition and his resentencing hearing, at which the trial court imposed two consecutive terms of
25 years to life. Defendant timely appealed his sentence on c onstitutional grounds and in
See I I , this court remanded the matter for the trial court to consider whether to strike the firearm enhancement under Senate Bill No. 620 (2017

– 2018 Reg. Sess.) (Senate Bill
No. 620), but otherwise affirmed. On remand, the tr ial court denied defendant’s motion
to strike the firearm enhancement. Defendant timely appealed. He claims the trial court erred by not referring him to juvenile court for a transfer hearing under Proposition 57. In addition, he claims that in failing t o take the Miller factors and his postconviction conduct into account, the trial
court abused its discretion when it declined to strike the firearm enhancement. Finally,
he seeks remand for a Franklin 2 hearing. The People contend that because defendant’s 2008 judgment of conviction was final when voters enacted Proposition 57 years later, he is not entitled to relief. They also

1 We take judicial notice of our nonpublished prior opinion s in People v. See ( Dec. 18, 2009 , F 055800 ) [2009 Cal.App. Unpub. Lexis 10015] [nonpub. opn.] ( See I ) and People v. See (Apr. 3, 2018, F075084) [2018 Cal.App. Unpub. Lexis 2229] [nonpub. opn.] ( See II )

. (Evid. Code, § § 452, subd. (d), 459.)
2 People v. Franklin (2016) 63 Cal.4th 261 ( Franklin ).3

.

disagree that the trial court abused its discretion when it denied his request for relief
under Senate Bill No. 620 but contend any error was harmless, and they maintain that defendant already had an adequate opportunity to make an appropriate record under
Franklin

. We conclude that because defendant’s sentence was vacated and he was resentenced, judgment is not final within the meaning of Estrada 3 and he is entitled to remand for a transfer hearing under Proposition 57

. We also conclude that the trial court failed to exercise informed discretion when it denied defendant’s request for relief under Senate Bill No. 620, necessitating remand. Finally, although defendant had an opportunity to make a record under Franklin and , therefore, would not be entitled to
remand on that ground, our resolution of his other claims renders t his request for relief

moot. FACTUAL AND PROCEDURAL HISTORY
As set forth in See I , in 2006, when defendant was 16 years old, he and four other males ap proached the 16

- year

- old victim, Robert Trevino, in the street. Defendant and his group were members of the Oriental Troops gang. Trevino was a rival Norteño gang
member . One of the individuals with defendant shook hands with Trevino and pointed.
As Tr evino turned to look, defendant shot him in the head from three to four feet away. In 2008, defendant was tried, along with Aitang See and Lavang See, for the gang

related murder of Trevino. 4 Defendant was convicted of murder and conspiracy to
commit mur der ( Pen. Code, §§ 182/ 187, subd. (a) ), 5 and the jury found the special circumstance allegation and the gang and firearm enhancements true ( §§ 1 90.2,
subd. (a)(22), 1 86.22, subd. (b)(1) , 12022.53, subds. (d) & (e)(1) ). The trial court

3 In re Estrada (1965) 63 Cal.2d 740 ( Estrada ).
4 A fourth individual in th e group , Billy Her, pled to voluntary manslaughter and testified for the prosecution.
5 All further statutory references are to the Penal Code unless otherwise stated.4

.

sentenced defendant to LWOP for murder with an additional term of 25 years to life for
the firearm enhancement. Defendant filed a notice of appeal. In See I , issued on December 18, 2009, this court ordered correction to the abstract of judgment, but affirmed the judgment. The California Supreme Court denied defendant’s petition for review. In 2016, after the United States Supreme Court issued decisions in Miller and Montgomery , defendant filed a habeas petition in the trial court seeking relief from his

sentence. 6 The trial court granted the petition in May 2016 and in November 2016, voters enacted Proposition 57. In December 2016, the trial court resentenced defendant to 25 years to life for murder with an additional term of 25 years to life for the firearm
enha ncement. Defendant appealed, claiming his sentence was the functional equivalent of LWOP and violated the Eighth Amendment. In supplemental briefing, defendant requested remand to allow the trial court to consider whether to strike the firearm
enhancement pursuant to newly enacted Senate Bill No. 620, effective January 1, 2018.
In See II , issued on April 3, 2018, this court rejected defendant’s constitutional challenge

6 Miller held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment ’ s prohibition on ‘ cruel and unusual punishments ’ ” ( Miller , supra , 567 U.S. at p. 465), and although an LWOP sentence is not prohibited, the “ offender ’ s youth and attendant characteristics ” must be considered ( i d. at p. 483). Thereafter, Montgomery stated that Miller announced a substantive rule of constitutional law a nd, as such , the rule applie s retroactively . ( Montgomery , supra , 577 U.S. at p. ___ [136 S.Ct. 718, 736 ] .) However, states may “remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing t hem.” ( Ibid

