1

Filed 4/30/21 P. v. Wrobel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CAREY GENE WROBEL,

Defendant and Appellant.

C081210, C080296

(Super. Ct. No. CM037951)

In 2014, defendant entered a plea of no contest to two counts of second degree 

commercial burglary related to thefts from a retail store. (Pen. Code, § 459.)1 Defendant 

was sentenced to three years’ probation, but subsequently violated his probation and was 

sentenced to three years eight months. The trial court denied defendant’s Proposition 47 

1

 Further undesignated statutory references are to the Penal Code in effect at the time of 

the charged offenses.
2

section 1170.18 petition to reduce two convictions for commercial burglary (Pen. Code, 

§ 459) to misdemeanors based on his prior juvenile adjudication of a violation of section 

288, subdivision (a). 

We shall reverse and remand the matter for further proceedings in accordance with 

section 1170.18 and consistent herewith.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, on three separate dates in 2012, defendant 

entered a Radio Shack store in Butte County, took merchandise from the shelves, 

concealed it, and exited the store without paying. In each of the first two instances, the 

value of the merchandise was $149.99, and on the third occasion, the value of the 

merchandise was $49.99. 

Defendant was charged with three counts of second degree burglary (§§ 459, 460; 

counts 1-3). Defendant ultimately entered a plea of no contest to counts 1 and 2. Under 

the plea agreement, count 3 was dismissed with a Harvey2 waiver. As a result of the 

convictions, defendant was found in violation of probation in an unrelated case. 

The trial court sentenced defendant on April 3, 2014. The trial court suspended 

imposition of sentence and placed defendant on formal probation with specified 

conditions for a period of three years and ordered defendant to serve 60 days in county 

jail with credit for nine days served. On a probation violation involving a misdemeanor

case, the trial court revoked probation as terminated unsuccessfully and ordered 

defendant to serve 60 days concurrently. 

On July 29, 2014, the Butte County Probation Department filed a petition for a 

hearing for a violation of probation. According to the petition, on or about June 24, 2014, 

defendant provided a urine sample that tested positive for methamphetamine. On August 

2

 People v. Harvey (1979) 25 Cal.3d 754.
3

21, 2014, defendant appeared before the trial court and admitted that he provided a urine 

sample that tested positive for methamphetamine. 

On September 18, 2014,3the trial court revoked probation and sentenced 

defendant to an aggregate term of three years eight months in prison calculated as 

follows: the upper term of three years on count 1, and eight months (one-third the 

midterm) on count 2, to run consecutively to the principal term.

4

Petition for Resentencing

Defendant filed petitions for resentencing pursuant to Proposition 47 and section 

1170.18 dated November 6 and 7 and December 6, 2014.5

3

 The Reporter’s Transcript for this sentencing is erroneously dated September 18, 2015.

4

 We note that, in sentencing defendant, rather than stating that the sentence imposed on 

count 2, the subordinate term, would be one-third the midterm as prescribed by section 

1170.1, subdivision (a), the trial court purported to impose the midterm on count 2 but 

stay all but one-third of that sentence, or eight months (at another point, the court stated 

that it was “imposing the upper term as the base term”). Section 1170.1, subdivision (a), 

sets forth the law concerning consecutive sentencing on subordinate terms. With few 

exceptions not applicable here, “[t]he subordinate term for each consecutive offense shall 

consist of one-third of the middle term of imprisonment prescribed for each other felony 

conviction for which a consecutive term of imprisonment is imposed.” (§ 1170.1, subd. 

(a); People v. Felix (2000) 22 Cal.4th 651, 655 [“in general (there are exceptions), the 

court imposes only ‘one-third of the middle term’ for subordinate terms”].) There is no 

provision in law authorizing the court to impose a full-term sentence and then stay all but 

one-third the midterm. The proper way of imposing the subordinate term sentence is to 

impose “one-third of the middle term” and articulate the number of months or years that 

equates to one-third of the middle term. (See Couzens, Bigelow & Pricket, Sentencing 

Cal. Crimes (The Rutter Group 2016), Multiple Counts, § 13:19 [noting that “[i]t is not 

appropriate, for example, to impose the full middle term and suspend all but one-third”].) 

Ultimately, because the trial court did subsequently pronounce that it was imposing onethird the midterm on count 2, it imposed the correct term of eight months on count 2 

which is accurately reflected in the abstract of judgment.

