On appeal, defendant claimed the trial court erroneously ignored his pretrial request to act in propria persona. He also contended that he received an unauthorized sentence, asserting that the trial court should have designated both of his felony convictions as misdemeanors and sentenced him accordingly, because the statutes on which these convictions are
The Supreme Court subsequently decided People v. Page (2017)
FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying the convictions are for the most part not pertinent to this appeal. The vehicle at issue in the two felony counts is a 1996 Pontiac Grand Am, the owner of which had given only his mother permission to use it. The car disappeared in December 2014 while in her possession without her permission. Of particular significance in light of Page , defendant was stopped while driving the car without license plates a week later, at which time he claimed to have received it from a third party. He reiterated this claim at trial. No evidence connected defendant directly with the taking of the car. At trial, the arresting officer never assigned a specific value to the car, but agreed with an assessment of it on a California Highway Patrol (CHP) form that it was low in value, within a range of $301 to $4,000 (the trial court excluding the form itself as hearsay).
DISCUSSION
2.0 The Vehicle Code Offense Must Be Tried with Correct Instructions, but Receipt of a Stolen Vehicle Is Not Subject to Misdemeanor Treatment
In November 2014, the electorate enacted the Safe Neighborhoods and Schools Act (Proposition 47), which redesignated a number of offenses as misdemeanors, and provided a procedure in section 1170.18 for retrospective comparable relief for defendants who were serving or had completed a sentence for a previous conviction that would have been a misdemeanor "had this act been in effect at the time of the offense." ( § 1170.18, subds. (a), (f) ; People v. Johnston (2016)
Johnston noted this proposition "prospectively reduced three specific drug possession offenses to misdemeanors ( Health & Saf. Code, §§ 11350, 11357, 11377 ), as well as forging or writing bad checks ( Pen. Code, §§ 473, 476a ), receiving stolen property (§ 496), and petty theft. It accomplished the latter with the addition of section 490.2" (which in subdivision (a) declares that obtaining any property worth $950 or less is a petty theft punishable as a misdemeanor), and "additionally amended section 666 (also called 'petty theft with a prior') to allow wobbler punishment for recidivists who are otherwise disqualified from the reach of the initiative. Finally, it added the new misdemeanor of 'shoplifting' (§ 459.5). (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Official Title and Summary of Prop. 47, p. 34 (2014 Voter Guide); see also id ., text of Prop. 47, §§ 5-13, pp. 71-73.)" ( Johnston , supra , 247 Cal.App.4th at pp. 255-256.)
Neither section 496d nor Vehicle Code section 10851 is included among the statutes that Proposition 47 amended. The trial court therefore remarked more than once during these proceedings that the proposition did not have any effect on these counts, a point that counsel conceded at sentencing (while remarking "it's really, really, really close" to the types of offenses covered, and the voters "had exactly Mr. Bussey in mind"). Defendant now asserts we should include these two statutes within the ambit of Proposition 47. We agree in part in light of Page , supra ,
Page involved a petition pursuant to section 1170.18 from a defendant serving a sentence for a conviction antedating Proposition 47 for unlawful taking or driving of a vehicle, which sought to reduce the conviction to a misdemeanor and to resentence the defendant. ( Page , supra ,
In the present case, on the other hand, we are dealing with a trial for unlawful taking or driving a car occurring after the effective date of Proposition 47, which precludes defendants who obtained a car of the prescribed value by theft from being charged with anything other than petty theft. ( Page , supra ,
People v. Gutierrez (2018)
As Gutierrez explained, "to obtain a felony conviction for vehicle theft, the People were required to prove as an element of the crime that the rental car he took was worth more than $950." ( Gutierrez , supra ,
The People acknowledge in their supplemental brief on transfer that the evidence in the present case also presents the possibility that under the pattern instructions the jury could have convicted defendant of posttheft driving under circumstances indicating an intent to deprive the owner permanently of the vehicle (a correct theory) or the actual taking of the vehicle without a finding as to value on conflicting evidence (an incorrect theory). They also acknowledge nothing in the record indicates on which basis the jury rested its verdict. They thus properly concede that we should apply the disposition from Gutierrez . We shall do so.
Confronted with the express exclusion of a statute from an associated series, which ordinarily would lead to the conclusion that it is not to be
Section 490.2 contains key distinguishing introductory language: "Notwithstanding Section 487 or any other provision of law defining grand theft...." (§ 490.2, subd. (a), italics added.) Section 496 does not include any similar language indicating that its provisions are to apply to the entire subject of knowing receipt of stolen property. That the drafters of the proposition did not include a similar sweeping phrase in section 496 while placing one in section 490.2 is a strong signal that section 496 is not to operate in the same fashion.
Defendant does not otherwise provide any authority for construing the terms of a general statute as controlling a more specific statute. Indeed, his argument is at odds with the interpretive maxim. A specific statute controls over a general conflicting statute even where the latter is the one later enacted. ( State Dept. of Public Health v. Superior Court (2015)
Defendant contends this violates principles of equal protection because there is an absence of any rational basis to treat a car thief under section 490.2 (and the statutes to which it applies) more leniently than a receiver of a stolen car. This is not a profitable line of argument.
" '[N]either the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one statute and not the other, violates equal protection principles.' ( People v. Wilkinson (2004)
As for the decision to treat section 496d violations differently than receiving stolen property generally under section 496, it is plausible that the drafters elected to proceed in an incremental way, gauging the effects of the proposition's sea change in penal law, and -in light of the small number of functioning vehicles worth under $950 at present values-did not consider it an injustice to fail to include them and instead leave the matter to the charging discretion of prosecutors. (See Johnston , supra ,
DISPOSITION
The conviction for unlawful taking or driving is reversed and the sentence is vacated in its entirety. In all other respects, the judgment is affirmed. The matter is remanded to the trial court, where the People must file an election within 30 days of the issuance of our remittitur either to retry defendant for felony unlawful taking or driving, or to accept a reduction of this count to a misdemeanor, after which the trial court may resentence defendant accordingly.
We concur:
HULL, Acting P.J.
MAURO, J.
Notes
Undesignated statutory references are to the Penal Code.
In seeking a misdemeanor charge at the preliminary hearing, defense counsel argued the car was probably worth less than $950. In another pretrial proceeding, defense counsel had also asserted the value of the Grand Am was extremely low, "potentially being under $950." In both instances, the prosecution did not focus on this point in its opposition.
This discussion is reiterated from our prior opinion in this case. (People v. Bussey , supra , C079797, review granted.)
See footnote *, ante .
Gutierrez thus declined to follow In re D.N. (2018)
As we conditionally reverse on this basis, we do not need to address defendant's claims that his felony conviction would be an "absurd consequence" or represents a violation of the right to equal protection under the law.
The discussion with respect to section 496d is reiterated from our prior opinion (other than our reference to Page ). (People v. Bussey , supra , C079797, review granted.)
The provisions of the section 496 series also provide a fallback in situations where it is impossible to prove a defendant is the thief beyond a reasonable doubt.