Opinion
C094024
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. JIMMY KEE SIACKASORN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 07F11789)
DUARTE, J.
This case returns to us on transfer from the California Supreme Court with directions to vacate our previous decision and reconsider in light of People v. Salazar (2023) 15 Cal.5th 416 (Salazar) and Assembly Bill No. 2361 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 330) (Assembly Bill No. 2361). Defendant appeals from the trial court's denial of his request to strike a firearm sentencing enhancement. In an unpublished opinion, we affirmed the judgment. (People v. Siackasorn (Sept. 12, 2022, C094024) [nonpub. opn.].)
On transfer, defendant contends we should conditionally reverse the judgment and remand to the juvenile court because the Legislature has required a new finding and raised the standard of proof for transferring a juvenile to a court of criminal jurisdiction and the new law applies retroactively to this case. The People agree, as do we.
Defendant also renews his argument that we should remand for the trial court to exercise its new discretion to strike his firearm enhancement and impose a lesser uncharged enhancement instead. The People contend defendant forfeited this argument and, in any event, the record clearly indicates the trial court would not strike the enhancement, even had it known the extent of its discretion to impose a lesser uncharged enhancement instead. We agree with the People on both points.
Accordingly, we will conditionally reverse the judgment and remand for the juvenile court to apply the new statute and determine whether it would have transferred defendant's case to criminal court. If the court determines it would have transferred the case to criminal court, the judgment will be reinstated. If the court determines it would not have transferred the case, then it shall treat defendant's conviction and the true jury finding on the enhancement as juvenile adjudications and impose an appropriate disposition within its discretion.
FACTS AND PROCEEDINGS
In 2007, when defendant was 16 years 11 months old, he shot and killed deputy sheriff Vu Nguyen.
Defendant's Conviction and First Appeal
In 2010, a jury found defendant guilty of first degree murder of a peace officer (Pen. Code, §§ 187, subd. (a), 189.1, 190.2, subd. (a)(7)) and found true an allegation that defendant personally and intentionally discharged a firearm and proximately caused death (id., § 12022.53, subd. (d)). The trial court declined to exercise its discretion to impose a sentence of 25 years to life in prison for murder and instead sentenced defendant to life in prison without the possibility of parole (LWOP) (id., §§ 190.2, subd. (a)(7), 190.5, subd. (b)), denied defendant's motion to find the LWOP sentence unconstitutional, and imposed a consecutive term of 25 years to life in prison for the firearm enhancement (id., § 12022.53, subd. (d)). Defendant appealed, and this court affirmed his conviction and sentence. (People v. Siackasorn (May 17, 2012, C065399) [nonpub. opn.], review granted Aug. 29, 2012, S203568, and matter transferred with directions.) The California Supreme Court granted review and transferred the matter back to this court with directions to reconsider in light of the United States Supreme Court's opinion in Miller v. Alabama (2012) 567 U.S. 460 (Miller).
On transfer, this court affirmed defendant's conviction but vacated his sentence and remanded for the trial court to resentence defendant without considering LWOP as the presumptive sentencing choice. (People v. Siackasorn (Dec. 7, 2012, C065399) [nonpub. opn.], review granted Mar. 20, 2013, S207973, review dism. July 9, 2014.) On remand, the trial court determined that defendant was one of the rare juvenile offenders referenced by Miller for whom LWOP was the appropriate sentence and again imposed a consecutive term of 25 years to life for the firearm enhancement. (See Miller, supra, 567 U.S. at pp. 479-480.)
Defendant's Second Appeal and Juvenile Transfer Hearing
Defendant appealed again, and, in 2018, after the Legislature passed Senate Bill No. 620 (2017-2018 Reg. Sess.), which gave trial courts discretion to strike Penal Code section 12022.53 firearm enhancements, and after our Supreme Court decided People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) requiring retroactive hearings to transfer juvenile offenders to criminal court, this court conditionally reversed defendant's conviction and sentence. (People v. Siackasorn (Aug. 13, 2018, C083469) [nonpub. opn.].) We remanded the case to the juvenile court to determine whether it would have transferred defendant's case to a court of criminal jurisdiction. (Ibid.)
