People v. Flaherty CA4/2 ( 2016 )

Filed 2/29/16 P. v. Flaherty CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063718
v. (Super.Ct.No. RIF10001926)
RYAN PATRICK FLAHERTY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Richard L. Fitzer, 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, Arlene A. Sevidal, Collette C.
Cavalier, and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and
Respondent.
1
Defendant and appellant Ryan Patrick Flaherty appeals from an order denying his
petition to reduce his convictions for unlawful driving and taking a vehicle with a prior
vehicle theft conviction (Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, subd. (a))
and receiving a stolen vehicle with a prior similar conviction (Pen. Code, §§ 666.5,
subd. (a), 496d, subd. (a)) to misdemeanors pursuant to Proposition 47. Defendant argues
the matter must be remanded for a formal hearing to determine whether the value of the
stolen vehicle exceeded $950, because his convictions are properly considered theft
offenses under Proposition 47. We reject defendant’s contention and affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
On March 31, 2010, defendant received and drove a stolen 1998 Ford Expedition
without the owner’s consent and with the intent to permanently or temporarily deprive
the owner of title and possession.
On August 31, 2010, an amended information was filed charging defendant
with the unlawful driving or taking of a vehicle, with a prior vehicle theft conviction
(Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, count 1), and receiving, withholding,
or concealing a stolen vehicle from its owner, with a prior vehicle theft conviction
(Pen. Code, §§ 666.5, subd. (a), 496d, subd. (a), count 2). The amended information
also alleged that defendant had served four prior prison terms (§ 667.5, subd. (b)), and
had one prior strike conviction (Pen. Code, §§ 667, subds.(c), (e)(1), 1170.12,
subd. (c)(1)).
2
At trial, for purposes of the charges in counts 1 and 2, defendant admitted
suffering prior convictions for violating Vehicle Code section 10851, subdivision (a), in
2003 and 2005, and Penal Code section 496(d), subdivision (a), in 2008. A jury
subsequently found defendant guilty as charged. Defendant waived his right to a jury
trial on the prior conviction allegations, and the trial court held a bifurcated hearing.
After reviewing the evidence, the trial court found true all of the prior conviction
allegations. Defendant was subsequently sentenced to a total term of 10 years in state
prison.
On November 4, 2014, voters enacted Proposition 47, entitled “the Safe
Neighborhoods and Schools Act” (hereafter Proposition 47). 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.
(Pen. Code, § 1170.18, subd. (a).)
On December 11, 2014, defendant filed a petition to reduce his felony convictions
of vehicle theft with priors and receiving a stolen vehicle with priors to misdemeanors
and for resentencing pursuant to Proposition 47.
On April 14, 2015, the trial court considered and denied defendant’s petition,
finding defendant’s convictions under Penal Code section 666.5, subdivision (a), are not
qualifying offenses. Defendant filed a timely notice of appeal from that order on June 1,
2015.
3
II
DISCUSSION
The passage of Proposition 47 created Penal Code section 1170.18, which
provides for any defendant “currently serving a sentence for a conviction . . . of a felony
or felonies who would have been guilty of a misdemeanor under [Proposition 47] had [it]
been in effect at the time of the offense [to] petition for a recall of sentence before the
trial court that entered the judgment of conviction in his or her case to request
resentencing . . .” under the statutory framework as amended by the passage of
Proposition 47. (Pen. Code, § 1170.18, subd. (a); see Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, § 14, pp. 73-74.) Proposition 47 further provides
that “[u]pon receiving a petition under subdivision (a) [i.e., defendant’s petition for recall
of sentence], the court shall determine whether the petitioner satisfies the criteria in
subdivision (a).” (Pen. Code, § 1170.18, subd. (b).)
