Panel mulls whether ban on trying minors as adults is retroactive

Should a man convicted of double murder as a teenager in 2014 be freed under a 2019 law barring district attorneys from prosecuting anyone under 16 as an adult?

The 3rd District Court of Appeal heard arguments on the issue on Wednesday. A trial court convicted Daniel Marsh in 2014 of the brutal stabbing deaths of an elderly couple in their homes the previous year. He was 15 at the time of his crime. People v. Marsh, C088553 (Cal. App. 3rd, filed Dec. 21, 2018).

In 2018, Gov. Jerry Brown signed SB 1391. Building on criminal justice changes begun in 2016, the law removed "the authority of a district attorney to make a motion to transfer a minor from juvenile court" if they committed the crime and were apprehended before their 16th birthday. Marsh will turn 25 next year, potentially making him eligible for release under the law.

But courts have since grappled with whether the law applies retroactively and, if so, under what time constraints. Marsh's attorney, Oakland-based Mark D. Greenberg, began his argument by noting the California Supreme Court has already ruled SB 1391 is constitutional. O.G. v. Superior Court, 2021 DJDAR 1807 (Cal., Feb. 25, 2021).

Deputy Attorney General Rachelle A. Newcomb focused on the brutal nature of Marsh's crime and its toll on the community.

"Appellant's murders in this case have resulted in endless challenges for the victims' family, friends, and for the community," Newcomb said. "Thankfully, the law and the facts that ensure appellant's continued incarceration are uncomplicated and straightforward, as this court seems to recognize."

Greenberg cited several cases he said showed the law was retroactive. He then argued Marsh's case is covered by In re: Estrada, 63 Cal. 2d 740 (1965). That case found that a law should be considered retroactive if it ameliorates a sentence, but only if the judgment at issue is not considered final.

Justice Louis Mauro then interjected, stating Greenberg appeared to be taking "a unique procedural posture." He noted Marsh has already challenged his conviction once in the 3rd District. The court reversed and remanded the conviction in early 2018, before Brown signed SB 1391, ordering the lower court to hold a hearing to determine if Marsh's trial as an adult was appropriate. The lower court found it was, and the Supreme Court declined to review. People v. Marsh, C078999 (Cal. App. 3rd, filed Feb. 2, 2015).

"It did not create a new, appealable judgment," Mauro said of the final disposition in that appeal. "It reinstated the existing judgment that this court had already conditionally affirmed."

Greenberg replied the Supreme Court specified it denied review without prejudice in regards to SB 1391 and never determined if the judgment was final under Estrada.

"There is an issue to appeal: Does Estrada apply?" Greenberg replied.

He then sparred for several minutes with Justice Andrea Lynn Hoch over whether Marsh's conviction was considered final under Estrada. Greenberg finally conceded "there was no resentencing" in the case.

Newcomb argued for the state that the "date of finality" can be established to deny reconsideration. This is due to the February 2018 ruling in Marsh's first appeal, she said, which resulted in the lower court determining he "was unfit to be tried in juvenile court." She then said Marsh's conviction and sentence were finalized in August 2018, well before the law went into effect on Jan. 1, 2019.

The court took the case under submission.