Opinion
C088791
02-14-2020
THE PEOPLE, Plaintiff and Appellant, v. MARCUS AARON ELLIS, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF154777)
After a jury found defendant Marcus Aaron Ellis guilty of receiving a stolen vehicle in violation of Penal Code section 496d, the court granted defendant's petition for resentencing under section 1170.18 and redesignated the offense a misdemeanor under Proposition 47 because the car he received was worth less than $950. The People appeal, arguing defendant's section 496d conviction for receiving a stolen vehicle does not fall within the scope of Proposition 47.
Further undesignated statutory references are to the Penal Code.
Until such time as we receive further guidance from our Supreme Court, we shall continue to adhere to our reasoning in People v. Bussey (2018) 24 Cal.App.5th 1056 (Bussey) and other similar cases that hold Proposition 47 does not apply to section 496d convictions. We therefore conclude the trial court erred in redesignating defendant's felony receipt of stolen property conviction as a misdemeanor under Proposition 47. We reverse and remand for further proceedings.
The issue is currently pending review in our Supreme Court in People v. Orozco (2018) 24 Cal.App.5th 667, review granted August 15, 2018, S249495 (Orozco).
Our Supreme Court granted review in Bussey on September 12, 2018, S250152, and deferred further action pending disposition of related issues in Orozco. (See Cal. Rules of Court, rule 8.1115(e).)
BACKGROUND
On March 28, 2017, defendant was found guilty of receiving a stolen vehicle in violation of section 496d, subdivision (a). Prior to sentencing, defendant failed to appear in court; he was not apprehended until sometime in 2018.
In September 2018, before being sentenced, defendant filed a petition under Proposition 47 as codified in section 1170.18 to reduce his conviction to a misdemeanor. He argued that his conviction for receiving a stolen vehicle (§ 496d) should be reduced to a misdemeanor because the evidence showed that the stolen vehicle he received was worth less than $950, and Proposition 47 changed the crime of receipt of stolen property from a felony to a misdemeanor when the property involved was valued at $950 or less.
After hearing the matter, the trial court granted the petition and redesignated defendant's felony receipt of stolen property conviction as a misdemeanor. The court found that it was bound to follow People v. Williams (2018) 23 Cal.App.5th 641 (Williams), which held that Proposition 47 affords relief to criminal defendants convicted of receiving a stolen vehicle worth less than $950 under section 496d. The People timely appealed.
DISCUSSION
The People contend the trial court erred when it found defendant's felony conviction for receiving a stolen vehicle eligible for reduction. We agree.
In November 2014 voters passed Proposition 47, the Safe Neighborhoods and Schools Act, which reduced certain drug- and theft-related offenses from felonies or wobblers to misdemeanors. (People v. Martinez (2018) 4 Cal.5th 647, 651.) Proposition 47 reclassified some offenses by amending the statutes defining those crimes (see, e.g., Health & Saf. Code, § 11377 [punishing as a misdemeanor the possession of a controlled substance]). Proposition 47 also added new statutes to the Penal Code that carved out a lesser crime from a preexisting felony (see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 5, p. 71 [creating § 459.5 to distinguish misdemeanor shoplifting from felony burglary]), or redefined how a term is understood throughout California's statutory scheme (see id. at § 8, p. 72, italics omitted [adding § 490.2 to lower the potential punishment for certain categories of grand theft "[n]otwithstanding . . . any other provision of law defining grand theft"]). "Through its various provisions, Proposition 47 made clear that certain types of criminal conduct once punishable as felonies now constitute only misdemeanors." (People v. Martinez, supra, 4 Cal.5th at p. 651.)
Persons like defendant who commit eligible crimes on or after November 4, 2014, are entitled to have the proposition's changes applied during their initial trial proceedings (People v. DeHoyos (2018) 4 Cal.5th 594, 598; People v. Bush (2016) 245 Cal.App.4th 992, 1000 [Proposition 47 operates both prospectively and retrospectively].) Thus, although defendant filed a resentencing petition pursuant to section 1170.18, that provision does not apply to him because he committed his offense after the effective date of Proposition 47. (People v. Lara (2019) 6 Cal.5th 1128, 1133-1134.)
As relevant here, Proposition 47 reduced the offense of receiving stolen property worth less than $950 in violation of section 496 to a misdemeanor. That is, if the stolen property received was valued at less than $950, the district attorney may charge the suspected recipient with no more than a misdemeanor (unless he or she has certain enumerated offenses).
Section 496, subdivision (a) provides: "Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170. However, if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a county jail not exceeding one year, if such person has no prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
Proposition 47 made no such change to section 496d, which specifically governs receipt of a stolen vehicle. That statute continues to provide: "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."
