People v. Adelmann

Filed 5/10/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Appellant, )
) S237602
v. )
) Ct.App. 4/2 E064099
STEVEN ANDREW ADELMANN, )
) Riverside County
Defendant and Respondent. ) Super. Ct. No. SWF1208202
____________________________________)

Proposition 47 lowered the penalty for several crimes and provided a
mechanism for resentencing under the more lenient provisions. The resentencing
statute provides that a person “may petition for a recall of sentence before the trial
court that entered the judgment of conviction.”1 (Pen. Code,2 § 1170.18, subd.
(a).) Unrelated to the changes enacted by Proposition 47, if a defendant has been
placed on probation in one county but permanently resides in another, the case
may be transferred to the county of residence. (§ 1203.9.) The question here is
where a defendant, whose probation case has been transferred, must file a petition
for resentencing. We hold that the petition should be filed in the original
sentencing court.

1 We hereafter refer to “the trial court that entered the judgment of
conviction” (Pen. Code, § 1170.18, subd. (a)) as “the original sentencing court” or,
simply, “the sentencing court.”
2 Unspecified statutory references will be to the Penal Code.

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 I. BACKGROUND
In August 2012, defendant pled guilty in San Diego County Superior Court
to felony drug possession and driving under the influence of drugs.3 The San
Diego court placed defendant on formal felony probation for three years. Because
defendant lived in Riverside County, the court transferred his case there. (See
§ 1203.9; Cal. Rules of Court, rule 4.530.) In January 2015, defendant filed a
petition in Riverside County to recall his felony sentence and impose a
misdemeanor term under Proposition 47. (§ 1170.18.) The People opposed the
petition on the sole ground that it should have been filed in San Diego. Defense
counsel represented that he had tried to file the petition there but “the San Diego
County Court Clerk rejected the filing and said they had no file. The whole matter
was transferred to Riverside County.” The prosecutor did not dispute defense
counsel’s representation but maintained that section 1170.18 required a filing in
San Diego. The Riverside court granted defendant’s petition and the People
appealed. The Court of Appeal affirmed.
II. DISCUSSION
The People4 renew their argument that section 1170.18 required defendant
to file his resentencing petition in San Diego. Defendant counters that, under the
probation transfer statute, because the court of the receiving county had accepted
“the entire jurisdiction over the case” (§ 1203.9, subd. (b)), Riverside was the
proper venue for his petition. The dispute requires us to construe the two statutes
and harmonize them if possible. (926 North Ardmore Ave., LLC v. County of Los

3 Health and Safety Code section 11350, subdivision (a), Vehicle Code
section 23152, former subdivision (a) (now subdivision (f)). Defendant also
admitted a prior conviction for driving under the influence. (Veh. Code, § 23540,
subd. (a).)
4 The People are represented here by the Riverside County District Attorney.

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Angeles (2017) 3 Cal.5th 319, 328.) The fundamental task is to determine the
enactors’ intent and to effect their intended purpose. (People v. Briceno (2004) 34
Cal.4th 451, 459.) We give the statutory language its plain and commonsense
meaning, and consider the words in the context of the entire scheme and related
statutes. (Riverside County Sheriff’s Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632;
see People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

A. Proposition 47
Enacted in 2014, Proposition 47, known as the Safe Neighborhoods and
Schools Act (the Act), “reduc[ed] penalties for certain theft and drug offenses by
amending existing statutes.” (People v. Gonzales (2017) 2 Cal.5th 858, 863
(Gonzales).) “One of Proposition 47’s primary purposes is to reduce the number
of nonviolent offenders in state prisons, thereby saving money and focusing prison
on offenders considered more serious under the terms of the initiative.” (Harris v.
Superior Court (2016) 1 Cal.5th 984, 992; see Gonzales, at p. 870.)
Along with other penal provisions, the Act amended Health and Safety
Code section 11350, subdivision (a), reducing simple drug possession from a
felony to a misdemeanor. (See Voter Information Guide, Gen. Elec. (Nov. 4,
2014) text of Prop. 47, § 11, pp. 72-73.) Section 1170.18, subdivision (a), in turn,
allows a defendant who is currently serving a felony sentence and “who would
have been guilty of a misdemeanor . . . had this act been in effect at the time of the
offense” to file a petition “before the trial court that entered the judgment of
conviction in his or her case to request resentencing in accordance with” the
sections amended to provide for more lenient penalties.5 If an offense “would

5 Those revised statutes include “Sections 11350, 11357, or 11377 of the
Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the
Penal Code . . . .” (§ 1170.18, subd. (a).)