5

 Defendant filed additional, essentially identical, petitions for resentencing on or about 

August 11, 2015, October 1, 2015, and October 8, 2015. 
4

The prosecutor opposed defendant’s petition for resentencing, asserting among 

other things, that, on or about September 26, 1991, defendant, who was 17 years old at 

the time, was adjudicated in juvenile court to have violated section 288, subdivision (a). 

The prosecutor asserted that defendant was subject to sections 667, subdivision (d)(3), 

and 1170, subdivision (b)(3),6rendering him ineligible for Proposition 47 relief. 

In his written response, defendant asserted that juvenile adjudications were not 

“convictions” for any purpose, whereas sections 667, subdivision (d)(3), and 1170.12, 

subdivision (b)(3), applied only to convictions. Therefore, these sections did not render 

him ineligible for Proposition 47 resentencing. Defendant also asserted that he did not 

commit an offense that required him to register pursuant to section 290, subdivision (c). 

Defendant further asserted that the remoteness of his juvenile adjudication, which 

occurred in 1991, should be a factor considered in the court’s discretion in determining 

whether defendant should be eligible for Proposition 47 resentencing. He emphasized 

that Proposition 47 is to be construed liberally to effectuate its purposes. 

In reply, the prosecutor emphasized that section 667, subdivision (d)(3), specifies: 

“A prior juvenile adjudication shall constitute a prior serious and/or violent felony 

conviction for purposes of sentence enhancement if the juvenile was 16 years of age or 

older at the time [he or she] committ[ed] the prior offense. As the law appears to allow 

an aggravation or enhancement based on a juvenile adjudication, by analogy the 

adjudication would be able to block a reduction as well.” (Bold and italics omitted.) The 

prosecution further asserted that, while registration was neither mandatory nor ordered at 

the time of defendant’s juvenile adjudication, the law had changed and registration could 

be made retroactive. 

6

 It appears that the prosecution intended to refer to section 1170.12, subdivision (b)(3), 

which mirrors 667, subdivision (d)(3).
5

First Order Denying Petition for Resentencing

On March 20, 2015, the trial court denied defendant’s petition for resentencing. 

The trial court stated: “I think that there’s a very real and compelling reason as to why 

there was an exclusion as to this kind of charge, and the Court does not believe that fact 

that he was a minor at the time is determinative and the petition will be denied.” In the 

minute order, the trial court stated its determination that the “[c]rime/conviction does not 

fall within the parameters of PC 1170.18.”

Following several unsuccessful attempts to appeal from the March 20, 2015, 

denial this court granted defendant’s request for permission to file a notice of appeal 

under the constructive filing doctrine. 

Vacatur of First Order Denying Petition for Resentencing

After the denial, the judge discovered he had previously been challenged pursuant 

to Code of Civil Procedure section 170.6 on one of the cases and agreed to honor 

defendant’s peremptory challenge. On November 20, 2015, the trial court vacated the 

March 20, 2015, order denying defendant’s petition for Proposition 47 resentencing. 

Second Order Denying Petition for Resentencing

On January 14, 2016, a different judge denied defendant’s petition for Proposition 

47 resentencing. The court concluded that, contrary to defendant’s argument, a juvenile 

adjudication is treated the same as a conviction for purposes of Proposition 47 

ineligibility. Based on that conclusion, the trial court determined that defendant was not 

eligible for Proposition 47 relief based on his prior juvenile adjudication for having 

violated section 288, subdivision (a). In the minute order, the trial court indicated that 

defendant was “[i]neligible based on a prior offense/conviction.” Defendant filed another

notice of appeal. 

On October 3, 2016, this court granted defendant’s motion to consolidate the two 

appeals for purposes of oral argument and decision. On July 28, 2017, we requested 

supplemental briefing on whether the appeal from the March 20, 2015, order should be 
6

dismissed as moot. The parties each filed supplemental letter briefs taking the position 

that there is no reason not to dismiss the appeal from the March 20, 2015 order.

DISCUSSION

I. Proposition 47

Proposition 47, among other things, added section 459.5, defining shoplifting, to 

the Penal Code. That section provides in pertinent part: “(a) Notwithstanding Section 

459, shoplifting is defined as entering a commercial establishment with intent to commit 

larceny while that establishment is open during regular business hours, where the value of 

the property that is taken or intended to be taken does not exceed nine hundred fifty 

dollars ($950). . . . Shoplifting shall be punished as a misdemeanor, except that a person 

with 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 may be punished pursuant to 

subdivision (h) of Section 1170.” 