Thus, section 496d is not among the statutes listed in section 1170.18 and there is "no indication that the drafters of Proposition 47 intended to include section 496d." (People v. Varner (2016) 3 Cal.App.5th 360, 366 (Varner), review granted Nov. 22, 2016, S237679; review dism. and case remanded Aug. 9, 2017.) In Varner, "[t]he court distinguished 'the changes made by Proposition 47 to the crimes of grand theft and petty theft,' which were accomplished in part by the addition of section 490.2, which defines petty theft and references ' " any other provision of law defining grand theft." ' [Citation.] The court noted that no such broad language had been included in the changes made to section 496, subdivision (a) [(receipt of stolen property)], and that section 496, subdivision (a) 'contains no reference to section 496d.' [Citation.] This indicated that 'the drafters [of Proposition 47] intended section 496d to remain intact and intended for the prosecution to retain its discretion to charge section 496d offenses as felonies.' [Citation.] The court also rejected the notion that section 490.2 applied to receiving stolen property offenses, finding that if so, there would have been 'no need to amend section 496.' " (Orozco, supra, 24 Cal.App.5th at p. 674, rev. granted.)
While our Supreme Court granted review of Orozco, it denied the request for an order directing depublication. (Orozco, supra, 24 Cal.App.5th 668, rev. granted.)
This court reached a similar conclusion in Bussey. (See Bussey, supra, 24 Cal.App.5th at pp. 1062-1064, rev. granted; Cal. Rules of Court, rule 8.1115(e).) There, the defendant argued his conviction for felony receiving a stolen vehicle was unauthorized because the offense was deemed a misdemeanor under Proposition 47. (Bussey, at p. 1058.) He contended that the voters' general amendment of section 496 governed the more specific provisions in section 496d and argued that section 496, like section 490.2, does not identify every theft statute to which it applies. (Bussey, at pp. 1062-1063.) In rejecting his argument, we found that unlike the amendments to section 490.2, the amendment to section 496 did not include introductory language "indicating that its provisions are to apply to the entire subject of knowing receipt of stolen property," which we found sent a "strong signal" that section 496 operates differently than section 490.2. (Bussey, at p. 1063.)
We agree with Bussey and Varner. Like the trial court, however, we recognize that the First District recently came to a different conclusion and held that Proposition 47 affords relief to criminal defendants convicted of receiving a stolen vehicle. (Williams, supra, 23 Cal.App.5th at pp. 650-651; see also People v. Wehr (2019) 41 Cal.App.5th 123, 134 [declining to follow reasoning in Varner after Supreme Court decided People v. Page (2017) 3 Cal.5th 1175, 1180, 1183-1184 [holding a Veh. Code, § 10857 conviction for taking a vehicle with the intent to steal is eligible for Proposition 47 relief if the vehicle is worth $950 or less]], review granted Jan. 2, 2020, S259233.)
In Williams, supra, 23 Cal.App.5th at page 650, the court found section 496d analogous to section 484e, which the California Supreme Court determined in People v. Romanowski (2017) 2 Cal.5th 903 was a theft crime within the purview of Proposition 47 vis-á-vis section 490.2. (Romanowski, at pp. 907-909.) We have considered and, for the reasons stated, rejected defendant's argument regarding the reach of section 490.2. Respectfully, nothing in Williams persuades us otherwise, as we do not agree that the theft-related crime of receiving stolen property is analogous to the crime of theft of access card account information. (Williams, at p. 650; see Romanowski, at p. 912 ["Theft of access card information requires 'acquir[ing] or retain[ing] possession of access card account information with respect to an access card validly issued to another person, without the cardholder's or issuer's consent.' [Citation.] This 'without . . . consent' requirement confirms that theft of access card information is a 'theft' crime in the way the Penal Code defines 'theft' "].)
We note that Williams did not address the Varner decision beyond a citation relating to dismissal of the matter on review following the decision in Romanowski. (Williams, supra, 23 Cal.App.5th at p. 648, fn. 4.) Indeed, the California Supreme Court granted review of Varner and ordered further action deferred pending its decision in Romanowski. After the Romanowski opinion was filed, our Supreme Court dismissed review in Varner, leaving the case published. (See Cal. Rules of Court, rule 8.1115(e).) "Absent further guidance from the Supreme Court, we are hesitant given our role as an intermediate appellate court to take [the] expansive view [urged by defendant]." (People v. Soto (2018) 23 Cal.App.5th 813, 824 [concluding theft from an elder, while a theft-related crime, was not eligible for Proposition 47 reduction].)
No petition for review was filed in Williams. --------
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
/s/_________
RAYE, P. J. We concur: /s/_________
HULL, J. /s/_________
RENNER, J.