California Court of Appeal May 17, 2016 No. E063504AUnpublished
Filed 5/17/16 P. v. Smith CA4/2 Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E063504
v. (Super.Ct.No. FVI800708)
CHARLES AUSTIN SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy
Morton, Judge. Affirmed.
Coreen Ferrentino, 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, Assistant Attorney General, Barry Carlton and Sharon L.
Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
1
On November 4, 2014, the voters approved Proposition 47, The Safe
Neighborhoods and Schools Act (Proposition 47). Proposition 47 reduced certain
nonserious, nonviolent felonies to misdemeanors. Proposition 47 allows a person
convicted of a felony prior to its passage, who would have been guilty of a misdemeanor
offense “shall be considered petty theft and shall be punished as a misdemeanor,” except
in the case of certain violent or serious recidivists. (Ibid., italics added.)
Before Proposition 47, petty theft was defined in the negative, by what it was not.
Penal Code section 486 provides that all theft “is divided into two degrees, the first of
which is termed grand theft; the second, petty theft.” Grand theft was generally defined
as theft of property worth more than $950 (dollar-amount grand theft). (Pen. Code,
§ 487, subd. (a).) However, the Penal Code made exceptions to this dollar-amount
threshold for certain types of property (property-type grand theft). For example, theft of
$250 worth of avocados was grand theft (Pen. Code, § 487, subd. (b)(1)(A)), as was theft
of any automobile or firearm (Pen. Code, § 487, subd. (d)(1) [grand theft auto], (d)(2)
[firearm]). (See generally Pen. Code, §§ 487-487j [provisions defining grand theft].)
Penal Code section 488 defines petty theft as “theft in other cases.”
3
Section 490.2 expanded the offense of petty theft by defining it as any theft
involving property worth $950 or less. (§ 490.2, subd. (a) [“obtaining any property by
theft . . .”].) One effect of this expansion was to eliminate the preexisting property-type
grand theft offenses. Under the new definition of petty theft, the dollar-amount threshold
($950) is the deciding factor for whether a theft is grand or petty. (§ 490.2, subd. (a)
[$950 threshold applies “[n]otwithstanding” Penal Code section 487 or any other
provision of law defining grand theft].) In other words, the nature of the property no
longer matters for determining the degree of the theft, only the value of the property
matters. However, the new definition of petty theft in Section 490.2 impacts more than
just grand theft. Under Section 490.2, all thefts of any property worth $950 or less must
be considered petty thefts and must be punished as misdemeanors.
B. Section 490.2’s Application to Section 10851
Because Section 490.2 redefines and expands petty theft to encompass the act of
obtaining any low-value property ($950 or less) “by theft,” in my view the question of
whether Section 10851 convictions are affected by Proposition 47 comes down to
whether such convictions are “theft” convictions. According to the California Supreme
Court, they are when the conviction is based on the unlawful taking of a vehicle, as
opposed to the unlawful driving of a vehicle (commonly referred to as joyriding): “[A]
defendant convicted under section 10851(a) of unlawfully taking a vehicle with the intent
to permanently deprive the owner of possession has suffered a theft conviction.” (People
v. Garza (2005) 35 Cal.4th 866, 871, italics added.)
4
Recognizing that some violations of Section 10851 are thefts, the analysis is
straightforward. If all thefts are either grand or petty (Pen. Code, § 486) and, post-
Proposition 47, a vehicle theft is petty if it involves property worth $950 or less (§ 490.2),
then a theft violation of Section 10851 involving a vehicle worth $950 or less is now, by
definition, petty. After Proposition 47, when the People charge a felony theft violation of
Section 10851, Section 490.2 requires the prosecution to prove the vehicle was worth
more than $950 in order to obtain a felony conviction. Because a low-value vehicle theft
is now a misdemeanor (§ 490.2), Penal Code section 1170.18, which gives a petitioning
defendant the benefit of placing his felony conviction in the post-Proposition 47 world,1
allows defendants convicted of vehicle theft under Section 10851 to petition for
resentencing.
