Filed 4/30/21 P. v. Wrobel CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C081210, C080296
Plaintiff and Respondent, (Super. Ct. No. CM037951)
v.
CAREY GENE WROBEL,
Defendant and Appellant.
In 2014, defendant entered a plea of no contest to two counts of second degree
commercial burglary related to thefts from a retail store. (Pen. Code, § 459.)1 Defendant
was sentenced to three years’ probation, but subsequently violated his probation and was
sentenced to three years eight months. The trial court denied defendant’s Proposition 47
1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
1
section 1170.18 petition to reduce two convictions for commercial burglary (Pen. Code,
§ 459) to misdemeanors based on his prior juvenile adjudication of a violation of section
288, subdivision (a).
We shall reverse and remand the matter for further proceedings in accordance with
section 1170.18 and consistent herewith.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, on three separate dates in 2012, defendant
entered a Radio Shack store in Butte County, took merchandise from the shelves,
concealed it, and exited the store without paying. In each of the first two instances, the
value of the merchandise was $149.99, and on the third occasion, the value of the
merchandise was $49.99.
Defendant was charged with three counts of second degree burglary (§§ 459, 460;
counts 1-3). Defendant ultimately entered a plea of no contest to counts 1 and 2. Under
the plea agreement, count 3 was dismissed with a Harvey2 waiver. As a result of the
convictions, defendant was found in violation of probation in an unrelated case.
The trial court sentenced defendant on April 3, 2014. The trial court suspended
imposition of sentence and placed defendant on formal probation with specified
conditions for a period of three years and ordered defendant to serve 60 days in county
jail with credit for nine days served. On a probation violation involving a misdemeanor
case, the trial court revoked probation as terminated unsuccessfully and ordered
defendant to serve 60 days concurrently.
On July 29, 2014, the Butte County Probation Department filed a petition for a
hearing for a violation of probation. According to the petition, on or about June 24, 2014,
defendant provided a urine sample that tested positive for methamphetamine. On August
2 People v. Harvey (1979) 25 Cal.3d 754.
2
21, 2014, defendant appeared before the trial court and admitted that he provided a urine
sample that tested positive for methamphetamine.
On September 18, 2014,3 the trial court revoked probation and sentenced
defendant to an aggregate term of three years eight months in prison calculated as
follows: the upper term of three years on count 1, and eight months (one-third the
midterm) on count 2, to run consecutively to the principal term.4
Petition for Resentencing
Defendant filed petitions for resentencing pursuant to Proposition 47 and section
1170.18 dated November 6 and 7 and December 6, 2014.5
3 The Reporter’s Transcript for this sentencing is erroneously dated September 18, 2015.
4 We note that, in sentencing defendant, rather than stating that the sentence imposed on
count 2, the subordinate term, would be one-third the midterm as prescribed by section
1170.1, subdivision (a), the trial court purported to impose the midterm on count 2 but
stay all but one-third of that sentence, or eight months (at another point, the court stated
that it was “imposing the upper term as the base term”). Section 1170.1, subdivision (a),
sets forth the law concerning consecutive sentencing on subordinate terms. With few
exceptions not applicable here, “[t]he subordinate term for each consecutive offense shall
consist of one-third of the middle term of imprisonment prescribed for each other felony
conviction for which a consecutive term of imprisonment is imposed.” (§ 1170.1, subd.
(a); People v. Felix (2000) 22 Cal.4th 651, 655 [“in general (there are exceptions), the
court imposes only ‘one-third of the middle term’ for subordinate terms”].) There is no
provision in law authorizing the court to impose a full-term sentence and then stay all but
one-third the midterm. The proper way of imposing the subordinate term sentence is to
impose “one-third of the middle term” and articulate the number of months or years that
equates to one-third of the middle term. (See Couzens, Bigelow & Pricket, Sentencing
Cal. Crimes (The Rutter Group 2016), Multiple Counts, § 13:19 [noting that “[i]t is not
appropriate, for example, to impose the full middle term and suspend all but one-third”].)
Ultimately, because the trial court did subsequently pronounce that it was imposing one-
third the midterm on count 2, it imposed the correct term of eight months on count 2
which is accurately reflected in the abstract of judgment.
5Defendant filed additional, essentially identical, petitions for resentencing on or about
August 11, 2015, October 1, 2015, and October 8, 2015.
