People v. Hernandez

Filed 3/28/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H043551
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 189458)

v.

PETER DAVID HERNANDEZ,

Defendant and Appellant.

I. INTRODUCTION
Defendant Peter David Hernandez appeals after the trial court denied his
Proposition 47 petition for resentencing (Pen. Code, § 1170.18, subd. (a))1 as to a 1997
conviction for petty theft with a specified prior conviction (former § 666). The trial
court found that defendant was disqualified from Proposition 47 relief because he has a
prior conviction of robbery for which he received an indeterminate life sentence under
the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court relied on
section 1170.18, subdivision (i), which precludes resentencing for a person with one or
more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv).
The specified disqualifying offenses include “[a]ny serious and/or violent felony offense
punishable in California by life imprisonment or death.” (§ 667,
subd. (e)(2)(C)(iv)(VIII).)

1
All further statutory references are to the Penal Code unless otherwise indicated.
 We conclude that defendant was not disqualified from resentencing under
section 1170.18, subdivision (i). Although defendant’s robbery conviction was punished
by an indeterminate life term under the Three Strikes law, robbery itself is not “[a]
serious and/or violent felony offense punishable in California by life imprisonment or
death” under section 667, subdivision (e)(2)(C)(iv)(VIII). We will therefore reverse the
order denying defendant’s petition for resentencing and remand for a determination of
whether resentencing defendant for his conviction of petty theft with a prior “would pose
an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)

II. BACKGROUND
In 1997, defendant was convicted of second degree robbery (§§ 211, 212.5) and
petty theft with a specified prior conviction (former § 666; see Stats. 1993, ch. 611, § 10).
The trial court found true a number of prior conviction allegations, including allegations
that defendant had two prior convictions that qualified as strikes under the Three Strikes
law (§§ 667, subds. (b)-(i), 1170.12).
For the robbery, defendant was sentenced to an indeterminate term of 25 years to
life pursuant to the Three Strikes law. The term for his conviction of petty theft with a
prior was stayed pursuant to section 654. The trial court also imposed a 10-year
determinate term for two serious felony conviction allegations (§ 667, subd. (a)).
On November 4, 2014, the electorate passed Proposition 47, which went into
effect the next day. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).)
Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors,
except where the defendant has one or more disqualifying prior convictions, which
include the “super strike” offenses listed in section 667, subdivision (e)(2)(C)(iv). (See
Rivera, supra, at p. 1092.) Relevant to this case, section 667, subdivision (e)(2)(C)(iv)

2
lists “[a]ny serious and/or violent felony offense punishable in California by life
imprisonment or death.”2
Petty theft with a prior was one of the offenses affected by Proposition 47. “For
most persons, the crime of petty theft with a prior . . . is eliminated.” (People v. Diaz
(2015) 238 Cal.App.4th 1323, 1330.) However, as amended, section 666 still applies if
the person is required to register as a sex offender, has committed a specified offense
against a dependent or elderly adult, or “has a prior violent or serious conviction” listed
in section 667, subdivision (e)(2)(C)(iv). (§ 666, subd. (b).)
Proposition 47 also added section 1170.18, which permits a person who is
“currently serving a sentence” for a conviction of a reclassified offense to request to be
resentenced to a misdemeanor (id., subd. (a)). Section 1170.18, subdivision (i) provides
that resentencing is precluded for “persons who have one or more prior convictions” for
an offense specified in section 667, subdivision (e)(2)(C)(iv) or for an offense requiring
sex offender registration.3

2
Section 667, subdivision (e)(2)(C)(iv) specifies that the disqualifying felonies
are: “(I) A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of
the Welfare and Institutions Code. [¶] (II) Oral copulation with a child who is under
14 years of age, and who is more than 10 years younger than he or she as defined by
Section 288a, sodomy with another person who is under 14 years of age and more than
10 years younger than he or she as defined by Section 286, or sexual penetration with
another person who is under 14 years of age, and who is more than 10 years younger
than he or she, as defined by Section 289. [¶] (III) A lewd or lascivious act involving
a child under 14 years of age, in violation of Section 288. [¶] (IV) Any homicide
offense, including any attempted homicide offense, defined in Sections 187 to 191.5,
inclusive. [¶] (V) Solicitation to commit murder as defined in Section 653f. [¶]
(VI) Assault with a machine gun on a peace officer or firefighter, as defined in
paragraph (3) of subdivision (d) of Section 245. [¶] (VII) Possession of a weapon of
mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. [¶]
(VIII) Any serious and/or violent felony offense punishable in California by life
imprisonment or death.”
3
Even if the person does not have a disqualifying prior conviction, a petition for
resentencing may be denied if the trial court determines that the person “would pose an
(continued)

