People v. Haywood ( 2015 )


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  • Filed 12/30/15
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (Sacramento)
    ----
    THE PEOPLE,                                                    C078609
    Plaintiff and Respondent,             (Super. Ct. No. 95F04059)
    v.
    PHARAOH HAYWOOD,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Sacramento County, Marjorie
    Koller, Judge. Affirmed.
    Jill M. Klein, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
    General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey
    D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
    In January 2015, defendant Pharaoh Haywood filed a petition in propria persona
    pursuant to Penal Code section 1170.181 (enacted as part of a Nov. 2014 initiative
    1 Undesignated statutory references are to the Penal Code.
    1
    measure) to redesignate his 1996 felony conviction for unlawful taking or driving of a
    vehicle (Veh. Code, § 10851, subd. (a)) as a misdemeanor.2 He waived personal
    appearance if the matter was not contested. The trial court, acting ex parte, appointed a
    public defender. It then summarily denied the petition in a minute order “due to
    ineligibility based due to: [c]urrent [sic] conviction(s).”3 Defendant appealed. (Cf. Teal
    v. Superior Court (2014) 
    60 Cal. 4th 595
    , 597 [§ 1170.126 eligibility is appealable].)
    Defendant argues that even if unlawful taking/driving of a vehicle is not expressly
    included among the offenses “in accordance with” which he can be resentenced to a
    2 The record does not contain any other information about the prior conviction other than
    its superior court case number (95F04059). We take judicial notice of our records sua
    sponte, which include separate appeals from two codefendants under that case number.
    (Evid. Code, § 452, subd. (d).) Those opinions indicate defendant was part of a quartet
    involved in the murder and attempted murder of two men, the kidnapping of the
    surviving victim, and the taking of the car of another victim. Defendant apparently was
    convicted of kidnapping the surviving victim and unlawful taking/driving. (People v.
    Gordon (Dec. 23, 1998, C025388) [nonpub.opn.] slip opn. at pp. 1-3 & fn. 2; People v.
    Ceasar (Oct. 14, 1997, C025156) [nonpub.opn.] slip opn. at pp. 2-3 & fn. 2.) A fourth
    codefendant apparently was acquitted on all counts. (People v. Gordon (Mar. 23, 2000,
    C033460) [nonpub.opn.] slip opn. at p. 5 [appeal on resentencing].) We do not have any
    record of defendant appealing this judgment, so we do not have any reliable basis for
    determining the facts underlying his own convictions. We take judicial notice sua sponte
    of the records of the superior court under this case number, which show that defendant
    received a four-year state prison sentence. (Evid. Code, § 452, subd. (d).) Even though
    defendant has completed his sentence, section 1170.18, subdivision (f) permits him to
    seek redesignation of the felony conviction. The “cross-reference” number on
    defendant’s petition (2798516) also generates a 2012 case number (12F00833) from the
    superior court records, in which a jury apparently found him guilty of multiple offenses
    (including unlawful possession of a gun and reckless firing of a gun), with the court
    imposing an 11-year state prison sentence. The redesignation petition indicates defendant
    was in state prison when he filed it.
    3 It is unclear whether the trial court was taking judicial notice of defendant’s 2012
    convictions. Defendant and the People seem to assume the reference is actually to the
    nature of his prior conviction. As the 2012 convictions do not appear to render him
    ineligible for resentencing (§ 1170.18, subd. (i)), we will make the same assumption.
    2
    misdemeanor (§ 1170.18, subd. (a)), it can constitute a “theft conviction” (People v.
    Garza (2005) 
    35 Cal. 4th 866
    , 881 [when committed as theft conviction, § 654 precludes
    court from imposing punishment for offense in addition to punishment for a conviction
    under § 496, subd. (a)]), and thus we must construe section 1170.18 as including it
    because of the purpose of the initiative enacting it. Defendant contends the trial court
    erred as a result in summarily denying his petition. We reject this effort to have us
    engage in judicial legislation. This court therefore will affirm the order denying the
    redesignation petition.
    We do not have any facts to add to the introduction. We therefore proceed to our
    analysis.
    DISCUSSION
    The initiative enacting section 1170.18 prospectively reduced three specific drug
    possession offenses to misdemeanors (Health & Saf. Code, §§ 11350, 11357, 11377), as
    well as forging or writing bad checks (Pen. Code, §§ 473, 476a), receiving stolen
    property (§ 496), and petty theft. It accomplished the latter by adding section 490.2,
    which now defines petty theft as involving “money, labor, real[ty,] or personal property”
    with a value less than $950 “[n]otwithstanding Section 487” (which had specifically