I interpret the language of Section 490.2 as both broad and clear. It broadly covers
all thefts and clearly mandates that thefts be considered petty if the property stolen is
worth $950 or less. Accordingly, if a petitioner can demonstrate his violation of Section
10851 was based on the theft of a vehicle worth $950 or less, he is eligible for
resentencing under Penal Code section 1170.18 in accordance with the misdemeanor
punishment provided in Section 490.2.
To conclude otherwise would create absurd results by eliminating Proposition 47’s
intended effect on low-value vehicle thefts. By explicitly referencing Penal Code section
1 Penal Code section 1170.18, subdivision (a), allows a defendant currently serving a sentence for a felony conviction to petition to have that felony reduced to a misdemeanor if he “would have been guilty of a misdemeanor under [Proposition 47] . . . had [it] been in effect at the time of the offense.” (Italics added.)
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487 in Section 490.2,2 the initiative’s drafters demonstrated they intended to reduce
vehicle theft to a misdemeanor if the vehicle is worth $950 or less. (See Pen. Code,
§ 487, subd. (d)(1) [offense commonly known as grand theft auto was a wobbler].) The
information on Proposition 47 in the official voter information guide underscores the
intent to reduce punishment for low-value vehicle theft. The Legislative Analyst
explained that theft of “certain property (such as cars)” could no longer be charged as
grand theft after the passage of Proposition 47, if the property was worth $950 or less.
(Voter Information Guide, Gen. Elec. (Nov. 4, 2014) p. 35, at
<http://www.vig.cdn.sos.ca.gov/2014/general/en/pdf/complete-vigr1.pdf> [as of April 27,
2016].) The intent to eliminate prosecutorial discretion regarding low-value vehicle
thefts will be nullified if the prosecution can ignore the mandate in Section 490.2 and
charge such thefts as felonies under Section 10851.
C. Opposing Arguments
The remainder of my concurrence addresses the arguments of the opposing view,
that Section 10851 convictions are categorically ineligible for resentencing under
Proposition 47. There seems to be five main arguments supporting this view.
The first argument is that vehicle thefts under Section 10851 are not affected by
the new definition of petty theft because Section 10851 is not explicitly mentioned in
Section 490.2’s opening clause. This clause provides that the new definition of petty
theft applies “[n]otwithstanding” any provision defining grand theft. (§ 490.2, subd. (a).)
Respectfully, I do not read this clause as a limiting provision. (Accord, Solis,
supra, 245 Cal.App.4th at p. 1108 [the opening clause of § 490.2 is a “nonrestrictive
phrase [that] does not limit the rest of the sentence, the plain language of section 490.2
stands on its own”].) In my view, the purpose of the opening clause is to clarify that the
new definition of petty theft abolishes the former property-type grand theft and replaces it
with dollar-amount grand theft. I read Section 490.2 as eliminating any previous
categorization of thefts, such that all theft offenses—regardless of whether the statute
setting out the offense identified it as grand, petty, or neither—must be considered petty
if the offense involves property worth $950 or less. This interpretation is supported by
the plain language of Section 490.2, subdivision (a), which clearly states that it applies to
the act of “obtaining any property by theft.” As Judge J. Richard Couzens and Presiding
Justice Tricia A. Bigelow observe in their treatise on Proposition 47, “[n]o effort was
made to include [in Section 490.2] every conceivable offense which may be classified as
theft.” (Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools
Act” (Feb. 2016) p. 121, at <http://www.courts.ca.gov/documents/Prop-47-
Information.pdf> [as of April 27, 2016].)
7
Furthermore, if the opening clause functioned as a limiting provision, Section
490.2 would redefine only grand theft (as opposed to redefining petty theft) and
subdivision (b) of Section 490.2 would not make sense. Section 490.2, subdivision (b),
states: “This section shall not be applicable to any theft that may be charged as an
infraction pursuant to any other provision of law.” This subdivision indicates Section
490.2 is intended to apply to more than just grand theft. Otherwise, there would be no
reason to clarify that Section 490.2 does not apply to thefts that can be charged as
infractions, as grand thefts never can be charged as infractions. (Pen. Code, § 489.)