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have been a misdemeanor under the Act, resentencing is required unless ‘the court,
in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.’ (§ 1170.18, subd. (b).) A person
who has already completed a felony sentence may petition to have his conviction
designated a misdemeanor.[6] (§ 1170.18, subds. (f), (g).)”7 (Gonzales, supra, 2
Cal.5th at p. 863.) Under the Act, “[i]f the court that originally sentenced the
petitioner is not available, the presiding judge shall designate another judge to rule
on the petition or application.” (§ 1170.18, subd. (l).)

B. Inter-county Transfer Provisions
Section 1203.9 was originally enacted in 1935, thus long predating
Proposition 47’s passage. (Stats. 1935, ch. 604, § 10, p. 1714.) Section 1203.9,
subdivision (a)(1) reads: “Except as provided in paragraph (3), whenever a person
is released on probation or mandatory supervision, the court, upon noticed motion,
shall transfer the case to the superior court in any other county in which the person
resides permanently, . . . unless the transferring court determines that the transfer
would be inappropriate and states its reasons on the record.” As noted, section
1203.9, subdivision (b) states: “The court of the receiving county shall accept the
entire jurisdiction over the case effective the date that the transferring court orders
the transfer.” (Italics added.) Section 1203.9, subdivision (a)(3) requires the
transferring court to “determine the amount of restitution before the transfer” or to
“complete the determination as soon as practicable” after the transfer. “In all other
aspects, except as provided in subdivisions (d) and (e), the court of the receiving

6 A court may rule on a reclassification petition without holding a hearing
unless a defendant requests one. (§ 1170.18, subd. (h).)
7 A defendant who has a prior conviction for certain designated offenses is
not eligible for resentencing under the Act. (§ 1170.18, subd. (i).)

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county shall have full jurisdiction over the matter upon transfer . . . .”8 (§ 1203.9,
subd. (a)(3).)
The Judicial Council has promulgated rules to implement section 1203.9.
Those rules also provide that upon transfer, “the receiving court must accept the
entire jurisdiction over the case.” (Cal. Rules of Court, rule 4.530(g)(3).) “[T]he
transferring court must transmit the entire original court file to the receiving court
in all cases in which the supervisee is the sole defendant,” or, in a case with
multiple defendants, “certified copies of the entire original court file.”9 (Cal.
Rules of Court, rule 4.530(g)(5).) The probation officer of the transferring county
“must transmit, at a minimum, any court orders, probation or mandatory
supervision reports, and case plans to the probation officer of the receiving
county.” (Cal. Rules of Court, rule 4.530(g)(6).)

C. Court of Appeal Decisions
To date, two published Court of Appeal opinions have considered the
interplay between sections 1170.18 and 1203.9. In People v. Curry (2016) 1
Cal.App.5th 1073 (review granted Nov. 9, 2016, S237037) (Curry), the defendant
pled no contest to second degree burglary in Napa County. At sentencing, the
probation officer indicated Curry was already on postrelease community
supervision in Alameda County and recommended a transfer of the Napa case to
Alameda under section 1203.9. The trial court did so. (Curry, at p. 1076.) After
passage of Proposition 47, Curry filed a resentencing petition in Alameda County.
The court denied the petition, holding that “defendant had to seek relief in Napa

8 Subdivisions (d) and (e) of section 1203.9 detail how court-ordered fines
and fees should be collected and enumerates other rules regarding the charging
and collection of money from transferred probationers.
9 Exhibits and payment records need not be transferred. (Cal. Rules of
Court, rule 4.530(g)(5).)