    defined grand theft on the basis of value or type of property) “or any other provision of
    law defining grand theft” (§ 490.2, subd. (a), italics added). It additionally amended
    section 666 (also called “petty theft with a prior”) to preclude misdemeanor sentencing
    for recidivists who are otherwise disqualified from the reach of the initiative. Finally, it
    added a new misdemeanor of “shoplifting.” (§ 459.5; see Voter Information Guide, Gen.
    Elec. (Nov. 4, 2014) Official Title and Summary, p. 34 (2014 Voter Guide); see also
    2014 Voter Guide, text of Prop. 47, §§ 5-13, pp. 71-73.) In section 1170.18, the initiative
    provided a means of relief retrospectively (for defendants who either are serving a
    sentence or have completed a sentence for a prior conviction) in the form of a petition for
    3
    resentencing if the prior conviction would have been a misdemeanor “had this [initiative]
    been in effect at the time of the offense.” (§ 1170.18, subd. a).)4
    Faced with the obstacle that Vehicle Code section 10851 is not among the offenses
    specified in Penal Code section 1170.18 “in accordance with” which a defendant may
    request resentencing as a misdemeanor (§ 1170.18, subd. (a)), defendant invites us to
    look at the text and ballot arguments in support of the initiative enacting it. The broad
    purposes of the initiative were “to ensure that prison spending is focused on violent and
    serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest
    the savings generated from this act into prevention and [to] support programs in K-12
    schools, victim services, and mental health and drug treatment.” (2014 Voter 
    Guide, supra
    , text of Prop. 47, § 2, p. 70.) Defendant also points out that the initiative provided
    for liberal construction of its provisions. (Id., § 18, p. 74.) Finally, defendant invokes the
    much distinguished principle of the rule of lenity.
    Initiatives are construed in the same manner as statutes. (People v. McRoberts
    (2009) 
    178 Cal. App. 4th 1249
    , 1255.) We first look to the actual words of an enactment,
    and then other indicia of intent. Where the language of the enactment is clear, we do not
    resort to other indicia of legislative intent (absent a reasonably framed claim of
    4 As Vehicle Code section 10851 allowed and continues to allow for sentencing either as
    a misdemeanor or a felony, a conviction for unlawful taking/driving does not come
    within the plain language of this criterion. (Veh. Code, § 10851, subd. (a).) This would
    seem to undermine the premise of defendant’s appeal because it would accordingly be
    illogical to construe section 1170.18 as including a statute under which a defendant
    would not be entitled to relief. (People v. Page (2015) 
    241 Cal. App. 4th 714
    , 718 (Page),
    petn. for review pending, petn. filed Nov. 24, 2015, S230793; cf. People v. Garness
    (2015) 
    241 Cal. App. 4th 1370
    , 1373 (Garness), petn. for review pending, petn. filed
    Dec. 10, 2015, S231031 [§ 496d].) However, we will proceed to address defendant’s
    issues rather than follow the road not taken by the parties. (As with all cases we cite that
    are still facing potential review in the Supreme Court, we embrace their reasoning
    without relying on them as authority.)
    4
    ambiguity, or of an absurd result warranting disregard of the plain language), because we
    do not have anything further to construe. (People v. Meyer (2010) 
    186 Cal. App. 4th 1279
    ,
    1283; Rehman v. Department of Motor Vehicles (2009) 
    178 Cal. App. 4th 581
    , 584, 586.)
    As we have recently explained, in the face of unambiguous statutory language we
    cannot rely on an inchoate legislative purpose as a basis for departing from the text.
    (County of Sonoma v. Cohen (2015) 
    235 Cal. App. 4th 42
    , 48.) This is true even where
    legislation calls for “liberal construction.” (E.g., Foster v. Workers’ Comp. Appeals Bd.
    (2008) 
    161 Cal. App. 4th 1505
    , 1510 [workers’ compensation law].)5 The essence of
    lawmaking is the choice of deciding to what extent a particular objective outweighs any
    competing values, and a court in the guise of interpretation should not upset this balance
    where it is spelled out in the text of a statute. 
    (Sonoma, supra
    , 235 Cal.App.4th at p. 48.)
    The plain language of section 1170.18 identified only a few provisions of the
    Health and Safety Code and the Penal Code as offenses to designate as misdemeanors
    from among crimes that could be considered analogous. This careful parsing of related
    items invokes one of those Latin phrases that courts love to brandish—“expressio unius
    est exclusio alterius,” under which the inclusion of only certain items in an associated
    group gives rise to a strong inference of a deliberate legislative choice to exclude any
    items not mentioned, absent a compelling indication of legislative intent to the contrary.
    (Strang v. Cabrol (1984) 
    37 Cal. 3d 720
    , 725; The Formula, Inc. v. Superior Court (2008)
    