3
The prosecutor opposed defendant’s petition for resentencing, asserting among
other things, that, on or about September 26, 1991, defendant, who was 17 years old at
the time, was adjudicated in juvenile court to have violated section 288, subdivision (a).
The prosecutor asserted that defendant was subject to sections 667, subdivision (d)(3),
and 1170, subdivision (b)(3),6 rendering him ineligible for Proposition 47 relief.
In his written response, defendant asserted that juvenile adjudications were not
“convictions” for any purpose, whereas sections 667, subdivision (d)(3), and 1170.12,
subdivision (b)(3), applied only to convictions. Therefore, these sections did not render
him ineligible for Proposition 47 resentencing. Defendant also asserted that he did not
commit an offense that required him to register pursuant to section 290, subdivision (c).
Defendant further asserted that the remoteness of his juvenile adjudication, which
occurred in 1991, should be a factor considered in the court’s discretion in determining
whether defendant should be eligible for Proposition 47 resentencing. He emphasized
that Proposition 47 is to be construed liberally to effectuate its purposes.
In reply, the prosecutor emphasized that section 667, subdivision (d)(3), specifies:
“A prior juvenile adjudication shall constitute a prior serious and/or violent felony
conviction for purposes of sentence enhancement if the juvenile was 16 years of age or
older at the time [he or she] committ[ed] the prior offense. As the law appears to allow
an aggravation or enhancement based on a juvenile adjudication, by analogy the
adjudication would be able to block a reduction as well.” (Bold and italics omitted.) The
prosecution further asserted that, while registration was neither mandatory nor ordered at
the time of defendant’s juvenile adjudication, the law had changed and registration could
be made retroactive.
6It appears that the prosecution intended to refer to section 1170.12, subdivision (b)(3),
which mirrors 667, subdivision (d)(3).
4
First Order Denying Petition for Resentencing
On March 20, 2015, the trial court denied defendant’s petition for resentencing.
The trial court stated: “I think that there’s a very real and compelling reason as to why
there was an exclusion as to this kind of charge, and the Court does not believe that fact
that he was a minor at the time is determinative and the petition will be denied.” In the
minute order, the trial court stated its determination that the “[c]rime/conviction does not
fall within the parameters of PC 1170.18.”
Following several unsuccessful attempts to appeal from the March 20, 2015,
denial this court granted defendant’s request for permission to file a notice of appeal
under the constructive filing doctrine.
Vacatur of First Order Denying Petition for Resentencing
After the denial, the judge discovered he had previously been challenged pursuant
to Code of Civil Procedure section 170.6 on one of the cases and agreed to honor
defendant’s peremptory challenge. On November 20, 2015, the trial court vacated the
March 20, 2015, order denying defendant’s petition for Proposition 47 resentencing.
Second Order Denying Petition for Resentencing
On January 14, 2016, a different judge denied defendant’s petition for Proposition
47 resentencing. The court concluded that, contrary to defendant’s argument, a juvenile
adjudication is treated the same as a conviction for purposes of Proposition 47
ineligibility. Based on that conclusion, the trial court determined that defendant was not
eligible for Proposition 47 relief based on his prior juvenile adjudication for having
violated section 288, subdivision (a). In the minute order, the trial court indicated that
defendant was “[i]neligible based on a prior offense/conviction.” Defendant filed another
notice of appeal.
On October 3, 2016, this court granted defendant’s motion to consolidate the two
appeals for purposes of oral argument and decision. On July 28, 2017, we requested
supplemental briefing on whether the appeal from the March 20, 2015, order should be
5
dismissed as moot. The parties each filed supplemental letter briefs taking the position
that there is no reason not to dismiss the appeal from the March 20, 2015 order.
DISCUSSION
I. Proposition 47
Proposition 47, among other things, added section 459.5, defining shoplifting, to
the Penal Code. That section provides in pertinent part: “(a) Notwithstanding Section
459, shoplifting is defined as entering a commercial establishment with intent to commit
larceny while that establishment is open during regular business hours, where the value of
the property that is taken or intended to be taken does not exceed nine hundred fifty
dollars ($950). . . . Shoplifting shall be punished as a misdemeanor, except that a person
with one or more prior convictions for 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 may be punished pursuant to
subdivision (h) of Section 1170.”