. ) More recently, the United States Supreme Court addressed a disagreement that developed in the lower courts and reiterated that, although states are not precluded from imposing additional limitations in juvenile cases ( Jones v. Mississippi ( 2021) ___ U.S. ___, ___, [141 S.Ct. 1307, 1323]), “ ‘ Miller did not impose a formal factfinding requirement ’ and ... ‘ a finding of fact regarding a child ’ s incorrigibility

... is not required ’ ” ( id. at p. ___ [141 S.Ct. at p. 131 3 ], quoting Montgomery , supra , a t p. ___ [136 S.Ct. 718, 735] ).5

.

to his sentence of 50 years to life, but remanded the matter to allow the trial court t o exercise its discretion under Senate Bill No. 620. On remand, the trial court declined to strike the firearm enhancement. Defendant
filed the present appeal.
DISCUSSION
I. Availability of Relief Under Proposition 57
A. Background
At the time of defenda nt’s crime, “ prosecutors were permitted, and sometimes required, to file charges against a juvenile directly in criminal court, where the juvenile
would be treated as an adult. ” ( People v. Superior Court ( Lara ) (2018) 4 Cal.5th 299, 305 ( Lara ).) On Novem ber 8, 2016, voters enacted Proposition 57, which, in relevant part, “‘ame nded the Welfare and Institutions Code so as to eliminate direct filing by prosecutors. ” ( Ibid. ) Under Proposition 57, “ ‘ [c] ertain categories of minors ... [could]
still be tried in criminal court, but only after a juvenile court judge conduct [ed] 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 , at p. 3 05, quoting People v. Vela (2017) 11 Cal.App.5th 68, 72 [ judg ment vacated and cause remanded, reaff irme d at People v. Vela (2018) 21 Cal.App.5th 1099] and citing Welf. & Inst. Code, § 707, former subd. (a)(1). ) 7
As we have stated, Proposition 57 was enacted years after defendant was convicted and originally sentenced to LWOP, but between the time his habeas petition was granted and he was resentenced under Miller . While defendant’s appeal from his resentencing was pending, the California Supreme Court considered the issue of

7 Although not relevant in this case , Proposition 57 was subsequently amended effective January 1, 2019, by Senate Bill No. 1391 ( 2017

– 2018 Reg. Sess .)

. The law as amended now “prohibit[s] minors under the age of 16 from being transferred to adult criminal court

. ” ( O.G. v. Superior Court (2021) 11 Cal.5th 82, 87, citing Welf. & Inst. Code, § 707, subd. (a)(1)

– (2) [finding legislative amendment to Prop. 57 constitutional]. )6

.

retroactivity and held that “Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” ( Lara , supra , 4 Cal.5th at p. 304.) Th us, the issue here is whether defendant’s resentencing reopened the judgment such that he is entitled t o relief under Proposition 57. 8 Defendant claims that because he is not challenging his underlying conviction and the judgment following resentencing is not yet final, he is entitled to relief. Relying on People v. Jackson (1967) 67 Cal.2d 96 ( Jackson ) and People v. Kemp (1974) 10 Cal.3d 611 ( Kemp ), the People take the position that defendant’s conviction and sentence are “distinct and severable components o f the judgment,” and the relevant judgment for purposes of finality in this context is defendant’s 2008 judgment of conviction. Therefore, the People reason, judgment was long final in this case when defendant was resentenced and the court’s act of resent encing him did not reopen that final judgment for the purpose of affording him relief under Proposition 57. We disagree.
B. Analysis
1. Effect of Resentencing Retroactive application of ameliorative changes in the law is governed by the presumption artic ulated in Estrada . Under Estrada , “[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation ’ s effective date. [Citation.]
T his presumption ‘rests on an inference that, in the absence of contrary indications, a

8 D efendant did not raise the issue of Proposition 57 in his appeal following r esentencing or in the trial court , and the California Supreme Court decided Lara shortly before this court resolved his appeal in See II and remanded the m atter under Senate Bill No. 620. However, the People do not argue that defendant has forfeit ed his claim. ( People v. Anderson (2007) 152 Cal.App.4th 919, 929 [ “A point not argued or supported by citation to authority is forfeited.” ].) Further, “n either forfeiture nor application of the forfeiture rule is automatic ( People v. McCullough (2013) 56 Cal.4th 589, 593), and appellate courts have the discretion to consider issues that might otherwise result in claims of ineffective assistance of counsel ( People v. Mattson (1990) 50 Cal.3d 826, 854), and claims that “involve[] an important issue of constitutional law or a substantial right ” ( In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7).7

.

legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary betwe en sentences that are final and sentences that are not.’” ( People v. Gentile (2020) 10 Cal.5th 830, 852 ; accord, People v. McKenzie (2020) 9 Cal.5th 40, 44

– 45 ( McKenzie ); Lara , supra , 4 Cal.5th at
p. 307.)

