PEOPLE v. ADELMANN

Respondent’s Answer to Petition for Review

Cal.October 19, 2016

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) Supreme Court Case No. ) 5237602 Plaintiff and Appellant, ) ) Court of Appeal Case No. ) £064099 ) v. ) Riverside County Superior ) Court Case No. ) SWF1208202 SUPREME COURT ) FILE) STEVEN ANDREW ADELMANN, OCT 19 2016 Defendant and Respondent. ) Jorge Navarrete ~ierk ) ; Deputy - RESPONDENT’S ANSWER TO PETITION FOR REVIEW Appeal From the Judgmentof the Riverside County Superior Court Honorable Edward Webster, Judge Gene D. Vorobyov,Esq., California Bar No. 200193 450 Taraval Avenue, # 112, San Francisco, CA 94116; (415) 425-2693 e-mail: gene.law@gmail.com Attorney for Respondent STEVEN ANDREW ADELMANN By Appointment of the Court of Appeal under the Appellate Defenders, Inc., independent case program TABLE OF CONTENTS Table of Authorities..........cccccc cece cece ce cecccccececuuccececeenauauseeevevecuaeseeecs ii INTRODUCTION & SUMMARY OF ARGUMENT.............ccccccccccceuneuce 1 OBJECTION TO APPELLANT'S STATEMENT OF FACTS AND PROCEDURALHISTORY...... 0.0ccccece eee ee ene eneeeeeeaessaeeeeneneenes 2 ARGUMENT I. This Court Should Deny Review Because Certain Unique Facts of This Case Make it a Poor Vehicle to Address the Question Presented FOL REVICW...2.ecece eee eee nee eaececeeeeeaeeseeeseeeeeeseaeaeeene3 IH. Review Should Be Denied Because the Court of Appeal Reasonably Harmonized Sections 1203.9 and 1170.18 to Give Effect to Both Statutes and to Achieve the Wisest Policy ccccusuesecevecssusvacercasevsvsvevssissesaeeavasusicsestatsevateseestetsseevsteeeece: 6 CONCLUSION... ccccsceccscecesececesssceateacsevetseetsesateatsuesatsrsstsesestveseusee.u CERTIFICATE OF WORDCOUNT.....cccccccscseseceecescseceseescsessseesesessen 12 PROOF OF SERVICE... ccesccsccesesessssescesescesvseseecestseestesetetesesesesteevecee 13 TABLE OF AUTHORITIES CASES Hilton v. Superior Court (2014) 239 CalApp.Ath 766.000.0000. cee cence eee eee eee ee eeeeaeeeeeeaees 4,10 In re Derrick B. (2006) 39 Cal4th 535.0... cece cece cn ee eee ceee eee eeeeeeaeaeeesteeeeeeeeeneneenes 7 People v. Adelmann (2016) 2 Cal.App.5th 1188, rev pend. (S237602).......... cece ecces esses eespassim People v. Curry (2016) 1 Cal.App.5th 1073, rev. pend. (5237037)........... sc cceeeeeeeeee eespassim Young v. Gannon (2002) 97 CaLApp.4th 209.00... cece cesses eeeeeee eee eteneeceeeeneneneaens 11 STATUTES AND RULES OF COURT Penal Code § 1170.18...cccccc ce cece re eee ne ee ee eens eens eeeeeneeteneeseesenes passim § 1203.9...ccc cece cece ee ee cence ee eeeeeeneeeeneneeeasesteaeeeneeeeaspassim CALIFORNIA RULES OF COURT Cal. R. of Court 8.504...cece cece ec ne nce eneneee ease eeeeeseesesesssevaeneneenes6 SECONDARY SOURCES J. Richard Couzens, Tricia A. Bigelow and GreggL. Prickett, Sentencing California Crimes...........ccccccccececceccueeeccussceueesacsaesuacrsceeceuscceeenuenns 6,8 li Proposition 47: Text of Proposed Law, California Ballot Pamphlet: General Election Nov.4, 2014.........ccccccccccccccccuccscccceuccessceeceessueeccueesuereneees 10 Voter Information Guide, Gen Elec. (Nov. 4, 2014)...........ccccccceeceeeees 10 iil INTRODUCTION & SUMMARY OF ARGUMENT Pursuant to California Rule of Court 8.500, subdivision (a)(2), defendant and respondent Steven Andrew Adelmann submits the following answerto the appellant's petition for review. While there may be a need for this Court to decide, at some point, whether, following a complete jurisdictional transfer pursuant to Penal Code section 1203.9, a receiving court hasjurisdiction to hear a Proposition 47 resentencing petition (§ 1170.18),! this case contains unique facts that makeit a poor vehicle to decide that issue.?_ Since Mr. Adelmann successfully completed his probation in the receiving court (Riverside County) in September 2015, there no authority to transfer Mr. Adelmann’scase back to the original court of conviction (San Diego County). Also, Mr. Adelmann did attemptto file his petition in San Diego County and was rebuffed by that court because the entire file had been transferred to Riverside County. Moreover,it is undisputed that Mr. Adelmann is entitled to Proposition 47relief he already received in Riverside County. * People v. Adelmann (2016) 2 Cal.App.5th 1188, petition for review pending 5237602, petn.filed October 5, 2016; but see People v. Curry (2016) 1 Cal.App.5th 1073, petn. for review pending 5237037, petn. filed September6, 2016). * All future unassigned