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County because that was where she received the sentence she was now petitioning
to have reduced.” (Curry, at p. 1077.)
The Curry court affirmed, rejecting the defendant’s argument that Alameda
County was the proper venue because it had full jurisdiction after the transfer from
Napa County. Curry reasoned that the resentencing statute, which directs petitions
be presented to “the trial court that entered the judgment of conviction”
(§ 1170.18, subds. (a), (f)), was obviously intended to have those petitions decided
“by the judge with a presumed knowledge of the underlying circumstances.
[Citation.] Clearly, the judge who presided over a petitioner’s trial, or . . . guilty
plea . . . would be best placed to decide whether ‘resentencing the petitioner would
pose an unreasonable risk of danger to public safety.’ ” (Curry, supra, 1
Cal.App.5th at pp. 1080-1081, fn. omitted.) Finding the language of Proposition
47 unambiguous, Curry noted: “The construction urged by defendant would have
petitions ruled on by judges who have no connection to, or memory of, the details
of the underlying conviction. Although such might not be an absurd result . . . it is
one clearly inconsistent with the voters’ plain language and obvious intent.
[Citations.] All doubts must be resolved in favor of the initiative. . . . Defendant’s
position that the Alameda court could serve the function intended by [section
1170.18,] subdivisions (a) and (f) cannot be accepted because it would nullify the
utility of those provisions with respect to probationers.” (Id. at pp. 1081-1082.)
The Court of Appeal in our case acknowledged, but disagreed with, Curry’s
analysis. It reasoned that “a defendant seeking Proposition 47 relief may waive
his right to be sentenced by a particular judge in a particular county, something he
has done in this instance by filing his petition in Riverside Superior Court.”
(People v. Adelmann (2016) 2 Cal.App.5th 1188, 1194, review granted Nov. 9,
2016, S237602 (Adelmann).) The court also concluded that allowing the receiving
county to entertain the recall petition best harmonized Proposition 47 and section

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1203.9. (Adelmann, at p. 1195; see discussion post.) “By allowing the
‘concurrent operation’ of both section 1203.9 and section 1170.18, a probationary
defendant can waive his right to be resentenced by the same trial court and obtain
expeditious relief in the court that has entire jurisdiction over his case.” (Id. at p.
1196.)10

D. A Resentencing Petition Should Be Filed in the Original Sentencing
Court
The People argue that, under the plain language of section 1170.18, a
resentencing petition must be filed with the court where defendant was sentenced
in the first instance. If there is a conflict between the resentencing and
probationary transfer statutes, the resentencing provision takes precedence
“because it is a more recent and more specific statute.”
We agree. Under the resentencing statute, a person “who would have been
guilty of a misdemeanor under the act that added this section . . . 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” Proposition 47. (§ 1170.18, subd. (a), italics
added.) The word “may” is “usually permissive” (Hogya v. Superior Court (1977)
75 Cal.App.3d 122, 133), but use of that word here refers to what a person eligible
for resentencing may do. A defendant is not required to seek relief, but if he or
she chooses to do so, the statute directs that a resentencing petition be filed in the

10 The Court of Appeal’s decision was relied on in In re I.S. (2016) 6
Cal.App.5th 517, to conclude by analogy that a juvenile court has jurisdiction to
consider a Proposition 47 recall petition if it accepted a transfer of jurisdiction
under Welfare and Institutions Code section 750, providing for “the entire case” to
be transferred. (In re I.S., at pp. 522-524.) For reasons we explain below, we
disapprove In re I.S., supra, 6 Cal.App.5th 517 to the extent it is inconsistent with
our decision here.

