Filed 1/22/16 P. v. Thomas CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063241

v.                                                                       (Super.Ct.No. FSB1400007)

WILLIE LOUIS THOMAS III,                                                 OPINION

         Defendant and Appellant.



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

McCarville, Judge. Affirmed.

         Ava R. Stralla, 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, Barry Carlton, and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.




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       A jury convicted defendant and appellant Willie Louis Thomas III of a single

felony count of receiving a stolen motor vehicle (Pen. Code, § 496d)1 and the trial court

sentenced him to a total of five years in county prison.2 Subsequently, California voters

passed The Safe Neighborhoods and Schools Act (Proposition 47), which converted

certain nonviolent felonies and wobblers into misdemeanors and created a petitioning

process 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 trial court’s denial of his petition for

resentencing under new section 1170.18, arguing the court erred in determining he was

ineligible for relief under Proposition 47. We affirm.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND3

       On December 30, 2013, the victim reported her car had been stolen from her

driveway. Later that day, police officers caught defendant driving the car and using a

shaved key. Defendant gave the officers varying stories about how he had purchased the

car. He first stated that he had bought it from “some Mexicans” the day before, but after


       1   Unless otherwise noted, all statutory references are to the Penal Code.

       2 Defendant’s sentence was comprised of a two-year term for the section 496d
offense plus three years for three prison priors. (§ 667.5, subd. (b).)
       3   We take the following facts from the probation report.



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the officers informed him that the victim had reported the car stolen that day, defendant

said he purchased it that day. Defendant then claimed he bought the car in 2001.

       The jury found defendant guilty of receiving stolen property in violation of section

496d. On January 28, 2015, defendant filed a petition to resentence his section 496d

conviction under section 1170.18. On February 13, 2015, the trial court ruled that

defendant was “not eligible” for resentencing and denied his petition. Defendant appeals

this order.

                                             II

                                       ANALYSIS

       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

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

v. Rivera (2015) 233 Cal.App.4th 1085, 1091 (Rivera).) “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




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accordance with the statutes that were added or amended by Proposition 47.” (Id. at

p. 1092.)

       As relevant here, Proposition 47 amended section 496, buying or receiving stolen

property, to provide that if the value of the property at issue is $950 or less, the offense is

a misdemeanor. (§ 496, subd. (a).) The previous version of section 496 gave the

prosecution discretion to charge the offense as a misdemeanor if the value of the property

did not exceed $950 and the district attorney or grand jury determined that so charging

would be in the interests of justice. (Former § 496, added by Stats. 2011, ch. 15, § 372,

eff. April 4, 2011, operative Oct. 1, 2011.) In other words, Proposition 47 converted the

offense of receiving stolen property valued at $950 or less from a wobbler to a

misdemeanor. Proposition 47 did not amend section 496d, the section under which

defendant was convicted.

       B.     Defendant’s Eligibility for Proposition 47 Resentencing

       Defendant’s conviction offense is a wobbler. (§§ 17, subds. (a) & (b), 496d, subd.

(a) [the crime of receiving a stolen motor vehicle is punishable as either a felony or a

misdemeanor].) Defendant argues that, with the passage of Proposition 47 and its

amendment to section 496, his offense now falls “within the ambit of section 1170.18.”

He argues that he is eligible for resentencing under section 1170.18 because the

prosecution failed to demonstrate that the value of the 1997 Honda Accord exceeded

$950. We disagree.



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       Proposition 47’s resentencing provision, section 1170.18, subdivision (a) provides:

“A person currently serving a sentence for a conviction . . . of a felony . . . 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.” Thus, in order to be eligible for

resentencing, defendant must be a person “who would have been guilty of a

misdemeanor” if Proposition 47 had been in effect at the time of his offense.

       Applying that standard here, we cannot say that defendant would have been guilty

of a misdemeanor under Proposition 47 had it been in effect when he received the

victim’s car. This is because Proposition 47 left section 496d entirely intact, including

the wobbler language. In other words, after Proposition 47’s passage, the prosecution

retains its ability to charge a section 496d violation as a misdemeanor or a felony.

Because nothing in Proposition 47 affected the prosecution’s ability to charge a violation

of section 496d as a felony, we conclude that defendant is not a person “who would have

been guilty of a misdemeanor” under Proposition 47 and thus is ineligible for

resentencing under section 1170.18, subdivision (a).




