Opinion
E064978
04-06-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDY JOE MADRIGAL, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Minh U. Le, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. RIF135209 & RIF139055) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In this Proposition 47 case, defendant Randy Joe Madrigal appeals an order denying his application for reduction of his felony conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a) ) to a misdemeanor (application for reduction). Defendant contends Proposition 47 (§ 1170.18) implicitly includes a section 496d felony because the crime qualifies for reduction under section 496, subdivision (a), which makes receipt of stolen property valued at $950 or less a misdemeanor.
Unless otherwise noted, all statutory references are to the Penal Code. --------
We conclude a conviction for violating section 496d, subdivision (a) does not qualify for reduction to a misdemeanor under Proposition 47. The trial court therefore did not err in denying defendant's application for reduction, and the judgment is affirmed.
II
FACTS AND PROCEDURAL BACKGROUND
In 2007, defendant was convicted of receiving a stolen motor vehicle (§ 496d, subd. (a)). In May 2015, defendant filed an application for reduction of his felony conviction to a misdemeanor under Proposition 47. Defendant alleged he had completed serving his sentence for the conviction. The People filed a response, asserting that defendant was not entitled to reduction of his felony to a misdemeanor because his offense (§ 496d) was not a qualifying felony. On November 2, 2015, the trial court denied defendant's application for reduction on the ground a section 496d conviction is not a qualifying felony under Proposition 47.
III
PROPOSITION 47
On November 4, 2014, voters enacted Proposition 47, which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a).) "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 (Rivera).)
"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." (Rivera, supra, 233 Cal.App.4th at p. 1092.) Similarly, a defendant who has completed a sentence for a crime may file an application under Proposition 47 to reduce his or her felony conviction to a misdemeanor (§ 1170.18, subd. (f)). Subdivision (g) of section 1170.18 provides: "If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
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; 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." (People v. Perkins, supra, 244 Cal.App.4th at pp. 136-137.)
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 former 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 charging the crime as a misdemeanor 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 changed the section 496 offense of receiving stolen property not exceeding $950, from a wobbler to a misdemeanor. Proposition 47, however, did not amend section 496d, the section under which defendant was convicted for receiving a stolen vehicle.
IV
ELIGIBILITY FOR FELONY REDUCTION UNDER SECTION 496D
Defendant contends his conviction for violating section 496d, subdivision (a), qualifies for reclassification as a misdemeanor under Proposition 47. The trial court ruled a section 496d offense is ineligible for reclassification. We agree.
Section 496d, subdivision (a), states in relevant part that "Every person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both." The crime of receiving a stolen vehicle in violation of section 496d, subdivision (a), remains a wobbler, a crime punishable as either a felony or a misdemeanor. (§§ 17, subds. (a) & (b), 496d, subd. (a).)
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."
In order for defendant's felony to be eligible for reclassification as a misdemeanor, he 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. Because a section 496d crime remains a wobbler, defendant would not necessarily have been guilty of a misdemeanor had Proposition 47 been in effect when defendant committed the section 496d crime of receiving a stolen vehicle. After the voters approved Proposition 47, the prosecution retained the ability to charge a section 496d violation as either a misdemeanor or a felony. Therefore defendant's section 496d conviction is ineligible for reclassification as a misdemeanor under Proposition 47. He is not a person "who would have been guilty of a misdemeanor" under Proposition 47. (§ 1170.18, subd. (a).)
Defendant contends that section 496, as amended by Proposition 47, provides broad language impliedly qualifying a section 496d felony for resentencing as a misdemeanor if the stolen vehicle is worth $950 or less. Section 496 is one of the enumerated statutes qualifying for resentencing as a misdemeanor under section 1170.18, subdivision (a). Defendant reasons that because section 496, subdivision (a), makes receipt of any stolen property worth $950 or less a misdemeanor, and a vehicle is a form of property, his conviction under section 496d for receiving a stolen vehicle must be reduced to a misdemeanor. We are not persuaded.
We recognize the language, "any property," included in section 496, subdivision (a), is broad enough to encompass a stolen vehicle. However, Proposition 47 only applies to those crimes in which the defendant "would have" been guilty of a misdemeanor, as opposed to crimes in which a defendant "could have" been guilty of a misdemeanor if the prosecution in its discretion chose to charge the defendant more leniently. In the instant case, Proposition 47 does not operate to reduce defendant's felony conviction because the prosecution would have had the discretion to prosecute defendant's section 496d crime as a felony even after the passage of Proposition 47, and most likely would have done so, because the same sentencing considerations applied to defendant's offense before as well as after the passage of Proposition 47.
Language in other portions of Proposition 47 also supports this conclusion. Section 490.2, which was added by Proposition 47, provides a definition of petty theft which begins with the phrase, "Notwithstanding Section 487 or any other provision of law defining grand theft, . . ." Similarly, section 459.5, which was also added by Proposition 47, provides a definition of shoplifting which begins with the phrase: "Notwithstanding Section 459 [burglary] . . . ." This "notwithstanding" language is notably absent from section 496. Because that provision contains no reference to section 496d and Proposition 47 did not amend section 496d to require sentencing as a misdemeanor, it is reasonable to assume the drafters of Proposition 47 intended section 496d to remain intact as a wobbler, with the prosecution retaining discretion to charge a section 496d offense as a felony. The absence of any reference in Proposition 47 to section 496d, including in the list of crimes eligible for resentencing, shows that section 496d was intended to remain beyond Proposition 47's reach. (See Barnhart v. Peabody Coal Co. (2003) 537 U.S. 149, 168.) Defendant's section 496d conviction therefore does not qualify for reclassification as a misdemeanor as a matter of law.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.