Opinion
E068935
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. THOR SINTHAVONG CHANTHASONE, Defendant and Appellant.
James M. Crawford, 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, and Michael Pulos and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1500622) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Dismissed. James M. Crawford, 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, and Michael Pulos and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Thor Sinthavong Chanthasone, filed a petition pursuant to Health and Safety Code section 11361.8 for resentencing or dismissal of his sentence for cultivation of marijuana, which the court denied. On appeal, defendant contends the court erred in denying his petition. The appeal is dismissed without prejudice to defendant filing a new petition in the court in which defendant was sentenced.
I. PROCEDURAL HISTORY
On July 16, 2014, the People charged defendant by felony information in San Diego County with cultivating marijuana (count 1; Health & Saf. Code, § 11358), possession of marijuana for sale (count 2; Health & Saf. Code, § 11359), possession of a firearm by a felon (count 3; Pen. Code, § 29800, subd. (a)(1)), and possession of ammunition by a prohibited person (count 4; Pen. Code, § 30305, subd. (a)(1)). The People additionally alleged defendant was armed with a nine-millimeter pistol and a .22-caliber handgun during his commission of the counts 1 and 2 offenses. (Pen. Code, § 12022, subd. (a)(1).)
On October 30, 2014, in San Diego County, defendant pled guilty to the count 1 offense and admitted one of the firearm enhancements. The court dismissed the remaining counts and enhancements and sentenced defendant to four years of formal probation.
The People note the minute order dated October 30, 2014, mistakenly reflects the plea was entered in Riverside County rather than San Diego County.
On February 3, 2017, defendant filed a petition pursuant to Health and Safety Code section 11361.8 in Riverside County requesting resentencing or dismissal of his probation. On March 24, 2017, the People filed a response indicating defendant was entitled to resentencing. On April 18, 2017, the court set a hearing and ordered counsel appointed for defendant, expressing concern that defendant may not be entitled to resentencing due to his admission that he possessed a handgun during the offense for which he stood convicted.
At the hearing on August 11, 2017, the court noted: "He did have a 9-millimeter weapon—or a 9-millimeter weapon was found during the course of the search of the property, so the Court . . . would agree . . . that Prop. 64 does not specifically talk about whether or not a person is disqualified from being armed with a firearm. However, in looking at the case law under Prop. 36 and Prop. 47 and the intentions of the legislature and the voters in enacting the act, that an individual who is armed with a firearm is no longer a nonviolent drug felon, so the Court would deny the request to be resentenced."
The court observed that although defendant pled guilty in San Diego County, his probation was transferred to Riverside County for all purposes: "So this is the proper venue to bring this." As the People noted, the issue of whether a Penal Code section 1170.18 petition must be brought in the court that entered the judgment of conviction or in the superior court of the receiving county was then pending before the California Supreme Court. --------
II. DISCUSSION
Defendant contended the court abused its discretion in denying his petition because the possession of a firearm enhancement neither rendered him ineligible for relief nor established that he would pose an unreasonable risk of danger to public safety within the meaning of Health and Safety Code section 11361.8. The People conceded the error and maintained the matter should be remanded to the trial court to clarify its rationale for denying defendant's petition. In our original tentative opinion issued on April 30, 2018, we agreed and ordered the matter reversed and remanded for a new hearing at which the court would be required to make clear whether the court found defendant cursorily ineligible for resentencing due to the true finding on the weapon enhancement or whether this formed the basis for a finding that defendant posed an unreasonable risk of danger to public safety.
On May 10, 2018, after issuance of our tentative opinion and waiver of oral argument by the parties, the California Supreme Court issued its opinion in People v. Adelmann (2018) 4 Cal.5th 1071 (Adelmann), holding that a defendant is required to file a Penal Code section 1170.18 petition in the court in which he was sentenced, regardless of whether the matter is later transferred to another superior court. On May 25, 2018, we vacated submission of the matter, ordered our tentative opinion withdrawn, and requested the parties to file supplemental briefs addressing the issue of whether the court's decision in Adelmann required that we dismiss the appeal without prejudice to defendant filing a petition in the San Diego Superior Court.
In his supplemental brief, defendant contends we are not required to dismiss the appeal; that Adelmann applies only to petitions brought pursuant to Penal Code section 1170.18, not petitions brought pursuant to Health and Safety Code section 11361.8; and that, regardless, the People waived any jurisdictional issues by consenting to the Riverside County Superior Court's exercise of jurisdiction in the instant matter. The People maintain the matter must be dismissed because the language which Adelmann interpreted in Penal Code section 1170.18 is exactly the same as the language in Health and Safety Code section 11361.8 and because the People expressly objected to the Riverside County Superior Court's exercise of jurisdiction in the instant matter. We agree with the People.
The Adelmann court held that the language of Penal Code section 1170.18 requiring that a petitioner file a petition "before the trial court that entered the judgment of conviction" meant what it read, i.e., "that the original sentencing court, or an assigned judge in that county, rule on a resentencing petition." (Adelmann, supra, 4 Cal.5th at p. 1080.) The Adelmann court additionally held that a defendant may not waive his right to be sentenced by a particular judge in a particular county. (Id. at p. 1081.)
Like Penal Code section 1170.18, subdivision (a), Health and Safety Code section 11361.8, subdivision (a) contains an identical requirement that the petition be brought "before the trial court that entered the judgment of conviction . . . ." Similarly, like Penal Code section 1170.18, subdivision (l), Health and Safety Code section 11361.8, subdivision (i), identically requires that, "[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." The Adelmann court held that such language "does not grant a . . . right to choose the venue for such a petition." (Adlemann, supra, 4 Cal.5th at p. 1081.) It further held that "even in the case of a probationary transfer, the original sentencing court is the proper venue for a resentencing petition under [Penal Code] section 1170.18." (Ibid.)
"We recognize the rule of statutory construction that identical language appearing in separate statutory provisions should receive the same interpretation when the statutes cover the same or an analogous subject matter. [Citations.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6.) "'It is an established rule of statutory construction that similar statutes should be construed in light of one another [citations], and that when statutes are in pari materia similar phrases appearing in each should be given like meanings. [Citations.]' [Citations.]" (People v. Lamas (2007) 42 Cal.4th 516, 525.)
Here, both Penal Code section 1170.18 and Health and Safety Code section 11361.8 are remedial, resentencing provisions passed by the electorate to lower the penalty for certain, expressly enumerated crimes. (Adelmann, supra, 4 Cal.5th at p. 1074.) That they contain identical language regarding an analogous subject matter requires that they be interpreted similarly. Thus, defendant was required to file his petition for resentencing or dismissal in the county superior court in which he was sentenced, San Diego. Therefore, the appeal must be dismissed without prejudice to defendant filing the petition in the San Diego County Superior Court.
Moreover, contrary to defendant's contention, the People expressly objected to the Riverside County court's exercise of jurisdiction over defendant's petition: "Can I additionally say that the fact that the conviction is out of San Diego County, I believe the People's position is that the resentencing petition best belongs in San Diego County, so the People would oppose the petition on that ground as well." Thus, defendant's argument the People waived jurisdiction is belied by the record. Regardless, Adelmann held that the jurisdiction of the sentencing county court cannot be waived. (Adelmann, supra, 4 Cal.5th at p. 1081.)
III. DISPOSITION
The appeal is dismissed without prejudice to defendant filing a petition in the county court in which he was sentenced.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. FIELDS
J.