Opinion
E065853
08-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES MEJIA, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1402223) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant James Mejia appeals from the trial court's denial of his petition under Penal Code section 1170.18 to reduce to a misdemeanor his felony conviction for attempting to receive a stolen vehicle. We affirm.
Section references are to the Penal Code except where otherwise indicated.
STATEMENT OF THE CASE
On August 6, 2014, defendant pled guilty to attempting to receive a stolen vehicle, a felony. (§§ 664, 496d, subd.(a)). The court sentenced defendant to one year in county prison with total credit for 105 days.
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug- and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants and added, among other statutory provisions, section 1170.18. Section 1170.18 creates a process through which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109.)
On March 9, 2016, defendant filed a petition under section 1170.18 seeking to have his conviction designated a misdemeanor. The court held a hearing on the petition on April 15, 2016. After hearing argument from counsel, and a representation by defense counsel that the vehicle in question was worth $841 according to the "Edmonds website," the court denied the petition on the ground that attempted receiving a stolen vehicle is not eligible for Proposition 47 relief.
This appeal followed.
DISCUSSION
1. Standard of Review
When interpreting a voter initiative, "we apply the same principles that govern statutory construction." (People v. Rizo (2000) 22 Cal.4th 681, 685.) We first look " 'to the language of the statute, giving the words their ordinary meaning.' " (Ibid.) We construe the statutory language "in the context of the statute as a whole and the overall statutory scheme." (Ibid.) If the language is ambiguous, we look to " 'other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' " (Ibid.)
2. Proposition 47 and Section 1170 .18
Section 1170.18, subdivision (f), provides: "A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47] been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors."
3. Applicability of Proposition 47 to Penal Code Section 496d Offenses
Penal Code section 496d, subdivision (a), states in relevant part, that "[e]very person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained . . . shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both."
The applicability of Proposition 47 to section 496d is currently under review before the California Supreme Court in People v. Varner (2016) 3 Cal.App.5th 360, review granted November 22, 2016, S237679; People v. Nichols (2016) 244 Cal.App.4th 681, review granted April 20, 2016, S233055; People v. Peacock (2015) 242 Cal.App.4th 708, review granted February 17, 2016, S230948; and People v. Garness (2015) 241 Cal.App.4th 1370, review granted January 27, 2016, S231031.
In People v. Varner, supra, 3 Cal.App.5th at page 366, this court concluded that a defendant is ineligible for Proposition 47 relief based on a conviction for violating section 496d, "because section 496d is not included in section 1170.18," and because "there is no indication that the drafters of Proposition 47 intended to include section 496d."
Under a 2016 amendment to rule 8.1115 of the California Rules of Court, we may rely on the Court of Appeal's decision as persuasive authority while review is pending. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
Since section 1170.18, subdivisions (a) and (b), expressly include certain theft-related offenses, we presume the intent of the voters, and of the Legislature, was to exclude other theft-related offenses, such as section 496d, which were not specifically included under Proposition 47. To construe Proposition 47 as including section 496d would be inconsistent with our Supreme Court's instruction that we not "add to the statute or rewrite it to conform to some assumed intent not apparent from that language." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571; see People v. Guzman (2005) 35 Cal.4th 577, 587; People v. Varner, supra, 3 Cal.App.5th at pp. 367-368.)
Additionally, in order to be eligible for resentencing, defendant must be a person "who would have been guilty of a misdemeanor" if Proposition 47 had been in effect at the time of the offense. (§ 1170.18, subd. (a).) Defendant is not such a person. Although we recognize the language, "any property," included in section 496, subdivision (a), is broad enough to encompass a stolen vehicle, Proposition 47 left intact the language in section 496d that makes a violation of that statute a wobbler. (§§ 17, subds. (a), (b), 496d, subd. (a).) On the other hand, section 496, subdivision (a), as amended by Proposition 47, now requires the district attorney to charge the crime as a misdemeanor if the stolen property does not exceed $950.
In the instant case, Proposition 47 does not operate to reduce defendant's sentence because the prosecutor had the discretion to prosecute defendant's section 496d crime as either a felony or a misdemeanor, even after the passage of Proposition 47, and regardless of the value of the motor vehicle. Thus, although defendant "could have been" guilty of a misdemeanor for violating section 496d, subdivision (a), had the People elected to prosecute the charge as a misdemeanor, defendant is not a person "who would have been guilty of a misdemeanor" had Proposition 47 been in effect at the time of the offense. (§ 1170.18, subd. (a).)