Among the crimes reduced to misdemeanors by Proposition 47, rendering the
person convicted of the crime eligible for resentencing, are shoplifting where the property
value does not exceed $950 (Pen. Code, § 459.5); petty theft, defined as theft of property
where value of the money, labor, real or personal property taken does not exceed $950
(Pen. Code, § 490.2); and receiving stolen property where the property value does not
exceed $950 (Pen. Code, § 496). (Pen. Code, § 1170.18, subd. (a).) Receiving a stolen
vehicle (Pen. Code, § 496d, subd. (a)) with prior similar vehicle theft convictions (Pen.
Code, § 666.5, subd. (a)) and unlawfully driving or taking a vehicle with prior vehicle
4
theft convictions (Pen. Code, § 666.5, subd. (a), Veh. Code, § 10851, subd. (a)), the
crimes to which defendant was convicted of, do not appear on the list of felonies reduced
to misdemeanors by Proposition 47. (Pen. Code, § 1170.18, subd. (a).)
Nevertheless, defendant contends his crimes should be reduced to misdemeanors
because the trial court incorrectly concluded “convictions suffered under Penal Code
section 666.5 are not covered by Proposition 47.” He further argues that “Proposition 47
contains sweeping language that is clearly intended to ensure that all thefts of property
[including his current convictions], where the value of the property is less than $950 and
the defendant has no disqualifying prior convictions, are classified as misdemeanors.”
He therefore believes that since there was no evidence presented as to the value of the
stolen/received vehicle, the matter must be remanded to the trial court to determine the
value of the stolen vehicle.
However, to construe Proposition 47 to include unlawfully driving or taking a
vehicle with prior vehicle theft convictions and receiving a stolen vehicle with prior
vehicle theft convictions would violate the cardinal rule of statutory construction.
“ ‘ “When statutory language is clear and unambiguous, there is no need for construction
and courts should not indulge in it.” ’ ” (People v. Hendrix (1997) 16 Cal. 4th 508, 512.)
Here, Proposition 47 lists a specific series of crimes that qualify for reduction to a
misdemeanor separated with the conjunction “or” and ending with the phrase “as those
sections have been amended or added by this act.” (Pen. Code, § 1170.18, subd. (a).)
That list does not include violations of Vehicle Code section 10851 (unlawfully taking
5
or driving a vehicle) with a prior theft conviction involving a vehicle (Penal Code
section 666.5), and Penal Code section 496d (receiving a stolen vehicle) with a prior theft
conviction involving a vehicle (Penal Code section 666.5). “The legislative inclusion of
the . . . crimes . . . necessarily excludes any other[s] . . . .” (People v. Gray (1979) 91
Cal. App. 3d 545, 551.)
Furthermore, as noted, Penal Code section 1170.18 provides a mechanism for a
person “who would have been guilty of a misdemeanor,” if Proposition 47 had been in
effect at the time of the offense, to petition for resentencing in accordance with certain
enumerated sections that were amended or added by Proposition 47. (Pen. Code,
§ 1170.18, subd. (a).) Defendant here would not have been guilty of misdemeanors had
Proposition 47 been in effect at the time of his offenses, because by its plain terms, a
violation of Vehicle Code section 10851 and a violation of Penal Code section 496d with
prior theft convictions involving a vehicle under Penal Code section 666.5 requires
felony punishment. In relevant part, section 666.5 provides: “Every person who, having
been previously convicted of a felony in violation of Section 10851 of the Vehicle Code,
or . . . a felony violation of [Penal Code] Section 496d regardless of whether or not the
person actually served a prior prison term for those offenses, is subsequently convicted of
any of these offenses shall be punished by imprisonment pursuant to subdivision (h) of
[Penal Code] Section 1170 for two, three, or four years, or a fine of ten thousand dollars
($10,000), or both the fine and imprisonment.” Therefore, Penal Code section 666.5
explicitly requires felony punishment for recidivist offenders who violate Vehicle Code
6
section 10851 or Penal Code section 496d. In these circumstances, a violation of Vehicle
Code section 10851 and/or Penal Code section 496d are not wobbler offenses, punishable
either as a felony or misdemeanor. (See Penal Code, § 666.5, subd. (a); People v. Park
(2013) 56 Cal. 4th 782, 789 [crimes classified as either a felony or misdemeanor are often
classified by the punishment prescribed; wobblers “are chargeable or . . . punishable as
either a felony or a misdemeanor”]; People v. Superior Court (Alvarez) (1997) 14 Cal. 4th
968, 974, fn. 4 [listing Veh. Code § 10851, subd. (a), as a statute that provides for
“alternative felony or misdemeanor punishment”].) Proposition 47 left intact the
language in Penal Code section 666.5, Vehicle Code section 10851, and Penal Code
section 496d. Based on the statutory language alone, therefore, whether before or after
Proposition 47, defendant would be convicted for felony violations of Vehicle Code
section 10851 and Penal Code section 496d with prior vehicle theft convictions.