“ Estrada [, therefore,]

... stand [s] for the proposition that (i) in the absence of a contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of the legislation ’ s effective date

. ” ( People v. Esquivel (2021) 11 Cal.5th 671, 675 ( Esquivel )

. ) Lara resolved whether Proposition 57 is retroactive under the Estrada , and the California Supreme Court is poised to resolve the issue raised in this case: whether resentencing reopens a final judgment for the purpose of retroactive relief under Proposition 57. ( People v. Padilla (2020) 50 Cal.App.5th 244, 254

– 255 ( Padilla ) , review granted Aug. 26, 2020, S263375 [resentencing under Miller rendered the defendant’s sentence nonfinal, entitling him to a transfer hearing und er Prop. 57]; People v. Federico (2020) 50 Cal.App.5th 318 , 324 ( Federico ) , review granted Aug. 26, 2020, S263082 [resentencing under § 1170,
subd. (d)(1), did not reopen the final judgment and allow for retroactive application of Prop. 57].) As we shall explain, w e are persuaded by Padilla

. In 1999, the defendant in Padilla was convicted of a murder he committed in 1998 when he was 16 years old. ( Padilla , supra , 50 Cal.App.5th at p. 248, review granted.) He was sentenced to LWOP, and the C alifornia Supreme Court affirmed the judgment in 2001. ( Ibid. , review granted

. ) In 2014, following the Miller decision, the defendant filed a petition for writ of habeas corpus seeking resentencing, which the trial court granted. ( Padilla , supra , at p. 248, review granted) The defendant was resentenced to LWOP and while his appeal from that sentence was pending, the United States Supreme Court
decided Montgomery . ( Padilla , supra , at p. 248, review granted.) The Court of Appeal
reversed and remanded th e matter for the trial court to resentence defendant with the8

.

added guidance of Montgomery . ( Padilla , supra , at p. 248, review granted.) In 2019, the defendant was again resentenced to LWOP and he appealed, seeking relief under Proposition 57. ( Padilla , supra , at p. 248, review granted.)
Padilla observed that, pre

- Estrada , “[f] inality

... denoted ‘ that point at which the courts can no longer provide a remedy to a defendant on direct review ’” ( Padilla , supra , 50 Cal.App.5th at p. 252, review granted, quotin g In re Spencer (1965) 63 Cal.2d 400,
405 ), and “[o] ur Supreme Court has since applied this definition of finality to the Estrada retroactivity rule, stating that an amendatory statute applies in ‘ “ any [criminal] proceeding [that], at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it ” ’” ( Padilla , supra , at p. 252, review granted, quoting People v. Rossi (1976) 18 Cal.3d 295, 304 ). “ This rule of finality is easy to apply in a typ ical case, where a criminal defendant is convicted and sentenced, the judgment is affirmed on appeal, a petition for review in the California Supreme Court is either denied or never filed, and a petition for certiorari in the United States Supreme Court is likewise denied or never filed. But questions have arisen as to how this rule applies in different procedural settings. ” ( Padilla , supra , at p. 252, review granted.) Relying on the California Supreme Court’s decision in Jackson for the proposition
that “ a collateral proceeding may reopen the finality of a sentence for retroactivity purposes, even while the conviction remains final ,” Padilla rejected the People’s argument that judgment was final in 2001 when the direct appeal procedures were first
exhaust ed. ( Padilla , supra , 50 Cal.App.5th at p. 253, review granted, citing Jackson , supra , 67 Cal.2d at p. 98 , italics added.) 9 Padilla reasoned, “ [ A ] ppellant ’ s sentence is

9 T he People also rely on Jackson in this case, but for the contrary proposition that the j udgment here is final

. Jackson and Kemp , which is also cited by the People, w ere death penalty
cases in which the judgments were affirmed on appeal and became final. ( Jackson , supra , 67 Cal.2d at p. 97; Kemp , s upra , 10 Cal.3d at p. 61 3 .) Subsequently, the California Supreme Court granted the defendants habeas relief as to the penalty. ( Jackson , supra , at p. 97; Kemp , supra , at9

.

not final: the superior court vacated his original sentence and resentenced him, we then reversed his new sentence and remanded for another resentencing, and appellant has taken this direct appeal from his second resentencing. Because appellant ’ s sentence is still pending on direct appeal, his judgment is not final under our Supreme Cour t ’ s definition of finality for retroactivity purposes. ” ( Padilla , supra , at pp. 253

– 254, review granted.) “ Proposition 57 ’s primary ameliorative effect is on a juvenile offender ’ s sentence, independent of the convictions, [and, therefore,]

... it applies retroactively to appellant ’ s nonfinal sentence and requires that he receive a transfer hearing. ” ( Id. at
p. 255, fn. omitted, review granted.) “ A juvenile court ’ s decision in a retroactive transfer hearing to treat the def

endant as a juvenile does not disturb the jury ’ s findings; rather, the
court must treat the defendant ’ s convictions as juvenile adjudications and impose an appropriate disposition. ” ( Ibid. , review granted. ) One day after the decision in Padilla , another C ourt of Appeal came to a contrary conclusion in a case that considered whether, following resentencing under section 1170, subdivision (d), the defendant was entitled to a transfer hearing under Proposition 57. 10

p. 61 4 .) After retrial of the penalty phases, the defendants appealed and the court declined to consider challenges they raised as to guilt phase issues. ( Jackson , supra , at p. 98; Kemp , supra , at pp. 61 4

