Filed 5/11/16 P. v. Bunnell CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                            C078376

                   Plaintiff and Respondent,                                    (Super. Ct. Nos.
                                                                             62-124734, 62-127934)
         v.

ERIK LEE BUNNELL,

                   Defendant and Appellant.




         Defendant Erik Lee Bunnell appeals from the trial court’s order recalling and
resentencing some of defendant’s felony convictions pursuant to Penal Code section
1170.18.1 He claims the trial court erred in finding he was ineligible for resentencing on
his felony convictions for receiving a stolen vehicle (§ 496d, subd. (a)) and unlawful
taking or driving of a vehicle (Veh. Code, § 10851). Defendant also contends the trial


1 Undesignated statutory references are to the Penal Code.



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court erred in resentencing him to the same cumulative sentence after it reduced two
other felony convictions to misdemeanors. We will affirm the trial court’s order
resentencing defendant.

                           PROCEDURAL BACKGROUND

       In March of 2014, defendant pleaded no contest in case No. 62-127934 to
unlawfully driving and taking a vehicle (Veh. Code, § 10851, subd. (a)—count one),
second degree burglary (§ 459—count two), receiving a stolen vehicle (§ 496d—count
three), receiving stolen property (§ 496, subd. (a)—count four), misdemeanor possession
of burglary tools (§ 466—count five), and misdemeanor possession of drug paraphernalia
(Health & Saf. Code, § 11364.1—count six). He also admitted having prior convictions
for vehicle theft and unlawfully driving or taking a vehicle, seven prior prison terms, and
an on-bail enhancement. At the same time, in case No. 62-124734, defendant pleaded no
contest to possession of a controlled substance. (Health & Saf. Code, §11377, subd. (a).)

       For these crimes, the trial court sentenced defendant to a cumulative split term of
six years, with three years’ imprisonment to be followed by three years’ mandatory
supervision. Specifically, defendant was sentenced to two years for count one; a
concurrent two years each for counts two, three, and four; a concurrent 180 days each for
counts five and six; a concurrent two years for possession of a controlled substance; two
one-year consecutive terms for prior prison terms; and a stayed two-year term for the
on-bail enhancement.

       In November 2014, defendant moved the trial court for resentencing pursuant to
section 1170.18. Defendant sought to have his felony convictions for unlawfully driving
and taking a vehicle (count one), second degree burglary (count two), receiving a stolen
vehicle (count three), receiving stolen property (count four), and possession of a
controlled substance reduced to misdemeanors. At the hearing on defendant’s petition
for resentencing, an offer of proof was provided that the stolen vehicle in this case was

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valued at $400 and, based on that offer of proof, defendant contended that both counts
one and count three fell under the petty theft definition provided in section 490.2.

       The trial court, following the resentencing hearing, dismissed defendant’s on-bail
enhancement and reduced his convictions for possession of a controlled substance and
receiving stolen property to misdemeanors. The trial court declined to reduce
defendant’s convictions for driving and taking a vehicle (count one—Veh. Code,
§ 10851) and receiving a stolen vehicle (count three—§ 496d), finding both convictions
were ineligible for resentencing as a matter of law. In resentencing defendant, the trial
court ordered defendant to serve two consecutive one-year terms for the possession of a
controlled substance and the receipt of stolen property.

                                       DISCUSSION

       In 2014, the electorate enacted Proposition 47, the Safe Neighborhoods and
Schools Act (hereafter Proposition 47), which prospectively redesignated certain drug-
and theft-related offenses as misdemeanors, and also provided for recall and resentencing
for those already convicted of eligible offenses. (People v. Rivera (2015)
233 Cal.App.4th 1085, 1091-1092.)2 Section 1170.18, added as a result of Proposition
47, provides that a person convicted of a felony that is now punishable as a misdemeanor
as a result of the enactment of Proposition 47 “may petition for a recall of sentence . . . 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 [Proposition 47].” (§ 1170.18, subd. (a).)
Defendant contends the trial court erred in deeming his convictions for driving and taking
a vehicle in violation of Vehicle Code section 10851 and receiving a stolen vehicle in


2 Like many of the Proposition 47 cases, a petition for review was recently filed in
People v. Rivera, supra, 233 Cal.App.4th 1085 and is currently pending review in our
Supreme Court. However, the language of the statute cited therein remains intact.

