Filed 5/25/16 P. v. Orozco CA4/1

                                     OPINION AFTER REHEARING

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067313

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN335521 )

ERNEST OROZCO ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Michael J.

Popkins, Judge. Affirmed.

         Benjamin B. Kington, 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, A. Natasha Cortina, Meagan
Beale, Kristen Kinnaird Chenelia, and Daniel Hilton, Deputy Attorneys General, for

Plaintiff and Respondent.

         In this case, we are asked to interpret Proposition 47, the Safe Neighborhoods and

Schools Act of 2014. Specifically, we must determine if Proposition 47 applies to crimes

that are not specifically enumerated in the law itself. Under the specific circumstances

before us, we conclude that it does not.

         Ernest Orozco pled guilty to one count of unlawfully driving a vehicle of another

without permission (Veh. Code, § 10851, subd. (a)), and one count of receiving a stolen

vehicle (Pen. Code,1 § 496d, subd. (a)). He contends the trial court erred in denying his

petition to reduce both of his felony convictions to misdemeanors under Proposition 47.

We conclude Proposition 47 does not apply to Orozco's two felonies here.

         Proposition 47's resentencing provision does not list Vehicle Code section 10851

or section 496d as statutes under which a defendant can be resentenced. In addition,

there are no facts in the record here that persuade us that either of these felonies falls

under any of the statutes that are enumerated in Proposition 47. We therefore affirm the

order.

                    FACTUAL AND PROCEDURAL BACKGROUND

         On August 7, 2014, the police pulled Orozco over and a routine license plate

check showed the car Orozco was driving had been reported stolen. Orozco was the




1        Statutory references are to the Penal Code unless otherwise specified.
                                               2
vehicle's sole occupant, the car's ignition was damaged, and it was running without a key.

The police report listed the car's value at $301.

       After his arrest, Orozco pled guilty to one count of unlawfully driving a vehicle of

another without permission (Veh. Code, § 10851, subd. (a)), and one count of receiving a

stolen vehicle (§ 496d, subd. (a)). Orozco also admitted three prior convictions for

violation of Vehicle Code section 10851, subdivision (a), and eight prison priors under

section 667.5. His prior felony conviction under Vehicle Code section 10851 required

him to be sentenced as a felon under section 666.5 for both of his present violations.

(§ 666.5, subd. (a).)

       After Orozco entered his guilty plea, California voters passed Proposition 47.

Orozco then filed a petition under Proposition 47 to reduce the felonies to misdemeanors.

The trial court denied Orozco's petition, finding Proposition 47 does not apply to section

496d and Vehicle Code section 10851, subdivision (a), and sentenced him to one year in

prison with mandatory supervision for three years after his release. The trial court stayed

the sentence for Orozco's section 496d violation under section 654. Orozco timely

appealed the order.

                                       DISCUSSION

       Orozco asserts that the trial court erred when it denied his petition to reduce his

felonies under Vehicle Code section 10851, subdivision (a) and section 496d, subdivision

(a) to misdemeanors pursuant to Proposition 47. We disagree.

       "Proposition 47 makes certain drug- and theft-related offenses misdemeanors,

unless the offenses were committed by certain ineligible defendants. These offenses had

                                              3
previously been designated as either felonies or wobblers (crimes that can be punished as

either felonies or misdemeanors). Proposition 47 (1) added chapter 33 to the Government

Code (§ 7599 et seq.), (2) added sections 459.5, 490.2, and 1170.18 to the Penal Code,

and (3) amended Penal Code sections 473, 476a, 496, and 666 and Health and Safety

Code sections 11350, 11357, and 11377." (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 to recall that sentence and

request resentencing. (§ 1170.18, subd. (a).) A person who satisfies the statutory criteria

shall have his or her sentence recalled and be 'resentenced to a misdemeanor . . . unless

the court, in its discretion, determines that resentencing the petitioner would pose an

unreasonable risk of danger to public safety.' (Id., subd. (b).)" (People v. Lynall (2015)

233 Cal.App.4th 1102, 1109.)

       Here, Orozco is seeking resentencing under Proposition 47 for the felonies

unlawfully driving a vehicle of another without permission (Veh. Code, § 10851,

subd. (a)), and receiving a stolen vehicle (§ 496d, subd. (a)). As such, we must interpret

Proposition 47.

