Opinion
F073116
07-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JULIO ANGEL TORREZ, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF147991A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Michael B. Lewis, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, A.P.J., Peña, J. and Meehan, J.
-ooOoo-
INTRODUCTION
In 2013, appellant Julio Angel Torrez pled no contest to a felony count of possession of methamphetamine and admitted a prior juvenile adjudication for rape constituted a strike. On November 12, 2015, Torrez filed a petition to redesignate the possession of methamphetamine offense as a misdemeanor pursuant to Penal Code section 1170.18. The superior court denied the petition on the basis Torrez was ineligible because of a prior disqualifying conviction within the meaning of section 1170.18, subdivision (i). Torrez appeals, contending a juvenile adjudication is not a disqualifying conviction.
References to code sections are to the Penal Code unless otherwise specified. --------
In People v. Fernandez 11 Cal.App.5th 926 (Fernandez) and People v. Zamora 11 Cal.App.5th 728 (Zamora), this court concluded juvenile adjudications that satisfy the prerequisites of section 667, subdivision (d)(3) and are for an offense specified in section 667, subdivision (e)(2)(C)(iv) render a defendant ineligible for section 1170.18 reclassification. Torrez's juvenile adjudication for forcible rape renders him ineligible. We affirm the superior court's denial of the petition.
FACTUAL AND PROCEDURAL SUMMARY
On June 4, 2013, Torrez entered into a plea agreement whereby he pled no contest to one felony count of possession of methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a) and to one misdemeanor count of possession of narcotics paraphernalia. In addition, Torrez admitted that in September 2003, he was "convicted" of "Penal Code Section 261.2 within the meaning of P [sic] through J of Penal Code 667, and A through E of the Penal Code, 1170.12. That's referred to as a prior serious felony conviction or a strike prior." There is no "Penal Code Section 261.2."
On December 9, 2014, Torrez filed a petition for resentencing pursuant to section 1170.18, subdivision (a). The petition indicated Torrez was currently in state prison. A hearing on the petition was held on December 26, 2014. Torrez was represented by counsel and counsel submitted the matter based upon the allegations of the petition. The People opposed the petition on the grounds Torrez had a disqualifying conviction for rape. The trial court denied the petition on the grounds Torrez was not eligible for relief under section 1170.18.
On November 12, 2015, Torrez filed a petition pursuant to section 1170.18 to have his felony possession of methamphetamine conviction reduced to a misdemeanor. The superior court set a hearing on the petition. The People opposed the petition on the basis Torrez had a disqualifying prior conviction "for an offense under Penal Code § 667(e)(2)(C)(iv) or for an offense requiring registration pursuant to Penal Code § 290(c)."
At the November 30, 2015 hearing on the petition, counsel for Torrez submitted the matter on the petition. The People stated that Torrez did not qualify for section 1170.18 relief "due to the CYA commitment on the juvenile case under 290.008(a)" and that Torrez was in the "PC 290(c) analysis." Based upon the prior juvenile adjudication for rape, the superior court denied the petition.
Torrez filed an appeal on January 25, 2016.
DISCUSSION
Torrez contends he is eligible for relief under section 1170.18 because juvenile adjudications do not constitute disqualifying criminal convictions under section 1170.18 and the People did not satisfy their burden of establishing his ineligibility. He is wrong on both counts.
I. Disqualifying Juvenile Adjudication
Torrez contends a juvenile adjudication cannot constitute a disqualifying conviction within the meaning of section 1170.18. He is incorrect.
In People v. Arias (2015) 240 Cal.App.4th 161, this court held juvenile adjudications that constitute "a conviction for purposes of sentencing under the three strikes law (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3)) also constitutes a conviction for purposes of determining eligibility" for resentencing under section 1170.126. (Arias, at p. 165.) Similarly, a juvenile adjudication that constitutes a strike for purposes of three strikes sentencing constitutes a conviction for purposes of determining eligibility for resentencing under section 1170.18. (People v. Sledge (2017) 7 Cal.App.5th 1089, 1098-1101 (Sledge).)
In Fernandez, this court adopted the holding in Sledge, that juvenile adjudications rendered a defendant ineligible for section 1170.18 relief if the juvenile adjudication satisfied the requirements of section 667, subdivision (d). Fernandez further held that a juvenile adjudication for an offense listed in section 290, subdivision (c) did not render a defendant ineligible for section 1170.18 relief unless the prerequisite conditions in section 667, subdivision (d)(3) also are satisfied. (Fernandez, supra, 11 Cal.App.5th at pp. 936-937.)
Section 1170.18, subdivision (i) states that the provisions of section 1170.18 do not apply to any person who has "one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
Therefore, only when a juvenile adjudication satisfies the prerequisites of section 667, subdivision (d)(3) and is convicted for an offense specified in section 667, subdivision (e)(2)C)(iv), or requiring registration pursuant to section 290, subdivision (c), does section 1170.18, subdivision (i) render the defendant ineligible for relief. (Zamora, supra, 11 Cal.App.5th at pp. 739-740.)