– 61 5 .) The court explained that for the purpose of applying changes in the law retroactively, judgment was final when the court grant ed habeas relief and it “ reversed the judgment only on the issue of penalty, thereby affording a collateral remedy for a retrospective application of [changes in the law]

. The scope of this retrial is a matter of state procedure under which the original j udgment on the issue of guilt remains final during the retrial of the penalty issue and during all appellate proceedings reviewing the trial court ’ s decision on that issue. ” ( Jackson , supra , at pp. 98

– 99; accord, Kemp , supra , at pp. 613

– 614.) As stated, we are not persuaded by the People’s argument.
10 As relevant in Federico , section 1170, subdivision (d) (1) , authorizes the secretary of the California Department of Corrections and Rehabilitation to recommend the trial court recall an inmate’ s sentence and resentence him or her “in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence.” In Federico , the recommendation to recall the defendant’s sentence stemmed from the trial court’s imposition of two enhancements involving infliction of great bodily injury (GBI)

. ( Federico , supra , 50 Cal.App.5th at p. 322, review granted, citing People v. Gonzalez (2009) 17810

.

( Federico , supra , 50 Cal.App.5th 318, revi ew granted.) Federico concluded that the
answer was no because “ ‘[t] he finality of a judgment has been defined as that point at which the courts can no longer provide a remedy on direct review. This includes the time within which to petition the United S tates Supreme Court for writ of certiorari. ’ ” ( Id. at
p. 325, review granted, quoting In re Pine (1977) 66 Cal.App.3d 593, 595.) The court acknowledged that “ ‘[w] hen a sentence is subject to “ recall ” under section 1170, subdivision (d), the entire senten ce may be reconsidered ’ ” ( Federico , supra , at p. 326, review granted, quoting People v. Garner (2016) 244 Cal.App.4th 1113, 1118) , but stated that the statute “ says nothing about ‘ reopening ’ a judgment that has been final for years, in order to apply recen tly enacted laws retroactively ” ( Federico , supra , at p. 327, review granted). “ The statute specifically provides that the court may ‘ resentence the defendant
in the same manner as if he or she had not previously been sentenced. ’ ( § 1170,
subd. (d)(1), italics added.) It simply allows the court to reconsider its sentencing choices in the original sentence and resentence the defendant. ” ( Ibid. , review granted, citing People v. Hill (1986) 185 Cal.App.3d 831, 834 .) Subsequently, the Courts of Appeal in Lopez and Hwang considered the availability of retroactive relief under Proposition 57 following resentencing under section 1170, subdivision (d), and rejected the holding in Feder ico , instead following
Padilla . ( People v. Lopez (2020) 56 Cal.App.5th 835 ( Lopez ) , review granted Jan. 27, 2021, S265936; People v. Hwang (2021) 60 Cal.App.5th 358 ( Hwang ) , review granted Apr. 14, 2021, S267274.) In Lopez , the court explained, “ Because a resentencing under
section 1170, subdivision (d)(1) replaces the original sentence, the original sentence is no longer operative, and the finality of the original sentence is no longer material. The only sentence that matters after resentencing under s ection 1170, subdivision (d)(1) is the new

Cal.App.4th 1325, 1327

- 1328 [imposition of both GBI e nhancement and gang enhancement violates § 1170.1, subd. (g)].)11

.

sentence, which is not final because a resentenced defendant can still obtain review from the California Supreme Court or the United States Supreme Court. This statutory framework is thus comparable to the proced ural posture in Padilla , where the trial court
vacated the defendant ’ s original sentence and entered a new sentence. ( Padilla , supra , 50 Cal.App.5th at [ p ] p

. 253

– 254 , review granted .) Contrary to Federico ’s framing of the issue, it is not a question of whether the appealability of the new sentence makes the original judgment not final. ( Federico , supra , 50 Cal.App.5th at p. 326 , review granted .) Rather, the mere existence of the resentence makes the origina l sentence irrelevant for the purposes of Lara .” ( Lopez , supra , at p. 845, review granted; accord, Hwang , supra , at
pp. 366

– 367, review granted.) We agree with the reasoning in Padilla , Lopez , and Hwang . Moreover, this view
is consistent with the Califor nia Supreme Court’s reasoning in McKenzie and Esquivel , summarized next.

