Filed 11/9/15


                                    CERTIFIED FOR PUBLICATION

                    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FOURTH APPELLATE DISTRICT

                                              DIVISION TWO


THE PEOPLE,

                Plaintiff and Respondent,                      E062947

v.                                                             (Super.Ct.No. FWV1202232)

SCOTT THORNTON GARNESS,                                        OPINION

                Defendant and Appellant.



                APPEAL from the Superior Court of San Bernardino County. Brian S.

McCarville, Judge. Affirmed.

                Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

                Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

and Arlene A. Sevidal and Christen Somerville, Deputy Attorneys General, for Plaintiff

and Respondent.

                Defendant Scott Thornton Garness pleaded guilty to a single felony count of

receiving a stolen motor vehicle in violation of Penal Code1 section 496d, subdivision



                1   Further undesignated statutory references are to the Penal Code.

                                                       1
(a).2 Subsequently, California voters enacted Proposition 47, the Safe Neighborhoods

and Schools Act, which among other things established a procedure for specified classes

of offenders to have their felony convictions reduced to misdemeanors and be

resentenced accordingly. (§ 1170.18.) In this appeal, defendant challenges the denial of

his petition for resentencing pursuant to Proposition 47. He contends the trial court erred

by determining he was not eligible for relief. We affirm.

                      I. FACTS AND PROCEDURAL BACKGROUND

        On August 7, 2013, defendant pleaded no contest to a single felony count of

receiving a stolen vehicle in violation of section 496d, subdivision (a).3 The People and

defense counsel subsequently stipulated that the value of the stolen vehicle at issue was

$540.

        On December 22, 2014, defendant filed in propria persona a petition for

resentencing pursuant to section 1170.18. On January 23, 2015, the trial court denied the

petition, finding defendant “not eligible under the statute.”

                                       II. DISCUSSION

A. Background Regarding Proposition 47

        On November 4, 2014, voters enacted Proposition 47, and it went into effect the

next day. (Cal. Const., art. II, § 10, subd. (a).) “Proposition 47 makes certain drug- and

theft-related offenses misdemeanors, unless the offenses were committed by certain

ineligible defendants. These offenses had previously been designated as either felonies

        2   He also admitted a prior strike conviction of first degree burglary (§ 459).

        3   Defendant also admitted a prior strike conviction of first degree burglary.

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or wobblers (crimes that can be punished as either felonies or misdemeanors.” (People v.

Rivera (2015) 233 Cal.App.4th 1085, 1091.) “Proposition 47 also created a new

resentencing provision: section 1170.18. Under section 1170.18, a person ‘currently

serving’ a felony sentence for an offense that is now a misdemeanor under Proposition 47

may petition for a recall of that sentence and request resentencing in accordance with the

statutes that were added or amended by Proposition 47.” (Id. at p. 1092)

       As relevant to the present case, Proposition 47 amended section 496, receiving

stolen property, newly providing that if the value of the property at issue does not exceed

$950, the offense is a misdemeanor, unless it was committed by certain ineligible

defendants.4 (§ 496.) Proposition 47 did not explicitly amend section 496d, the offense

of which defendant was convicted, which prohibits the knowing receipt of a stolen motor

vehicle. (§ 496d, subd. (a); see § 1170.18, subd. (a) [listing sections amended or added

by Proposition 47].)

B. Analysis

       Defendant contends that his offense “falls within the purview of Proposition 47,”

and the trial court erred by finding him ineligible for relief. Defendant is incorrect.

       As noted, section 1170.18 provides a mechanism for a person “who would have

been guilty of a misdemeanor,” if Proposition 47 had been in effect at the time of the

offense, to petition for resentencing in accordance with certain enumerated sections that



       4   The previous version of the statute had provided that the offense could be
charged as a misdemeanor if the value of the property at issue did not exceed $950, and
district attorney or grand jury determined that to do so would be in the interests of justice.
(Former § 496 (effective Oct. 1, 2011, to Nov. 4, 2014).)

