California Court of Appeals, First District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
Superior Court of Alameda County, Ct. No. C171042, Paul A.
[Copyrighted Material Omitted]
D. Woods, State Public Defender, and Michael S. McCormick,
Assistant Public Defender, for Defendant and Appellant.
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.
by Richman, J., with Kline, P. J., and Stewart, J.,
Cal.Rptr.3d 329] RICHMAN, J.
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.
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).)
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. 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.
2, 2015, almost eight months after passage of Proposition 47
in November 2014--and the same day the Alameda County
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."  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. 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 ...