3
 On September 25, 2015, defendant filed a petition for resentencing pursuant to
section 1170.18, subdivision (a), seeking to have his conviction of petty theft with a
prior reduced to a misdemeanor. Defendant asserted that his robbery conviction was
not a “prior conviction” within the meaning of section 1170.18, subdivision (i) because
he suffered that conviction at the same time as his conviction of petty theft with a prior.
Defendant further argued that his robbery conviction was not a conviction of an
“offense punishable in California by life imprisonment or death” within the meaning
of section 667, subdivision (e)(2)(C)(iv)(VIII) because the punishment for robbery is
generally a determinate term; a robbery conviction is only punishable by a life term if
the person is a recidivist subject to the Three Strikes sentencing scheme.
The District Attorney filed opposition to defendant’s resentencing petition,
arguing that defendant’s robbery conviction precluded him from obtaining Proposition 47
relief for his conviction of petty theft with a prior. The District Attorney argued that the
robbery conviction was a “prior conviction” within the meaning of section 1170.18,
subdivision (i) because it occurred “prior to the request for relief.” The District Attorney
also argued that the robbery conviction was “punishable by life imprisonment” because
defendant received a life sentence for that offense.
The trial court denied defendant’s petition for resentencing in a written order
filed on April 28, 2016. The trial court determined, based on the plain language of
section 1170.18, subdivision (i), that defendant had a “prior” robbery conviction because
the conviction occurred prior to the filing of his resentencing petition. The trial court also
found that “as a result of the Three Strikes law,” defendant’s robbery conviction was a
conviction for an offense “punishable by life imprisonment.”

unreasonable risk of danger to public safety” (§ 1170.18, subd. (b)) because there is “an
unreasonable risk that the petitioner will commit a new violent felony within the meaning
of [section 667, subdivision (e)(2)(C)(iv)]” (§ 1170.18, subd. (c)).

4
 III. DISCUSSION
Defendant argues, as he did in the trial court, that his conviction of petty theft
with a prior was eligible for resentencing under section 1170.18 because his robbery
conviction did not qualify as a prior conviction for an “offense punishable in California
by life imprisonment or death” (§ 667, subd. (e)(2)(C)(iv)(VIII)).
Section 667, subdivision (e)(2)(C)(iv) was added by Proposition 36, the
Three Strikes Reform Act of 2012. Under the Three Strikes law as it existed prior to
Proposition 36 (former §§ 667, subds. (b)-(i); 1170.12), “a defendant who had
previously been convicted of two or more serious or violent felonies was subject to an
indeterminate sentence of 25 years to life upon his or her conviction of any new felony.
[Proposition 36] prospectively changed the Three Strikes law by reserving indeterminate
life sentences for cases where the new offense is also a serious or violent felony, unless
the prosecution pleads and proves an enumerated disqualifying factor. In all other cases,
a recidivist defendant will be sentenced as a second strike offender, rather than a third
strike offender. [Citations.]” (People v. Chubbuck (2014) 231 Cal.App.4th 737, 740-741
(Chubbuck).) One enumerated disqualifying factor is that “[t]he defendant suffered a
prior serious and/or violent felony conviction” for one of the “felonies” listed in
section 667, subdivision (e)(2)(C)(iv), which include “[a]ny serious and/or violent
felony offense punishable in California by life imprisonment or death” (id.,
subd. (e)(2)(C)(iv)(VIII)).
Proposition 36 “also created a ‘ “post-conviction release proceeding” ’ whereby
a Three Strikes prisoner who is serving an ‘indeterminate life sentence’ for a crime that
was not a serious or violent felony—and who is not otherwise disqualified—may have
his or her sentence recalled and be resentenced as a second strike offender . . . .”
(Chubbuck, supra, 231 Cal.App.4th at p. 741.) Again, one disqualifying factor is that
the defendant has a prior conviction for an offense listed in section 667,
subdivision (e)(2)(C)(iv). (§ 1170.126, subd. (e)(2).)

