Opinion
H042373
03-02-2017
THE PEOPLE, Plaintiff and Respondent, v. MARCOS PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1354650)
Defendant Marcos Perez appeals from an order denying his petition for resentencing pursuant to Proposition 47. (Pen. Code, § 1170.18, subd. (a).) On appeal, Perez asserts that the trial court erred in ruling that he was ineligible for Proposition 47 relief.
Unspecified statutory references are to the Penal Code.
Specifically, Perez contends the offense of receiving a stolen vehicle worth $950 or less was implicitly included in Proposition 47's amendment of section 496, subdivision (a), which makes the receipt of stolen property valued at $950 or less punishable as a misdemeanor. He also contends that the denial of his petition for resentencing violated his equal protection rights.
As explained below, we conclude that the trial court erred in finding Proposition 47 did not extend to Perez's offenses, and we will reverse.
In light of our conclusion, we need not reach Perez's equal protection argument.
I. FACTUAL AND PROCEDURAL BACKGROUND
By complaint filed April 23, 2013, Perez was charged with four felony counts of buying or receiving a stolen motor vehicle (§ 496d) and one misdemeanor count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)).
On May 13, 2013, Perez pleaded no contest to two counts of receiving a stolen vehicle and the misdemeanor charge of being under the influence, in exchange for an indicated sentence of five months in county jail. Perez waived his rights under People v. Harvey (1979) 25 Cal.3d 754 in anticipation that the remaining two counts of receiving a stolen vehicle would be dismissed at sentencing. On July 3, 2013, Perez was sentenced to five months in jail, with credits of 153 days, and three years formal probation.
As his total credits exceeded the term of confinement, Perez was ordered released.
In February 2014, the trial court revoked probation and issued a bench warrant for Perez's arrest. According to the probation department, Perez had failed to report for scheduled appointments, and failed to provide proof of his enrollment in substance abuse counseling, among other violations of his probation terms. On September 4, 2014, Perez admitted violating his probation and the trial court revoked, then reinstated probation with modified terms and conditions.
On December 23, 2014, Perez filed a petition for resentencing of his two convictions for receiving a stolen vehicle pursuant to Proposition 47. By order dated December 30, 2014, the trial court appointed the public defender to represent Perez in connection with that petition and set a hearing for March 2, 2015. The public defender subsequently filed a brief supporting the petition for resentencing. In the introductory section of that brief, the public defender wrote that Perez "was convicted . . . of two counts of violating . . . section 496d involving a 1999 Jeep Cherokee and a 1975 Chevy Cheyanne [sic]. The 1975 Chevy is likely worth under $950. Kelley Blue Book does not even value vehicles that old." No declarations or documentary evidence accompanied Perez's brief.
On April 27, 2015, the court denied the petition finding that violations of section 496d are not eligible for resentencing under Proposition 47. Perez timely appealed.
II. DISCUSSION
On appeal, Perez contends that the trial court erred in failing to grant his petition for redesignation under Proposition 47 because section 1170.18 should be construed to apply to a felony conviction for violating section 496d where the value of the stolen motor vehicle was $950 or less.
Perez acknowledges that Proposition 47 did not amend section 496d to provide that the offense of buying or receiving a stolen motor vehicle with a value of $950 or less is a misdemeanor. Despite this omission, Perez maintains that it is clear that the voters intended that all theft related offenses be treated as misdemeanors where the value of the property is less than $950. He argues that section 496d is a narrower version of the broader misdemeanor offense of receiving stolen property with a value of $950 or less (§ 496, subd. (a)), which is expressly eligible for redesignation under section 1170.18, subdivision (a).
The California Supreme Court is currently considering this question in a related case, People v. Romanowski, review granted January 20, 2016, S231405. Pending further guidance from the Supreme Court, we will resolve the matter before us.
A. Relevant statutes and rules of statutory interpretation
On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Proposition 47 "reduced the penalties for a number of offenses." (People v. Sherow (2015) 239 Cal.App.4th 875, 879 (Sherow).) The theft related offenses enumerated in section 1170.18, subdivisions (a) and (b) that may be designated as misdemeanors under Proposition 47 include shoplifting with a value of $950 or less (§ 459.5, subd. (a)); forgery of a document with a value of $950 or less (§ 473, subd. (b)); issuing a check for $950 or less without sufficient funds (§ 476a, subd. (b)); petty theft with a value of $950 or less (§ 490.2, subd. (a)); receiving stolen property with a value of $950 or less (§ 496, subd. (a)); and petty theft with a prior theft conviction (§ 666, subd. (a)). The offense of buying or receiving a stolen motor vehicle (§ 496d) is not one of the theft related offenses listed in section 1170.18, subdivisions (a) and (b).
Section 1170.18, which was also added by Proposition 47, "creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing." (Sherow, supra, 239 Cal.App.4th at p. 879.) Section 1170.18, subdivision (a) specifies that a person may petition for resentencing in accordance with section 490.2, which provides, in pertinent part: "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 . . . ." (§ 490.2, subd. (a).)