The plain language of Penal Code section 1170.18 is incompatible with
defendant’s proposed interpretation of Proposition 47. Penal Code section 1170.18,
subdivision (a), provides a mechanism for an offender to request to be resentenced
“in accordance with” certain enumerated sections that were amended or added by
Proposition 47, and which provide for different, lesser punishment than applied before
the enactment of Proposition 47. (Pen. Code, § 1170.18, subd. (a).) As noted, the
statutory language setting the punishment for violations of Vehicle Code section 10851
and Penal Code section 496d with prior vehicle theft convictions remains the same,
before and after Proposition 47, and are not included among the enumerated sections
7
amended or added by Proposition 47. (Veh. Code, § 10851, subd. (a); Pen. Code,
§§ 496d, 666.5, subd. (a), 1170.18, subd. (a).) Defendant therefore could not be
resentenced in accordance with any of the sections added or explicitly amended by
Proposition 47. Put another way: Exactly the same sentencing considerations apply to
defendant’s conviction offenses before and after Proposition 47, so there is no basis for
reconsidering or reducing the sentence that was initially imposed.
Undeterred by the plain statutory language of Proposition 47, defendant continues
that Proposition 47 applies to theft of vehicles, relying on Penal Code section 490.2,
subdivision (a), which states that obtaining any property by theft where the “money,
labor, real or personal property taken does not exceed nine hundred fifty dollars ($950)
shall be considered petty theft,” because a vehicle is “clearly personal property.”
Defendant asserts that Penal Code section 1170.18 explicitly applies to violations of
Penal Code section 487, through the introductory clause of Penal Code section 490.2, so
logically it must apply to lesser included offenses of Penal Code section 487, including
Vehicle Code section 10851.
On its face, however, Penal Code section 490.2 does no more than amend the
definition of grand theft, as articulated in Penal Code section 487 or any other provision
of law, redefining a limited subset of offenses that would formerly have been grand theft
to be petty theft. (Pen. Code, § 490.2.) Vehicle Code section 10851 with priors and
Penal Code section 496d with priors do not proscribe theft of either the grand or petty
variety, but rather the taking or driving of a vehicle “with or without intent to steal” (Veh.
8
Code, § 10851, subd. (a); see People v. Garza (2005) 35 Cal. 4th 866, 876 [Veh. Code,
§ 10851, subd. (a) “ ‘proscribes a wide range of conduct,’ ” and may be violated “ ‘either
by taking a vehicle with the intent to steal it or by driving it with the intent only to
temporarily deprive its owner of possession (i.e., joyriding)’ ”]) and receiving a vehicle
“knowing the property to be stolen” (Pen. Code, § 496d). Penal Code section 490.2 is
simply inapplicable to defendant’s conviction offenses.
In short, the offenses of which defendant was convicted are not among those
reduced to a misdemeanor by Proposition 47, so the trial court correctly determined him
to be ineligible for recall of his sentence and resentencing pursuant to section 1170.18.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
9