5
 The issue here is whether an offense itself must be punishable by an indeterminate
life term in order to qualify as an “offense punishable in California by life imprisonment
or death” under section 667, subdivision (e)(2)(C)(iv)(VIII), or whether an offense is
“punishable in California by life imprisonment or death” if it is punishable by an
indeterminate life term in the particular case, i.e., due to application of the Three Strikes
law.
Defendant contends the phrase “[a]ny serious and/or violent felony offense
punishable in California by life imprisonment or death” (§ 667, subd. (e)(2)(C)(iv)(VIII))
refers only to offenses that are listed as serious felonies under section 1192.7,
subdivision (c) and/or violent felonies under section 667.5, subdivision (c) and for
which the usual prescribed punishment is a life sentence, such as kidnapping in violation
of section 209.
The Attorney General contends the phrase “[a]ny serious and/or violent felony
offense punishable in California by life imprisonment or death” (§ 667,
subd. (e)(2)(C)(iv)(VIII)) also includes offenses that are statutorily enumerated as serious
and/or violent felonies, such as robbery, for which the usual prescribed punishment is a
determinate term but which are punishable by a life sentence under the Three Strikes law
when the defendant has qualifying prior convictions.4
In determining the meaning of the phrase “[a]ny serious and/or violent felony
offense punishable in California by life imprisonment or death” (§ 667,
subd. (e)(2)(C)(iv)(VIII)), an issue of statutory interpretation, we apply de novo review.
(See People v. Simmons (2012) 210 Cal.App.4th 778, 790.) “When we interpret an

4
Second degree robbery is generally “punishable by imprisonment in the state
prison for two, three, or five years.” (§ 213, subd. (a)(2).) However, robbery is a
“serious felony” under section 1192.7, subdivision (c)(19) and a “violent felony” under
section 667.5, subdivision (c)(9), such that it may be punishable by an indeterminate term
of life imprisonment under the Three Strikes law, if the defendant has two or more prior
serious or violent felony convictions. (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A).)

6
initiative, we apply the same principles governing statutory construction. We first
consider the initiative’s language, giving the words their ordinary meaning and
construing this language in the context of the statute and initiative as a whole. If the
language is not ambiguous, we presume the voters intended the meaning apparent from
that language, and we may not add to the statute or rewrite it to conform to some
assumed intent not apparent from that language. If the language is ambiguous, courts
may consider ballot summaries and arguments in determining the voters’ intent and
understanding of a ballot measure. [Citation.]” (People v. Superior Court (Pearson)
(2010) 48 Cal.4th 564, 571.)
We begin with the ordinary meaning of the phrase “offense punishable in
California by life imprisonment” as used in section 667, subdivision (e)(2)(C)(iv)(VIII).5
The word “offense” generally refers to a criminal act. Section 15 specifies: “A crime
or public offense is an act committed or omitted in violation of a law forbidding or
commanding it, and to which is annexed, upon conviction,” punishment by death,
imprisonment, a fine, removal from office, or disqualification from office. By using
the term “offense punishable . . . by life imprisonment,” section 667,
subdivision (e)(2)(C)(iv)(VIII) focuses on the offense and its associated statutory
punishment, not the type of offender or the effect of other prior convictions on the
offender’s sentence. Since the “offense” of robbery has an associated statutory
punishment of “imprisonment in the state prison for two, three, or five years” (§ 213,
subd. (a)(2)), it is not an “offense punishable in California by life imprisonment or death”
(§ 667, subd. (e)(2)(C)(iv)(VIII)).

5
Defendant urges us to construe the phrase “[a]ny serious and/or violent
felony offense punishable in California by life imprisonment or death” (§ 667,
subd. (e)(2)(C)(iv)(VIII)) “in the context of Proposition 47.” However, as noted
above, that statute was enacted as part of Proposition 36.

