In re P.J. CA1/3

Filed 9/15/15 In re P.J. CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re P.J., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, A144493 Plaintiff and Respondent, v. (Contra Costa County Super. Ct. No. J13-00907) P.J., Defendant and Appellant.

P.J. appeals from the juvenile court’s denial of his motion to reduce his sustained petition for attempted felony grand theft to a misdemeanor, pursuant to Penal Code1 section 1170.18, part of The Safe Neighborhood and Schools Act (Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014)). The Attorney General acknowledges, in conformity with the recent decision of Division One of this court (T.W. v. Superior Court (2015) 236 Cal.App.4th 646), that the juvenile court erred, and that the matter should be remanded to the juvenile court for further proceedings pursuant to section 1170.18. We shall vacate the challenged order and remand for further proceedings. Background In a petition under Welfare and Institutions Code section 602, P.J., then 15 years of age, was alleged to have committed two counts of attempted second degree robbery

1 All statutory references are to the Penal Code unless otherwise noted.

1

(§§ 664, 211, 212.5, subd. (c)). At the dispositional hearing, a third count was added to the petition alleging that P.J. had committed attempted felony grand theft (§§ 664, 487, subd. (c)). P.J. admitted the new charge, the other two counts were dismissed, and P.J. was declared a ward of the court and placed on probation. 2 Subsequently P.J. filed a motion under section 1170.18 to reduce the sustained felony violation to a misdemeanor. After extensive briefing and multiple hearings, the court found that the disposition of the petition was the result of a plea bargain and denied the motion on the ground that section 1170.18 does not apply in the case of a plea bargain. P.J. has timely appealed from the denial of the motion. Discussion Section 1170.18 provides in relevant part: “(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections . . . 490.2 . . . as those sections have been amended or added by this act. [¶] (b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections . . . 490.2 [as] those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. . . .” Subdivision (c) states that “ ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new violent