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People v. Curry

California Court of Appeals, First District, Second Division

July 28, 2016

THE PEOPLE, Plaintiff and Respondent,
LATISHA CURRY, Defendant and Appellant


          Superior Court of Alameda County, Ct. No. C171042, Paul A. Delucchi, Judge.

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[Copyrighted Material Omitted]

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         Brendon D. Woods, State Public Defender, and Michael S. McCormick, Assistant Public Defender, for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Catherine A. Rivlin and Bruce M. Slavin, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Richman, J., with Kline, P. J., and Stewart, J., concurring.


          [205 Cal.Rptr.3d 329] RICHMAN, J.

          It is the rare initiative that does not have at least one ambiguity, or omission, or some other difficulty that only emerges following passage by the voters and courts begin to wrestle with its actual implementation. Even so, Proposition 47 must win some sort of prize for taking a single subject and proving such a fertile engine of sustained controversy and evolving confusion fully 18 months after its enactment. Its influence has even clouded the scope and operation of Proposition 36, a measure adopted two years earlier.

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         So it may seem odd in a case presenting a novel issue under Proposition 47 to invoke the canon of statutory construction that " Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. ... [And] [i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters)." ( Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115');">248 Cal.Rptr. 115, 755 P.2d 299].) Yet this is one of the rare Proposition 47 cases when all we need is the plain statutory language, specifically, the language in the proposition that a " petition for a recall of sentence" by a probationer, or a former probationer, is to be filed with the " trial court that entered the judgment of conviction." (Pen. Code, § 1170.18, subds. (a), (f).)[1]


         On July 27, 2012, in the Napa County Superior Court and pursuant to a negotiated disposition, defendant Latisha Curry entered a plea of no contest to a charge of second degree burglary, in exchange for which the other count, a felony charge of petty theft with a prior (§ 666, subd. (a)), was dismissed.[2] The court suspended imposition [205 Cal.Rptr.3d 330] of sentence and admitted defendant to three years' probation upon specified conditions, one of which was that she spend 60 days in the Napa County jail. At the time of sentencing, the Napa probation officer advised the court that by reason of a felony conviction in Alameda County, " defendant is currently on Post Release Community Supervision (PRCS) in Alameda County ... . [A]nd the term is set to expire on January 27, 2015." For this reason, and because defendant was a resident of Alameda County, the Napa probation officer moved to have supervision of her probation transferred to Alameda County in accordance with section 1203.9. The Napa County Superior Court granted the motion on February 26, 2013, and Alameda County accepted the transfer on March 6, 2013.

         On July 2, 2015, almost eight months after passage of Proposition 47 in November 2014--and the same day the Alameda County Superior Court

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summarily revoked her probation--defendant filed a petition in that court seeking to have her Napa burglary conviction reduced to a misdemeanor " pursuant to ... § 1170.18." [3] The petition was on Judicial Council form CRM-050, adopted by the Alameda County Superior Court for " mandatory use," which was captioned " Petition for Resentencing/Reduction to Misdemeanor--Response and Order (Penal Code § 1170.18)." (Some capitalization omitted.) That same day the Alameda court conducted a brief hearing on the petition, and denied it on the ground that defendant had to seek relief in Napa County because that was where she received the sentence she was now petitioning to have reduced.[4] That ruling was reiterated when defendant made an oral motion for reconsideration on July 15, claiming she was entitled to resentencing under the rule of leniency from In re Estrada (1965) 63 Cal.2d 740');">63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] ( Estrada ) without reference to Proposition 47, because it " does ...

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