references are to the Penal Code. -1- These facts create unique legal issues and policy concerns, which are not likely to be replicated in the vast majority of cases in which the issue presented for reviewis likely to arise. Accordingly, resolution of the question presented should await another, more typical, case. Proposition 47 is a fairly new voter initiative and courts of appeal have not hada lot of opportunity to addressthis issue. OBJECTION TO APPELLANT’S STATEMENTOF FACTS AND PROCEDURAL HISTORY Respondent adopts the Court of Appeal’s statementof facts and procedural history. (Adelmann, supra, 2 Cal.App.5th at pp. 1191-1192.) However, respondentobjects to appellant’s characterization of the Court of Appeal’s opinionin this case as being based “on the plain language”of section 1203.9. (Petition for Review,p. 11.) The Court of Appeal’s decision affirming the transferee court’s grantof respondent’s Proposition 47 resentencing petition was based,in pertinentpart, on harmonization of sections 1203.9 and 1170.18.3 Specifically, the Court of *The Court of Appeal also concluded that respondent waivedhis right to have the court of original jurisdiction decide the petition. (Adelmann, supra, 2 Cal.App.4th at p. 1194, citing People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1301.) -2- Appealrejected appellant’s statutory construction arguments premised on the alleged irreconcilable conflict between the twostatutes. Instead, the Court of Appeal held that section 1203.9, subdivision (b), and section 1170.18, subdivision (a), should be reasonably read together as permitting the superior court that currently has jurisdiction over the case to decide the section 1170.18 resentencing petition. (Adelmann, supra, 2 Cal.App.5th at pp. 1195-1196.) The Court of Appeal also concluded that such harmonized reading of both statutes is the wisest and most appropriate public policy: The People's proposal that defendant must somehow compelthe San Diego court to accept his petition—althoughentire jurisdiction overhis probationary case has been transferred to Riverside—seems wholly unfeasible and not an economicalor practical use of judicial resources. Based on a practical, reasonable, commonsense analysis, allowing the court that currently hasentire jurisdiction over a case to decide a section 1170.18 petition is the wisest and most appropriate policy. (Adelmann, supra, 2 Cal.App.5th at pp. 1195-1196.) ARGUMENT This Court Should Deny Review Because Certain Unique Facts of This Case Makeit a Poor Vehicle to Address the Question Presented for Review Evenif the issue of whether sections 1203.9 and 1170.18 can be properly read together to give the receiving court authority to consider a section 1170.18 -3- petition is one that this Court will eventually need to decide, this is not the right case to do so. First, Mr. Adelmann’s probation was completed in September 2015. (Adelmann, supra, 2 Cal.App.5th at p. 1192.) This creates an additional unique jurisdictional problem for the class of similarly-situated probationers. The transferee court’s jurisdiction over a probationer ends once heorsheis discharged from probation. (Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 773.) Section 1203.9 does not provide for an automatic return of the case to the original county of conviction upon completion of probation supervision. Asa result, any rule requiring filing of the resentencing petition in the original county of conviction, even in cases involving a complete jurisdictional transfer under section 1203.9, would appear to deny Proposition 47 relief to this entire class of individuals. Second, unlike a prototypical scenario involving this issue described in Curry, 1 Cal.App.5th at page 1073, Mr. Adelmannactually did first go to the original court of conviction, but was rebuffed becausethe entire file had been transferred to Riverside County Superior Court. (RT 5.) This fact creates legal, policy, and equitable concernsthat are not likely to be replicated in most cases presenting this issue. Third, it was never disputed that Mr. Adelmannis entitled to Proposition 47 relief. (Adelmann, supra, 2 Cal.App.5th at p. 1192.) The prosecution has not identified any factors, as to which it would have madeanypractical difference whetherthis case was heard in San Diego County or in Riverside County. If the prosecutionis claiming that there are practical reasons supporting its proffered statutory interpretation, the discussion of this issue should await