People v. States CA4/2 ( 2016 )

Filed 2/10/16 P. v. States 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
E063471
Plaintiff and Respondent,
(Super.Ct.No. FVI1303081)
v.
ORDER MODIFYING OPINION
CHARLES LEWIS STATES,
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT
The opinion filed in this matter on February 2, 2016 is modified as follows:
On page 1, change the first full sentence from:
Defendant Charles Lewis States pleaded guilty to
unlawfully taking or driving a vehicle in violation of Vehicle
Code section 10851, subdivision (a) (section 10851(a)).
To:
1
Defendant Charles Lewis States pleaded guilty to
attempted unlawful taking or driving of a vehicle in violation
of Vehicle Code section 10851, subdivision (a) (section
10851(a)).
Except for this modification, the opinion remains unchanged. This modification
does not effect a change in judgment.
NOT FOR PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
2
Filed 2/2/16 P. v. States CA4/2 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E063471
v. (Super.Ct.No. FVI1303081)
CHARLES LEWIS STATES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Valerie G. Wass for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson,
Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant Charles Lewis States pleaded guilty to unlawfully taking or driving a
vehicle in violation of Vehicle Code section 10851, subdivision (a) (section 10851(a)).
1
Thereafter, Proposition 47 went into effect. Proposition 47 allows certain defendants
convicted of specified theft or drug-related felonies to petition to have those convictions
treated as misdemeanors. The trial court denied defendant’s petition under Proposition
47, on the ground that Proposition 47 does not apply to a conviction for unlawfully taking
or driving a vehicle.
Defendant appeals. He contends that Proposition 47 must be construed as
applying to a conviction for unlawfully taking or driving a vehicle. Alternatively, he
contends that, if Proposition 47 does not apply to a conviction for unlawfully taking or
driving a vehicle, it violates equal protection.
We reject both contentions and we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2013, defendant pleaded guilty to attempted unlawful taking or driving of a
vehicle (Pen. Code, § 664, subd. (a); Veh. Code, § 10851, subd. (a)) and admitted one
“strike” prior conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). He was sentenced
to a total of two years (double the midterm) in prison. He allegedly served that sentence.
In 2014, Proposition 47 went into effect. (See People v. Garness (2015) 241
Cal. App. 4th 1370, 1372 [Fourth Dist., Div. Two].)
In 2015, defendant filed a petition to have the conviction redesignated as a
misdemeanor pursuant to Penal Code section 1170.18. The trial court denied the petition.
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It ruled that defendant was not eligible for resentencing because unlawful taking or
driving of a vehicle is not one of the crimes specified in Penal Code section 1170.18.
II
DEFENDANT IS NOT ENTITLED TO THE BENEFITS OF PROPOSITION 47
A. General Background Regarding Proposition 47.
In general, Proposition 47 reduced certain theft-related offenses — provided they
involve property worth $950 or less — and certain possessory drug offenses from
felonies (or wobblers) to misdemeanors, unless the defendant is otherwise ineligible.
(Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (Aug.
2015) pp. 24-28, available at , as of Jan. 22, 2016.) It also allowed persons previously convicted of
one of the specified offenses as a felony to petition to reduce the prior conviction to a
misdemeanor. (Pen. Code, § 1170.18.)
In particular, as relevant here, Proposition 47 enacted Penal Code section 490.2,
subdivision (a) (section 490.2(a)), which 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 . . . .”
It also enacted Penal Code section 1170.18, subdivision (a) (section 1170.18,
subdivision (a)), which provides: “A person currently serving a sentence for a conviction
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. . . of a felony or felonies who would have been guilty of a misdemeanor under th[is] act
. . . had this act been in effect at the time of the offense may petition . . . 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.”
Finally, it enacted Penal Code section 1170.18, subdivision (f) (section 1170.18,
subdivision (f)), which provides: “A person who has completed his or her sentence for a
conviction . . . of a felony or felonies who would have been guilty of a misdemeanor
under this act had this act been in effect at the time of the offense, may file an application
. . . to have the felony conviction or convictions designated as misdemeanors.”
Proposition 47 did not explicitly amend section 10851(a).
B. Statutory Construction.
Defendant contends that Proposition 47 should be construed as allowing a petition
to have a conviction of unlawful taking or driving reduced to a misdemeanor.1
“‘“[O]ur fundamental task is ‘to ascertain the intent of the lawmakers so as to
effectuate the purpose of the statute.’”’ [Citation.] We begin with the text, ‘giv[ing] the
words their usual and ordinary meaning [citation], while construing them in light of the
statute as a whole and the statute’s purpose [citation].’ [Citation.] ‘If no ambiguity
appears in the statutory language, we presume that the Legislature meant what it said, and
1 This issue is currently before the California Supreme Court in People v.
Page (2015) 241 Cal. App. 4th 714, review granted, Jan. 27, 2016, S230793.
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the plain meaning of the statute controls.’ [Citation.]” (People v. Blackburn (2015) 61
Cal. 4th 1113, 1123.)
A person can file a petition to reduce a prior conviction to a misdemeanor if he or
she “would have been guilty of a misdemeanor under this act had this act been in effect at
the time of the offense . . . .” (Pen. Code, § 1170.18, subd. (f).) Defendant was guilty of
a felony under section 10851(a); today, he would still be guilty of a felony under section
10851(a).
Here, defendant had allegedly served his sentence; thus, he applied for relief under
section 1170.18, subdivision (f). As noted, a defendant who is still serving a sentence
can apply for relief under section 1170.18, subdivision (a). That subdivision permits a
request for “resentencing in accordance with Sections 11350, 11357, or 11377 of the
Health and Safety Code, or Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, as those sections have been amended or added by this act.” It does not authorize a
defendant serving a sentence under section 10851(a) to seek resentencing.