On remand, the parties submitted evidence and the juvenile court held a hearing to determine whether to transfer defendant to criminal court. The probation department's transfer report indicated that defendant had first been adjudicated a ward of the juvenile court at age 12. During the five years preceding the murder, defendant was arrested two more times, absconded from every facility the juvenile court placed him in, and committed further violations of the terms of his probation. Defendant also frequently threatened to kill law enforcement officers prior to the murder. The probation department found "no evidence the defendant was even marginally amenable to the rehabilitative services being offered to him by the Juvenile Court."
Regarding the murder itself, the probation report considered defendant's ambush of the police officer to be premeditated, based on his consistent threats against law enforcement, his ability to continue fleeing rather than attacking the pursuing officer, and the relatively minor consequences of being caught and placed in another juvenile facility. After the murder, defendant bragged about killing the officer and threatened to kill other employees of the sheriff's department and the Sacramento County Juvenile Hall. After his conviction and imprisonment, defendant committed frequent rule violations in prison, including battery of another prisoner.
Defendant offered reports by a social worker and a psychologist, which both indicated he would be somewhat amenable to rehabilitative services. The psychologist's report indicated "defendant can benefit from the rehabilitative services offered by Juvenile Court," but concluded inaptly: "[Defendant] is not irremediable and should be given the chance for parole in his life-time." The social worker's report indicated: "There is still a great deal of work for [defendant] to do moving forward," but "[i]f he remains under the jurisdiction of the juvenile court, [defendant] would have these opportunities through the intensive programming at [the] D[ivision of] J[uvenile] J[ustice] for a year and a half."
After considering these reports and testimony offered by the experts, the juvenile court decided that the circumstances justified transferring defendant's case to a court of criminal jurisdiction. The court considered it "abundantly clear" that defendant should be transferred to criminal court and explained: "this is one of those cases where it would have been very difficult to find anything other than the need to transfer this matter to criminal court."
The juvenile court addressed each of the five factors listed in former Welfare and Institutions Code section 707, which governed the transfer of juveniles to criminal court at the time. (See former § 707, as amended by Stats. 2018, ch. 1012, § 1.) First, the court found the sophistication of the crime weighed in favor of transfer because defendant had: (1) threatened to kill a number of authority figures previously, including juvenile center staff and law enforcement officers; (2) lured a police officer into the attack; and (3) indicated with his actions after the murder that he had successfully carried out his plan. Second, the court found the opportunity for rehabilitating defendant prior to the expiration of juvenile court jurisdiction also weighed in favor of transfer because defendant had rejected all juvenile court intervention from ages 12 through 16, prior to killing Deputy Nguyen, including by absconding repeatedly. Third, the court found defendant's history in the juvenile justice system likewise weighed in favor of transfer because defendant had "non-stop for a period of over five years, [committed] one crime after another." Fourth, the court found the success of previous attempts to rehabilitate defendant weighed in favor of transfer because "there was obviously not success." Fifth, the court found the gravity of the offense weighed in favor of transfer because "[i]t doesn't get any more grave than this."
Undesignated statutory references are to the Welfare and Institutions Code.
The juvenile court also considered defendant's conduct in prison since the murder. Although the social worker and psychologist testified that defendant had matured while in custody, the court found they minimized defendant's consistent rules violations, including a fight in which he had recently been involved. Ultimately, the court considered the standard of proof decisive, noting that the preponderance of the evidence standard "is a relatively light burden in comparison to most burdens . . . in criminal law or juvenile law." Accordingly, the court ordered defendant's case transferred to criminal court.
Defendant's Request to Strike the Firearm Enhancement
After the transfer, the trial court held a hearing in April 2021 to decide whether to strike defendant's firearm enhancement. Defendant did not ask the trial court to impose a lesser enhancement instead of the Penal Code section 12022.53, subdivision (d) enhancement. The court noted that it had resentenced a number of juvenile offenders who had "demonstrated dramatic reformation," such that "there was a case to be made for reducing or otherwise in some fashion or another ameliorating their sentence," but determined: "This is not one of those cases."