a case where those alleged concernsare actually present. Thatis not this case. Finally, appellant is mistaken in claiming that review should be granted because the Court of Appealincorrectly distinguished Curry as involving a post- release community supervision transfer. (Petition for Review, p. 11.) While the probation transfer in Curry appears to have been done undersection 1203.9, not a PCRStransfer under section 3460, it is a factual mistake originating in the Curry opinionitself. (Curry, supra, 1 Cal.App.4th at pp. 1082-1083.) The Curry court erroneously cited this very fact in trying to harmonizeits decision with the contrary conclusion reached by Couzens & Bigelow, an authoritative treatise on Proposition 47. (Id. at p. 1082; see J. Richard Couzens, Tricia A. Bigelow and -5- o n t e e v a an y Gregg L. Prickett, Sentencing California Crimes, § 25:11.) Appellant could have filed a rehearing petition in the Court of Appealto correct that error, which does not impact the core of the Court of Appeal’s analysis, but appellant failed to do so. (Cal. R. of Court 8.504, subd. (b)(3).) To the extent the Court of Appeal did not correct the error Curry made, this fact alone is not a reason to grant review. The crux of the Court of Appeal’s analysis is on harmonizing sections 1203.9 and 1170.18. As explained in ArgumentII, the Court of Appeal’s analysis of that issueis right. II. Review Should Be Denied Because the Court of Appeal Reasonably Harmonized Sections 1203.9 and 1170.18 to Give Effect to Both Statutes and to Achieve the Wisest Policy Review should also be denied because the Court of Appeal’s resolution of the question of whetherthe receiving court, after a section 1203.9 full jurisdictional transfer, has the authority to hear a Proposition 47 resentencing petition wasright. The Court of Appeal correctly rejected appellant’s claim that sections 1203.9 and 1170.18 are in an irreconcilable conflict and, thus, one must prevail over another. Instead, the Court of Appeal held that both statutes can be quite reasonably harmonized to authorize the superior court that hasjurisdiction over the entire case to hear a section 1170.18 resentencing petition. (Adelmann, supra, 2 Cal.App.5th at pp. 1195-1196.) The Court of Appeal further held that such reading of both statutes is the wisest and most appropriate policy. (Ibid.) The Court of Appeal’s resolution of these issues was apt and there is no reason to disturbit. The Court of Appeal wasrightthat reliance on plain language of Proposition 47 does not resolve this issue. (In re Derrick B. (2006) 39 Cal.4th 535, 539 [the statutory languageis the starting point of the statutory construction analysis].) Indeed, nothing in the plain languageof section 1170.18 addresses the issue of whetherthe defendant mustfile a resentencing petition in the county of conviction even whentheentire jurisdiction over the defendant's case has been transferred to another county pursuantto section 1203.9. Section 1203.9(b)’s commandto transfer the entire jurisdiction to the transferee county could be quite plausibly read as making the transferee court “the trial court that entered the judgmentof conviction” undersection 1170.18, subdivision (a). (Adelmann, 2 Cal.App.5th at p. 1195; see also J. Richard Couzens, Tricia A. Bigelow and Gregg L. Prickett, Sentencing California Crimes, § 25:11.) Accordingly, it was appropriate for the Court of Appeal to turn to canons of statutory interpretation to decide whetherthe twostatutes can be properly harmonized. Because the duty of the judiciary is to interpret the law, not to write it, the courts are required to read together the statutes on the samesubject, giving effect to all parts of all statutes, if possible. (People v. Chenze (2002) 97 Cal.App.4th 521, 526.) The courts also haveto give “a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.” (Adelmann, supra, 2 Cal.App.5th at p. 1195, quoting In re Reeves (2005) 35 Cal.4th 765, 771, fn.9.) Thatis precisely what the Court of Appeal did in this case. On the one hand, the appellate court reaffirmed section 1170.18, subdivision (a)’s general requirementthat a resentencing petition mustbe filed in the original court of conviction. The Court of Appeal merely allowed, but did not compel,a filing of the petition in the receiving court if a petitioner makes a decision to waive his -8- right to have the original court of conviction decide the petition by filing the petition in the receiving court. (Adelmann, supra, 