Language in other portions of Proposition 47 supports this conclusion. Section 490.2, subdivision (a), provides a definition of petty theft that begins with the phrase: "Notwithstanding Section 487 or any other provision of law defining grand theft, . . ." Similarly, section 459.5, which was also added by Proposition 47, provides a definition of shoplifting, which begins with the phrase: "Notwithstanding Section 459 [burglary] . . . ." This "notwithstanding" language is notably absent from section 496. Because section 496 contains no reference to section 496d, and since Proposition 47 did not amend section 496d to require sentencing as a misdemeanor, it is reasonable to assume the drafters intended section 496d to remain intact as a wobbler, with the prosecution retaining discretion to charge a section 496d offense as either a felony or a misdemeanor. The absence of any reference in Proposition 47 to section 496d, including in the list of crimes eligible for resentencing, shows that section 496d was intended to remain beyond Proposition 47's reach. (See Barnhart v. Peabody Coal Co. (2003) 537 U.S. 149, 168; Gikas v. Zolin (1993) 6 Cal.4th 841, 852; People v. Sanchez (1997) 52 Cal.App.4th 997, 1001.) We therefore conclude defendant's conviction under sections 664 and 496d, subdivision (a), does not qualify for redesignation under Proposition 47.
4. Equal Protection and Penal Code Section 496d Offenses
Defendant contends that, assuming Proposition 47 applies to Vehicle Code section 10851 (driving or taking a vehicle), but not to Penal Code section 496d, subdivision (a), then the omission of section 496d from Proposition 47 violates his constitutional right to equal protection under the law. This is because, defendant argues, a person receiving a stolen vehicle is similarly situated with a person who stole the very same vehicle, and may not be punished more harshly. We disagree.
Defendant acknowledges this question is currently being reviewed by the California Supreme Court. (People v. Page (2015) 241 Cal.App.4th 714, review granted Jan. 27, 2016, S230793.)
The federal equal protection clause (U.S. Const., 14th Amend.) and the California equal protection clause (Cal. Const., art. I, § 7, subd. (a)) provide that all persons similarly situated should be treated alike. The California Supreme Court in People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson) instructs that a defendant " 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' [Citations.]" Therefore, the rational basis test is applicable to an equal protection challenge involving " 'an alleged sentencing disparity.' " (Ibid.) Our Supreme Court also has applied the rational basis test to an alleged statutory disparity: "Where, as here, a disputed statutory disparity implicates no suspect class or fundamental right, 'equal protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." ' [Citation.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
Here, the Legislature added section 496d to "target person involved in the business of vehicle theft," such as those who run chop shops where stolen vehicles are taken apart and sold for parts. Such a purposeful enterprise can place a more onerous burden on society than joyriding or simple car theft under Vehicle Code section 10851. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.) Both the Legislature and the voters act rationally if they choose to punish more severely offenses that can be associated with systematic crime for profit than offenses that are not. For this reason, we reject defendant's equal protection argument.
Defendant also briefly makes an equal protection argument regarding section 496, receiving stolen property. We reject defendant's contention. First, there are plausible reasons to treat sections 496 and 496d differently. For example, the owner of a vehicle relies on the vehicle for transportation to work, doctor's appointments, and numerous other life necessities. Vehicle theft thus has a serious negative effect on the ability of ordinary people to conduct their lives. The Legislature explicitly added section 496d to the Penal Code in order to provide "additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.)
Another plausible reason for the disparity is the probable intent not to eliminate prosecutorial discretion to charge a section 496d offense as either a felony or misdemeanor. Our Supreme Court has ruled that "numerous factors properly may enter into a prosecutor's decision to charge under one statute and not another, such as a defendant's background and the severity of the crime, and so long as there is no showing that a defendant 'has been singled out deliberately for prosecution on the basis of some invidious criterion,' that is, ' "one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests[,]" ' the defendant cannot make out an equal protection violation. [Citation.]" (People v. Wilkinson, supra, 33 Cal.4th at pp. 838-839.)
