T.W. v. Superior Court of Contra Costa Cnty.

• Decision Date: 21 April 2015
• Docket Number: A144528
• Citation: 186 Cal.Rptr.3d 620,236 Cal.App.4th 646
• Court: California Court of Appeals
• Parties: T.W., Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; The People, Real Party in Interest.

236 Cal.App.4th 646

186 Cal.Rptr.3d 620

T.W., Petitioner

v. The SUPERIOR COURT of Contra Costa County, Respondent;The People, Real Party in Interest.

A144528

Court of Appeal, First District, Division 1, California.

Filed April 21, 2015

Robin Lipetzky, Public Defender, Jonathan Laba, Karen Moghtader, Assistant Public Defenders, and Ji Seon Song, Deputy Public Defender for Petitioner.

Michael T. Risher, San Francisco, Micaela Davis, for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on behalf of Petitioner.

Lenore Anderson, for Californians for Safety and Justice/Vote Safe as Amicus Curiae on behalf of Petitioner.

Michael Romano, San Francisco, for Stanford Law School Three Strikes Project as Amicus Curiae on behalf of Petitioner.

Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Eric D. Share and Huy R. Luong, Deputy Attorneys General for Real Party in Interest.

Opinion

Margulies, Acting P.J.

In this mandamus proceeding, petitioner T.W. seeks a writ compelling respondent superior court to vacate its order denying his petition for modification, filed pursuant to Welfare and Institutions Code section 778, and under authority of Penal Code section 1170.18.¹ Our review of the parties' briefs and the record lead us to conclude T.W. is entitled to writ relief. Thus, in accordance with our notification to the parties we might do so, we order issuance of a writ directing respondent court to vacate its order denying T.W.'s petition for recall of sentence. (Code Civ. Proc., § 1088 ; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180, 203 Cal.Rptr. 626, 681 P.2d 893 ; Ng v. Superior Court (1992) 4 Cal.4th 29, 35, 13 Cal.Rptr.2d 856, 840 P.2d 961 ; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239–1241, 82 Cal.Rptr.2d 85, 970 P.2d 872.) However, because respondent court did not reach the issue of whether T.W. would pose an unreasonable risk of danger to public safety (see § 1170.18, subd. (b) ), the matter is remanded for the court to make that determination.

I. Background

T.W. was made a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 in July 2010. A supplemental petition was filed by the Alameda County District Attorney's Office on July 23, 2013, alleging felony violations of Penal Code section 211, robbery, and section 496, receiving stolen property. In the underlying incident, T.W. robbed the victim of her purse and contents and was found in possession of a stolen ATM card and cell phone. On July 30, 2013, the Alameda County Superior Court held a pretrial hearing on the petition. The minute order of the hearing reflects T.W. was in custody and was advised of his constitutional rights. The minute order states as follows: “The minor has waived [his] right to a trial, to remain silent, to confront and cross-examine witnesses, to subpoena witnesses ( [Welf. & Inst.Code, § 702.5 ] ); understands the nature of the conduct alleged in the petition and the possible consequences of an admission; the admission is made freely and voluntarily. There is a factual basis for the admission. [¶] The minor is a person described by Section 602 of the Welfare and Institutions Code. [¶] Pursuant to the minor's admission: [¶] Count 1 ( [Pen.Code, § ] 211 ) (F) Dismissed on motion of DA with facts and restitution open on 07/30/2013 [¶] Count 2 ( [Pen.Code, § ] 496 ) (F) True as admitted on 07/30/2013 [¶] Admission is with counsel's consent.” Thereafter, the court transferred the matter to Contra Costa Superior Court for disposition because T.W.'s legal residence was that of his mother, who resided in Contra Costa County.

Subsequently, in November 2014, T.W. filed a petition for modification, pursuant to Welfare and Institutions Code section 778, based on voter initiative Proposition 47 that passed on November 5, 2014.² The petition notes T.W.'s maximum term of confinement was set at three years four months after he admitted he took a woman's purse and its contents with a total value of under $950. The petition states: “Pursuant to Proposition 47, a violation of Penal Code 496 and possessed property valued at less than $950 [sic ] is now a misdemeanor and carries a maximum confinement term of 12 months. Petitioner requests that his maximum term of confinement be modified to 16 months .... [¶] ... [¶] ... [and] that he be released from custody immediately” because he had already been detained for over two years.