Proposition 47 also created a resentencing provision, codified in section 1170.18, 

which provides that a person currently serving a sentence for certain designated felonies 

may petition for recall of the sentence to reduce the felony to a misdemeanor. 

(§ 1170.18, subds. (a), (b).) If the prior conviction qualifies, the petitioner’s felony 

sentence shall be recalled and the petitioner resentenced to a misdemeanor “unless the 

court, in its discretion, determines that resentencing the petitioner would pose an 

unreasonable risk of danger to public safety.” (§ 1170.18, subd. (b).) 

Subdivision (i) of section 1170.18 provides: “The provisions of this section shall 

not apply to persons who have 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.” (Italics 

added.) We will discuss additional relevant statutory provisions post.
7

II. Additional Background and Defendant’s Contentions

The probation report prepared for defendant’s initial sentencing in this case 

contains the Butte County Probation Department’s criminal record summary for 

defendant. The criminal record summary indicates that on August 9, 1991, defendant 

was arrested and charged with, among other things, violation of section 288, subdivision 

(a).7 It further indicates that, on September 26, 1991, defendant was adjudicated to have 

violated that provision, wardship was declared, and he was ordered to serve 30 days in 

juvenile hall. On November 16, 1993, wardship was dismissed. No additional 

information or documentation concerning this 1991 juvenile adjudication is contained in 

the record on appeal.

Defendant asserts that the trial court erred in denying his Proposition 47 petition 

for resentencing. He contends he does not have a prior “conviction” for violation of 

section 288, subdivision (a), within the meaning of section 1170.18, subdivision (i), but 

rather only a prior juvenile adjudication. According to defendant, the plain language of 

section 1170.18, subdivision (i), makes clear that it applies only to convictions, not 

juvenile adjudications. Defendant also states he is not required to register as a sex

offender pursuant to section 290. He further asserts that the prosecution failed to meet its 

burden of establishing he was ineligible for resentencing on the basis that his prior 

juvenile adjudication was a serious or violent felony within the meaning of section 667. 

Specifically, defendant asserts that, while the record may be sufficient to establish his age 

at the time of his arrest and at the time of his adjudication for violation of section 288, 

7

 In 1991, former section 288, subdivision (a), read: “Any person who shall willfully 

and lewdly commit any lewd or lascivious act including any of the acts constituting other 

crimes provided for in Part 1 of this code upon or with the body, or any part or member 

thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or 

gratifying the lust or passions or sexual desires of that person or of the child, shall be 

guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or 

eight years.” (Former § 288, subd. (a), as amended by Stats. 1989, ch. 1402, § 3.)
8

subdivision (a), there is nothing in the record to establish his age at the time he 

committed the prior offense. 

III. Analysis

A. Prosecution’s Burden of Proof

“Proposition 47, . . . requires the petitioning defendant to establish his or her initial 

eligibility for relief—which, . . . is a prior felony conviction that would have been a 

misdemeanor if Proposition 47 had been in effect at the time of the offense. [Citations.] . 

. . ‘Proposition 47 then allows the prosecution the opportunity to oppose the petition by 

attempting to establish that the petitioning defendant is ineligible for resentencing.

[Citation.] This may be accomplished either (1) by rebutting the petitioning defendant’s 

evidence, thereby demonstrating that the petitioning defendant would not have been 

guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense 

[citation], or (2) by demonstrating that the petitioning defendant suffered a conviction of 

one or more of the offenses specified in section 1170.18, subdivision (i).’ ” (People v. 

Sledge (2017) 7 Cal.App.5th 1089, 1094 (Sledge).) The prosecution bore the burden of 

proving a disqualifying prior conviction by a preponderance of the evidence. (Id. at 

p. 1095.) 

B. Disqualifying Juvenile Adjudications

As stated ante, subdivision (i) of section 1170.18 provides: “The provisions of 

this section shall not apply to persons who have 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.” (Italics added.) Section 667, subdivision (e)(2)(C)(iv), provides that, if “a 

defendant has two or more prior serious and/or violent felony convictions as defined in 

subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled 

and proved, and the current offense is not a serious or violent felony as defined in 

subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision 
9

(e) unless the prosecution pleads and proves . . . . : [¶] . . . [¶] (iv) The defendant 

suffered a prior serious and/or violent felony conviction, as defined in subdivision (d) of 

this section,” for any of a list of enumerated felonies. (§ 667, subd. (e)(2)(C)(iv), italics 

added.) 

