Opinion
H044611
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH JESKE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 213595)
Defendant challenges the trial court's order denying a petition to designate as a misdemeanor a pre-Proposition 47 felony conviction for receiving stolen property. (Pen. Code, § 1170.18, subd. (f).) Because defendant was convicted in the Alameda County Superior Court, we will vacate the challenged order and remand the matter to the Santa Clara County Superior Court with directions to dismiss the petition. Defendant may file a new section 1170.18 petition in the Alameda County Superior Court.
I. BACKGROUND
In January 2012, the Alameda County Superior Court placed defendant on five years' formal probation after he pleaded no contest to receiving stolen property as a felony. (Pen. Code, former § 496, subd. (a).) Defendant's probation officer moved under Penal Code section 1203.9 to transfer the case to Santa Clara County, where defendant resided. The motion was granted and the case was transferred in 2013.
Penal Code section 1203.9, subdivision (b) mandates that the receiving court "accept the entire jurisdiction over the case" as of the transfer date. --------
Proposition 47, the Safe Neighborhoods and Schools Act of 2014, reclassified as misdemeanors certain theft offenses, including receiving stolen property, when the value of the property does not exceed $950. (Pen. Code, § 496, as amended by Prop. 47, § 9, approved Nov. 4, 2014.) The initiative established a resentencing procedure for persons serving felony sentences for the reclassified offenses (Pen. Code, § 1170.18, subds. (a)-(b)), and a remedy allowing persons who completed sentences on reclassified offenses to have those convictions designated as misdemeanors (Pen. Code, § 1170.18, subds. (f)-(g)). Proposition 47 directed that resentencing and redesignation requests be made to the trial court "that entered the judgment of conviction." (Pen. Code, § 1170.18, subds. (a), (f).) In 2016, the Legislature extended what had been a three-year deadline for seeking resentencing or redesignation to November 4, 2022. (Pen. Code, § 1170.18, subd. (j); Stats. 2016, ch. 767, § 1, p. 5236.)
In January 2016, the Santa Clara County Public Defender's Office petitioned on defendant's behalf for resentencing under section 1170.18, subdivision (a). The court denied the petition, commenting that defendant had failed to establish a prima facie showing of eligibility because the value of the property had not been alleged in the petition and was not discernable from the court file. In March 2017, after defendant completed probation, he filed a stipulation signed by his public defender and a deputy district attorney that his conviction be redesignated as a misdemeanor under Penal Code section 1170.18, subdivision (f). The stipulation, entered on a Santa Clara County Superior Court form specifically for Penal Code section 1170.18 requests, stated that the attorneys had "reviewed the defendant's entire criminal history record and record of the current conviction," and "stipulate and agree" that "the defendant is eligible" to have the felony conviction designated as a misdemeanor under Penal Code § 1170.18(f), and that the trial court may redesignate the offense without a hearing. The trial court denied the redesignation request by written order, noting that the stipulation contained no allegation of any changed circumstance or any authority for filing the second petition after denial of the first petition.
Defendant filed a timely notice of appeal from the 2017 order denying the second petition. He filed an amended notice of appeal to encompass the trial court's order denying the 2016 resentencing petition after this court granted his application for relief from default.
After briefing had concluded in this court, the California Supreme Court decided People v. Adelmann (2018) 4 Cal.5th 1071 (Adelmann) which addressed "where a defendant, whose probation case has been transferred [under Penal Code section 1203.9], must file a petition for resentencing." (Id. at p. 1074.) The Supreme Court in Adelmann held that the original sentencing court is the proper venue for resentencing petitions under section 1170.18, even in the case of a probation transfer. (Adelmann, at pp. 1080-1081.) The Adelmann court reversed a court of appeal decision affirming the receiving court's grant of a resentencing petition, noting that the "[d]efendant remains free to file a section 1170.18 petition in the [original sentencing court]." (Id. at p. 1081.) We invited supplemental briefing to address the impact of Adelmann on this case.
II. DISCUSSION
Defendant argues that the proper disposition in this case is for us to reach the merits of his claims notwithstanding Adelmann, and remand the matter to the trial court with directions to grant the relief requested. In defendant's view, the prosecution forfeited any challenge to his petitions being heard by the Santa Clara County Superior Court by failing to raise a venue objection in the trial court and by failing to contest the trial court's venue on appeal.
The prosecution's willingness to adjudicate defendant's petitions in the Santa Clara County Superior Court is not a basis for us to disregard Adelmann. The Supreme Court in Adelmann expressly rejected the Court of Appeal's reasoning that " 'a defendant seeking Proposition 47 relief may waive his right to be sentenced by a particular judge in a particular county, something he has done in this instance by filing his petition in [the receiving court].' " (Adelmann, supra, 4 Cal.5th at pp. 1077-1078.) The Supreme Court explained section 1170.18 gives a defendant the right to petition for resentencing under Proposition 47, but "[i]t does not grant a concurrent right to choose the venue for such a petition." (Adelmann, at p. 1081.) Defendant therefore has no right under Proposition 47 to petition the Santa Clara County Superior Court for relief. Under Adelmann, a resentencing petition may only be filed in the court where a defendant was originally sentenced. (Id. at pp. 1080-1081.) The prosecutor's agreement to resolve a petition in the wrong court does not override the venue contemplated by Proposition 47.
We will vacate the trial court's orders denying defendant's 2016 and 2017 petitions, and defendant will be allowed to file a redesignation petition in the Alameda County Superior Court. We express no opinion as to whether the stipulation supporting defendant's 2017 redesignation petition may form the basis for a redesignation petition in the Alameda County Superior Court. (It is unnecessary for us to address defendant's challenge to the denial of his 2016 resentencing petition and his ineffective assistance claims, as they are rendered moot by our disposition.)
III. DISPOSITION
The April 5, 2017 and February 29, 2016 orders denying defendant's section 1170.18 petitions are vacated. The matter is remanded to the Santa Clara County Superior Court with directions to dismiss the petitions. Defendant may file a redesignation petition in the Alameda County Superior Court.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.