2. McKenzie and Esquivel
In McKenzie , following the defendant’s guilty pleas in three cases, the trial court suspended imposition of sentence and granted probation. Nineteen months later, after the defendant admitted to violating probation, the trial court revoked probation and imposed
the sentence. On appeal, a different panel of this court modified the judgment in part and otherwise affirmed. ( People v. McKenzie (Sept. 13, 2017 , F073942 ) [20 17 Cal.App. Unpub. Lexis 6254] [nonpub. opn.] .) Approximately one month later, Senate Bill
No. 18 0 (2017

– 2018 Reg. Sess.) was enacted, under which the defendant’s prior drug

related convictions no longer qualified for the sentence enhancement imposed by the trial court. ( McKenzie , supra , 9 Cal.5th at p. 46.) The California Supreme Court granted the defendant’s petition for review and remanded the matter to this court to reconsider in light of Senate Bill No. 180. ( People v. McKenzie , supra , F073942 [20 17 Cal.App. Unpub. Lexis 6254, review granted and cause transferred Dec. 20, 2017, S244929].) In a published decision, this court concluded that judgment was not final and, therefore,12

.

Senate Bill No. 180 applied retroactively. ( People v. McKenzie (2018) 25 Cal.App.5th 1207, 1218, review granted Nov. 20, 2018, S251333.) The California Supreme Court
gr anted review and affirmed. ( McKenzie , supra , 9 Cal.5th at p. 52.) On review, the People advanced the same argument they do here: “ The relevant cutoff point under Estrada for applying ameliorative amendments is the date the

‘ judgment of conviction becomes final. ’ ” ( McKenzie , supra , 9 Cal.5th at p. 46, italics added.) The high court flatly rejected the argument that “‘judgment of conviction’” refers “only to ‘underlying’ convictions and enhancement findings, exclusive of sentence.” ( Ibid. ) The court exp lained, “ In criminal actions, the terms ‘ judgment ’ and

‘ “ sentence ” ’ are generally considered ‘ synonymous ’ ( People v. Spencer (1969) 71 Cal.2d 933, 935, fn. 1), and there is no ‘j udgment of conviction ’ without a sentence ( In re Phillips (1941) 17 Cal.2d 55, 58). Moreover, in Estrada , we also referred to the cutoff point for application of ameliorative amendments as the date when the ‘ case[] ’ ( Estrada , supra , at p. 746) or ‘ prosecution[] ’ is ‘ reduced to final judgment ’ ( id. at p. 747). And in
Rossi , supra , 18 Cal.3d at page 304, we stated that an amendatory statute applies in ‘ “ any [criminal] proceeding [that], at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it. ” ’ ” ( I bi d. ; accord, Esquivel , supra , 11 Cal.5th at pp. 677

– 678.) McKenzie concluded that although the defendant did not appeal the order granting probation, which “‘is deemed a “final judgment ” for the purpose of taking an appeal’” ( McKenzie , supra , 9 Cal. 5th at p. 47, quoting People v. Chavez (2018) 4 Cal.5th 771, 786), “[i] It cannot be said that this criminal prosecution or proceeding concluded before the ameliorative legislation took effect ” ( McKenzie , supra , at p. 46). “ This reading of
Estrada is consistent with the ‘ consideration of paramount importance ’ we identified in
that decision: the ‘ inevitable inference ’ that the Legislature, having ‘ determined that its former penalty was too severe, ’ ‘ must have intended ’ that the ameliorative statuto ry change ‘ should apply to every case to which it constitutionally could apply. ’ [Citation.]13

.

A contrary conclusion, we explained, would ‘ “ serve no purpose other than to satisfy a desire for vengeance, ” ’ and would have to rest on the impermissible view ‘ t hat the Legislature was motivated by [such] a desire. ’ ” ( Id. at p. 48.) Recently, in Esquivel , the California Supreme Court again addressed the issue of finality in a probation case where the trial court imposed the sentence and stayed its execution, and the defendant did not appeal those orders. ( Esquivel , supra , 11 Cal.5th at
p. 673.) Approximately three years later, the defendant violated his probation and the trial court ordered his sentence into effect, after which he appealed. ( Ibid. ) During the pendency of his appeal, Senate Bill No. 136 (2019

– 2020 Reg. Sess.) was enacted, which entitled him to relief from the prior prison term enhancements imposed in 2015 if judgment in his case was not yet final. ( Esquivel , supra , at p. 673.) The appellate co urt concluded that the defendant’s sentence became final within the meaning of Estrada in 2015, when he could have but did not appeal the imposition of sentence. ( Esquivel , supra , at pp. 673

– 674.) The California Supreme Court reversed, holding “that a case in which a defendant is placed on probation with execution of an imposed state prison sentence suspended is not yet final [within the meaning of Estrada ] if the defendant may still timely obtain direct review of an order revoking probation and causin g the state prison sentence to take
effect. ” ( Esquivel , supra , 11 Cal.5th at p. 673.) The court recognized that “[p] art of [its] reasoning [in McKenzie ] was specific to the suspended

- imposition context ,” but “ part

... was more general

.... ” ( Id. at p. 678.) It reiterated that Estrada speaks to “ the finality of the judgment of conviction, ” “ the finality of the ‘ “ case[] ” ’ or ‘ “ prosecution[] ,” ’ ” and “ in terms of the criminal proceeding as a whole. ” ( Ibid. ) The court declined to “ draw any precise constitution al lines to resolve this case ,” and stated, “ The Estrada doctrine is one of presumed legislative intent, not of constitutional law. The point is that to the extent
Estrada ’ s unarticulated constitutional concerns shed light on the meaning of ‘ final ’ for purposes of the presumption of retroactivity, those concerns appear to point toward an14

.

inquiry focused on whether the criminal prosecution or proceeding as a whole is complete. ” ( Id. at p. 679.)