Subdivision (d)(3) of section 667 expressly addresses juvenile adjudications. That 

subdivision provides: “A prior juvenile adjudication shall constitute a prior serious 

and/or violent felony conviction for purposes of sentence enhancement if: [¶] (A) The 

juvenile was 16 years of age or older at the time he or she committed the prior offense. 

[¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and 

Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony. 

[¶] (C) The juvenile was found to be a fit and proper subject to be dealt with under the 

juvenile court law. [¶] (D) The juvenile was adjudged a ward of the juvenile court 

within the meaning of Section 602 of the Welfare and Institutions Code because the 

person committed an offense listed in subdivision (b) of Section 707 of the Welfare and 

Institutions Code.” (§ 667, subd. (d)(3).) 

The Fourth Appellate District, Division Three, held in Sledge that, reading the 

relevant statutes together, and affording the unambiguous words in them their usual and 

ordinary meaning, “a felony juvenile adjudication is a disqualifying prior conviction 

within the meaning of section 1170.18(i): if it is one of the super strike offenses listed in 

section 667(e)(2)(C)(iv); if it is either an offense listed in Welfare and Institutions Code 

section 707, subdivision (b), or an offense described in section 667(d), paragraph (1) or 

(2) as a serious or violent felony; and if all of the other conditions set out in section 

667(d)(3) are satisfied.” (Sledge, supra, 7 Cal.App.5th at p. 1099.) The Sledge court 

stated: “Our conclusion that these specific felony juvenile adjudications are disqualifying 

prior convictions under section 1170.18(i) is consistent with at least one of the voter’s 

expressed intents in enacting Proposition 47. ‘Among its stated purposes is to “[e]nsure 

that people convicted of murder, rape, and child molestation will not benefit from this 
10

act.” ’ [Citation.] [Citation.] [¶] Our conclusion is also consistent with two recent cases 

which held these same felony juvenile adjudications are disqualifying prior convictions 

for Proposition 36 resentencing purposes under the analogous provisions of section 

1170.126, subdivision (e).” (Sledge, at pp. 1099-1100, fn. omitted.) 

The Sledge court expressly rejected the argument made by defendant here: that 

“juvenile adjudications are not disqualifying prior convictions because section 1170.18(i) 

does not expressly refer to juvenile adjudications, and because juvenile adjudications 

have historically been treated differently than adult criminal convictions.” (Sledge, 

supra, 7 Cal.App.5th at p. 1100.) The Sledge court stated: “ ‘Since the definition of 

“conviction of a serious and/or violent felony” contained in section 667(d) is incorporated

. . . in section 1170.18(i), and since that definition specifically includes designated 

juvenile adjudications, . . . a person who has been adjudicated for an offense listed in 

section 667(d)(3) will be excluded . . . . While juvenile “adjudications” and adult 

“convictions” are distinguished in many other contexts, for the purposes of the exclusion 

under section 1170.18(i), they are treated the same.’ ” (Sledge, at p. 1100.) Further, the 

Sledge court stated that “the absence of any express reference to juvenile adjudications in 

section 1170.18 is easily explained. ‘Section 1170.18’s use of terms associated with 

adult criminal proceedings logically comports with the fact that the Penal Code and other 

codes defining crimes define the offenses primarily for use in the adult context, and that 

these substantive criminal offense provisions are then engrafted onto the juvenile 

proceedings in wholesale fashion by means of Welfare and Institutions Code section 

602.’ ” (Sledge, at p. 1100.) 

Finally, the Sledge court stated that the rule of lenity, advocated by defendant here, 

“does not apply every time there are two or more reasonable interpretations of a penal 

statute. Rather, the rule applies ‘ “ ‘only if the court can do no more than guess what the 

legislative body intended; there must be an egregious ambiguity and uncertainty to justify 
11

invoking the rule.’ [Citation.]” ’ [Citation.] And ‘[n]o such ambiguity or uncertainty 

exists here.’ ” (Sledge, supra, 7 Cal.App.5th at p. 1101.)

