Opinion
E065991
05-22-2017
THE PEOPLE, Plaintiff and Respondent, v. VALENTINE APARICIO, Defendant and Appellant.
Robert F. Somers, 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, Charles C. Ragland and Kathryn Kirschbaum, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI015058) OPINION APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed. Robert F. Somers, 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, Charles C. Ragland and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In this Proposition 47 case (Pen. Code, § 1170.18), defendant Valentine Aparicio appeals an order denying his petition for resentencing as to his conviction for receiving a stolen vehicle (§ 496d, subd. (a)). Defendant contends Proposition 47, the Safe Neighborhoods and Schools Act (§ 1170.18), implicitly includes the offense of receiving a stolen vehicle in violation of section 496, subdivision (a), which makes the receipt of stolen property valued at $950 or less punishable as a misdemeanor. Defendant also contends that denial of his petition for resentencing violated his equal protection rights.
All future statutory references are to the Penal Code unless otherwise stated.
We conclude a conviction for violating section 496d, subdivision (a), does not qualify for resentencing under Proposition 47. We also reject defendant's equal protection challenge. The trial court therefore did not err in denying defendant's petition for resentencing, and we affirm the judgment.
II
FACTS AND PROCEDURAL BACKGROUND
On January 24, 2003, defendant pled guilty to buying or receiving a stolen motor vehicle (§ 496d, subd. (a)), to wit, a 1984 Toyota Cressida. In return, the remaining charges were dismissed and defendant was sentenced to two years in state prison.
On March 10, 2016, pursuant to section 1170.18, subdivision (f), defendant filed a petition to reclassify his receiving a stolen motor vehicle conviction to a misdemeanor under Proposition 47. The People filed an opposition, stating that Proposition 47 does not apply to section 496d.
The trial court held a hearing on the petition on April 22, 2016. At the hearing, defendant's counsel argued that Proposition 47 applied to all theft-related offenses of less than $950. The People did not expressly dispute the vehicle was valued at less than $950, but argued that Proposition 47 did not apply to section 496d. The trial court denied defendant's petition on the ground that Proposition 47 does not apply to the offense of receiving a stolen vehicle.
On May 5, 2016, defendant filed a timely notice of appeal.
III
DISCUSSION
Defendant argues that the trial court's order denying his petition should be reversed because Proposition 47 applies to section 496d. Specifically, he claims that section 496d, although not listed in Proposition 47, was intended to be included under the catch-all provision of section 490.2. Defendant also contends that if this court concludes section 496d was not intended to be included in Proposition 47, his equal protection rights under the state and federal Constitutions have been violated.
These issues are currently under review before the California Supreme Court in People v. Nichols (2016) 244 Cal.App.4th 681 (review granted Apr. 20, 2016, S233055); People v. Peacock (2015) 242 Cal.App.4th 708 (review granted Feb. 17, 2016, S230948); and People v. Garness (2015) 241 Cal.App.4th 1370 (review granted Jan. 27, 2016, S231031).
We note California Rules of Court, rule 8.1115(e)(1) was amended effective July 1, 2016, to provide as follows: "Pending review and filing of the Supreme Court's opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only. Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court." This only applies to cases published after July 1, 2016.
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. Overview of Proposition 47
On November 4, 2014, voters approved Proposition 47, the Safe Neighborhoods and Schools Act, which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 reduced certain drug possession and theft-related crimes from felonies or wobblers to misdemeanors for qualified defendants, and added, among other statutory provisions, section 1170.18. Section 1170.18 created a process through which persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. (See generally People v. Lynall (2015) 233 Cal.App.4th 1102, 1108-1109; People v. Diaz (2015) 238 Cal.App.4th 1323, 1327-1328.) Under section 1170.18, a person currently serving a felony sentence or a person who has completed his or her sentence, whether by trial or plea, for an offense that is now a misdemeanor under Proposition 47, may petition before the trial court that entered the judgment of conviction in his or her case to have the felony conviction designated as a misdemeanor. (§ 1170.18, subds. (a) & (f).)
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.
C. Eligibility for Resentencing Under Section 496d
Defendant contends his conviction for violating section 496d, subdivision (a), qualifies for resentencing under Proposition 47. The trial court ruled a section 496d offense is ineligible for resentencing. 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 provisions provide: "A person who has completed his or her sentence for a conviction, whether by trial or plea, 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 before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors" (§ 1170.18, subd. (f)) "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" (§ 1170.18, subd. (a)).
In order to be eligible for resentencing, defendant must be a person "who would have been guilty of a misdemeanor" (§ 1170.18, subd. (a)) 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 is ineligible for resentencing under Proposition 47. He is not a person "who would have been guilty of a misdemeanor" (§ 1170.18, subd. (a)) under Proposition 47.
Defendant contends that section 496, as amended by Proposition 47, provides broad language impliedly qualifying a section 496d crime 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 under section 1170.18, subdivision (a). Defendant reasons that because section 496, subdivision (a), makes receipt of any stolen property worth less than $950 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 sentence 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.) We conclude defendant's section 496d conviction therefore does not qualify for resentencing as a matter of law.
Defendant's claims were considered and rejected by this court in People v. Varner (2016) 3 Cal.App.5th 360, 366-367 (Varner), review granted November 22, 2016, S237679. 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." (Varner, 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." (Id. at p. 367.)
D. Equal Protection
Defendant also argues that denying his petition for resentencing on his section 496d conviction for receiving a stolen vehicle violates his constitutional right to equal protection because no rational relationship to a legitimate state interest exists for treating defendant differently from defendants guilty of other low-value property crimes. Defendant claims that the disparate treatment of convictions under sections 496d and 496, subdivision (a), violates his right to equal protection because the prosecutorial decision on which statute to charge was arbitrary. Defendant also asserts that a person convicted of receiving a stolen vehicle with a value of $950 or less, in violation of section 496d, is similarly situated to a person convicted of receiving stolen property or theft of property with a value of $950 or less, in violation of sections 496, subdivision (a), 487, subdivision (d)(1), or 490.2. Finally, defendant argues that no rational basis exists to treat a vehicle thief differently than one who receives a stolen vehicle. We disagree.
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 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.)
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 petition for reclassification is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: HOLLENHORST
Acting P. J. SLOUGH
J.