2 Cal.App.5th at p. 1196.) But on the other hand,in allowing the receiving court to decide the resentencing petition, the Court of Appeal also gaveeffect to section 1203.9, subdivision (b)’s commandthatjurisdiction is transferred in its entirety. (Id.) Also, the Court of Appeal wascorrect in observing that appellant’s proposedrule inflexibly requiring a person whosecase has been completely transferred to a different court to somehow compelthe original court of conviction to accept the petition is “wholly unfeasible and not an economical or practical use of judicial resources.” (Adelmann, supra, 2 Cal.App.5th at p. 1196.) Requiring a defendant currently on probationin the transferee jurisdiction to transfer the case backto the court of conviction to accomplish Proposition 47 resentencing, and then transfer it back to the transferee jurisdiction, isa procedure cumbersomefor the courts, prosecution and defense agencies, and the defendant himself. It must be rememberedthat the voters’ intent in passing this initiative was to maximize non-prison alternatives for non-violent and non-serious crimes, and to channel those savings into crime prevention, victim services, and mental -9- health and drug treatment. (Proposition 47: Text ofProposed Law, California Ballot Pamphlet: General Election Nov.4, 2014 (hereafter “Pamphlet”), p. 70; see also Voter Information Guide, Gen Elec. (Nov.4, 2014) argumentin favor of Prop.47, p- 38.) Similarly, the declaratory sections of Proposition 47 reflect the voters’ intent to generate money savings by reducing prison population, and to channel the resulting monetary savings to specific rehabilitation, treatment, and children’s programs. (Pamphlet, p. 70.) The ballot arguments in favor of Proposition 47, which are considered evidenceof voters’ intent in passing an initiative, emphasized the exact same goals. (Voter Information Guide, Gen Elec. (Nov.4, 2014) argumentin favor of Prop. 47, p. 38.) Appellant’s proposed rule runs directly counter to these stated fiscal goals. Finally, appellant’s proposed rule becomes even more problematic when, as here, the defendant’s probation has already been completed. There appears to be no legal mechanism to transfer the case back to the original court of conviction. The transferee court’s jurisdiction over probationer ended when probation was complete and the probationeris discharged from probation. (Hilton , 239 Cal.App.4th at p. 773.) Section 1203.9 does not provide for an automatic return of the case to the original county of conviction upon completion -10- of probation supervision. Section 1170.18, subdivision (a), cannot be construed in a waythat renderssection 1170.18, subdivision(f), a nullity. (Young v. Gannon (2002) 97 Cal.App.4th 209, 223 [wordsof a statute will not be construed to render related provisions nugatory].) CONCLUSION Based on the foregoing, this Court should deny review. Date: October 17, 2016 Respectfully submitted, By: /s/Ggng D. Vorobyov Attorney for Respondent STEVEN ADELMANN -l1- CERTIFICATE OF WORD COUNT I certify that this brief consists of 2,119 words (including footnotes, but excludingthis certificate, proof of service, and tables), as indicated by the Microsoft Word program in whichthebrief is prepared. DATE: October 17, 2016 Respectfully submitted, By: /s/ Geng D. Vorobyov Attorney for Respondent STEVEN ADELMANN -12- PROOF OF SERVICE I declare that I am an active memberof the bar and nota party to this action. My business address is 450 Taraval Street, #112, San Francisco, CA 94131. On the date shown below,I served the within ANSWER TO PETITION FOR REVIEW to the following parties hereinafter named by: Xx E-serving the following parties at the following e-mail addresses via the TrueFiling system: Howard Cohen,Staff Attorney @ ADI eservice-criminal@adi-sandiego.com Fourth District Court of Appeal, Division Two >< Placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at San Francisco, California, addressed as follows: Donald Ostertag, Deputy District Attorney 3960 Orange Street Riverside, CA 92501 Steven Andrew Adelmann 38079 Spring Canyon Drive Murrieta, CA 92563-7148 -13- Hon. Edward D. Webster 4100 Main Street Riverside, CA 92501 Jared Hartman, Attorney at Law Semnar & Hartman, LLP 400 S. Melrose Drive, Ste. 209 Vista, CA 92081 I declare under penalty of perjury the foregoingis true and correct. Executed on October 18, 2016, at San Francisco, California. /S/ Gene D. Vorobyov -14- SB E c e t y m e c s i e n oe i a n