2. Offenses listed in Penal Code section 1170.18
The second argument is that Section 10851 is not affected by Proposition 47
because the offense is not listed in Penal Code section 1170.18, the resentencing
provision. Penal Code section 1170.18, subdivision (a), allows defendants to petition for
misdemeanor resentencing under Proposition 47 “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.” The sections listed in this subdivision are all those that
contain Proposition 47’s new sentencing provisions. Not included in this list are the
myriad offenses affected by these new sentencing provisions, such as grand theft (Pen.
Code, § 487), second degree robbery (Pen. Code, § 459), forgery (Pen. Code, § 476), as
well as vehicle theft (§ 10851). The list is not intended to contain every offense affected
by Proposition 47, it contains only the provisions that set forth punishment. Thus, the
fact that Section 10851 (or Pen. Code, §§ 459 or 476 for that matter) is not listed in Penal
8
Code section 1170.18 does not indicate Proposition 47 did not reclassify the offense as
misdemeanor (when the value of the vehicle is $950 or less).
3. No direct amendment to Section 10851
The third argument is that Proposition 47 did not directly amend Section 10851.
This argument posits that because Proposition 47 left the wobbler punishment language
in Section 10851 intact, the voters intended to allow the prosecution to retain its
discretion to charge those offenses as felonies. (§ 10851, subd. (a) [violations of this
subdivision are punishable as either a misdemeanor or felony].)
While it is generally true our penal provisions afford the prosecution discretion to
charge a defendant under the offense carrying the highest punishment, Proposition 47
was enacted for the specific purpose of removing prosecutorial discretion with regard to
punishing certain nonserious offenses. (Voter Information Guide, Gen. Elec., supra, text
of Prop. 47, §§ 2-3, p. 70 [overall purpose of the initiative was to “ensure that prison
spending is focused on violent and serious offenses” by “[r]equir[ing] misdemeanors
instead of felonies for nonserious, nonviolent crimes like petty theft and drug
possession”], italics added.) To achieve this purpose, Section 490.2 removed
prosecutorial charging discretion for low-value property thefts. (See § 490.2, subd. (a)
[all thefts of property worth $950 or less “shall be considered petty theft”].)
This prosecutorial discretion argument underscores the importance of my point
about creating absurd results. As noted above, it is clear the voters intended to remove
prosecutorial discretion to charge low-value vehicle thefts as felonies under Penal Code
section 487. (See § 490.2, subd. (a) [explicitly referencing Pen. Code, § 487].) The
9
voters would not go through the trouble of enacting Section 490.2 for that purpose if the
prosecution could simply charge the same offenses (low-value vehicle thefts) as felonies
under a different penal provision. (§ 10851.) In order to effectuate the clear intent of
Section 490.2 as well as Proposition 47’s goal of reducing prison spending for low-value
vehicle thefts, we must apply it to both Penal Code section 487 and Section 10851.
4. Maxim against surplusage
The recent case of Solis, supra, 245 Cal.App.4th 1099 raised two more arguments
in support of Section 10851’s ineligibility. The majority in Solis interpreted the plain
language of Section 490.2 (correctly, in my view) as broad enough to encompass thefts
under Section 10851. (Solis, supra, at pp. 1108, 1110-1111 [conceding that,
grammatically and conceptually, § 490.2 could apply to thefts under § 10851].)
However, the majority ultimately concluded such violations are categorically ineligible
for resentencing based on the maxim of statutory construction advising against “a
construction that renders a word surplusage.” (Solis, supra, at pp. 1110-1111, citing
Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) Applying this maxim, the
majority reasoned that the inclusion of Section 10851 alongside “grand theft” and “petty
theft” in Penal Code section 666 (the provision increasing the punishment for petty theft
with a prior for certain offenders) is “a significant indication that the voters did not
consider Section 10851 a variety of petty theft.” (Solis, supra, at p. 1110.) The majority
explained that if the initiative drafters considered violations of Section 10851 a “species
of petty theft—a term they defined in section eight (adding § 490.2)—there would have
10
been no need to designate it as a separate predicate in section 10 (amending Pen. Code,
§ 666).” (Solis, supra, at p. 1110.)
Like the author of the concurring opinion in Solis, I disagree with this argument.
