Filed 12/17/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

IZICK DAVID GARCIA,

 Defendant and Appellant.

2d Crim. B269836

(Super. Ct. No. SB210974)

(Santa Barbara County)

In 1996, appellant Izick David Garcia was convicted of 

multiple violent sex offenses and sentenced to a prison term of 94 

years to life. Appellant was 17 at the time he committed the 

crimes. We affirmed the judgment. (People v. Garcia (July 29, 

1997, B104833) [nonpub. opn.] (Garcia I).) 

In 2012, appellant filed a petition for writ of habeas corpus

challenging the constitutionality of his sentence. He claimed he 

was entitled to resentencing under a new line of cases holding 

that a juvenile’s sentence for a nonhomicide offense violates the 

Eighth Amendment’s prohibition against cruel and unusual 

punishment if it amounts to a de facto life without the possibility 

of parole (LWOP) sentence. (See Miller v. Alabama (2012) 567 
U.S. 460 [183 L.Ed.2d 407] (Miller); Graham v. Florida (2010) 

560 U.S. 48 [176 L.Ed.2d 825] (Graham); People v. Caballero

(2012) 55 Cal.4th 262 (Caballero).) The trial court granted 

appellant’s petition and resentenced him to 50 years to life in 

state prison. It determined the revised sentence is constitutional 

in that it affords appellant a meaningful opportunity for a parole 

hearing within his natural life expectancy. (See Caballero, at pp. 

268-269.) 

Appellant contends, and the Attorney General concedes, 

that Proposition 57 requires that we vacate the sentence, 

conditionally reverse the convictions, and remand to the trial 

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

transfer hearing to determine the propriety of prosecution of the 

case in adult criminal court. (See Welf. & Inst. Code, § 707, subd. 

(a); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 310 

(Lara).)

If the juvenile court determines it would not have 

transferred appellant to criminal court under current law, the 

juvenile court shall treat appellant’s convictions as juvenile 

adjudications and impose an appropriate disposition. (Lara,

supra, 4 Cal.5th at p. 310.) 

If the juvenile court decides it would have transferred 

appellant to criminal court, the case shall be transferred to 

criminal court, which shall reinstate appellant’s convictions but 

conduct a resentencing hearing in accordance with People v. 

Contreras (2018) 4 Cal.5th 349, 383 (Contreras). The Supreme 

Court in that case held that a sentence of 50 years to life 

constitutes a de facto LWOP sentence in violation of the Eighth 

Amendment. (Id. at p. 379.) 

2
Finally, appellant argues that Penal Code section 30511

violates the equal protection clause and the Eighth Amendment 

because it excludes him and other juveniles sentenced under the 

One Strike law from a youth offender parole hearing after 25 

years in prison. Contreras considered this argument but declined 

to decide the issue, stating “[i]t suffices to note . . . that the 

current penal scheme for juveniles may warrant additional 

legislative action.” (Contreras, supra, 4 Cal.5th at p. 382.) 

Because the matter must be remanded to the trial court for 

further proceedings, we conclude the issue is not ripe for review. 

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying crimes are minimally relevant 

to the issues raised on appeal. Briefly, on January 8 or 9, 1996, 

appellant, who was 17 years old, approached Jill N., threw her to 

the ground and choked her. Appellant forced Jill N. at knifepoint 

to orally copulate him. He also raped her. Appellant choked her 

into unconsciousness and when she awoke, appellant was gone, 

along with her belongings. (Garcia I, supra, B104833.) 

On January 28, 1995, appellant raped Jane Doe in her 

hotel room. Appellant also hit her in the face and kicked her in 

the stomach and chest area. She suffered a fractured eye socket, 

ruptured eardrum, massive bruising and loosened teeth. After 

appellant left, she discovered that her wallet and other property 

were missing. (Garcia I, supra, B104833.) 

On February 6, 1995, appellant attacked Hulda I. as she 

was walking on the beach. He grabbed her by the neck, put a 

gun to her side and said he would kill her if she called out. 

1 All further statutory references are to the Penal Code

unless otherwise specified. 

3

 
Appellant then choked her and hit her repeatedly in the face. 