The trial court recounted that defendant had shot Deputy Nguyen three times from about 14 feet away. Before the shooting, defendant had made a number of threats against police officers, and, after the shooting, defendant bragged about killing the officer and threatened to kill other law enforcement personnel he encountered. The court then noted: "It strikes me that among the cases that I have handled where [someone is killed with a firearm], this is certainly on the end of the continuum of the worst of those [Penal Code section] 12022.53 findings." The court also rejected defendant's argument that striking the enhancement would be purely symbolic, given that defendant had already been sentenced to LWOP, but would recognize the fact that defendant was a child when he committed the offense and had matured mentally since that time. Instead, the court agreed with the prosecution that the legal landscape was shifting and suggested that defendant's "entrenched antisocial personality" warranted the consecutive term of 25 years to life in the event his LWOP sentence was ever reduced. Accordingly, the court denied defendant's request to strike his firearm enhancement.
Defendant timely appealed. In an unpublished opinion, we affirmed the judgment. (People v. Siackasorn, supra, C094024.) Without deciding whether defendant had forfeited his claim that the trial court failed to exercise its discretion to consider imposing a lesser included uncharged firearm enhancement, we concluded the record clearly indicated the trial court would not have stricken the firearm enhancement even had the court been fully aware of its discretion. (Ibid.) The California Supreme Court transferred the case back to us with directions to vacate our previous decision and reconsider in light of Salazar, supra, 15 Cal.5th 416 and Assembly Bill No. 2361.
DISCUSSION
On transfer, defendant contends: (1) we should conditionally reverse the judgment and remand to the juvenile court for a new hearing on whether his case should be transferred to criminal court under current law; and (2) we should vacate his sentence so that, in the event his case returns to criminal court, the trial court can exercise its full discretion with respect to his request to strike the firearm enhancement. The People concede the first issue but dispute the second, arguing defendant forfeited the issue and, in any event, the record clearly indicates the trial court would not have changed its decision. As we next explain, we will conditionally reverse.
I
New Amenability Hearing Requirements
When the juvenile court transferred defendant to criminal court in February 2021, section 707 and the corresponding rule of the California Rules of Court required the petitioner to establish by a preponderance of the evidence that "the minor should be transferred to a court of criminal jurisdiction." (§ 707, subd. (a)(3), as amended by Stats. 2018, ch. 1012, § 1; Cal. Rules of Court, former rule 5.770(a).) Effective January 1, 2023, in Assembly Bill No. 2361, the Legislature amended section 707, adding the following language: "In order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (§ 707, subd. (a)(3), as amended by Stats. 2022, ch. 330, § 1.) "This changed the finding a juvenile court must make before ordering a transfer in two ways: (1) raising the standard of proof and (2) requiring a new specific finding regarding amenability to rehabilitation." (In re S.S. (2023) 89 Cal.App.5th 1277, 1284.) The Legislature again amended section 707, effective January 1, 2024, adding some additional subfactors as relevant here. (Stats. 2023, ch. 716, § 1.) The amended version of section 707 applies retroactively to this case. (In re S.S., at pp. 1288-1289.)
The parties agree that, given the amendments to section 707, we should conditionally reverse the judgment and remand the case for the juvenile court to determine, under the new standards, whether it would have transferred defendant's case to criminal court. We agree with the parties. At the prior hearing, the juvenile court applied the preponderance of the evidence standard and considered only the five factors in former section 707, without making an ultimate finding "that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court." (§ 707, subd. (a)(3).) Though the juvenile court followed the law in effect at the time, we apply the amended statute retroactively and conclude this was error. As the People's briefing concedes, "Because the juvenile court decided the ultimate question of suitability in the prosecution's favor under a lower standard of proof, the proper remedy is to order a conditional remand for a new transfer hearing applying the new, heightened standard." (See In re E.P. (2023) 89 Cal.App.5th 409, 416-417.) Accordingly, we will remand for the trial court to make the required determination under current law. We express no opinion about the merits of that determination.
