Opinion
H043788
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY WISDOM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. No. F13888)
Defendant Mark Anthony Wisdom appeals from an order denying his petition for redesignation of his 2006 felony convictions as misdemeanors under Penal Code section 1170.18, which was enacted pursuant to Proposition 47, the Safe Neighborhoods and Schools Act, at the November 4, 2014 election. Defendant's convictions were based on his no contest plea to possession of two motorcycles in violation of section 496d. Defendant contends that his offenses were eligible for reduction to misdemeanors because the value of each of the two motorcycles was less than $950. He further contends that the order violated his constitutional right to equal protection because theft of a vehicle worth less than $950 (§ 487) and receiving other kinds of stolen property worth less than $950 (§ 496, subd. (a)), may be deemed only a misdemeanor. We conclude that a conviction under section 496d does not qualify for reduction under Proposition 47, nor does it offend the principles of equal protection to treat receiving a stolen vehicle differently from theft of that vehicle or from receiving other kinds of property.
All further statutory references are to the Penal Code except as otherwise indicated.
These issues are currently under review before the California Supreme Court in People v. Varner (2016) 3 Cal.App.5th 360, review granted November 22, 2016, S237679; People v. Nichols (2016) 244 Cal.App.4th 681, review granted April 20, 2016, S233055; People v. Peacock (2015) 242 Cal.App.4th 708, review granted February 17, 2016, S230948; People v. Woodard (Oct. 27, 2016, H042506) [nonpub. opn.], review granted January 11, 2017, S238782; and People v. Garness (2015) 241 Cal.App.4th 1370, review granted January 27, 2016, S231031. --------
Background
On August 17, 2006, defendant was found in possession of two stolen motorcycles. On November 9, 2006, defendant pleaded no contest to two counts of receiving a stolen motor vehicle, in violation of section 496d, subdivision (a). In exchange, five additional charges in the complaint were dismissed. Defendant was placed on formal probation for three years and ordered to serve 180 days in county jail. Restitution to the owner of the first motorcycle was ordered at $789.13; to the second owner, restitution was set at $504.40.
On April 13, 2016, defendant filed a petition requesting the redesignation of those convictions as misdemeanors under section 1170.18. On July 21, 2016, the trial court denied the petition. Defendant then filed this timely appeal.
Discussion
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 those 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."
Defendant contends that section 1170.18 "applies expansively and without limitation" to those who would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of the offense. He acknowledges that Proposition 47 did not list section 496d among the offenses eligible for reduction; he points out, however, that the initiative did reduce the "parallel crime[s]" of receiving stolen property under section 496, subdivision (a), and theft of a vehicle worth $950 or less, under section 490.2. In this case, defendant argues, his felony convictions should be reduced to a misdemeanor under section 496, the statute defining receiving stolen property. In his view, it is the value of the property that is the "key factor in determining the offense eligible for resentencing." Consequently, "[t]here is no reason to believe that the voters intended to exclude vehicles worth less than $950 from the exceptionally broad category of 'any property.' " Further comparing his crime to vehicle theft under section 490.2, defendant finds it "implausible that the voters, who expressly reduced the punishment for stealing a low-value car to a misdemeanor, meant to leave the crime of receiving the same stolen car a felony." Had the voters intended otherwise, appellant argues, prosecutors would be encouraged to pursue felony convictions by charging offenses as receiving a stolen vehicle rather than vehicle theft.
We disagree with defendant's overly broad interpretation of section 1170.18. The statute was specific in naming the offenses eligible for reduction; section 496 was among them, while section 496d was not. In construing voter initiatives as well as legislative enactments, we give the words "their ordinary meaning and [interpret] this language in the context of the statute and initiative as a whole. If the language 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 at p. 571, 571 (Pearson).) Also relevant here is the maxim expressio unius est exclusio alterius: "The expression of some things in a statute necessarily means the exclusion of other things not expressed." (Gikas v. Zolin (1993) 6 Cal.4th 841, 852.) Under that maxim, where the Legislature expressly includes certain criminal offenses in a statute, the Legislature is presumed to have intended to exclude offenses that were not mentioned.