7
 We next consider the context of section 667, subdivision (e)(2)(C)(iv)(VIII). As
noted above, section 667, subdivision (e)(2)(C)(iv) was enacted as part of Proposition 36,
to provide a list of “super strikes”—prior convictions that make a defendant ineligible for
the Three Strikes law reforms enacted by Proposition 36. Under section 667,
subdivision (e)(2)(C)(iv), a defendant is ineligible for those sentencing reforms if he or
she “suffered a prior serious and/or violent felony conviction . . . for any of the following
felonies.” We find it significant that the statute uses the term “felonies” to describe the
disqualifying prior convictions. The use of the term “felonies” strongly indicates that the
determination of whether an offense qualifies as a “super strike” depends on the nature of
the offense itself, not the nature of the defendant or the effect of other prior convictions
on the defendant’s sentence.
We also find it significant that section 667, subdivision (e)(2)(C)(iv)(VIII) is the
final sub-clause in a list of specific crimes and categories of crimes. None of the other
seven sub-clauses of section 667, subdivision (e)(2)(C)(iv) focuses on characteristics of
the offender or the effect of other prior convictions on the offender’s sentence. “The rule
of statutory construction, noscitur a sociis, a word takes meaning from the company it
keeps, is useful here. ‘A word of uncertain meaning may be known from its associates
and its meaning “enlarged or restrained by reference to the object of the whole clause in
which it is used.” [Citation.]’ [Citation.]” (People v. Drennan (2000) 84 Cal.App.4th
1349, 1355.) “ ‘ “In accordance with this principle of construction, a court will adopt a
restrictive meaning of a listed item if acceptance of a more expansive meaning would
make other items in the list unnecessary or redundant, or would otherwise make the item
markedly dissimilar to the other items in the list.” [Citation.]’ [Citation.]” (Kaatz v. City
of Seaside (2006) 143 Cal.App.4th 13, 40.) If we were to adopt the Attorney General’s
interpretation of the term “offense punishable in California by life imprisonment” as
including offenses that are punishable by life imprisonment due to factors such as the
presence of prior convictions, sub-clause (VIII) would be markedly dissimilar to the other

8
seven items listed in section 667, subdivision (e)(2)(C)(iv), which are: sexually violent
offenses, specified sex crimes against minors, homicide offenses, solicitation to commit
murder, assault with a machine gun on a police officer or firefighter, and possession of a
weapon of mass destruction.
Our construction of section 667, subdivision (e)(2)(C)(iv)(VIII) is also consistent
with the stated purpose of Proposition 36. In section 1, the “Findings and Declarations”
section, the initiative stated, “This act will . . . [r]equire that murderers, rapists, and child
molesters serve their full sentences—they will receive life sentences, even if they are
convicted of a new minor third strike crime.” (Voter Information Guide, Gen. Elec.
(Nov. 6, 2012) text of Prop. 36, § 1, p. 105.) The electorate specified that certain crimes
would make an offender ineligible for Proposition 36’s sentencing changes. Those
specified crimes did not include robbery or any similar offenses. (See gen., People v.
Hoffman (2015) 241 Cal.App.4th 1304, 1310 [“Section 667, subdivision (e)(2)(C)(iv)
enumerates a narrow list of super-strike offenses such as murder, rape and child
molestation.”].) And nothing in the text of Proposition 36 suggests that the electorate
intended to disqualify an offender from the sentencing changes due to the offender’s
conviction of a serious or violent offense that resulted in an indeterminate life sentence
under the Three Strikes law.
Our construction of the phrase “offense punishable in California by life
imprisonment or death” (§ 667, subd. (e)(2)(C)(iv)(VIII)) is consistent with the
construction of a similar statutory phrase by the court in People v. Turner (2005) 134
Cal.App.4th 1591 (Turner). In Turner, the court considered former section 799 (now
§ 799, subd. (a)), which sets forth the statute of limitations for “an offense punishable by
death or imprisonment in the state prison for life.” The question in Turner was whether
a robbery charge was subject to the three-year statute of limitations applicable to most
felonies set forth in section 801 or whether that particular robbery could be prosecuted
“at any time” under former section 799 because the defendant had prior strike convictions