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violation of section 496d ineligible for resentencing pursuant to section 1170.18. He also
contends the trial court imposed a longer sentence in violation of section 1170.18 when it
imposed consecutive one-year terms instead of concurrent two-year terms for the two
felony convictions the trial court did reduce to misdemeanors. We disagree.

1.0    Refusal to Reduce Convictions

       We interpret an initiative in the same manner as we interpret statutes. (People v.
Superior Court (Pearson) (2010) 48 Cal.4th 564, 571 (Pearson).) We first look to the
actual words of an enactment, and then other indicia of intent. Where the language of the
enactment is clear, we do not resort to other indicia of legislative intent (absent a
reasonably framed claim of ambiguity, or of an absurd result warranting disregard of the
plain language), because we do not have anything further to construe. (People v. Meyer
(2010) 186 Cal.App.4th 1279, 1283; Rehman v. Department of Motor Vehicles (2009)
178 Cal.App.4th 581, 584, 586.) Where statutory language is unambiguous, we cannot
rely on an inchoate legislative purpose as a basis for departing from the text. (County of
Sonoma v. Cohen (2015) 235 Cal.App.4th 42, 48.)

       Here, section 1170.18 identifies only a few offenses that have been redesignated as
misdemeanors. Neither driving and taking a vehicle in violation of Vehicle Code section
10851 nor receiving a stolen vehicle in violation of section 496d are among them.
Defendant instead relies on the alleged similarity of his offenses and two offenses that
are identified as eligible for resentencing (§§ 490.2 & 496) as the basis for his contention
that the trial court erred in deeming his offenses ineligible. We address each of his
offenses separately and explain why neither is eligible for resentencing.

       1.1    Vehicle Code Section 10851

       As to his conviction for driving and taking a vehicle, defendant claims he should
be resentenced “in accordance with” section 490.2. Section 490.2 brings a host of



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unspecified statutes defining “grand theft” within its ambit prospectively (and thus
retrospectively for purposes of § 1170.18). (§ 490.2, subd. (a).)3 However, Vehicle
Code section 10851 is not among them, nor is it referenced in section 487’s definition of
“[g]rand theft,” nor does the text of Vehicle Code section 10851 purport to define the
taking of a vehicle as grand theft within the catchall language of section 490.2. Rather,
section 10851, simply proscribes the driving or taking of a vehicle owned by another
without the owner’s consent, whether or not there was an intent to steal the vehicle.
(Veh. Code, § 10851, subd (a).) Thus, contrary to defendant’s assertion, the plain
language of sections 487, 490.2, 1170.18, and Vehicle Code section 10851 demonstrate
defendant is not eligible to be resentenced on his conviction for unlawful driving and
taking of a vehicle in violation of Vehicle Code section 10851.

       Neither are we persuaded that there is any conflict between section 490.2 and
Vehicle Code section 10851 because a violation of Vehicle Code section 10851 does not
necessarily involve a theft of the vehicle. (Veh. Code, § 10851, subd. (a) [language
indicates the statute may be violated where the vehicle is taken with an intent to steal it or
by merely taking the vehicle for a “joyride”].) We also reject defendant’s contention that
interpreting section 1170.18 to exclude a violation of Vehicle Code section 10851 from
its ambit would result in absurd results where some thefts are punished as misdemeanors
and others as felonies. There could be any number of rational purposes for excluding the
taking and driving of a vehicle from Proposition 47, among them, that there are relatively
few operational vehicles that would be valued under $950 and that, unlike other forms of
property, owners are highly dependent on their vehicles, rendering the taking of them


3 Section 490.2, subdivision (a) states that “[n]otwithstanding 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
. . . .”


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particularly offensive. Accordingly, we conclude the trial court did nor err in refusing to
reduce defendant’s felony conviction for taking and driving a vehicle (Veh. Code,
§ 10851—count one) in case No. 62-127934 to a misdemeanor.