Proposition 47 also created a resentencing provision, codified in section 1170.18,
which provides that a person currently serving a sentence for certain designated felonies
may petition for recall of the sentence to reduce the felony to a misdemeanor.
(§ 1170.18, subds. (a), (b).) If the prior conviction qualifies, the petitioner’s felony
sentence shall be recalled and the petitioner resentenced to a misdemeanor “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).)
Subdivision (i) of section 1170.18 provides: “The provisions of this section shall
not apply to persons who have one or more prior convictions for 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.” (Italics
added.) We will discuss additional relevant statutory provisions post.
6
II. Additional Background and Defendant’s Contentions
The probation report prepared for defendant’s initial sentencing in this case
contains the Butte County Probation Department’s criminal record summary for
defendant. The criminal record summary indicates that on August 9, 1991, defendant
was arrested and charged with, among other things, violation of section 288, subdivision
(a).7 It further indicates that, on September 26, 1991, defendant was adjudicated to have
violated that provision, wardship was declared, and he was ordered to serve 30 days in
juvenile hall. On November 16, 1993, wardship was dismissed. No additional
information or documentation concerning this 1991 juvenile adjudication is contained in
the record on appeal.
Defendant asserts that the trial court erred in denying his Proposition 47 petition
for resentencing. He contends he does not have a prior “conviction” for violation of
section 288, subdivision (a), within the meaning of section 1170.18, subdivision (i), but
rather only a prior juvenile adjudication. According to defendant, the plain language of
section 1170.18, subdivision (i), makes clear that it applies only to convictions, not
juvenile adjudications. Defendant also states he is not required to register as a sex
offender pursuant to section 290. He further asserts that the prosecution failed to meet its
burden of establishing he was ineligible for resentencing on the basis that his prior
juvenile adjudication was a serious or violent felony within the meaning of section 667.
Specifically, defendant asserts that, while the record may be sufficient to establish his age
at the time of his arrest and at the time of his adjudication for violation of section 288,
7 In 1991, former section 288, subdivision (a), read: “Any person who shall willfully
and lewdly commit any lewd or lascivious act including any of the acts constituting other
crimes provided for in Part 1 of this code upon or with the body, or any part or member
thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or
gratifying the lust or passions or sexual desires of that person or of the child, shall be
guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or
eight years.” (Former § 288, subd. (a), as amended by Stats. 1989, ch. 1402, § 3.)
7
subdivision (a), there is nothing in the record to establish his age at the time he
committed the prior offense.
III. Analysis
A. Prosecution’s Burden of Proof
“Proposition 47, . . . requires the petitioning defendant to establish his or her initial
eligibility for relief—which, . . . is a prior felony conviction that would have been a
misdemeanor if Proposition 47 had been in effect at the time of the offense. [Citations.] .
. . ‘Proposition 47 then allows the prosecution the opportunity to oppose the petition by
attempting to establish that the petitioning defendant is ineligible for resentencing.
[Citation.] This may be accomplished either (1) by rebutting the petitioning defendant’s
evidence, thereby demonstrating that the petitioning defendant would not have been
guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense
[citation], or (2) by demonstrating that the petitioning defendant suffered a conviction of
one or more of the offenses specified in section 1170.18, subdivision (i).’ ” (People v.
Sledge (2017) 7 Cal.App.5th 1089, 1094 (Sledge).) The prosecution bore the burden of
proving a disqualifying prior conviction by a preponderance of the evidence. (Id. at
p. 1095.)
B. Disqualifying Juvenile Adjudications
As stated ante, subdivision (i) of section 1170.18 provides: “The provisions of
this section shall not apply to persons who have one or more prior convictions for 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.” (Italics added.) Section 667, subdivision (e)(2)(C)(iv), provides that, if “a
defendant has two or more prior serious and/or violent felony convictions as defined in
subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled
and proved, and the current offense is not a serious or violent felony as defined in
subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision
8
(e) unless the prosecution pleads and proves . . . . : [¶] . . . [¶] (iv) The defendant
suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of
this section,” for any of a list of enumerated felonies. (§ 667, subd. (e)(2)(C)(iv), italics
added.)