(Solis, supra, 245 Cal.App.4th at p. 1114 (conc. opn. of Aldrich, J.).) The reference to
“auto theft under Section 10851” in Penal Code section 666 is not rendered surplus to
“petty theft” simply because some auto thefts under Section 10851, subdivision (a)
constitute petty thefts under Proposition 47. The offense remains listed in Penal Code
section 666 to cover the thefts under Section 10851 that do not constitute petty thefts
under Section 490.2, such as thefts of vehicles worth more than $950 in violation of
Section 10851, subdivision (a), and thefts of the specialized vehicles described in Section
10851, subdivision (b).3
Furthermore, the maxim against surplusage is simply a discretionary guideline to
aid in ascertaining the meaning of the statute. Interpretive maxims should not be rigidly
employed if doing so would contravene the plain meaning of an unambiguous statute like
Section 490.2. (See, e.g., Mejia v. Reed (2003) 31 Cal.4th 657, 663 [“When the plain
meaning of the statutory text is insufficient to resolve the question of its interpretation,
the courts may turn to rules or maxims of construction ‘which serve as aids in the sense
that they express familiar insights about conventional language usage’ ”], italics added.)
3 Under Section 10851, subdivision (b), it is a felony to steal ambulances, distinctively marked law enforcement or fire department vehicles on emergency calls, and vehicles that have been modified for the use of a disabled veteran or any other disabled person and display a distinguishing placard or plate.
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5. Maxim of general versus specific
The majority in Solis also relies on the general/specific interpretive maxim to
explain why the broad language of Section 490.2 does not apply to Section 10851. The
majority concludes the latter section is a more specific offense than the former and “in
the event a broader law conflicts with a specific one, the specific controls.” (Solis, supra,
245 Cal.App.4th at p. 1111.)
I do not think application of this maxim is appropriate in this context because I do
not agree that vehicle thefts under Section 10851, subdivision (a) are more specific
offenses than the offenses Section 490.2 covers. Section 490.2 applies to the specific
487”].) Section 10851, subdivision (a), “proscribes a wide range of conduct” (People v.
Jaramillo (1976) 16 Cal.3d 752, 759), including vehicle theft (People v. Garza, supra, 35
Cal.4th at p. 871). To the extent a violation of Section 10851, subdivision (a) is based on
a vehicle theft (as opposed to joyriding), Section 490.2 applies to that specific conduct by
mandating misdemeanor punishment if the stolen vehicle is worth $950 or less. Because
Section 490.2 and Section 10851, subdivision (a) cover the same conduct, the
specific/general interpretive canon is unhelpful in the context of those two provisions.
(See Mejia v. Reed, supra, 31 Cal.4th at p. 666 [concluding the specific/general canon
“offer[ed] no assistance” where each statute was “at least as specific” as the other].)
The concurring opinion in Solis points to subdivisions (b) and (e) of Section 10851
to demonstrate that it is a more specific provision than Section 490.2. The concurring
opinion concludes that because these subdivisions conflict with Section 490.2, the new
12
definition of petty theft is not intended to apply to Section 10851. (Solis, supra, 245
Cal.App.4th at pp. 1116-1118 (conc. opn. of Aldrich, J.).) I agree that Section 10851,
subdivisions (b) and (e) are more specific provisions. Where I part ways with the
concurring opinion in Solis is on whether that is a reason for concluding Section 490.2
does not apply to Section 10851, subdivision (a). I interpret Section 490.2 to work in
harmony with the other subdivisions of Section 10851. The new definition of petty theft
simply carves out a distinct offense from subdivision (a) of Section 10851, and leaves the
remainder of the provision intact.
As noted above, subdivision (b) of Section 10851 prescribes felony punishment
for the offense of taking or unlawfully driving specialized vehicles under certain
circumstances. The Solis concurring opinion finds potential for conflict where a
defendant steals a specialized vehicle described in Section 10851, subdivision (b), worth
$950 or less because that defendant would be “sentenced only as a misdemeanant, rather
than to the two-, three-, or four-year term specified by subdivision (b).” (Solis, supra,
245 Cal.App.4th at p. 1118 (conc. opn. of Aldrich, J.).) I disagree the defendant in that
circumstance would be punished as a misdemeanant. Proposition 47’s new definition of
petty theft does not apply to violations of Section 10851, subdivision (b) because those
offenses are more specific (by virtue of the special nature of the vehicles) and more
serious (by virtue of the felony punishment). If the drafters intended Proposition 47 to
apply to those offenses, they would have made that intention clear. In the hypothetical
the Solis concurrence poses, the defendant would still receive felony punishment.