    168 Cal. App. 4th 1455
    , 1462-1463 [finding contrary legislative intent]; see 2A Singer &
    Singer, Sutherland Statutes and Statutory Construction (7th ed. 2014) § 47:23, pp. 406-
    5 A recent case, not yet final, thus agrees that liberal construction is not a basis to include
    attempted vehicular burglary (§ 664/459), an offense section 1170.18 unambiguously
    omits. (People v. Acosta (2015) 
    242 Cal. App. 4th 521
    , 526 (Acosta).)
    5
    413, 423-424 (Sutherland).)6 Defendant does not suggest there is anything ambiguous
    about which offenses are included, nor does he posit anything absurd about excluding
    Vehicle Code section 10851—given the outrage the offense generally provokes (because
    owners typically are dependent on their vehicles, unlike other forms of property (People
    v. Peacock (2015) 
    242 Cal. App. 4th 708
    , 713, petn. for review pending, petn. filed
    Dec. 28, 2015, S230948) and its ubiquitousness, it is plausible that the drafters of the
    initiative did not consider it to be as palatable to the electorate for reduced punishment as
    the designated offenses.7
    Section 1170.18 does not qualify its enumeration of the statutes with any general
    language of inclusion (e.g., “such as” or “including”), nor can we discern any logical
    reason for mentioning only these statutes if there was the intent to include others.
    (2A Sutherland, supra, § 47:25, pp. 444-445.) Defendant does not identify any evidence
    of contrary intent under which the drafters nonetheless intended the designated statutes to
    be merely illustrative. The Attorney General’s summary of the initiative states that it
    “[r]equires misdemeanor sentence[s] instead of felony for the following crimes when
    amount involved is $950 or less: petty theft, receiving stolen property, and forging[ or]
    writing bad checks,” with nary a word about unlawful taking/driving of a vehicle. (2014
    Voter Guide, Official Title and Summary, supra, p. 34.) Vehicle Code section 10851
    also does not appear anywhere in the analysis of the Legislative Analyst when it lists the
    6 The case of 
    Garness, supra
    , 
    241 Cal. App. 4th 1370
    is in accord. Given that there are a
    multitude of overlapping analogous offenses, it observed that one would have expected
    the proponents to include language that a mere similarity in conduct is not sufficient of
    itself to bring an offense within section 1170.18’s ambit unless it is included explicitly
    (or by operation of an included statute). (Garness, at pp. 1374-1375.)
    7 Moreover, as Acosta noted, it is rational to exclude crimes that involve the theft of
    vehicles from misdemeanor treatment because there would be only an insignificant
    number of convictions, given the value of vehicles presently. 
    (Acosta, supra
    ,
    242 Cal.App.4th at p. 528.)
    6
    offenses for which sentences would be prospectively reduced (2014 Voter 
    Guide, supra
    ,
    analysis of Prop. 47 by the Legis. Analyst, pp. 35-36), nor in the supporting and opposing
    arguments (id., pp. 38-39); the only vehicle-related reference appears in the opposition,
    which cites a reduction in punishment for carjacking as a basis to vote no (id., argument
    against Prop. 47, p. 39). Therefore, the legislative history is devoid of a desire to include
    additional offenses, and it would be a fraud upon the electorate for a court to extend the
    reach of the initiative beyond what was expressly represented at the time.8
    Defendant also relies on section 490.2. It is true the operation of section 490.2
    brings a host of unspecified statutes defining grand theft within its ambit prospectively
    (and thus retrospectively for purposes of § 1170.18).9 (§ 490.2, subd. (a).) However,
    Vehicle Code section 10851 does not appear explicitly in section 490.2 (as does § 487),
    nor does the text of Vehicle Code section 10851 purport to define the taking of a vehicle
    as grand theft within the catchall language of section 490.2; rather, it simply proscribes
    actions, whether or not there was an intent to steal (Veh. Code, § 10851, subd (a)).10
    8 In accord with these propositions are 
    Page, supra
    , 241 Cal.App.4th at page 720 and
    