Subdivision (d)(3) of section 667 expressly addresses juvenile adjudications. That
subdivision provides: “A prior juvenile adjudication shall constitute a prior serious
and/or violent felony conviction for purposes of sentence enhancement if: [¶] (A) The
juvenile was 16 years of age or older at the time he or she committed the prior offense.
[¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony.
[¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the
juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court
within the meaning of Section 602 of the Welfare and Institutions Code because the
person committed an offense listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code.” (§ 667, subd. (d)(3).)
The Fourth Appellate District, Division Three, held in Sledge that, reading the
relevant statutes together, and affording the unambiguous words in them their usual and
ordinary meaning, “a felony juvenile adjudication is a disqualifying prior conviction
within the meaning of section 1170.18(i): if it is one of the super strike offenses listed in
section 667(e)(2)(C)(iv); if it is either an offense listed in Welfare and Institutions Code
section 707, subdivision (b), or an offense described in section 667(d), paragraph (1) or
(2) as a serious or violent felony; and if all of the other conditions set out in section
667(d)(3) are satisfied.” (Sledge, supra, 7 Cal.App.5th at p. 1099.) The Sledge court
stated: “Our conclusion that these specific felony juvenile adjudications are disqualifying
prior convictions under section 1170.18(i) is consistent with at least one of the voter’s
expressed intents in enacting Proposition 47. ‘Among its stated purposes is to “[e]nsure
that people convicted of murder, rape, and child molestation will not benefit from this
9
act.” ’ [Citation.] [Citation.] [¶] Our conclusion is also consistent with two recent cases
which held these same felony juvenile adjudications are disqualifying prior convictions
for Proposition 36 resentencing purposes under the analogous provisions of section
1170.126, subdivision (e).” (Sledge, at pp. 1099-1100, fn. omitted.)
The Sledge court expressly rejected the argument made by defendant here: that
“juvenile adjudications are not disqualifying prior convictions because section 1170.18(i)
does not expressly refer to juvenile adjudications, and because juvenile adjudications
have historically been treated differently than adult criminal convictions.” (Sledge,
supra, 7 Cal.App.5th at p. 1100.) The Sledge court stated: “ ‘Since the definition of
“conviction of a serious and/or violent felony” contained in section 667(d) is incorporated
. . . in section 1170.18(i), and since that definition specifically includes designated
juvenile adjudications, . . . a person who has been adjudicated for an offense listed in
section 667(d)(3) will be excluded . . . . While juvenile “adjudications” and adult
“convictions” are distinguished in many other contexts, for the purposes of the exclusion
under section 1170.18(i), they are treated the same.’ ” (Sledge, at p. 1100.) Further, the
Sledge court stated that “the absence of any express reference to juvenile adjudications in
section 1170.18 is easily explained. ‘Section 1170.18’s use of terms associated with
adult criminal proceedings logically comports with the fact that the Penal Code and other
codes defining crimes define the offenses primarily for use in the adult context, and that
these substantive criminal offense provisions are then engrafted onto the juvenile
proceedings in wholesale fashion by means of Welfare and Institutions Code section
602.’ ” (Sledge, at p. 1100.)
Finally, the Sledge court stated that the rule of lenity, advocated by defendant here,
“does not apply every time there are two or more reasonable interpretations of a penal
statute. Rather, the rule applies ‘ “ ‘only if the court can do no more than guess what the
legislative body intended; there must be an egregious ambiguity and uncertainty to justify
10
invoking the rule.’ [Citation.]” ’ [Citation.] And ‘[n]o such ambiguity or uncertainty
exists here.’ ” (Sledge, supra, 7 Cal.App.5th at p. 1101.)
