Filed 4/16/21 In re Adrian H. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re ADRIAN H., a Person Coming 

Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN H.,

Defendant and Appellant.

 D077906

 (Super. Ct. No. J238031)

APPEAL from a dispositional order of the Superior Court of San Diego 

County, Kathleen M. Lewis, Judge. Affirmed as modified. 

Janice R. Mazur, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Robin 

Urbanski and Genevieve Herbert, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

A petition was filed in the juvenile court alleging Adrian H. (the Minor) 

committed lewd acts on a child. The Minor admitted one count of committing 

lewd acts on a child (Pen. Code, § 288, subd. (a)). 

At the dispositional hearing, the court committed the Minor to the 

Division of Juvenile Justice (DJJ) for a maximum term of up to eight years. 

After the disposition in this case, the Legislature modified Welfare and 

Institutions Code1 section 731. Under the statute, as amended, the court 

could no longer impose a term in DJJ longer than the middle term of 

imprisonment that could be imposed upon an adult convicted of the same 

offense. (§ 731, subd. (c).)

The Minor appeals contending the amendment to section 731 must be 

retroactively available to cases not final on appeal. The Minor asks that we 

either vacate the disposition or modify it to conform with the new limitations. 

The Attorney General has filed a brief conceding the amendment should 

apply to this case. (In re Estrada (1965) 63 Cal.2d 740 (Estrada); People v. 

Superior Court (Lara) (2018) 4 Cal.5th 299, 306-308 (Lara).)

We agree with the parties that Estrada compels the conclusion that the 

amendment to section 731, subdivision (c) must be retroactively applied to 

this case.

We will order the dispositional order modified to reflect six years (the 

middle term for violating Pen. Code, § 288, subd. (a)). We will affirm the 

disposition as modified.2

1 All further statutory references are to the Welfare and Institutions 

Code unless otherwise specified.

2 Since there are no factual issues presented by this appeal, we will omit 

the traditional statement of facts.
3

DISCUSSION

Where legislation is passed that ameliorates the punishment for an 

offense, and the Legislature has not specifically rejected retroactive 

application, the benefits of the change must be made available to those cases 

that were not final at the time of the enactment of the new legislation. (Lara,

supra, 4 Cal.5th at pp. 307-308.)

It is not disputed that the Minor’s case was not final when the 

amendment was enacted. Thus, the parties have correctly agreed that the 

Minor must receive the benefit of the statutory change.

DISPOSITION

The dispositional order is modified to reflect a maximum commitment 

to DJJ not to exceed six years. The court shall modify the abstract of 

judgment accordingly. In all other respects, the dispositional order is 

affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.