    Garness, supra
    , 241 Cal.App.4th at page 1375.
    9 Similarly, section 459.5 brings section 459 within its ambit. If facts underlying a
    previous conviction for felony second degree commercial burglary under section 459
    involve the entry of a commercial establishment with the intent to steal during ordinary
    business hours, defendants are now entitled to petition for resentencing as misdemeanor
    shoplifting if the value of the property is under $950 because they would be guilty only of
    a misdemeanor after section 459.5’s enactment. (In re J.L. (Dec. 4, 2015, B261634)
    ___ Cal.App.4th ___, ___ [2015 Cal.App. Lexis 1086 at pp. *3-*5, Background, pt. B.];
    People v. Sherow (2015) 
    239 Cal. App. 4th 875
    , 879 (Sherow); People v. Contreras (2015)
    
    237 Cal. App. 4th 868
    , 892.)
    10 In accord with this conclusion is 
    Page, supra
    , 241 Cal.App.4th at page 719. 
    Acosta, supra
    , 242 Cal.App.4th at page 526 also agrees that section 490.2 does not apply to a
    statute (attempted vehicular burglary) that does not necessarily involve theft. The same
    division that decided Page has very recently come to the opposite conclusion, finding that
    by operation of section 490.2, a defendant is entitled to relief for unlawful taking/driving
    if a petition establishes that the value of the vehicle is less than $950. It is not persuasive,
    7
    Unlawful taking/driving thus cannot be swept into the ambit of section 1170.18 by this
    route.
    Equally attenuated is defendant’s attempted reliance on the initiative’s amendment
    of section 666. This provision now prescribes “wobbler” (rather than misdemeanor)
    status for various types of recidivist thieves who have prior convictions of the same type
    that disqualify them from resentencing under section 1170.18, subdivision (i). Amended
    section 666 continues to include “auto theft under Section 10851 of the Vehicle Code” in
    its list of types of thefts to which it applies. (§ 666, subd. (a).) However, this treatment
    of unlawful taking/driving for the purpose of imposing harsher punishment for certain
    recidivists does not evince any legislative intent to include it for the entirely unrelated
    ameliorative purpose of a petition for resentencing as a misdemeanor. Section 666
    simply does not function in the same fashion as sections 459.5 or 490.2, because it does
    not act to reduce any offense to a misdemeanor after the initiative’s effective date.
    As for defendant’s invocation of the rule of lenity, the principle is inapplicable in
    the present circumstances. It is limited to situations in which intrinsic or extrinsic indicia
    because it ignores the language in section 490.2 that limits its operation to statutes
    defining grand theft, which Vehicle Code section 10851 does not. (People v. Gomez
    (Dec. 23, 2015, E062867) ___ Cal.App.4th ___ [2015 Cal.App. Lexis 1152] (Gomez).)
    Unlawful taking/driving thus contrasts with section 484e, which does explicitly define
    various unlawful uses of access cards and account information as grand or petty theft.
    This has led to a split in authority as to whether section 490.2 applies to section 484e.
