T.W. v. Superior Court of Contra Costa County

Filed 4/21/15 T.W. v. Superior Court CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

T.W., Petitioner, A144528

v. (Contra Costa County THE SUPERIOR COURT OF CONTRA Super. Ct. No. J12-00850) COSTA COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

In this mandamus proceeding, petitioner T.W. seeks a writ compelling respondent superior court to vacate its order denying his petition for modification, filed pursuant to Welfare and Institutions Code section 778, and under authority of Penal Code section 1170.18.1 Our review of the parties’ briefs and the record lead us to conclude T.W. is entitled to writ relief. Thus, in accordance with our notification to the parties we might do so, we order issuance of a writ directing respondent court to vacate its order denying T.W.’s petition for recall of sentence. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180; Ng v. Superior Court (1992) 4 Cal.4th 29, 35; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239–1241.) However, because respondent court did not reach the issue of whether T.W. would pose

1 Further statutory references are to the Penal Code unless otherwise specified.

an unreasonable risk of danger to public safety (see § 1170.18, subd. (b)), the matter is remanded for the court to make that determination. I. BACKGROUND T.W. was made a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 in July 2010. A supplemental petition was filed by the Alameda County District Attorney’s Office on July 23, 2013, alleging felony violations of Penal Code section 211, robbery, and section 496, receiving stolen property. In the underlying incident, T.W. robbed the victim of her purse and contents and was found in possession of a stolen ATM card and cell phone. On July 30, 2013, the Alameda County Superior Court held a pretrial hearing on the petition. The minute order of the hearing reflects T.W. was in custody and was advised of his constitutional rights. The minute order states as follows: “The minor has waived [his] right to a trial, to remain silent, to confront and cross-examine witnesses, to subpoena witnesses ([Welf. & Inst. Code, § 702.5]); understands the nature of the conduct alleged in the petition and the possible consequences of an admission; the admission is made freely and voluntarily. There is a factual basis for the admission. [¶] The minor is a person described by Section 602 of the Welfare and Institutions Code. [¶] Pursuant to the minor’s admission: [¶] Count 1 ([Pen. Code, §] 211) (F) Dismissed on motion of DA with facts and restitution open on 07/30/2013 [¶] Count 2 ([Pen. Code, §] 496) (F) True as admitted on 07/30/2013 [¶] Admission is with counsel’s consent.” Thereafter, the court transferred the matter to Contra Costa Superior Court for disposition because T.W.’s legal residence was that of his mother, who resided in Contra Costa County. Subsequently, in November 2014, T.W. filed a petition for modification, pursuant to Welfare and Institutions Code section 778, based on voter initiative Proposition 47 that passed on November 5, 2014.2 The petition notes T.W.’s maximum term of confinement