After a passerby responded to her screams, appellant ran away. 

(Garcia I, supra, B104833.) 

A jury convicted appellant of crimes against the three 

victims, including forcible oral copulation (count 1; § 288a, subd. 

c)), forcible rape (counts 2 & 7; § 261, subd. (a)(2)), assault by 

means of force likely to produce great bodily injury (counts 3 & 

10; § 245, subd. (a)(1)), robbery (counts 4 & 8, § 211), kidnapping 

for sexual purposes (counts 5 & 12; §§ 207, subd. (a), former 208, 

subd. (d)), forcible penetration by a foreign object (count 6; § 289, 

subd. (a)), first degree burglary (count 9; § 459), and assault with 

intent to commit rape (count 11; § 220). The jury also found true 

allegations that appellant personally used a deadly weapon and 

inflicted great bodily injury on Jill N. (§§ 12022, subd. (b), 

12022.3, 12022.7, 12022.8), and that he inflicted great bodily 

injury on Jane Doe (§§ 12022.7, 12022.8). Further, the jury found 

true the allegation that the crime of forcible penetration by a 

foreign objection (§ 289, subd. (a)) against Jane Doe occurred 

during the commission of a burglary pursuant to section 667.61, 

subdivisions (a) and (d). The jury also found true the allegation 

that appellant personally used a firearm during the commission 

of the offenses against Hulda I. (§ 12022.5, subd. (a).) Appellant 

was sentenced to an aggregate term of 94 years to life in prison. 

(Garcia I, supra, B104833.) 

Miller, Graham and Caballero were decided years after 

appellant was sentenced. Based on these authorities, appellant 

filed a habeas petition challenging the legality of his sentence. 

The trial court issued an order to show cause, observing that 

since appellant “can only earn credit at the rate of 15%, he will be 

approximately 97 years old when he is first eligible for parole. 

4
[Appellant] turned 30 in 2007. At that time, a 30 year old 

African-American male was expected to live to the age of 72.7 

years. [Citation.] Therefore, [appellant’s] parole eligibility date 

. . . falls outside his natural life expectancy.” 

At the show cause hearing, the prosecution requested a 

sentence that would render appellant eligible for a parole hearing 

date when he is approximately 77 years old. Defense counsel 

asked for a determinate sentence of 45 years, emphasizing 

certain mitigating factors, including appellant’s childhood history 

of foster care and impoverishment and the improvements in his 

attitude and behavior in prison. Appellant testified on his own 

behalf. 

Noting that Miller, Graham and Caballero require that 

juvenile offenders be given “a meaningful opportunity to 

rehabilitate and to demonstrate that [they] should be paroled 

within their natural life expectancy,” the court imposed a 

sentence of 50 years to life. The sentence was comprised of two 

terms of 25 years to life, for counts 2 and 7, pursuant to section 

667.61, known as the One Strike law.2 The court found that this 

sentence would give appellant “an opportunity to prove that [he’s] 

capable of living on the outside at the age of 59. That’s my 

calculation. Maybe it’s 60, maybe it’s 58, but somewhere in that 

ballpark. So, that’s not young, but it’s not 77 either.”

DISCUSSION

2 The trial court dismissed the enhancements as to counts 2, 

6 and 7 pursuant to section 1385 and stayed sentences as to 

counts 3 through 5, and 8 through 11, pursuant to section 654. 

The sentences in counts 6 and 12 were imposed concurrently to 

the sentences in counts 2 and 7. 

5

 
Appellant is Entitled to a Juvenile Court Transfer Hearing

In supplemental briefing, appellant contends that, due to 

the passage of Proposition 57, he is entitled to a hearing in 

juvenile court regarding whether his case should be transferred 

to adult criminal court. Appellant requests that the judgment be 

conditionally reversed, so that the hearing may take place. The 

Attorney General concedes appellant is entitled to a transfer 

hearing. 

Appellant was charged with the offenses in 1995. Under 

the law at the time, appellant’s case had to be brought in juvenile 

court. (See former Welf. and Inst. Code section 707; Juan G. v. 