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original sentencing court. Indeed, section 1170.18, subdivision (l) confirms this
understanding: “If the court that originally sentenced the petitioner is not
available, the presiding judge shall designate another judge to rule on the petition
or application.” (Italics added.) The presiding judge of the superior court has
authority to “distribute the business of the court among the judges.” (Gov. Code,
§ 69508; see Cal. Rules of Court, rule 10.603(b)(1)(B).) The presiding judge of
one county does not customarily assign cases to judges in other jurisdictions. The
language of subdivision (l) reflects an intent that, even in the case of
unavailability, another judge in the same county will rule on a resentencing
petition. Nothing in the language of Proposition 47, or any of the statutes it
amended, mention the probationary transfer scheme of Penal Code section 1203.9.
To the extent section 1170.18 requires a court to assess whether a defendant
“would pose an unreasonable risk of danger to public safety” (§ 1170.18, subd.
(b)), the resentencing statute presumes the ruling court and interested parties will
have some familiarity with the defendant.11 The sentencing court itself may have
knowledge of a defendant’s case, as would the original prosecuting agency and
defense counsel. By contrast, a court accepting a transfer under section 1203.9
would, at most, have some awareness of a defendant’s progress on probation. For
any other aspect of the case, the receiving court, as well as the prosecution and
defense, would be reliant on a cold court file. Indeed, this case is remarkable for
the consensus it has garnered. The Riverside County District Attorney’s Office,
along with amici curiae California Public Defenders Association and the Riverside

11 An “unreasonable risk of danger to public safety” is defined as “an
unreasonable risk that the petitioner will commit a new violent felony within the
meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667.” (§ 1170.18, subd. (c).)

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County Public Defender’s Office, all urge that the proper court to rule on a
resentencing petition is the original sentencing court. This agreement among
adversaries reflects the reality that a decision maker with knowledge of the case
and the defendant can benefit both sides. As Curry reasoned, “The construction
urged by defendant would have petitions ruled on by judges who have no
connection to, or memory of, the details of the underlying conviction.” (Curry,
supra, 1 Cal.App.5th at p. 1081.)
Sections 1170.18 and 1203.9 cannot be reconciled. In such a case, “later
enactments supersede earlier ones [citation], and more specific provisions take
precedence over” the more general. (Collection Bureau of San Jose v. Rumsey
(2000) 24 Cal.4th 301, 310; see State Dept. of Public Health v. Superior Court
(2015) 60 Cal.4th 940, 960.) On the question of venue, Proposition 47 is both
more recent and more specific than the probation transfer statute. Section 1203.9,
originally enacted in 1935, is a long-standing general statute addressing the
transfer of probationary supervision. Although it confers “the entire jurisdiction
over the case” to a receiving county (§ 1203.9, subd. (b)), the statute recognizes
several exceptions to the receiving court’s authority over the case. Section
1170.18, on the other hand, prescribes a particular procedure for resentencing of
offenses after Proposition 47, and explicitly provides that petitions for relief
should be filed “before the trial court that entered the judgment of conviction.”
(§ 1170.18, subd. (a).) This focused language controls over the more general
provisions of section 1203.9. (Cf. People v. Marks (2015) 243 Cal.App.4th 331,
335 [affirming denial of a resentencing petition where the defendant filed a
petition in Riverside County for resentencing of prior Los Angeles County
convictions].)
People v. Klockman (1997) 59 Cal.App.4th 621, does not aid defendant.
Klockman was placed on felony probation by the El Dorado County Superior