9
that made the robbery “an offense punishable by death or imprisonment in the state
prison for life.” The Turner court concluded that “for the purpose of determining the
applicable statute of limitations, the maximum punishment is the punishment prescribed
for the offense itself,” not the “punishment that applies to a particular offender, and which
is based upon facts other than the commission of the offense for which he or she is being
prosecuted.” (Id. at pp. 1596-1597.) The court noted that section 15 defines an “offense”
as “ ‘an act committed or omitted in violation of a law forbidding or commanding it’ ”
(Turner, supra, at p. 1597) and that therefore, the word “offense” in former section 799
“must refer to the current felony for which the defendant is to be, or is being, prosecuted,
not the facts of prior convictions” (Turner, supra, at p. 1597). The court held that an
indeterminate life term imposed under the Three Strikes law is “an alternative sentence
imposed upon those who commit a current felony offense, and who are recidivist
offenders.” (Turner, supra, at p. 1597.)
The California Supreme Court has also similarly construed section 667.5,
subdivision (c)(7), which specifies that “violent felonies” include “[a]ny felony
punishable by death or imprisonment in the state prison for life.” In People v. Thomas
(1999) 21 Cal.4th 1122 (Thomas), the issue was whether the defendant could accrue
conduct credits while in custody under section 4019 or whether he was subject to the
15 percent conduct credit limitation of section 2933.1, which applies to a person who is
convicted of a violent felony listed in section 667.5, subdivision (c). The defendant had
not been convicted of any violent felony specifically enumerated in section 667.5,
subdivision (c), but he had received indeterminate life sentences under the Three Strikes
law, and thus his offenses were arguably felonies “punishable by death or imprisonment
in the state prison for life” under section 667.5, subdivision (c)(7). The Thomas court
concluded that “sections 2933.1 and 667.5(c)(7) only apply when a defendant is
convicted of an offense that itself carries a punishment of life imprisonment, not when
he receives a life sentence merely due to his status as a recidivist.” (Thomas, supra, at

10
p. 1127.) The court reasoned that if an offense subject to a Three Strikes sentence
qualified as a “felony punishable by” life imprisonment under section 667.5,
subdivision (c)(7) or section 1192.7, subdivision (c)(7), “[a] third strike would by
definition, therefore, always qualify as a serious or violent offense.” (Thomas, supra,
at p. 1128.)
The rationale of Turner and Thomas lends further support to our conclusion that
the phrase “offense punishable in California by life imprisonment or death” (§ 667,
subd. (e)(2)(C)(iv)(VIII)) means an offense that itself has an associated statutory
punishment of life imprisonment or death, not an offense such as robbery, which has an
associated statutory punishment of two, three, or five years. An offense such as robbery
is not converted to an “offense punishable in California by life imprisonment or death”
(§ 667, subd. (e)(2)(C)(iv)(VIII)) by virtue of the fact that the particular offender has
two prior serious or violent felony convictions.
The Attorney General contends that a particular conviction falls within
section 667, subdivision (e)(2)(C)(iv)(VIII) if the defendant received a life sentence as
the result of a “penalty provision.” The Attorney General relies on People v. Williams
(2014) 227 Cal.App.4th 733 (Williams) for the proposition that “to determine whether the
punishment imposed for a felony conviction constitutes a life sentence,” a reviewing
court “look[s] at the applicable sentencing scheme.” (Id. at p. 744.) The Wiliams case
involved the interpretation of section 186.22, subdivision (b)(5), which provides that “any
person who [acts for the benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in any criminal conduct
by gang members] in the commission of a felony punishable by imprisonment in the state
prison for life shall not be paroled until a minimum of 15 calendar years have been
served.” In Williams, the defendant had been sentenced to terms of 25 years to life for
three offenses—robbery, assault, and kidnapping—as a result of the application of the
Three Strikes law. None of the defendant’s convictions “standing alone” provided for a

11
life sentence. (Williams, supra, at p. 741.) However, his offenses were “punishable by
imprisonment in the state prison for life” within the meaning of section 186.22,
subdivision (b)(5) as “the result of a penalty provision,” i.e., the Three Strikes law, and
thus he was subject to a 15-year minimum parole period rather than a 10-year determinate
term enhancement under section 186.22, subdivision (b)(1)(C). (Williams, supra, at
p. 745.)
The Williams case relied on the distinction between a penalty provision and an
enhancement recognized in two California Supreme cases: People v. Montes (2003) 31
Cal.4th 350 (Montes) and People v. Jones (2009) 47 Cal.4th 566 (Jones), both of which
also involved issues arising under the gang enhancement statute. Montes held that
section 186.22, subdivision (b)(5) applies to “a felony that, by its own terms, provides
for a life sentence,” not to a felony that had an associated enhancement of 25 years to
life pursuant to section 12022.53, subdivision (d). (Montes, supra, at p. 352.) Jones
held that a defendant who is subject to a life term for a gang-related crime pursuant to
section 186.22, subdivision (b)(4), which is a “penalty provision,” has committed a
“felony punishable by death or imprisonment in the state prison for life” within the
meaning of section 12022.53, subdivision (a)(17). (Jones, supra, at pp. 575-576, 578-
579.)
Williams, Montes, and Jones all involved the criminal street gang statute, which
provides for different punishment depending on the defendant’s conduct and other
circumstances. None of those cases considered the meaning of the phrase “offense
punishable in California by life imprisonment or death” as used in section 667,
subdivision (e)(2)(C)(iv)(VIII). “It is axiomatic that cases are not authority for
propositions not considered. [Citations.]” (People v. Ault (2004) 33 Cal.4th 1250, 1268,