Superior Court (2012) 209 Cal.App.4th 1480, 1489 & fn. 4.) In 

order to try appellant as an adult, the district attorney had to file 

a motion pursuant to former Welfare and Institutions Code 

section 707, subdivision (c) for a judicial determination that 

appellant was not fit to be dealt with under juvenile court law. 

For purposes of the motion, appellant was “presumed to be not a 

fit and proper subject to be dealt with under the juvenile court 

law unless the juvenile court concludes, based upon evidence, . . . 

that the minor would be amenable to the care, treatment, and 

training program available through the facilities of the juvenile 

court,” based on five criteria: “(1) The degree of criminal 

sophistication exhibited by the minor. [¶] (2) Whether the minor 

can be rehabilitated prior to the expiration of the juvenile court’s 

jurisdiction. [¶] (3) The minor’s previous delinquent history. [¶] 

(4) Success of previous attempts by the juvenile court to 

rehabilitate the minor. [¶] (5) The circumstances and gravity of 

the offenses alleged in the petition to have been committed by the 

minor.” (Ibid.) In order to make a finding of fitness, the juvenile 

court had to find “the minor [was] fit and proper under each and 

6
every one of the above criteria.” (Ibid.) It is apparent that 

appellant was found to be unfit under these criteria. 

“Amendments to former [Welfare and Institutions Code] 

sections 602 and 707 in 1999 and 2000, some by initiative

[Proposition 21], changed this historical rule. Under the changes, 

in specified circumstances, 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. 

[Citations.] . . . [¶] Proposition 57 changed the procedure again, 

and largely returned California to the historical rule. ‘Among 

other provisions, Proposition 57 amended the Welfare and 

Institutions Code so as to eliminate direct filing by prosecutors. 

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. [Citation.]’ [Citations.]” 

(Lara, supra, 4 Cal.5th at pp. 305-306.) 

Proposition 57 requires, therefore, that prosecutors 

commence the action against a minor in juvenile court. “If the 

prosecution wishes to try the juvenile as an adult, the juvenile 

court must conduct what [is called] a ‘transfer hearing’ to 

determine whether the matter should remain in juvenile court or 

be transferred to adult court. Only if the juvenile court transfers 

the matter to adult court can the juvenile be tried and sentenced 

as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)” (Lara,

supra, 4 Cal.5th at p. 303, fn. omitted.) 

Our Supreme Court has held that Proposition 57 applies 

retroactively to cases that are not yet final on appeal. (Lara,

7
supra, 4 Cal.5th at pp. 303, 314.) Here, the parties concede 

appellant’s case is not yet final on appeal. (See ibid.) 

In Lara, the court approved the remedy set forth in People 

v. Vela (2017) 11 Cal.App.5th 68 (Vela),3 for juveniles that had

cases pending in criminal court prior to the passage of 

Proposition 57. (Lara, supra, 4 Cal.5th at pp. 309-313.) 

“Specifically, the Vela court ordered as follows: ‘Here, under 

these circumstances, [the defendant]’s conviction and sentence 

are conditionally reversed and we order the juvenile court to 

conduct a juvenile transfer hearing. ([Welf. & Inst. Code,] § 707.) 

When conducting the transfer hearing, the juvenile court shall, to 

the extent possible, treat the matter as though the prosecutor 

had originally filed a juvenile petition in juvenile court and had 

then moved to transfer [the defendant]’s cause to a court of 

criminal jurisdiction. ([Welf. & Inst. Code,] § 707, subd. (a)(1).) 

If, after conducting the juvenile transfer hearing, the court 

determines that it would have transferred [the defendant] to a 

court of criminal jurisdiction because he is “not a fit and proper 

subject to be dealt with under the juvenile court law,” then [the 

defendant]’s convictions and sentence are to be reinstated. 

([Welf. & Inst. Code,] § 707.1, subd. (a).) On the other hand, if 

the juvenile court finds that it would not have transferred [the 

defendant] to a court of criminal jurisdiction, then it shall treat 

[the defendant]’s convictions as juvenile adjudications and impose 

3 Lara cited the original decision issued in Vela, then on 

review in the Supreme Court. (See Lara, supra, 4 Cal.5th at pp. 

