Opinion
E065625
08-24-2017
THE PEOPLE, Plaintiff and Respondent, v. MELVIN HIRAM THOMAS II, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Christen Somerville, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF004055) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Melvin Hiram Thomas II appeals from the trial court's order denying his Proposition 47 petition seeking to reduce his 2004 felony conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)) to a misdemeanor pursuant to section 1170.18.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant claims his Proposition 47 petition was erroneously denied because, in enacting Proposition 47, the voters intended to include all felony theft-related offenses under $950, including convictions for receiving a stolen vehicle (§ 496d) worth $950 or less, within the class of felony convictions eligible to be designated as misdemeanors under Proposition 47. He also claims the denial of his petition violated his right to equal protection, because persons with felony convictions for buying or receiving stolen property worth $950 or less may have their convictions designated as misdemeanors, while similarly situated persons with felony convictions for buying or receiving a stolen vehicle worth $950 or less may not. For the reasons set forth below, we reject defendant's contentions and affirm the order.
Defendant also asserts that because his conduct of receiving a stolen vehicle is a "misdemeanor for all purposes" under Proposition 47 and misdemeanor conduct is not punishable under section 186.22, subdivision (a), for active participation in a criminal street gang, his conviction for that offense must also be reversed. Because we find Proposition 47 does not apply to buying or receiving a stolen vehicle in violation of section 496d and defendant's conviction for receiving a stolen vehicle thus remains a felony, we need not address this issue.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation officer's report. --------
On May 15, 2003, deputies were dispatched to a location in Wildomar, California regarding an "unknown trouble." When the deputies arrived, several people in a convenience store parking lot began yelling, " 'They ran that way!' " They also informed the deputies that defendant and codefendant Joseph Johnson ran into a field, leaving a stolen truck near the gas pump in the parking lot. Defendant and codefendant were eventually located and taken into custody.
Defendant and codefendant were known Elsinore Young Classic (EYC) gang members and the victim was a known Elsinore Vatos Locos (EVL) gang member. EYC and EVL were rival gangs in the Elsinore area. A witness reported that when the codefendant stole the truck, he yelled " 'F--- you! EYC!"
In bifurcated proceedings in 2004, a jury found defendant guilty of receiving a stolen motor vehicle, to wit, a 1987 Dodge Ram Truck, (§ 496d, subd. (a)) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury subsequently found true that defendant had suffered one prior prison term (§ 667.5, subd. (b)), two prior serious felony convictions (§ 667, subd. (a)) and three prior strike convictions (§§ 667, subds. (c), (e), 1170.12, subd. (c)(2)(A)).
The sentencing hearing was held on May 3, 2004. At that time, the trial court exercised its discretion to strike two of defendant's prior strike convictions with respect to the receiving a stolen vehicle count and sentenced defendant on that count to six years in state prison with credit for time served. As to the gang offense, the trial court declined to exercise its discretion to strike defendant's prior strike convictions and sentenced defendant to a concurrent term of 25 years to life plus a consecutive determinate term of 10 years for the two prior serious felony convictions, for a total sentence of 35 years to life. The trial court struck the one prior prison term enhancement.
On November 4, 2014, voters enacted Proposition 47, entitled "the Safe Neighborhoods and Schools Act." It went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) As of its effective date, Proposition 47 classifies as misdemeanors certain drug- and theft-related offenses that previously were felonies or "wobblers," unless they were committed by certain ineligible defendants. (§ 1170.18, subd. (a).) Among the crimes reduced to misdemeanors by Proposition 47, rendering the person convicted of the crime eligible for resentencing, is receiving stolen property where the property value does not exceed $950. (§ 496, subd. (a).)
Proposition 47 also included a provision that allows certain offenders to seek resentencing. Defendants who are serving a sentence, or who have completed a sentence, for a felony that would have been a misdemeanor had Proposition 47 been in effect at the time of the offense may file a petition for recall of sentence. (§ 1170.18, subds. (a) & (f).)
