Filed 4/21/15 T.W. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

T.W.,

Petitioner,

v.

THE SUPERIOR COURT OF CONTRA 

COSTA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 A144528

 (Contra Costa County

 Super. Ct. No. J12-00850)

In this mandamus proceeding, petitioner T.W. seeks a writ compelling respondent 

superior court to vacate its order denying his petition for modification, filed pursuant to 

Welfare and Institutions Code section 778, and under authority of Penal Code 

section 1170.18.1 Our review of the parties’ briefs and the record lead us to conclude 

T.W. is entitled to writ relief. Thus, in accordance with our notification to the parties we 

might do so, we order issuance of a writ directing respondent court to vacate its order 

denying T.W.’s petition for recall of sentence. (Code Civ. Proc., § 1088; Palma v. U.S. 

Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180; Ng v. Superior Court (1992) 

4 Cal.4th 29, 35; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1239–1241.) 

However, because respondent court did not reach the issue of whether T.W. would pose 

 

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 Further statutory references are to the Penal Code unless otherwise specified.
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an unreasonable risk of danger to public safety (see § 1170.18, subd. (b)), the matter is 

remanded for the court to make that determination. 

I. BACKGROUND

T.W. was made a ward of the juvenile court pursuant to Welfare and Institutions 

Code section 602 in July 2010. A supplemental petition was filed by the Alameda 

County District Attorney’s Office on July 23, 2013, alleging felony violations of Penal 

Code section 211, robbery, and section 496, receiving stolen property. In the underlying 

incident, T.W. robbed the victim of her purse and contents and was found in possession 

of a stolen ATM card and cell phone. On July 30, 2013, the Alameda County Superior 

Court held a pretrial hearing on the petition. The minute order of the hearing reflects 

T.W. was in custody and was advised of his constitutional rights. The minute order states

as follows: “The minor has waived [his] right to a trial, to remain silent, to confront and 

cross-examine witnesses, to subpoena witnesses ([Welf. & Inst. Code, § 702.5]); 

understands the nature of the conduct alleged in the petition and the possible 

consequences of an admission; the admission is made freely and voluntarily. There is a 

factual basis for the admission. [¶] The minor is a person described by Section 602 of the 

Welfare and Institutions Code. [¶] Pursuant to the minor’s admission: [¶] Count 1 ([Pen. 

Code, §] 211) (F) Dismissed on motion of DA with facts and restitution open on 

07/30/2013 [¶] Count 2 ([Pen. Code, §] 496) (F) True as admitted on 07/30/2013 [¶]

Admission is with counsel’s consent.” Thereafter, the court transferred the matter to 

Contra Costa Superior Court for disposition because T.W.’s legal residence was that of 

his mother, who resided in Contra Costa County. 

Subsequently, in November 2014, T.W. filed a petition for modification, pursuant 

to Welfare and Institutions Code section 778, based on voter initiative Proposition 47 that 

passed on November 5, 2014.2 The petition notes T.W.’s maximum term of confinement 

 

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 “On November 4, 2014, the voters enacted Proposition 47, ‘the Safe

Neighborhoods and Schools Act’ (hereafter Proposition 47), which went into effect the 

next day. (Cal. Const., art. II, § 10, subd. (a).)” (People v. Rivera (2015) 

233 Cal.App.4th 1085, 1089.) Section 1170.18 “was enacted as part of Proposition 47.” 
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was set at three years four months after he admitted he took a woman’s purse and its 

contents with a total value of under $950. The petition states: “Pursuant to 

Proposition 47, a violation of Penal Code 496 and possessed property valued at less than 

$950 [sic] is now a misdemeanor and carries a maximum confinement term of 12 months. 

Petitioner requests that his maximum term of confinement be modified to 16 months . . . . 

[¶] . . . [¶] . . . [and] that he be released from custody immediately” because he had 

already been detained for over two years. 

In his opposition brief, the Contra Costa County District Attorney conceded

Proposition 47 applies to juvenile delinquents but argued because T.W. posed an 

unreasonable risk of danger to public safety, resentencing was not appropriate and the 

petition should be denied. In a supplemental rebuttal brief, the district attorney also

argued Proposition 47’s “retroactive resentencing provision” does not apply to negotiated 

dispositions. After calling for further briefing on the latter argument raised by the district 

attorney, the court held a hearing on December 16, 2014. At the hearing, the court ruled 

Proposition 47 applies to juvenile cases because under Welfare and Institutions Code 

section 726, a juvenile cannot be held in confinement for longer than the maximum term 

applicable to an adult. The court stated for purposes of applying Penal Code 

section 1170.18, the key issue was “whether there is an implication that the core issue in 

the plea agreement was intended to not be affected by further changes in the law. . . . [¶] 