3. Conclusion Although the procedural postures in McK enzie and Esquivel differ from th at here, they are nevertheless instructive in evaluating the issue presented in this case . We conclude that because defendant’s sentence was vacated and he was resentenced, he is entitled to relief under Proposition 57. T he People’s view that the relevant judgment is the judgment of conviction is unpersuasive . Defendant is not seeking to vacate his conviction, and remand for a transfer hearing under Proposition 57 will not disturb that
conviction. Through habeas, defend ant was granted relief from his original sentence and,

t herefore, as explained in Padilla , Lopez , and Hwang , in determining the finality of judgment for the purpose of relief under Proposition 57, defendant’s original sentence is no longer relevant and the focus is on his resentencing. Proposition 57 was enacted shortly before defendant was resentenced and the judgment following resentencing is not final. Therefore, we shall remand this matter for a transfer hearing.
II. Exercise of Discretion Under Senat e Bill No. 620
In See II , this court remanded the matter in light of Senate Bill No. 620 to allow the trial court the opportunity to exercise its discretion to strike the firearm enhancement under section 12022.53, subdivision (h), if it determined it was in the interest of justice to
do so. The court declined to strike the enhancement and defendant now claims the court
erred because it failed to consider the Miller factors or his postsentencing conduct. The People concede defendant’s postconviction behav ior was relevant, but point out the presumption of correctness applies on review and they contend that any error was
harmless. We conclude that the trial court was not aware of the full scope of its discretion, and, therefore, defendant is entitled to rem and.15

.

A. Procedural Background Defendant’s habeas petition, which is part of the record in this case, included
information relevant to Miller , such as defendant’s family and home environment and his early exposure to gang activity. 11 As well, the petition reflected that defendant did well in school and was not a discipline problem , and that in prison, his behavior was good and he avoided gang activity and prison politics, completed his GED, and held a prison job position that suggest ed he was trustworthy and had no disciplinary issues. In his motion requesting the trial court strike the firearm enhancement on remand, defendant cited the
Miller factors and his postconviction behavior for support. The probation officer’s report prepar ed in advance of the hearing stated, “The defendant argues that since his conviction, he has been a model inmate and has turned his life around, but at the time of sentencing, these factors did not apply. Probation is not taking into account the defendant ’s behavior post

- conviction , as it would not have been a factor in the Court’s discretion to strike the enhancement. What was a factor, is the defendant’s youthful nature, and that of any history of compliance/non

- compliance he
demonstrated at the time of the offense and conviction.” (Italics added.) During the hearing on defendant’s motion to strike the firearm enhancement, the trial court stated at the outset, “In the motion filed on behalf of [defendant], the only factor that I can identify as possibl y mitigating is the young age of [defendant], 16, at the

11 “[U]nder Miller a sentencing court considering a sentence of [LWOP] for a juvenile offender must consider evidence that may exist regarding (1) ‘a juvenile offender ’ s “chronological age and its hallmark features

— among them, immaturity, impetuosity, and failure to appreciate risks and consequences”’; (2) ‘“the family and home environment that surrounds [the juvenile]

— and from which he cannot usually extricate himself

— no matter how brutal or d ysfunctional”’; (3) ‘“the circumstances of the homicide offense, including the extent of [the juvenile defendant ’ s] participation in the conduct and the way familial and peer pressures may have affected him”’; (4) ‘whether the offender “might have been cha rged and convicted of a lesser offense if not for incompetencies associated with youth

— for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”’; and (5) ‘ “ the pos sibility of rehabilitation.”’” ( In re Kirchner (2017) 2 Cal.5th 1040, 1048, quoting People v. Gutierrez (2014) 58 Cal.4th 1354, 1388

– 1389.)16

.

time he committed this offense. It is both relevant and ironic that the victim in this case was also 16 years old. But other than that, I was not able to identify any other mitigating factors. [¶] There are a number of

— for lack of a better term

— aggravating factors that relate to this Court’s exercise of its discretion, which I will state on the record, but if I missed something, [defense counsel], I will certainly allow you to change my mind, if

y ou can. [¶] You may be heard.” In response to defense counsel’s argument that the court should consider the
standard articulated in Miller in deciding whether to strike the firearm enhancement, the trial court commented, “You point to Miller factors and you also set forth in your moving papers that the Court of Appeal has already considered the so

- called Miller factors relating to [defendant’s] appeal. If I am to properly exercise my discretion, I agree that I can’t simply repeat the fact that he may ha ve used a weapon in this case or the so

- called gun as the basis for the enhancement; that’s what I think the prohibition is. But I’m obligated to consider all other factors that relate to the legislative intent which still
remains in the law that the Cour t can impose that enhancement when it finds it to be appropriate. [¶] And, again, all I can see or hear from the argument was that [defendant] was relatively

