In re P.J. CA1/3 ( 2015 )

Filed 9/15/15 In re P.J. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re P.J., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
A144493
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J13-00907)
P.J.,
Defendant and Appellant.
P.J. appeals from the juvenile court’s denial of his motion to reduce his sustained
petition for attempted felony grand theft to a misdemeanor, pursuant to Penal Code1
section 1170.18, part of The Safe Neighborhood and Schools Act (Prop. 47, as approved
by voters, Gen. Elec. (Nov. 4, 2014)). The Attorney General acknowledges, in
conformity with the recent decision of Division One of this court (T.W. v. Superior Court
(2015) 236 Cal. App. 4th 646), that the juvenile court erred, and that the matter should be
remanded to the juvenile court for further proceedings pursuant to section 1170.18. We
shall vacate the challenged order and remand for further proceedings.
Background
In a petition under Welfare and Institutions Code section 602, P.J., then 15 years
of age, was alleged to have committed two counts of attempted second degree robbery
1
All statutory references are to the Penal Code unless otherwise noted.
1
(§§ 664, 211, 212.5, subd. (c)). At the dispositional hearing, a third count was added to
the petition alleging that P.J. had committed attempted felony grand theft (§§ 664, 487,
subd. (c)). P.J. admitted the new charge, the other two counts were dismissed, and P.J.
was declared a ward of the court and placed on probation. 2 Subsequently P.J. filed a
motion under section 1170.18 to reduce the sustained felony violation to a misdemeanor.
After extensive briefing and multiple hearings, the court found that the disposition of the
petition was the result of a plea bargain and denied the motion on the ground that section
1170.18 does not apply in the case of a plea bargain. P.J. has timely appealed from the
denial of the motion.
Discussion
Section 1170.18 provides in relevant part: “(a) A person currently serving a
sentence for a conviction, whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under the act that added this section (‘this act’) had
this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections . . . 490.2 . . . as those sections have been
amended or added by this act. [¶] (b) Upon receiving a petition under subdivision (a), the
court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the
petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be
recalled and the petitioner resentenced to a misdemeanor pursuant to Sections . . . 490.2
[as] those sections have been amended or added by this act, unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety. . . .” Subdivision (c) states that “ ‘unreasonable risk of danger to
public safety’ means an unreasonable risk that the petitioner will commit a new violent
2
According to the probation report, P.J. had threatened two other youths with a gun and
had unsuccessfully attempted to steal one of the youth’s bicycle. Between the date of the
disposition and the ruling on the motion before us, P.J. admitted two probation violations,
which lead to commitments to juvenile hall and to Orin Allen Youth Rehabilitation
Facility, and P.J. was charged with a third violation that ultimately was dismissed.
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felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667.”
Section 490.2, also added by Proposition 47, provides in relevant part:
“(a) Notwithstanding Section 487 or any other provision of law defining grand theft,
obtaining any property by theft where the value of the money, labor, real or personal
property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty
theft and shall be punished as a misdemeanor . . . .”
As implicitly recognized in T.W., Proposition 47 applies to violations established
in juvenile delinquency proceedings. (T.W. v. Superior Court, supra, 236 Cal.App.4th at
p. 650.) And as the court there held under circumstances similar to those in the present
case, “section 1170.18 clearly and unambiguously states, ‘A person currently serving a
sentence for a conviction, whether by trial or plea’ of eligible felonies may petition for
resentencing to a misdemeanor. (Id., subd. (a), italics added.) The only persons
categorically ineligible are those with prior convictions for an enumerated handful of
serious crimes, such as murder, rape or child molestation. (See §§ 490.2, subd. (a), 667,
subd. (e)(2)(C)(iv) [listing the disqualifying violent convictions].) After a petitioner is
found to be eligible, the trial court must grant the petition for reduction of sentence unless
the court finds in its discretion that the petitioner poses an unreasonable risk of
committing a very serious crime.” (T.W., supra, at p. 652.)
Since there was no property taken in the attempted grand theft which P.J. was
found to have committed, section 1170.18 in conjunction with section 490.2 requires the
court to reduce P.J.’s offense to a misdemeanor, whether or not the disposition resulted
from a plea agreement, unless the court determines that P.J. poses an unreasonable risk of
danger to public safety. P.J. contends that since “nothing in the record indicates that [P.J.]
is at risk of committing the violent felonies listed in section 667, subdivision
(e)(2)(C)(iv),” this court should order that his sentence be reduced to a misdemeanor.
However, although the prosecutor did not press the contention below that P.J. poses such
a risk, we believe that this issue should be determined in the first instance in the juvenile
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court. Section 1170.18, subdivision (b) confers on the trial court broad discretion to
determine whether the individual poses an unreasonable risk of danger to public safety.3
Disposition
The order denying the motion to reduce P.J.’s offense to a misdemeanor is
vacated, and the matter is remanded to the juvenile court to determine whether P.J. poses
an unreasonable risk of danger to public safety and based on that determination to grant
or deny the motion in conformity with this opinion.
_________________________
Pollak, Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
3
Section 1170.18, subdivision (b) concludes as follows: “In exercising its discretion, the
court may consider all of the following: (1) The petitioner’s criminal conviction history,
including the type of crimes committed, the extent of injury to victims, the length of prior
prison commitments, and the remoteness of the crimes. (2) The petitioner’s disciplinary
record and record of rehabilitation while incarcerated. (3) Any other evidence the court,
within its discretion, determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.”
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