Opinion
C078838
11-20-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF131587)
Defendant Michael Allen Johnson appeals from a trial court order finding him ineligible for Proposition 47 resentencing under Penal Code section 1170.18, subdivision (i) (hereafter, § 1170.18(i); unless otherwise set forth, statutory section references that follow are to the Penal Code), which renders ineligible for resentencing persons with a prior conviction for murder. (§ 1170.18(i) [statute inapplicable to person with one or more prior conviction(s) for offense specified in § 667, subd. (e)(2)(C), which includes murder].) Defendant, an adult, contends the trial court erred in counting his prior juvenile adjudication for a 1992 murder (§ 187), committed when he was 17 years old, as a prior "conviction" disqualifying him from resentencing. We granted his request for judicial notice of voter information guides and legislative history of Proposition 47 and statutes addressing juvenile adjudications.
We conclude defendant's prior juvenile adjudication for murder at age 17 renders him ineligible for Proposition 47 relief. (People v. Sledge (2017) 7 Cal.App.5th 1089 (Sledge) [felony juvenile adjudication is a disqualifying prior conviction under § 1170.18 if it is a "super strike" and meets other conditions].) We accordingly affirm the trial court order. We order correction of a clerical error in the abstract of judgment.
FACTS AND PROCEEDINGS
In 2013, defendant was charged with (1) transportation of and (2) possession of methamphetamine for sale (Health & Saf. Code, §§ 11378-11379), (3) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and (4) possession of heroin (Health & Saf. Code, § 11350, subd. (a)). The information alleged defendant had served a prior prison term (§ 667.5, subd. (b)) and had three prior serious or violent felony convictions for purposes of three strikes sentencing (§ 667, subd. (e)(2)) -- two convictions for first degree burglary (§ 459) in 2007, and a 1992 "conviction" for murder (§ 187).
Defendant pleaded no contest to counts three and four (possession of methamphetamine and heroin) and admitted the prior strikes and prior prison term, in exchange for dismissal of the first two counts and a sentence of eight years and four months, which the trial court imposed in March 2014.
On November 24, 2014, defendant petitioned the trial court to recall his sentence and reduce the count three and four felonies to misdemeanors under section 1170.18, subdivision (a). He filed two petitions for the two counts, though they were the same case.
The prosecution initially responded it had no objection but later objected in court on the ground that defendant had a juvenile adjudication for a murder in Solano County in 1992, when he was 17 years old, which rendered him ineligible for Proposition 47 relief. The court continued the matter to allow briefing. The defense acknowledged that, based on the probation report, defendant (who was born in September 1974) violated section 187 on April 24, 1992 (when he was 17 years old) and pursuant to juvenile adjudication was committed to the California Youth Authority in September 1992. The defense argued juvenile adjudications do not count as convictions disqualifying persons from Proposition 47 relief.
On March 17, 2015, after a hearing, the trial court denied the petition on the ground that defendant's prior juvenile adjudication for murder disqualified him from Proposition 47 relief.
DISCUSSION
Section 1170.18(i), which authorizes recall of sentence and reduction of felonies to misdemeanors under Proposition 47, does 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 [repeat offenders] . . . ."
Offenses specified in the referenced statute include: "Any homicide offense . . . defined in Sections 187 to 191.5, inclusive." (§ 667, subd. (e)(2)(C)(iv)(IV).)
Defendant's other prior convictions -- for first-degree burglary -- are not offenses specified in that statute. (§ 667, subd. (e)(2)(C)(iv)(I)-(VIII) [other offenses are sexual offenses, solicitation to commit murder, assault with a machine gun on a peace officer or firefighter, possession of a weapon of mass destruction, and any serious and/or violent felony offense punishable in California by life imprisonment or death]; see § 461 [first-degree burglary is not punishable by life in prison or death].)
Therefore, defendant's two prior convictions for first-degree burglary do not automatically disqualify him from Proposition 47 relief. Only the prior murder adjudication could disqualify defendant in this case.
Defendant contends that only prior convictions as an adult -- not prior juvenile adjudications -- can render Proposition 47 inapplicable. We disagree.
This appeal involves only a question of law in interpreting a statute enacted as part of a voter initiative, for which our review is de novo. (Sledge, supra, 7 Cal.App.5th at p. 1095.)
