Filed 5/21/18
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                       DIVISION FOUR


THE PEOPLE,
        Plaintiff and Respondent,                     A143877

v.                                                    (Sonoma County
JOSHUA J. WILLIAMS,                                   Super. Ct. No. SCR-594147)
        Defendant and Appellant.


                                                I.
                                       INTRODUCTION
        Appellant Joshua J. Williams appeals from the trial court’s denial of his petition to
recall his sentence pursuant to Penal Code section 1170.18, 1 a provision enacted by
Proposition 47, and to reduce his prior conviction for buying or receiving a stolen vehicle
(§ 496d) from a felony to a misdemeanor. We conclude that although section 1170.18
does not expressly reference section 496d, it does permit resentencing under
section 490.2 for “obtaining any property by theft” valued at less than $950. A
conviction for receiving a stolen vehicle is obtaining property by theft and qualifies for
resentencing. However, appellant failed to demonstrate the value of the stolen vehicle
before the trial court. We therefore affirm the order without prejudice to the filing of a
new petition demonstrating appellant’s eligibility for resentencing.




        1
            All further statutory references are to the Penal Code unless otherwise indicated.


                                                1
                                              II.
                                PROCEDURAL HISTORY
       On January 26, 2011, the Sonoma County District Attorney filed a criminal
information charging appellant with one felony count of receiving a stolen vehicle, in
violation of section 496d, subdivision (a), and alleging as sentencing enhancements that
appellant had been convicted and served five prior prison sentences within the meaning
of section 667.5, subdivision (b), one of which was also a serious or violent felony,
within the meaning of section 1170.12. Appellant pleaded no contest to the receiving
stolen vehicle charge, and admitted all of the special allegations. Thereafter, the court
granted appellant’s request to dismiss the prior strike finding, imposed a suspended
sentence of seven years, and granted appellant four years of formal probation.
       On November 21, 2014, appellant filed a petition to recall his sentence, to reduce
his conviction from a felony to a misdemeanor, and for resentencing (§ 1170.18,
subds. (b), (d), (f)). He contended that his conviction for receiving a stolen vehicle
(§ 496d) should be reduced to a misdemeanor because the stolen vehicle he received was
worth less than $950, and Proposition 47 changed the crime of theft from a felony to a
misdemeanor when the property involved was valued at $950 or less.
       After a hearing on December 10, 2014, the trial court denied the petition, ruling
that recall of a sentence was not available for a conviction for receiving a stolen vehicle
in violation of section 496d. The court reasoned that section 1170.18 was clear on its
face and specific in listing the offenses that are subject to recall under that section.
Receiving a stolen vehicle under section 496d was not one of those offenses. The court
stated: “If I’m wrong on that issue, then we’d have to determine the value of the car.”
       Appellant filed a timely notice of appeal on December 22, 2014.
                                              III.
                                       DISCUSSION
       As he did below, appellant contends the crime of receipt of a stolen, low-value
vehicle is included, if not directly then by implication, in those offenses subject to
reduction from felony to misdemeanor status under Proposition 47. Alternatively,


                                               2
appellant argues the denial of his petition violated the equal protection clauses of the
federal and state constitutions.
       The interpretation of a statute is a question of law, and is subject to de novo
review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) In
interpreting a statute, the appellate court, like the trial court, is restrained by the
overriding principle that where the statute is clear and unambiguous, the plain meaning of
the statute controls its interpretation. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
This mandated tenet of statutory construction was reiterated in People v. Rivera (2015)
233 Cal.App.4th 1085 (Rivera), a case where the appellate court was called upon to
interpret another aspect of Proposition 47. The court began that portion of its opinion as
follows:
       “ ‘In interpreting a voter initiative like [Proposition 47], we apply the same
principles that govern statutory construction.’ [Citation.] ‘ “The fundamental purpose of
statutory construction is to ascertain the intent of the lawmakers so as to effectuate the
purpose of the law. [Citations.]” ’ [Citation.] In the case of a provision adopted by the
voters, ‘their intent governs.’ [Citation.] [¶] ‘In determining such intent, we begin with
the language of the statute itself.’ [Citation.] We look first to the words the voters used,
giving them their usual and ordinary meaning. ‘ “If there is no ambiguity in the language
of the statute, ‘then . . . the plain meaning of the language governs.’ ” [Citation.] “But
when the statutory language is ambiguous, ‘the court may examine the context in which
the language appears, adopting the construction that best harmonizes the statute internally
and with related statutes.’ ” [Citation.] [¶] In construing a statute, we must also consider
“ ‘the object to be achieved and the evil to be prevented by the legislation.’ ” [Citation.]’
[Citation.]” (Rivera, supra, 233 Cal.App.4th at pp. 1099–1100.)
       With these guidelines in mind, we turn to section 1170.18, which provides in
pertinent part:
       “(a) A person who, on November 5, 2014, was 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