Unlike section 1170.18, subdivision (a), section 1170.18, subdivision (f) does not
list the statutes that were amended by Proposition 47. It has no need to; once the
defendant has finished serving his or her sentence, there is no need for resentencing, and
hence no need to specify the statutes that govern such resentencing. Otherwise, however,
these two subdivisions parallel each other closely. Thus, it follows that a defendant who
has already served a sentence under section 10851(a) cannot have the conviction reduced
to a misdemeanor.
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Defendant argues that section 490.2(a) defines “obtaining any property by theft”
as petty theft (italics added); this would include the unlawful taking of a vehicle. He also
notes that unlawful taking or driving of a vehicle is a lesser included offense of grand
theft auto (Pen. Code, § 487, subd. (d)(1)). (See People v. Barrick (1982) 33 Cal. 3d 115,
128.) He concludes: “It would be absurd for [grand theft auto] to be eligible for
reduction to a misdemeanor under section 1170.18, when the lesser offense of unlawfully
driving or taking an automobile is not eligible for such a reduction.”
However, section 490.2, by its terms, applies “[n]otwithstanding Section 487 or
any other provision of law defining grand theft . . . .” (Italics added.) Section 10851(a) is
not a “provision of law defining grand theft.” Thus, section 490.2 does not override
section 10851(a). By choosing not to override or amend section 10851(a), Proposition 47
left intact a prosecutor’s discretion to charge the unlawful taking of a vehicle as a felony,
regardless of value. This is not absurd.
If Proposition 47 were intended to apply not only to reduce the punishment for
certain specified offenses, but also any lesser included offenses, we would expect some
indication of that intent in the statutory language. We find nothing of the sort. It is
simply not our role to interpose additional changes to the Penal Code or Vehicle Code
beyond those expressed in the plain language of the additions or amendments resulting
from the adoption of Proposition 47.
Next, defendant notes that Penal Code section 666 (section 666), defining petty
theft with a prior, lists “auto theft under Section 10851(a)” as one of the prior convictions
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that elevate a petty theft to a wobbler. (Pen. Code, § 666, subd. (a).) He also notes that
Proposition 47 amended section 666. He then argues that this shows that it was the intent
of Proposition 47 to treat a violation of section 10851(a) as theft. However, the words
“auto theft under Section 10851(a)” long predate Proposition 47. As defendant admits,
they were added to section 666 in 1986. (Stats. 1986, ch. 402, § 1, p. 1622.) Thus, they
shed no light on the intent behind Proposition 47.
Finally, defendant relies on certain uncodified findings and declarations in
Proposition 47. Section 2 states that Proposition 47 was enacted, in part, “to maximize
alternatives for nonserious, nonviolent crime . . . .” (Voter Information Guide, Gen. Elec.
(Nov. 4, 2014) Text of Proposed Laws, p. 70.) Section 3 states: “In enacting this act, it
is the purpose and intent of the people of the State of California to: [¶] . . . [¶] . . .
Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty
theft and drug possession . . . .” (Ibid.) Section 15 states: “This act shall be broadly
construed to accomplish its purposes.” (Id. at p. 74.) And section 18 states: “This act
shall be liberally construed to effectuate its purposes.” (Ibid.) “However, [a] rule of
liberal construction . . . should not be used to defeat the overall statutory framework and
fundamental rules of statutory construction.” (Nickelsberg v. Workers' Comp. Appeals
Bd. (1991) 54 Cal. 3d 288, 298; see also People v. Jernigan (2014) 227 Cal. App. 4th 1198,
1207 [“The voters mandated that Proposition 36 be liberally construed . . . . It is
established, nonetheless, that in interpreting a voter initiative, we apply well-settled rules
of statutory construction.”].)
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Accordingly, we conclude that the trial court was correct: Proposition 47 does not
allow a defendant who has served a sentence for unlawful taking or driving of a vehicle
in violation of section 10851(a) to petition to have that conviction reduced to a
misdemeanor.
C. Equal Protection.
Defendant also contends that, if Proposition 47 does not apply to a conviction for
unlawful taking or driving of a vehicle in violation of section 10851(a), it violates equal
protection.
Defendant forfeited this contention by failing to raise it below. (People v.
Alexander (2010) 49 Cal. 4th 846, 880, fn. 14.)
Separately and alternatively, we also reject this contention on the merits.
Applying rational basis scrutiny, the California Supreme Court has held that “neither the
existence of two identical criminal statutes prescribing different levels of punishments,
nor the exercise of a prosecutor’s discretion in charging under one such statute and not
the other, violates equal protection principles.” (People v. Wilkinson (2004) 33 Cal. 4th
821, 838.) Similarly, it has long been the case that “a car thief may not complain because
he may have been subjected to imprisonment for more than 10 years for grand theft of an
automobile [citations] when, under the same facts, he might have been subjected to no
more than 5 years under the provisions of section 10851[(a)] of the Vehicle Code.”
(People v. Romo (1975) 14 Cal. 3d 189, 197.) The same reasoning applies to Proposition
47’s provision for the possibility of sentence reduction for a limited subset of those
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previously convicted of grand theft (those who stole an automobile or other personal
property valued $950 or less), but not those convicted of unlawfully taking or driving a
vehicle in violation of section 10851(a). Absent a showing that a particular defendant
“‘has been singled out deliberately for prosecution on the basis of some invidious
criterion,’ . . . the defendant cannot make out an equal protection violation.” (Wilkinson,
supra, 33 Cal.4th at p. 839.) Defendant here has made no such showing.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
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