While this appeal was pending, the Court of Appeal for the Fourth District, Division Three, in Sledge, supra, 7 Cal.App.5th 1089, held that, under section 1170.18(i), some felony juvenile adjudications are disqualifying prior convictions for Proposition 47 purposes if they meet certain criteria, i.e., that the prior offense was a "super strike" serious or violent felony and that the offender was at least 16 years old when he committed the offense. (Id. at pp. 1091, 1099 [prior juvenile adjudication for forcible rape disqualified defendant from Proposition 47 relief].)
The Fifth Appellate District agreed with Sledge's basic holding but the matter before that court involved a different offense that did not meet the criteria rendering the person ineligible for Proposition 47 relief. (People v. Fernandez (2017) 11 Cal.App.5th 926, 935 (Fernandez) [prior juvenile adjudication of forcible lewd act committed before age 16 was not a prior conviction precluding resentencing]; see also, People v. Zamora (2017) 11 Cal.App.5th 728 [finding Sledge distinguishable and holding prior juvenile adjudication for sexual battery was not a prior conviction precluding Proposition 47 relief].) We reach the same conclusion that a prior juvenile adjudication for a serious or violent felony disqualifies a person from section 1170.18 resentencing if it meets the specified criteria.
Section 1170.18(i) states that the provisions of this section shall not apply to 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 registration [as a sex offender] . . . ." (Italics added.)
In turn, section 667, subdivision (e)(2)(C)(iv), applies when "The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies . . . ," including various sex, violence, and homicide offenses sometimes referred to as "super strikes." (Sledge, supra, 7 Cal.App.5th at p. 1099, citing People v. Zamarripa (2016) 247 Cal.App.4th 1179, 1183 (Zamarripa).)
"Conviction" is a term of art usually associated with adult proceedings and, when used in statutes, is ordinarily construed as applying only in cases of adult convictions. (In re Derrick B. (2006) 39 Cal.4th 535, 540.) Under the juvenile court law, a person adjudged a ward of the court has not been "convicted" of anything. (Id. at p. 541.) Welfare and Institutions Code (WIC) section 203 mandates: "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. . . ."
In construing section 1170.18(i), we assume the voters were aware of WIC section 203 and judicial construction of its terms. (Fernandez, supra, 11 Cal.App.5th at p. 933.)
Fernandez, supra, 11 Cal.App.5th at pages 933-934, discussed Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (Alejandro N.), in which the Fourth Appellate District held that juvenile offenders are generally entitled to the benefits of section 1170.18. "Welfare and Institutions Code section 602 provides for a minor to be declared a ward of the juvenile court when the minor commits a crime set forth in the Penal Code and other codes defining criminal offenses primarily in the adult criminal context. The section thereby incorporates the entire body of laws defining criminal offenses as the basis for juvenile wardship jurisdiction. Accordingly, when a criminal offense is reclassified from a felony to a misdemeanor in the adult context -- as occurred under Proposition 47 -- the reclassification likewise applies in juvenile wardship proceedings." (Alejandro N., at pp. 1216-1217.)
Fernandez did not read Alejandro N. to hold, as the People suggested, that the word "conviction" was intended to be synonymous with "juvenile adjudication" in every provision of section 1170.18. (Fernandez, supra, 11 Cal.App.5th at p. 934.) "After all, the voters are presumed to have been equally familiar with the language of Welfare and Institutions Code section 203 ('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. . . .') and judicial construction of its terms." (Ibid.)
Nevertheless, Fernandez, supra, 11 Cal.App.5th at pages 934-935, agreed with the following analysis from Sledge, supra, 7 Cal.App.5th at pages 1099-1101, focusing on section 1170.18(i)'s cross-reference to offenses specified in section 667, subdivision (e)(2)( C)(iv).
Thus, as indicated, section 1170.18(i) states that the provisions of this section shall not apply to persons who have "one or more prior convictions for an offense specified in [section 667, subdivision (e)(2)(C)(iv)] . . . ." In turn, section 667, subdivision (e)(2)(C)(iv), applies when "The defendant suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of this section, for any of the following felonies . . . ," including various sex, violence, and homicide offenses sometimes referred to as "super strikes." (Sledge, supra, 7 Cal.App.5th at p. 1099, citing Zamarripa, supra, 247 Cal.App.4th at p. 1183.)