. . . [i.e.] whether or not . . . there was a plea bargain for the specific charges and the . . . 

maximum commitment time.” The court continued: “Let’s be clear. If it was not a plea 

bargain, Prop 47 applies. . . . [¶] . . . [¶] I believe I can transfer this case to Alameda 

 

(Rivera, at p. 1089.) Section 1170.18 provides a mechanism by which a person currently 

serving a felony sentence for an offense that is now a misdemeanor, may petition for a 

recall of that sentence and request resentencing in accordance with the offense statutes as 

added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the 

criteria in subdivision (a) of section 1170.18, shall have his or her sentence recalled and 

be “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.” 

(Id., subd. (b).)
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County for the express purpose of having the Alameda County court determine whether 

their agreed-upon plea . . . was a plea bargain . . . .” On December 16, 2014, the court 

transferred the case to Alameda County Superior Court “for determination of the Prop. 47 

petition.” 

After Alameda County Superior Court transferred the case back without taking 

any action on the Proposition 47 petition, Contra Costa County Superior Court set a 

further hearing on January 13, 2015, to resolve T.W.’s still-pending Proposition 47 

petition. At the hearing, counsel for T.W. argued that since Alameda County Superior 

Court declined to act on the Proposition 47 petition “[w]e don’t know” if T.W. entered a 

plea bargain, and accordingly the court should grant the Proposition 47 petition. The 

district attorney, on the other hand, argued that the language of the minute order of the 

plea hearing entered in Alameda County Superior Court on July 30, 2013, clearly 

demonstrated the plea was indeed a “negotiated disposition.” 

Thereafter, the juvenile court denied the modification petition. The court stated: 

“If it is a negotiated plea bargain where in exchange for a reduced charge to which the 

minor enters a plea, a non-Prop 47 count is reduced and the court accepts that agreement, 

then in my opinion . . . that’s not a Prop 47 eligible reduction. . . . [¶] In this particular 

case, . . . . given that it was, by the minute order, a dismissal of one count for a plea to 

another and the showing that restitution was left open on the dismissed count, that’s a

sufficient indicia of a plea bargain that somebody would have to bring a transcript in to 

show that it wasn’t. [¶] So I’m going to find that the Prop 47 petition is denied.” On 

March 6, 2015, T.W. filed a notice of appeal of the court’s denial of his petition under 

section 1170.18.

3

 

 

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 The notice of appeal was received in this court on March 17, 2015, and 

assigned case No. A144530 in People v. T.W. The filing of the notice of appeal 

transferred jurisdiction over the matter to this court. (See People v. Saunoa (2006) 

139 Cal.App.4th 870, 872 [filing of a valid notice of appeal transfers jurisdiction of a 

cause to the appellate court].) On April 15, 2015, we issued an order notifying the parties 

we were prepared to issue a peremptory writ in the first instance in this matter after 

jurisdiction was transferred back from this court to Contra Costa Superior Court. After 
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T.W. subsequently filed this writ petition on March 16, 2015, contending the 

remedy of appeal is “neither speedy nor adequate” because, “As of the date of the filing 

of this writ petition, petitioner has served two years, six months and eleven days in 

custody. Absent relief, he has nine months and nineteen days of remaining custodial 

time. If granted Proposition 47 relief, petitioner will be entitled to immediate release 

from custody.” 

II. DISCUSSION

Section 1170.18, subdivision (a) provides: “A person currently serving a sentence 

for a conviction, whether by trial or plea, of a felony or felonies who would have been 

guilty of a misdemeanor under the act that added this section (‘this act’) had this act been 

in effect at the time of the offense may petition for a recall of sentence before the trial 

court that entered the judgment of conviction in his or her case to request resentencing

. . . .” (Italics added.) Proposition 47 reduced the offense of receiving stolen property 

from a felony to a misdemeanor where the value of the property does not exceed $950. 

(See §§ 496, 1170.18, subd. (a).) As T.W. admitted to receiving stolen property, he 

contends he is entitled to petition for recall of his sentence because by its plain language 

section 1170.18 applies to convictions by trial or plea, and thus the trial court erred by 

engrafting a plea agreement disqualifier into the statute. We agree.