On March 27, 2015, defendant filed a petition for resentencing under section 1170.18, subdivision (a).
On September 9, 2015, the trial court denied the petition, finding defendant's offenses were not qualifying felonies under Proposition 47. This appeal followed.
III
DISCUSSION
Defendant contends the trial court erred in denying his petition under Proposition 47 because the voters intended to include all theft-related offenses under $950, including receiving a stolen vehicle in violation of section 496d. Defendant also contends that excluding section 496d from Proposition 47 violates his right to equal protection.
A. Standard of Review
When interpreting a voter initiative, we apply the same principles that govern statutory construction. (People v. Briceno (2004) 34 Cal.4th 451, 459 (Briceno); People v. Rizo (2000) 22 Cal.4th 681, 685-686 (Rizo).) We first look " ' "to the language of the statute, giving the words their ordinary meaning." ' " (Briceno at p. 459; Rizo at p. 685.) " '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 purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure.' " (Briceno, at p. 459.)
We review the trial court's construction of Proposition 47 de novo, and its findings of fact in connection with the petition for substantial evidence. (People v. Perkins (2016) 244 Cal.App.4th 129, 136 (Perkins); People v. Sherow (2015) 239 Cal.App.4th 875, 879.) "In a successful petition, the offender must set out a case for eligibility, stating and in some cases showing the offense of conviction has been reclassified as a misdemeanor and, where the offense of conviction is a theft crime reclassified based on the value of stolen property, showing the value of the property did not exceed $950. [Citations.] The defendant must attach information or evidence necessary to enable the court to determine eligibility." (Perkins, at pp. 136-137.)
B. General Background of Proposition 47
As previously stated, on November 4, 2014, voters enacted Proposition 47; it went into effect the next day. "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47." (Id. at p. 1092.)
As relevant here, Proposition 47 amended section 496, buying or receiving stolen property, to provide that if the value of the property at issue is $950 or less, the offense is a misdemeanor. (§ 496, subd. (a).) The previous version of section 496 gave the prosecution discretion to charge the offense as a misdemeanor if the value of the property did not exceed $950 and the district attorney or grand jury determined that so charging would be in the interests of justice. (Former § 496, added by Stats. 2011, ch. 15, § 372, eff. April 4, 2011, operative Oct. 1, 2011.) In effect, Proposition 47 converted the offense of receiving stolen property valued at $950 or less from a wobbler to a misdemeanor. Proposition 47 did not amend section 496d, the section under which defendant was convicted for receiving a stolen vehicle.
C. Defendant's Eligibility for Proposition 47 Resentencing
Defendant's conviction offense is a wobbler. (§§ 17, subds. (a) & (b), 496d, subd. (a) [the crime of receiving a stolen motor vehicle is punishable as either a felony or a misdemeanor].) Defendant argues that, with the passage of Proposition 47 and its amendment to section 496, his offense now falls within the ambit of section 1170.18. He, therefore, claims his Proposition 47 petition was erroneously denied because the voters, in enacting Proposition 47, intended to include felony convictions for buying or receiving a stolen vehicle, in violation of section 496d, subdivision (a), along with other theft-based felony convictions that must be reduced to misdemeanors pursuant to Proposition 47 if the value of the vehicle in question was $950 or less. We disagree.
Proposition 47's resentencing provision, section 1170.18, subdivision (a), provides: "A person who, on November 5, 2014, was serving a sentence for a conviction . . . of a felony . . . 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 in accordance with 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, as those sections have been amended or added by this act." Thus, 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 his offense.
