Opinion
E066983
09-28-2017
THE PEOPLE, Plaintiff and Respondent, v. GARY RICHARD POMARES, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Christen Somerville, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI702264) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Pursuant to a plea agreement, defendant Gary Richard Pomares pled guilty in 2007 to receiving a stolen vehicle (Pen. Code, § 496d, subd. (a) ; count 1). The court sentenced defendant to two years in state prison. After enactment of Proposition 47 (§ 1170.18), defendant filed a Proposition 47 application for reduction of his felony conviction to misdemeanor theft (§ 490.2). The trial court found him ineligible for relief and denied the application. Defendant appeals, arguing that the court erred in not reducing his felony conviction to misdemeanor theft. We affirm on the ground a section 496d, subdivision (a) conviction is not eligible for Proposition 47 relief.
Unless otherwise noted, all statutory references are to the Penal Code. --------
II
PROPOSITION 47 DOES NOT APPLY TO
A CONVICTION FOR RECEIVING A STOLEN VEHICLE
Defendant contends the trial court erred in denying his application for reduction of his felony conviction for receiving a stolen vehicle to a misdemeanor under Proposition 47. We disagree. A. Relevant Law
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.)
"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." (People v. 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." (Perkins, at pp. 136-137.) Where the offense of conviction is reclassified based on the value of stolen property, the defendant must present evidence showing the value of the property did not exceed $950. (Ibid.) B. Ineligibility for Proposition 47 Relief
Felony crimes reduced to misdemeanors by Proposition 47 include shoplifting where the property value does not exceed $950 (§ 459.5); petty theft, defined as theft of property where value of the money, labor, real or personal property taken does not exceed $950 (§ 490.2); and receiving stolen property where the property value does not exceed $950 (§ 496). (§ 1170.18, subd. (a).) Section 1170.18 does not list section 496d, subdivision (a) as eligible for Proposition 47 relief, and Proposition 47 did not amend section 496d, subdivision (a) to reduce the crime to a misdemeanor.
Defendant argues that his conviction should nevertheless be reduced to a misdemeanor under Proposition 47's new petty theft provision, section 490.2. Section 490.2 states that, notwithstanding any provision defining grand theft, the offense of obtaining property by theft, where the value of property at issue does not exceed $950, shall be considered petty theft and punished as a misdemeanor. (§ 490.2, subd. (a).) Defendant asserts that section 490.2 encompasses offenses that are not explicitly listed or modified by Proposition 47, such as section 496d, subdivision (a). Defendant acknowledges that the issue of whether Proposition 47 applies to the crime of receipt of a stolen vehicle (§ 496d, subd. (a)) is under review by the California Supreme Court.
We are not persuaded section 490.2 applies to the crime of receiving a stolen vehicle. A petty theft conviction under section 490.2, which is eligible for relief under Proposition 47, is a different type of crime than that of buying or receiving a stolen vehicle. (§ 496d.) This is likely why section 1170.18, subdivision (a), lists section 496 (receiving stolen property) separately as an offense eligible for reclassification, rather than including it under the petty theft statute, section 490.2. This suggests that Proposition 47 voters did not consider receiving stolen property as a form of theft.
The text and structure of Proposition 47 convey that section 490.2's clear purpose was to reduce punishment for crimes of "obtaining any property by theft" that were previously punished as "grand theft" when the stolen property was worth less than $950. A section 496d, subdivision (a) conviction is not for theft. It is for receiving stolen property. (People v. Romanowski (2017) 2 Cal.5th 903, 909, emphasis added.) Accordingly, "in light of section 490.2's language and its statutory context—which includes both the other statutory provisions that Proposition 47 enacted and previously existing features of the Penal Code—we conclude that the statute's unqualified references to 'obtaining any property by theft' and 'any . . . provision of law defining grand theft,'" are inapplicable to the crime of receiving a stolen vehicle. (Romanowski, at p. 910, § 490.2, subd. (a).) Therefore defendant is not statutorily eligible for relief under section 490.2.
Furthermore, the trial court properly denied defendant's application for relief because, even if our high court holds that a section 496d, subdivision (a) conviction qualifies under Proposition 47 for relief, defendant has failed to show that he was eligible for relief. "[A] petitioner for resentencing under Proposition 47 must establish his or her eligibility for such resentencing." (People v. Sherow, supra, 239 Cal.App.4th at p. 878.) Defendant has not met his burden of establishing that the value of the stolen vehicle did not exceed $950.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.