— well, not only relatively young, he was very young when he committed this crime, and it is a fac tor, and I think I’m obligated to consider that.” (Italics added.) The prosecutor argued in relevant part, “[A]s the Court illustrated or stated earlier on the record, there’s really nothing else mitigating in the set of facts that we have before
us that show anything mitigating besides the defendant’s age at the time, which he is the same age as the victim,” and “[w]ith regard to what the defense has said about the Miller factors, we’ve already had that hearing that dealt with a separate issue, and we al ready had the sentence changed as per the Miller case to off of a [LWOP] to the life sentence, which is appropriate under the law as it currently stands.” (Italics added.) The court again noted the only mitigating factor was defendant’s age and
discussed some of the aggravating factors. The court declined to strike the firearm17

.

enhancement, concluding, “If I am to exercise my discretion as required now by [section 12022.53,] sub [division] (h), I can find nothing that comes close to factors in mitigation t hat would outweigh any factors in aggravation, but, specifically, there is nothing that would support a finding that it would be in the interest of justice to strike the [firearm] enhancement after full consideration of all the comments made both in writin g and made in open court.”
B. Standard of Review “‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant ’ s record.’ [Citation.] In such circumstances, we have held that the appropriate remedy is to re mand for resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached the same conclusion ‘even if it had
been aware that it had such discretion. ’ ” ( People v. Gutierrez , supra , 58 Cal.4th at
p. 1391; accord, People v. Flores (2020) 9 Cal.5th 371, 431

– 432; People v. Yanaga (2020) 58 Cal.App.5th 619, 625 ( Yanaga ) .) However, “[i]n the absence of evidence to the contrary, we presume that the court ‘knows and applies the correct statutory and case law’” ( People v. Thomas (2 011) 52 Cal.4th 336, 361), and “ ‘“ error must be affirmatively
shown ” ’” ( People v. Giordano (2007) 42 Cal.4th 644, 666). Further, remand is not required when it would be an idle act. ( People v. Flores , supra , at p. 432, citing People
v. McDaniels (2018) 2 2 Cal.App.5th 420, 425; accord, People v. Jefferson (2019) 38 Cal.App.5th 399, 409; People v. Allison (2019) 39 Cal.App.5th 688, 705

– 706.) C. Analysis Following the passage of Senate Bill No. 620, section 12022.53, subdivision (h), provides, “ The court m ay, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by18

.

this section. The authority provided by this subdivision applies to any resentencing that
may occur pursuant to any other law. ” Pursuant to the California Rules of Court, “t he court may consider the effect that striking the enhancement would have on the status of the crime as a strike, the accurate reflection of the defendant ’ s criminal conduct on his or her record, the effect it may have on the award of custody credits, and any other relevant
consideration. ” (Cal. Rules of Court, rule 4.42 8 (b).) Factors in aggravation and mitigation include any that “ reasonably relate to the defendant or the circumst ances under
which the crime was committed ” ( id. , rules 4.421(c), 4.423(c)), including “postsentencing conduct while in prison” ( Yanaga , supra , 58 Cal.App.5th at p. 627). “ Relevant factors
enumerated in these rules must be considered by the sentencing judg e, and will be deemed to have been considered unless the record affirmatively reflects otherwise. ” (Cal. Rules of Court, rule 4.409, italics added.) The probation report prepared in advance of the hearing on defendant’s motion to
strike the firearm enhancement was expressly confined to those factors that existed at the time of defendant’s conviction and sentencing. The report excluded defendant’s postconviction behavior from consideration, including his report of good behavior in prison and efforts to “turn[] his life around.” The report reflected consideration only of defendant’s youth and “any history of compliance/non

- compliance he demonstrated at the time of the offense and conviction.” Underscoring this limited view of mitigating facto rs, the trial court stated during the hearing that defendant’s age was the only factor in mitigation. These circumstances together expressly reflect a misunderstanding of the full scope of the trial court’s sentencing discretion, and we are not persuaded by the People’s position that the error was harmless. The facts in this case are difficult and unsympathetic: one 16

- year

- old juvenile shot another 16

- year

- old juvenile in the head, and the killing was motivated by gang rivalry. The trial court might st ill conclude that it is not in the interest of justice to strike the firearm enhancement.19

.