Applying that standard here, we cannot say that defendant would have been guilty of a misdemeanor under Proposition 47 had it been in effect when he received the victim's car. This is because Proposition 47 left section 496d entirely intact, including the wobbler language. In other words, after Proposition 47's passage, the prosecution retains its ability to charge a section 496d violation as a misdemeanor or a felony. Because nothing in Proposition 47 affected the prosecution's ability to charge a violation of section 496d as a felony, we conclude that defendant is not a person "who would have been guilty of a misdemeanor" under Proposition 47 and thus is ineligible for resentencing under section 1170.18, subdivision (a).
Defendant contends that Proposition 47's amendment to section 496 commands a different result. He argues the language of that statute is broad enough to encompass, and render a misdemeanor, the act of receiving a stolen vehicle worth $950 or less. Defendant is correct that section 496, subdivision (a), is broad enough to apply to stolen vehicles—indeed, the plain language of the statute applies to "any property." (§ 496, subd. (a), italics added.) This, however, was the case both before and after Proposition 47's passage. Proposition 47 did not alter the prosecution's discretion to charge receiving a stolen vehicle under the more general statute (§ 496) or the more specific statute (§ 496d). Because section 1170.18 applies only to those people who "would have" been guilty of a misdemeanor, not to those who "could have" been guilty of a misdemeanor—if the prosecution in its discretion chose to charge them more leniently—defendant's statutory interpretation argument must fail. Put another way, if we engage in the counterfactual analysis section 1170.18 requires (i.e., what "would" the defendant have been guilty of if Proposition 47 had been in existence at the time of his offense), the answer is that the prosecution would likely have charged him with the same felony violation of section 496d because exactly the same sentencing considerations apply to defendant's offense before and after Proposition 47.
Defendant's claims were considered and rejected by this court in People v. Varner (2016) 3 Cal.App.5th 360 (Varner). In that case, the defendant argued that the changes made by Proposition 47 to the crimes of grand theft and petty theft support that "the drafters of Proposition 47 intended to include section 496d." (Id. at p. 366.) We rejected the defendant's argument and concluded that "[b]ecause that provision contains no reference to section 496d, we must assume the drafters intended section 496d to remain intact and intended for the prosecution to retain its discretion to charge section 496d offenses as felonies. Additionally, Proposition 47 modified both section 496, receiving stolen property, and added section 490.2. If section 490.2 applied to receiving stolen property offenses, there would be no need to amend section 496." (Ibid.) We find the reasoning of Varner persuasive and follow it in this case. Defendant asserts Varner was wrongly decided. We disagree.
Defendant argues that the phrases, "any other provision of law" and "obtaining any property by theft," would be rendered meaningless and result in absurd consequences, unless section 490.2 is construed as including section 496d violations. Section 490.2, subdivision (a), states: "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" unless the person has a prior conviction for a disqualifying offense. (Italics added.)
This argument misconstrues the plain language of section 490.2. As Varner explained: "Defendant's reliance on the changes made by Proposition 47 to the crimes of grand theft and petty theft do not support that the drafters of Proposition 47 intended to include section 496d. Section 490.2 . . . provides a definition of petty theft that affects the definition of grand theft in section 487 and other provisions. Section 490.2 begins with the phrase: 'Notwithstanding Section 487 or any other provision of law defining grand theft.' [(§ 490.2.)] Similarly, section 459.5, which was also added by Proposition 47, and which provides a definition of shoplifting that affects the definition of burglary in section 459, begins with the phrase: 'Notwithstanding Section 459.' [(§ 459.5.)] The drafters of Proposition 47 knew how to indicate when they intended to affect the punishment for an offense the proposition was not directly amending. This 'notwithstanding' language is conspicuously absent from section 496, subdivision (a). Because that provision contains no reference to section 496d, we must assume the drafters intended section 496d to remain intact and intended for the prosecution to retain its discretion to charge section 496d offenses as felonies. . . . The trial court did not err by concluding defendant was ineligible for resentencing based on his conviction of section 496d." (Varner, supra, 3 Cal.App.5th at p. 367.)