We largely follow the disposition approved by our Supreme Court in Lara, supra, 4 Cal.5th at pages 309 through 310 and page 313, after amendments made by voter initiative required retroactive hearings under former section 707. (See former § 707, as amended by initiative, Gen. Elec. (Nov. 8, 2016), commonly known as Prop. 57.) We will conditionally reverse the trial court's judgment and order the juvenile court to conduct a hearing pursuant to section 707 to determine whether to transfer defendant from juvenile court to a court of criminal jurisdiction. (See Lara, at p. 310.) When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the appropriate prosecuting officer had originally filed a juvenile petition in juvenile court and had then moved to transfer defendant's cause to a court of criminal jurisdiction. (§ 707, subd. (a)(1); see Lara, at p. 310.) If, after conducting the hearing, the juvenile court determines by clear and convincing evidence that it would have transferred defendant to criminal court because defendant is not amenable to rehabilitation while under the jurisdiction of the juvenile court, then the judgment shall be reinstated. (§ 707, subd. (a)(3); see Lara, at p. 310.) If the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat defendant's conviction and the true jury finding on the enhancement as juvenile adjudications and impose an appropriate disposition within its discretion. (See Lara, at pp. 309-310.)
The" 'jury's conviction[], as well as its true finding[] as to the sentencing enhancement[], will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.'" (Lara, supra, 4 Cal.5th at pp. 309-310.)
II
Firearm Enhancement
Defendant also contends that our Supreme Court's decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado), requires that we vacate his sentence and remand for resentencing. Tirado held that Penal Code section 12022.53 permits a sentencing court to strike a Penal Code section 12022.53, subdivision (d) firearm enhancement found true by the jury and then impose a lesser uncharged enhancement in Penal Code section 12022.53. (Tirado, at p. 700.) Our Supreme Court recently further expanded this discretion in People v. McDavid (2024) 15Cal.5th 1015, allowing sentencing courts to impose uncharged lesser enhancements from Penal Code section 12022.5 as well. As directed, we have considered the trial court's denial of defendant's request to strike the enhancement in light of Salazar, which provided additional guidance about harmless error analysis when "the sentencing court was not aware of the scope of its discretionary powers at sentencing." (Salazar, supra, 15 Cal.5th at p. 425.) We conclude defendant forfeited the issue by not asking the trial court to impose a lesser uncharged enhancement in the trial court and, in any event, the record clearly indicates that remand would be a futile act.
A. Forfeiture
The People contend the trial court did not consider imposing a lesser uncharged enhancement because defendant did not make such a request at sentencing, thereby forfeiting the issue. Defendant responds that we should overlook his failure to raise the issue because our Supreme Court had not yet issued its opinion in Tirado and, "at the time of the hearing in the trial court, there was a split of authority on the issue." We disagree.
Generally, "[a] party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial." (People v. Gonzalez (2003) 31 Cal.4th 745, 751.)" '"' "The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." '" '" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) An exception to this forfeiture rule exists" 'when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.'" (People v. Black (2007) 41 Cal.4th 799, 810.) "In determining whether the significance of a change in the law excuses counsel's failure to object at trial, we consider the 'state of the law as it would have appeared to competent and knowledgeable counsel at the time of the trial.'" (Id. at p. 811.) Defense counsel need not object "where an objection would have been futile or wholly unsupported by substantive law then in existence" (People v. Perez (2020) 9 Cal.5th 1, 7-8), or "where existing law overwhelmingly said no such objection was required" (People v. Welch (1993) 5 Cal.4th 228, 238; see also People v. Fuhrman (1997) 16 Cal.4th 930, 949 (dis. opn. of Werdegar, J.) [arguing presumption that sentencing court was aware of its discretion should be overcome when Courts of Appeal had, "with near unanimity, declared that trial judges had no discretion"]).
