Filed 8/4/16
                                CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                          DIVISION SIX


THE PEOPLE,                                                  2d Crim. No. B266482
                                                          (Super. Ct. No. 2012009629)
     Plaintiff and Respondent,                                 (Ventura County)

v.

SEAN F. DUNN,

     Defendant and Appellant.



                  Sean F. Dunn appeals an order denying a petition to recall his sentence for
felony petty theft with a prior and for resentencing to a misdemeanor pursuant to
Proposition 47, the Safe Neighborhoods and School Act (the Act). (Pen. Code,
§§ 1170.18, 666.)1
                  Here we hold that a person is not eligible for resentencing pursuant to
section 666 if the person is required to register as a sex offender as a result of a prior
juvenile adjudication. (§§ 666, 290.008, formerly § 290, subd. (d)(1).) This treatment of
registered juvenile sex offenders does not deny Dunn equal protection of the laws. (U.S.
Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).)
                                         BACKGROUND
                  In 1990, when Dunn was 14 years old, he committed two acts of forcible
rape in concert with another and three acts of forcible sexual penetration. A juvenile
court sustained allegations that he committed two counts of section 264.1 and three

         1 All   statutory references are to the Penal Code.
counts of section 289, subdivision (a). It committed him to the California Youth
Authority for a 54-year term. Following Dunn’s discharge, he was required to register as
a sex offender. (§ 290.008, formerly § 290, subd. (d)(1).)2
              In 1997, Dunn was sentenced to prison for assault with force likely to
produce great bodily injury. (§ 245, former subd. (a)(1).) In 2011, he returned to prison
for robbery. (§ 211.) While on parole for the robbery in 2012, he stole items from a
department store. He pled guilty to felony petty theft with a prior. (§ 666, former subd.
(b).) He admitted the prior strike conviction for robbery and the court sentenced him to
32 months in prison. (§ 667, subds. (b)-(i).)
              Dunn was released on parole in 2014, with electronic monitoring.
(§§ 3000.08, subd. (a), 3010.10, subd. (b).) Two months later, he violated parole by
removing his electronic tracking device. The court revoked and reinstated his parole. In
2015, Dunn petitioned for resentencing to misdemeanor petty theft under the Act.
                                       DISCUSSION
              Dunn contends only adult sex offenders should be ineligible for relief under
section 666. The plain language of the statute provides otherwise.
              A person who is serving a felony sentence may be resentenced under any of
the Proposition 47 statutes if (1) they “would have been guilty of a misdemeanor under
[the Act had it] been in effect at the time of the offense”; (2) they have no prior
“conviction[]” for a super-strike3 offense or for an offense requiring registration under
section 290, subdivision (c); and (3) resentencing would not pose an unreasonable risk of
danger to the public. (§ 1170.18, subds. (a), (b), (i).)

       2 Former  section 290, subdivision (d)(1), in effect when Dunn was discharged, is
substantially similar to current section 290.008 and provided: “Any person who, on or
after January 1, 1986, is discharged or paroled from the Department of the Youth
Authority to the custody of which he or she was committed after having been adjudicated
a ward of the juvenile court pursuant to [s]ection 602 of the Welfare and Institutions
Code because of the commission or attempted commission of [an enumerated sex
offense] shall be subject to registration under the procedures of this section.”
        3 Dunn’s juvenile adjudications are not super-strikes because he was under 16 in
1990. (§ 667, subd. (d)(3).)
                                                2
              Dunn’s petition fails at the first prong because he would not have been
guilty of a misdemeanor under the Act. Petty theft with a prior is not a misdemeanor
under the Act for those who are “required to register pursuant to the Sex Offender
Registration Act [§§ 290-290.024].” (§ 666, subd. (b).) Juvenile sex offender registry is
a part of the Sex Offender Registration Act. (§ 290.008.)
              If the electorate intended to make only adult offenders ineligible for relief
under section 666, it knew how to do so. (Health & Saf. Code, §§ 11350, 11357, 11377;
§§ 459.5, 473, 476a, 490.2, 496, 1170.18, subd. (i).) A person is ineligible for relief
under the other Proposition 47 statutes only if they are a person with one or more
convictions “for an offense requiring registration pursuant to subdivision (c) of [s]ection
290 [adult sex offender registration].” (Health & Saf. Code, §§ 11350, 11357, 11377; §§
459.5, 473, 476a, 490.2, 496, 1170.18, subd. (i); In re Derrick B. (2006) 39 Cal.4th 535,
540.)
              Dunn asks us to construe section 666 to make only adult sex offenders
ineligible. He contends this would best effectuate the electorate’s intent; it is required by
the rule of lenity; the disparity between section 666 and other Proposition 47 statutes
reflects a drafting error; and the disparity violates state and federal equal protection
principles. We disagree with each of these contentions.
              The electorate’s intent to withhold relief from juvenile sex offenders who
commit serial thefts is unambiguously expressed in section 666. (People v. Canty (2004)
32 Cal.4th 1266, 1276 [“If the language is clear and unambiguous, we follow the plain
meaning of the measure”].) The rule of lenity does not apply because section 666 is not
reasonably susceptible to two constructions. (People v. Avery (2002) 27 Cal.4th 49, 58.)
A person is disqualified if they are “required to register under the Sex Offender
Registration Act [§§ 290-290.024].” (§ 666, subd. (b).) Section 666 does not reflect a
drafting error; there is no compelling evidence the electorate intended a different result.
(People v. Garcia (1999) 21 Cal.4th 1, 6 [we may reform a statute only “when compelled
by necessity and supported by firm evidence of the drafters’ true intent”].) The electorate
advanced its goal of “[r]equir[ing] misdemeanors . . . for nonserious, nonviolent crimes

                                              3
like petty theft and drug possession,” while withholding relief from all sex offenders who
commit serial theft. (Prop. 47, § 3, subd. (4); see Voter Information Guide, Gen. Elec.
(Nov. 5, 2014) text of Prop. 47, p. 70.)
              Section 666 does not violate equal protection guarantees because juvenile
sex offenders who commit recidivist theft crimes and juvenile sex offenders who commit
other Proposition 47 crimes are not similarly situated. (People v. Morales (2016) 63
Cal.4th 399, 408 [claimant must show the state adopted a classification that affects two or
more groups similarly situated for purposes of the challenged law]; People v. Shaw
(2009) 177 Cal.App.4th 92, 101 [a recidivist is more blameworthy than a first offender].)
Harsher consequences for recidivists is not irrational. (People v. McCain (1995) 36
Cal.App.4th 817, 820.) Even if the crimes were comparable, distinctive treatment is
rational because the two groups’ rehabilitative prospects vary. (People v. Wilkinson
(2004) 33 Cal.4th 821, 827, 837-838 [rational basis review].)
                                       DISPOSITION
              The order is affirmed.
              CERTIFIED FOR PUBLICATION.



                                           TANGEMAN, J.

We concur:



              GILBERT, P. J.



              YEGAN, J.




                                            4
                              Patricia M. Murphy, Judge

                           Superior Court County of Ventura

                         ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy
Public Defender, and William Quest, Senior Deputy Public Defender, for Defendant and
Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Noah P. Hill
and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