Torrez admitted that in September 2003 he was "convicted" of "Penal Code Section 261.2 within the meaning of P [sic] through J of Penal Code 667, and A through E of the Penal Code, 1170.12. That's referred to as a prior serious felony conviction or a strike prior." There is no section 261.2 in the Penal Code, either in the 2003 or current version. The People's reference to the offense as rape indicates "261.2" is a reference to former section 261, subdivision (2), now section 261, subdivision (a)(2), forcible rape. (See Sledge, supra, 7 Cal.App.5th at p. 1093 & fn. 1.)
At the time Torrez admitted the prior rape conviction as part of the 2013 plea agreement, he admitted that the prior offense constituted a prior serious felony within the meaning of section 667, subdivisions (a) through (e).
Section 667, subdivision (d)(3) provides that a prior juvenile adjudication shall constitute a prior serious or violent felony conviction for purposes of sentence enhancement if certain criteria are met, including that the juvenile was 16 years of age or older at the time of the commission of the offense; the offense is a serious or violent felony as described in section 667, subdivision (d)(1) and (2), or listed in Welfare and Institutions Code section 707, subdivision (b); the juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law; and the juvenile was adjudged a ward of the court under Welfare and Institutions Code section 602. When Torrez admitted on June 4, 2013, that his September 2003 juvenile adjudication constituted a strike for purposes of sentence enhancement, he necessarily admitted that his prior juvenile adjudication satisfied all the elements of section 667, subdivision (d)(3). (People v. Wallace (2004) 33 Cal.4th 738, 749.)
The list of super strike offenses listed in section 667, subdivision (e)(2)(C)(iv) includes a "sexually violent offense" as defined in section 6600 of the Welfare and Institutions Code. (§ 667, subd. (e)(2)(C)(iv)(I).) Welfare and Institutions Code section 6600, subdivision (b), provides in part, that a sexually violent offense includes a felony violation of section 261, when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. Consequently, a juvenile adjudication for violating former section 261, subdivision (2), or section 261, subdivision (a)(2), constitutes a super strike offense within the meaning of section 667, subdivision (e)(2)(C)(iv). As such, Torrez's prior juvenile adjudication for a forcible rape is a disqualifying conviction under section 1170.18, subdivision (i). (Fernandez, supra, 11 Cal.App.5th at pp. 936-937; Sledge, supra, 7 Cal.App.5th at pp. 1101-1102.)
As with the defendant in Sledge, Torrez's juvenile adjudication for forcible rape is a disqualifying prior conviction under section 1170.18, subdivision (i) because it is a super strike offense listed in section 667, subdivision (e)(2)(C)(iv); it is an offense described in section 667, subdivision (d)(1) as a serious and/or violent felony; and the conditions of section 667, subdivision (d)(3) were satisfied. (Sledge, supra, 7 Cal.App.5th at p. 1101.)
II. Burden of Proof
Torrez contends the People had the burden of establishing he was ineligible for relief under section 1170.18. It is Torrez who has the initial burden of proving he is eligible for relief under section 1170.18, including that he has no disqualifying prior convictions. (People v. Sweeney (2016) 4 Cal.App.5th 295, 302; People v. Johnson (2016) 1 Cal.App.5th 953, 956, 962-963.) The standard petition contains a sentence declaring that the petitioner has no convictions for offenses under section 667, subdivision (e)(2)(C)(iv), or requiring registration under section 290, subdivision (c). The petition must be signed under penalty of perjury. Torrez never signed the petition; it was signed by counsel. Torrez did not attach any documentation to the petition and presented no evidence at the hearing on the petition.
Assuming arguendo counsel's signature on the petition is sufficient to meet Torrez's initial burden to establish eligibility by virtue of the language in the standard petition, the claim of eligibility was rebutted. (People v. Hall (2016) 247 Cal.App.4th 1255, 1263.) The People filed written opposition, stating Torrez had a disqualifying prior conviction "for an offense under Penal Code §667(e)(2)(C)(iv) or for an offense requiring registration pursuant to Penal Code §290(c)."
Prior to ruling on the petition, the trial court had before it the "court's file." Torrez's admission of a disqualifying prior conviction under section 667, subdivisions (a) through (e) in 2013 when he admitted a prior strike conviction for purposes of sentence enhancement is binding on Torrez. (People v. Bow (1993) 13 Cal.App.4th 1551, 1558.)
Torrez did not, and could not, present any evidence to rebut the evidence establishing his prior juvenile adjudication for forcible rape was a disqualifying conviction.
The standard of proof under section 1170.18, is a preponderance of the evidence. (Evid. Code, § 115; People v. Jefferson (2016) 1 Cal.App.5th 235, 241.) The People's opposition, Torrez's admission in 2013 to the disqualifying prior conviction, and the court's file of the conviction established by a preponderance of the evidence that Torrez was ineligible for resentencing or reclassification of his conviction under section 1170.18.
DISPOSITION
The denial of the Penal Code section 1170.18 petition is affirmed.