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were amended or added by Proposition 47. (§ 1170.18, subd. (a).) We cannot say that

defendant would have been guilty of a misdemeanor had Proposition 47 been in effect at

the time of his offense. Proposition 47 left intact the language in section 496d that makes

a violation of that statute punishable as either a felony or misdemeanor. (§§ 17, subd. (b),

496d, subd. (a).) Based on the statutory language alone, therefore, whether before or

after Proposition 47, defendant could be convicted for a felony violation of section 496d.

       In arguing otherwise, defendant focuses on the circumstance that Proposition 47

did explicitly amend section 496. Thus, a defendant who could demonstrate that his or

her conviction for a violation of section 496 was based on theft of “any property”—

including a motor vehicle—valued $950 or less may be eligible to apply for relief under

Proposition 47 and section 1170.18. (§§ 496, subd. (a), 1170.18, subd. (a).) Defendant

reasons that section 496d is very similar to section 496, and the theft of a motor vehicle

falls within the scope of section 496’s “any property,” so Proposition 47 must be

interpreted to apply also to convictions under section 496d.

       The plain language of section 1170.18, however, is incompatible with defendant’s

proposed interpretation. Section 1170.18, subdivision (a), provides a mechanism for an

offender to request to be resentenced “in accordance with” certain enumerated sections

that were amended or added by Proposition 47, and which provide for different, lesser

punishment than applied before the enactment of Proposition 47. (§ 1170.18, subd. (a).)

As noted, the statutory language setting the punishment for violations of section 496d

remains the same, before and after Proposition 47, and is not included among the

enumerated sections amended or added by Proposition 47. Defendant therefore could not


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be resentenced in accordance with any of the sections added or explicitly amended by

Proposition 47. Put another way: Exactly the same sentencing considerations apply to

defendant’s conviction offense before and after Proposition 47, so there is no basis for

reconsidering or reducing the sentence that was initially imposed.

       Moreover, we reject the assumption underlying defendant’s arguments, to the

effect that because the facts underlying his conviction could also have fallen within the

scope of section 496, Proposition 47 must have been intended also to offer him relief.

Sections 496 and 496d are hardly the only sections of the Penal Code that overlap, so that

the same criminal actions could be charged under either statute. Indeed, “‘[i]t is

axiomatic the Legislature may criminalize the same conduct in different ways,’” thereby

giving the prosecutor “discretion to proceed under either of two statutes that proscribe the

same conduct, but which prescribe different penalties.” (People v. Chenze (2002) 97

Cal.App.4th 521, 528.) We decline to presume, therefore, based on the similarities

between section 496 and section 496d, that the absence of any explicit grant of relief to

those convicted under section 496d was an omission or unintentional ambiguity in

Proposition 47.

       To be sure, it is not unreasonable to argue, as defendant has, that the same policy

reasons motivating Proposition 47’s reduction in punishment for certain felony or

wobbler offenses, including section 496, would also apply equally well to section 496d.5



       5  That said, we find nothing absurd or irrational about the legislative
determination that receiving stolen property of very low value should, as a general
matter, be punishable as a misdemeanor pursuant to section 496, while retaining the
statutory option of punishing the receipt of a stolen motor vehicle, even one of very low
                                                                 [footnote continued on next page]
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Nevertheless, if Proposition 47 were intended to apply not only to reduce the punishment

for certain specified offenses, but also any similar offenses, or offenses that could have

been, but were not, charged as one of the specified 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 beyond those

expressed in the plain language of the additions or amendments resulting from the

adoption of Proposition 47.

        In short: The offense to which defendant pleaded no contest is not among those

reduced to a misdemeanor by Proposition 47, so the trial court correctly determined him

to be ineligible for recall of sentence and resentencing pursuant to section 1170.18.

                                               III. DISPOSITION

        The order appealed from is affirmed.

        CERTIFIED FOR PUBLICATION



                                                                  HOLLENHORST
                                                                           Acting P. J.
We concur:

        MCKINSTER
                                          J.

        KING
                                          J.



[footnote continued from previous page]
value, as a felony violation of section 496d. (See, e.g., People v. Wilkinson (2004) 33
Cal.4th 821, 834-836 [discussing prosecutorial discretion in bringing charges regarding
an act that violates more than one criminal statute].)

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