306, 310.) The Supreme Court subsequently vacated the original 

opinion filed in Vela and the Court of Appeal refiled a 

substantially similar decision in People v. Vela (2018) 21 

Cal.App.5th 1099.

8

 
an appropriate “disposition” within its discretion.’ (Vela, supra,

11 Cal.App.5th at p. 82.)” (Lara, at p. 310, italics omitted.) 

Although the defendant in Lara was charged directly in 

adult criminal court, the court’s reasoning applies equally to 

appellant, who received a fitness hearing under standards 

different than those currently in effect. In other words, the fact 

that appellant received a fitness hearing before his case was 

transferred to adult court does not preclude him from receiving a

new transfer hearing in accordance with Lara and Vela.

Specifically, there are key differences between a 

Proposition 57 transfer hearing and the analogous fitness 

hearing under prior law. Most notably, Proposition 57 shifts the 

burden of proof in the hearing. Under prior law, the juvenile 

court was bound by a rebuttable presumption that the defendant 

was not fit for the juvenile court system, whereas under current 

law there is no such presumption. (Welf. & Inst. Code, § 707, 

subd. (a).) In addition, the court at appellant’s fitness hearing 

could not retain jurisdiction unless it found him fit for juvenile 

court under all five criteria. (Former Welf. & Inst. Code, § 707, 

subd. (c).) In a transfer hearing under current law, the court 

must consider all five factors, but has broad discretion in how to 

weigh them. (Welf. & Inst. Code, § 707, subd. (a)(2).) 

In conformance with the Supreme Court’s directive in Lara,

we conclude appellant is entitled to a transfer hearing in juvenile 

court. We therefore conditionally reverse the judgment to allow 

for such a hearing. 

If the Case is Transferred to Adult Criminal Court,

Appellant Must be Resentenced

In Graham, supra, 560 U.S. at pages 81-82, the United 

States Supreme Court held that LWOP sentences for minors 

9
convicted of nonhomicide offenses are unconstitutional. Two 

years later, Miller, supra, 567 U.S. at page 479, determined that 

sentencing schemes that make LWOP sentences mandatory for 

juveniles who commit homicide offenses constitute cruel and 

unusual punishment in violation of the Eighth Amendment. 

In Caballero, supra, 55 Cal.4th at page 268, our 

Supreme Court applied Graham to nonhomicide juvenile 

offenders who receive a sentence that is so long it amounts to a 

de facto LWOP sentence. The court held that the sentence must 

provide a “meaningful opportunity [for the juvenile offender] to 

demonstrate [his or her] rehabilitation and fitness to reenter 

society in the future” and must take into consideration all 

mitigating circumstances, including the juvenile’s age, role in the 

crime, and physical and mental development. (Id. at pp. 268-

269.) 

In response to Caballero, the Legislature enacted section 

3051, which sets mandatory parole eligibility dates for most 

persons convicted of crimes before they turned 25. Relevant here 

is section 3051, subdivision (b)(3), which provides for a parole 

eligibility hearing in the 25th year of incarceration if the 

sentence is a term of 25 years to life. This provision, however, 

does not apply to Three Strikes sentences and One Strike 

sentences for certain felony sex offenses (§ 667.61). (§ 3051, subd. 

(h).) The Legislature determined that juveniles convicted of 

certain serious sex crimes under aggravated circumstances may 

be kept in prison more than 25 years before being given an 

opportunity for parole. Appellant’s sentence includes two terms 

of 25 years to life because, among other things, he committed a 

burglary in order to carry out a rape, thus falling within the One 

Strike sentencing scheme. (§ 667.61, subds. (a), (d).) 

10
Consequently, appellant is not subject to section 3051’s 

mandatory minimum parole eligibility requirements. (See 

Contreras, supra, 4 Cal.5th at pp. 381-382.) 

Appellant contends his sentence of 50 years to life does not 

pass constitutional muster, and that the matter must be 

remanded for resentencing, assuming his case does not remain in 

juvenile court. We agree. 

