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Filed 12/13/22 P. v. Toliver CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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 This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE TOLIVER,

Defendant and Appellant.

 A163874

 (Alameda County

 Super. Ct. No. 76457C)

When he was a minor in the early 1980s, appellant Andre Toliver was 

convicted in adult court of second degree murder. He served and completed 

that sentence. In 2003, he was convicted of additional felonies, and his 

sentence for those crimes was increased as a result of the prior murder 

conviction. He is currently serving that sentence.

Toliver petitioned to have his murder conviction vacated under 

subsequently enacted statutory authority. The trial court granted the 

petition and reduced the conviction to attempted robbery. In this appeal, 

Toliver argues that upon vacating his murder conviction, the court should 

have referred him to juvenile court to determine whether he should have 

been prosecuted there. The Attorney General concedes that the case should 
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have been referred to juvenile court. We accept the concession and remand 

the matter for further proceedings. 

I.

FACTUAL AND PROCEDURAL

BACKGROUND

In 1982, when he was 16 years old, Toliver and two codefendants were 

charged with first degree murder and attempted robbery (Pen. Code, §§ 187, 

211)

1 with arming allegations on both counts (§ 12022, subd. (a)) in 

connection with the shooting death of cab driver. Toliver was charged in 

adult court.2 Following a preliminary hearing, Toliver in 1983 pleaded guilty 

to second degree murder, admitted to the arming allegation, and was 

committed to the Youth Authority for 15 years to life. He was released in the 

late 1980s because juvenile-court jurisdiction expired when he turned 25. 

In 2003, Toliver was convicted of six counts of second degree robbery

(§§ 211, 212.5, subd. (c)), with enhancements for being personally armed with 

a firearm during five of the offenses (§ 12022.53, subd. (b)). His base terms 

for the robbery convictions were doubled because of the prior strike, and he 

received a five-year enhancement because the prior conviction was a serious 

felony, for a total sentence of 45 years and four months. He is currently 

serving the prison term for these convictions. 

Two subsequent changes to the law are implicated in this appeal. 

First, in 2016, voters enacted Proposition 57, “a measure that amended the 

1 All statutory references are to the Penal Code.

2 The November 1982 form minute order remanding Toliver to adult 

court has a box checked next to the statement “Minor is ____ a FIT and 

PROPER subject to be dealt with under the juvenile court law. (707 W&I).” 

Although on the same form there is a handwritten entry stating, “Minor 

remanded to adult court,” Toliver contends there is an “apparent conflict” 

between the checked statement and Toliver’s transfer to adult court.
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law governing the punishment of juvenile offenses in adult criminal court by 

requiring hearings to determine whether the offenses should instead be 

heard in juvenile court. Adjudicating these offenses in juvenile court 

typically results in less severe punishment for the juvenile offender.” 

(People v. Padilla (2022) 13 Cal.5th 152, 158.)

Second, on January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. 

Sess.) became effective and altered liability for murder under the theories of 

felony murder and natural and probable consequences. (People v. Cooper

(2022) 77 Cal.App.5th 393, 398.)

Shortly after the bill became effective, Toliver filed a petition for relief 

(section 1170.95 petition) from his murder conviction under part of the newly 

enacted legislation that permits defendants to petition to have their murder 

convictions vacated and to be resentenced. (Former § 1170.95, now § 1172.6.) 

The trial court appointed counsel. 

The district attorney’s office at first argued that Toliver was not 

entitled to relief. But it eventually acknowledged that it could not prove 

beyond a reasonable doubt that Toliver was a major participant in the 1982 

murder who acted with reckless indifference when he participated in the 

attempted robbery that led to the murder. In a memorandum addressing 

what relief should be granted, Toliver argued, among other things, that the 

granting of his section 1170.95 petition would require the trial court to then 

return the matter to the juvenile court for a disposition hearing and further 

proceedings. Our Supreme Court has since confirmed that where the 

conviction of a juvenile defendant who was tried as an adult is later vacated 

and thus is no longer final, Proposition 57 applies to resentencing. (People v. 

