In January 2015, defendant Pharaoh Haywood filed a petition in propria persona pursuant to Penal Code section 1170.18
Defendant argues that even if unlawful taking/driving of a vehicle is not expressly included among the offenses "in accordance with" which he can be resentenced to a misdemeanor (§ 1170.18, subd. (a) ), it can constitute a
We do not have any facts to add to the introduction. We therefore proceed to our analysis.
DISCUSSION
The initiative enacting section 1170.18 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 by adding section 490.2, which now defines petty theft as involving "money, labor, real[ty,] or personal property" with a value less than $950 "[n]otwithstanding Section 487" (which had specifically defined grand theft on the basis of value or type of property) "or any other provision of law defining grand theft " (§ 490.2, subd. (a), italics added). It additionally amended section 666 (also called "petty theft with a prior") to preclude misdemeanor sentencing for recidivists who are otherwise disqualified from the reach of the initiative. Finally, it added a new misdemeanor of "shoplifting." (§ 459.5; see Voter Information Guide, Gen. Elec. (Nov. 4, 2014) Official Title and Summary, p. 34 (2014 Voter Guide); see also 2014 Voter Guide, text of Prop. 47, §§ 5-13, pp. 71-73.) In section 1170.18, the initiative provided a means of relief retrospectively (for defendants who either are serving a sentence or have completed a sentence for a prior conviction) in the form of a petition for resentencing if the prior conviction would have been a misdemeanor "had this [initiative] been in effect at the time of the offense." (§ 1170.18, subd. a).)
Initiatives are construed in the same manner as statutes. (People v. McRoberts (2009)
As we have recently explained, in the face of unambiguous statutory language we cannot rely on an inchoate legislative purpose as a basis for departing from the text. (County of Sonoma v. Cohen (2015)
The plain language of section 1170.18 identified only a few provisions of the Health and Safety Code and the Penal Code as offenses to designate as misdemeanors from among crimes that could be considered
Section 1170.18 does not qualify its enumeration of the statutes with any general language of inclusion (e.g., "such as" or "including"), nor can we discern any logical reason for mentioning only these statutes if there was the intent to include others. (2A Sutherland, supra, § 47:25, pp. 444-445.) Defendant does not identify any evidence of contrary intent under which the drafters nonetheless intended the designated statutes to be merely illustrative. The Attorney General's summary of the initiative states that it "[r]equires misdemeanor sentence[s] instead of felony for the following crimes when amount involved is $950 or less: petty theft, receiving stolen property, and forging[ or] writing bad checks," with nary a word about unlawful taking/driving of a vehicle. (2014 Voter Guide, Official Title and Summary, supra, p. 34.) Vehicle Code section 10851 also does not appear anywhere in the analysis of the Legislative Analyst when it lists the offenses for which sentences would be prospectively reduced (2014 Voter Guide, supra, analysis of Prop. 47 by the Legis. Analyst, pp. 35-36), nor in the supporting and opposing arguments (id., pp. 38-39); the only vehicle-related reference appears in the opposition,
Defendant also relies on section 490.2. It is true the operation of section 490.2 brings a host of unspecified statutes defining grand theft within its ambit prospectively (and thus retrospectively for purposes of § 1170.18 ).
Equally attenuated is defendant's attempted reliance on the initiative's amendment of section 666. This provision now prescribes "wobbler" (rather
As for defendant's invocation of the rule of lenity, the principle is inapplicable in the present circumstances. It is limited to situations in which intrinsic or extrinsic indicia of legislative intent stand in equipoise. (People v. Elder (2014)
Unlawful taking/driving is thus not a qualifying offense under any circumstance.
Rivas-Colon, supra,
An order denying relief to an ineligible petitioner cannot affect any substantial rights of the petitioner, and in theory we should dismiss the appeal. (See Elder, supra , 227 Cal.App.4th at pp. 1318-1320,
The order is affirmed.
We concur:
NICHOLSON, Acting P.J.