After the publication of Sledge, the Fifth District Court of Appeal published 

People v. Fernandez (2017)11 Cal.App.5th 926 (Fernandez), in which it agreed with the 

analysis in Sledge, although it further found that Sledge’s holding was not dispositive of 

all of the issues presented in Fernandez. (Fernandez, at p. 930.) The Fernandez court 

stated, in pertinent part: “We agree with the holding of Sledge, i.e., that a prior juvenile 

adjudication may constitute a disqualifying prior conviction within the meaning of 

section 1170.18(i) if all of the conditions set forth in section 667, subdivision (d) are 

satisfied. [Citation.] This is so because ‘ “the definition of ‘conviction of a serious 

and/or violent felony’ contained in section 667(d) is incorporated . . . in section 

1170.18(i), and since that definition specifically includes designated juvenile 

adjudications . . . .” ’ ” (Fernandez, at p. 935.) The Fernandez court held: “prior 

juvenile adjudications constitute ‘prior convictions’ within the meaning of section 

1170.18(i) if they would be treated as such under section 667, subdivision (d). The 

prerequisite conditions are as follows: (1) the juvenile was 16 years of age or older at the 

time he or she committed the prior offense; (2) the prior offense is listed in subdivision 

(b) of section 707 of the Welfare and Institutions Code or is described as a serious and/or 

violent felony in subdivision (d)(1) or (2) of section 667 of the Penal Code; (3) the 

juvenile was found to be a fit and proper subject to be dealt with under the juvenile court 

law; and (4) the juvenile was adjudged a ward of the juvenile court within the meaning of 

section 602 of the Welfare and Institutions Code because the person committed an 

offense listed in subdivision (b) of section 707 of the Welfare and Institutions Code. 

[Citation.] Therefore, a juvenile adjudication for an offense listed in section 667, 

subdivision (e)(2)(C)(iv) or section 290, subdivision (c) is not a prior conviction for 

purposes of section 1170.18(i) unless the conditions listed in section 667, subdivision 

(d)(3) are satisfied.” (Fernandez, at p. 937.)
12

We agree with the analyses of the Sledge and Fernandez courts. As a general 

matter, certain juvenile adjudications may disqualify a defendant from Proposition 47 

resentencing based on section 1170.18, subdivision (i), notwithstanding the fact that that 

section refers to “convictions” rather than “juvenile adjudications.” However, to 

constitute a disqualifying prior conviction within the meaning of section 1170.18, 

subdivision (i), the prior juvenile adjudication must satisfy all of the requirements set 

forth in section 667, subdivision (d)(3).

C. Defendant’s Juvenile Adjudication

As the Fernandez court held, pursuant to the statutory scheme, “prior juvenile 

adjudications constitute ‘prior convictions’ within the meaning of section 1170.18(i) if 

they would be treated as such under section 667, subdivision (d).” (Fernandez, supra, 11 

Cal.App.5th at p. 937; see Sledge, supra, 7 Cal.App.5th at p. 1099.) As noted, 

subdivision (d) of section 667, provides, in pertinent part: “A prior juvenile adjudication 

shall constitute a prior serious and/or violent felony conviction for purposes of sentence 

enhancement if: [¶] (A) The juvenile was 16 years of age or older at the time he or she 

committed the prior offense. [¶] (B) The prior offense is listed in subdivision (b) of 

Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a 

serious and/or violent felony. [¶] (C) The juvenile was found to be a fit and proper 

subject to be dealt with under the juvenile court law. [¶] (D) The juvenile was adjudged 

a ward of the juvenile court within the meaning of Section 602 of the Welfare and 

Institutions Code because the person committed an offense listed in subdivision (b) of 

Section 707 of the Welfare and Institutions Code.” (§ 667, subd. (d)(3).) 

Therefore, even assuming the prosecution established that defendant was 16 years 

old or older at the time he committed the offense (which we discuss further post), 

acknowledging that violation of section 288, subdivision (a), is an offense “described in 

paragraph (1) or (2) [of section 667, subdivision (d)] as a serious and/or violent felony,” 

and assuming defendant as a juvenile was found to be a fit and proper subject to be dealt 
13

with under the juvenile court law, the prosecution also had to establish that defendant 

“was adjudged a ward of the juvenile court within the meaning of Section 602 of the 

Welfare and Institutions Code because the person committed an offense listed in 

subdivision (b) of Section 707 of the Welfare and Institutions Code.” (§ 667, subd. (d)(3), 

italics added.)

In construing the language of section 667, subdivision (d)(3), particularly the 

italicized language of paragraph (D) and its interplay with paragraph (B), in the context 

of a “Three Strikes” law case, our high court in People v. Garcia (1999) 21 Cal.4th 1, 6 

(Garcia), stated: “Paragraph (B) disjunctively cross-references three statutory lists of 

offenses: the list in Welfare and Institutions Code section 707(b), which establishes a 

rebuttable presumption of unfitness for treatment under the juvenile court law for 

juveniles charged with such offenses [citation]; the list of ‘serious’ offenses in section 

1192.7, subdivision (c); and the list of ‘violent’ offenses in section 667.5, subdivision (c). 

