People v. Dunn

Filed 8/4/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B266482 (Super. Ct. No. 2012009629) Plaintiff and Respondent, (Ventura County)

v.

SEAN F. DUNN,

Defendant and Appellant.

Sean F. Dunn appeals an order denying a petition to recall his sentence for felony petty theft with a prior and for resentencing to a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and School Act (the Act). (Pen. Code, §§ 1170.18, 666.)1 Here we hold that a person is not eligible for resentencing pursuant to section 666 if the person is required to register as a sex offender as a result of a prior juvenile adjudication. (§§ 666, 290.008, formerly § 290, subd. (d)(1).) This treatment of registered juvenile sex offenders does not deny Dunn equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) BACKGROUND In 1990, when Dunn was 14 years old, he committed two acts of forcible rape in concert with another and three acts of forcible sexual penetration. A juvenile court sustained allegations that he committed two counts of section 264.1 and three

1 All statutory references are to the Penal Code.

counts of section 289, subdivision (a). It committed him to the California Youth Authority for a 54-year term. Following Dunn’s discharge, he was required to register as a sex offender. (§ 290.008, formerly § 290, subd. (d)(1).)2 In 1997, Dunn was sentenced to prison for assault with force likely to produce great bodily injury. (§ 245, former subd. (a)(1).) In 2011, he returned to prison for robbery. (§ 211.) While on parole for the robbery in 2012, he stole items from a department store. He pled guilty to felony petty theft with a prior. (§ 666, former subd. (b).) He admitted the prior strike conviction for robbery and the court sentenced him to 32 months in prison. (§ 667, subds. (b)-(i).) Dunn was released on parole in 2014, with electronic monitoring. (§§ 3000.08, subd. (a), 3010.10, subd. (b).) Two months later, he violated parole by removing his electronic tracking device. The court revoked and reinstated his parole. In 2015, Dunn petitioned for resentencing to misdemeanor petty theft under the Act. DISCUSSION Dunn contends only adult sex offenders should be ineligible for relief under section 666. The plain language of the statute provides otherwise. A person who is serving a felony sentence may be resentenced under any of the Proposition 47 statutes if (1) they “would have been guilty of a misdemeanor under [the Act had it] been in effect at the time of the offense”; (2) they have no prior “conviction[]” for a super-strike3 offense or for an offense requiring registration under section 290, subdivision (c); and (3) resentencing would not pose an unreasonable risk of danger to the public. (§ 1170.18, subds. (a), (b), (i).)