Padilla, supra, 13 Cal.5th at pp. 159, 170.) That means that the defendant 
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must receive a transfer hearing in juvenile court, “where the court will decide 

whether criminal adjudication is appropriate.” (Id. at p. 170.)

At the hearing on Toliver’s section 1170.95 petition, the trial court 

found that a prima facie case had been made, issued an order to show cause, 

accepted the prosecutor’s concession, vacated the 1983 murder conviction, 

and replaced it with a conviction for attempted robbery. The court imposed 

the upper term of three years for attempted robbery, added a consecutive 

year for the finding that Toliver was armed with a firearm (§ 12022, 

subd. (a)), for a total sentence of four years. Because of the passage of time, 

the court ordered no period of parole and deemed the sentence to have been 

served. No mention was made of returning the case to the juvenile court. 

II.

DISCUSSION

Toliver argues that (1) the trial court had a sua sponte duty to remand 

him to the juvenile court for a transfer hearing (People v. Padilla, supra, 

13 Cal.5th at pp. 159, 170), (2) if there was no sua sponte duty to order a 

transfer hearing, his trial attorney was ineffective for not requesting one, and 

(3) even if he was not entitled to a transfer hearing, the trial court erred in 

imposing the upper term on his conviction for attempted robbery. The 

Attorney General concedes that counsel was ineffective for failing to request 

a transfer hearing and agrees that the case should be remanded for further 

proceedings in the juvenile court. 

Toliver relies primarily on People v. Montes (2021) 70 Cal.App.5th 35. 

There, a defendant who had been sentenced as a juvenile to life without the 

possibility of parole (LWOP) petitioned to recall his sentence. (Id. at pp. 38–

39.) The trial court granted the petition, recalled the sentence, and then 

resentenced him to LWOP. (Id. at p. 39.) The appellate court held that once 

the trial court recalled the defendant’s sentence, it had a sua sponte duty to 
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transfer the matter to the juvenile court for a transfer/fitness hearing under 

Proposition 57. (Ibid.) The court thus conditionally reversed the judgment 

and remanded to the trial court with directions to refer the case to the 

juvenile court “to determine if it would have transferred the case to adult 

criminal court had it originally been filed in the juvenile court in accordance 

with current law.” (Id. at p. 49; see also People v. Padilla, supra, 13 Cal.5th 

at p. 170 [after sentence vacated, the defendant “must receive a transfer 

hearing in a juvenile court, where the court will decide whether criminal 

adjudication is appropriate”].) 

The Attorney General disagrees that the trial court had a sua sponte 

duty to refer Toliver to juvenile court for a transfer hearing. But he agrees 

that Toliver was entitled to the benefit of Proposition 57 and that the matter 

should be remanded, based on the theory that Toliver’s trial attorney was 

ineffective for not requesting such a hearing. 

We need not decide whether counsel was ineffective for failing to 

request a transfer hearing at the hearing on Toliver’s section 1170.95 

petition. Even if counsel forfeited the issue, this court retains discretion to 

reach a question that has not been preserved for appellate review. (People v. 

Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Anderson (1994) 

26 Cal.App.4th 1241, 1249 [appellate court may determine whether 

defendant’s substantial rights will be affected by asserted error and, if so, 

may consider merits if error occurred even if defendant failed to object in trial 

court].) 

As there is no dispute that the case should be remanded so that Toliver 

may receive a transfer hearing in the juvenile court under Proposition 57, we 

agree that this is the appropriate remedy. In light of this conclusion, we need 
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not consider Toliver’s alternative argument, that the trial court erred in 

imposing the upper term for his attempted robbery conviction. 

III.

DISPOSITION

The judgment is conditionally reversed, and the matter is remanded to 

the trial court with directions to refer the case to the juvenile court for a 

transfer/fitness hearing to determine whether it would have transferred the 

case to adult criminal court had it originally been filed in the juvenile court 

under current law. (See People v. Montes, supra, 70 Cal.App.5th at p. 49.)
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

People v. Toliver A163874