MAURO, J.
Notes
Undesignated statutory references are to the Penal Code.
The record does not contain any other information about the prior conviction other than its superior court case number (95F04059). We take judicial notice of our records sua sponte, which include separate appeals from two codefendants under that case number. (Evid. Code, § 452, subd. (d).) Those opinions indicate defendant was part of a quartet involved in the murder and attempted murder of two men, the kidnapping of the surviving victim, and the taking of the car of another victim. Defendant apparently was convicted of kidnapping the surviving victim and unlawful taking/driving. (People v. Gordon (Dec. 23, 1998, C025388) [nonpub.opn.] slip opn. at pp. 1-3 & fn. 2; People v. Ceasar (Oct. 14, 1997, C025156) [nonpub.opn.] slip opn. at pp. 2-3 & fn. 2.) A fourth codefendant apparently was acquitted on all counts. (People v. Gordon (Mar. 23, 2000, C033460) [nonpub.opn.] slip opn. at p. 5 [appeal on resentencing].) We do not have any record of defendant appealing this judgment, so we do not have any reliable basis for determining the facts underlying his own convictions. We take judicial notice sua sponte of the records of the superior court under this case number, which show that defendant received a four-year state prison sentence. (Evid. Code, § 452, subd. (d).) Even though defendant has completed his sentence, section 1170.18, subdivision (f) permits him to seek redesignation of the felony conviction. The "cross-reference" number on defendant's petition (2798516) also generates a 2012 case number (12F00833) from the superior court records, in which a jury apparently found him guilty of multiple offenses (including unlawful possession of a gun and reckless firing of a gun), with the court imposing an 11-year state prison sentence. The redesignation petition indicates defendant was in state prison when he filed it.
It is unclear whether the trial court was taking judicial notice of defendant's 2012 convictions. Defendant and the People seem to assume the reference is actually to the nature of his prior conviction. As the 2012 convictions do not appear to render him ineligible for resentencing (§ 1170.18, subd. (i) ), we will make the same assumption.
As Vehicle Code section 10851 allowed and continues to allow for sentencing either as a misdemeanor or a felony, a conviction for unlawful taking/driving does not come within the plain language of this criterion. (Veh. Code, § 10851, subd. (a).) This would seem to undermine the premise of defendant's appeal because it would accordingly be illogical to construe section 1170.18 as including a statute under which a defendant would not be entitled to relief. (People v. Page (2015)
A recent case, not yet final, thus agrees that liberal construction is not a basis to include attempted vehicular burglary (§ 664/459), an offense section 1170.18 unambiguously omits. (People v. Acosta (2015)
The case of Garness, supra,
Moreover, as Acosta noted, it is rational to exclude crimes that involve the theft of vehicles from misdemeanor treatment because there would be only an insignificant number of convictions, given the value of vehicles presently. (Acosta, supra,
In accord with these propositions are Page, supra,
Similarly, section 459.5 brings section 459 within its ambit. If facts underlying a previous conviction for felony second degree commercial burglary under section 459 involve the entry of a commercial establishment with the intent to steal during ordinary business hours, defendants are now entitled to petition for resentencing as misdemeanor shoplifting if the value of the property is under $950 because they would be guilty only of a misdemeanor after section 459.5's enactment. (In re J.L. (2015)
In accord with this conclusion is Page, supra,
Unlawful taking/driving thus contrasts with section 484e, which does explicitly define various unlawful uses of access cards and account information as grand or petty theft. This has led to a split in authority as to whether section 490.2 applies to section 484e. (Compare People v. King (2015)
In light of this conclusion, we do not need to explore an alternate basis for denying the petition: defendant's failure to satisfy his burden of proof that his unlawful taking/driving conviction involved a vehicle valued at less than $950. (Gomez,
We disregard a final nascent argument invoking equal protection that is raised for the first time in defendant's reply brief. (Sourcecorp, Inc. v. Shill (2012)