       In interpreting a voter initiative, we apply the same principles that govern the

construction of a statute. (People v. Canty (2004) 32 Cal.4th 1266, 1276.) "The plain

meaning controls if there is no ambiguity in statutory language." (People v. Cornett

(2012) 53 Cal.4th 1261, 1265.) " ' "When statutory language is clear and unambiguous,

                                             4
there is no need for construction and courts should not indulge it." ' " (People v. Hendrix

(1997) 16 Cal.4th 508, 512.) Our fundamental task "is to determine the Legislature's

intent so as to effectuate the law's purpose." (People v. Murphy (2001) 25 Cal.4th 136,

142.) "But if the language is ambiguous, we consider extrinsic evidence in determining

voter intent, including the Legislative Analyst's analysis and ballot arguments for and

against the initiative." (Silicon Valley Taxpayers' Assn., Inc. v. Santa Clara County Open

Space Authority (2008) 44 Cal.4th 431, 444-445.)

       Section 1170.18, subdivision (a) states:

          "A person currently serving a sentence for a conviction, whether by
          trial or plea, of a felony or felonies who would have been guilty of a
          misdemeanor under the act that added this section ('this act') had this
          act been in effect at the time of the offense may petition for a recall
          of sentence before the trial court that entered the judgment of
          conviction in his or her case 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."

       Under the plain terms of section 1170.18, subdivision (a), a defendant may

petition the court if his felony conviction "would have been . . . a misdemeanor under the

act that added this section" and his resentencing must be "in accordance with . . . those

sections hav[ing] been amended or added by this act." (§1170.18, subd. (a).) Section

1170.18, subdivision (a) does not list Vehicle Code section 10851 or section 496d.

Moreover, none of the statutes that are listed in section 1170.18, subdivision (a) refers to

or otherwise mentions Vehicle Code section 10851 or section 496d.

       Section 1170.18, subdivision (a) lists a specific series of crimes. The plain

language of that subdivision states that resentencing applies to those particular code

                                              5
sections that have been "added or amended" by Proposition 47. (§ 1170.18, subd. (a).)

When the exact situations are contained in a statute that govern its applicability, the

statute necessarily does not apply to circumstances that are not expressly mentioned.

(Gikas v. Zolin (1993) 6 Cal.4th 841, 852.) As such, when items expressed in a statute

are members of an " 'associated group or series,' " it justifies the conclusion that items not

mentioned were excluded by deliberate choice, not inadvertence. (Barnhart v. Peabody

Coal Co. (2003) 537 U.S. 149, 168.) Here, the language of section 1170.18, subdivision

(a) lists the statutes that have been added or amended. Because Vehicle Code section

10851 and section 496d are not included, we interpret their omission intentional.

       Further, " 'insert[ing]' additional language into a statute 'violate[s] the cardinal rule

of statutory construction that courts must not add provision to statutes. [Citations.] This

rule has been codified in California as [Code of Civil Procedure] section 1858, which

provides that a court must not 'insert what has been omitted' from a statute." (People v.

Guzman (2005) 35 Cal.4th 577, 587.) We have no power to add words to a statute to

conform it to an assumed intent that does not appear from the statute's actual language.

(People v. Eckard (2011) 195 Cal.App.4th 1241, 1249.) In addition, we will not rewrite a

statute unless it is " 'compelled by necessity and supported by firm evidence of the

drafters' true intent.' " (Guzman, supra, at p. 587.) Here, we see nothing in section

1170.18 or any other portion of Proposition 47 that leads us to believe that section

1170.18, subdivision (a) affects Vehicle Code section 10851, subdivision (a) or section

496d, subdivision (a) violations.