                                                3
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.
       “(b) Upon receiving a petition under subdivision (a), the court shall determine
whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the
criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor pursuant to 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, those sections have been amended or added by this act, unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety.”
       Proposition 47 also added section 490.2, which 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
nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as
a misdemeanor . . . .” (§ 490.2.)
       Section 496d is not expressly listed in section 1170.18. However, section 1170.18
does permit resentencing to a misdemeanor under section 490.2 for obtaining property by
theft if the property is worth $950 or less. Thus, our Supreme Court has held that theft
crimes involving property of a value of $950 or less come within the ambit of
Proposition 47 even if they are not expressly listed in section 1170.18. (People v. Page
(2017) 3 Cal.5th 1175 (Page); People v. Romanowski (2017) 2 Cal.5th 903, 910
(Romanowski).) The issue in Page was whether those serving felony sentences for
violation of Vehicle Code section 10851 2 at the time Proposition 47 was enacted are

       2
         Vehicle Code section 10851 provides in relevant part: “(a) Any person who
drives or takes a vehicle not his or her own, without the consent of the owner thereof, and
with intent either to permanently or temporarily deprive the owner thereof of his or her

                                               4
entitled to reduction of their sentences under section 1170.18, even though a violation of
Vehicle Code section 10851 is not expressly enumerated as an offense eligible for
reduction under section 1170.18. (Page, supra, 3 Cal.5th at pp. 1179–1180.) 3 “By its
terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of
the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a),
mandates misdemeanor punishment for a defendant who ‘obtain[ed] any property by
theft’ where the property is worth no more than $950. An automobile is personal
property. ‘As a result, after the passage of Proposition 47, an offender who obtains a car
valued at less than $950 by theft must be charged with petty theft and may not be charged
as a felon under any other criminal provision.’ [Citation].” (Id. at p. 1183, italics
omitted.)
       The court, relying on People v. Garza (2005) 35 Cal.4th 866, 871, observed that
Vehicle Code section 10851 can be violated in either of two ways: a defendant who
unlawfully takes a vehicle with the intent to permanently deprive the owner of possession
has committed a theft offense; a defendant who unlawfully drives a stolen vehicle after
the theft is complete, or acts with only the intent to deprive the owner temporarily of
possession, has not committed a theft offense. (Page, supra, 3 Cal.5th at pp. 1183–
1184.) Therefore, a defendant serving a sentence for a felony violation of Vehicle Code
section 10851 is eligible for resentencing under Proposition 47 only if he can demonstrate
he was convicted of taking a vehicle valued at $950 or less with the intent permanently to
deprive the owner of possession. (Id. at p. 1184.)
       In Romanowski, our Supreme Court held that theft of access card information is a
crime of “ ‘obtaining any property by theft’ ” within the meaning of section 490.2,
subdivision (a). (Romanowski, supra, 2 Cal.5th at p. 910.) Romanowski was convicted

title to or possession of the vehicle, whether with or without intent to steal the vehicle,
. . . is guilty of a public offense . . . .”
       3
         After our Supreme Court issued its decision in Page, we asked the parties to
submit supplemental briefs on Page’s application to this case. Both parties agree that the
holding in Page does not govern the outcome here, but they each argue it supports their
interpretation of Proposition 47.

                                              5
of violating section 484e which states: “Every person who acquires or retains possession
of access card account information with respect to an access card validly issued to
another person, without the cardholder’s or issuer’s consent, with the intent to use it
fraudulently, is guilty of grand theft.” (§ 484e, subd. (d).) “The text and structure of
Proposition 47 convey that section 490.2’s clear purpose was to reduce punishment for
crimes of ‘obtaining any property by theft’ that were previously punished as ‘grand theft’
when the stolen property was worth less than $950. And section 484e confirms that theft
of access card information is one of those crimes.” (Romanowski, at p. 909.) The court
stated there was “no reason to assume that reasonable voters seeking to anticipate the
consequences of enacting Proposition 47 would have concluded that theft of access card
information worth less than $950 is a serious or violent crime exempt from Proposition
47’s reach. [Citation.] . . . And downgrading the punishment for theft of access cards
information worth less than $950 no doubt serves Proposition 47’s purpose of
‘[r]equir[ing] misdemeanors instead of felonies for nonserious, nonviolent crimes.’
[Citation.]” (Ibid.) 4
       Appellant argues section 1170.18 includes the crime of receiving a stolen vehicle
valued at under $950, “by implication.” Appellant is correct that simply because section
1170.18 does not list section 496d does not preclude resentencing. In a recent decision,
our Supreme Court reaffirmed the mere fact a code section is not enumerated in Penal
Code section 1170.18 is “not fatal” to a petition for resentencing. (People v. Martinez
(2018) 4 Cal.5th 647, 652). “Rather, . . . eligibility for resentencing turns on whether [the
accused] is a person serving ‘a sentence for a conviction . . . of a felony or felonies who
would have been guilty of a misdemeanor under [Proposition 47] had [Proposition 47]
been in effect at the time of the offense . . . .’ (Pen. Code, § 1170.18(a).)” (Ibid.)


