Opinion
E065031
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER MELVIN SWANK, Defendant and Appellant.
William G. Holzer, 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, Senior Assistant Attorney General, and Barry Carlton and Sabrina Y. Lane-Erwin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1313959) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. William G. Holzer, 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, Senior Assistant Attorney General, and Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
In 2014, petitioner Christopher Melvin Swank (defendant) was convicted of multiple felonies, including unlawful taking or driving of a vehicle, as a recidivist (Pen. Code, § 666.5, subd. (a)); Veh. Code, § 10851, subd. (a)), and receiving a stolen vehicle, as a recidivist (Pen. Code, §§ 496d, subd. (a)), 666.5, subd. (a)). In 2015, the trial court ruled that Proposition 47 does not authorize resentencing for these two offenses.
Defendant appeals. We agree with the trial court — Proposition 47 does not authorize resentencing for either of these two offenses. Accordingly, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2014, defendant pleaded guilty to:
Count 1: Unlawful taking or driving of a vehicle as a recidivist. (Pen. Code, § 666.5, subd. (a)); Veh. Code, § 10851, subd. (a)).
Count 2: Possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a)).
Count 3: Receiving a stolen vehicle as a recidivist. (Pen. Code, §§ 496d, subd. (a), 666.5, subd. (a)).
He admitted four 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) and two strike priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). However, the trial court struck two of the prior prison term enhancements. It sentenced defendant to a total of seven years four months in prison.
On November 5, 2014, Proposition 47 went into effect. (See People v. Esparza (2015) 242 Cal.App.4th 726, 735.)
On November 26, 2014, defendant filed a petition for resentencing pursuant to Proposition 47. The form petition provided boxes to be checked to indicate the crime or crimes on which resentencing was sought. The only one checked was "Health and Safety Code §11377(a)." Another box was available to state, "Defendant believes the value of the check or property does not exceed $950. (Penal Code offenses only)." This was not checked.
The People filed a response stating that defendant was entitled to be resentenced on count 2, but not on count 1 or count 3.
The trial court, without a hearing, granted resentencing on count 2, but it denied resentencing on counts 1 and 3. It explained, "666.5 is not a qualifying felony." It reduced defendant's total sentence to six years.
II
PROPOSITION 47 DOES NOT AUTHORIZE RESENTENCING
FOR UNLAWFUL TAKING OR DRIVING OF A VEHICLE
OR FOR RECEIVING A STOLEN VEHICLE
Defendant contends that count 1 and count 3, as theft-related offenses, were eligible for resentencing under Proposition 47.
A. Forfeiture.
Preliminarily, we questioned whether defendant forfeited this contention by failing to raise it below. His petition did not actually request resentencing him on count 1 or count 3. Of all the boxes available to indicate the crime or crimes on which he was seeking resentencing, he checked only one — the one for simple possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). Moreover, if he was seeking resentencing for any theft-related crime, he needed to check the box to indicate that the value of the property involved was $950 or less. He did not do so.
Nevertheless, the People affirmatively asserted that defendant was not eligible for resentencing on counts 1 and 3, and the trial court affirmatively agreed. The rationale for requiring an appellant to have raised an issue below is to give the trial court an opportunity to correct the error. (People v. Scott (1994) 9 Cal.4th 331, 351.) However, when, as here, the trial court has raised and considered the issue on its own motion, it has had the necessary opportunity; therefore the party aggrieved can appropriately raise the issue on appeal. (See People v. Stitely (2005) 35 Cal.4th 514, 537, fn. 12.)
We therefore turn to the merits.
B. Legal Background.
Proposition 47 reduced certain theft-related offenses — provided they involve property worth $950 or less — as well as certain drug-related offenses from felonies (or wobblers) to misdemeanors. (Couzens & Bigelow, Proposition 47: "The Safe Neighborhoods and Schools Act" (May 2016 rev. ed.) pp. 24-28.)