The trial court held defendant's sentencing hearing on April 2, 2021, just shy of two years after the Court of Appeal decided in People v. Morrison (2019) 34 Cal.App.5th 217, that when a sentencing court exercised its then newly-granted discretion to strike or dismiss a firearm enhancement imposed pursuant to Penal Code section 12022.53, subdivision (d), the court had discretion to impose a lesser uncharged enhancement pursuant to Penal Code section 12022.53, subdivisions (b) and (c). (Morrison, at pp. 222-223.) By the time of defendant's hearing, two other districts of the Court of Appeal had disagreed with Morrison (People v. Tirado (2019) 38 Cal.App.5th 637, revd. and sub. opn. by Tirado, supra, 12 Cal.5th 688; People v. Garcia (2020) 46 Cal.App.5th 786, judg. vacated and cause remanded for further consideration in light of Tirado, supra, 12 Cal.5th 688) and another had disagreed with Morrison, but not unanimously (People v. Valles (2020) 49 Cal.App.5th 156, 170-172 (conc. opn. of Menetrez, J.), judg. vacated and cause remanded for further consideration in light of Tirado, supra, 12 Cal.5th 688; see also People v. Yanez (2020) 44 Cal.App.5th 452, judg. vacated and cause remanded for further consideration in light of Tirado, supra, 12 Cal.5th 688). Our Supreme Court had granted review in People v. Tirado approximately 17 months prior to defendant's sentencing hearing. (People v. Tirado, review granted Nov. 13, 2019, S257658.)
Given the state of the law at the time, it would not have been futile or wholly unsupported by existing law for defense counsel to ask the trial court to impose a lesser uncharged enhancement after striking the imposed enhancement. To the contrary, the issue had already been raised many times and had been considered meritorious by the first published appellate opinion to address it. More importantly, our Supreme Court had taken up the issue, meaning trial counsel should have been aware of the need to raise the issue in the trial court in order to benefit from the eventual decision in Tirado. In these circumstances, we conclude defendant forfeited this contention by not asking the trial court to exercise its discretion to impose a lesser uncharged enhancement at the sentencing hearing. However, as we next explain, we see no prejudice from counsel's failure to preserve this argument.
B. Prejudice
Even had defendant not forfeited this contention, and assuming the trial court was not aware of its discretion to impose a lesser uncharged enhancement, we conclude the record clearly indicates the court would not have done in any event.
"A court acting while unaware of the scope of its discretion is understood to have abused it." (Tirado, supra, 12 Cal.5th at 694.) Thus, assuming the trial court was not aware of its discretion to impose a lesser enhancement after striking a Penal Code section 12022.53, subdivision (d) enhancement, that court abused its discretion by sentencing defendant while unaware of the scope of its discretion. We then must consider whether the error requires us to vacate defendant's sentence. (Cal. Const., art. VI, § 13.) When a court sentences without full awareness of its discretionary powers," 'the appropriate remedy is to remand 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. Flores (2020) 9 Cal.5th 371, 432 (Flores).)
Here, remand would be an idle act. Having already found defendant to be one of the rare juveniles described in Miller" 'whose crime reflects irreparable corruption'" (see Miller, supra, 567 U.S. at pp. 479-480), and for whom LWOP is the appropriate sentence, the trial court then gave additional reasons why defendant's characteristics and crimes warranted imposition of the consecutive term of 25 years to life in prison mandated by the Penal Code section 12022.53, subdivision (d) enhancement. First, the court expressly ruled out "reducing or otherwise in some fashion or another ameliorating" defendant's sentence by comparing him to other juveniles who had "demonstrated dramatic reformation," whereas defendant had demonstrated an "entrenched antisocial personality." Second, the court stated that the facts underlying the gun enhancement were "on the end of the continuum of the worst of those [Penal Code section] 12022.53 findings" the court had handled. Third, the court emphasized that the enhancement was an important part of defendant's sentence because, in the event defendant's LWOP sentence was ever reduced, defendant's offense warranted the additional life sentence. Finally, even assuming defendant's LWOP sentence remained, the court concluded that "it would fly in the face of all the other evidence and -- all the evidence in this case, and in particular of the victim of this offense and his memory" to not impose the enhancement prescribed for defendants who cause great bodily injury or death, where here defendant had shot the victim to death. Thus, we conclude the record clearly indicates the trial court would not have struck the Penal Code section 12022.53, subdivision (d) enhancement had it known it could then impose a lesser enhancement.