       4
        We note that the Supreme Court granted review in several cases holding that
Proposition 47 did not apply to section 496d, and remanded the cases after issuing its
decision in Romanowski. (See People v. Varner (2016) 3 Cal.App.5th 360; People
v. Nichols (2016) 244 Cal.App.4th 681; People v. Garness (2015) 241 Cal.App.4th 1370;
People v. Peacock (2015) 242 Cal.App.4th 708.)

                                              6
       Appellant next asserts that it is inconsistent to allow a reduction to a misdemeanor
for the crimes of auto theft valued under $950 under Vehicle Code section 10851 and
receiving stolen property of less than $950 under section 496, but not for the crime of
receipt of a stolen vehicle worth less than $950. Proposition 47 reduced the section 496
offense of receiving stolen property to a misdemeanor in cases in which the property
involved is valued under $950. 5 However, Section 496d which applies to a person who
buys or receives a stolen vehicle is not explicitly listed. 6 There does not seem to be any
logical basis to distinguish between the receipt of stolen property and receipt of a stolen
vehicle under Proposition 47. In Page, the Supreme Court noted that an automobile is
personal property. (Page, supra, 3 Cal.5th at p. 1183.) Relying on the reasoning in
Romanowski, we see no reason to assume that a reasonable voter would conclude that
receipt of a stolen vehicle worth less than $950 is a serious and violent crime outside the
reach of Proposition 47 when receipt of any other form of stolen property is not.
(Romanowski, supra, 2 Cal.5th at p. 909.)
       The People make a distinction based on the argument that receiving a stolen
vehicle is not theft offense. The People argue that Romanowski does not govern this case



       5
        Section 496, subdivision (a) provides: “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.”
       6
         Section 496d states in part: “(a) Every person who buys or receives any motor
vehicle, . . . 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.”


                                              7
because it addressed theft statutes and section 496d is not a theft statute. 7 This reasoning
is misguided because 496d is a theft statute to the same degree section 484e is a theft
statute. Both fall within part 1, title 13, chapter 5, “Larceny,” within the Penal Code. As
the Court noted in Romanowski, “the Legislature chose to place section 484e in a chapter
of the Penal Code entitled ‘Theft.’ [Citation.]” (Romanowski, supra, 2 Cal.5th at p. 912.)
       The same is true for section 496d. In Romanowski, the People argued that
section 484e does not define a theft crime because the statute criminalizes when someone
“acquires or retains possession” of access card account information. (Romanowski,
supra, 2 Cal.5th at p. 912, italics omitted.) “Theft of access card information requires
‘acquir[ing] or retain[ing] possession of access card account information with respect to
an access card validly issued to another person, without the cardholder’s or issuer’s
consent.’ (§ 484e, subd. (d) . . . .) This ‘without . . . consent’ requirement confirms that
theft of access card information is a ‘theft’ crime in the way the Penal Code defines
‘theft.’ ” (Ibid., italics omitted.)
       The same analysis applies to section 496d which criminalizes buying, receiving, or
concealing a stolen vehicle. Buying and receiving a stolen item is analogous to acquiring
or retaining stolen access card information. Both section 484e and 496d involve “
‘obtaining . . . property by theft’ ” and the “text and structure of Proposition 47 convey
that section 490.2’s clear purpose was to reduce punishment for crimes of ‘obtaining any
property by theft’ that were previously punished as ‘grand theft’ when the stolen property
was worth less than $950.” (Romanowski, supra, 2 Cal.5th at p. 909.)
       Finally, we agree with appellant that the overarching purpose of Proposition 47
was to reduce penalties for certain crimes and concomitantly to save costs to the state,
where it is also determined by the court that reducing the crime and accompanying
sentence will not create an unreasonable risk of danger to public safety. (See § 1170.18,
subd. (b).) Thus, the purposes of the new law included the reduction to “misdemeanors
instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession,

       7
      We asked the parties to file supplemental briefs addressing the application of
Romanowski, supra, 2 Cal.5th 903 to this case.