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Court. He subsequently pled guilty to two unrelated felony counts in Placer
County. That court, in addition to sentencing him on the Placer County charges,
purported to revoke Klockman’s El Dorado County probation and impose a prison
term on that count. (Id. at pp. 624-625.) Klockman reversed, rejecting the
Attorney General’s argument that both counties had concurrent jurisdiction over
the defendant’s probation: “Why, if concurrent jurisdiction over defendant’s
probation existed in both El Dorado and Placer Counties, would the detailed
process for the transfer of jurisdiction delineated in section 1203.9 exist? The
answer is obvious: Section 1203.9 provides the mechanism for transfer of
jurisdiction because jurisdiction rests exclusively in the county in which probation
is granted until it is transferred.” (Id. at p. 627.)
We agree with Klockman that the purpose of section 1203.9 was to
eliminate the concurrent jurisdiction of two counties over a defendant’s probation.
Indeed, that statute was amended in 2009 to end the practice of informal
“courtesy” supervision of probationers by a county “ ‘other than the county
responsible for their supervision’ ” and to eliminate wasteful, duplicative
supervision, or the chance that a probationer might be “ ‘entirely unsupervised by
either the sentencing county or the county in which they reside.’ ” (Assem. Com.
on Public Safety, Rep. on Sen. Bill No. 431 (2009-2010 Reg. Sess.) as amended
June 4, 2009, p. 2.)
It is true that section 1170.18, subdivision (a) does not use the term
“jurisdiction” to describe the requirement for filing “before the trial court that
entered the judgment of conviction.” Even so, the statute expressly states that a
resentencing petition be filed there. The statute provides for no exceptions. It is
also true that the electorate is presumptively aware of existing laws and their
construction. (Gonzales, supra, 2 Cal.5th at p. 869.) Yet, it should also be
remembered that “[t]he particularized meaning of words in complex, legislatively

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enacted statutes has little bearing on the interpretation of words in an initiative,
which we construe according to their ordinary meanings as understood by ‘the
average voter.’ ” (Vandermost v. Bowen (2012) 53 Cal.4th 421, 494.) The
average voter would understand section 1170.18 to mean what it says, that the
original sentencing court, or an assigned judge in that county, rule on a
resentencing petition.
Defendant asserts that requiring the original sentencing court to rule on a
resentencing petition would be antithetical to Proposition 47’s goal of saving
money because it would require the receiving court to transfer the case back to the
sentencing court. The argument fails. Now that the proper court for filing has
been clarified, a defendant seeking resentencing can confidently file a petition in
the sentencing court. No transfer of the case will be required. To the extent that
the original sentencing court and the parties may have more familiarity with a
defendant’s case or have more ready access to pertinent information from local
sources, allowing that court to rule on a petition may be more cost-effective than
requiring a receiving court do so.
Finally, we disagree with the Court of Appeal’s reasoning that “a defendant
seeking Proposition 47 relief may waive his right to be sentenced by a particular
judge in a particular county, something he has done in this instance by filing his
petition in Riverside Superior Court.” (Adelmann, supra, 2 Cal.App.5th at p.
1194.) Section 1170.18 gives a defendant the right to petition for resentencing
under Proposition 47. It does not grant a concurrent right to choose the venue for
such a petition. Taken to its logical extreme, such a waiver theory would seem to
allow a defendant to petition for resentencing in any California court, however
untethered to the original county of conviction or defendant’s county of residence.

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 In sum, we hold that, even in the case of a probationary transfer, the
original sentencing court is the proper venue for a resentencing petition under
section 1170.18.
III. DISPOSITION
The Court of Appeal’s judgment is reversed. Defendant remains free to file
a section 1170.18 petition in the San Diego County Superior Court.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
DUARTE, J.*

* Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Adelmann
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 2 Cal.App.5th 1188
Rehearing Granted

__________________________________________________________________________________

Opinion No. S237602
Date Filed: May 10, 2018
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Edward D. Webster*

__________________________________________________________________________________

Counsel:

Michael A. Hestrin, District Attorney, Elaina Gambera Bentley, Assistant District Attorney, Kelli M.
Catlett, Chief Deputy District Attorney, Emily R. Hanks, Ivy B. Fitzpatrick and Donald W. Ostertag,
Deputy District Attorneys, for Plaintiff and Appellant.

Gene D. Vorobyov, under appointment by the Supreme Court, for Defendant and Respondent.

Laura Beth Arnold for The California Public Defenders Association and Law Offices of the Public
Defender for the County of Riverside as Amici Curiae.

*Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Donald W. Ostertag
Deputy District Attorney
3960 Orange Street
Riverside, CA 92501
(951) 955-0870

Gene D. Vorobyov
Law Office of Gene Vorobyvov
450 Taraval Street, #112
San Francisco, CA 94116
(415) 425-2693