    (Compare People v. King (Dec. 10, 2015, B261784) ___ Cal.App.4th ___ [2015 Cal.App.
    Lexis 1100], People v. Grayson (2015) 
    241 Cal. App. 4th 454
    [Cal. Supreme Ct. order
    filed Dec. 9, 2015, that time for review is extended to Feb. 16, 2016] and People v. Cuen
    (2015) 
    241 Cal. App. 4th 1227
    , petn. for review pending, petn. filed Dec. 10, 2015,
    S231107 [offering different reasons why § 490.2 does not apply to § 484e] with People
    v. Romanowski (2015) 
    242 Cal. App. 4th 151
    , petn. for review pending, petn. filed
    Dec. 22, 2015, S231405 [§ 490.2 applies to statutes like § 484e that categorize grand
    theft by type of property without regard to value].)
    8
    of legislative intent stand in equipoise. (People v. Elder (2014) 
    227 Cal. App. 4th 1308
    ,
    1315 (Elder).) We do not have any indicia in defendant’s favor.
    Unlawful taking/driving is thus not a qualifying offense under any circumstance.11
    As a result, defendant’s final claim that due process compelled the trial court to solicit
    briefing as to whether the facts underlying his offense qualified him for resentencing falls
    with its premise. (Cf. People v. Oehmigen (2014) 
    232 Cal. App. 4th 1
    , 7-8 [petn. under
    § 1170.126; due process requires only “ ‘input’ ” in form of briefing on question of
    eligibility if the issue involves facts not adjudicated at time of prior conviction; no right
    to hearing]; 
    Rivas-Colon, supra
    , 241 Cal.App.4th at p. 452, fn. 4 [should interpret
    § 1170.18 similarly to § 1170.126].)12 Similarly, because unlawful taking/driving is
    ineligible for relief under section 1170.18, we also reject defendant’s request to affirm the
    order without prejudice to his filing a new petition.
    An order denying relief to an ineligible petitioner cannot affect any substantial
    rights of the petitioner, and in theory we should dismiss the appeal. (See 
    Elder, supra
    ,
    227 Cal.App.4th at pp. 1318-1320 (conc. & dis. opn. of Butz, J.).) However, this court
    will take the course of affirming the order.
    11 In light of this conclusion, we do not need to explore an alternate basis for denying the
    petition: defendant’s failure to satisfy his burden of proof that his unlawful
    taking/driving conviction involved a vehicle valued at less than $950. (Gomez, supra,
    ___ Cal.App.4th ___ [2015 Cal.App. Lexis 1152]; 
    Page, supra
    , 241 Cal.App.4th at
    p. 719, fn. 2; People v. Rivas-Colon (2015) 
    241 Cal. App. 4th 444
    , 449-450 (Rivas-Colon),
    petn. for review pending, petn. filed Nov. 17, 2015, S230601; 
    Sherow, supra
    ,
    239 Cal.App.4th at p. 880.)
    12 We disregard a final nascent argument invoking equal protection that is raised for the
    first time in defendant’s reply brief. (Sourcecorp, Inc. v. Shill (2012) 
    206 Cal. App. 4th 1054
    , 1061, fn. 7.)
    9
    DISPOSITION
    The order is affirmed. (CERTIFIED FOR PUBLICATION)
    BUTZ         , J.
    We concur:
    NICHOLSON       , Acting P. J.
    MAURO           , J.
    10
    

Document Info

Docket Number: C078609

Filed Date: 12/30/2015

Precedential Status: Precedential

Modified Date: 12/30/2015