                                               6
       Nevertheless, Orozco notes that section 490.2 is specifically mentioned in section

1170.18, subdivision (a) and argues that this section applies to Vehicle Code section

10851. We are not persuaded.

       Section 490.2, subdivision (a) states in part: "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 $950, shall be

considered petty theft and shall be punished as a misdemeanor[.]" Section 487 defines

grand theft. Included in the definition of grand theft is when the property taken is an

automobile. (See § 487, subd. (d)(1).) Orozco thus asserts his violation of Vehicle Code

section 10851, subdivision (a) should be considered a misdemeanor under section 490.2

because: (1) theft of the automobile as defined in section 487 is a misdemeanor when the

value of the vehicle is less than $950; (2) Orozco's violation of Vehicle Code section

10851, subdivision (a) is a lesser included offense (LIO) of section 487; and (3) voters

who enacted section 490.2 must have intended for it to apply to the offenses listed therein

and LIOs.

       Vehicle Code section 10851, subdivision (a) prohibits either the unlawful driving

of a vehicle or the unlawful taking of a vehicle. (People v. Garza (2005) 35 Cal.4th 866,

875-876 (Garza).) Relying on People v. Pater (1968) 267 Cal.App.2d 921, Orozco

maintains a violation of Vehicle Code section 10851, subdivision (a) is an LIO of grand

theft when there is not a substantial break between the taking and use of the automobile.




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(Pater, supra, at pp. 926-927.) However, as Orozco admits, several courts have declined

to follow Pater.2

       For example, in Garza, supra, 35 Cal.4th 866, our high court observed:

"Subdivision (a) of Vehicle Code section 10851 . . . defines the crime of unlawful driving

or taking of a vehicle. Unlawfully taking a vehicle with the intent to permanently deprive

the owner of possession is a form of theft, and the taking may be accomplished by

driving the vehicle away." (Garza, supra, at p. 871, italics omitted.) "On the other hand,

unlawful driving of a vehicle is not a form of theft when the driving occurs or continues

after the theft is complete." (Ibid., italics omitted.) Moreover, a theft requires the

defendant to possess " 'the specific intent at the time of the taking to permanently deprive

the owner of the property.' " (In re Jesus O. (2007) 40 Cal.4th 859, 867.)

       As such, even if we were to follow Pater, supra, 267 Cal.App.2d 921, we could

only conclude Vehicle Code section 10851, subdivision (a) is an LIO of grand theft here

if there was not a substantial break between the taking of the automobile and the driving

of the automobile and it can be shown that Orozco had the specific intent to permanently

deprive the owner of the automobile. On the record before us, we cannot reach this

conclusion.



2      We asked the parties for supplemental briefing regarding the impact of two recent
cases addressing Orozco's assertion regarding Vehicle Code section 10851: People v.
Haywood (2015) 243 Cal.App.4th 515 and People v. Ortiz (2016) 243 Cal.App.4th 854.
The parties submitted letter briefs, but shortly thereafter, the California Supreme Court
granted review in both cases. (See People v. Haywood, review granted March 9, 2016,
S230793; People v. Ortiz, review granted March 16, 2016, S232344.) As such, we avoid
any further discussion of Haywood and Ortiz.
                                              8
       Here, Orozco pled guilty to unlawfully driving another person's vehicle without

his or her permission, not theft of a vehicle. Orozco told officers that an unknown male

had offered him a ride home, took him to a 7-11, gave him the vehicle, and then informed

Orozco that his wife had broken the ignition. Under these facts, there is no indication

that Orozco intended to permanently deprive the vehicle's owner of the automobile.

Indeed, the record leaves open the possibility that Orozco merely decided to drive a

stolen vehicle that was given to him and he was not involved whatsoever in the theft of

the vehicle. Because we are not persuaded that Orozco had the specific intent required of

theft, we determine that, in the instant matter, Orozco's violation of Vehicle Code section

10851, subdivision (a) is not an LIO of grand theft. Therefore, we conclude, under the

facts before us, Orozco's violation of Vehicle Code section 10851 was not eligible for

resentencing under Proposition 47.

       Additionally, Orozco contends the court should have reduced his violation of

section 496d, subdivision (a) from a felony to a misdemeanor under section 1170.18.

Like Vehicle Code section 10851, section 496d is not among the statutes listed in section

1170.18, subdivision (a). Yet, Orozco argues this felony offense should have been

reduced to a misdemeanor because a violation of section 496d, subdivision (a) is subject

to the provisions of section 496, which is one of the enumerated statutes per section

1170.18, subdivision (a). We are not persuaded.