Likewise, contrary to defendant's claim, the uncodified provisions of Proposition 47, which provided that Proposition 47 is to be broadly construed to effect its purposes, do not require us to construe section 1170.18 as applying to section 496d. As Varner observed: "Construing the plain language of section 1170.18 to include section 496d would be inconsistent with our Supreme Court's determination that we may not 'add to the statute or rewrite it to conform to some assumed intent not apparent from that language.' [Citation.]" (Varner, supra, 3 Cal.App.5th at pp. 366-367.)
Further, the rule of lenity, which defendant invokes, does not compel a different result. The rule of lenity requires courts to construe ambiguous criminal statutes in favor of the defendant, but applies only if " 'the court can do no more than guess what the legislative body [or here, the voters] intended' " in enacting the statute. (People v. Avery (2002) 27 Cal.4th 49, 58.) The language of sections 490.2 and 1170.18 is plain and unambiguous, and in enacting these statutes as part of Proposition 47, it is apparent that the voters did not intend to include section 496d convictions within their scope.
D. Equal Protection
Defendant claims the denial of his petition violated his right to equal protection of the laws. He reasons that, under Proposition 47, a person with a felony conviction for receiving stolen property worth $950 or less (§ 496, subd. (a)) is entitled to have his or her conviction designated as a misdemeanor, while a person with a felony conviction for receiving a stolen vehicle worth $950 or less may not. Defendant argues he is similarly situated to a person who received stolen property worth $950 or less (§ 496, subd. (a)). Assuming that the value of the vehicle was $950 or less, defendant has not demonstrated an equal protection violation.
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 here 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 (Johnson).)
In Johnson, the court explained that application of the rational basis standard " 'does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in " 'rational speculation' " as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record." ' [Citation.]" (Johnson, supra, 60 Cal.4th at p. 881.) Therefore, "[t]o mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' [Citations.]" (Ibid.)
In enacting Proposition 47, the voters had plausible reasons to treat section 496 and 496d violations differently. For example, the vehicle owners may rely on their vehicles for numerous necessities of life, including transportation to work and to doctor's appointments. Vehicle theft thus has a particularly insidious effect on the ability of ordinary people to conduct their lives. The Legislature explicitly added section 496d to the Penal Code in order to "target persons involved in the business of vehicle theft" and in order to provide "additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves." (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 excluding a section 496d conviction from qualifying for resentencing or reduction to misdemeanors under Proposition 47 is to maintain prosecutorial discretion to charge a section 496d offense as a felony or a misdemeanor. As our Supreme Court has observed: "[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.]" (Wilkinson, supra, 33 Cal.4th at pp. 838-839.) Because there are plausible reasons for distinguishing between receipt of stolen vehicles under section 496d, subdivision (a), and the receipt of stolen property under section 496, subdivision (a), defendant has not shown that the denial of his petition violated his right to equal protection of the laws.
This issue was also addressed in Varner, supra, 3 Cal.App.5th 360. There, we stated, "[w]hile the California Supreme Court will ultimately decide the issue, it is reasonable to conclude here that there is no equal protection violation. After the passage of Proposition 47, while it is true a defendant convicted of receiving a stolen vehicle under section 496d cannot obtain relief after Proposition 47, while the same person prosecuted under section 496, subdivision (a) can obtain relief, such disparity does not constitute an equal protection violation. The electorate could consider that only an insignificant number of persons would be prosecuted under section 496d for a vehicle valued under $950. Most would be prosecuted under section 496, subdivision (a) if the 'interests of justice' warranted conviction under that section. Moreover, the electorate could reasonably choose to include section 496, subdivision (a) violations but exclude, for now, violations of section 496d. Based on the foregoing, defendant has failed to show that the exclusion of section 496d from Proposition 47 violated his equal protection rights." (Varner, at p. 370.) We agree with our reasoning in Varner and find defendant's equal protection arguments fail in this case. (Ibid.)
IV
DISPOSITION
The order denying defendant's Proposition 47 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.