Opinion
H043563
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. BRENT N. ORMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. CC316797, CC646629, CC935844)
This appeal concerns the scope of the Safe Neighborhoods and Schools Act (Cal. Const., art. II, § 10, subd. (a)) (Proposition 47). At issue is whether Proposition 47 applies to the offenses of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and buying or receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)). We conclude that it does not apply to either. We also reject defendant Brent Orman's contention that the trial court was required to grant him leave to amend his Proposition 47 petitions despite his admitted failure to carry his burden to demonstrate entitlement to relief. We shall affirm the orders disposing of defendant's Proposition 47 petitions without prejudice to defendant filing subsequent petitions supported by evidence entitling him to relief.
All further statutory citations are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
In January 2016, defendant filed three petitions seeking to have "any" of his prior felony convictions that might be "eligible" reduced to misdemeanors under section 1170.18, subdivisions (f) and (g). Each of defendant's petitions concerned a different Santa Clara County criminal case: CC316797 (conviction date: March 22, 2004); CC646629 (conviction date: October 30, 2006); and CC935844 (conviction date: February 27, 2009).
In case No. CC316797, defendant pleaded no contest to felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); felony possession of stolen property (§ 496, subd. (a)); and felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He also pleaded no contest to two misdemeanors. The trial court denied in part and granted in part defendant's petition for redesignation in case No. CC316797. The court granted relief as to defendant's conviction under Health and Safety Code section 11377, subd. (a), ordering that it be redesignated a misdemeanor. The court denied defendant's petition as to the Vehicle Code section 10851, subdivision (a) and the section 496, subdivision (a) convictions, reasoning that Vehicle Code section 10851 offenses do not qualify for Proposition 47 relief and that defendant failed to show that the value of the vehicle and property stolen did not exceed $950.
In case No. CC646629, defendant pleaded no contest to felony grand theft (§§ 484/487, subd. (a)); felony possession of stolen property (§ 496, subd. (a)); felony possession of a blank check (§ 475, subd. (b)); and a misdemeanor. The trial court denied defendant's Proposition 47 petition without prejudice on the ground that defendant failed to show that the value of the stolen property and the value of the forged check did not exceed $950.
In case No. CC935844, defendant pleaded no contest to two counts of felony receiving a stolen vehicle with a prior conviction (§§ 496d, 666.5); one count of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); and a misdemeanor. The trial court granted defendant's Proposition 47 petition as to the drug offense conviction (Health & Saf. Code, § 11377, subd. (a)) and denied it as to the two receiving a stolen vehicle convictions, reasoning that section 496d offenses do not qualify for Proposition 47 relief and that defendant failed to show that the value of the vehicles did not exceed $950.
Defendant timely appealed all three orders.
II. DISCUSSION
With respect to case No. CC316797, defendant contends on appeal that the trial court erred in concluding that Vehicle Code section 10851 convictions are not eligible for redesignation under Proposition 47. He similarly challenges the trial court's conclusion, in connection with case No. CC935844, that section 496d convictions are not eligible for redesignation under Proposition 47. Defendant also contends the court erred in denying all three of his petitions for failure to show the value of the property at issue did not exceed $950, arguing the court should have permitted him to amend his petitions instead.
A. Background and Principles of Interpretation
On November 4, 2014, California voters enacted Proposition 47, which designates as misdemeanors certain drug- and theft-related offenses that previously were felonies or wobblers. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) For example, Proposition 47 added section 490.2 to the Penal Code. It provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . ." (§ 490.2, subd. (a).) Proposition 47 also enacted section 1170.18. Under subdivisions (f) and (g) of that provision, a person who has completed a felony sentence for an offense that would now be a misdemeanor under Proposition 47 is entitled to have his or her felony conviction designated as a misdemeanor upon filing a petition with the trial court.
"[O]ur interpretation of a ballot initiative is governed by the same rules that apply in construing a statute enacted by the Legislature. [Citations.] We therefore first look to 'the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context.' [Citations.]" (People v. Park (2013) 56 Cal.4th 782, 796.) " ' "When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it." [Citation.]' [Citation.]" (People v. Hendrix (1997) 16 Cal.4th 508, 512.)