The latter two lists delineate, through cross-referencing in subdivision (d)(1) and (2) of 

section 667, the set of offenses that qualify as strikes when they are the subject of a prior 

adult conviction. [¶] Paragraph (D), by contrast, refers only to a single statutory list: 

that contained in Welfare and Institutions Code section 707(b). [¶] Because the two sets 

of offenses referenced in paragraph (B) (Welfare and Institutions Code section 707(b) 

offenses, and ‘serious’ or ‘violent’ offenses) are not identical, section 667, subdivision 

(d)(3) would contain an internal conflict if the lists in paragraphs (B) and (D) were both 

understood as defining the set of juvenile offenses qualifying as strikes. Under paragraph 

(B) a given juvenile offense would qualify if it were listed in section 707(b) or if it were 

serious or violent; under paragraph (D), however, an offense would qualify only if it were 

listed in section 707(b). Because burglary of an inhabited dwelling is listed as ‘serious’

[citation], but is not listed in section 707(b), defendant’s prior juvenile adjudication for 

residential burglary would qualify under paragraph (B), but not under paragraph (D). [¶] 

The parties’ briefs, lower court opinions and our own research have disclosed a number 
14

of possible resolutions of this postulated internal conflict, all based on the premise that 

the distinction between paragraphs (B) and (D) of section 667, subdivision (d)(3) is a 

result of ‘drafting error.’ As we demonstrate later, however, each such resolution would 

require the court to disregard one of the two assertedly conflicting paragraphs or to 

rewrite some of their provisions. Although we may properly decide upon such a 

construction or reformation when compelled by necessity and supported by firm evidence 

of the drafters’ true intent [citation], we should not do so when the statute is reasonably 

susceptible to an interpretation that harmonizes all its parts without disregarding or 

altering any of them. ‘It is fundamental that legislation should be construed so as to 

harmonize its various elements without doing violence to its language or spirit.’

[Citation.] [¶] Rather than rewrite the statute in any way, therefore, we adopt an 

interpretation that harmonizes paragraphs (B) and (D), without doing violence to the 

language or spirit of section 667, subdivision (d)(3). In brief, we interpret paragraph (B) 

as setting out the list of prior juvenile offenses that will qualify as strikes and paragraph 

(D) as requiring, in addition, that in the prior juvenile proceeding giving rise to the 

qualifying adjudication the juvenile have been adjudged a ward of the court because of a 

Welfare and Institutions Code section 707(b) offense, whether or not that offense is the 

same as the offense currently alleged as a strike.” (Garcia, at pp. 5-6.) In short, our high 

court stated: “Under paragraph (B), a prior juvenile adjudication qualifies as a prior 

felony conviction for Three Strikes purposes only if the prior offense is listed in Welfare 

and Institutions Code section 707(b) or is classified as ‘serious’ or ‘violent.’ Paragraph 

(D) does not modify or conflict with paragraph (B), but states a separate, additional 

requirement: the prior adjudication qualifies as a prior felony conviction only if the 

defendant, in the prior juvenile proceeding, was adjudged a ward because of at least one 

offense listed in section 707(b).” (Garcia, at p. 13.)

Section 288, subdivision (a), is not listed in Welfare and Institutions Code section 

707, subdivision (b). Therefore, to satisfy this last requirement of section 667, 
15

subdivision (d)(3), the prosecution would have to establish that, at the time of his juvenile 

adjudication for violation of section 288, subdivision (a), defendant also, in the same 

case, sustained a juvenile adjudication for violation of another offense which is listed in 

Welfare and Institutions Code section 707, subdivision (b). (See Garcia, supra, 21 

Cal.4th at pp. 3, 5-6, 13; Fernandez, supra, 11 Cal.App.5th at p. 938 [section 288, 

subdivision (a) is not an offense listed in Welfare and Institutions Code section 707, 

subdivision (b), which means an adjudication for that offense is unlikely to qualify as a 

prior conviction within the meaning of section 1170.18, subdivision (i); a section 288, 

subdivision (a) adjudication is a strike within the meaning of section 667, subdivision (d),

only if, in the same prior juvenile case, the ward was adjudged as such based not only on 

the section 288, subdivision (a) violation but also on a finding that the ward committed 

another offense, one listed in Welfare and Institutions Code section 707, subdivision (b)]; 

People v. Cole (2007) 152 Cal.App.4th 230, 236 (Cole) [same].)