In Contreras, two 16-year-old juveniles kidnapped two 

victims and committed multiple acts of rape, sodomy and other 

sex offenses against them. (Contreras, supra, 4 Cal.5th at pp. 

356-357.) The trial court sentenced the defendants to prison 

terms of 50 and 58 years to life. (Id. at p. 358.) The Court of 

Appeal affirmed the convictions, but reversed the sentences

because they precluded any possibility of parole until near the 

end of the defendants’ lifetimes. (Ibid.) The Supreme Court 

granted review and, in a 4-3 decision, affirmed the judgment of 

the Court of Appeal, holding that the sentences violated the 

Eighth Amendment as interpreted in Graham, supra, 560 U.S. at 

page 75. (Contreras, at pp. 379, 383.) 

The Supreme Court declined to decide whether parole 

eligibility at age 60 under the Elderly Parole Program or the 

defendants’ ability to earn custody credits to reduce their parole 

eligibility dates would satisfy the Eighth Amendment. 

(Contreras, supra, 4 Cal.5th at p. 378-379.) The court concluded 

it was for the lower courts to address these issues in the first 

instance. (Ibid.) It further declined to provide guidance “on what 

length of sentence below 50 years will satisfy Graham.” (Id. at 

p. 381.) 

The Supreme Court ordered the matter remanded to the 

trial court for resentencing, directing that the court “consider, in 

11
light of [the] opinion [in Contreras], any mitigating circumstances 

of defendants’ crimes and lives, and the impact of any new 

legislation and regulations on appropriate sentencing.” 

(Contreras, supra, 4 Cal.5th at p. 383.) The court further directed 

the sentencing court “to impose a time by which defendants may 

seek parole, consistent with [the Contreras] opinion.” (Ibid.) 

After Contreras was issued, we asked the parties to submit 

supplemental briefing regarding its effect on this appeal. The 

parties agree that Contreras controls and that the matter must 

be remanded to the trial court for resentencing, assuming the 

case is transferred to adult criminal court following the transfer 

hearing. If the case is not transferred, appellant’s convictions 

will be treated as juvenile adjudications and the juvenile court 

will impose an appropriate disposition within its discretion. 

(Lara, supra, 4 Cal.5th at p. 310.) 

Appellant’s Section 3051 Argument is

Not Ripe for Review

The Fourteenth Amendment to the United States 

Constitution provides that no state shall “deny to any person 

within its jurisdiction the equal protection of the laws.” A similar 

requirement appears in California Constitution, article 1, section 

7. Appellant contends that section 3051 violates his equal 

protection rights because there can be no rational basis for 

treating him, as a One Strike sex offender, more severely than a 

juvenile who commits the more serious crime of murder with 

special circumstances. He claims it is irrational that someone 

with a first-degree murder conviction would be eligible for parole 

consideration after 25 years while appellant would not. 

Although our Supreme Court has yet to decide this issue, it 

did discuss the issue at some length in Contreras. It “note[d] . . . 

12
that the current treatment of juvenile One Strike offenders is 

anomalous given that juveniles convicted of special circumstance 

murder and sentenced to LWOP are now eligible for parole 

during their 25th year in prison. This scheme appears at odds 

with the high court’s observation that ‘defendants who do not kill, 

intend to kill, or foresee that life will be taken are categorically 

less deserving of the most serious forms of punishment than are 

murderers. . . . Although an offense like robbery or rape is “a 

serious crime deserving serious punishment,” those crimes differ 

from homicide crimes in a moral sense.’” (Contreras, supra, 4 

Cal.5th at p. 382, quoting Graham, supra, 560 U.S. at p. 69, 

citations omitted.) Contreras further explained that “[i]n the 

death penalty context, the high court has said ‘there is a 

distinction between intentional first-degree murder on the one 

hand and nonhomicide crimes against individual persons, even 

including child rape, on the other. The latter crimes may be 

devastating in their harm, as here, but “in terms of moral 

depravity and of the injury to the person and to the public,” they 

cannot be compared to murder in their “severity and 

irrevocability.”’” (Ibid., quoting Kennedy v. Louisiana (2008) 

554 U.S. 407, 438, citation omitted.) 

The Supreme Court also observed that it was not aware of 

any other provision in the Penal Code “that treats a nonhomicide 

offense more harshly than special circumstance murder. 