B. Proposition 47 Does Not Apply to Vehicle Code Section 10851
The California Supreme Court is currently considering whether Proposition 47 applies to the offense of unlawful taking or driving a vehicle (Veh. Code, § 10851) in People v. Page, review granted January, 2016, S230793. --------
Vehicle Code section 10851, subdivision (a) provides, in relevant part: "Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . ." Proposition 47 did not amend Vehicle Code section 10851, subdivision (a), which provides that a violation of the statute is punishable as either a felony or a misdemeanor. Defendant argues that section 490.2 should be construed as reducing violations of Vehicle Code section 10851 to misdemeanors where the value of the vehicle taken does not exceed $950. He reasons that section 490.2, which redefines "obtaining any property" worth $950 or less "by theft" as petty theft punishable as a misdemeanor, applies to Vehicle Code section 10851 because a violation of that provision (1) is referred to as "auto theft" and (2) is a lesser-included offense of grand theft auto (§ 487). We are not persuaded.
The shorthand reference of "auto theft" sometimes used to refer to a violation of Vehicle Code section 10851 is not dispositive as to whether such a violation involves "obtaining any property by theft" for purposes of section 490.2. Theft requires an intent to deprive another of property permanently or temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment. (People v. Avery (2002) 27 Cal.4th 49, 52, 58.) By contrast, Vehicle Code section 10851, subdivision (a), proscribes a wide range of conduct, including joyriding. (People v. Garza (2005) 35 Cal.4th 866, 876.) Intent to temporarily deprive the owner for any period of time, even a brief or reasonable period of time, suffices for a Vehicle Code section 10851 violation. (See Veh. Code, § 10851, subd. (a) ["with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle"]; CALCRIM No. 1820 [defendant "intended to deprive the owner of possession or ownership of the vehicle for any period of time"].) Because Vehicle Code section 10851 encompasses to both theft and nontheft conduct, we conclude it does not fall within the ambit of section 490.2.
Defendant observes that section 666, which sets forth the punishment for a defendant convicted of petty theft with a prior conviction and was amended by Proposition 47, expressly refers to a conviction for "auto theft under Section 10851 of the Vehicle Code." (§ 666, subd. (a), italics added.) According to defendant, section 666's description of violations of Vehicle Code section 10851 as "auto theft" demonstrates the electorate intended for such violations to be considered "thefts" for purposes of Proposition 47. But section 666 referred to convictions for "auto theft under Section 10851 of the Vehicle Code" even before Proposition 47 was enacted. (§ 666, subd. (a); Stats. 2013, ch. 782, § 1.) That Proposition 47 did not remove that language from section 666 does not persuade us that the electorate intended a Vehicle Code section 10851 conviction to be eligible for redesignation to a misdemeanor under section 490.2.
Defendant correctly notes that Vehicle Code section 10851 is a lesser included offense of section 487, grand theft auto (People v. Buss (1980) 102 Cal.App.3d 781, 784), which is subject to section 490.2. He contends that because section 490.2 applies to the greater offense, it would be anomalous to conclude that section 490.2 does not also apply to the lesser included crime proscribed by Vehicle Code section 10851. Not so. As a general matter, a lesser included offense simply has fewer statutory elements than the greater offense; it is not necessarily less serious or subject to less severe punishment. (See People v. Wilkinson (2004) 33 Cal.4th 821, 839 (Wilkinson ) [finding no equal protection violation where "The Legislature's actions tend to demonstrate it contemplated that the ostensible 'lesser' offense of battery without injury sometimes may constitute a more serious offense and merit greater punishment than the 'greater' offense of battery accompanied by injury"].) Here, the electorate rationally could have intended to exclude Vehicle Code section 10851 from Proposition 47 to preserve prosecutorial discretion to charge certain vehicle takings as felonies based on the circumstances of the case. (Wilkinson, supra, at pp. 838-839.)
Defendant contends that construing section 490.2 to include a violation of Vehicle Code section 10851, subdivision (a) would further the stated purposes of Proposition 47, which include maximizing alternatives to prison for "nonserious, nonviolent crime." (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 2, 17, pp. 70, 74.) But he fails to identify any statutory ambiguity justifying an inquiry into the electorate's intent. (People v. Valencia (2017) 3 Cal.5th 347, 357 [" '[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters)' "].) The language of section 1170.18 is clear and does not include Vehicle Code section 10851 among the enumerated sections amended or added by Proposition 47. The statutory language setting the punishment for violations of Vehicle Code section 10851 is clear and unchanged by Proposition 47. (Veh. Code, § 10851, subd. (a).) We cannot rely on the electorate's intent to rewrite those unambiguous provisions.