Moreover, even if Section 490.2 did apply to other subdivisions of Section 10851 (and I
13
do not think it does), it is difficult to imagine any of the specialized vehicles described in
Section 10851, subdivision (b) having a value of $950 or less.
Section 10851, subdivision (e), provides that recidivists are punishable as set forth
in Penal Code section 666.5. Under these two provisions, a defendant who is convicted
of a felony violation of Section 10851 and who has previously been convicted of the
same offense, must be punished under Penal Code section 1170, subdivision (h) for two,
three, or four years. (§ 10851; Pen. Code, § 666.5.) The Solis concurring opinion finds
potential for conflict where “[a] recidivist who stole a vehicle worth less than $950 could
not be punished for his or her recidivism,” because “under [Penal Code] section 666.5
both the current and prior crimes must be felonies.” (Solis, supra, 245 Cal.App.4th at
p. 1118 (conc. opn. of Aldrich, J.).) I do not see how this creates a conflict of law.
Section 10851, subdivision (a) is a wobbler offense, which means that even before
Proposition 47, a recidivist could be convicted of a misdemeanor violation of that
subdivision and therefore not qualify for sentencing under Penal Code section 666.5. All
Section 490.2 does is mandate misdemeanor punishment for low-value vehicle thefts
where previously the prosecution had discretion whether to charge that offense as a
misdemeanor.
I therefore disagree that Section 490.2 conflicts with any subdivisions of Section
10851.
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D. Voters’ Intent
Finally, even assuming the language of Section 490.2 is ambiguous as to its
application to Section 10851, I reach the same eligibility conclusion when I look beyond
the words of the provision to the voters’ intent. (See People v. Rizo, supra, 22 Cal.4th at
p. 685 [when the language of an initiative is ambiguous, courts may look to “ ‘other
indicia of the voters’ intent’ ” to determine the initiative’s meaning].) Proposition 47’s
overall purpose is to “ensure that prison spending is focused on violent and serious
offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the
savings generated from this act into prevention and support programs in K-12 schools,
victim services, and mental health and drug treatment.” (Voter Information Guide, Gen.
Elec., supra, text of Prop. 47, § 2, at p. 70.) To achieve that end, the measure
“[r]equire[s] misdemeanors instead of felonies for nonserious, nonviolent crimes like
petty theft.” (Id., § 3, at p. 70.) Furthermore, the measure is to be “broadly construed to
accomplish its purposes.” (Id., §§ 15, 18, at p. 74.) A broad construction of Section
490.2 would apply the new definition of petty theft to all vehicle thefts where the vehicle
is worth $950 or less, not just vehicle thefts under Penal Code section 487, subdivision
(d)(1).
I therefore conclude theft convictions under Section 10851, subdivision (a) qualify
for misdemeanor resentencing if the petitioner can demonstrate the stolen vehicle was
worth $950 or less. If defendant files a new petition, he should submit information or
evidence tending to show the vehicle he attempted to steal was worth $950 or less.
(People v. Perkins, supra, 244 Cal.App.4th at pp. 136-137.) Such evidence could include
15
a copy of the probation report or a police report, the vehicle’s Kelly Blue Book value, or
a declaration under penalty of perjury regarding the vehicle’s value. (Id. at p. 140;
People v. Sherow, supra, 239 Cal.App.4th at p. 881.)
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for resentencing because he failed to meet his burden of alleging sufficient facts to establish eligibility for relief under Proposition 47.
Issues
Whether a conviction for attempted violation of Vehicle Code section 10851 qualifies as a theft offense under Proposition 47.
Whether the omission of Vehicle Code section 10851 from Proposition 47 violates equal protection.
Whether the trial court was required to hold a hearing and secure the defendant's presence to determine eligibility for resentencing.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“I affirm the denial of defendant’s Petition because he failed to meet his burden in the trial court of alleging facts that he was eligible for resentencing under Proposition 47.”
“The petitioner has the burden of establishing eligibility for relief under Penal Code section 1170.18.”