P v. Dunn (2nd Dist., Div.6) Sex Offender Registration for Juvenile Matter Disqualifies Defendant From PC 1170.18 Relief On PC 666 Conviction.

In 1990, when (then) Master Dunn was 14, a juvenile judge found true allegations that Dunn came within the jurisdiction of the juvenile court due to his commission of forcible rapes.  Dunn was sent to the California Youth Authority (later renamed the Department of Juvenile Justice, and even later renamed the Department of Juvenile Facilities) and upon release was required to register as a sex offender.

In 2012, Dunn is convicted of felony petty-theft-with-a-prior, under former PC 666(b).  Following the November 4, 2014, passage of Proposition 47, Dunn returned to court in 2015 and petitioned the court to reduce his felony petty-with-a-prior to a misdemeanor pursuant to PC 1170.18.  The trial court denies Dunn's petition and he appealed.

Here the Second District affirms the denial.

The issue is one of statutory construction.  Section 1170.18 gives the court jurisdiction to reduce a pre-Proposition 47 felony conviction to a misdemeanor if [1] the felony is one that would have necessarily been a misdemeanor if committed after November 4, 2015, and [2] the petitioner does not have a prior conviction for a "super-strike", a list of offenses including murder and rape.

Dunn's problem is not category [2].  As he was only 14 at the time of his juvenile adjudication for rape, it is not a "conviction" for purposes here.  The problem is category [1]; if Dunn had committed the petty theft today, it would still be a felony under the current version of PC 666.  Section 666 makes petty theft with a prior a felony/misdemeanor wobbler when the defendant either has a conviction for a "super-strike" or is required to register as a sex offender under PC 290-290.024.  As Dunn is a required sex offender under the applicable statutes, his petty theft, if committed today, would not necessarily be a misdemeanor.  There is no statutory ambiguity to enable further legal argument.

But Dunn does find an angle to argue further.  Section 666 differs from other crimes that were reduced by Proposition 47 from felonies to misdemeanors in that it contains the disjunctive disqualification of either a "super-strike" conviction or sex registration.  Other Proposition 47 affected crimes, such as shoplifting, forgery, and possession of narcotics, only contain a conviction disqualification, meaning a sex registrant without a conviction (like Dunn) would remain eligible for PC 1170.18 relief.  Dunn goes with this and argues it violates of the guarantees of equal protection under the law to treat petty-with-a-prior convictions differently than shoplifting, forgery, and drug possession.  The panel finds Dunn is not similarly situated to defendants convicted of these different crimes, meaning there is no need for an equal protection analysis.  Even, for sake of argument, were Dunn and such other defendants similarly situated, the panel finds the disparate treatment has a rational basis.

I wonder whether Dunn argued (assuming the facts allowed it) that his crime was also one of shoplifting, and invoked the statutory requirement that all acts of shoplifting, regardless of whether they constitute other crimes, must be prosecuted and punished as shoplifting.  See my post on P v Garrett.  That may have been another angle.