Finally, defendant says it would violate his right to equal protection to interpret section 490.2 to reduce vehicle thefts prosecuted under section 487, subdivision (d)(1) to misdemeanors while leaving violations of Vehicle Code section 10851 as felonies. That contention lacks merit. " 'Broadly stated, equal protection of the laws means "that no person or class of persons shall be denied the same protection of the laws [that] is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness." [Citation.]' [Citation.] . . . [A] threshold requirement of any meritorious equal protection claim 'is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]' [Citation.]" (People v. Guzman (2005) 35 Cal.4th 577, 591-592.) Assuming that showing is made, " '[i]n considering whether state legislation violates the Equal Protection Clause of the Fourteenth Amendment . . . we apply different levels of scrutiny to different types of classifications. At a minimum, a statutory classification must be rationally related to a legitimate governmental purpose. [Citations.] Classifications based on race or national origin . . . and classifications affecting fundamental rights . . . are given the most exacting scrutiny. Between these extremes of rational basis review and strict scrutiny lies a level of intermediate scrutiny, which generally has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]' [Citations.]" (Wilkinson, supra, 33 Cal.4th at p. 836.)
Even assuming defendant could satisfy the similarly situated requirement, his equal protection claim would fail. We apply the rational basis test because a defendant " 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' " (Wilkinson, supra, 33 Cal.4th at pp. 837-838 [rejecting argument that the strict scrutiny standard applies "whenever one challenges upon equal protection grounds a penal statute or statutes that authorize different sentences for comparable crimes . . ."].) In applying the rational basis test, the California Supreme Court has stated that "neither the existence of two identical criminal statutes prescribing different levels of punishment, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles." (Id. at p. 838.) "[N]umerous 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.]" (Id. at pp. 838-839.) Defendant makes no such allegation. Accordingly, he cannot establish an equal protection violation.
C. Proposition 47 Does Not Apply to Section 496d
Section 496d prohibits knowingly buying or receiving any motor vehicle or trailer that has been obtained by "theft." Proposition 47 did not expressly amend section 496d, nor is it listed in section 1170.18. Defendant argues that section 490.2, which, as discussed above, provides that obtaining property worth $950 or less by theft shall be considered petty theft and shall be punished as a misdemeanor, should be construed as applying to section 496d. We disagree.
Proposition 47 amended section 496, receiving stolen property, and that provision is listed in section 1170.18. "If section 490.2 applied to receiving stolen property offenses," as defendant contends, "there would be no need to amend section 496." (People v. Varner (2016) 3 Cal.App.5th 360, 367, review granted Nov. 22, 2016, S237679, review dismissed and cause remanded Aug. 9, 2017.) Accordingly, we reject defendant's argument that section 490.2 should apply to section 496d.
Defendant's arguments regarding the intent of the electorate fail for the reason described above in the context of Vehicle Code section 10851.
Defendant also argues that equal protection principles require that those convicted of buying or receiving a stolen vehicle (section 496d) receive the same treatment as those convicted of grand theft auto (section 487, subdivision (d)(1)). That argument fails because defendant cannot satisfy the similarly situated requirement. Those who steal a vehicle are not similarly situated to those who buy or receive a stolen vehicle, for purposes of equal protection. Theft and the crime of receiving or buying stolen property are entirely different crimes, even if the stolen property may be of the same nature. (People v. Gutierrez (2016) 245 Cal.App.4th 393, 404 ["persons convicted of different crimes are not similarly situated for equal protection purposes"].)
Defendant's equal protection challenge fails for a second reason: a rational reason exists for punishing buying or receiving a stolen vehicle more harshly than vehicle theft. Those who knowingly receive or buy stolen vehicles provide car thieves with a financial incentive to steal vehicles. The electorate could rationally decide to impose harsher penalties for buying or receiving stolen vehicles to deter vehicle theft.