"[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (Sherow, supra, 239 Cal.App.4th at p. 878.) The petitioner for resentencing has the "initial burden of proof" to "establish the facts upon which his or her eligibility is based." (Id. at p. 880.) If the crime under consideration is a theft offense, " 'the petitioner will have the additional burden of proving the value of the property did not exceed $950.' " (Id. at p. 879.) In making such a showing, "[a] proper petition could certainly contain at least [the petitioner's] testimony about the nature of the items taken." (Id. at p. 880.) If the petitioner makes a sufficient showing, the trial court "can take such action as appropriate to grant the petition or permit further factual determination." (Ibid.)
B. Analysis
Perez's argument is premised on his assertion that the vehicles he purchased or received were valued at $950 or less. In the brief he submitted supporting his petition for resentencing, Perez averred that one of the vehicles in question, a 1975 Chevy Cheyenne was "likely worth under $950[, because] Kelley Blue Book does not even value vehicles that old." He offered no representation or documentation purporting to establish the value of the other vehicle, a 1999 Jeep Cherokee.
Obviously, a bare assertion regarding the vehicles' value does not prove they were worth $950 or less. (See Sherow, supra, 239 Cal.App.4th at p. 880 [a proper petition for resentencing could "at least" contain the petitioner's testimony regarding the stolen item].) Despite the inadequacy of Perez's offer of proof, it was nonetheless error for the trial court to reject his petition out of hand by concluding that convictions pursuant to section 496d fall outside the scope of Proposition 47.
The trial court's conclusion in this regard conflicts with the plain language of section 490.2, as follows: "[O]btaining 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 . . . ." (§ 490.2, subd. (a), italics added.) Even though section 496, subdivision (a) is not expressly referenced by Proposition 47, section 1170.18 or section 496d, a vehicle is undoubtedly personal property and thus falls within the ambit of section 490.2. If a defendant buys or receives a vehicle with a value under $950, he must be charged under section 490.2 with a misdemeanor. The trial court erred in concluding that Perez was ineligible for resentencing without even considering his offer of proof regarding the value of the vehicles he purchased or received.
We reverse and remand the matter so that Perez may attempt to perfect his offer of proof regarding the value of the vehicles in question and the trial court can make a determination based on the evidence presented.
III. DISPOSITION
The order denying the petition for resentencing is reversed. The matter is remanded for proceedings consistent with this opinion.
/s/_________
Premo, J.
I CONCUR: /s/_________
Rushing, P.J. ELIA, J., Dissenting
I respectfully dissent.
Under Penal Code section 1170.18, defendant Marcos Perez filed a petition for resentencing of two felony convictions for violating section 496d. Section 1170.18 was added in 2014 when voters approved Proposition 47, known as "the Safe Neighborhoods and Schools Act." (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 1, 14, pp. 70, 73-74.) Under the plain language of section 1170.18, a felony conviction for violating section 496d is not eligible for resentencing as a misdemeanor, even if the actual value of the stolen motor vehicle bought or received was $950 or less.
All further statutory references are to the Penal Code unless otherwise specified.
At the time the trial court ruled on defendant's petition, section 1170.18, subdivision (a), provided: "A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor [if Proposition 47 had] been in effect at the time of the offense may petition for a recall of sentence . . . 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 [the proposition]." Section 1170.18, subdivision (b), requires a court considering a petition that satisfies the foregoing criteria to recall an eligible petitioner's felony sentence and to resentence the petitioner "to a misdemeanor pursuant to 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 [Proposition 47], unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety."
Section 496 is among the sections listed in subdivisions (a) and (b) of section 1170.18, pursuant to which an eligible petitioner may be resentenced, but section 496d is not a listed offense. Section 496d was neither amended nor added by Proposition 47, and it remains a so-called wobbler offense that is punishable as either a felony or a misdemeanor. (See § 496d, subd. (a).) "If the language [of an initiative measure] is not ambiguous, we presume the voters intended the meaning apparent from that language, and we may not add to the statute or rewrite it to conform to some assumed intent not apparent from that language." (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571.)
Section 496, as amended by Proposition 47 (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 9, p. 72), makes it a misdemeanor to buy or receive "any property" known to have been stolen "if the value of the property does not exceed nine hundred fifty dollars" and the "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." (§ 496, subd. (a).)
The majority opinion nevertheless seems to suggest that, since a vehicle is personal property, a conviction of violating section 496d may fall within the ambit of section 490.2. (Maj. opn., p. 5, ante.) In doing so, it violates a cardinal rule of statutory interpretation by implicitly rewriting section 490.2 to conform to some assumed intent not apparent from its language.