After the publication of Sledge, the Fifth District Court of Appeal published
People v. Fernandez (2017)11 Cal.App.5th 926 (Fernandez), in which it agreed with the
analysis in Sledge, although it further found that Sledge’s holding was not dispositive of
all of the issues presented in Fernandez. (Fernandez, at p. 930.) The Fernandez court
stated, in pertinent part: “We agree with the holding of Sledge, i.e., that a prior juvenile
adjudication may constitute a disqualifying prior conviction within the meaning of
section 1170.18(i) if all of the conditions set forth in section 667, subdivision (d) are
satisfied. [Citation.] This is so because ‘ “the definition of ‘conviction of a serious
and/or violent felony’ contained in section 667(d) is incorporated . . . in section
1170.18(i), and since that definition specifically includes designated juvenile
adjudications . . . .” ’ ” (Fernandez, at p. 935.) The Fernandez court held: “prior
juvenile adjudications constitute ‘prior convictions’ within the meaning of section
1170.18(i) if they would be treated as such under section 667, subdivision (d). The
prerequisite conditions are as follows: (1) the juvenile was 16 years of age or older at the
time he or she committed the prior offense; (2) the prior offense is listed in subdivision
(b) of section 707 of the Welfare and Institutions Code or is described as a serious and/or
violent felony in subdivision (d)(1) or (2) of section 667 of the Penal Code; (3) the
juvenile was found to be a fit and proper subject to be dealt with under the juvenile court
law; and (4) the juvenile was adjudged a ward of the juvenile court within the meaning of
section 602 of the Welfare and Institutions Code because the person committed an
offense listed in subdivision (b) of section 707 of the Welfare and Institutions Code.
[Citation.] Therefore, a juvenile adjudication for an offense listed in section 667,
subdivision (e)(2)(C)(iv) or section 290, subdivision (c) is not a prior conviction for
purposes of section 1170.18(i) unless the conditions listed in section 667, subdivision
(d)(3) are satisfied.” (Fernandez, at p. 937.)
11
We agree with the analyses of the Sledge and Fernandez courts. As a general
matter, certain juvenile adjudications may disqualify a defendant from Proposition 47
resentencing based on section 1170.18, subdivision (i), notwithstanding the fact that that
section refers to “convictions” rather than “juvenile adjudications.” However, to
constitute a disqualifying prior conviction within the meaning of section 1170.18,
subdivision (i), the prior juvenile adjudication must satisfy all of the requirements set
forth in section 667, subdivision (d)(3).
C. Defendant’s Juvenile Adjudication
As the Fernandez court held, pursuant to the statutory scheme, “prior juvenile
adjudications constitute ‘prior convictions’ within the meaning of section 1170.18(i) if
they would be treated as such under section 667, subdivision (d).” (Fernandez, supra, 11
Cal.App.5th at p. 937; see Sledge, supra, 7 Cal.App.5th at p. 1099.) As noted,
subdivision (d) of section 667, provides, in pertinent part: “A prior juvenile adjudication
shall constitute a prior serious and/or violent felony conviction for purposes of sentence
enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he or she
committed the prior offense. [¶] (B) The prior offense is listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a
serious and/or violent felony. [¶] (C) The juvenile was found to be a fit and proper
subject to be dealt with under the juvenile court law. [¶] (D) The juvenile was adjudged
a ward of the juvenile court within the meaning of Section 602 of the Welfare and
Institutions Code because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.” (§ 667, subd. (d)(3).)
Therefore, even assuming the prosecution established that defendant was 16 years
old or older at the time he committed the offense (which we discuss further post),
acknowledging that violation of section 288, subdivision (a), is an offense “described in
paragraph (1) or (2) [of section 667, subdivision (d)] as a serious and/or violent felony,”
and assuming defendant as a juvenile was found to be a fit and proper subject to be dealt
12
with under the juvenile court law, the prosecution also had to establish that defendant
“was adjudged a ward of the juvenile court within the meaning of Section 602 of the
Welfare and Institutions Code because the person committed an offense listed in
subdivision (b) of Section 707 of the Welfare and Institutions Code.” (§ 667, subd. (d)(3),
italics added.)
In construing the language of section 667, subdivision (d)(3), particularly the
italicized language of paragraph (D) and its interplay with paragraph (B), in the context
of a “Three Strikes” law case, our high court in People v. Garcia (1999) 21 Cal.4th 1, 6
(Garcia), stated: “Paragraph (B) disjunctively cross-references three statutory lists of
offenses: the list in Welfare and Institutions Code section 707(b), which establishes a
rebuttable presumption of unfitness for treatment under the juvenile court law for
juveniles charged with such offenses [citation]; the list of ‘serious’ offenses in section
1192.7, subdivision (c); and the list of ‘violent’ offenses in section 667.5, subdivision (c).