Available at <http://www.courts.ca.gov/documents/Prop-47-Information.pdf>, as of January 25, 2017.
Thus, it amended Health and Safety Code section 11377, subdivision (a) so as to provide that, absent a disqualifying prior conviction, simple possession of methamphetamine is a misdemeanor. It also amended Penal Code section 496, subdivision (a) so as to provide that, absent a disqualifying prior conviction, receiving stolen property is a misdemeanor.
In addition, Proposition 47 enacted Penal Code section 490.2, defining petty theft. As relevant here, it 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 . . . ."
Proposition 47 allows a person serving a sentence for a felony that would only be a misdemeanor under Proposition 47 to petition for resentencing. Specifically, it enacted Penal Code section 1170.18, which, as relevant here, provides:
"(a) A person currently serving a sentence for a conviction . . . of a felony or felonies 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.
"(b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced 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, those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety."
C. Application Here.
Penal Code section 666.5 does not define a crime. Rather, it is an alternate penalty provision. (See generally People v. Jefferson (1999) 21 Cal.4th 86, 101.) It lists a number of felonies generally related to (though not necessarily requiring) vehicle theft; these specifically include unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851 and receiving a stolen vehicle in violation of Penal Code section 496d. It then provides that, if a person "is . . . convicted of any of these offenses," and if that person "ha[s] been previously convicted" for any of those offenses, the current offense is a wobbler punishable by up to four years in prison.
1. Unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)).
Here, in count 1, defendant was convicted of unlawful taking or driving of a vehicle under Vehicle Code section 10851, a felony. Proposition 47 did not amend Vehicle Code section 10851. Hence, today, he would still be guilty of the same felony; he would not be guilty of a misdemeanor.
Defendant relies on Penal Code section 490.2. He argues that unlawful taking or driving is "obtaining . . . property by theft" and therefore petty theft. However, Penal Code section 490.2 starts with the words, "[n]otwithstanding Section 487 or any other provision of law defining grand theft . . . ." Vehicle Code section 10851 is not a provision of law defining grand theft. Thus, Penal Code section 490.2 does not purport to apply notwithstanding Vehicle Code section 10851.
In addition, unlawful taking or driving of a vehicle does not necessarily constitute obtaining property by theft. (People v. Montoya (2004) 33 Cal.4th 1031, 1034, fn. 2.) It can be committed by driving without taking. (People v. Frye (1994) 28 Cal.App.4th 1080, 1086.) Moreover, theft requires the intent to permanently deprive, whereas unlawful taking or driving can be committed with the intent to temporarily deprive. (People v. Thomas (1962) 58 Cal.2d 121, 126, overruled on other grounds in People v. Barrick (1982) 33 Cal.3d 115, 135.) Thus, unlawful taking or driving of a vehicle remains a viable distinct felony.
Defendant asks us to consider certain legislative history materials. However, when, as here, a statute is not ambiguous, it is unnecessary to resort to its legislative history. (People v. Maultsby (2012) 53 Cal.4th 296, 300, fn. 3.)
In any event, the legislative history materials do not support defendant's position. The ballot pamphlet told voters:
"This measure reduces certain nonserious and nonviolent property and drug offenses from wobblers or felonies to misdemeanors. . . . Specifically, the measure reduces the penalties for . . . :
"Grand Theft. Under current law, theft of property worth $950 or less is often charged as petty theft, which is a misdemeanor or an infraction. However, such crimes can sometimes be charged as grand theft, which is generally a wobbler. For example, a wobbler charge can occur if the crime involves the theft of certain property (such as cars) or if the offender has previously committed certain theft-related crimes. This measure would limit when theft of property of $950 or less can be charged as grand theft. Specifically, such crimes would no longer be charged as grand theft solely because of the type of property involved or because the defendant had previously committed certain theft-related crimes." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014) analysis of Prop. 47 by Legis. Analyst, p. 35, italics added.)