The majority's opinion also makes the astounding, legally unsupportable claim that "[i]f a defendant buys or receives a vehicle with a value under $950, he must be charged under section 490.2 with a misdemeanor." (Maj. opn., p. 5, ante.) Here, the prosecutor chose to not charge defendant with theft. "It is well settled that the prosecuting authorities, exercising executive functions, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. [Citations.] This prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available arises from ' "the complex considerations necessary for the effective and efficient administration of law enforcement." ' [Citation.] The prosecution's authority in this regard is founded, among other things, on the principle of separation of powers . . . . [Citations.]" (People v. Birks (1998) 19 Cal.4th 108, 134.) Unless a prosecutorial charging decision is " 'based upon an unjustifiable standard such as race, religion, or other arbitrary classification[]' [citation]" (United States v. Batchelder (1979) 442 U.S. 114, 125, fn. 9), "whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. [Citations]." (Id. at p. 124.) "[W]hen an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. [Citations.]" (Id. at pp. 123-124.) Moreover, "there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements." (Id. at p. 125.) "The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. [Citations.]" (Ibid.; see People v. Wilkinson (2004) 33 Cal.4th 821, 838 ["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"].)
It is true that section 490.2 is a section listed in subdivisions (a) and (b) of section 1170.18 and that section 490.2 was added by Proposition 47. (See Voter Information Guide, Gen. Elec., supra, text of Prop. 47, § 8, p. 72.) But section 490.2 plainly applies to only theft offenses and differentiates petty theft from grand theft. Section 490.2, subdivision (a), 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, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more 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." (Italics added.)
A violation of section 496d is not a theft offense. (See § 484 [defining "theft"].) "[T]heft is not a lesser included offense of receiving stolen property. [Citation.]" (People v. Ceja (2010) 49 Cal.4th 1, 6 (Ceja).) This is not a situation where the defendant was convicted of both theft and receiving stolen property based on stealing and receiving the same property.
Section 496 codifies the narrow common law rule barring dual convictions of theft and receiving stolen property. (Ceja, supra, 49 Cal.4th 1, 5-6; see § 496, subd. (a) ["no person may be convicted both pursuant to this section and of the theft of the same property"].) "The rule against dual convictions was originally a creature of the common law, founded on the notion that it is 'logically impossible for a thief who has stolen an item of property to buy or receive that property from himself.' [Citation.]" (Ceja, supra, at pp. 4-5.) "[I]n cases of improper dual convictions," "California courts have consistently reversed the conviction on the receiving charge . . . ." (Id. at p. 3.) " '[T]heft or theft-related offenses and receiving stolen property are not mutually exclusive offenses; it is the theft or theft-related offense which has the preclusive effect. Thus, if the defendant is found to be the thief he cannot be convicted of receiving the same property, and where he is so convicted it is the receiving conviction which is improper. For this reason it is always the receiving conviction which cannot stand, regardless whether it is the lesser or the greater offense.' [Citation, italics added.]" (Id. at p. 6.) The rule against dual convictions does not mean, however, that "when the prosecution has charged only receiving, it must establish by affirmative proof that someone other than the defendant stole the property. [Citations]" (People v. Price (1991) 1 Cal.4th 324, 464.) --------
Here, defendant pleaded no contest to two counts of violating section 496d, and each plea of no contest constituted an admission of only the elements of the charged offense. (People v. French (2008) 43 Cal.4th 36, 50.) Even assuming the value of the stolen vehicle involved in each of defendant's violations of section 496d did not exceed $950, defendant has not made a prima facie showing that he would have been guilty of misdemeanor petty theft (§ 490.2) rather than a felony offense of buying or receiving a stolen motor vehicle (§ 496d) had Proposition 47 been in effect at the time of his offenses.
Since defendant has not shown that he is entitled to resentencing under the express language of section 1170.18, I would have addressed defendant's equal protection claims, including his conclusory assertion that, where the stolen property bought or received were vehicles valued at $950 or less, there is no rational basis for the differences in the statutory punishment applicable to persons convicted under section 496, which applies to "any property," and persons convicted under section 496d, which applies to any motor vehicle, trailer, special construction equipment, or vessel. "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).)
It is not disputed that "the Legislature is afforded considerable latitude in defining and setting the consequences of criminal offenses. [Citations.]" (Johnson, supra, 60 Cal.4th at p. 887.) Further, " '[w]hen conducting rational basis review, we must accept any gross generalizations and rough accommodations that the Legislature seems to have made.' [Citation.]" (Ibid.) "If a plausible basis exists for the [statutory] disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' [Citations.]" (Id. at p. 881; see Heller v. Doe by Doe (1993) 509 U.S. 312, 319, 333 (Heller).) A party mounting an equal protection challenge to legislation has the burden to "negative every conceivable basis" that might support the statutory distinctions. (See Heller, supra, at pp. 319-321; Johnson, supra, at p. 881; People v. Martinez (2016) 5 Cal.App.5th 234, 244.)
In this case, I would have found that defendant failed to carry his burden, and there is a plausible, rational basis for the challenged legislative distinctions. (See People v. Varner (2016) 3 Cal.App.5th 360, 367-370, review granted November 22, 2016, S237679.) I would have affirmed the trial court's order denying the petition for resentencing.
/s/_________
ELIA, J.