The latter two lists delineate, through cross-referencing in subdivision (d)(1) and (2) of
section 667, the set of offenses that qualify as strikes when they are the subject of a prior
adult conviction. [¶] Paragraph (D), by contrast, refers only to a single statutory list:
that contained in Welfare and Institutions Code section 707(b). [¶] Because the two sets
of offenses referenced in paragraph (B) (Welfare and Institutions Code section 707(b)
offenses, and ‘serious’ or ‘violent’ offenses) are not identical, section 667, subdivision
(d)(3) would contain an internal conflict if the lists in paragraphs (B) and (D) were both
understood as defining the set of juvenile offenses qualifying as strikes. Under paragraph
(B) a given juvenile offense would qualify if it were listed in section 707(b) or if it were
serious or violent; under paragraph (D), however, an offense would qualify only if it were
listed in section 707(b). Because burglary of an inhabited dwelling is listed as ‘serious’
[citation], but is not listed in section 707(b), defendant’s prior juvenile adjudication for
residential burglary would qualify under paragraph (B), but not under paragraph (D). [¶]
The parties’ briefs, lower court opinions and our own research have disclosed a number
13
of possible resolutions of this postulated internal conflict, all based on the premise that
the distinction between paragraphs (B) and (D) of section 667, subdivision (d)(3) is a
result of ‘drafting error.’ As we demonstrate later, however, each such resolution would
require the court to disregard one of the two assertedly conflicting paragraphs or to
rewrite some of their provisions. Although we may properly decide upon such a
construction or reformation when compelled by necessity and supported by firm evidence
of the drafters’ true intent [citation], we should not do so when the statute is reasonably
susceptible to an interpretation that harmonizes all its parts without disregarding or
altering any of them. ‘It is fundamental that legislation should be construed so as to
harmonize its various elements without doing violence to its language or spirit.’
[Citation.] [¶] Rather than rewrite the statute in any way, therefore, we adopt an
interpretation that harmonizes paragraphs (B) and (D), without doing violence to the
language or spirit of section 667, subdivision (d)(3). In brief, we interpret paragraph (B)
as setting out the list of prior juvenile offenses that will qualify as strikes and paragraph
(D) as requiring, in addition, that in the prior juvenile proceeding giving rise to the
qualifying adjudication the juvenile have been adjudged a ward of the court because of a
Welfare and Institutions Code section 707(b) offense, whether or not that offense is the
same as the offense currently alleged as a strike.” (Garcia, at pp. 5-6.) In short, our high
court stated: “Under paragraph (B), a prior juvenile adjudication qualifies as a prior
felony conviction for Three Strikes purposes only if the prior offense is listed in Welfare
and Institutions Code section 707(b) or is classified as ‘serious’ or ‘violent.’ Paragraph
(D) does not modify or conflict with paragraph (B), but states a separate, additional
requirement: the prior adjudication qualifies as a prior felony conviction only if the
defendant, in the prior juvenile proceeding, was adjudged a ward because of at least one
offense listed in section 707(b).” (Garcia, at p. 13.)
Section 288, subdivision (a), is not listed in Welfare and Institutions Code section
707, subdivision (b). Therefore, to satisfy this last requirement of section 667,
14
subdivision (d)(3), the prosecution would have to establish that, at the time of his juvenile
adjudication for violation of section 288, subdivision (a), defendant also, in the same
case, sustained a juvenile adjudication for violation of another offense which is listed in
Welfare and Institutions Code section 707, subdivision (b). (See Garcia, supra, 21
Cal.4th at pp. 3, 5-6, 13; Fernandez, supra, 11 Cal.App.5th at p. 938 [section 288,
subdivision (a) is not an offense listed in Welfare and Institutions Code section 707,
subdivision (b), which means an adjudication for that offense is unlikely to qualify as a
prior conviction within the meaning of section 1170.18, subdivision (i); a section 288,
subdivision (a) adjudication is a strike within the meaning of section 667, subdivision (d),
only if, in the same prior juvenile case, the ward was adjudged as such based not only on
the section 288, subdivision (a) violation but also on a finding that the ward committed
another offense, one listed in Welfare and Institutions Code section 707, subdivision (b)];
People v. Cole (2007) 152 Cal.App.4th 230, 236 (Cole) [same].)
