Filed 2/2/16 P. v. States CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E063471

v.                                                                       (Super.Ct.No. FVI1303081)

CHARLES LEWIS STATES,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Miriam Ivy

Morton, Judge. Affirmed.

         Valerie G. Wass for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson,

Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff

and Respondent.

         Defendant Charles Lewis States pleaded guilty to unlawfully taking or driving a

vehicle in violation of Vehicle Code section 10851, subdivision (a) (section 10851(a)).


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Thereafter, Proposition 47 went into effect. Proposition 47 allows certain defendants

convicted of specified theft or drug-related felonies to petition to have those convictions

treated as misdemeanors. The trial court denied defendant’s petition under Proposition

47, on the ground that Proposition 47 does not apply to a conviction for unlawfully taking

or driving a vehicle.

       Defendant appeals. He contends that Proposition 47 must be construed as

applying to a conviction for unlawfully taking or driving a vehicle. Alternatively, he

contends that, if Proposition 47 does not apply to a conviction for unlawfully taking or

driving a vehicle, it violates equal protection.

       We reject both contentions and we will affirm.

                                               I

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2013, defendant pleaded guilty to attempted unlawful taking or driving of a

vehicle (Pen. Code, § 664, subd. (a); Veh. Code, § 10851, subd. (a)) and admitted one

“strike” prior conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). He was sentenced

to a total of two years (double the midterm) in prison. He allegedly served that sentence.

       In 2014, Proposition 47 went into effect. (See People v. Garness (2015) 241

Cal.App.4th 1370, 1372 [Fourth Dist., Div. Two].)

       In 2015, defendant filed a petition to have the conviction redesignated as a

misdemeanor pursuant to Penal Code section 1170.18. The trial court denied the petition.




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It ruled that defendant was not eligible for resentencing because unlawful taking or

driving of a vehicle is not one of the crimes specified in Penal Code section 1170.18.

                                              II

    DEFENDANT IS NOT ENTITLED TO THE BENEFITS OF PROPOSITION 47

       A.     General Background Regarding Proposition 47.

       In general, Proposition 47 reduced certain theft-related offenses — provided they

involve property worth $950 or less — and certain possessory drug offenses from

felonies (or wobblers) to misdemeanors, unless the defendant is otherwise ineligible.

(Couzens & Bigelow, Proposition 47: “The Safe Neighborhoods and Schools Act” (Aug.

2015) pp. 24-28, available at <http://www.courts.ca.gov/documents/Prop-47-

Information.pdf>, as of Jan. 22, 2016.) It also allowed persons previously convicted of

one of the specified offenses as a felony to petition to reduce the prior conviction to a

misdemeanor. (Pen. Code, § 1170.18.)

       In particular, as relevant here, Proposition 47 enacted Penal Code section 490.2,

subdivision (a) (section 490.2(a)), which 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 . . . .”

       It also enacted Penal Code section 1170.18, subdivision (a) (section 1170.18,

subdivision (a)), which provides: “A person currently serving a sentence for a conviction



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. . . of a felony or felonies who would have been guilty of a misdemeanor under th[is] act

. . . had this act been in effect at the time of the offense may petition . . . 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.”

       Finally, it enacted Penal Code section 1170.18, subdivision (f) (section 1170.18,

subdivision (f)), which provides: “A person who has completed his or her sentence for a

conviction . . . of a felony or felonies who would have been guilty of a misdemeanor

under this act had this act been in effect at the time of the offense, may file an application

. . . to have the felony conviction or convictions designated as misdemeanors.”

       Proposition 47 did not explicitly amend section 10851(a).

       B.      Statutory Construction.

       Defendant contends that Proposition 47 should be construed as allowing a petition

to have a conviction of unlawful taking or driving reduced to a misdemeanor.1

       “‘“[O]ur fundamental task is ‘to ascertain the intent of the lawmakers so as to

effectuate the purpose of the statute.’”’ [Citation.] We begin with the text, ‘giv[ing] the

words their usual and ordinary meaning [citation], while construing them in light of the

statute as a whole and the statute’s purpose [citation].’ [Citation.] ‘If no ambiguity

appears in the statutory language, we presume that the Legislature meant what it said, and

       1     This issue is currently before the California Supreme Court in People v.
Page (2015) 241 Cal.App.4th 714, review granted, Jan. 27, 2016, S230793.



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the plain meaning of the statute controls.’ [Citation.]” (People v. Blackburn (2015) 61

Cal.4th 1113, 1123.)

       A person can file a petition to reduce a prior conviction to a misdemeanor if he or

she “would have been guilty of a misdemeanor under this act had this act been in effect at

the time of the offense . . . .” (Pen. Code, § 1170.18, subd. (f).) Defendant was guilty of

a felony under section 10851(a); today, he would still be guilty of a felony under section

10851(a).

       Here, defendant had allegedly served his sentence; thus, he applied for relief under

section 1170.18, subdivision (f). As noted, a defendant who is still serving a sentence

can apply for relief under section 1170.18, subdivision (a). That subdivision permits a

request for “resentencing in accordance with Sections 11350, 11357, or 11377 of the

Health and Safety Code, or Sections 459.5, 473, 476a, 490.2, 496, or 666 of the Penal

Code, as those sections have been amended or added by this act.” It does not authorize a

defendant serving a sentence under section 10851(a) to seek resentencing.