There is nothing in the record to suggest, and the People do not assert, that, at the 

time defendant sustained his prior juvenile adjudication for violation of section 288, 

subdivision (a), he also, in the same case, was adjudged a ward based on a finding that he 

committed another offense, one listed in Welfare and Institutions Code section 707, 

subdivision (b). Therefore, while, as a general matter, a prior juvenile adjudication may 

constitute a disqualifying prior conviction within the meaning of section 1170.18, 

subdivision (i), barring a defendant from Proposition 47 resentencing (Fernandez, supra, 

11 Cal.App.5th at p. 935; Sledge, supra, 7 Cal.App.5th at p. 1100), here, defendant’s 

prior juvenile adjudication does not constitute a disqualifying prior conviction because it 

is not listed in Welfare and Institutions Code section 707, subdivision (b), it did not occur 

in a case in which defendant was determined to have committed an additional offense 

which was listed in that section, and it therefore does not satisfy all of the requirements of 

section 667, subdivision (d)(3). (Garcia, supra, 21 Cal.4th at pp. 3, 5-6, 13; Fernandez,

at p. 938; Cole, supra, 152 Cal.App.4th at p. 236.)
16

In addition to the fact that the prosecution did not establish that defendant’s prior 

juvenile adjudication satisfied the requirements in section 667, subdivision (d)(3)(D), we 

also note that the prosecution failed to meet its burden of establishing that defendant was 

16 years of age or older at the time he committed the prior offense as required by section 

667, subdivision (d)(3)(A). The trial court denied defendant’s petition based on his prior 

juvenile adjudication that he violated section 288, subdivision (a), in 1991. The 

presentence probation report indicates that defendant was born on October 3, 1974. 

Defendant was arrested for the violation of section 288, subdivision (a), on August 9, 

1991, and he was adjudicated on September 26, 1991. Thus, at the time of his arrest and 

the adjudication, defendant was 16 years old. However, the record on appeal is 

completely silent on the question of defendant’s age “at the time he . . . committed the 

prior offense.” (§ 667, subd. (d)(3)(A).) Therefore, for this reason, too, the prosecution 

failed to meet its burden of establishing the existence of a prior disqualifying offense 

rendering defendant ineligible for Proposition 47 resentencing pursuant to section 

1170.18, subdivision (i).

D. Sex Registration Disqualification

In addition to addressing juvenile adjudication offenses that will be deemed 

disqualifying offenses as offenses specified in section 667, subdivision (e)(2)(C)(iv), the

Fernandez court also addressed juvenile adjudication offenses that will be deemed 

disqualifying offenses because they are offenses “requiring registration pursuant to” 

section 290, subdivision (c). (§ 1170.18, subd. (i).) The Fernandez court concluded that 

“a juvenile adjudication for an offense listed in section 290, subdivision (c) does not 

constitute a prior conviction for purposes of section 1170.18(i) unless the prerequisite 

conditions listed in section 667, subdivision (d)(3) are also satisfied.” (Fernandez, supra, 

11 Cal.App.5th at p. 930.)

In reaching this determination, the Fernandez court observed that section 1170.18

precludes relief for persons with a conviction of an offense set forth in section 667, 
17

subdivision (e)(2)(C)(iv), “ ‘or for an offense requiring registration pursuant to 

subdivision (c) of Section 290.’ ” (Fernandez, supra, 11 Cal.App.5th at p. 936, quoting 

§ 1170.18, subd. (i), italics added.) The court then stated: “[h]owever, a juvenile 

adjudication for an offense listed in section 290, subdivision (c) does not require 

registration pursuant to that code section. Such individuals are required to register as sex 

offenders pursuant to section 290.008, which was enacted well before the passage of 

Proposition 47. More importantly, not all juvenile adjudications for offenses listed in 

section 290, subdivision (c) qualify as convictions under section 667, subdivision (d).” 

(Fernandez, at p. 936.)

The Fernandez court continued: “ ‘It is a settled rule of statutory construction that 

“where exceptions to a general rule are specified by statute, other exceptions are not to be 

implied or presumed.” ’ [Citation.] Section 1170.18(i) incorporates portions of section 

667 and section 290, but only the former defines a conviction to include certain juvenile 

adjudications. Section 290, subdivision (c) makes no mention of juvenile adjudications 

nor does it expressly or impliedly supersede Welfare and Institutions Code section 203.