There is nothing in the record to suggest, and the People do not assert, that, at the
time defendant sustained his prior juvenile adjudication for violation of section 288,
subdivision (a), he also, in the same case, was adjudged a ward based on a finding that he
committed another offense, one listed in Welfare and Institutions Code section 707,
subdivision (b). Therefore, while, as a general matter, a prior juvenile adjudication may
constitute a disqualifying prior conviction within the meaning of section 1170.18,
subdivision (i), barring a defendant from Proposition 47 resentencing (Fernandez, supra,
11 Cal.App.5th at p. 935; Sledge, supra, 7 Cal.App.5th at p. 1100), here, defendant’s
prior juvenile adjudication does not constitute a disqualifying prior conviction because it
is not listed in Welfare and Institutions Code section 707, subdivision (b), it did not occur
in a case in which defendant was determined to have committed an additional offense
which was listed in that section, and it therefore does not satisfy all of the requirements of
section 667, subdivision (d)(3). (Garcia, supra, 21 Cal.4th at pp. 3, 5-6, 13; Fernandez,
at p. 938; Cole, supra, 152 Cal.App.4th at p. 236.)
15
In addition to the fact that the prosecution did not establish that defendant’s prior
juvenile adjudication satisfied the requirements in section 667, subdivision (d)(3)(D), we
also note that the prosecution failed to meet its burden of establishing that defendant was
16 years of age or older at the time he committed the prior offense as required by section
667, subdivision (d)(3)(A). The trial court denied defendant’s petition based on his prior
juvenile adjudication that he violated section 288, subdivision (a), in 1991. The
presentence probation report indicates that defendant was born on October 3, 1974.
Defendant was arrested for the violation of section 288, subdivision (a), on August 9,
1991, and he was adjudicated on September 26, 1991. Thus, at the time of his arrest and
the adjudication, defendant was 16 years old. However, the record on appeal is
completely silent on the question of defendant’s age “at the time he . . . committed the
prior offense.” (§ 667, subd. (d)(3)(A).) Therefore, for this reason, too, the prosecution
failed to meet its burden of establishing the existence of a prior disqualifying offense
rendering defendant ineligible for Proposition 47 resentencing pursuant to section
1170.18, subdivision (i).
D. Sex Registration Disqualification
In addition to addressing juvenile adjudication offenses that will be deemed
disqualifying offenses as offenses specified in section 667, subdivision (e)(2)(C)(iv), the
Fernandez court also addressed juvenile adjudication offenses that will be deemed
disqualifying offenses because they are offenses “requiring registration pursuant to”
section 290, subdivision (c). (§ 1170.18, subd. (i).) The Fernandez court concluded that
“a juvenile adjudication for an offense listed in section 290, subdivision (c) does not
constitute a prior conviction for purposes of section 1170.18(i) unless the prerequisite
conditions listed in section 667, subdivision (d)(3) are also satisfied.” (Fernandez, supra,
11 Cal.App.5th at p. 930.)
In reaching this determination, the Fernandez court observed that section 1170.18
precludes relief for persons with a conviction of an offense set forth in section 667,
16
subdivision (e)(2)(C)(iv), “ ‘or for an offense requiring registration pursuant to
subdivision (c) of Section 290.’ ” (Fernandez, supra, 11 Cal.App.5th at p. 936, quoting
§ 1170.18, subd. (i), italics added.) The court then stated: “[h]owever, a juvenile
adjudication for an offense listed in section 290, subdivision (c) does not require
registration pursuant to that code section. Such individuals are required to register as sex
offenders pursuant to section 290.008, which was enacted well before the passage of
Proposition 47. More importantly, not all juvenile adjudications for offenses listed in
section 290, subdivision (c) qualify as convictions under section 667, subdivision (d).”
(Fernandez, at p. 936.)
The Fernandez court continued: “ ‘It is a settled rule of statutory construction that
“where exceptions to a general rule are specified by statute, other exceptions are not to be
implied or presumed.” ’ [Citation.] Section 1170.18(i) incorporates portions of section
667 and section 290, but only the former defines a conviction to include certain juvenile
adjudications. Section 290, subdivision (c) makes no mention of juvenile adjudications
nor does it expressly or impliedly supersede Welfare and Institutions Code section 203.