       Unlike section 1170.18, subdivision (a), section 1170.18, subdivision (f) does not

list the statutes that were amended by Proposition 47. It has no need to; once the

defendant has finished serving his or her sentence, there is no need for resentencing, and

hence no need to specify the statutes that govern such resentencing. Otherwise, however,

these two subdivisions parallel each other closely. Thus, it follows that a defendant who

has already served a sentence under section 10851(a) cannot have the conviction reduced

to a misdemeanor.



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       Defendant argues that section 490.2(a) defines “obtaining any property by theft”

as petty theft (italics added); this would include the unlawful taking of a vehicle. He also

notes that unlawful taking or driving of a vehicle is a lesser included offense of grand

theft auto (Pen. Code, § 487, subd. (d)(1)). (See People v. Barrick (1982) 33 Cal.3d 115,

128.) He concludes: “It would be absurd for [grand theft auto] to be eligible for

reduction to a misdemeanor under section 1170.18, when the lesser offense of unlawfully

driving or taking an automobile is not eligible for such a reduction.”

       However, section 490.2, by its terms, applies “[n]otwithstanding Section 487 or

any other provision of law defining grand theft . . . .” (Italics added.) Section 10851(a) is

not a “provision of law defining grand theft.” Thus, section 490.2 does not override

section 10851(a). By choosing not to override or amend section 10851(a), Proposition 47

left intact a prosecutor’s discretion to charge the unlawful taking of a vehicle as a felony,

regardless of value. This is not absurd.

       If Proposition 47 were intended to apply not only to reduce the punishment for

certain specified offenses, but also any lesser included offenses, we would expect some

indication of that intent in the statutory language. We find nothing of the sort. It is

simply not our role to interpose additional changes to the Penal Code or Vehicle Code

beyond those expressed in the plain language of the additions or amendments resulting

from the adoption of Proposition 47.

       Next, defendant notes that Penal Code section 666 (section 666), defining petty

theft with a prior, lists “auto theft under Section 10851(a)” as one of the prior convictions



                                              6
that elevate a petty theft to a wobbler. (Pen. Code, § 666, subd. (a).) He also notes that

Proposition 47 amended section 666. He then argues that this shows that it was the intent

of Proposition 47 to treat a violation of section 10851(a) as theft. However, the words

“auto theft under Section 10851(a)” long predate Proposition 47. As defendant admits,

they were added to section 666 in 1986. (Stats. 1986, ch. 402, § 1, p. 1622.) Thus, they

shed no light on the intent behind Proposition 47.

       Finally, defendant relies on certain uncodified findings and declarations in

Proposition 47. Section 2 states that Proposition 47 was enacted, in part, “to maximize

alternatives for nonserious, nonviolent crime . . . .” (Voter Information Guide, Gen. Elec.

(Nov. 4, 2014) Text of Proposed Laws, p. 70.) Section 3 states: “In enacting this act, it

is the purpose and intent of the people of the State of California to: [¶] . . . [¶] . . .

Require misdemeanors instead of felonies for nonserious, nonviolent crimes like petty

theft and drug possession . . . .” (Ibid.) Section 15 states: “This act shall be broadly

construed to accomplish its purposes.” (Id. at p. 74.) And section 18 states: “This act

shall be liberally construed to effectuate its purposes.” (Ibid.) “However, [a] rule of

liberal construction . . . should not be used to defeat the overall statutory framework and

fundamental rules of statutory construction.” (Nickelsberg v. Workers' Comp. Appeals

Bd. (1991) 54 Cal.3d 288, 298; see also People v. Jernigan (2014) 227 Cal.App.4th 1198,

1207 [“The voters mandated that Proposition 36 be liberally construed . . . . It is

established, nonetheless, that in interpreting a voter initiative, we apply well-settled rules

of statutory construction.”].)



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       Accordingly, we conclude that the trial court was correct: Proposition 47 does not

allow a defendant who has served a sentence for unlawful taking or driving of a vehicle

in violation of section 10851(a) to petition to have that conviction reduced to a

misdemeanor.

       C.     Equal Protection.

       Defendant also contends that, if Proposition 47 does not apply to a conviction for

unlawful taking or driving of a vehicle in violation of section 10851(a), it violates equal

protection.

       Defendant forfeited this contention by failing to raise it below. (People v.

Alexander (2010) 49 Cal.4th 846, 880, fn. 14.)

       Separately and alternatively, we also reject this contention on the merits.

Applying rational basis scrutiny, the California Supreme Court has held that “neither the

existence of two identical criminal statutes prescribing different levels of punishments,

nor the exercise of a prosecutor’s discretion in charging under one such statute and not

the other, violates equal protection principles.” (People v. Wilkinson (2004) 33 Cal.4th

821, 838.) Similarly, it has long been the case that “a car thief may not complain because

he may have been subjected to imprisonment for more than 10 years for grand theft of an

automobile [citations] when, under the same facts, he might have been subjected to no

more than 5 years under the provisions of section 10851[(a)] of the Vehicle Code.”

(People v. Romo (1975) 14 Cal.3d 189, 197.) The same reasoning applies to Proposition

47’s provision for the possibility of sentence reduction for a limited subset of those



                                             8
previously convicted of grand theft (those who stole an automobile or other personal

property valued $950 or less), but not those convicted of unlawfully taking or driving a

vehicle in violation of section 10851(a). Absent a showing that a particular defendant

“‘has been singled out deliberately for prosecution on the basis of some invidious

criterion,’ . . . the defendant cannot make out an equal protection violation.” (Wilkinson,

supra, 33 Cal.4th at p. 839.) Defendant here has made no such showing.

                                            III

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               RAMIREZ
                                                                                         P. J.


We concur:

McKINSTER
                          J.

CODRINGTON
                          J.




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