D. The Trial Court Properly Denied Relief as to Defendant's Theft Offenses
Proposition 47 reduced possession of stolen property (§ 496, subd. (a)) to a misdemeanor where the value of the property does not exceed $950. (§ 496, subd. (a); § 1170.18, subd. (a).) It likewise reduced possession of a blank check (§ 475, subd. (b)) to a misdemeanor where the value of the check does not exceed $950. (§ 473, subd. (b); § 1170.18, subd. (a).) The trial court denied defendant's petition as to his conviction for possession of stolen property (§ 496, subd. (a)) in case No. CC316797 because defendant failed to show that the value of the property at issue did not exceed $950. Similarly, the trial court denied defendant's petition as to his convictions for possession of stolen property (§ 496, subd. (a)) and possession of a blank check (§ 475, subd. (b)) in case No. CC646629 for failure to show that the value of the property and check at issue did not exceed $950. Defendant concedes he presented no evidence as to the value of the property and check that led to his convictions. Nevertheless, he contends the trial court erred by denying his petitions rather than permitting him to amend them.
Defendant had the burden to demonstrate his eligibility for relief under section 1170.18 by making a prima facie showing that the value of the property at issue did not exceed $950. (§ 1170.18, subds. (a) & (f); People v. Sherow (2015) 239 Cal.App.4th 875, 880 (Sherow).) As he admits, he failed to meet that burden. The trial court did not abuse its discretion by denying his petition based on that failure. (People v. Rivas-Colon (2015) 241 Cal.App.4th 444, 450 ["The court . . . properly denied Rivas-Colon's resentencing petition because he failed to satisfy his burden to prove the value of the property he took from the store did not exceed $950"].)
Defendant's reliance on People v. Huerta (2016) 3 Cal.App.5th 539 (Huerta) is misplaced. There, the defendant's Proposition 47 petition did not set forth any evidence showing her conviction for second degree commercial burglary (§ 459) involved property valued at $950 or less. (Huerta, supra, at p. 542.) Nevertheless, the trial court held an evidentiary hearing at which evidence was presented showing the defendant and a companion stole " 'eight bottles of . . . fragrance valued at $463' and 'four bottles of . . . fragrance valued at $174.50,' respectively." (Id. at p. 544.) The trial court granted the petition. (Id. at p. 542.) The People appealed, arguing the trial court erred by reaching the merits when Huerta failed to satisfy her initial burden by attaching evidence to her petition. The court of appeal rejected the argument that "the trial court was required to summarily deny Huerta's petition because she failed to attach evidence to her petition," concluding that "the trial court acted within its discretion to consider evidence contained in court records and to set an evidentiary hearing to establish the facts underlying Huerta's conviction." (Id. at p. 543.) The court went on to opine, in dicta, that it would have been error for the court to deny the petition without leave to amend because " '[t]he general rule of liberal allowance of pleading amendment' requires the reviewing court to grant leave to amend if there is a 'reasonable possibility' the party can amend the pleading to cure its defects." (Ibid.)
Huerta does not persuade us to reverse for several reasons. First, it is factually distinguishable. There, the People sought reversal of an order granting a Proposition 47 petition, despite the fact that the defendant plainly was eligible for relief, based solely on a pleading deficiency. Here, there is no evidence regarding valuation and thus nothing to show that defendant is eligible for Proposition 47 relief. Second, even if we were to apply the "general rule of liberal allowance of pleading amendment" referenced (but not applied) in Huerta, we would affirm. As set forth in Huerta, that rule requires leave to amend where "there is a 'reasonable possibility' the party can amend the pleading to cure its defects." (Huerta, supra, 3 Cal.App.5th at p. 543.) Defendant has not shown a reasonable possibility that the property at issue was worth $950 or less; indeed, he has shown nothing regarding valuation.
That said, defendant may be able to muster the requisite valuation evidence to support a petition as to his conviction for possession of stolen property (§ 496, subd. (a)) in case No. CC316797 and his convictions for possession of stolen property (§ 496, subd. (a)) and possession of a blank check (§ 475, subd. (b)) in case No. CC646629. Accordingly, we shall affirm the orders denying defendant's petitions to redesignate those offenses as misdemenaors without prejudice to defendant filing new petitions supported by valuation evidence. (See Sherow, supra, 239 Cal.App.4th at p. 881; People v. Perkins (2016) 244 Cal.App.4th 129, 142.)
III. DISPOSITION
The orders are affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.