“ ‘In interpreting a voter initiative . . . we apply the same principles that govern 

statutory construction. [Citation.] Thus, “we turn first to the language of the statute, 

giving the words their ordinary meaning.” [Citation.] The statutory language must also 

be construed in the context of the statute as a whole and the overall statutory scheme [in 

light of the electorate’s intent]. [Citation.] When the language is ambiguous, “we refer 

to other indicia of the voters’ intent, particularly the analyses and arguments contained in 

the official ballot pamphlet.” [Citation.]’ [Citation.] In other words, ‘our primary 

 

T.W. filed a request for dismissal in case No. A144530, we dismissed the appeal and 

immediately issued the remittitur, thereby transferring jurisdiction over the matter back to 

superior court. (Saunoa, at p. 872 [issuance of the remittitur transfers jurisdiction from 

the appellate court to the court whose decision was reviewed].) 
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purpose is to ascertain and effectuate the intent of the voters who passed the initiative 

measure.’ ” (People v. Briceno (2004) 34 Cal.4th 451, 459.) 

Here, section 1170.18 clearly and unambiguously states, “A person currently 

serving a sentence for a conviction, whether by trial or plea” of eligible felonies may 

petition for resentencing to a misdemeanor. (Id., subd. (a), italics added.) The only 

persons categorically ineligible are those with prior convictions for an enumerated 

handful of serious crimes, such as murder, rape, or child molestation. (See §§ 490.2, 

subd. (a), 667, subd. (e)(2)(C)(iv) [listing the disqualifying prior violent convictions].) 

After a petitioner is found to be eligible, the trial court must grant the petition for 

reduction of sentence unless the court finds in its discretion that the petitioner poses an 

unreasonable risk of committing a very serious crime. (See § 1170.18, subds. (b), (c).) 

The statute does not otherwise automatically disqualify a petitioner and nothing in 

section 1170.18 reflects an intent to disqualify a petitioner because the conviction was 

obtained by plea agreement.

Moreover, Proposition 47 “was intended to reduce penalties ‘for certain 

nonserious and nonviolent property and drug offenses from wobblers or felonies to 

misdemeanors.’ Those crimes were identified as ‘Grand Theft,’ ‘Shoplifting,’ ‘Receiving 

Stolen Property,’ ‘Writing Bad Checks,’ ‘Check Forgery,’ and ‘Drug Possession.’ (Voter 

Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by the Legis. Analyst, pp. 35–36, 

boldface and italics omitted.) ‘This measure allows offenders currently serving felony 

sentences for the above crimes to apply to have their felony sentences reduced to 

misdemeanor sentences. . . . In addition, the measure states that a court is not required to 

resentence an offender currently serving a felony sentence if the court finds it likely that 

this offender will commit a specified severe crime.’ [Citation.] This was echoed by the 

proponents of Proposition 47, who argued the measure ‘is sensible’ in that it ‘Stops 

wasting prison space on petty crimes and focuses law enforcement resources on violent 

and serious crime by changing low-level nonviolent crimes such as simple drug 

possession and petty theft from felonies to misdemeanors.’ (Voter Information Guide, 
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argument in favor of Prop. 47, at p. 38.)” (People v. Davis (2015) 234 Cal.App.4th 1001, 

1023, italics omitted.) 

Viewed in light of these objectives, our interpretation of section 1170.18, which 

adheres to its plain and unambiguous language, clearly “ ‘effectuate[s] the intent of the 

voters’ ” who passed Proposition 47. (People v. Briceno, supra, 34 Cal.4th at p. 459.) 

Accordingly, T.W. is entitled to petition for modification of his sentence, notwithstanding 

the fact his conviction was obtained by a plea agreement.4 

Accordingly, let a peremptory writ of mandate issue commanding respondent 

Superior Court of Contra Costa County, in its case No. J12-00850, to vacate its order 

denying T.W.’s modification petition, filed on January 13, 2015. Furthermore, in the 

interests of justice and consistent with the views expressed herein, respondent court shall 

hold a hearing as soon as possible to determine whether T.W.’s maximum term shall be 

reduced pursuant to section 1170.18, subdivision (b). Our decision is final in this court 

immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)

 

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 This outcome is consistent with the general rule announced by our Supreme 

Court in Doe v. Harris (2013) 57 Cal.4th 64: “[T]he general rule in California is that the 

plea agreement will be ‘ “deemed to incorporate and contemplate not only the existing 

law but the reserve power of the state to amend the law or enact additional laws for the 

public good and in pursuance of public policy. . . .” ’ [Citation.] That the parties enter 

into a plea agreement thus does not have the effect of insulating them from changes in the 

law that the Legislature has intended to apply to them.” (Id. at p. 66.)
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_________________________

Margulies, Acting P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.