       1.2    Penal Code Section 496d

       With respect to his conviction for receiving a stolen vehicle in violation of section
496d, defendant contends that though this violation is not explicitly listed as an eligible
offense in section 1170.18, it is rendered eligible by section 1170.18’s reference to
section 496. Section 496 was among the statutes amended by Proposition 47. It now
mandates that if the stolen property received was valued at less than $950, the district
attorney may charge the suspected recipient with no more than a misdemeanor (unless he
or she has certain enumerated prior offenses). (§ 496, subd. (a).)4 However, defendant
was not convicted of violating section 496, but section 496d, which is not referenced in
section 1170.18 and was not amended by Proposition 47. To read a conviction for a
violation of section 496d into the list of eligible offenses identified in section 1170.18,
subdivision (a) would be contrary to long-standing rules of statutory construction barring
us from adding to or rewriting the language to conform to some assumed intent. (See
Pearson, supra, 48 Cal.4th at p. 571.)



4 Specifically, section 496, subdivision (a) provides that “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.”


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       Moreover, doing so would also require us to read into section 1170.18 other
statutes targeted at receipt of various other types of property, rendering those statutes
superfluous—another result we attempt to avoid in our construction efforts. (See, e.g.,
§ 496a [making the offense of dealing in stolen metals a “wobbler”]; see also City of
Alhambra v. County of Los Angeles (2012) 55 Cal.4th 707, 724 [“ ‘Where reasonably
possible, we avoid statutory constructions that render particular provisions superfluous or
unnecessary.’ ”].) Nor does the possibility that receiving a vehicle would result in a
heavier sentence than receiving some other property of equal value render the result of
our construction absurd. Sections 496 and 496d are hardly the only statutes that overlap
in their application. Nonetheless, “ ‘[i]t is axiomatic the Legislature may criminalize the
same conduct in different ways,’ ” thereby giving the prosecution “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.) Additionally, as we
stated above, it would not be irrational for the electorate to treat the receipt of a stolen
vehicle as a more reprehensible crime than receipt of some other stolen property given
the level of reliance its owner has on it compared with other types of property.
Accordingly, the trial court did not err in finding defendant’s conviction for receiving a
stolen vehicle (§ 496d—count three) in case No. 62-127934 ineligible for resentencing.

2.0    Resentencing

       Finally, we address defendant’s contention that the trial court erred in imposing
consecutive one-year terms for possession of a controlled substance and the receipt of
stolen property at resentencing, even though the total cumulative term remained a
six-year split sentence. He claims the trial court’s sentence violates section 1170.18,
subdivision (e), which commands that “[u]nder no circumstances may resentencing under
this section result in the imposition of a term longer than the original sentence.”
Defendant argues “imposition of a term” could reasonably be interpreted to refer to the


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cumulative term for all counts or the term actually imposed on each count. However,
even assuming he is correct in his interpretation of the statutory language, defendant
cannot prevail on this claim.

       Here, the original sentence included a cumulative term of six years, with
concurrent two-year terms for defendant’s felony convictions for possession of a
controlled substance (Health & Saf. Code, §11377, subd. (a)) and receiving stolen
property (§ 496—count four). On resentencing, defendant received consecutive one-year
terms for the reduced convictions and a cumulative term of six years. Thus, neither the
cumulative term nor the individual terms imposed at resentencing were longer than the
original sentence imposed by the trial court. Therefore, we conclude the trial court did
not err in resentencing defendant to consecutive one-year terms for the reduced
convictions.

       We reject out of hand defendant’s contention that for purposes of determining
whether resentencing runs afoul of section 1170.18, subdivision (e) we should accept that
“a sentence on one count run consecutive to another count is akin to a sentence imposed
and executed. On the other hand a sentence on one count to run concurrent to another
count is akin to a sentence stayed since there is no additional time being served on the
sentence run concurrently.” When a sentence is stayed, defendant is not serving any time
for that conviction; when a sentence is imposed concurrently, he is. For example, if a
principal term were reversed, the stays would have to be lifted for defendant to remain
incarcerated on those charges, but he would remain incarcerated on concurrent charges
without any further action. For defendant to argue that the trial court imposed a “longer
term” on the two reduced counts because he had to serve his reduced time for those
counts after completing his time on the principal count, but within the original six-year
cumulative term is nonsensical.




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                                   DISPOSITION

     The order appealed from is affirmed.




                                                 BUTZ   , J.



We concur:



     RAYE                , P. J.



     MAURO               , J.




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