12
fn. 10.)6 Our analysis of section 667, subdivision (e)(2)(C)(iv)(VIII) is unaffected by the
distinction between a penalty provision and an enhancement.
The Attorney General also contends that the issue in this case is moot, pointing out
that if defendant’s petition is granted, it will not provide him with any “material benefit”
because his sentence for petty theft with a prior was stayed pursuant to section 654. In
other words, defendant will still be serving an indeterminate term of 25 years to life for
the robbery and a 10-year determinate term for the two serious felony conviction
allegations.
The Attorney General cites People v. Valencia (2014) 226 Cal.App.4th 326
(Valencia) for the proposition that an issue is moot if “no prejudicial collateral
consequences would be ameliorated” by ruling in the defendant’s favor. (Id. at p. 329.)
In Valencia, the Court of Appeal determined that the defendant should have been
awarded three more days of custody credit. (Ibid.) However, the defendant had already
been released from jail. As there was no scenario under which it would have benefitted
him to be awarded the additional credits, the issue was moot. (Ibid.) In this case, by
contrast, if defendant is ultimately successful with his section 1170.18 petition, he will
have one of his felony convictions reduced to a misdemeanor. Having one less felony
conviction is undeniably a potential benefit, such that the issue is not moot. The question
of defendant’s eligibility for resentencing is therefore not one that “ ‘involves only

6
Also inapposite is People v. Johnson (2015) 61 Cal.4th 674 (Johnson), which
defendant relies on and refers to as “People v. Machado.” The question in Johnson was
whether the term “sentence” (§ 1170.126, subd. (a)) meant “the term imposed for a single
crime” or “the aggregate term imposed for multiple crimes.” (Johnson, supra, at p. 688.)
The Johnson court held that as used in section 1170.126, subdivision (a), the term
“sentence” meant “the sentence imposed with respect to a single count” (Johnson, supra,
at p. 694) and thus “that the presence of a current offense that is serious or violent does
not disqualify an inmate from resentencing with respect to a current offense that is neither
serious nor violent” (id. at p. 680).

13
abstract or academic questions of law’ ” and is not moot. (People v. Delong (2002) 101
Cal.App.4th 482, 486.)
In sum, defendant was not disqualified from resentencing under section 1170.18,
subdivision (i) by virtue of the fact that his robbery conviction was punished by an
indeterminate life term under the Three Strikes law, since robbery itself is not “[a] serious
and/or violent felony offense punishable in California by life imprisonment or death”
under section 667, subdivision (e)(2)(C)(iv)(VIII). We will therefore reverse the trial
court’s order denying defendant’s section 1170.18 petition and remand this case for a
determination of whether resentencing defendant for his petty theft with a prior “would
pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)

IV. DISPOSITION
The order denying defendant’s Penal Code section 1170.18 petition is reversed.
The case is remanded to the superior court for a determination of whether resentencing
defendant “would pose an unreasonable risk of danger to public safety.” (Pen. Code,
§ 1170.18, subd. (b).)

14
 ___________________________________________
BAMATTRE-MANOUKIAN, J.

WE CONCUR:

__________________________
ELIA, ACTING P.J.

__________________________
MIHARA, J.

People v. Hernandez
H043551
Trial Court: Santa Clara County Superior Court
Superior Court No. 189458

Trial Judge: Hon. Linda R. Clark

Attorney for Appellant: Carla Castillo,
Peter David Hernandez under appointment by the Court of Appeal

Attorneys for Respondent: Kamala D. Harris,
The People Attorney General
Gerald A. Engler,
Chief Assistant Attorney General
Jeffrey M. Laurence,
Senior Assistant Attorney General
Catherine A. Rivlin,
Supervising Deputy Attorney General
Gregg E. Zywicke,
Deputy Attorney General

People v. Hernandez
H043551