People v. Richardson CA2/7

Filed 1/11/21 P. v. Richardson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B305789
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA042917)
v.
LADERICK RICHARDSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell and Kathleen Blanchard,
Judges. Reversed and remanded with directions.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
______________
Laderick Richardson appeals from an order denying his
petition under Proposition 47, the Safe Neighborhoods and
Schools Act (as approved by voters, Gen. Elec. (Nov. 4, 2014)), to
recall his sentence and reclassify his felony conviction for grand
theft as a misdemeanor. The trial court denied the petition on
the ground Richardson was not eligible for resentencing because
he was also convicted of attempted voluntary manslaughter,
which the court found was a disqualifying felony under
Proposition 47. Richardson contends, the People concede, and we
agree attempted voluntary manslaughter is not a disqualifying
felony. We reverse and remand for the superior court to grant
Richardson’s Proposition 47 petition unless it finds resentencing
Richardson to a misdemeanor would pose an unreasonable risk of
danger to public safety.
FACTUAL AND PROCEDURAL BACKGROUND
A. Richardson’s Commitment Offense, Sentencing, and Appeal
In 2008 Richardson was engaged to Brianna Seiler, and
they had a two-year-old son.1 In the months prior to July 2008,
Richardson had become controlling and aggressive. In January
or February, Richardson held a knife to Seiler’s throat and
threatened to kill her. On the night of July 26, 2008 Richardson
slapped Seiler across her face, headbutted her, and punched her
in the left eye, shattering her eye socket. Seiler dropped to the
floor and lost consciousness. During the incident, Seiler
attempted to call the police, but Richardson grabbed the phone
1 Our summary of the facts is taken from People v.
Richardson (July 18, 2011, B223204) (nonpub. opn.)
(Richardson I).
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and threw it across the room. A few hours later Richardson
withdrew $400 from an ATM using Seiler’s debit card. When
paramedics and sheriff’s deputies arrived the next morning, they
discovered Seiler with her neck slashed open, a bloody steak
knife on the kitchen island, and blood throughout the house.
After a jury trial, Richardson was convicted of
(1) attempted voluntary manslaughter (Pen. Code,2 §§ 192,
subd. (a), 664; count 1), (2) corporal injury to a child’s parent
(§ 273.5, former subd. (a); count 2), (3) assault with a deadly
weapon (§ 245, subd. (a)(1); count 3), (4) mayhem (§ 203; count 4),
(5) dissuading a witness from reporting a crime (§136.1, subd.
(b)(1); count 5), and (6) grand theft (§ 487, former subd. (a); count
6). The jury also found true Richardson used a deadly weapon
and inflicted great bodily injury. The trial court sentenced
Richardson to an aggregate term of 19 years four months in state
prison, including a consecutive term of eight months (one-third
the middle term) on count 6 for grand theft. We affirmed
Richardson’s convictions on appeal but struck the deadly weapon
enhancement on count 2. (Richardson I, supra, B223204.)
B. Richardson’s Proposition 47 Petition
On August 15, 2019 the superior court received
Richardson’s petition to recall his sentence and reclassify his
theft conviction as a misdemeanor under Proposition 47.3 On
2 Further statutory references are to the Penal Code.
3 The abstract of judgment incorrectly showed Richardson
was convicted of misdemeanor petty theft under section 484,
former subdivision (a), although it correctly reflected his eight-
month sentence. The prosecutor opposed the petition on the
3
February 3, 2020 the superior court denied Richardson’s petition,
finding Richardson was ineligible for resentencing under section
1170.18, subdivision (i), because his conviction of attempted
voluntary manslaughter was a disqualifying felony within the
meaning of section 667, subdivision (e)(2)(C)(iv)(IV), which
includes “[a]ny homicide offense, including any attempted
homicide offense, defined in Sections 187 to 191.5, inclusive.”
Richardson timely appealed.
DISCUSSION
“Approved by voters in 2014, Proposition 47 . . . reduces
many common theft- and drug-related offenses from felonies to
misdemeanors for offenders who do not have prior convictions for
specified violent or serious offenses. The measure also permits
eligible defendants who were serving felony sentences as of
Proposition 47’s effective date to obtain the benefit of these
changes by petitioning for resentencing.” (People v. DeHoyos
(2018) 4 Cal.5th 594, 597; accord, People v. Page (2017) 3 Cal.5th
1175, 1179.) If the court determines the petitioner meets the
criteria for reclassification of his or her conviction as a
misdemeanor, the “court must grant a resentencing petition
unless the court determines that resentencing the defendant
ground the offense was “already [a] misdemeanor.” The superior
court (Judge Daviann L. Mitchell) denied the petition and
ordered the abstract corrected, but the court did not address the
merits of Richardson’s petition. Richardson filed an objection to
the court’s order, leading to a second review by Judge Kathleen
Blanchard, who had presided over Richardson’s trial and
sentencing.
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‘would pose an unreasonable risk of danger to public safety.’”
(DeHoyos, at p. 597; see § 1170.18, subd. (b).)
As discussed, Richardson was convicted of felony grand
theft in violation of section 487, former subdivision (a). However,
Proposition 47 created a new petty theft offense in section 490.2,
subdivision (a), which provides, “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,” unless the defendant has one or
more specified prior theft offenses or a conviction of a sex offense
requiring registration. We found in Richardson I, and the People
do not dispute, Richardson withdrew $400 on Seiler’s debit card,
which under section 490.2 is a misdemeanor. Therefore,
Richardson qualifies for relief under section 1170.18, subdivision
(a), as a person who as of the effective date of Proposition 47 “was
serving a sentence for a conviction . . . of a felony or felonies who
would have been guilty of a misdemeanor” had Proposition 47
been in effect at the time of his offense.
Notwithstanding Richardson’s eligibility, however, section
1170.18, subdivision (i), provides that relief is not available to a
petitioner who has been convicted of specified felonies, including
conviction of “an offense specified in clause (iv) of subparagraph
(C) of paragraph (2) of subdivision (e) of Section 667 or for an
offense requiring registration pursuant to subdivision (c) of
Section 290.” Section 667, subdivision (e)(2)(C)(iv)(IV), in turn,
includes “[a]ny homicide offense, including any attempted
homicide offense, defined in Sections 187 to 191.5, inclusive.” As
Richardson contends, the People concede, and we agree,
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attempted voluntary manslaughter is not included in the list of
disqualifying prior convictions because it is a violation of section
192, subdivision (a), which does not fall within the range of
covered homicide offenses.
Accordingly, the superior court erred in finding Richardson
was ineligible for relief under Proposition 47. We remand for the
superior court to determine whether resentencing Richardson to
a misdemeanor “would pose an unreasonable risk of danger to
public safety” within the meaning of section 1170.18, subdivision
(b). If not, “petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor.” (§ 1170.18, subd. (b).)
DISPOSITION
The order denying Richardson’s Proposition 47 petition is
reversed. We remand for the superior court to grant Richardson’s
petition unless it finds resentencing Richardson to a
misdemeanor would pose an unreasonable risk of danger to
public safety.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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