(Compare § 190.2 [prescribing penalty of death or LWOP for 

special circumstance murder] with § 667.61 [prescribing 

maximum penalty of 25 years to life or, when the victim is under 

age 14, LWOP for aggravated rape offenses].)” (Contreras, supra,

4 Cal.5th at p. 382.) The court was unable to identify “any other 

jurisdiction that punishes juveniles for aggravated rape offenses 

13
more severely than for the most aggravated forms of murder.” 

(Ibid.) Indeed, it noted the anomaly “that if defendants had 

killed their victims after the sexual assaults and had been 

sentenced to LWOP, they would have been eligible for a youth 

offender parole hearing after 25 years of incarceration.” (Ibid.)

Not only did Contreras conclude that the treatment of 

juvenile One Strike offenders appears to raise equal protection 

and Eighth Amendment issues, but it also noted “[t]here is also a 

colorable claim that [the treatment] constitutes ‘unusual 

punishment’ within the meaning of article I, section 17 of the 

California Constitution.” (Contreras, supra, 4 Cal.5th at p. 382.) 

The court declined, however, to reach these issues, stating “[i]t 

suffices to note . . . that the current penal scheme for juveniles 

may warrant additional legislative action.” (Ibid.) 

In contrast, Justice Kriegler observed in his dissenting 

opinion that “[t]he Legislature has repeatedly determined that 

one strike juvenile offenders are not entitled to a youth offender 

parole hearing under section 3051. An early version of section 

3051 did not exclude juvenile one strike offenders from a youth 

offender parole hearing (Legis. Counsel’s Dig., Sen. Bill No. 260 

(2013-2014 Reg. Sess.) as amended June 27, 2013, p. 5), but the 

legislation was amended several months later to specifically 

exclude this class of offenders (Legis. Counsel’s Dig., Sen. Bill No. 

260 (2013-2014 Reg. Sess.) as amended Sept. 3, 2013, p. 9). 

Subsequent amendments to the statute have maintained the 

exclusion of one strike juvenile offenders from section 3051

hearings. Instead, the Legislature has provided for a parole 

hearing for one strike juvenile offenders at age 60 under section 

3055. Establishing a longer period of incarceration before parole 

suitability hearings for juvenile one strike offenders is consistent 

14
with the state’s long-standing policy recognizing the unique 

danger of recidivism posed by violent sexual offenders. (See 

§§ 290 [registration requirement for sex offenders], 6600 et seq. 

[civil commitment for sexually violent predators]; Evid. Code, 

§ 1108 [in a prosecution for a sexual offense evidence of 

defendant’s commission of another sexual offense is not 

inadmissible to prove a disposition to commit the charged crime].) 

Case law from this court is replete with examples of recidivism by 

sex offenders.” (Contreras, supra, 4 Cal.5th at p. 419, (dis. opn. of 

Kriegler, J.), citing People v. Davis (2009) 46 Cal.4th 539, 602-

603; People v. Falsetta (1999) 21 Cal.4th 903, 909-910; People v. 

Frank (1990) 51 Cal.3d 718, 724-725.) 

Appellant maintains that even though he is entitled to a 

transfer hearing and to resentencing, assuming his case is 

transferred to adult criminal court, we must decide in this appeal 

whether section 3051 violates the equal protection clause and the 

Eighth Amendment’s prohibition against cruel and unusual 

punishment. The ripeness requirement, however, “prevents 

courts from issuing purely advisory opinions, or considering a 

hypothetical state of facts to give general guidance rather than to 

resolve a specific legal dispute.” (Hunt v. Superior Court (1999) 

21 Cal.4th 984, 998.) In other words, a controversy is not ripe 

until “‘. . . the facts have sufficiently congealed to permit an 

intelligent and useful decision to be made.’ [Citation.]” (Pacific 

Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 

158, 171.) 

