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People v. Hernandez

California Court of Appeals, Sixth District

March 28, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
PETER DAVID HERNANDEZ, Defendant and Appellant.

         Santa Clara County Superior Court Superior Court No. 189458 Hon. Linda R. Clark Trial Judge

          Attorney for Appellant: Peter David Hernandez Carla Castillo, under appointment by the Court of Appeal

          Attorneys for Respondent: The People Kamala D. Harris, Attorney General Gerald A. Engler, Chief Assistant Attorney General Jeffrey M. Laurence, Senior Assistant Attorney General Catherine A. Rivlin, Supervising Deputy Attorney General Gregg E. Zywicke, Deputy Attorney General

          BAMATTRE-MANOUKIAN, J.

         I. Introduction

         Defendant Peter David Hernandez appeals after the trial court denied his Proposition 47 petition for resentencing (Pen. Code, § 1170.18, subd. (a))[1] as to a 1997 conviction for petty theft with a specified prior conviction (former § 666). The trial court found that defendant was disqualified from Proposition 47 relief because he has a prior conviction of robbery for which he received an indeterminate life sentence under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court relied on section 1170.18, subdivision (i), which precludes resentencing for a person with one or more prior convictions for an offense specified in section 667, subdivision (e)(2)(C)(iv). The specified disqualifying offenses include “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death.” (§ 667, subd. (e)(2)(C)(iv)(VIII).)

         We conclude that defendant was not disqualified from resentencing under section 1170.18, subdivision (i). Although defendant's robbery conviction was punished by an indeterminate life term under the Three Strikes law, robbery itself is not “[a] serious and/or violent felony offense punishable in California by life imprisonment or death” under section 667, subdivision (e)(2)(C)(iv)(VIII). We will therefore reverse the order denying defendant's petition for resentencing and remand for a determination of whether resentencing defendant for his conviction of petty theft with a prior “would pose an unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).)

         II. Background

         In 1997, defendant was convicted of second degree robbery (§§ 211, 212.5) and petty theft with a specified prior conviction (former § 666; see Stats. 1993, ch. 611, § 10). The trial court found true a number of prior conviction allegations, including allegations that defendant had two prior convictions that qualified as strikes under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).

         For the robbery, defendant was sentenced to an indeterminate term of 25 years to life pursuant to the Three Strikes law. The term for his conviction of petty theft with a prior was stayed pursuant to section 654. The trial court also imposed a 10-year determinate term for two serious felony conviction allegations (§ 667, subd. (a)).

         On November 4, 2014, the electorate passed Proposition 47, which went into effect the next day. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1089 (Rivera).) Proposition 47 reclassified certain drug- and theft-related offenses as misdemeanors, except where the defendant has one or more disqualifying prior convictions, which include the “super strike” offenses listed in section 667, subdivision (e)(2)(C)(iv). (See Rivera, supra, at p. 1092.) Relevant to this case, section 667, subdivision (e)(2)(C)(iv) lists “[a]ny serious and/or violent felony offense punishable in California by life imprisonment or death.”[2]

         Petty theft with a prior was one of the offenses affected by Proposition 47. “For most persons, the crime of petty theft with a prior... is eliminated.” (People v. Diaz (2015) 238 Cal.App.4th 1323, 1330.) However, as amended, section 666 still applies if the person is required to register as a sex offender, has committed a specified offense against a dependent or elderly adult, or “has a prior violent or serious conviction” listed in section 667, subdivision (e)(2)(C)(iv). (§ 666, subd. (b).)

         Proposition 47 also added section 1170.18, which permits a person who is “currently serving a sentence” for a conviction of a reclassified offense to request to be resentenced to a misdemeanor (id., subd. (a)). Section 1170.18, subdivision (i) provides that resentencing is precluded for “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 sex offender registration.[3]

         On September 25, 2015, defendant filed a petition for resentencing pursuant to section 1170.18, subdivision (a), seeking to have his conviction of petty theft with a prior reduced to a misdemeanor. Defendant asserted that his robbery conviction was not a “prior conviction” within the meaning of section 1170.18, subdivision (i) because he suffered that conviction at the same time as his conviction of petty theft with a prior. Defendant further argued that his robbery conviction was not a conviction of an “offense punishable in California by life imprisonment or death” within the meaning of section 667, subdivision (e)(2)(C)(iv)(VIII) because the ...


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