In his opposition brief, the Contra Costa County District Attorney conceded Proposition 47 applies to juvenile delinquents but argued because T.W. posed an unreasonable risk of danger to public safety, resentencing was not appropriate and the petition should be denied. In a supplemental rebuttal brief, the district attorney also argued Proposition 47's “retroactive resentencing provision” does not apply to negotiated dispositions. After calling for further briefing on the latter argument raised by the district attorney, the court held a hearing on December 16, 2014. At the hearing, the court ruled Proposition 47 applies to juvenile cases because under Welfare and Institutions Code section 726, a juvenile cannot be held in confinement for longer than the maximum term applicable to an adult. The court stated for purposes of applying Penal Code section 1170.18, the key issue was “whether there is an implication that the core issue in the plea agreement was intended to not be affected by further changes in the law .... [¶] ... [,i.e.,] whether or not ... there was a plea bargain for the specific charges and the ... maximum commitment time.” The court continued: “Let's be clear. If it was not a plea bargain, Prop 47 applies.... [¶] ... [¶] I believe I can transfer this case to Alameda County for the express purpose of having the Alameda County court determine whether their agreed-upon plea ... was a plea bargain....” On December 16, 2014, the court transferred the case to Alameda County Superior Court “for determination of the Prop. 47 petition.”

After Alameda County Superior Court transferred the case back without taking any action on the Proposition 47 petition, Contra Costa County Superior Court set a further hearing on January 13, 2015, to resolve T.W.'s still-pending Proposition 47 petition. At the hearing, counsel for T.W. argued that since Alameda County Superior Court declined to act on the Proposition 47 petition “[w]e don't know” if T.W. entered a plea bargain, and accordingly the court should grant the Proposition 47 petition. The district attorney, on the other hand, argued that the language of the minute order of the plea hearing entered in Alameda County Superior Court on July 30, 2013, clearly demonstrated the plea was indeed a “negotiated disposition.”

Thereafter, the juvenile court denied the modification petition. The court stated: “If it is a negotiated plea bargain where in exchange for a reduced charge to which the minor enters a plea, a non-Prop 47 count is reduced and the court accepts that agreement, then in my opinion ... that's not a Prop 47 eligible reduction.... [¶] In this particular case, .... given that it was, by the minute order, a dismissal of one count for a plea to another and the showing that restitution was left open on the dismissed count, that's a sufficient indicia of a plea bargain that somebody would have to bring a transcript in to show that it wasn't. [¶] So I'm going to find that the Prop 47 petition is denied.” On March 6, 2015, T.W. filed a notice of appeal of the court's denial of his petition under section 1170.18.³

T.W. subsequently filed this writ petition on March 16, 2015, contending the remedy of appeal is “neither speedy nor adequate” because, “As of the date of the filing of this writ petition, petitioner has served two years, six months and eleven days in custody. Absent relief, he has nine months and nineteen days of remaining custodial time. If granted Proposition 47 relief, petitioner will be entitled to immediate release from custody.”

II. Discussion

Section 1170.18, subdivision (a) provides: “A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing....” (Italics added.) Proposition 47 reduced the offense of receiving stolen property from a felony to a misdemeanor where the value of the property does not exceed $950. (See §§ 496, 1170.18, subd. (a).) As T.W. admitted to receiving stolen property, he contends he is entitled to petition for recall of his sentence because by its plain language section 1170.18 applies to convictions by trial or plea, and thus the trial court erred by engrafting a plea agreement disqualifier into the statute. We agree.

“ ‘In interpreting a voter initiative ... we apply the same principles that govern statutory construction. [Citation.] Thus, “we turn first to the language of the statute, giving the words their ordinary meaning.” [Citation.]

The statutory language must also be construed in the context of the statute as a whole and the overall statutory scheme [in light of the electorate's intent]. [Citation.] When the language is ambiguous, “we refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.’ “ (People v. Briceno (2004) 34 Cal.4th 451, 459, 20 Cal.Rptr.3d 418, 99 P.3d 1007.)

Here, section 1170.18 clearly and unambiguously states, “A person currently serving a sentence for a conviction, whether by trial or plea ” of eligible felonies may petition for...