Here, the juvenile court has yet to decide whether 

appellant’s case should be transferred to adult criminal court for 

disposition. If the case is not transferred, the constitutionality of 

section 3051 will be irrelevant. And even assuming the case is 

15
transferred, the trial court has yet to determine appellant’s 

sentence and his earliest parole eligibility date. Until a new 

sentence is imposed, it is uncertain whether the same 

constitutional concerns will arise. Accordingly, we decline to 

issue an advisory opinion addressing those concerns. 

It also is well established that constitutional issues are to 

be avoided when an appeal can be resolved on other grounds. 

(Reed v. City and County of San Francisco (1992) 10 Cal.App.4th 

572, 575; see Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 

1102.) Lara requires that we remand the case to the juvenile 

court for a transfer hearing. Assuming the case is transferred to 

adult criminal court, Contreras requires that appellant be 

resentenced. The Supreme Court expressly declined to decide 

whether section 3051 is constitutional. (Contreras, supra,

4 Cal.5th at p. 382.) Instead, the court suggested that the 

Legislature consider amending the current penal scheme for 

juveniles. (Ibid.) It is possible that such amendments will occur 

before any resentencing or before any subsequent appeal is 

heard. 

Finally, appellant is not precluded from raising his section 

3051 argument at the time of resentencing should that occur. 

Although the argument was mentioned at appellant’s last 

sentencing hearing, the trial court did not reach the issue. It 

stated: “There’s no doubt in the Court’s mind unless the 

legislature responds that at some point in time [appellant] would 

be able to make a successful equal protection challenge. Because 

it’s irrational that someone with multiple first-degree murder 

convictions and facing potential sentences of 150 years to life and 

more would be eligible for parole consideration after 25 years but 

somebody in [appellant’s] position would not be.” Appellant cites 

16
no authority suggesting that we must decide the issue for the 

first time on appeal when the matter has to be returned to the 

trial court for further proceedings. 

Errors in Amended Abstracts of Judgment

The parties’ briefs identify several errors in the amended 

abstracts of judgment.4 Specifically, the amended abstracts do 

not reflect the proper participants at the resentencing hearing, 

the correct date of the hearing, appellant’s correct date of birth, 

and the actual days appellant spent in custody on his original 

sentence prior to modification.

Given that the matter is being remanded for a transfer 

hearing and possible resentencing, it is not necessary to correct 

these amended abstracts of judgment. But the trial court and the 

parties should ensure that any new amended abstracts of 

judgment contain the correct information. 

DISPOSITION

The sentence is vacated and the convictions are 

conditionally reversed. The matter is remanded to the trial court 

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

transfer hearing to determine if the case would have been 

transferred to adult criminal court had the case originally been 

filed in juvenile court in accordance with current law. 

If the juvenile court determines it would not have 

transferred appellant to criminal court under current law, the 

juvenile court shall treat appellant’s convictions as juvenile 

adjudications and impose an appropriate disposition within its 

usual time frame. 

4 One amended abstract of judgment is for appellant’s 

determinate sentence, and the other is for his indeterminate 

sentence. 

17

 
If the juvenile court decides it would have transferred 

appellant to adult criminal court, the case shall be transferred to

criminal court, which shall reinstate appellant’s convictions but 

conduct a resentencing hearing on the vacated sentence. The 

criminal court shall consider, in light of the opinion in Contreras, 

any mitigating circumstances of appellant’s crimes and life, and 

the impact of any new legislation and regulations on appropriate 

sentencing. The court is further directed to impose a time by 

which appellant may seek parole, consistent with Contreras. The 

court shall also prepare new amended abstracts of judgment 

reflecting the revised sentence and forward copies of the amended 

abstracts to the Department of Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

GILBERT, P. J. 

TANGEMAN, J. 

18
Brian E. Hill, Judge

Superior Court County of Santa Barbara

______________________________

Allen G. Weinberg, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Kamala D. Harris, Xavier Becerra, Attorneys General, 

Gerald A. Engler, Chief Assistant Attorney General, Lance E. 

Winters, Senior Assistant Attorney General, Susan S. Pithy, 

Shawn M. Webb, Supervising Deputy Attorneys General, Alene 

M. Games, and Mary Sanchez, Deputy Attorneys General, for 

Plaintiff and Respondent. 

19