[8]

If the electorate had wanted all juvenile adjudications for offenses listed in section 

290, subdivision (c) to be treated as disqualifying convictions, the statute could have 

easily been worded to reflect such an intent. For example, section 666, which was 

amended by Proposition 47, is an exclusionary provision that applies to ‘any person who 

is required to register pursuant to the Sex Offender Registration Act, or who has a prior 

violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of 

8

 Welfare and Institutions Code section 203 provides: “An order adjudging a minor to 

be a ward of the juvenile court shall not be deemed a conviction of a crime for any 

purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.” 

With regard to supersession, unlike section 290, section 667, subdivision (d), contains a 

provision stating that it is applicable “[n]otwithstanding any other law . . . .” (§ 667, 

subd. (d).)
18

paragraph (2) of subdivision (e) of Section 667 . . . .’ [Citation.] The Sex Offender 

Registration Act encompasses sections 290 to 290.024, which includes the statute 

governing juvenile sex offender registration, section 290.008. [Citations.] Section 666 

has thus been construed as ‘unambiguously’ expressing the intent to make both adult and 

juvenile sex offenders ineligible for relief.” (Fernandez, supra, 11 Cal.App.5th at 

p. 936.) The Fernandez court thus noted that it was “not persuaded by the dicta 

contained in a footnote at the end of the Sledge opinion, which arguably implies that any 

prior adjudication for an offense listed in section 290, subdivision (c) must always be 

treated as a disqualifying prior conviction.” (Fernandez, at p. 935, fn. omitted, citing 

Sledge, supra, 7 Cal.App.5th at p. 1104, fn. 6.)

9

On this rationale, the Fernandez court held: “prior juvenile adjudications 

constitute ‘prior convictions’ within the meaning of section 1170.18(i) if they would be 

treated as such under section 667, subdivision (d).” (Fernandez, supra, 11 Cal.App.5th at 

p. 937.) Thus, the Fernandez court held that, as with juvenile adjudications of offenses 

specified in section 667, subdivision (e)(2)(C)(iv), juvenile adjudication of offenses 

described in section 1170.18, subdivision (i), as “requiring registration pursuant to

subdivision (c) of Section 290” have to satisfy the requirements of section 667, 

9

 Footnote six in Sledge states: “We have affirmed on the only grounds actually 

considered by the trial court and briefed by the parties in this appeal—defendant’s felony 

juvenile adjudication for forcible rape is a disqualifying prior conviction because it is, 

‘for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of 

subdivision (e) of Section 667 . . . .’ [Citation.] However, there appears to be alternative 

grounds for reaching the same result. Defendant’s felony juvenile adjudication for 

forcible rape may also be a disqualifying prior conviction because it is ‘for an offense 

requiring registration pursuant to subdivision (c) of Section 290.’ [Citation.] It is 

indisputable that rape by force is an offense requiring such registration. [Citations.] Plus 

it makes no difference that defendant was not and perhaps could not have been ordered to 

register. The emphasis in section 1170.18(i) is on the conviction for an offense requiring 

registration, not the registration status of the offender.” (Sledge, supra, 7 Cal.App.5th at 

p. 1104, fn. 6.)
19

subdivision (d)(3), in order to constitute a disqualifying offense within the meaning of 

section 1170.18, subdivision (i). (Fernandez, at p. 936.)

We agree with the Fernandez court’s reasoning and conclusion on this issue and 

adopt it as our own. We, too, disagree with Sledge, supra, 7 Cal.App.5th at page 1104, 

footnote six, to the extent that the footnote can be read as to suggest that a juvenile 

adjudication of any offense requiring registration pursuant to section 290, subdivision (c), 

is a disqualifying offense within the meaning of section 1170.18, subdivision (i), without 

reference to section 667, subdivision (d)(3). (Fernandez, supra, 11 Cal.App.5th at 

p. 935.) We have concluded that, for a juvenile adjudication to constitute a disqualifying 

“conviction,” within the meaning of section 1170.18, subdivision (i), it must meet the 

requirements of section 667, subdivision (d)(3). Therefore, the mere fact that a particular 

offense appears in section 290, subdivision (c), does not mean that an individual who 

sustained a juvenile adjudication of that offense will be disqualified from the provisions 

of section 1170.18 where the juvenile adjudication does not meet the requirements of 

section 667, subdivision (d)(3).

*****
20

DISPOSITION

The appeal from the order dated March 20, 2015, is dismissed as moot. The order 

dated January 14, 2016, is reversed, and the matter is remanded for further proceedings 

on the petition consistent herewith and in accordance with section 1170.18.

 /s/

MURRAY, J.

We concur:

 /s/

RAYE, P. J.

 /s/

RENNER, J.