However, while the court took defendant’s age into account, defendant is entitled to have the court also consider his postconviction behavior and his efforts at self

improvement in prison, as well as other relevant Miller factor evidence beyond his mere age. (Cal. Rules of Court, rules 4.409, 4.423(c).) To deprive defendant of the benefit of a hearing that includes consideration of relevant youth

- related factors and his postconviction behavior is contrary to the rules of court governing the court’s exercise of
its discretion and it disregards the significant , postconviction shift in the law that followed recognition of the differences in moral culpability and brain de velopment between juvenile offenders and adult offenders. ( O.G. v. Superior Court , supra , 11 Cal.5th at p. 88.) Under these circumstances, the record does not clearly reflect that the trial court
would have declined to strike the enhancement even if it ha d been aware of the full scope of its discretion. ( Peo

ple v. Gutierrez , supra , 58 Cal.4th at p. 1391 ; accord, People v.
Bell (2020) 47 Cal.App.5th 153, 199

– 200.) Therefore, it is appropriate to afford defendant another opportunity to request that either the juvenile court or the trial court, depending on the outcome of the transfer hearing under Proposition 57, exercise its discretion to strike the firearm enhancement in the interest of justice. (§ 12022.53,
subd. (h).) The trial court shall consider al l relevant factors, including those relating to postconviction conduct, whether positive or negative. ( Yanaga , supra , 58 Cal.App.5th at
pp. 627

– 628.)
III. Entitlement to Franklin Hearing Finally, d efendant also seeks remand for a Franklin hearing. The People oppose his request for this form of relief. Effective January 1, 2014, after the decision in Miller , section 3051 was added to
the Penal Code to provide f or youth offender parole hearings for those who committed20

.

their controlling off

enses before 18 years of age (§ 3051, former subd. (a)), 12 and offer “ a meaningful opportunity to obtain release ” (§ 3051, subd. (e)). (Stats. 2013, ch. 312, § 4,
pp. 5

– 7.) The statute provides that “[i] n assessing growth and maturity, psychological
eval uations and risk assessment instruments, if used by the board, shall be administered by licensed psychologists employed by the board and shall take into consideration the diminished culpability of youth as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased maturity of the individual. ” (§ 3051,
subd. (f)(1).)
In F ranklin , the defendant, who was sentenced prior to the decision in Miller , challenged the constitutionality of his LWOP sentence for a murder he committed at the age of 16. ( Franklin , supra , 63 Cal.4th at p. 268.) The California Supreme Court concluded that “the combined operation of section 3051, section 3046, subdivision (c), and section 4801 means that [the defendant] is now serving a life sen tence that includes a meaningful opportunity for release during his 25th year of incarceration,” which mooted
his Miller claim. ( Frank lin , supra , at pp. 279

– 280.) However, the court remanded the case to allow the defendant a “sufficient opportunity to ma ke a record of information relevant to his eventual youth offender parole hearing.” ( Id. at p. 284.) Subsequently, the California Supreme Court concluded in Cook that for those seeking relief under Franklin whose judgments are final, “ the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and today ’ s decision .” ( In re Cook (2019) 7 Cal.5th 439, 458 ( Cook ).) In this case, defendant was resentenced pursuant to Mill er and with the benefit of
the decision in Franklin . He acknowledges this but argues that “a Franklin hearing will

12 Section 3051 was subsequently extended to those who committed their controlling offenses when they were under 23 years of age or younger (Stats. 2015, ch. 471, § 1, pp. 1

– 3), and later to those who committed their controlling offenses when they were 25 years of age or younger (Stats. 2017, ch. 675, § 1, pp. 1

– 3).21

.

give him the opportunity to show his additional efforts at rehabilitation and present additional information on how his background interacte d with the impulsivity of youth to lead to his gang membership and the killing of a gang rival.” Because defendant had the opportunity to make a sufficient record under Miller and Franklin , his remedy now lies
with a motion filed in the trial court in the first instance rather than entitlement to remand
for a Franklin hearing. ( Cook , supra , 7 Cal.5th at p. 452; People v. Medrano (2019) 40 Cal.App.5th 961, 968.)
T he requested relief

— remand

— is moot in any event given remand of the matter on other grounds

. I f defendant seeks to add to the record below on remand, “t he trial court may ‘ exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rule s, statutes, and regulations. ’ ” ( Cook , supra , 7 Cal.5th at p. 459, quoting People v. Rodriguez (2018) 4 Cal.5th 1123, 1132.) DISPOSITION Judgment is conditionally reversed , and this matter is remanded to the trial court
with directions to refer the case to the juvenile court to conduct a juvenile transfer hearing. (Welf. & Inst. Code, § 707.) If, after conducting the juvenile transfer hearing, the juvenile court finds it would not have transferred defendant to a court of criminal (adult) jurisdiction, it shall treat defendant’s conviction as a juvenile adjudication;
exercise its discretion under section 12022.53, subdivision (h), as to whether to strike the firearm enhancement; and impose an appropriate disposition within its discretion

. If, after conducting the juvenile transfer hearing, the court determines it would have transferred defendant to a court of criminal (adult) jurisdiction because he is not a fit and proper subject to be dealt with under the juvenile court law, then defendan t’s sentence shall be reinstated. (Welf. & Inst. Code, § 707.1, subd. (a).) The trial court shall exercise its discretion under section 12022.53, subdivision (h), and determine
whether to strike the firearm enhancement. If the trial court exercises its discretion to22

.

strike the firearm enhancement, it shall resentence defendant and transmit an amended abstract of judgment to the appropriate authorities.

MEEHAN, J. WE CONCUR:

LEVY, A cting P. J.

FRANSON, J.