Available at <http://vig.cdn.sos.ca.gov/2014/general/en/pdf/proposition-47-title-summary-analysis.pdf>, as of January 25, 2017. --------
Once again, however, unlawful taking or driving of a vehicle is not the same as grand theft. Defendant was not charged with grand theft "solely because of the type of property involved"; he was not charged with grand theft at all.
Defendant points out that unlawful taking or driving of a vehicle is a nonserious, nonviolent crime. Also, according to the argument in favor of Proposition 47, its enactment would (1) "focus[] law enforcement dollars on violent and serious crime," (2) "[s]top[] wasting money on warehousing people in prisons for nonviolent petty crimes, and (3) stop "incarcerating too many people convicted of low-level, nonviolent offenses." (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), supra, Argument in Favor of Proposition 47, p. 38.) However, the ballot pamphlet made it clear that Proposition 47 reduced only "certain nonserious and nonviolent" felonies to misdemeanors — not all.
One recently published case has held that Proposition 47 does not authorize resentencing for unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851. (People v. Sauceda (2016) 3 Cal.App.5th 635, 642-652, review granted Nov. 30., 2016 (S237975).) Because the Supreme Court has granted review in Sauceda, we have not simply treated it as controlling and followed it; we have analyzed the issue independently instead. However, having done so, we find Sauceda to be highly persuasive, and we agree with its reasoning. (See Cal. Rules of Court, rule 8.1115(e)(1).)
We therefore conclude that Proposition 47 does not authorize resentencing for unlawful taking or driving of a vehicle in violation of Vehicle Code section 10851.
2. Receiving a stolen vehicle (Pen. Code, § 496d ).
Our analysis of count 3, though not identical, is similar.
In count 3, defendant was convicted of receiving a stolen vehicle in violation of Penal Code section 496d, a felony. Proposition 47 did not amend Penal Code section 496d. Hence, today, defendant would still be guilty of the same felony.
Again, Penal Code section 490.2 does not subsume Penal Code section 496d, for three reasons. First, Penal Code section 490.2 does not provide that it applies "notwithstanding" Penal Code section 496d. Second, Penal Code section 496d is not a "provision of law defining grand theft." And third, a defendant can receive a stolen vehicle without necessarily committing theft at all.
Defendant does not argue that by reducing receiving stolen property (Pen. Code, § 496, subd. (a)) to a misdemeanor, Proposition 47 necessarily also reduces receiving a stolen vehicle (Pen. Code, § 496d) to a misdemeanor. He also does not argue that treating receiving stolen property differently from receiving a stolen vehicle violates equal protection. We deem these contentions waived and we express no opinion on them.
Recently, this court held that Proposition 47 does not authorize resentencing for receiving a stolen vehicle in violation of Penal Code section 496d. (People v. Varner (2016) 3 Cal.App.5th 360, 366-367, review granted Nov. 22, 2016 (S237679).) Once again, while the Supreme Court has granted review in Varner, we find it persuasive and we adhere to it.
We therefore conclude that Proposition 47 does not authorize resentencing for receiving a stolen vehicle in violation of Penal Code section 496d.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. I concur: CODRINGTON
J.
MILLER, J., Dissenting and Concurring
I respectfully dissent to that part of the majority opinion finding that Proposition 47 does not apply to all convictions under Vehicle Code section 10851. Some convictions of Vehicle Code section 10851 constitute theft offenses. (People v. Garza (2005) 35 Cal.4th 866, 881.) Assuming that a defendant takes a vehicle with the intent to permanently deprive the owner of the vehicle and it is valued under $950, such violation would constitute a violation of Penal Code section 490.2, petty theft, which was added by Proposition 47. Under Proposition 47, defendant was entitled to prove he would have been guilty of a misdemeanor violation of Vehicle Code section 10851.
I concur in the result that defendant's petition to recall his sentence was properly denied by the trial court as defendant failed to meet his burden of establishing the vehicle he took was valued under $950, and that he intended to permanently deprive the owner of the vehicle.
MILLER
J.