A person is not eligible to have a felony conviction for petty theft with a prior (Pen. Code, § 666) reduced to a misdemeanor pursuant to Proposition 47 if he is required to register as a sex offender based on a prior juvenile adjudication. After Proposition 47 passed, Dunn filed a petition to reduce his petty theft with a prior conviction to a misdemeanor. The trial court denied his petition. On appeal, Dunn argued that the fact he had to register as a sex offender should not render him ineligible for resentencing because his registration requirement arose from a juvenile adjudication rather than an adult conviction. Held: Affirmed. Proposition 47 reduced a number of theft and drug offenses, including petty theft with a prior, from felonies to misdemeanors and created a mechanism whereby individuals can have their old felony convictions for such offenses reduced to misdemeanors. The retroactive mechanism requires the defendant show that his conviction would have been a misdemeanor had Proposition 47 been in effect at the time of his offense. Dunn did not make this showing. As amended by Proposition 47, petty theft with a prior is not a misdemeanor if, inter alia, the defendant is “required to register pursuant to the Sex Offender Registration Act.” Juvenile sex offender registry is part of the Sex Offender Registration Act. (See Pen. Code, § 290.008.) Section 666, unlike all the other offenses affected by Proposition 47, does not limit ineligibility to individuals who have to register under section 290, subdivision (c), which pertains solely to adult sex offenders. (See Health & Saf. Code, §§ 11350, 11357, and 11377; Pen. Code, §§ 459.5, 473, 476a, 490.2, 496, and 1170.18, subd. (i).) The court rejected Dunn’s rule of lenity, drafting error, and equal protection arguments.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B266482.PDF