Filed 11/13/18 P. v. Brown CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Reversed with directions.

Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Brian Jeffrey Brown appeals from the trial court’s order denying his petition for resentencing pursuant to Penal Code section 1170.18[1], subdivision (f), also known as Proposition 47. Because the People did not meet their burden to prove that defendant is ineligible pursuant to section 1170.18, subdivision (i), we reverse and remand for further proceedings in accordance with section 1170.18.

Facts and Procedure

On November 13, 2013, defendant pled guilty to one count of felony theft. (§ 484, subd. (a).)

On February 22, 2017, defendant filed a petition to reduce the felony theft conviction to a misdemeanor under section 1170.18, subdivision (f). The People opposed the motion on the ground that defendant is required to register as a sex offender under section 290 for a juvenile adjudication for section 220 (assault with intent to commit mayhem, rape, sodomy, oral copulation). At the hearing held on April 14, 2017, the People presented to the court a certified printout from the California Law Enforcement Telecommunications Systems (CLETS) showing a 1991 violation of “220 PC-ASSA ULT TO COMMIT RAPE – USED WEAPON.” The court heard argument from the People; the defense submitted. The court denied the petition on the basis that defendant is “not eligible.”

This appeal followed.

Discussion

Defendant argues the trial court erred when it found him ineligible for relief under Proposition 47. The People concede, and this court agrees.

In November 2014, California voters enacted Proposition 47, which created a new resentencing provision: section 1170.18. The statute provides that those who have already served their sentence for certain felonies may petition for reduction to a misdemeanor. (§ 1170.18, subds. (f)-(h).) Under section 1170.18, subdivision (f): “A person who has completed his or her sentence for a conviction . . . who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.”

Once the petitioner establishes initial eligibility for relief, the People may show the petitioner is ineligible for relief, by either rebutting the defense evidence or proving the petitioner has been convicted of a disqualifying offense. (People v. Fernandez (2017) 11 Cal.App.5th 926, 932.) The court’s order must be supported by substantial evidence. (Id. at p. 937.) Persons ineligible for relief are those who have a prior conviction for a “super strike” under section 667, subdivision (e)(2)(C)(iv), or for an offense that requires sex offender registration under section 290, subdivision (c).[2] (§ 1170.18, subd. (i).)

Here, the People based their argument that defendant is ineligible for Proposition 47 relief on the assertion that he has a prior juvenile adjudication for section 220, which can qualify as both a super strike and an offense requiring sex offender registration under section 290, subdivision (c). However, as the parties agree, the evidence the People submitted in support of their assertion that defendant is ineligible indicates that he was 15 years old when he committed the section 220 offense. Section 667, subdivision (d)(3), provides that a prior juvenile adjudication qualifies as a serious and/or violent felony only if “[t]he juvenile was 16 years of age or older at the time he or she committed the prior offense.” (§ 667, subd. (d)(3)(A); see People v. Fernandez, supra, 11 Cal.App.5th at p. 930.) In addition, because the evidence the People submitted indicates defendant was 15 years old at the time he committed the section 220 crime, he was required to register under section 290.008 (juveniles adjudicated a ward of the juvenile court for specified sex offenses; duty to register), not section 290. (Id. at pp. 937-938.) Thus, because the CLETS report supplied by the People is not substantial evidence that defendant was at least 16 years old at the time he committed the section 220 offense, the People did not carry its burden to establish under either prong of section 1170.18, subdivision (i), that defendant is ineligible for relief under Proposition 47.

Disposition

The trial court’s order denying defendant’s petition is reversed and the matter is remanded for further proceedings in accordance with section 1170.18.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RAPHAEL

J.