[8 ]
If the electorate had wanted all juvenile adjudications for offenses listed in section
290, subdivision (c) to be treated as disqualifying convictions, the statute could have
easily been worded to reflect such an intent. For example, section 666, which was
amended by Proposition 47, is an exclusionary provision that applies to ‘any person who
is required to register pursuant to the Sex Offender Registration Act, or who has a prior
violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of
8 Welfare and Institutions Code section 203 provides: “An order adjudging a minor to
be a ward of the juvenile court shall not be deemed a conviction of a crime for any
purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”
With regard to supersession, unlike section 290, section 667, subdivision (d), contains a
provision stating that it is applicable “[n]otwithstanding any other law . . . .” (§ 667,
subd. (d).)
17
paragraph (2) of subdivision (e) of Section 667 . . . .’ [Citation.] The Sex Offender
Registration Act encompasses sections 290 to 290.024, which includes the statute
governing juvenile sex offender registration, section 290.008. [Citations.] Section 666
has thus been construed as ‘unambiguously’ expressing the intent to make both adult and
juvenile sex offenders ineligible for relief.” (Fernandez, supra, 11 Cal.App.5th at
p. 936.) The Fernandez court thus noted that it was “not persuaded by the dicta
contained in a footnote at the end of the Sledge opinion, which arguably implies that any
prior adjudication for an offense listed in section 290, subdivision (c) must always be
treated as a disqualifying prior conviction.” (Fernandez, at p. 935, fn. omitted, citing
Sledge, supra, 7 Cal.App.5th at p. 1104, fn. 6.)9
On this rationale, the Fernandez court held: “prior juvenile adjudications
constitute ‘prior convictions’ within the meaning of section 1170.18(i) if they would be
treated as such under section 667, subdivision (d).” (Fernandez, supra, 11 Cal.App.5th at
p. 937.) Thus, the Fernandez court held that, as with juvenile adjudications of offenses
specified in section 667, subdivision (e)(2)(C)(iv), juvenile adjudication of offenses
described in section 1170.18, subdivision (i), as “requiring registration pursuant to
subdivision (c) of Section 290” have to satisfy the requirements of section 667,
9 Footnote six in Sledge states: “We have affirmed on the only grounds actually
considered by the trial court and briefed by the parties in this appeal—defendant’s felony
juvenile adjudication for forcible rape is a disqualifying prior conviction because it is,
‘for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 . . . .’ [Citation.] However, there appears to be alternative
grounds for reaching the same result. Defendant’s felony juvenile adjudication for
forcible rape may also be a disqualifying prior conviction because it is ‘for an offense
requiring registration pursuant to subdivision (c) of Section 290.’ [Citation.] It is
indisputable that rape by force is an offense requiring such registration. [Citations.] Plus
it makes no difference that defendant was not and perhaps could not have been ordered to
register. The emphasis in section 1170.18(i) is on the conviction for an offense requiring
registration, not the registration status of the offender.” (Sledge, supra, 7 Cal.App.5th at
p. 1104, fn. 6.)
18
subdivision (d)(3), in order to constitute a disqualifying offense within the meaning of
section 1170.18, subdivision (i). (Fernandez, at p. 936.)
We agree with the Fernandez court’s reasoning and conclusion on this issue and
adopt it as our own. We, too, disagree with Sledge, supra, 7 Cal.App.5th at page 1104,
footnote six, to the extent that the footnote can be read as to suggest that a juvenile
adjudication of any offense requiring registration pursuant to section 290, subdivision (c),
is a disqualifying offense within the meaning of section 1170.18, subdivision (i), without
reference to section 667, subdivision (d)(3). (Fernandez, supra, 11 Cal.App.5th at
p. 935.) We have concluded that, for a juvenile adjudication to constitute a disqualifying
“conviction,” within the meaning of section 1170.18, subdivision (i), it must meet the
requirements of section 667, subdivision (d)(3). Therefore, the mere fact that a particular
offense appears in section 290, subdivision (c), does not mean that an individual who
sustained a juvenile adjudication of that offense will be disqualified from the provisions
of section 1170.18 where the juvenile adjudication does not meet the requirements of
section 667, subdivision (d)(3).
*****
19
DISPOSITION
The appeal from the order dated March 20, 2015, is dismissed as moot. The order
dated January 14, 2016, is reversed, and the matter is remanded for further proceedings
on the petition consistent herewith and in accordance with section 1170.18.
/s/
MURRAY, J.
We concur:
/s/
RAYE, P. J.
/s/
RENNER, J.
20