                                              8
unless the defendant has prior convictions for specified violent or serious crimes”; and
where the reduction in sentence will “save significant state corrections dollars on an
annual basis.” (Voter Information Guide, Gen. Elec., text of Prop. 47, § 3, subds. (3)
& (6), p. 70.)
       Both Page and Romanowski demonstrate that the Supreme Court’s view that the
language of Proposition 47 should be read broadly to effectuate the voters’ intent. (Page,
supra, 3 Cal.5th at 1187; Romanowski, supra, 2 Cal.5th at p. 909.) “This reading of
Proposition 47 is consistent with the voters’ instruction, in two uncodified sections of the
initiative measure, that Proposition 47 be construed ‘broadly’ and ‘liberally’ to effectuate
its purposes. (Voter Information Guide, Gen. Elec., supra, text of Prop. 47, §§ 15, 18,
p. 74.) It is also consistent with Proposition 47’s legislative history. In the voter guide to
Proposition 47, the Legislative Analyst explained that under existing law, theft of
property worth $950 or less could be charged as a felony ‘if the crime involves the theft
of certain property (such as cars).’ (Voter Information Guide, Gen. Elec., supra, analysis
of Prop. 47 by Legis. Analyst, p. 35.) Under the initiative, according to the analysis, such
crimes would no longer be charged as grand theft ‘solely because of the type of property
involved.’ (Ibid.)” (Page, at p. 1187; Romanowski, at p. 909 [“Proposition 47 directed
that the text of the initiative ‘shall be broadly construed to accomplish its purposes’ and
‘shall be liberally construed to effectuate its purposes.’ (Voter Information Guide, supra,
text of Prop. 47, §§ 15, 18, p. 74.).”].)
       Having concluded that section 496d falls within Proposition 47, we turn to
whether appellant is entitled to resentencing here. Appellant has failed to meet his
burden of establishing the vehicle, a 1991 Nissan, was worth $950 or less. “The ultimate
burden of proving section 1170.18 eligibility lies with the petitioner.” (Romanowski,
supra, 2 Cal.5th at p. 916, citing Evid. Code, § 500.) In some cases, this information may
be established in the record of conviction, but in other cases, “eligibility for resentencing
may turn on facts that are not established by either the uncontested petition or the record
of conviction. In these cases, an evidentiary hearing may be ‘required if, after
considering the verified petition, the return, any denial, any affidavits or declarations


                                              9
under penalty of perjury, and matters of which judicial notice may be taken, the court
finds there is a reasonable likelihood that the petitioner may be entitled to relief and the
petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ (Cal.
Rules of Court, rule 4.551(f); see also People v. Sherow (2015) 239 Cal.App.4th 875, 880
. . . [‘A proper petition could certainly contain at least [the petitioner’s] testimony about
the nature of the items taken. If he made the initial showing the court can take such
action as appropriate to grant the petition or permit further factual determination.’].)”
(Romanowski, at p. 916.)
       As the trial court noted at the hearing on appellant’s petition, if appellant was
entitled to resentencing, “we’d have to determine the value of the car.”     Appellant
presented no facts to establish the value of the car before the trial court. At the hearing,
Appellant’s counsel stated, “[m]y review of the file does not indicate what the value of
the vehicle might have been. It was a 1991 Nissan[.]”
       We therefore deny appellant’s petition without prejudice to presenting facts to
establish his eligibility before the trial court. 8
                                                IV.
                                         DISPOSITION
       The denial of appellant’s petition to recall his sentence and for resentencing under
section 1170.18 is affirmed without prejudice to consideration of a petition providing
evidence of appellant’s eligibility for resentencing.




       8
         We need not reach appellant’s equal protection argument because we conclude
that section 496d falls within Proposition 47 and appellant, if eligible, is entitled to
resentencing.

                                                 10
                                               _________________________
                                               SMITH, J.*



We concur:


_________________________
STREETER, Acting P. J.


_________________________
REARDON, J.




*
 Judge of the Superior Court of California, County of Alameda, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

A143877, People v. Williams


                                          11
Trial Court:                  Sonoma County Superior Court

Trial Judge:                  Hon. Dana B. Simonds

Counsel for Appellant:        David S. Krueger, under appointment by the
                              Court of Appeal under the First District
                              Appellate Project Independent Case System

Counsel for Respondent:       Kamala D. Harris
                              Xavier Becerra
                              Attorneys General of California

                              Gerald E. Engler
                              Chief Assistant Attorney General

                              Jeffrey M. Laurence
                              Senior Assistant Attorney General

                              Seth K. Schalit
                              Supervising Deputy Attorney General

                              John F. Frost
                              Victoria Ratnikova
                              Deputy Attorneys General




A143877, People v. Williams


                                12