The referenced statute defining serious and violent convictions (§ 667, subd. (d)), provides with respect to enhancements: "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. . . . [¶] (B) The prior offense is listed in [WIC section 707, subdivision (b)] 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 . . . because the person committed an offense listed in [WIC section 707, subdivision (b)]." (§ 667, subd. (d)(3).)
Reading these statutes together, Sledge held "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) [which includes murder]; if it is either an offense listed in . . . [WIC section 707(b)] [which includes murder], or an offense described in section 667(d), paragraph (1) or (2) as a serious or violent felony [which includes murder]; and if all of the other conditions set out in section 667(d)(3) are satisfied [that juvenile was age 16 or older when he committed the prior offense, prior offense was serious or violent felony, perpetrator was found to be fit to be dealt with under juvenile court law, and was adjudged a ward of the juvenile court for committing an offense under WIC[,] § 707(b), which includes murder]." (Sledge, supra, 7 Cal.App.5th at p. 1099.)
This conclusion is consistent with at least one of the voters' expressed intents in enacting Proposition 47 -- " 'to "[e]nsure that people convicted of murder, rape, and child molestation will not benefit from this act." ' " (Sledge, supra, 7 Cal.App.5th at pp. 1099-1100.)
Sledge said its conclusion is also consistent with cases holding these same felony juvenile adjudications are disqualifiers for Proposition 36 resentencing under analogous provisions of section 1170.126, subdivision (e), because section 1170.126 references section 667, subdivision (d), which specifically defines "conviction" to include certain juvenile adjudications. (Sledge, supra, 7 Cal.App.5th at p. 1100, citing People v. Thurston (2016) 244 Cal.App.4th 644, 662-668 and People v. Arias (2015) 240 Cal.App.4th 161, 166-169.)
" '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.' [Citation to Couzens & Bigelow treatise on Proposition 47].
"In addition, 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.' (Alejandro N.[, supra,] 238 Cal.App.4th [at p.] 1225 [§ 1170.18 was intended to apply to juvenile offenders as well as adults].)" (Sledge, supra, 7 Cal.App.5th at p. 1100.)
In Sledge, the defendant invoked the rule of lenity -- that doubts as to a statute's meaning should be resolved in the criminal defendant's favor. (Id. at p. 1101.) But, as stated in Sledge, the rule of lenity 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 invoking the rule of lenity. (Ibid.) No such ambiguity or uncertainty exists here. (Ibid.)
Here, defendant's prior juvenile adjudication for murder committed at age 17 clearly met all criteria to disqualify him from Proposition 47 relief: (1) he was 16 or older when he committed the murder; (2) murder is listed in WIC section 707, subdivision (b) and is described as a serious and/or violent felony in section 667, subdivision (d)(1)-(2); (3) he was found to be a fit and proper subject to be dealt with under juvenile court law; and (4) he was adjudged a ward of the juvenile court for committing an offense listed in WIC section 707, subdivision (b). His juvenile adjudication would be treated as a prior conviction under section 667, subdivision (d).
We have considered defendant's arguments -- e.g., that there was no mention of juveniles in the Voter Information Guide for Proposition 47; that legislative history of the statute making juvenile adjudications subject to sentence enhancements (§ 667, subd. (d)) shows affirmative legislative intent to override the general rule that such adjudications are not convictions (WIC, § 203); and that applying section 1170.18(i) to juvenile adjudications would repeal by implication WIC section 203. Defendant's arguments are not persuasive in light of the foregoing analysis.
Our conclusion the defendant is ineligible for section 1170.18 recall of sentence does not depend on defendant's admission that he had a prior juvenile adjudication for murder, and we therefore need not address defendant's contention that his admission was inadequate to transform the juvenile adjudication into a conviction.
DISPOSITION
The order denying defendant's petitions for Proposition 47 relief is affirmed. On our own motion, we order correction of a clerical error in the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The abstract of judgment shows the correct total sentence, but under item number 3, "ENHANCEMENTS," lists only the prior prison term and fails to list the prior convictions. The reporter's transcripts shows defendant admitted the "enhancement for two or more prior convictions for serious felonies." The trial court shall correct the abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
HULL, J. We concur: NICHOLSON, Acting P. J. DUARTE, J.