The recent amendments to Penal Code section 1385 do not affect our analysis because the Legislature expressly declined to give those amendments retroactive effect. (Pen. Code, § 1385, subd. (c)(7), as amended by Stats. 2021, ch. 721, § 1 [this subdivision shall apply to all sentencings occurring after January 1, 2022; see also Stats. 2022, ch. 58, § 15 [correcting drafting errors].) Our harmless error analysis determines what the trial court would have done had it been fully aware of its discretion at the time of the April 2021 sentencing hearing. (See Flores, supra, 9 Cal.5th at p. 432.) A law that only applies to sentencing hearings occurring after January 1, 2022, does not factor into this determination. In other words, because we are not remanding for resentencing, there is no resentencing hearing at which the new law would apply.
The recent decision in Salazar does not change this analysis. Defendant highlights our Supreme Court's caution in Salazar that "when the applicable law governing the defendant's sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing." (Salazar, supra, 15 Cal.5th at p. 425.) Defendant correctly identifies why we apply a higher prejudice standard in this situation, but in this case, unlike in Salazar, there is no speculation involved. The sentencing court would not have reduced the enhancement. The record in this particular case meets the higher standard mandated by Salazar.
In Salazar, the sentencing court had selected a middle term prison sentence as the principal term and imposed a consecutive sentence for the subordinate term. (Salazar, supra, 15 Cal.5th at p. 423.) While the defendant's appeal was pending, the Legislature had amended the sentencing statute to require the sentencing court to impose a lower term sentence unless the court found that the aggravating circumstances outweigh the mitigating circumstances such that imposition of the lower term would be contrary to the interests of justice. (Ibid.) The People agreed the sentencing court had erred because it could not have been aware of its discretion at the time of sentencing, but argued the court would have made the required finding and imposed a middle term if it had been aware of the new requirement. (Id. at pp. 424, 426.)
To support this assertion, the People pointed to the sentencing court's reasons for selecting the middle term sentence, including the defendant's" 'long and continuous criminal history,'" and the significant injuries caused to the victim in the case. (Salazar, supra, 15 Cal.5th at p. 426.) Our Supreme Court concluded this did not constitute a clear indication that the trial court would select the middle term sentence under the amended statute because: (1) "though the sentencing court referenced his extensive criminal history, it also noted several mitigating factors in conjunction with that history"; (2) the sentencing court hardly mentioned the nature of the crime, making only "a cursory reference to the extended duration of the crime"; and (3) the sentencing court mentioned several other mitigating factors. (Id. at pp. 427-428.)
The Salazar court also rejected the People's argument that the sentencing court had demonstrated its intent to impose a middle term sentence by refusing to strike the defendant's prior serious felony conviction, thereby doubling the defendant's sentence, and by imposing consecutive sentences. (Salazar, supra, 15 Cal.5th at pp. 428-429.) The court contrasted these sentencing decisions with the sentencing court in Flores, supra, 9 Cal.5th at page 432, which had "explicitly said it thought it' "just[]"' for the defendant to receive a death sentence-'the most severe sentence available under California law.'" (Salazar, at p. 431.) In comparison, the Salazar court concluded, "[t]he sentencing court's statements here do not provide this type of clear indication of intent." (Ibid.)
Unlike in Salazar, in this case, the trial court did impose "the most severe sentence available under California law," life without the possibility of parole. The court then determined that defendant also deserved a consecutive sentence of 25 years to life in prison for the firearm enhancement because his firearm use was one of the worst examples the court had dealt with. Also distinct from Salazar, the court here did not equivocate in its reasoning or find any mitigating factors. Simply put, this record closely resembles the record in Flores, not Salazar. We conclude this record leaves no doubt but that the court would have declined to strike defendant's firearm enhancement even if it had considered its discretion to impose a lesser uncharged enhancement instead.
DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the juvenile court with directions to conduct a transfer hearing in accordance with applicable law as discussed in this opinion. The juvenile court shall hold the hearing no later than 90 days from the filing of the remittitur, unless the parties stipulate to a later date or the juvenile court finds good cause exists to hold the hearing on a later date. If, after conducting the hearing, the juvenile court determines that it would have transferred defendant to criminal court, then the judgment shall be reinstated. If the juvenile court finds that it would not have transferred defendant to a court of criminal jurisdiction, then defendant's conviction and the true jury finding on the enhancement shall be deemed juvenile adjudications. The juvenile court shall then conduct a dispositional hearing within the usual timeframe.
We concur: Earl, P. J., Mesiwala, J.