Since section 1170.18 specifically enumerates the theft-related offenses it encompasses (§§ 459.5, 473, 476a, 490.2, 496, & 666), we infer that the intent of the voters was to exclude theft-related offenses not mentioned in the statute from redesignation under Proposition 47. (Cf. People v. Sanchez (1997) 52 Cal.App.4th 997, 1002 ["that section 290.2 specifically includes some attempted crimes, but not others, and specifically enumerates one specific type of attempted murder but not others . . . leads to the conclusion that the intent of the Legislature was to include only the expressly enumerated offenses and attempted offenses"].) As the crime of receiving a stolen motor vehicle is specifically defined in a section 496d, which is not mentioned in section 1170.18, a violation of section 496d is excluded from redesignation under Proposition 47. " '[T]he voters should get what they enacted, not more and not less.' [Citation.]" (Pearson, supra, 48 Cal.4th at p. 571.)
We must also reject defendant's further argument that his constitutional rights to equal protection have been infringed. Defendant contends that the offender who receives a low-value stolen vehicle is similarly situated to one who steals that same vehicle or receives other kinds of stolen property; thus, the first cannot be treated more harshly without violating the equal protection clauses of the United States and California constitutions. (U.S. Const., 14th Amend; Cal. Const., art. I, § 7.) He maintains that whether under strict scrutiny or the rational basis standard of standard of review, there is no reason to treat these two offenders differently by imposing felony punishment on only the section 496d offender.
As defendant anticipates, the rational basis test is applicable here. "A defendant . . . 'does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.' [Citations.]" (People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson).) Consequently, even if defendant arguably is similarly situated to the offender who violates section 490.2 or section 496, "[w]here, 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." ' [Citations.]" (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)
Defendant cannot make this showing with respect to either vehicle theft covered by section 490.2 or receiving other stolen property worth $950 or less under section 496, subdivision (a). There are plausible reasons for the alleged disparity in excluding a conviction under section 496d from redesignation under section 1170.18 where the value of the stolen motor vehicle was $950 or less. One reason is that the owners of motor vehicles are often dependent on their vehicles for transportation to work and school and for obtaining the necessities of life, more so than other forms of stolen property. Thus, the offense of buying or receiving a stolen motor vehicle may have greater consequences for the victims than other theft-related offenses, consequences that go beyond the theft of the vehicle.
Another reason that is particularly applicable to section 496d violations is that stolen vehicles may be sold for parts in "chop shops," which may increase their worth. Targeting that type of criminal enterprise was in part the Legislature's intent in enacting section 496d, as indicated in the legislative history. The bill's author proposed that section 496d be added " 'to the Penal Code to encompass only motor vehicles related to the receiving of stolen property.' " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.) Section 496d was described as " 'provid [ing] additional tools to law enforcement for utilization in combating vehicle theft and prosecuting vehicle thieves. Incarcerating vehicle thieves provides safer streets and saves Californians millions of dollars. These proposals target persons involved in the business of vehicle theft and would identify persons having prior felony convictions for the receiving of stolen vehicles for enhanced sentences.' " (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 2390 (1997-1998 Reg. Sess.) as amended June 23, 1998.)
Another plausible reason for excluding a section 496d conviction from reduction to a misdemeanor under Proposition 47 is to maintain prosecutorial discretion to charge a section 496d offense as a felony or a misdemeanor. As our Supreme Court has observed, "[N]umerous factors properly may enter into a prosecutor's decision to charge under one statute and not another, such as a defendant's background and the severity of the crime, and so long as there is no showing that a defendant 'has been singled out deliberately for prosecution on the basis of some invidious criterion,' that is, ' "one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests [,]" ' the defendant cannot make out an equal protection violation. [Citation.]" (Wilkinson, supra, 33 Cal.4th at pp. 838-839.)
Thus, because there are plausible reasons for distinguishing between purchase or receipt of stolen vehicles under section 496d, subdivision (a), and the purchase or receipt of stolen property under section 496, subdivision (a), defendant has not shown that the denial of his petition violated his right to equal protection of the laws.
Disposition
The order is affirmed.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.