                                              5
       Defendant contends that Proposition 47’s amendment to section 496 commands a

different result. He argues the language of that statute is broad enough to encompass, and

render a misdemeanor, the act of receiving a stolen vehicle worth $950 or less.

Defendant is correct that section 496, subdivision (a) is broad enough to apply to stolen

vehicles—indeed, the plain language of the statute applies to “any property.” This,

however, was the case both before and after Proposition 47’s passage. Proposition 47 did

not alter the prosecution’s discretion to charge receiving a stolen vehicle under the more

general statute (§ 496) or the more specific statute (§ 496d). Because section 1170.18

applies only to those people who “would have” been guilty of a misdemeanor, not to

those who “could have” been guilty of a misdemeanor—if the prosecution in its

discretion chose to charge them more leniently—defendant’s statutory interpretation

argument must fail. Put another way, if we engage in the counterfactual analysis section

1170.18 requires (i.e., what “would” the defendant have been guilty of if Proposition 47

had been in existence at the time of his offense?), the answer is that the prosecution

would likely have charged him with the same felony violation of section 496d because

exactly the same sentencing considerations apply to defendant’s offense before and after

Proposition 47. The passage of Proposition 47 does not operate to reduce defendant’s

sentence.

       This conclusion is supported by the language in other portions of Proposition 47.

For example, section 490.2, which was added by Proposition 47, provides a definition of



                                             6
petty theft that affects the definition of grand theft in section 487 and other provisions.

Section 490.2 begins with the phrase “Notwithstanding Section 487 or any other

provision of law defining grand theft. . . .” Similarly, section 459.5, which was also

added by Proposition 47 and which provides a definition of shoplifting that affects the

definition of burglary in section 459, begins with the phrase: “Notwithstanding Section

459. . . .” The “notwithstanding” language indicates that the drafters of Proposition 47

knew how to indicate when they intended to affect the punishment for an offense the

proposition was not directly amending. This “notwithstanding” language is notably

absent from section 496, subdivision (a). Because that provision contains no reference to

section 496d, we must assume the drafters intended section 496d to remain intact and

likewise intended for the prosecution to retain its discretion to charge section 496d

offenses as felonies.

       Defendant argues that even if California voters intended to reduce only vehicle

theft under section 487, subdivision (d)(1) to misdemeanors, while leaving the receipt of

a stolen vehicle under section 469d a wobbler offense, such discrimination is

impermissible under the Equal Protection Clause of the federal and state constitutions.

We disagree. “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. . . . Absent a showing that a



                                              7
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.” (People v. Page (2015) 241 Cal.App.4th 714, 719-720, quoting People v.

Wilkinson (2004) 33 Cal.4th 821, 839.) Defendant has not made this showing here.

       It is not unreasonable to argue, as defendant does here, that the same policy

reasons motivating Proposition 47’s reduction in punishment for the more general offense

of receiving any type of stolen property worth $950 or less (§ 496) would apply with

equal force to the more specific offense of receiving a stolen vehicle (§ 496d) where the

vehicle’s value does not exceed $950. However, if Proposition 47 were intended to apply

not only to offenses explicitly added, amended or referenced by the proposition, but also

to similar offenses that could have been, but were not, charged in the underlying case, we

would expect an indication of that intent in the statutory language. We do not find such

intent in the language of Proposition 47.

       Unless faced with an ambiguity or an absurd result, we must give statutory

language its plain meaning. (People v. Sinohui (2002) 28 Cal.4th 205, 212; Rivera,

supra, 233 Cal.App.4th at pp. 1099-1100.) Because “ ‘[i]t is axiomatic the Legislature

may criminalize the same conduct in different ways,’ ” giving the prosecutor “discretion

to proceed under either of two statutes” (People v. Chenze (2002) 97 Cal.App.4th 521,

528), we decline to assume the voters intended to affect the punishment for section 496d




                                             8
violations through the passage of Proposition 47. We conclude section 496d offenses are

not eligible for resentencing under Proposition 47.4

                                            III

                                     DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             CODRINGTON
                                                                                       J.

We concur:


KING
                Acting P. J.


MILLER
                          J.




       4  We note that even if we had concluded section 496d offenses are eligible for
Proposition 47 resentencing, defendant did not meet his burden of demonstrating that the
value of the stolen car he received was $950 or less. (See People v. Sherow (2015) 239
Cal.App.4th 875, 879-881 [holding that the burden under section 1170.18 to show the
value of the item at issue did not exceed $950 lies with the petitioner].)



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