Because there are plausible reasons for distinguishing between section 496d, subdivision (a) offenses on the one hand, and section 496, subdivision (a), on the other hand, defendant has not established any violation of equal protection in failing to extend reclassification to section 496d, subdivision (a) offenses.
DISPOSITION
The court's order denying the section 1170.18 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: McKINSTER
J.
Slough, J., Concurring.
I agree with the majority's conclusion that convictions for receiving a stolen vehicle under Penal Code section 496d (Section 496d) are not eligible for resentencing or redesignation under Penal Code section 1170.18 (Section 1170.18). I write separately because the majority opinion gets to the correct result by repeating a common misreading of Section 1170.18, a mistake which I believe has led to confusion in how courts should deal with Proposition 47 petitions.
Among other reasons, the majority concludes Section 496d is not an eligible offense under Section 1170.18 because it does not appear on the list of offenses in the latter provision. (Maj. opn. ante, at pp. 4-5 [a defendant is ineligible for Proposition 47 relief based on a conviction for violating Section 496d, "because section 496d is not included in section 1170.18," quoting People v. Varner (2016) 3 Cal.App.5th 360, 366].) This is an application of the canon of interpretation expressio unius est exclusio alterius, which holds that when a statute expressly mentions one or more things in a class, the omission of other things in the class indicates the lawmaker intended their exclusion. Many courts have made the same argument, but the plain statutory text shows it is unsound because it relies on a false premise—namely that Section 1170.18 contains a list of eligible offenses.
(E.g., People v. Johnston (2016) 247 Cal.App.4th 252, 257, review granted July 13, 2016, S235041 ["[S]ection 1170.18 selected only a few provisions of the Health and Safety Code and the Penal Code as offenses to designate as misdemeanors from the multitude of overlapping crimes"].) --------
Section 1170.18 contains no such list. The statute says the trial court must determine whether a petitioner is entitled to relief under Proposition 47, and if so, it must then resentence the petitioner under one of a list of penalty provisions, specifically "Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code." (§ 1170.18, subd. (b).) Thus, the first order of business for the court is to determine eligibility by referring to substantive penal and health and safety provisions. Only then should the court consult the list in Section 1170.18 for the purpose of resentencing the offender under one of the sections Proposition 47 added or amended to change the penalties for substantive theft-related and drug possession crimes.
In short, it simply does not matter for our analysis whether Section 496d appears on the list in Section 1170.18. Numerous statutory sections setting out substantive eligible offenses do not appear in that list, including Penal Code sections 487 (grand theft), 459 (burglary), 476 (forgery, counterfeiting), 504 (embezzlement), as well as 10851 (vehicle theft), all of which are eligible offenses. (People v Van Orden (2017) 9 Cal.App.5th 1277, 1290.) Thus, it is a non sequitur to say that Section 496d does not appear in the list of new punishment provisions that appear in Section 1170.18.
Putting the same point in the terms of the expressio unius canon, Section 1170.18 lists provisions setting out new misdemeanor penalties, not provisions setting out affected substantive offenses. Section 496d sets out a substantive offense, so it does not belong to the same class of the provisions listed. Its exclusion from the list therefore implies nothing, and we cannot use the expressio unius canon as an aid in determining whether the electorate intended to exclude Section 496d as an offense that is eligible for resentencing.
This point is obvious from the location of the list in the statute. It appears in subdivisions (a) and (b) of Section 1170.18, which has to do with the retroactive resentencing of eligible offenders under new misdemeanor sentencing provisions. By contrast, the list does not appear in subdivisions (f) or (g) of Section 1170.18 because those subdivisions apply to offenders who have already completed their sentences and seek only redesignation and not resentencing. Subdivisions (f) and (g) contain no list at all, much less a list of eligible offenses. (§ 1170.18, subd. (f) ["A person who has completed his or her sentence for a conviction . . . who would have been guilty of a misdemeanor under this act . . . may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors"].)
I agree with the remainder of the majority's analysis, which correctly concludes by analyzing the substantive provisions that Proposition 47 did not affect the substantive offense of receiving a stolen vehicle charged under section 496d. (Maj. opn. ante, at pp. 5-6.) I also agree this state of the law does not violate equal protection. I therefore join the majority's decision to affirm the order denying Mejia's petition.
SLOUGH
J.