                                             9
       Proposition 47 amended section 496, which addresses receipt of stolen property.

Section 496, subdivision (a)3 now requires the district attorney to charge a misdemeanor

if the property received is less than $950, where previously the district attorney had

discretion to charge a felony if the value was less than $950. Orozco reasons that

because section 496, subdivision (a) makes the receipt of any stolen property worth less

than $950 a misdemeanor, and that a vehicle is a form of property, his conviction under

section 496d, subdivision (a) for receipt of a stolen vehicle must be reduced to a

misdemeanor.

       Here, Orozco pled guilty to receiving a stolen vehicle under section 496d,

subdivision (a). Orozco contends that Proposition 47's amendment of section 496,

subdivision (a), applies to his conviction under section 496d because both sections

require the prosecution to prove the same elements, and the only difference between the

statutes is the type of property received. The People respond that, like Vehicle Code

section 10851, subdivision (a), section 1170.18 does not enumerate section 496d in its list




3      Section 496, subdivision (a) states: "Every person who buys or receives any
property that has been stolen or that has been obtained in any manner constituting theft or
extortion, knowing the property to be so stolen or obtained, or who conceals, sells,
withholds, or aids in concealing, selling, or withholding any property from the owner,
knowing the property to be so stolen or obtained, shall be punished by imprisonment in a
county jail for not more than one year, or imprisonment pursuant to subdivision (h) of
Section 1170. However, if the value of the property does not exceed nine hundred fifty
dollars ($950), the offense shall be a misdemeanor, punishable only by imprisonment in a
county jail not exceeding one year, if such person has no prior convictions for an offense
specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section
667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
                                             10
of affected statutes, and that to apply Proposition 47 to section 496d, subdivision (a)4

would improperly insert a new provision into the statute. The People have the better

argument.

       Like Vehicle Code section 10851, subdivision (a), section 496d, subdivision (a)

was not amended or added by Proposition 47. The omission of section 496d from the

associated statutes enumerated in section 1170.18 shows section 496d was purposely left

out of Proposition 47's reach. (See Barnhart v. Peabody Coal Co., supra, 537 U.S. at

p. 168.)

       Further, if Orozco's interpretation were correct, it would render other statutes that

deal with receiving certain kinds of stolen property superfluous. For example, under

section 496a, if a metal dealer receives copper wire that he knows is ordinarily used by

the electric company, then he could be guilty of receiving stolen property and can be

sentenced as a felon under section 1170, subdivision (h), or he can be imprisoned for up

to one year and/or fined up to $1,000. However, Orozco's logic would render section

496a superfluous because only the value of the property received would matter, rather


4      Section 496d, subdivision (a) states: "Every person who buys or receives any
motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in
Section 630 of the Vehicle Code, any special construction equipment, as defined in
Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors
and Navigation Code, that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be stolen or obtained, or who
conceals, sells, withholds, or aids in concealing, selling, or withholding any motor
vehicle, trailer, special construction equipment, or vessel from the owner, knowing the
property to be so stolen or obtained, shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 for 16 months or two or three years or a fine of not more
than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to
exceed one year or a fine of not more than one thousand dollars ($1,000), or both."
                                             11
than the type of property received. We see nothing in Proposition 47 that renders the

distinction between types of property meaningless.

       In harmonizing two related statutes, a court's interpretation should avoid

surplusage and attempt to give significance to every word in the statute. (People v. Arias

(2008) 45 Cal.4th 169, 177, 180.) In accordance with this principle, we conclude that

section 496d, subdivision (a) was not affected by Proposition 47's alteration of section

496, subdivision (a).5 Therefore, it is the fact that Orozco received a stolen vehicle that

prevents his eligibility for resentencing his conviction under section 496d, subdivision

(a). The value of the vehicle has no bearing on Orozco's eligibility for resentencing.

                                      DISPOSITION

       The order is affirmed.




5      We are aware that the California Supreme Court granted review in at least two
cases wherein the appellate court reached the same conclusion we do here. (See People
v. Peacock, S230948, review granted Feb. 17, 2016; People v. Nichols, S233055, review
granted April 20, 2016.)
                                             12
                                 HUFFMAN, Acting P. J.

WE CONCUR:




               HALLER, J.




             O'ROURKE, J.




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